Personal Jurisdiction Moves Front and Center in the Pinnacle Hip Implant MDL

By John Sullivan on August 8, 2017

Posts on personal jurisdiction, or the lack of it, have been all over this blog ever since the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court. Something similar happened three years ago after the Supreme Court decided Daimler AG v. Bauman. Together, these two decisions establish that federal courts are not empowered to find a reason to assert personal jurisdiction simply because the defendant is a large company doing business nationally. General jurisdiction requires the state in which the federal court sits to be the defendant’s “home,” meaning that it was incorporated there or has its principle place of business there. Specific jurisdiction requires that the very transaction from which the plaintiff’s claims arose involve the state in which the federal court sits. Otherwise, the court should dismiss the case. These decisions hold the promise of virtually eliminating litigation tourism.

But the plaintiffs in the Pinnacle Hip Implant MDL are trying to resurrect it, if only in their own litigation. The MDL is pending in federal court in Dallas. And yet the MDL court recently held, seemingly, that it can exert personal jurisdiction against the defendants and conduct trials in every case before it, even those that have no connection to Texas.

As many of us know, MDL courts have jurisdiction over the many cases that are transferred to them, but only for pretrial purposes. The transfer does not create personal jurisdiction for trial. Cases over which the MDL court does not have such personal jurisdiction must be transferred for trial back to the originating district court—or an appropriate district court that can exert personal jurisdiction. 28 U.S.C. 1407(a).

So, how is the MDL court doing this? Well, the lack of personal jurisdiction defense is waivable. And that’s where the MDL court is hanging its robe. It ruled in its June 28, 2017 decision that the defendants waived their defense of lack of personal jurisdiction—and not just for cases already tried, but (seemingly) for every Pinnacle hip implant case that has been filed and will be filed and that makes its way to the MDL. The defendants made this perpetual waiver, according to the MDL court, during proceedings before the special master, who at the time was working to arrange the first and second bellwether trials.

The defendants vehemently disagree. They say that their waiver, given the setting and the very language that they used, was limited only to personal jurisdiction as to the cases involved in the first and second bellwether trials, not all cases and forever. They believe this so strongly that they have filed a petition for a writ of mandamus to the Court of Appeals for the Fifth Circuit, asking that court to order that the MDL Judge cannot exercise personal jurisdiction in any of the eight cases with New York plaintiffs that the MDL court scheduled for the next bellwether trial, which starts in September.

It’s a petition for a writ of mandamus, so from the start defendants’ chances of victory are slim. But, last year, even in losing a petition for a writ of mandamus on another issue, the defendants got one of the Circuit Court judges (in a concurring opinion) to say that the MDL judge got it wrong. We’ll see what happens here. Plaintiffs must respond by the 14^th. And the Fifth Circuit will almost certainly rule before September 5, when this next multi-plaintiff bellwether trial is set to begin.

The Pinnacle hip implant litigation is never without intrigue.

In Praise of Brevity

By Stephen McConnell on August 7, 2017

We’re on vacation. The dog days of Summer are upon us. Time for our annual (okay – monthly) (okay- weekly) substance-less post. Our vacation began just a couple of days ago, yet we already rue its passing. Good times go by in the blink of an eye. We want to get away from the keyboard and back to the beach, so today we aim to keep this blogpost short. And that’s the point: short is good.

Short and sweet. Short and memorable. The Drug and Device Law Son, who recently earned a degree in marketing, reminds us that the best ad slogans are short. Just do it. Think. Coke is it. Think different. The same is true with art. It’s easier to watch half-hour sitcoms than hour-long dramas. We miss the early Woody Allen movies, which seldom lingered beyond 90 minutes. (We are not completely discounting the possibility that our recent obsession with short-form has something to do with bathroom breaks.). Our high school junior year English teacher told us that the two greatest American novels were Moby Dick and The Great Gatsby. We’ve read Gatsby seven or eight times. Moby Dick? Once. Shorter is more user-friendly.

In the law, too, short is good. The best bits of legal instruction ever done were the late Irving Younger’s lectures on cross-examination and evidence. You can find those lectures on YouTube. Younger announces the first rule of cross-examination by looking down to the ground, gathering his forces, then roaring, “Be brief!” Make no more than three points in your cross. Two is better. One is best of all. More than that, and you’re just flopping around. The jury will be bored and/or confused. Then they will punish you.

Think of the closing arguments you’ve seen in television shows (LA Law, Boston Legal, Goliath) or movies (To Kill a Mockingbird, The Verdict, The Client). They last under five minutes and are utterly compelling. Why don’t we see those short, snappy oral arguments in real life? We’re afraid of not making all the points we need, and not responding to all our opponent’s points. Whenever we walk out of an oral argument, what obsesses us are the arguments we did not make. But maybe we’ve got it all wrong. Maybe Irving Younger’s recommendation of brevity applies to oral arguments just as much as to cross-examinations. (It is amazing that this insight arrives as any sort of surprise to us. When we represented the United States of America in criminal cases, our best oral arguments went something like this: “No doubt your Honor has read the briefs. (Wait for a judicial nod.). Unless your Honor has any questions, the government submits on the papers.”).

Shortly before we embarked on our vacation, we attended an oral argument before the Joint Panel on Multidistrict Litigation, If you haven’t been to one of these arguments, you need to know they are unlike any other. The cases are huge but the arguments aren’t. The Panel typically affords a total of 20 minutes for argument. That’s 10 minutes per side – at most. In our case, there were multiple parties on each side, taking a variety of positions as to whether there should be an MDL at all, or who should be included, or where it should be located. Most parties were allocated one or two minutes to argue. One party, which apparently was taking the position that most interested the Panel, got a whopping four minutes.

Here’s the revelation: it worked. The arguments were all really good. One could assume the Panel had read the briefs carefully. The questioning by the judges proved as much. So the goal of argument was to update if need be, emphasize one or two crucial points, and, most important of all, answer the judges’ questions. Each and every lawyer was able to do that quite well. One plaintiff lawyer even used blow-up boards and effectively melded them into a two-minute argument. Sometimes the judges asked questions that took the speaker beyond the allocated time, but never by much. When it was over, no one felt cheated. It was a rebuke to the long-winded ness that too often prevails in our profession.

Right now we have a case set for trial in front of a judge who imposes mightily compressed time limits. The lawyers all chafe under the trial chess-clock, but there is reason to believe that the more concise the witness examinations are, the more they make an impact with the jury. The judge is probably correct that lawyers ramble on, perfectly oblivious to the law of diminishing returns. Still, we will probably grind our teeth and steam over the poor jury’s misfortune in being denied an extra hour or two of our eloquence.

There’s another part of our job that could benefit from brevity: writing. Briefs are ironically named. Lately we’ve been making a point of trying to get our briefs in under ten pages, even if the rules permit 20 or 25. We harbor a suspicion that anything longer taxes judicial patience, and perhaps even convinces the court that if we cannot make the point crisply and clearly, we don’t have much of a point. Accordingly, we put a lot of sweat equity in writing a one or two paragraph introduction that should, by itself, win the day for us. Then we will sprinkle the brief with headings and subheadings that make the merits of our position seem ineluctable. The supporting facts and law parked underneath those headings and subheadings should be just enough and no more. Anything that isn’t screamingly essential gets dropped to footnotes in the second draft. In the final draft, we will probably then delete almost all the footnotes. The life-cycle of marginal arguments and evidence is short and cruel.

The key is to know when to stop.

Comment K and Non-Implanted Medical Devices

By Bexis on August 4, 2017

About two years ago, in our post “How Does a Bad Idea Get Implanted,” we discussed what at the time seemed a California peculiar argument that the “unavoidably unsafe” product doctrine epitomized by Restatement (Second) of Torts §402A, comment k (1965) was somehow limited to implantable – as opposed to non-implantable – medical devices. While most medical device litigation has historically involved implants, in that post we saw nothing in comment k, or the broader concept that prescription-only products have inherent risks (why their availability requires a doctor’s prescription in the first pace), that is logically limited to implantable devices.

We pointed out in that post that this rather weird argument apparently originated in ill-considered dictum in Chandler v. Chiron Corp., 1997 WL 464827, at *4 (N.D. Cal. July 28, 1997), a case which ultimately dismissed the plaintiff’s design defect claim on causation grounds (and was affirmed on that basis, see 176 F.3d 481 (9th Cir. 1999)), and was directly refuted by controlling California appellate authority: Armstrong v. Optical Radiation Corp., 57 Cal. Rptr.2d 763, 772 (Cal. App. 1996), which applied the comment k unavoidably unsafe rationale to intraocular fluid, a non-implanted surgical aid. As we put it then:

The issue is not whether the device is implanted, it is whether the device unavoidably poses risks even as it must be used by physicians to “save lives or reduce pain and suffering.”

Quoting Brown v. Superior Court, 751 P.2d 470, 479 (Cal. 1988)).

We were recently contacted by fellow defense counsel about a similar argument being made by plaintiffs in a Pennsylvania case, since Pennsylvania, like California, also applies comment k across the board. We took a look at the case law and let them know that Pennsylvania precedent likewise has not recognized any artificial distinction between implanted and non-implanted prescription medical devices. Rather, in Wagner v. Kimberly-Clark Corp., 225 F. Supp.3d 311, 315 (E.D. Pa. 2016), a Pennsylvania court applied comment k/the unavoidably unsafe doctrine to bar strict a liability claims involving a prescription device that wasn’t an implant. Wagner involved a temporary feeding tube used while the plaintiff was in intensive care, and the court dismissed strict liability design and warning defect claims, but not manufacturing defect claims, under Pennsylvania’s broad reading of comment k. 225 F. Supp.2d at 315 & n.4. Indeed, Wagner essentially took the application of the unavoidably unsafe doctrine to design and warning claims as a given, as 9/10 of the opinion was about whether or not strict liability manufacturing defect claims could survive (which is a different issue we addressed here). Id. at 316-18.

Maybe a feeding tube, although not technically an implant, still seems “close enough,” since such tubes do extend inside the body, albeit quite temporarily. OK, but there’s plenty of precedent out there about devices that don’t even temporarily penetrate the body.

In Racer v. Utterman, 629 S.W.2d 387 (Mo. App. 1981), the plaintiff was injured when “a disposable drape manufactured by defendant . . . caught on fire resulting in serious burns.” Id. at 391. “The purpose of the surgical drape is to provide a sterile field and to serve as a barrier to prevent bacteria from reaching the operation site.” Id. at 391-92. The appellate court affirmed application of comment k to this product:

Comment k to the Restatement recognizes that “unavoidably unsafe” products achieve protection despite their danger “when accompanied by proper directions and warning”. . . . On the record before us we find the surgical drape here to be an “unavoidably unsafe” product. It is a highly useful product which affords substantially increased protection against infection during surgical procedures. Its water-repellant attributes increase these protections. In the state of knowledge at the time of the injury no method of making the product fire-resistant was available which did not adversely affect its barrier against infection or create potential injury to the patient from allergy or disease.

Id. at 393. The defendant still lost, but on warnings, id. at 395, not because comment k didn’t apply to the drape because it wasn’t implanted.

The Illinois Supreme Court applied comment k’s unavoidably unsafe rationale to therapeutic x-ray radiation equipment in Greenberg v. Michael Reese Hospital, 415 N.E.2d 390, 394-95 (Ill. 1980).

The possibility that in certain cases protection of human life and health might be diminished by the imposition of liability has been recognized in section 402A of the Restatement. Comment k indicates that certain products, though dangerous, are necessarily so and do not warrant the imposition of liability. . . . [C]omment k presume[s] in their treatments that the denomination “product” has already been applied to the matter in question. Nevertheless, imposition of strict liability is a question of policy, and often the same policy concerns are involved in discussions which are ostensibly diverse, for example: the meaning to be given such terms as “product,” “defective,” “unreasonably dangerous,” and “business of selling.” For the reasons stated we conclude that public policy dictates against the imposition of strict liability in tort for injuries resulting from the administration of X-radiation treatments by a hospital.

Id. at 394-95 (citations and quotation from Prosser’s On Torts omitted).

Two other cases have applied comment k’s analysis to external patches that release drugs that are absorbed through the skin. In Edwards v. Basel Pharmaceuticals, 933 P.2d 298 (Okla. 1997), the court cited and quoted comment k (“the law regarding such products appears at Comment k”) in a case involving nicotine patches. These were products “incapable of being made safe, but are of benefit to the public dispute the risk. Id. at 300. Likewise, in Mardegan v. Mylan, Inc., 2012 WL 12850781, at *6-7 (S.D. Fla. Jan. 31, 2012), a fentanyl “pain patch” was considered to be within the scope of comment k. The court refused to grant summary judgment, but only because it found “genuine issues of material fact . . . as to whether the patches at issue were incapable of being made safe,” not because comment k was categorically inapplicable to non-implanted products. Id. at *7.

Most recently, in Taylor v. Intuitive Surgical, Inc., 389 P.3d 517 (Wash. 2017), the court applied comment k to a surgical robot – a piece of equipment that assists in the conduct of surgery and is never implanted in the body. The court applied comment k analysis to the liability questions. Id. at 526-28. As in Racer, Taylor found that the comment k exception did not apply on the facts of the case, because it could not be said that the product warnings were adequate as a matter of law. Id. at 528 (“[e]xemption from strict liability under comment k is expressly limited to products accompanied by adequate warnings”). Once again, there was not a hint in Taylor that the fact that the robot was not an implant made comment k ipso facto inapplicable. Washington law “safeguard[ed] the public to the greatest extent possible without discouraging the development and marketing of unavoidably unsafe products.” Id.

The great majority of product liability litigation involving prescription medical devices happens to involve implants. However, that descriptive fact is of no legal consequence to the applicability, or not, of the comment k/unavoidably unsafe product doctrine. That doctrine is interpreted in a variety of different ways – most notably case-by-case versus across-the-board application to prescription medical products. But no matter which way the doctrine is interpreted, its application is not dependent upon whether or not a medical device is implanted in the body. At least three state high courts, two state intermediate appellate courts, and a couple of federal district court agree. There is no contrary precedent, only the aforementioned dictum in Chandler, a 20-year-old district court case, the reasoning of which has never been adopted by any subsequent decision, and (as we already discussed) is refuted by the Cal. App. Armstrong decision.

How Not To Create an “Exception” to the Learned Intermediary Rule

By Bexis on August 3, 2017

We’ve heard more about the constitutional “emoluments clause,” Art 1 §9, clause 8, this year than during the entire rest of our legal careers. But while it’s illegal for anybody working for the U.S. government to accept anything of value from a “foreign state,” that doesn’t make it illegal, unethical, or even particularly noteworthy for a “learned intermediary” to accept things of value from prescription medical product manufacturers – provided, of course, that doing so doesn’t adversely affect patient care.

For example, the FDA knows and accepts that not only patients/subjects in clinical trials, but also physicians/investigators are routinely paid for their trouble. The FDA’s longstanding Guidance for Industry Financial Disclosure by Clinical Investigators does not require disclosure of “normal reimbursable expenditures” that compensate investigators for routine costs, as long as payments do not “exceed reasonable expectations.” 2001 WL 34768176, at *11. Such expenses aren’t seen as having a “potential for bias.” Id. at *1. Even interests that could potentially be a source of bias aren’t prohibited, or limited – they must only be disclosed:

Compensation the “value of which could be affected by study outcome.”
“A proprietary interest in the tested product”
An “equity interest in the [study] sponsor.”
“Any equity interest in a publicly held company that exceeds $50,000”
“Other sorts” of payments with “a cumulative monetary value of $25,000 or more made by the [study] sponsor.”

Id. at *1-2.

Thus, we don’t have much good to say about a couple of Texas district court opinions that would create an exception to the learned intermediary rule whenever the plaintiff’s prescriber has received any sort of compensation. Not only is creating exceptions to state common-law rules none of a federal court’s business, but such a broad exception is contrary to precedent and totally unnecessary.

Anyway, the first of these cases was Murthy v. Abbott Laboratories, 847 F. Supp.2d 958 (S.D. Tex. 2011). The plaintiff was a participant in the defendant’s clinical trial, and signed the standard informed consent documents to participate. Id. at 964. Murthy refused to apply the learned intermediary rule, “first” because the defendant “arguably directly marketed” the drug to the plaintiff “by creating a promotional video,” and “second” because the prescriber – plaintiff’s doctor – “was compensated by [defendant].” Id. at 967.

Murthy then launched into an extended discussion of the “foundations” of the learned intermediary rule under Texas law. Id. at 967-70. This exegesis was not necessary. The Fifth Circuit, whose law Texas district courts are bound to follow, has repeatedly recognized that Texas applies the learned intermediary rule to all prescription medical products. Pustejovsky v. PLIVA, Inc., 623 F.3d 271, 276 (5th Cir. 2010) (generic drug); Ebel v. Eli Lilly & Co., 321 Fed. Appx. 350, 355-56 (5th Cir. 2009) (branded drug); Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203, 207-08 (5th Cir. 2008) (same); McNeil v. Wyeth, 462 F.3d 364, 368 (5th Cir. 2006) (same); Porterfield v. Ethicon, Inc., 183 F.3d 464, 467-68 (5th Cir. 1999) (medical device); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992) (contrast medium); Hurley v. Lederle Laboratories, 863 F.2d 1173, 1178 (5th Cir. 1988) (vaccine). The only loophole to the learned intermediary rule ever recognized under Texas law is the so-called “mass vaccination” exception – where a nominally prescription product was dispensed with no doctor, and thus no physician-patient relationship, actually present. See Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1277-78 (5th Cir. 1974).

However, Murthy was bound and determined to change Texas law. Rather than follow binding Fifth Circuit precedent, the decision latched onto a “recent[]” decision by a “Texas state appellate court [that] recognized an exception to the learned intermediary doctrine.” Id. at 970. That was the so-called “direct-to-consumer” (“DTC”) exception where, according to Murthy, “a drug manufacturer practices consumer marketing that fraudulently touts the drug’s efficacy while failing to warn of the risks.” Id. After a long paragraph describing the DTC exception, Murthy pointed out (accurately) that the Texas Supreme Court had yet to pass on any learned intermediary rule exception. Id.

At this point Murthy imitated Captain Kirk – boldly going where no federal court had gone before. In the absence of on-point Texas precedent, Murthy elected to “consider, among other sources, treatises, law review commentaries, [and] decisions from other jurisdictions.” Id. at 971 (citation and quotation marks omitted). What followed were several pages (and long footnotes) that resembled what we saw in Perez v. Wyeth Laboratories Inc., 734 A.2d 1245, 1257-59 (N.J. 1999), or State ex rel. Johnson & Johnson Corp. v. Karl, 220 W.Va. 463, 472-75 (W. Va. 2007) – both of which were cited in Murthy – long on rhetoric and citations to law reviews, but notably lacking in precedent that actually did what Murthy was proposing.

What did Murthy propose?

First it jumped on the DTC exception bandwagon. Id. at 971 (“the Court believes that the Texas Supreme Court will likely agree with the Court of Appeals’ reasoning”). “By creating and disseminating a promotional video . . ., [defendant] may have circumvented the doctor-patient relationship.” Id.

Then Murthy turned to the “gifts or compensation” that the prescriber-investigator had received for participating in the clinical trial in which plaintiff had been enrolled:

Studies have documented, however, that gifts or compensation from drug companies influence medical professionals’ treatment decisions. Conflicts of interest also arise when clinicians stand to gain from enrolling their own patients as subjects in clinical trials. Indeed, a doctor who receives gifts or compensation from a drug company may no longer, as the prescriber, stand between the drug and the ultimate consumer, as the doctor has an incentive to prescribe a particular drug or, in this case, enroll a patient in a clinical trial. . . . Under certain circumstances, when a physician receives compensation or gifts from drug companies, his or her role as the neutral decision-maker may be diminished. As such, dismissal of [plaintiff’s] failure to warn claim on learned intermediary grounds would not be appropriate at this time. Rather, the Court would have to examine the factual circumstances surrounding the compensation of [plaintiff’s] physician in order to evaluate whether application of the learned intermediary doctrine is appropriate.

Id. at 971-73 (citations, quotation marks and two gigantic footnotes to “studies” omitted). In the end, however, all this discussion in Murthy was merely an extended exercise in obiter dictum – a judicial hit and run − as the warning claims in that case had to be dismissed for another reason. See Id. at 975-76 (all warning claims fail under Texas statutory presumption of adequacy in FDA-approved warnings).

The second case, In re Depuy Orthopaedics, Inc. Pinnacle Hip Implant Products Liability Litigation, 2016 WL 6268090 (N.D. Tex. Jan. 5, 2016) (“DOPHI”), purported to turn Murthy’s case-by-case evaluation into a blanket compensation exception:

Moreover, the learned intermediary doctrine does not apply when a manufacturer compensates a physician or incentivizes him or her to use its product. Murthy v. Abbott Labs, 847 F. Supp. 2d 958, 971-73 (S.D. Texas 2012). Because of the relationship between [defendant] and [the prescribers], a fact question exists regarding the legitimacy and objectiveness of [these prescribers] that precludes application of the learned intermediary doctrine as a basis for summary judgment.

Id. at *6.

There are a number of problems with this nascent emoluments exception to the learned intermediary rule. First, its meager support in Texas precedent was blown away when the Texas Supreme Court unanimously reversed the “appellate court” decision that Murthy had followed and just an unanimously adopted the learned intermediary rule:

[W]e hold that a prescription drug manufacturer fulfills its duty to warn end users of its product’s risks by providing adequate warnings to the intermediaries who prescribe the drug and, once fulfilled, it has no further duty to warn the end users directly. . . . Our decision to apply the learned intermediary doctrine in the context of prescription drugs, prescribed through a physician-patient relationship, not only comports with our prior references to the doctrine and many years of Texas case law, but it places us alongside the vast majority of other jurisdictions that have considered the issue. . . . The underlying rationale for the validity of the learned intermediary doctrine remains just as viable today as stated by Judge Wisdom in 1974.

Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 157-58 (Tex. 2012) (long string-cite footnote and quotation from Reyes, supra omitted).

As for exceptions to the learned intermediary rule, the Texas Supreme Court declined to recognize any. Id. at 160 n.18 (“we need not determine whether Texas law should recognize exceptions to the learned intermediary doctrine”). Particularly with respect to the DTC exception Centocor held:

We acknowledge that some situations may require exceptions to the learned intermediary doctrine, but without deciding whether Texas law should recognize a DTC advertising exception when a prescription drug manufacturer distributes intentionally misleading information directly to patients or prospective patients, we hold that, based on the facts of this case, no exception applies.

Id. at 162 (footnote omitted) (emphasis added). In the omitted footnote the Texas Supreme Court further criticized the decision that Murthy had blithely predicted it would follow, stating “[t]he court of appeals’ reasoning . . . relegates physicians to a mere dispensary role of prescriptions [and] fails to consider the important professional and ethical standards the law requires of physicians.” Id. at n.24 (citing Texas statutes governing physician conduct).

After the Centocor reversal, the putative emoluments exception to the learned intermediary rule in Texas rests on precisely zero precedent, only the law journal articles and other studies that Murthy used to justify its prediction.

That brings us to the second point. Perez and Karl, however wrong we believe them to be (and Karl has since been legislatively overturned), were decided by state high courts. Those courts have the authority to change state law, even changes based entirely on academic musings, if they so decide. Murthy and DOPHI, being federal district courts exercising diversity jurisdiction, do not have such authority. We’ve been over this many times before on the blog. In the words of the Supreme Court:

A federal court in diversity is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.

Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975). The Fifth Circuit, which as we mentioned includes Texas, agrees:

No Texas court has interpreted [the law] that way. And we see no other sufficiently strong indication to make an Erie guess that the Supreme Court of Texas would do so. [I]t is not for us to adopt innovative theories of Texas law, but simply to apply that law as it currently exists.

Barnett v. DynCorp International, LLC, 831 F.3d 296, 307 (5th Cir. 2016) (citations and quotation marks omitted).

[I]n hazarding an Erie guess, our task is to attempt to predict state law, not to create or modify it. The practical effect of adopting an exception like the one [plaintiffs] propose is the creation of a previously nonexistent state law cause of action. Therefore, [plaintiffs] carry a heavy burden to assure us that we would not be making law.

Memorial Hermann Healthcare System Inc. v. Eurocopter Deutschland, GmbH, 524 F.3d 676, 678 (5th Cir. 2008) (citations omitted). Accord, e.g., Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605, 616 (5th Cir. 2014); Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 184 (5th Cir. 2012); Holden v. Connex-Metalna Management Consulting GmbH, 302 F.3d 358, 365 (5th Cir. 2002); Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 749 (5th Cir. 1995); Solomon v. Walgreen Co., 975 F.2d 1086, 1089 (5th Cir. 1992); Dean v. Dean, 837 F.2d 1267, 1268 (5th Cir. 1988); United Parcel Service, Inc. v. Weben Industries, Inc., 794 F.2d 1005, 1008 (5th Cir. 1986); Galindo v. Precision American Corp., 754 F.2d 1212, 1217 (5th Cir. 1985).

Finally, our third point is that no other state in the union has adopted any sort of emoluments exception to the learned intermediary rule. Rather, such claims have been occasionally made, and always rejected, in other states. That’s quite logical. Unlike the mass vaccination exception, less accepted exceptions involving consumer choice products (contraceptives) or FDA-mandated DTC warnings – or even the New Jersey-only DTC advertisement “exception” – every other purported exception to the learned intermediary rule has at its justification some kind of communication that avoids the physician-patient relationship. Claims about financial relationships with prescribers don’t do that. Rather, they seek to attack an existing relationship using emoluments to claim the physician wasn’t “independent” of the drug/device company. That’s not a proper “exception” to the learned intermediary rule; that’s a causation issue, if anything other than a smoke screen. To the extent there is ever any evidence of actual influence over a particular patient’s prescription decision, that is more logically dealt with as tending to defeat a causation defense, but it is not a basis to require direct manufacturer-to-patient warnings where a physician/patient relationship has already been established, which is what exceptions to the learned intermediary rule require.

The first cases to assert financial relationships in opposition to the learned intermediary rule were in Ohio. In Blatt v. Hamilton, 1986 WL 2925 (Ohio App. March 6, 1986), the plaintiff claimed that his prescriber’s receipt of free drug samples meant that the prescriber should be viewed as the defendant’s agent. The court disagreed:

The mere fact that a salesman of the manufacturing company gives samples to a doctor and the doctor distributes these samples to a patient, without more, does not prove an agency relationship. . . . There was no evidence that . . . the manufacturer, had control as to whom, when, in what doses, and in what form, topical or oral, the [drug] was prescribed or distributed by [the prescriber].

Id. at *3 (citation omitted). Then, in Tracy v. Merrell Dow Pharmaceuticals, Inc., 569 N.E.2d 875 (Ohio 1991), the Ohio Supreme Court considered facts quite like Murthy – the prescriber had treated the patient under an investigational research protocol and received a per patient payment from the manufacturer. Id. at 879. The receipt of routine research-related compensation did not, Tracy ruled, compromise the prescriber’s independence:

Although [defendant] paid [the prescriber] for each participant in the . . . study program, the evidence does not support a finding that [the prescriber] was an employee of [defendant] or that [the prescriber] was acting under the control of [defendant] rather than as a physician exercising his independent judgment. . . . [Defendant] did not control [the prescriber’s] judgment, duties and responsibilities as he used [the drug] in the treatment of patients. Accordingly, we find that [the prescriber] was acting as an independent physician in dispensing [the drug] to [plaintiff], that he was a learned intermediary and that the trial court correctly instructed the jury on the learned intermediary doctrine.

Id.

Participation in clinical trials similarly did not affect the learned intermediary rule in Little v. Depuy Motech, Inc., 2000 WL 1519962 (S.D. Cal. June 13, 2000). “The Court [was] not persuaded by Plaintiffs argument that [the prescriber] was not an independent intermediary because he was part of an investigational team” that studied the type of product and surgery at issue. To the contrary, such study “further support[ed] the finding that [the prescriber] knew about the risks associated with such devices,” and thus defeated causation. Id. at *9. Likewise, in a Texas trial court decision neither Murthy nor DOPHI cited, the plaintiff “contend[ed] that [defendant’s] alleged . . . misconduct influenced [the prescriber’s] treatment recommendations because of the fees he received.” Baker v. Smith & Nephew Richards, Inc., 1999 WL 811334, at *24 (Tex. Dist. Harris Co. June 7, 1999), aff’d mem., 2000 WL 991697 (Tex. App. July 20, 2000). The court gave that allegation the back of its hand. “This contention has been rejected.” Id.

In In re Trasylol Products Liability Litigation, 2011 WL 2117257 (S.D. Fla. May 23, 2011) (applying Alabama law), allegations that the prescriber was “biased because he was a consultant for [defendant], and was paid to attend a Trasylol conference” failed to prevent summary judgment under the learned intermediary rule. Id. at *4.

Plaintiff’s assertions that the learned intermediary doctrine should not apply because [the prescriber] is biased and failed to exercise independent medical judgment do not persuade me. . . . Plaintiff does not offer evidence that [the prescriber’s] choice to prescribe [the drug] for [plaintiff] was not an informed one, or that he did not exercise individualized medical judgment in making that decision.

Id.

In less routine situations, allegations that prescriber held stock in the defendant or received large sums in compensation have not affected the applicability of the learned intermediary rule. In one of Bexis’ Bone Screw appeals, Talley v. Danek Medical, Inc., 179 F.3d 154 (4th Cir. 1999) (applying Virginia law), the prescriber was a an equity holder in, and a paid consultant for, the defendant. Id. at 164 (paid to teach surgical procedures, annual $250,000 consulting fee, travel budget, research funds, and 25,000 shares of stock). The plaintiff argued that, because of these ties, the prescriber “cannot be considered an intermediary, learned or otherwise.” Id. Summary judgment under the learned intermediary rule was affirmed because that evidence was not connected to anything that occurred in the plaintiff’s treatment. “[T]here is no evidence that the consulting relationship between [the prescriber] and [defendant] interfered with [his] independent medical judgment in treating [plaintiff]. On the contrary, the evidence suggests otherwise.” Id. Whether financial ties caused injury by lack of “independence” was a “complex question would depend on the nature of the relationship between the manufacturer and the physician and the extent to which the physician was in fact afforded independence in making medical judgments.” Id. The Trasylol decision followed Talley. 2011 WL 2117257, at *4.

In In re Zyprexa Products Liability Litigation, 2010 WL 348276, at *11 (E.D.N.Y. Jan. 22, 2010) (applying Illinois law), the plaintiff “contend[ed] that summary judgment should not be granted on learned intermediary grounds” because his prescribing physician was “biased” by having “conducted paid research for at least ten pharmaceutical companies, including defendant,” having been “a paid speaker for at least six pharmaceutical companies, including [defendant],” and having “accepting $490,000 in compensation from” drug companies. Id. at *11. Such facts did not oust the learned intermediary rule because nothing showed any “bias specific to” the drug or towards the defendant. Id.

Allegations of compensation of a similar magnitude did not impair California’s learned intermediary rule in In re Vioxx Cases, 2006 WL 6305292 (Cal. Super. Dec. 19, 2006). A plaintiff argued that his prescriber could “not play the role of learned intermediary because it paid him hundreds of thousands of dollars over the years to conduct research and give lectures.” Id. Absent “evidence of actual bias” the compensation didn’t matter:

Payment to a physician, standing alone, does not deprive the physician of learned intermediary status. Such payment for research is a widespread practice, yet the court was unable to find a case where a physician who was paid for research was considered to have abrogated his or her role of learned intermediary. Therefore, such payments alone do not constitute a “special circumstance” for purposes of setting aside the learned intermediary doctrine. Indeed, if such payments alone sufficed, a manufacturer would have to obtain the patient list of every physician it pays for research in order to somehow provide direct warnings.

Id.

Nor does Murthy itself have much of a track record. DiBartolo v. Abbott Laboratories, 914 F. Supp.2d 601 (S.D.N.Y. 2012), rejected Murthy’s rationale notwithstanding plaintiff’s allegation that her prescriber “may have had a direct financial relationship with [defendant].” Id. at 613.

This argument fails on both the law and the facts. On the law, plaintiff has not cited any New York decision that adopts an exception to [learned intermediary rule] where physicians received compensation from drug manufacturers. Murthy applied Texas law, and plaintiff has not demonstrated that Murthy is part of any trend supporting an exception . . . where drug manufacturers compensate physicians. On the facts, moreover, plaintiff’s allegations that [defendant] compensated [the prescriber] are completely speculative, based entirely on what [defendant] allegedly did in other cases involving other physicians.

Id. at 616 (citation and footnote omitted). Even assuming what plaintiff claimed was true, however, would not oust the learned intermediary rule, because “[i]t is not clear . . . that manufacturer-compensated physicians would in fact neglect their professional duties to an extent that would undermine” the rule. Id. at 616 n.6. See also Calisi v Abbott Laboratories, 2013 WL 5462274, at *3-4 (D. Mass. Feb. 25, 2013) (refusing to follow Murthy and rejecting any “physician compensation exception” to the learned intermediary rule).

Finally, similar emolument-related allegations have failed as challenges to otherwise uncontradicted prescriber testimony. In Eck v. Parke, Davis & Co., 256 F.3d 1013 (10th Cir. 2001) (applying Oklahoma law), summary judgment for the defendant was affirmed under the learned intermediary rule on the basis of the prescriber’s prior independent knowledge of the relevant product risks. Id. at 1019. Even with the benefit of a heeding presumption, the plaintiff could not successfully assert the prescriber’s “research for several pharmaceutical companies” as a basis for creating a credibility issue. Id. at 1024. Such pharmaceutical affiliations, “standing alone, however, merely offer speculation as to [the prescriber’s] motives for testifying and they are clearly insufficient to call into question either [her] credibility or the veracity of her statements.” Id. “Absent evidence suggesting [the prescriber] was otherwise influenced by the defendants, we . . . find no reason to question her credibility or the truth of her testimony.” Id. See Miller v. Pfizer, Inc., 196 F. Supp.2d 1095, 1129 & n.108 (D. Kan. 2002), (“no reasonable jury” could “discredit” unrefuted prescriber testimony based on “bias . . . arising from his business relationship with [defendant], i.e., the fact that at or near the time he prescribed [the drug] for [plaintiff, he] was a paid consultant”), aff’d, 356 F.3d 1326 (10th Cir. 2004).

Based on the above, we believe there is no legal basis for an “exception” to the learned intermediary rule predicated on a prescribing physician having a pre-existing relationship, financial or otherwise, with a defendant manufacturer of prescription medical products. Perhaps, in an extreme case, there might be actual evidence of bias affecting a particular plaintiff’s medical treatment, but we have yet to see any such case. Even in the case of significant emoluments, see Talley, Zyprexa, Vioxx, supra, plaintiffs have been unable to establish a jury submissible case of actual, causal bias. Murthy and DOPHI, exceeded the proper role of federal courts exercising diversity jurisdiction, and their novel predictions are belied by extensive contrary precedent.

New Jersey Appellate Court Very “Relaxed” About Expert Testimony in Accutane Litigation

By Michelle Yeary on August 2, 2017

The court may have taken a relaxed approach, but its decision has done nothing but raise blood pressures over at that DDL blog. The course of the Accutane litigation in New Jersey has been labored and we’ve posted about the whole journey. For years, we were pretty riled up. The news from the coordinated proceeding in the trial court had been very bad, including a few large plaintiff verdicts. Then the litigation got reassigned and under new management the tide began to turn. We could feel our pulse returning to normal. The new judge’s look at old issues has been more balanced (from our view), as has the Appellate Division’s review of old decisions. Indeed, the Appellate Division has vacated at least a half dozen plaintiff verdicts. After so many tortuous years, defendants in the New Jersey Accutane litigation finally had a reason to smile (actually thousands of reasons if reasons are dismissals). So we definitively can say we were unpleasantly surprised when last week the Appellate Division reversed the trial court’s order excluding certain plaintiff causation expert witnesses resulting in reviving over 2000 cases.

The to-be-published decision can currently be found at In re Accutane Litigation, 2017 N.J. Super. LEXIS 116 (App. Div. Jul. 28, 2017). It’s a long opinion with a lengthy discussion of epidemiology in general and the epidemiologic evidence pertaining to Accutane specifically. We’ll try to just hit the relevant highlights.

First a quick primer on New Jersey law on the admissibility of expert evidence. New Jersey has adopted a “relaxed” general acceptance standard for toxic tort and pharmaceutical cases. See Rubanick v. Witco Chemical Corp., 125 N.J. 421, 449 (1991). That means that if the expert’s theory is not generally accepted, it may still be admissible if it is “based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.” In re Accutane, at *47. Further, specifically in regard to reliance on epidemiology as evidence of causation, the court must address not just methodology but also the expert’s reasoning in applying or relying on that methodology to reach his/her conclusions. Id. The court should not only review the studies and other information to determine if they are the type of data experts ordinarily rely on but also “examine the manner in which experts reason from the studies and other information to a conclusion.” Id. at *51.

As we mentioned, the litigation has been handled by two different trial judges. The first judge allowed the opinions of plaintiffs’ experts based on the same type of evidence relied on by plaintiffs’ experts here. Id. at *5. But this litigation has been pending for 14 years. The science has not been stagnant during that time. From 2003 to 2009, there were no epidemiological studies regarding Accutane and irritable bowel disease (IBD) or Crohn’s disease. Id. at *8. Epidemiological studies are considered at the top of the scientific hierarchy. Experimental studies (double-blind randomized control trials) are the gold standard and observational studies (case-control or cohort studies) are the next best available evidence. Without those, plaintiffs’ experts were permitted to rely on “animal studies, human clinical studies, case reports, class effects, published scientific literature, causality assessments, and biological plausibility.” Id. In other words, they were permitted to use less reliable evidence because that is all there was.

But in 2009 and 2010, the first epidemiological studies were published – both of which found no statistically significant increased risk for developing Crohn’s disease from the use of Accutane. Id. Six more epidemiological studies followed and while the results vary, “with one exception, none of them demonstrates a statistically significant increased risk of developing Crohn’s disease.” Id. at *9. Despite the evolving state of the science, plaintiffs’ experts chose to discount the epidemiology in favor of the “other information” on which they had previously relied.

Applying even the New Jersey “relaxed” standard, the trial court found that plaintiffs’ experts reasoning and methodology “slanted away from objective science and in the direction of advocacy.” Id. at *53-54. After reviewing the evidence and conducting a full Kemp hearing (New Jersey’s version of a Daubert hearing), the trial court concluded that the epidemiologic evidence did not support a reasonable inference of a causal link between Accutane and Crohn’s disease. Plaintiff’s experts ignored the studies’ authors own conclusions, excluded the larger population based studies, and made assumptions to “bridge an analytical gap in his methodology.” Id. at *54-55.

We’ve blogged before about the risk of allowing litigation to march ahead of science. As the United States Supreme Court explained in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the goal of “reaching a quick, final, and binding legal judgment” on matters that are “often of great consequence” is not advanced by accepting hypotheses and conjectures in the place of reliable scientific evidence. But that is exactly what the New Jersey Appellate Division seems determined to do. The court announced its guiding principle as the antithesis of Daubert: “legal decision making in toxic tort and similar cases may vary from scientific decision making.” Id. at *69. This doesn’t even reconcile with the New Jersey standard that requires general acceptance in the scientific community of an expert’s methodology and reasoning.

And what happens when “legal decision making” supplants the scientific process? Experts get to do things differently in the courtroom than in practice. They can ignore big epidemiologic studies not finding a statistically significant relationship for little ones that do, as long as they come up with some critique of the larger studies that lets them. They can use data further down the “hierarchy” even though top tier evidence is against them. They can rely upon their clinical experience in deciding what evidence accords with it. Precisely the types of things Daubert, Rubanick, and Kemp say should not be permitted.

Further, while giving lip service to the fact that “science is constantly evolving” and that “legal decisions need to be made based on the best evidence available at the time of the decision” – the court seems to be mired in the past. Id. at *69. It concludes that despite the overwhelming epidemiological evidence that demonstrates no statistically significant increase in the risk of Crohn’s disease from taking Accutane, plaintiffs’ experts can continue to rely on “other types” of evidence – “which in this same MCL docket they were previously permitted to use.” Id. at *70. Why is that part of the equation? As much as litigation shouldn’t lead science, it shouldn’t lag it either. It should move with it. The state of the science is vastly different than it was 14 years ago, and the court seems to be willing to overlook those developments. The opinion states that the decision “must be viewed in the context of this particular MCL litigation” and “concern[s] the survival of plaintiffs’ cause of action in the face of new scientific information.” Id. at *68-69. Exactly. Plaintiffs’ claims need to be assessed on the basis of the new scientific evidence. And if the claims can no longer survive based on the evolving scientific evidence, then that is the result. Ultimately, however, what seemed to matter more than accurately applying the law to the current state of the science, was “[t]he opportunity of thousands of plaintiffs, claiming injury from Accutane, to have their day in court.” Id. at *69.

The Rule of Law is the Best Medicine, Part 2

By Stephen McConnell on August 1, 2017

Last week, we summarized PhRMA’s comments on the FDA’s proposed amendments to regulations regarding “intended uses.” PhRMA showed how the FDA’s insistence that it could read manufacturer’s minds about intended uses made no sense on an evidentiary basis and ran afoul of First Amendment considerations. Today, we’ll tip our cyber caps to the Advanced Medical Technology Association (AdvaMed), which also issued well thought-out comments on the FDA’s proposal. You can read the AdvaMed July 18, 2017 comments here.

To begin with, the AdvaMed letter excels at doing that thing that judges yell at dumb litigators for not doing in their motions — stating what relief is sought. AdvaMed puts it plainly: “FDA should abandon the Final Rule and instead return to its original and unambiguous proposal to remove the reference to ‘knowledge’ as set forth in FDA’s September 25, 2015 proposed rule regarding the definition of ‘intended uses.’” What’s wrong with the FDA’s proposed rule? It’s bad in its totality, including its reliance the “totality of the evidence” standard. AdvaMed correctly states that “the ‘totality of the evidence’ standard is more outcome determinative than prescriptive.” We are reminded of how Justice Black called judicial balancing tests pretentious cover-ups for courts doing whatever they felt like doing. A totality of the evidence test would mean that the FDA would administer rough justice on a case-by-case basis, sans principle and sans predictability.

That lack of predictability is particularly pernicious where the chilled communications are so critical to public health. AdvaMed provides concrete examples of communications pertaining to both approved and unapproved medical devices that any right-minded person (and any person who thinks they might someday benefit from advanced drugs and devices – that is, everyone) would favor. Such communications include training and technical support, educational meetings about clinical trials and development data, feedback from doctors on investigational development, information about real-world experiences with devices, and engagement with health care professionals on device innovation and improvement. Plaintiff lawyers love to say that drug and device manufacturers have a duty to be the foremost experts on their own products. The communications potentially chilled by the FDA’s vague, overbroad content-less regulation on “intended uses” are all necessary to facilitate such expertise.

AdvaMed makes the same constitutional argument that PhRMA made, though with some different wrinkles. AdvaMed discusses the Washington Legal Foundation case from 1998. The FDA, which raps companies on the knuckles if they are poor at signal detection, should have seen that 1998 case as a very clear signal that its chokehold on truthful off-label communications was unconstitutional. AdvaMed also does a fine job of applying the Central Hudson requirement that regulation of commercial speech must be narrowly-tailored to serve the governmental interest. In its request for comments on the proposed rule, the FDA supplied examples of speech restrictions that mostly related to “activities and communications involving the distribution or promotion of illicit drugs.” There are already non-speech sanctions (including the Controlled Substances act, as well as mail or wire fraud statutes) available to address such criminal activity.

For one brief moment of lucidity, the FDA recognized that a manufacturer’s knowledge that a third party was using a product off-label was not the same thing as the manufacturer’s intent that such product be used off-label. Then the FDA reversed field, and now we have this new proposed rule. AdvaMed makes clear that “it is inappropriate to hold manufacturers responsible for the use of their products by third parties over whom they have no control.” Fairness says as much. So does a concern for unintended consequences. The FDA has more than once acknowledged that collaboration between manufacturers and health care practitioners is essential to help develop new life-enhancing or –saving products. But if manufacturers will be put on the hook for everything they know such collaborators are doing, how can the nature or frequency of such collaboration be unaffected?

AdvaMed concludes its comments with a request that, if the FDA won’t do the right thing and completely back off its wrong-headed “totality of the evidence” test, it should at least issue three clarifications of what would NOT show an intended use: (1) legitimate scientific exchange, (2) truthful, nonmisleading communications, and (3) mere knowledge of third party unapproved uses. In short, the AdvaMed comments are everything the FDA’s proposed rule is not: clear, fair, and protective of speech and scientific development.

Post-BMS Personal Jurisdiction Cheat Sheet

By Bexis on July 31, 2017

In the wake of the defense wins during the last Supreme Court term in Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017) (“BMS”), and BNSF Railway Co. v. Tyrell, 137 S.Ct. 1549 (2017), we’re retiring the personal jurisdiction cheat sheet we had been maintaining for the last three-plus years since Daimler AG v. Bauman, 571 U.S. 117 (2014) (“Bauman”). That cheat sheet, as our readers know, had covered general jurisdiction cases generally – all areas, not just prescription medical product liability, or product liability generally. That was a big undertaking, but we did it because litigation tourism was, and remains, a huge issue for our clients. Now we think that, between them, BMS, BNSF, and Bauman have now settled the larger general jurisdiction point.

So we think we can be more focused going forward in our ongoing monitoring of personal jurisdiction cases. So we’re creating a new cheat sheet devoted to a couple of specific lingering issues. The first of these issues is the so-called (at least by us) “jurisdiction by consent” theory – that general personal jurisdiction is created in a state when a corporation registers to do business/appoints an agent for service of process in a state. Since all states have such registration statutes, recognition of that theory would do what the United States Supreme Court has now held multiple times that Due Process prohibits – allowing a corporation to be sued in many jurisdictions where it is not “at home” by anybody, in particular out-of state litigation tourists. Not surprisingly, since Bauman most courts have rejected this theory (as the cases below demonstrate) as incompatible with Due Process, but since the Supreme Court has not put a stake through itself, plaintiffs still raise it relatively frequently.

Almost all of the older – that is to say, pre-BMS − decisions in this new cheat sheet address jurisdiction by consent theories. We were keeping specific track of jurisdiction by consent cases in our original cheat sheet, so we’ve pulled out those cases and compiled them here.

Another reason for keeping track of jurisdiction by consent cases is that we litigate a lot in Pennsylvania, and we expect Pennsylvania to be Ground Zero for the battle over this theory. An unfortunate combination – Pennsylvania’s unique registration statute (42 Pa. C.S.A. §5301) that actually specifies “general” jurisdiction, and adverse pre-Bauman Third Circuit precedent interpreting Pennsylvania law (Bane v. Netlink, Inc., 925 F.2d 637, 640-41 (3d Cir. 1991)) – have led some Pennsylvania courts to ignore constitutional Due Process as interpreted by BMS and Bauman and hold mandatory registration to do business in Pennsylvania somehow to equate with “consent” to general jurisdiction. E.g., Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147, at *11 (E.D. Pa. July 24, 2017); Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *3-4 (E.D. Pa. June 13, 2017); Bors v. Johnson & Johnson, 208 F. Supp.3d 648, 653–55 (E.D. Pa. 2016).

Surely, most Pennsylvania lawyers and judges learned in law school like we did that a state statute can’t override federal constitutional Due Process guarantees, but the litigation tourism industry in Pennsylvania is entrenched and well-funded. Given that that most of plaintiffs’ other favorite jurisdictions: California, Illinois, Missouri, and New Jersey, to name a few (see below for details), do not recognize jurisdiction by consent as a matter of state law, we expect to have a ring-side seat as the consent issue is eventually appealed, perhaps interlocutorily, from some Pennsylvania court all the way to the United States Supreme Court if necessary.

The second jurisdictional theory we’ll be keeping track of in this cheat sheet is what we call “BMS-lite.” This is a litigation tourist’s last gasp in jurisdictions, such as those listed below, that have already rejected jurisdiction by consent. BMS-lite is the variant of specific jurisdiction based on corporate activities related, not to any plaintiff’s case, but to the product in general, that plaintiffs will argue somehow “caused” their injuries in a broad sense and thus justifies opening the courthouse doors in multiple states to litigation tourists. We discussed an early example of that recently, and the theory’s most notable exemplar, M.M. v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. 2016). M.M. (and the post-BMS case we discussed) predicated “specific” jurisdiction on the very non-specific fact that some of the drug’s clinical trials (17 of 361) included in-state investigators.

The type of facts that M.M. seized upon to preserve Illinois’ litigation tourism business don’t involve the plaintiffs, so “a defendant’s relationship with a third party, standing alone, is an insufficient basis for jurisdiction.” BMS, 137 S. Ct. at 1781 (citation and quotation marks omitted). As the Illinois Supreme Court held, albeit in a discussion of general jurisdiction, in late September, 2017:

[P]laintiff has established that defendant does business in Illinois through the warehouse. . . . But this fact falls far short of showing that Illinois is a surrogate home for defendant. Indeed, if the operation of the warehouse was sufficient, in itself, to establish general jurisdiction, then defendant would also be at home in all the other states where its warehouses are located. The Supreme Court has expressly rejected this reasoning.

Aspen American Insurance Co. v. Interstate Warehousing, Inc., 90 N.E.3d 440, 447 (Ill. 2017). Substitute “clinical trial” for “warehouse” in this Aspen Insurance quote and you’ve got M.M.

Thus, we believe that, short of a major causal tie – such as the product being manufactured in the forum state in a manufacturing defect case – we don’t think BMS-lite theories are of any greater constitutional validity than what was rejected in BMS itself, so we’ll also be collecting favorable cases that make such holdings. But so far, given how recent BMS is, we haven’t seen any favorable cases. We expect them to be coming.

As always, with cheat sheets, we don’t do the other side’s research for them, so we won’t be including any bad cases.

With all this in mind, here is our Post-BMS Personal Jurisdiction Cheat Sheet:

Renfroe v. Nichols Wire & Aluminum Co., 83 N.W.2d 590 (Mich. 1957) (Michigan) (non-product liability). Grant of motion to dismiss affirmed. Registration to do business did not subject a corporate defendant to litigation having nothing to do with Michigan.
Byham v. National Cibo House Corp., 143 S.E.2d 225 (N.C. 1965) (North Carolina) (non-product liability). Denial of motion to dismiss affirmed on specific jurisdiction grounds. The casual presence of an agent for service of process is not enough to subject a corporation to suit on causes of action unconnected with the activities within the state.
Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745 (4th Cir. June 29, 1971) (South Carolina) (prescription medical product liability). Denial of motion to dismiss reversed. Registration to do business and the appointment of an agent for service does not establish general personal jurisdiction.
Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir. March 6, 1975) (New Mexico) (non-product liability). Affirming grant of motion to dismiss. Registration to do business is not enough to subject a corporation to suit on causes of action unconnected with the activities within the state.
In re Mid-Atlantic Toyota Antitrust Litigation, 525 F. Supp. 1265 (D. Md. Oct. 14, 1981) (West Virginia) (non-product liability). Motion to dismiss granted. Registration to do business is not consent to general personal jurisdiction. Modified on other grounds, 541 F. Supp. 62; affirmed on other grounds, 704 F.2d 125.
Pearrow v. National Life & Accident Insurance Co., 703 F.2d 1067 (8th Cir. 1983) (Arkansas) (non-product liability). Grant of motion to dismiss affirmed. Appointment of an agent for service of process does not create general personal jurisdiction.
Gray Line Tours v. Reynolds Electrical & Engineering Co., 238 Cal. Rptr. 419 (Cal. App. June 5. 1987) (California) (non-product liability). Grant of motion to dismiss affirmed. Designation of an agent for service of process and qualification to do business in California alone was not consent to general jurisdiction.
Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482 (Md. 1988) (Maryland) (non-product liability). Denial of motion to dismiss reversed. Agent for service of process insufficient to permit general jurisdiction.
Jones v. Family Inns of America, 1989 WL 57130 (E.D. La. May 23, 1989) (Louisiana) (non-product liability). Motion to dismiss granted. Designation of agent for service of process alone cannot be sufficient minimum contacts.
Sandstrom v. ChemLawn Corp., 904 F.2d 83 (1st Cir. May 17, 1990) (Maine) (product liability – non drug/device). Grant of motion to dismiss affirmed. Corporation that was licensed to do business in forum and had appointed agent for service of process did not consent to general personal jurisdiction.
Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239 (7th Cir. Oct. 24, 1990) (Indiana) (non-product liability). Denial of motion to dismiss remanded. Registration to do business alone is not a basis for general personal jurisdiction.
Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179 (5th Cir. July 17, 1992) (Texas) (product liability – non drug/device). Grant of motion to dismiss affirmed. Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
Leonard v. USA Petroleum Corp., 829 F. Supp. 882 (S.D. Tex. Aug. 17, 1993) (Texas) (non-product liability). Motion to dismiss granted. Registration to do business was not automatic consent to general personal jurisdiction.
Pittock v. Otis Elevator Co., 8 F.3d 325 (6th Cir. 1993) (Ohio) (product liability – non drug/device). Grant of motion to dismiss affirmed. Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
Arkwright Mutual Insurance Co. v. Transportes de Nuevo Laredo, 879 F.Supp. 699 (S.D. Tex. Aug. 31, 1994) (Texas) (non-product liability). Motion to dismiss granted. A certificate to do business does not create general personal jurisdiction.
Samuelson v. Honeywell, 863 F. Supp. 1503 (E.D. Okla. Aug. 31, 1994) (Oklahoma) (non-product liability). Motion to dismiss granted. General personal jurisdiction could not be asserted over corporation based on its registration to do business.
Juarez v. United Parcel Service de Mexico S.A. de C.V., 933 S.W.2d 281 (Tex. App. Oct. 10, 1996) (Texas) (non-product liability). Grant of motion to dismiss affirmed. That foreign corporation had registered to do business and appointed agent in state did not confer general personal jurisdiction.
Washington Equipment Manufacturing Co. v. Concrete Placing Co., 931 P.2d 170 (Wash App. Feb. 13, 1997) (Washington) (non-product liability). Grant of motion to dismiss affirmed. That foreign corporation had registered to do business and appointed agent in state did not confer general personal jurisdiction.
Atkinson & Mullen Travel Inc. v. New York Apple Tours Inc., 1998 WL 750355 (D.N.J. Sept. 16, 1998) (New Jersey). Motion to dismiss granted. Registration to do business insufficient to establish general jurisdiction.
Sofrar, S.A. v. Graham Engineering Corp., 35 F. Supp.2d 919 (S.D. Fla. Feb. 5, 1999) (Florida) (non-product liability). Motion to dismiss granted. Appointment of an agent for service of process and registration to do business were insufficient to create general personal jurisdiction.
Allied Carriers Exchange, Inc. v. All. Shippers, Inc., 1999 WL 35363796 (D. Colo. Sept. 22, 1999) (Colorado) (non-product liability). Transfer granted. Appointment of a registered agent does not necessarily subject a foreign corporation to general jurisdiction.
Freeman v. Second Judicial District, 1 P.3d 963 (Nev. June 9, 2000) (Nevada) (non-product liability). Mandamus from grant of motion to dismiss denied. The mere act of appointing an agent to receive service of process does not subject a non-resident corporation to general jurisdiction.
Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286 (11th Cir. July 5, 2000) (federal and Florida law) (non-product liability). Grant of motion to dismiss affirmed. On a federal claim, the casual presence of a corporate agent for service of process anywhere in the United States is not enough to subject an overseas corporation to general personal jurisdiction. Nor is the presence of a registered agent in a state sufficient under for that state to exercise general personal jurisdiction.
Alderson v. Southern Co., 747 N.E.2d 926 (Ill. App. March 22, 2001) (Illinois) (non-product liability). Reversing denial of motion to dismiss. Appointment of agent for service of process is not automatically “doing business” that gives rise to general personal jurisdiction.
Smith v. S&S Dundalk Engineering Works, Ltd., 139 F. Supp.2d 610 (D.N.J. April 16, 2001) (New Jersey) (non-product liability). Motion to dismiss granted. Designation of agent for service of process is not sufficient to establish general jurisdiction.
Lyons v. Swift Transportation Co., 2001 WL 1153001 (E.D. La. Sept. 26, 2001) (Louisiana) (non-product liability). Motion to dismiss granted. Designation of agent for service of process is not consent to general personal jurisdiction.
DVI, Inc. v. Superior Court, 128 Cal. Rptr.2d 683 (Cal. App. Dec. 24, 2002) (California) (non-product liability). Mandamus granted, reversing denial of motion to dismiss. Designation of an agent for service of process and qualification to do business alone are insufficient to permit general jurisdiction.
Tyler v. Gaines Motor Lines, Inc., 245 F. Supp.2d 730 (D. Md. Jan. 30, 2003) (Maryland) (non-product liability). Transfer granted. Having a registered agent for service of process is not consent to general personal jurisdiction.
Thomson v. Anderson, 6 Cal. Rptr.3d 262 (Cal. App. Nov. 13, 2003) (California) (non-product liability). Quashing of service affirmed. No consent to jurisdiction through registration and appointment of agent. No consent to jurisdiction through registration and appointment of agent.
Anglin v. 21st Century Insurance Co., 2003 WL 1076538 (Wash. App. March 10, 2003) (Washington) (non-product liability). Grant of motion to dismiss affirmed.
Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F. Supp.2d 545 (E.D. Va. Feb. 5, 2004) (Virginia) (non-product liability). Motion to dismiss granted. Complying with registration statutes and appointing an agent for service of process do not amount to consent to general personal jurisdiction.
Norfolk Southern Railway Co. v. Burlington Northern & Santa Fe Railway Co., 2005 WL 1363210 (S.D. Miss. June 2, 2005) (Mississippi) (non-product liability). Motion to dismiss tentatively granted, pending jurisdictional discovery. Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
DNH, LLC v. In-N-Out Burgers, 381 F. Supp.2d 559 (E.D. La. June 24, 2005) (Louisiana) (non-product liability). Motion to dismiss granted. Qualifying to do business in a state and appointing an agent for service of process there do not amount to a general business presence that could sustain general personal jurisdiction.
Gabrish v. Strickland Marine Agency, Inc., 2005 WL 5168410 (S.C. Dist. Dec. 2, 2005) (South Carolina) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service of process does not create general personal jurisdiction.
Goodman v. Whole Foods Market, Inc., 2006 WL 8432867 (W.D. Tex. Sept. 26, 2006) (Texas) (product liability – non drug/device). Motion to dismiss granted. Registration to do business does not support general jurisdiction.
In re Farmland Industries, Inc., 2007 WL 7694308 (M.D. Fla. March 30, 2007) (Florida) (non-product liability). Summary judgment granted. Registration to do business and appointment of agent for service of process does not create general personal jurisdiction.
Asshauer v. Glimcher Realty Trust, 228 S.W.3d 922 (Tex. App. July 12, 2007) (Texas) (non-product liability). Affirming grant of motion to dismiss. Registration to do business is insufficient to support general jurisdiction.
Bray v. Fresenius Medical Care Aktiengesellschaft Inc., 2007 WL 7366260 (N.D. Ill. Aug. 30, 2007) (Illinois) (prescription medical product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service of process is does not alone support general personal jurisdiction.
Keston v. FirstCollect, Inc., 523 F. Supp.2d 1348 (S.D. Fla. Oct. 31, 2007) (Florida) (non-product liability). Motion to dismiss granted. Presence of a corporate agent for service of process and a license to do business in a state are not enough to support general personal jurisdiction.
Miller v. Robertson, 2008 WL 270761 (D. Utah Jan. 29, 2008) (Utah) (non-product liability). Motion to dismiss granted. Appointment of an agent for process and registration to do business do not create general personal jurisdiction.
North American Catholic Education Programming Foundation, Inc. v. Cardinale, 567 F.3d 8 (1st Cir. May 19, 2009) (Rhode Island) (non-product liability). Motion to dismiss affirmed. Appointment of an agent of process alone does not suffice to allow for the exercise of general jurisdiction.
Ayers v. Tanami Trading Corp., 2009 WL 1362402 (D. Utah May 14, 2009) (Utah) (non-product liability). Motion to dismiss denied on other grounds. Designation of an agent for service of process is insufficient to permit general jurisdiction.
Continental First Federal, Inc. v. Watson Quality Ford, Inc., 2009 WL 2032401 (M.D. Tenn. July 9, 2009) (Mississippi) (non-product liability). Transfer denied. Registering to do business and appointing an in-state agent for service of process do not establish general personal jurisdiction, so the matter cannot be transferred.
Viko v. World Vision, Inc., 2009 WL 2230919 (D. Vt. July 24, 2009) (Vermont) (non-product liability). Transfer granted. A defendant foreign corporation’s registered agent does not, by itself, confer general personal jurisdiction over the defendant.
Advanced Datacomm Testing Corp. v. PDIO, Inc., 2009 WL 2477559 (D. Md. Aug. 11, 2009) (Maryland) (non-product liability). Transfer granted. Registration to do business and appointment of an agent for service of process do not create general personal jurisdiction.
Davis v. Quality Carriers, Inc., 2009 WL 3335860 (D.N.J. Oct. 15, 2009) (New Jersey) (non-product liability). Motion to dismiss granted. Registering to do business and appointing an in-state agent for service of process do not establish general personal jurisdiction
McManaway v. KBR, Inc., 695 F. Supp.2d 883 (S.D. Ind. Feb. 25, 2010) (Indiana) (non-product liability). Motion to dismiss granted. Registration to do business and having an agent for service of process are not sufficient to establish general personal jurisdiction.
Cossaboon v. Maine Medical Center, 600 F.3d 25 (1st Cir. March 25, 2010) (New Hampshire) (non-product liability). Dismissal for lack of personal jurisdiction affirmed. Registration to do business alone is an insufficient basis on which to assert personal jurisdiction.
Gallaher v. KBR, Inc., 2010 WL 2901626 (N.D.W. Va. July 21, 2010) (West Virginia) (non-product liability). Motion to dismiss granted. Registration to do business and having an agent for service of process are not sufficient to establish general personal jurisdiction.
Harrington v. C.H. Nickerson & Co., 2010 WL 3385034 (D.R.I. Aug. 25, 2010) (Rhode Island (non-product liability). In light of constitutional limitations on personal jurisdiction, registration to do business and appointment of an agent for service of process do not constitute consent to general jurisdiction.
Kubin v. Orange Lake Country Club, Inc., 2010 WL 3981908 (D.N.J. Oct. 8, 2010) (New Jersey) (product liability – non drug/device). Transfer granted. Registration to do business and appointment of an agent for service of process do not create general personal jurisdiction.
King v. American Family Mutual Insurance Co., 632 F.3d 570 (9th Cir. Jan. 31, 2011) (Montana) (non-product liability). Grant of motion to dismiss affirmed. Appointment of an agent for service of process does not, standing alone, create general personal jurisdiction in the absence of causal connection to the state.
WorldCare Corp. v. World Insurance Co., 767 F. Supp. 2d 341, 351-57 (D. Conn. 2011) (Connecticut) (non-product liability). Transfer granted. Appointment of an agent for service of process and registration to do business within the state is insufficient to create general personal jurisdiction.
Crochet v. Wal-Mart Stores, Inc., 2012 WL 489204 (W.D. La. Feb. 13, 2012) (Louisiana) (non-product liability). Motion to dismiss granted. Appointment of an agent for service of process and registration to do business within the state is insufficient to create general personal jurisdiction.
In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 1345175 (E.D. Ky. April 18, 2012) (Ohio, Oklahoma, Texas) (prescription medical product liability). Motion to dismiss granted. Registration to do business is insufficient to create general personal jurisdiction.
JRM Investments, Inc. v. National Standard, LLC, 2012 WL 1956421 (Tenn. App. May 31, 2012) (Tennessee) (non-product liability). Grant of motion to dismiss affirmed. Appointment of an agent for service of process is insufficient to create general personal jurisdiction.
White Rosebay Shipping S.A. v. HNA Group Co., 2012 WL 6858239, at *14 (Mag. S.D. Tex. Dec. 5, 2012) (maritime law) (non-product liability). Motion to dismiss granted. Appointment of an agent for service of process is insufficient to create general personal jurisdiction.
Strickland v. Bae Systems Tactical Vehicle Systems, LP, 2013 WL 2554671 (D. Idaho June 10, 2013) (Idaho) (non-product liability). Transfer granted. Appointment of an agent for service of process is insufficient to create general personal jurisdiction.
Transverse, LLC v. Info Directions, Inc., 2013 WL 3146838 (Mag. W.D. Tex. June 17, 2013) (Texas) (non-product liability). Motion to dismiss granted. Appointment of an agent for service of process is insufficient to create general personal jurisdiction. Adopted, 2013 WL 12133970 (W.D. Tex. Aug. 30, 2013).
Mio, LLC v. Valentino’s, Inc., 2013 WL 3364392 (M.D. Fla. July 3, 2013) (Florida) (non-product liability). Summary judgment granted. Registration to do business and appointment of agent for service of process does not create general personal jurisdiction.
Kuennen v. Stryker Corp., 2013 WL 5873277 (W.D. Va. Oct. 30, 2013) (District of Columbia) (prescription medical product liability). Summary judgment granted. A business certificate and appointed agent are not independent support for general jurisdiction.
ACUITY v. Roadtec, Inc., 2013 WL 6632631, at *5-6 (N.D. Ill. Dec. 16, 2013) (product liability – non drug/device). Registration to do business, even with other contacts insufficient to support the exercise of general jurisdiction.
Louisiana Limestone & Logistics, LLC v. Granite Group International, Inc., 2014 WL 1217956 (W.D. La. Feb. 28, 2014) (Louisiana) (non-product liability). Motion to dismiss granted. Presence of the registered agent and registered business office alone is insufficient to support the exercise of general jurisdiction.
Robinson v. Knight Protective Service, Inc., 2014 WL 1326096 (S.D. Miss. March 31, 2014) (Mississippi) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
Rawlins v. Select Specialty Hospital , Inc., 2014 WL 1647182 (N.D. Ill. April 23, 2014) (Illinois) (non-product liability) Motion to dismiss granted. Appointment of an agent for service of process is insufficient to create general personal jurisdiction.
Brown v. CBS Corp., 19 F. Supp.3d 390 (D. Conn. May 14, 2014) (Connecticut) (product liability – non drug/device). Asbestos motion to dismiss granted. Corporate registration/agent for service of process insufficient consent to justify jurisdiction after Bauman. Affirmed 2/19/16 see below.
Gliklad v. Bank Hapoalim B.M., 2014 WL 3899209 (N.Y. Sup. Aug. 4, 2014) (New York) (non-product liability). Motion to dismiss granted. Rejecting jurisdiction through consent by service on registered agent.
Overhill Farms Inc. v. West Liberty Foods LLC, 2014 WL 4180920 (C.D. Cal. Aug. 21, 2014) (California) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to create general jurisdiction.
Chambers v. Weinstein, 2014 WL 4276910, 997 N.Y.S.2d 668 (table) (N.Y. Sup. Aug. 22, 2014) (New York) (non-product liability). Motion to dismiss granted. Severance granted. No jurisdiction on the basis of consent by registration of agent in-state.
U.S. ex rel. Imco General Construction, Inc. v. Insurance Co. of Pennsylvania, 2014 WL 4364854 (W.D. Wash. Sept. 3, 2014) (Washington) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to create general jurisdiction.
Cossart v. United Excel Corp., 2014 WL 4927041 (D. Mass. Sept. 30, 2014) (Massachusetts) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to create general jurisdiction. Reversed on other grounds, 804 F.3d 13 (1st Cir. 2015) (specific jurisdiction held proper).
Recao v. Bell Helicopter Textron, Inc., 2014 WL 12595302 (S.D. Fla. Sept. 23, 2014) (Florida) (product liability – non drug/device). Motion to dismiss granted. Registration to do business and having a registered agent is insufficient to create general personal jurisdiction.
In re Asbestos Products Liability Litigation (No. VI), 2014 WL 5394310 (E.D. Pa. Oct. 23, 2014) (Virgin Islands) (product liability – non drug/device). Motion to dismiss granted in asbestos case. Registration to do business and appointment of an agent for service of process did not establish general jurisdiction.
Sullivan v. Sony Music Entertainment, 2014 WL 5473142 (N.D. Ill. Oct. 29, 2014) (Illinois) (non-product liability). Motion to dismiss granted. Registration to do business and having agent for service of process is not consent to general jurisdiction.
AstraZeneca AB v. Mylan Pharmaceuticals, Inc., 72 F. Supp.3d 549 (D. Del. Nov. 5, 2014) (Delaware) (non-product liability). Motion to dismiss granted in part. No general jurisdiction through consent by registration to do business. Denying motion to dismiss on specific jurisdiction. Aff’d on other grounds, 817 F.3d 755 (Fed. Cir. 2016).
NExTT Solutions, LLC v. XOS Technologies, Inc., 71 F. Supp.3d 857 (N.D. Ind. Nov. 25, 2014) (Indiana) (non-product liability). Motion to dismiss granted. Registration to do business, even with other in-state contacts, insufficient to create general jurisdiction. Otherwise “at home” requirement would be meaningless.
Shrum v. Big Lots Stores, Inc., 2014 WL 6888446 (C.D. Ill. Dec. 8, 2014) (Illinois) (product liability – non drug/device). Motion to dismiss granted. No general jurisdiction by consent for having registration and agent for service of process.
Smith v. Union Carbide Corp., 2015 WL 191118 (Mo. Cir. St. Louis City Jan. 12, 2015) (Missouri) (product liability – non drug/device). Motion to dismiss granted. Asbestos defendant’s registration to do business and agent for service of process insufficient to create general jurisdiction by consent.
Chatwal Hotels & Resorts LLC v. Dollywood Co., 90 F. Supp.3d 97 (S.D.N.Y. Feb. 6, 2015) (New York) (non-product liability). Motion to dismiss granted in part and denied in part. Rejecting consent by registering to do business.
Royal Acquisitions 001, LLC v. Ansur America Insurance Co., 2015 WL 14376894 (S.D. Fla. March 27, 2015) (Florida) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of an agent for service of process did not establish general jurisdiction.
Haskett v. Continental Land Resources, LLC, 2015 WL 1419731 (S.D. Tex. March 27, 2015) (Texas) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of an agent for service of process did not establish general jurisdiction. Aff’d in part, vacated in part on other grounds, 668 F. Appx. 133 (5th Cir. 2016) (ruling not appealed).
7 W. 57th Street Realty Co., LLC v. Citigroup, Inc., 2015 WL 1514539 (S.D.N.Y. March 31, 2015) (New York) (non-product liability). Motion to dismiss granted. State bank registration insufficient to confer general jurisdiction.
Henderson v. United Student Aid Funds, Inc., 2015 WL 12658485 (S.D. Cal. April 8, 2015) (California) (non-product liability). Motion to dismiss granted. Registration to do business, even with other contacts, did not establish general jurisdiction.
Fiduciary Network, LLC v. Buehler, 2015 WL 2165953 (N.D. Tex. May 8, 2015) (Texas) (non-product liability). Motion to remand denied. Rejecting general jurisdiction by consent through “registration of an agent for process and registration to do business.”
Hunt v. Auto-Owners Insurance Co., 2015 WL 3626579 (D. Nev. June 10, 2015) (Nevada) (non-product liability). Neither registration nor an agent for service of process is sufficient to establish jurisdiction.
Keeley v. Pfizer Inc., 2015 WL 3999488 (E.D. Mo. July 1, 2015) (Missouri) (prescription medical product liability). Motion to dismiss granted. No consent to general jurisdiction by registration to do business.
Rozumek v. Union Carbide Corp., 2015 WL 12831301 (S.D. Ill. July 1, 2015) (Illinois) (product liability – non drug/device). Motion to dismiss granted in asbestos case. Registration to do business did not establish general jurisdiction.
Rozumek v. General Electric Co., 2015 WL 12829795 (S.D. Ill. July 1, 2015) (Illinois) (product liability – non drug/device). Motion to dismiss granted in asbestos case. Registration to do business did not establish general jurisdiction.
Dokoozian Construction LLC v. Executive Risk Specialty Insurance Co., 2015 WL 12085859 (W.D. Wash. July 28, 2015) (Washington) (non-product liability). Motion to dismiss granted. Appointment of agent for service of process is insufficient to create general jurisdiction.
Public Impact, LLC v. Boston Consulting Group, Inc., 117 F. Supp.3d 732 (M.D.N.C. Aug. 3, 2015) (North Carolina) (non-product liability). Motion to dismiss granted. Rejecting jurisdiction by consent by registration to do business.
Osadchuk v. CitiMortgage, 2015 WL 4770813 (E.D. Pa. Aug. 12, 2015) (Pennsylvania) (non-product liability). Transfer granted. Appointment of agent for service of process is insufficient to create general jurisdiction.
Mullen v. Bell Helicopter Textron, Inc., 136 F. Supp.3d 740 (S.D. Miss. Aug. 17, 2015) (Mississippi) (product liability – non drug/device). Motion to dismiss granted. Registration to do business did not establish general jurisdiction.
McCourt v. A.O. Smith Water Products Co., 2015 WL 4997403 (D.N.J. Aug. 20, 2015) (New Jersey) (product liability – non drug/device). Motion to dismiss granted in asbestos case. No consent to jurisdiction by registering to do business.
Pitts v. Ford Motor Co., 127 F. Supp.3d 676 (S.D. Miss. Aug. 26, 2015) (Mississippi) (product liability – non drug/device). Motion to dismiss granted. Registration and appointment of agent for service of process insufficient to create general jurisdiction.
Family Wireless #1, LLC v. Automotive Technologies, Inc., 2015 WL 5142350 (E.D. Mich. Sept. 1, 2015) (Michigan) (non-product liability). Transfer granted. Registration, even with other in-state contacts is far from sufficient to establish general jurisdiction.
Hazim v. Schiel & Denver Publishing Ltd., 2015 WL 5227955 (S.D. Tex. Sept. 8, 2015) (Texas) (non-product liability). Motion to dismiss granted. Having agent for service of process cannot create general jurisdiction. Affirmed on other grounds, 647 F. Appx. 455 (5th Cir. 2016)
Motorola Credit Corp. v. Uzan, 132 F. Supp.3d 518 (S.D.N.Y. Sept. 9, 2015) (New York) (non-product liability). Discovery subpoena quashed. Licensure as a state-regulated bank insufficient to create general personal jurisdiction.
Cox v. Alco Industries, Inc., 2015 WL 10891167 (Wash. Super. Sept. 10, 2015) (Washington) (product liability – non drug/device). Motion to dismiss granted in asbestos case. Registration to do business, even with other contacts, did not establish general jurisdiction.
Freedman v. Suntrust Banks, Inc., 139 F. Supp.3d 271 (D.D.C. Sept. 21, 2015) (District of Columbia) (non-product liability). Motion to transfer granted. Registration and appointment of agent for service of process insufficient to create general jurisdiction.
United States Bank National Ass’n v. Bank of America, N.A., 2015 WL 5971126 (S.D. Ind. Oct. 14, 2015) (Indiana) (non-product liability). Motion to transfer granted. Registration to do business not a waiver of objection to jurisdiction.
Barrera v. Hitachi Koki U.S.A., Ltd., 2015 WL 12839496 (D.N.J. Oct. 29, 2015) (New Jersey) (product liability – non drug/device). Motion to dismiss granted. Corporate registration is insufficient to establish general jurisdiction.
Surita v. AM General LLC, 2015 WL 12826471 (N.D. Ill. Nov. 4, 2015) (Illinois) (product liability – non drug/device). Motion to dismiss granted in asbestos case. Registration and appointment of agent for service of process insufficient to create general jurisdiction.
Freeney v. Bank of America Corp., 2015 WL 12535021 (C.D. Cal. Nov. 19, 2015) (California) (non-product liability). Motion to dismiss granted. Registration and appointment of agent for service of process insufficient to create general jurisdiction. Jurisdictional discovery denied.
ADT, LLC v. Capital Connect, Inc., 2015 WL 7352199 (N.D. Tex. Nov. 20, 2015) (Texas) (non-product liability). Motion to dismiss granted. Registration and appointment of agent for service of process are not consent to general jurisdiction.
Handshoe v. Yount, 2015 WL 7572344 (S.D. Miss. Nov. 24, 2015) (Mississippi) (non-product liability). Motion to dismiss granted. Registration and appointment of agent for service of process insufficient to create general jurisdiction.
Dimitrov v. Nissan North America, Inc., 2015 WL 9304490 (N.D. Ill. Dec. 22, 2015) (Illinois) (non-product liability). Motion to dismiss granted. Defendant did not consent to jurisdiction by registering to do business.
Clasen v. National Board of Osteopathic Medical Examiners, Inc., 2015 WL 9489507 (Mag. E.D. Tex. Dec. 30, 2015) (Texas) (non-product liability). Motion to dismiss granted. Registration to do business is insufficient to support general jurisdiction. Adopted, 2016 WL 890675 (E.D. Tex. March 9, 2016).
Angelini Metal Works Co. v. Hubbard Iron Doors, Inc., 2016 WL 6304476 (C.D. Cal. Jan. 5, 2016) (California) (non-product liability). Motion to dismiss granted. Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
Tulsa Cancer Institute, PLLC v. Genentech Inc., 2016 WL 141859 (N.D. Okla. Jan. 12, 2016) (Oklahoma) (prescription medical product liability). Multi-plaintiff complaint. Reconsideration and motion to dismiss granted. That resident and non-resident plaintiffs share a common nucleus of facts does not provide non-residents with specific personal jurisdiction.
Spear v. Marriott Hotel Services, Inc., 2016 WL 194071 (E.D. Pa. Jan. 15, 2016) (Pennsylvania) (non-product liability). Motion to dismiss granted. Registration to do business, by itself, is insufficient to establish general jurisdiction.
Demaria v. Nissan, Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016) (Illinois) (product liability – non drug/device). Multi-plaintiff class action complaint. Motion to dismiss granted. Defendant did not consent to jurisdiction by registering to do business. Pendent jurisdiction does not exist to allow non-residents allegedly injured by same product defect sue because one resident plaintiff can do so.
Brown v. Lockheed-Martin Corp., 814 F.3d 619 (2d Cir. Feb. 18, 2016) (Connecticut) (product liability – non drug/device). “If mere registration and the accompanying appointment of an in state agent − without an express consent to general jurisdiction – nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler’s ruling would be robbed of meaning by a back‐door thief.” Affirming 19 F. Supp.3d 390, above.
Long v. Patton Hospitality Management, LLC, 2016 WL 760780 (E.D. La. Feb. 26, 2016) (Louisiana) (non-product liability). Motion to dismiss granted. Contacts including registering to do business and maintaining a registered agent for service insufficient to establish general personal jurisdiction.
Hood v. Ascent Medical Corp., 2016 WL 1366920 (Mag. S.D.N.Y. March 3, 2016) (New York) (non-product liability). Recommending vacation of default judgment. Jurisdiction by consent argument based on contractual choice of law provision “borderline frivolous.” Adopted 2016 WL 3453656, below.
Firefighters’ Retirement System v. Royal Bank PLC, 2016 WL 1254366 (M.D. La. March 29, 2016) (Louisiana) (non-product liability). Motion to dismiss granted. Registration to do business, appointment of agent for service of process, and payment of taxes insufficient. Registration was not consent to general jurisdiction.
Thompson v. Carnival Corp., 174 F. Supp.3d 1327 (S.D. Fla. March 30, 2016) (maritime law) (product liability – non drug/device). Motion to dismiss granted. Contractual consent to jurisdiction insufficient absent independent basis for jurisdiction. Rule 4(k)(2) cannot confer general jurisdiction where defendant is not “at home.”
Weiss v. National Westminster Bank PLC, 176 F. Supp.3d 264 (E.D.N.Y. March 31, 2016) (New York) (non-product liability). Motion to dismiss denied, but only as to specific jurisdiction. Registration was not consent to general jurisdiction.
Strauss v. Credit Lyonnais, S.A., 175 F. Supp.3d 3 (E.D.N.Y. March 31, 2016) (New York) (non-product liability). Motion to dismiss denied, but only as to specific jurisdiction. Registration was not consent to general jurisdiction.
In re Foreign Exchange Benchmark Rates Antitrust Litigation, 2016 WL 1268267 (S.D.N.Y. March 31, 2016) (New York) (non-product liability). Granting motion to dismiss. Registration was not consent to general jurisdiction. General jurisdiction criteria the same under both federal and state law.
Hovsepian v. Crane Co., 2016 WL 2997641 (E.D. Mo. April 13, 2016) (Missouri) (product liability – non drug/device). Granting motion to dismiss. Out-of-state asbestos plaintiff failed to establish general personal jurisdiction or consent to general jurisdiction.
Agribusiness United DMCC v. Blue Water Shipping Co., 2017 WL 1354144 (S.D. Tex. April 13, 2017) (Texas) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service of process do not establish general jurisdiction.
Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. April 18, 2016) (Delaware) (product liability – non drug/device). Denial of motion to dismiss reversed. Registration to do business and appointment of agent for service of process do not establish consent to general jurisdiction. Prior contrary precedent is no longer viable after Bauman.
Display Works, LLC, v. Bartley, 182 F. Supp.3d 166 (D. N.J. April 25, 2016) (New Jersey) (non-product liability). Motion to dismiss granted. Registration to do business is not consent to general jurisdiction, nor is doing business in a state. Prior contrary precedent is no longer viable after Bauman.
Beard v. Smithkline Beecham Corp., 2016 WL 1746113 (E.D. Mo. May 3, 2016) (Missouri) (prescription medical product liability). Motion to transfer granted. Registration to do business and appointment of agent do not establish consent to general jurisdiction. Prior contrary precedent is no longer viable after Bauman.
In Re: Zofran (Ondansetron) Products Liability Litigation, 2016 WL 2349105 (D. Mass. May 4, 2016) (Missouri) (prescription medical product liability). Motion to dismiss granted. Motion to remand denied. Registration to do business and appointment of agent for service do not establish consent to general jurisdiction. Prior contrary precedent is no longer viable after Bauman, and would “distort” the registration statute.
Oversen v. Kelle’s Transportation Service, 2016 WL 8711343 (D. Utah May 12, 2016) (Utah) (product liability – non drug/device). Motion to transfer granted. Registration to do business and appointment of agent do not establish consent to general jurisdiction. Jurisdictional discovery denied.
Leibovitch v. Islamic Republic of Iran, 188 F. Supp.3d 734 (N.D. Ill. May 19, 2016) (Illinois) (non-product liability). Motions to quash granted. Bauman is not limited to defendants and applies to third-party subpoenas. Registration to do business and appointment of agent for service do not establish general jurisdiction by consent or waiver. Prior contrary precedent is no longer viable after Bauman.
Aclin v. PD-RX Pharmaceuticals, Inc., 189 F. Supp.3d 1294 (W.D. Okla. June 1, 2016) (Oklahoma) (prescription medical product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service of process do not establish consent to general jurisdiction. See Guillette v. PD-RX Pharmaceuticals. Inc., 2016 WL 3094073 (W.D. Okla. June 1, 2016); Manning v. PD-RX Pharmaceuticals Inc., 2016 WL 3094075 (W.D. Okla. June 1, 2016); Nauman v. PD-RX Pharmaceuticals Inc., 2016 WL 3094081 (W.D. Okla. June 1, 2016) (identical opinions).
Goldstein v Hawker Beechcraft Services, 2016 WL 3771165 (Fla. Cir. June 3, 2016) (Florida) (product liability – non drug/device). Motion to dismiss granted. Registration to do business, even with other in-state activities, cannot create general jurisdiction by consent.
Magna Powertrain De Mexico S.A. De C.V. v. Momentive Performance Materials USA LLC, 2016 WL 3574652 (E.D. Mich. June 16, 2016) (Michigan) (product liability – non drug/device). Motion to transfer granted. Registration to do business and appointment of agent for service is not consent to general jurisdiction.
Hood v. Ascent Medical Corp., 2016 WL 3453656 (S.D.N.Y. June 20, 2016) (New York) (non-product liability). Adopting magistrate’s recommendation (2016 WL 1366920, above) to grant motion to dismiss. Forum selection clause not consent to general jurisdiction. Affirmed 691 F. Appx. 8, below.
Garcia v. LQ Properties, Inc., 2016 WL 3384644 (N.D. Ind. June 20, 2016) (Indiana) (non-product liability). Transfer granted. Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
Johnson v. Barrier, 2016 WL 3520157 (N.D. Ill. June 28, 2016) (Illinois) (non-product liability). Motion to dismiss granted. Consent to jurisdiction in previous cases not judicial estoppel.
Singh v. Diesel Transportation, LLC, 2016 WL 3647992 (D. N.J. July 7, 2016) (New Jersey) (non-product liability). Motion to transfer granted. No consent to jurisdiction through registration and appointment of agent for service.
Evans v. Andy & Evan Industries, Inc., 2016 WL 8787062, at *3 (S.D. Fla. July 15, 2016) (Florida) (non-product liability). Motion to dismiss granted as to general jurisdiction; denied as to specific jurisdiction; transfer granted. Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
Lindora, LLC v. Isagenix International, LLC, 198 F. Supp.3d 1127 (S.D. Cal. Aug. 1, 2016) (California) (non-product liability). Registration to do business, even with other contacts, is insufficient to support general jurisdiction.
Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (August 29, 2016) (California) (prescription medical product liability). Denial of dismissal affirmed on other grounds. Registration to do business and appointment of an agent for service of process does not create general personal jurisdiction. Reversed 137 S. Ct. 1773, on other (very important) grounds as discussed here.
Bonkowski v. HP Hood, LLC, 2016 WL 4536868 (E.D.N.Y. Aug. 30, 2016) (New York) (product liability – non-drug/device). Motion to transfer granted. No consent to general jurisdiction by registration to do business. Prior contrary consent precedent no longer viable after Bauman.
Erwin v. Ford Motor Co., 2016 WL 7655398 (M.D. Fla. Aug. 31, 2016) (Florida) (product liability – non-drug/device). Motion to dismiss deferred to consider transfer. No consent to general jurisdiction by appointment of agent for service of process.
Magwitch, LLC v. Pusser’s West Indies Ltd., 200 So. 3d 216 (Fla. App. Sept. 7, 2016) (Florida) (non-product liability). Affirming grant of motion to dismiss. Registration to do business and appointment of agent for service is not consent to general jurisdiction.
Magill v. Ford Motor Co., 379 P.3d 1033 (Colo. Sept. 12, 2016) (Colorado) (product liability – non drug/device). Reversing denial of motion to dismiss. Registration to do business and appointment of agent for service is not consent to general jurisdiction.
Sciortino v. CMG Capital Management Group, Inc., 2016 WL 4799099 (E.D. La. Sept. 14, 2016) (Louisiana) (non-product liability). Motion to dismiss granted. Registration to sell securities in state not consent to general jurisdiction.
Gulf Coast Bank & Trust Co, v. Designed Conveyor Systems, LLC, 2016 WL 4939113 (M.D. La. Sept. 14, 2016) (Louisiana) (non-product liability). Motion to dismiss granted. No consent to jurisdiction through licensing, registration, or appointment of agent for service of process. Affirmed 2017 WL 6553374, below.
George v. A.W. Chesterton Co., 2016 WL 4945331 (W.D. Pa. Sept. 16, 2016) (Pennsylvania) (product liability – non-drug/device). Remanding for lack of jurisdiction. Registration to do business is not retroactive consent to general jurisdiction in asbestos case where it occurred after the alleged injury.
U.S. Bank National Ass’n v. Bank of America, N.A., 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016) (Indiana) (non-product liability). Retransfer denied. Registration and appointment of in-state agent is neither consent to nor waiver of general jurisdiction.
PHD@Western, LLC v. Rudolf Construction Partners, LLC, 2016 WL 5661637 (S.D. Fla. Sept. 30, 2016) (Florida) (non-product liability). Motion to dismiss granted. Registration to do business alone is insufficient to support any theory of personal jurisdiction.
American Insurance Co. v. R&Q Reinsurance Co., 2016 WL 5930589, at *2 (N.D. Cal. Oct. 12, 2016) (California) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of agent does not create general jurisdiction.
Addelson v. Sanofi S.A., 2016 WL 6216124 (E.D. Mo. Oct. 25, 2016) (Missouri) (prescription medical product liability). Motion to dismiss granted. Registration to do business and appointment of agent is not consent to general jurisdiction. Prior contrary precedent is no longer viable after Bauman.
Perez v. Air and Liquid Systems Corp., 2016 WL 7049153 (S.D. Ill. Dec. 2, 2016) (Illinois) (product liability – non-drug/device). Motion to dismiss granted. Asbestos case. No consent to jurisdiction by registration and appointment of agent.
Tarver v. Ford Motor Co., 2016 WL 7077045 (W.D. Okla. Dec. 5, 2016) (Oklahoma) (product liability – non-drug/device). Motion to dismiss denied on other grounds (specific jurisdiction). No consent to general jurisdiction by registration to do business, even though considerable business conducted. Certification denied, 2017 WL 9477739 (W.D. Okla. March 10, 2017), reconsideration denied, 2017 WL 3527710 (W.D. Okla. Aug. 16, 2017).
Bertolini-Mier v. Upper Valley Neurology Neurosurgery, P.C., 2016 WL 7174646 (D. Vt. Dec. 7, 2016) (Vermont) (non-product liability). Motion to dismiss granted. Motion to dismiss denied on other grounds pending jurisdictional discovery. No consent to jurisdiction by registration to do business.
Ace Decade Holdings Ltd. v UBS Ag, 2016 WL 7158077, at *5 (N.Y. Sup. Dec. 7, 2016) (New York) (non-product liability). Motion to dismiss granted. Registration does not create general jurisdiction.
Taormina v. Thrifty Car Rental, 2016 WL 7392214 (S.D.N.Y. Dec. 21, 2016) (New York) (non-product liability). Motion to dismiss granted. No consent to jurisdiction through registration and appointment of agent for service. Prior contrary precedent no longer viable after Bauman.
Minholz v. Lockheed Martin Corp., 227 F. Supp.3d 249 (N.D.N.Y. Dec. 30, 2016) (New York) (product liability – non-drug/device). Motion to dismiss granted. No consent to jurisdiction through registration and appointment of agent for service. Prior contrary precedent no longer viable after Bauman.
Gulf Coast Bank v. Designed Conveyor Systems, LLC, 2017 WL 120645 (M.D. La. Jan. 12, 2017) (Louisiana) (non-product liability). Denying motion to alter judgment. No consent to jurisdiction through registration and appointment of agent for service. Prior contrary precedent no longer viable after Bauman, and interpreting a registration statute as providing consent to general jurisdiction would “rob [Bauman] of its central meaning.”
Axxess Technology Solutions Inc. v. Epic Systems Corp., 2017 WL 3841604 (N.D. Tex. Jan. 23, 2017) (Texas) (non-product liability). Motion to dismiss granted. Allegation of registration to do business insufficient to support general jurisdiction.
Sullivan v. Barclays PLC, 2017 WL 685570 (S.D.N.Y. Feb. 21, 2017) (New York) (non-product liability). Motion to dismiss granted. Forum selection clause is not consent to general jurisdiction. Neither is registration to do business.
State ex rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41 (Mo. Feb. 28, 2017) (Missouri) (non-product liability). Writ of prohibition issued. No consent to jurisdiction through registration and appointment of agent. Contrary prior precedent no longer viable after Bauman.
Figueroa v. BNSF Railway Co., 390 P.3d 1019 (Or. March 2, 2017) (Oregon) (non-product liability). Mandamus granted. No consent to general jurisdiction through registration and appointment of agent for service of process. Registration is not implied consent to personal jurisdiction.
Am Trust v. UBS AG, 681 F. Appx. 587 (9th Cir. March 3, 2017) (California) (non-product liability). Affirming dismissal for lack of jurisdiction. No consent to jurisdiction through registration and appointment of agent. Acceptance of service in prior litigation insufficient.
Phoenix Insurance Co. v. Cincinnati Indemnity Co., 2017 2017 WL 3225924 (Mag. D.R.I. March 3, 2017) (Rhode Island) (non-product liability). Motion to transfer granted. No consent to general jurisdiction through insurance registration and appointment of the agent for service. The statues cannot be “construed as a consent or submission to personal jurisdiction,” and if they could they would violate Due Process. Adopted 2017 WL 2983879 (D.R.I. July 13, 2017).
New York Commercial Bank v. Heritage Green Development, LLC, 2017 WL 954197 (Va. Cir. March 7, 2017) (Virginia) (non-product liability). Motion to quash service granted. Registration to do business insufficient to establish general jurisdiction.
Rizack v. Signature Bank, N.A., 2017 WL 5197917 (Fla. Cir. March 20, 2017) (Florida) (non-product liability). Granting motion to dismiss. Registration to do business insufficient to establish general jurisdiction.
Katz v. Spiniello Companies, 244 F. Supp.3d 237 (D. Mass. 2017) (Massachusetts) (product liability – non-drug/device). Granting motion to dismiss. Registration to do business did not support specific jurisdiction where claim did not relate to defendant’s in-state business. Eventual presence of product in-state does not establish stream of commerce jurisdiction.
Kearns v. New York Community Bank, 400 P.3d 182 (table), 2017 WL 1148418 (Kan. App. March 24, 2017) (Kansas) (non-product liability) (unpublished). Affirming dismissal for lack of jurisdiction. Consent to jurisdiction by registration to do business in-state by non-party subsidiary insufficient.
Muenstermann v. United States, 2017 WL 1408037 (S.D. Ill. April 20, 2017) (Illinois) (non-product liability). Motion to dismiss granted. No jurisdiction through registration and appointment of agent for service. Contrary prior precedent no longer viable after Bauman.
Mischel v. Safe Haven Enterprises, LLC, 2017 WL 1384214 (N.Y. Sup. April 17, 2017) (New York) (non-product liability). Motion to dismiss granted. No jurisdiction through registration and appointment of agent for service. Contrary prior precedent no longer viable after Bauman. Reversed on other grounds, 74 N.Y.S.3d 496 (N.Y.A.D. 2018) (specific jurisdiction).
MacCormack v. The Adel Wiggins Group, 2017 WL 1426009 (E.D. Mo. April 21, 2017) (Missouri) (product liability – non-drug/device). Granting motion for reconsideration, and dismissing. No consent to jurisdiction for registration and an appointment of agent for service. Contrary prior precedent no longer viable under Norfolk Southern v. Dolan.
Justiniano v. First Student Management LLC, 2017 WL 1592564 (E.D.N.Y. April 26, 2017) (New York) (non-product liability). Motion to transfer granted. No consent to jurisdiction through registration and appointment of agent for service. Contrary prior precedent no longer viable after Bauman.
L.A. Gem & Jewelry Design, Inc. v. Ecommerce Innovations, LLC, 2017 WL 1535084 (C.D. Cal. April 27, 2017) (California) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to support general jurisdiction.
Alvarracin v. Volume Services, Inc., 2017 WL 1842701 (W.D. Mo. May 4, 2017) (Missouri) (non-product liability). Motion to transfer granted. No consent to jurisdiction through registration and appointment of agent for service. Contrary prior precedent no longer viable after Bauman.
McCaffrey v. Windsor at Windermere Ltd. Partnership, 2017 WL 1862326, at *4 (E.D. Pa. May 8, 2017) (Pennsylvania) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to support general jurisdiction.
Wal-Mart Stores, Inc. v. Lemaire, 395 P.3d 1116 (Ariz. App. May 11, 2017) (Arizona) (non-product liability). Reversing denial of motion to dismiss. No express or implied consent to jurisdiction through registration and appointment of agent for service.
Antoon v. Securus Technologies, Inc., 2017 WL 2124466 (W.D. Ark. May 15, 2017) (Arkansas) (non-product liability). Motion to dismiss granted. No consent to jurisdiction through registration and appointment of agent for service, where statute provided express jurisdictional restriction, and “exception [would be] so large as to swallow the rule.”
Madlock v. Westar Energy, Inc., 517 S.W.3d 678 (Mo. App. May 16, 2017) (Missouri) (non-product liability). Grant of motion to dismiss affirmed. Corporate registration is not a basis for general personal jurisdiction.
Matthews v. BNSF Railway Co., 2017 WL 2266891 (W.D. Mo. May 23, 2017) (Missouri) (non-product liability). Motion for reconsideration granted and transferred. No consent to jurisdiction for registration and appointment of agent for service.
Hood v. Ascent Medical Corp., 691 F. Appx. 8 (2d Cir. May 24, 2017) (New York) (non-product liability). Affirming grant of motion to dismiss. Forum selection clause insufficient to constitute consent to general jurisdiction. Affirming, 2016 WL 1366920, and 2016 WL 3453656, above.
Mercury Rents, Inc. v. Crenshaw Enterprises Ltd., 2017 WL 2382483 (W.D. La. May 30, 2017) (Louisiana) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service of process are not consent to general jurisdiction.
Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. June 7, 2017) (New York) (non-product liability). Motion to dismiss granted as to out-of-state class action plaintiffs. No consent to jurisdiction through registration and appointment of agent for service. Contrary prior precedent longer viable after Bauman.
Siegfried v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 2778107 (E.D. Mo. June 27, 2017) (Missouri) (prescription medical product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. Out-of-state plaintiffs lacked personal jurisdiction Bauman and BMS. No consent to jurisdiction through and appointment of agent for service.
Everett v. Aurora Pump Co., 2017 WL 2778091 (E.D. Mo. June 27, 2017) (Missouri) (product liability – non-drug/device). Motion to dismiss granted. No consent to jurisdiction through registration and appointment of agent for service.
Boswell v. Cable Services Co., 2017 WL 2815077 (D.N.J. June 28, 2017) (New Jersey) (non-product liability). Motion to dismiss granted. No consent to jurisdiction through registration and appointment of agent for service. Statute lacked “express language” indicating consent. Contrary prior precedent no longer viable after Bauman.
Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, 898 N.W.2d 70 (Wis. June 30, 2017) (Wisconsin) (non-product liability). Reversing denial of dismissal and remanding. No consent to jurisdiction through registration and appointment of the agent. Statute contains no language regarding consent or jurisdiction. Contrary prior precedent no longer viable after Bauman.
Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 164 A.3d 435 (N.J. Super. App. Div. July 5, 2017) (New Jersey) (non-product liability). Dismissal for lack of jurisdiction affirmed. Registration to do business and appointment of agent for service of process do not establish consent to general jurisdiction. Prior contrary precedent is no longer viable after Bauman.
JPB Installers, LLC v. Dancker, Sellew & Douglas, Inc., 2017 WL 2881142 (M.D.N.C. July 6, 2017) (North Carolina) (non-product liability). Motion to dismiss granted. Registration to do business does not establish general personal jurisdiction.
Nationwide Signs, LLC v. National Signs, LLC, 2017 WL 2911577 (E.D. La. July 7, 2017) (Louisiana) (non-product liability). Motion to dismiss granted. Registration to do business does not establish general personal jurisdiction.
Jordan v. Bayer Corp., 2017 WL 3006993 (E.D. Mo. July 14, 2017) (Missouri) (pharmaceutical drug product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No specific jurisdiction over non-resident plaintiff claims under BMS.
MG Design Assocs. Corp. v. CoStar Realty Information, Inc., 267 F. Supp.3d 1000 (N.D. Ill. July 19, 2017) (Illinois) (non-product liability). Motion to dismiss granted in pertinent part and denied in part on other grounds. Registration to do business does not establish general personal jurisdiction.
Orafol Americas, Inc. v. DBi Services, LLC, 2017 WL 3473217 (N.D. Ga. July 20, 2017) (Georgia) (non-product liability). Transfer granted. Registration to do business does not establish general personal jurisdiction.
Hinkle v. Continental Motors, Inc., 268 F. Supp.3d 1312 (M.D. Fla. July 21, 2017) (Florida) (product liability – non-drug/device). Motion to dismiss granted. Registration to do business does not establish general personal jurisdiction. Jurisdictional discovery denied. Affirmed 775 F. Appx. 545, below.
Smith/Hill v. United States Steel Co., No. 170207649, order & hearing transcript (Pa. C.P. Philadelphia Co. July 24, 2017) (Pennsylvania) (product liability – non-drug/device). Jurisdictional preliminary objections granted. Registration to do business cannot establish general personal jurisdiction after BNSF and BMS. A state registration statute cannot legitimize what is otherwise a due process violation.
Northern Frac Proppants, II, LLC v. 2011 NF Holdings, LLC, 2017 WL 3275896 (Tex. App. July 27, 2017) (unpublished) (Texas) (non-product liability). Affirming in part and reversing in part on the basis of lack of jurisdiction. General jurisdiction not established registration to do business and having agent for service of process.
Johnson v. Sandvik Inc., 2017 WL 3263465, at *3 (E.D. Mich. Aug. 1, 2017) (Michigan) (product liability – non-drug/device). Motion to dismiss granted. Registration to do business does not support personal jurisdiction over claims with no direct connection to the state. Reconsideration denied, 2017 WL 3593376 (E.D. Mich. Aug. 21, 2017).
Sebastian v. Davol, Inc., 2017 WL 3325744 (W.D.N.C. Aug. 3, 2017) (North Carolina) (prescription medical product liability). Motion to dismiss granted. Registration to do business does not establish general personal jurisdiction.
Turner v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 3310696 (E.D. Mo. Aug. 3, 2017) (Missouri) (pharmaceutical drug product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No specific jurisdiction over non-resident plaintiff claims under BMS.
Covington v. Janssen Pharmaceuticals, Inc., 2017 WL 3433611 (E.D. Mo. Aug. 10, 2017) (Missouri) (pharmaceutical drug product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No specific jurisdiction over non-resident plaintiff claims under BMS. Alleged in-state contacts had no connection with the alleged injuries and the allegedly harmful products. Jurisdictional discovery denied.
Frontpoint Asian Event Driven Fund, L.P. v. Citibank, N.A., 2017 WL 3600425 (S.D.N.Y. Aug. 18, 2017) (New York) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through registration under banking statute.
Javage v. General Motors, LLC, 2017 WL 6403036 (N.D.W. Va. Aug. 18, 2017) (West Virginia) (product liability – non-drug/device). Registration to do business insufficient to make corporation “at home” for general jurisdiction purposes. Affirmed for the reasons stated by the district court, 736 F. Appx. 418 (4th Cir. 2018).
Gonzalez v. Crete Carrier Corp., 2019 WL 2172840 (W.D. Wash. May 20, 2019) (Washington) (non-product liability). Motion to dismiss granted. Plaintiff’s claims do not arise from the defendants in-state customers or advertising, the only contacts plaintiff has identified.
Wilderness USA, Inc. v. DeAngelo Brothers LLC, 265 F. Supp.3d 301 (W.D.N.Y. Aug. 23, 2017) (New York) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of agent for service is not consent to general personal jurisdiction. The statute did not support such a reading, and contrary prior precedent is no longer viable after Bauman and Brown.
Antonini v. Ford Motor Co., 2017 WL 3633287 (M.D. Pa. Aug. 23, 2017) (Pennsylvania) (product liability – non-drug/device). Registration to do business, among other contacts, insufficient to make corporation “at home” for general jurisdiction purposes.
Guaranteed Rate, Inc. v. Conn, 264 F. Supp.3d 909 (N.D. Ill. Aug. 28, 2017) (Illinois) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to support general jurisdiction.
Jinright v. Johnson & Johnson, Inc., 2017 WL 3731317 (E.D. Mo. Aug. 30, 2017) (Missouri) (pharmaceutical drug product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No specific jurisdiction over non-resident plaintiff claims under BMS. Alleged in-state contacts had no connection with the alleged injuries and the allegedly harmful products. The in-state contacts belonged to another party.
Australia & New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 WL 3841874 (S.D.N.Y. Sept. 1, 2017) (New York) (non-product liability). Granting motion to quash subpoena for lack of jurisdiction. Compelling discovery requires personal jurisdiction. No consent to jurisdiction through registration to do business. Jurisdictional discovery denied.
Griffin v. Ford Motor Co., 2017 WL 3841890 (W.D. Tex. Sept. 1, 2017) (Texas) (product liability – non-drug/device). Motion to dismiss denied on other grounds (specific jurisdiction). Registration and agent for service of process insufficient to create general jurisdiction.
Amelius v. Grand Imperial LLC, 64 N.Y.S.3d 855 (N.Y. Sup. Sept. 11, 2017) (New York) (non-product liability). Denying motion to compel compliance with subpoena. No consent to jurisdiction through registration to do business and appointment of agent for service of process. Pre-Bauman contrary cases are no longer good law.
Spratley v. FCA US LLC, 2017 WL 4023348 (N.D.N.Y. Sept. 12, 2017) (New York) (product liability – non-drug/device). Motion to dismiss granted in part. Multi-plaintiff class action complaint. No consent to general jurisdiction through registration to do business and appointment of agent for service. Pre-Bauman contrary cases are no longer good law. Dismissing claims of non-resident plaintiffs. A non-resident’s exposure to an alleged nationwide marketing scheme does not establish specific jurisdiction. No pendent jurisdiction based on single in-state resident’s claims.
Aspen American Insurance Co. v. Interstate Warehousing, Inc., 90 N.E.3d 440 (Ill. Sept. 21, 2017) (Illinois) (non-product liability). Denial of motion to dismiss reversed. Jurisdictional theory that would allow non-residents to sue the defendant in every state where it operated a warehouse fails Due Process. Registration to do business and appointment of agent for service is not consent to general personal jurisdiction. The statute did not support such a reading.
Douthit v. Janssen Research & Development, LLC, 2017 WL 4224031 (S.D. Ill. Sept. 22, 2017); Braun v. Janssen Research & Development, LLC, 2017 WL 4224034 (S.D. Ill. Sept. 22, 2017); Bandy v. Janssen Research & Development, LLC, 2017 WL 4224035 (S.D. Ill. Sept. 22, 2017); Pirtle v. Janssen Research & Development, LLC, 2017 WL 4224036 (S.D. Ill. Sept. 22, 2017); Roland v. Janssen Research & Development, LLC, 2017 WL 4224037 (S.D. Ill. Sept. 22, 2017); Woodall v. Janssen Research & Development, LLC, 2017 WL 4237924 (S.D. Ill. Sept. 22, 2017); and Berousee v. Janssen Research & Development, LLC, 2017 WL 4255075 (S.D. Ill. Sept. 26, 2017) (Illinois) (pharmaceutical drug product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No specific jurisdiction over non-resident plaintiff claims under BMS. Conducting in-state clinical trials not sufficient contact to support specific personal jurisdiction in suits by non-residents.
HomeRun Products, LLC v. Twin Towers Trading, Inc., 2017 WL 4293145 (D.N.D. Sept. 27, 2017) (North Dakota) (non-product liability). Motion to dismiss denied on other grounds, pending jurisdictional discovery. Corporate registration does not support general jurisdiction.
Salgado v. OmniSource Corp., 2017 WL 4508085 (Tex. App. Oct. 10, 2017) (Texas) (product liability – non-drug/device). Affirming dismissal for lack of jurisdiction. No general jurisdiction through registration to do business and appointment of agent for service. Contracting with in-state entity not enough for specific jurisdiction where plaintiff and accident are out of state.
Fox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. App. Oct. 17, 2017) (Missouri) (product liability – non-drug/device). Reversing jury verdict for plaintiff. Multi-plaintiff complaint. Non-resident plaintiff has no basis for jurisdiction over non-resident defendant over injuries occurring out-of-state. Plaintiff does not get a jurisdictional do-over of arguments that could have been raised earlier.
Sae Han Sheet Co. v. Eastman Chemical Corp., 2017 WL 4769394 (S.D.N.Y. Oct. 19, 2017) (New York) (product liability – non-drug/device). Motion to dismiss granted. No consent to general jurisdiction through registration and appointment of agent for service. Pre-Bauman contrary cases are no longer good law. No specific jurisdiction under BMS for harm to a nonresident caused by products not sole in-state.
Western Express, Inc. v. Villanueva, 2017 WL 4785831 (M.D. Tenn. Oct. 24, 2017) (Tennessee) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through registration and appointment of agent for service.
Congdon v. Cheapcaribbean.com, Inc., 2017 WL 5069960, at *8 (N.D. Ill. Nov. 3, 2017) (Illinois) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through registration and appointment of agent for service.
Stisser v. SP Bancorp, Inc., 174 A.3d 405 (Md. Nov. 29, 2017) (Maryland) (non-product liability). Affirming dismissal. Incorporating in-state subsidiary is not consent to jurisdiction, nor confers specific jurisdiction over claims unrelated to the incorporation.
Grice v. VIM Holdings Group, LLC, 2017 WL 6210891 (D. Mass. Dec. 8, 2017) (Massachusetts) (non-product liability). Motion to dismiss denied, but only as to specific jurisdiction. Corporate registration alone is insufficient for personal jurisdiction.
Greene v. Mizuho Bank, Ltd., 289 F. Supp.3d 870 (N.D. Ill. Dec. 11, 2017) (Illinois) (non-product liability). Class action complaint. Granting motion for reconsideration, dismissing claims of nonresident plaintiffs. BMS applies to named plaintiffs in putative class actions. Rejecting pendent jurisdiction. No waiver from failure to assert jurisdictional defense before BMS.
Old Republic Insurance Co. v. Continental Motors, Inc., 877 F.3d 895 (10th Cir. Dec. 15, 2017) (Colorado) (product liability – non-drug/device). Dismissal affirmed. A defendant must purposefully direct activities at the forum state, and the plaintiff’s claims must arise out of those activities. A neutral website and distribution of manuals that a federal agency required be uniform nationwide did not constitute directed activities towards any state.
Mierzwa v. Cirrus Design Corp., 2017 WL 6344792 (Minn.Dist.Ct. Dec. 11, 2017) (Minnesota) (product liability – non-drug/device). Motion to dismiss granted. Regular sales of the product to in-state co-defendant insufficient. Product was manufactured, installed, and tested elsewhere, and no other in-state contacts existed. There is no single jurisdiction with jurisdiction over all of the defendants plaintiff has sued.
State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227 (Mo. Dec. 19, 2017) (Missouri) (pharmaceutical drug product liability). Mandamus overturning denial of motion to dismiss granted. Non-residents alleged nothing establishing “related to”/”arising from” specific jurisdiction. No consent to jurisdiction through registration and appointment of agent. Contrary prior precedent no longer viable after Bauman. Any future amendment to be decided in the first instance by the trial court.
Hicks v. Health Insurance Innovations, Inc., 2017 WL 6764054 (Mag. D.N.J. Dec. 20, 2017) (New Jersey) (non-product liability). Motion to dismiss granted. Multi-plaintiff complaint. No specific jurisdiction under BMS where plaintiff neither suffered nor harm in nor had any relationship with the forum state. Adopted 2018 WL 325308 (D.N.J. Jan. 8, 2018).
In re Santa Fe National Tobacco Co. Marketing & Sales Practices & Products Liability Litigation, 288 F. Supp. 3d 1087 (D.N.M. Dec. 21, 2017) (New Mexico) (product liability – non-drug/device). Motion to transfer granted. All plaintiffs who did not file their actions where the defendant was “at home” lack personal jurisdiction over the target defendant in an MDL. MDL jurisdiction mirrors the transferor districts. A defendant’s extensive involvement in product marketing, advertising, and overall business development is not activity directed at any other state. Mere influence over a subsidiary insufficient for alter ego.
Gulf Coast Bank & Trust Co. v. Designed Conveyor Systems, LLC, 717 F. Appx. 394 (5th Cir. Dec. 22, 2017) (Louisiana) (non-product liability). Affirming dismissal. No consent to general jurisdiction through registration to do business and appointment of agent for service of process. Pennsylvania Fire is probably overruled. Affirming 2016 WL 4939113, above.
McIntyre v. Olympus America, Inc., 2017 WL 7361560 (Pa. C.P. Phila. Co. Dec. 29, 2017) (Pennsylvania) (pharmaceutical drug product liability). Granting jurisdictional preliminary objection. Having corporate subsidiaries registered to do business in a state does not create general jurisdiction. An isolated recommendation from an in-state subsidiary does not create specific jurisdiction where the product was designed and used out of state.
Nietzold v. Olympus America, Inc., 2017 WL 7361559 (Pa. C.P. Phila. Co. Dec. 29, 2017) (Pennsylvania) (pharmaceutical drug product liability). Granting jurisdictional preliminary objection. Having corporate subsidiaries registered to do business in a state does not create general jurisdiction. An isolated recommendation from an in-state subsidiary does not create specific jurisdiction where the product was designed and used out of state.
Travelers Property Casualty Co. v. Hume Lake Christian Camps, Inc., 2018 WL 280025 (S.D. Cal. Jan. 3, 2018) (California) (non-product liability). Motion to dismiss granted. No general jurisdiction through registration to do business and appointment of agent.
Fundamental Innovation Systems International LLC v. LG Electronics, Inc., 2018 WL 279091 (E.D. Tex. Jan. 3, 2018) (New Jersey) (non-product liability). Denying motion to transfer. No consent to general jurisdiction in transferee forum through registration to do business and appointment of agent. Prior contrary precedent no longer viable after Bauman. Adopted 2018 WL 837711 (E.D. Tex. Feb. 13, 2018) (same).
Howe v. Samsung Electronics America, Inc., 2018 WL 2212982 (N.D. Fla. Jan. 5, 2018) (Florida) (product liability – non-drug/device). Motion to dismiss granted. Class action dismissed as to all out-of-state product sale claims. Rule 23 cannot expand personal jurisdiction. No general personal jurisdiction by registration to do business.
LDGP, LLC v. Cynosure, Inc., 2018 WL 439122 (N.D. Ill. Jan. 16, 2018) (Illinois) (non-product liability). Motion to dismiss granted. Putative nationwide class-action. Non-residents lack personal jurisdiction to serve as class representatives against non-resident defendants. Similar claims by residents cannot create jurisdiction for non-residents.
DeBernardis v. NBTY, Inc., 2018 WL 461228 (N.D. Ill. Jan. 18, 2018) (Illinois) (non-product liability). Motion to dismiss granted. Putative nationwide class-action. BMS probably outlaws nationwide class actions where general jurisdiction over the defendant is lacking. Dismissing claims seeking to recover on behalf of nonresident plaintiffs.
Harter v. Ascension Health, 2018 WL 496911 (D. Ariz. Jan. 22, 2018) (Arizona) (non-product liability). Motion to dismiss granted. No consent to jurisdiction through registration to do business and appointment of an agent. No alter ego. Jurisdictional discovery denied.
Moseley v. Suzuki Motor, Inc., 2018 WL 539330 (D. Idaho Jan. 24, 2018) (Idaho) (product liability – non-drug/device). Motion to dismiss granted. Stream of commerce personal jurisdiction without state-targeted conduct does not exist. No alter ego.
Dyson v. Bayer Corp., 2018 WL 534375 (E.D. Mo. Jan. 24, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No case-linked jurisdiction over non-resident plaintiff claims based on in-state clinical trials and product marketing. Plaintiffs were neither enrolled in the trials and nor exposed to the marketing. Jurisdictional discovery denied.
In re Xarelto Cases, 2018 WL 809633 (Cal. Super. Feb. 6, 2018) (California) (prescription medical device product liability). Motion for protective order against jurisdictional discovery granted. In-state clinical trials and marketing efforts involving the product are not relevant to specific jurisdiction unless a plaintiff’s claim arose out of those activities.
SPV Osus Ltd. v. UBS AG, 882 F.3d 333 (2d Cir. Feb. 9, 2018) (New York) (non-product liability). Affirming dismissal. Absent reliance on defendant’s in-state contacts, such contacts cannot be suit related so as to establish jurisdiction.
In re Nexus 6P Products Liability Litigation, 2018 WL 827958 (N.D. Cal. Feb. 12, 2018) (California) (product liability – non-drug/device). Motion to dismiss granted. Putative nationwide and multistate class-action. No consent to general jurisdiction through registration to do business and the appointment of agent. Case-linked jurisdiction cannot be determined without evidence of where plaintiffs resided and where they purchased relevant products. Jurisdictional conduct must be suit related. Jurisdictional discovery limited to suit related conduct permitted.
Jordan v. Bayer Corp., 2018 WL 837700, slip op. (E.D. Mo. Feb. 13, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No case-linked jurisdiction over non-resident plaintiff claims based on in-state clinical trials and product marketing. Plaintiffs were neither enrolled in the trials and nor exposed to the marketing. Jurisdictional discovery denied.
Perficient, Inc. v. Continuant, Inc., 546 S.W.3d 610 (Mo. App. Feb. 20, 2018) (Missouri) (non-product liability). Affirming dismissal. No consent to general jurisdiction through registration to do business and appointment of agent.
McClain v. Bayer Corp., 2018 WL 3725777, slip op. (E.D. Mo. Feb. 20, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Following Dyson. Jurisdictional discovery denied.
Johnson v. Bayer Corp., 2018 WL 999972 (E.D. Mo. Feb. 21, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No case-linked jurisdiction over non-resident plaintiff claims based on in-state clinical trials and product marketing. Plaintiffs were neither enrolled in the trials and nor exposed to the marketing. Jurisdictional discovery denied.
Schaffer v. Bayer Corp., 2018 WL 999980 (E.D. Mo. Feb. 21, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No case-linked jurisdiction over non-resident plaintiff claims based on in-state clinical trials and product marketing. Plaintiffs were neither enrolled in the trials and nor exposed to the marketing. Jurisdictional discovery denied.
Ford Motor Co. v. Cejas, 2018 WL 1003791 (Tex. App. Feb. 22, 2018) (Texas) (product liability – non-drug/device). Denial of motion to dismiss reversed. Registration to do business, along with many other in-state contacts, insufficient to establish general personal jurisdiction.
Harlan v. Johnson & Johnson, No. 15-L-84, slip op. (Ill. Cir. Feb. 26, 2018) (Illinois) (product liability – non-drug/device). Motion to dismiss granted. No stream of commerce jurisdiction. No in-state sales to distributor. Distributor altered product and brought it in state.
Lewis v. Johnson & Johnson, No. 15-L-409, slip op. (Ill. Cir. Feb. 26, 2018) (Illinois) (product liability – non-drug/device). Motion to dismiss granted. No stream of commerce jurisdiction. No in-state sales to distributor. Distributor altered product and brought it in state.
Shuker v. Smith & Nephew, PLC, 885 F.3d 760 (3d Cir. March 1, 2018) (Pennsylvania) (prescription medical device product liability). Affirming dismissal in part. After BMS, stream of commerce personal jurisdiction without state-targeted conduct no longer exists. Limited jurisdictional discovery on alter ego theory.
SprayFoamPolymers.com, LLC v. Luciano, 2018 WL 1220891 (Tex. App. March 9, 2018) (Texas) (product liability – non-drug/device). Finding of jurisdiction reversed. Statements by third parties about their relationship with defendant are not in-state contacts of the defendant. Plaintiff failed to establish injury arising from any purposeful in-state conduct by the defendant.
Gorton v. Air & Liquid Systems Corp., 303 F. Supp.3d 278 (M.D. Pa. March. 19, 2018) (Pennsylvania) (product liability – non-drug/device). Multiple motions to dismiss, some granted, some not, in asbestos case. Mere manifestation of injury in the forum does not establish specific jurisdiction. Asbestos plaintiffs must be exposed in the forum. Pennsylvania registration statute can establish general jurisdiction by consent, but only after 1978, when the statute was amended to so state, and only for periods during which particular corporations were registered. Asbestos exposure when a corporation was not registered in Pennsylvania cannot establish jurisdiction.
Humphries v. Allstate Insurance Co., 2018 WL 1510441 (D. Ariz. March 27, 2018) (Arizona) (non-product liability). Motion to dismiss granted. No in-state physical presence. No consent to general jurisdiction through registration to do business and appointment of agent. Such “categorical assertion of general jurisdiction” is prohibited by Bauman and BNSF.
Perry v. JMT Capital Management, LLC, 2018 WL 1635855 (N.D. Ill. April 5, 2018) (Illinois) (non-product liability). Motion to dismiss granted. No general jurisdiction through registration to do business and appointment of agent for service of process.
Al Haj v. Pfizer Inc., 2018 WL 1784126 (N.D. Ill. April 13, 2018) (Illinois) (product liability – non-drug/device). Motion to dismiss nonresident representative class plaintiff granted. Multi-plaintiff nationwide putative class action. Identity between resident and nonresident claims insufficient to confer jurisdiction over the nonresident plaintiffs. No consent to jurisdiction based registration to do business, agent for service of process, or defense of previous lawsuits. No jurisdictional difference between class actions and other types of litigation.
Debbie’s Staffing Services, Inc. v. Highpoint Risk Services, LLC, 2018 WL 1918603 (M.D.N.C. April 20, 2018) (North Carolina) (non-product liability). Motion to dismiss granted. No general jurisdiction through registration to do business.
Bralich v. Sullivan, 2018 WL 1938297 (D. Haw. April 23, 2018) (Hawaii) (non-product liability). Motion to dismiss granted. No in-state physical presence. No consent to general jurisdiction through registration and appointment of agent. No stream of commerce jurisdiction. Jurisdictional discovery denied.
Huzinec v. Six Flags Great Adventure, LLC, 2018 WL 1919956 (D. N.J. April 24, 2018) (New Jersey) (product liability – non-drug/device). Motion to dismiss granted as to third-party defendants. No specific jurisdiction where third-party claims were too attenuated from the negligence that allegedly caused the accident at suit. None of the goods or services defendants purchased were alleged to have been negligent. Jurisdictional discovery denied.
Horowitz v. AT&T, Inc., 2018 WL 1942525 (D.N.J. April 25, 2018) (New Jersey) (non-product liability). Motion to dismiss granted, dismissing three related defendants. Multi-plaintiff complaint. No alter ego as to any of the related defendants. Holding company not subject to general or specific jurisdiction. No consent to general jurisdiction through registration to do business and appointment of agent. Contrary prior precedent no longer viable after Bauman. BMS bars class actions by non-resident plaintiffs against non-resident defendants. One defendant subjected to specific jurisdiction due to direct contacts with plaintiffs.
Chernus v. Logitech, Inc., 2018 WL 1981481 (D. N.J. April 27, 2018) (New Jersey) (product liability – non-drug/device). Motion to dismiss granted in part. Putative nationwide and multi-state class-action. Nonresident representative class plaintiff and subclass members dismissed. Larger issue of whether BMS foreclosed jurisdiction over non-resident absent class members was premature.
Blackburn v. Shire US, 2018 WL 2159927 (N.D. Ala. May 10, 2018) (Alabama) (prescription medical device product liability). Motion to amend denied. Amendment to add non-manufacturing NDA holder futile for lack of personal jurisdiction. Neither FDA approval nor allegedly creating a defective label did not target any particular state. No alter ego. Seeking FDA approval of a product is not conduct specifically directed to any state.
Brighter Sky Products, LLC v. Marriott International, Inc., 2018 WL 2248601 (S.D.W. Va. May 16, 2018) (West Virginia) (non-product liability). Motion to dismiss granted. Having an agent for service of process, among other contacts, insufficient to create general jurisdiction.
Chavez v. Church & Dwight Co., 2018 WL 2238191 (N.D. Ill. May 16, 2018) (Illinois) (product liability – non-drug/device). Motion to dismiss granted in part. Non-forum aspects of putative nationwide class action dismissed. Claims of out-of-state residents against foreign corporation do not arise in the forum. BMS applies equally to class actions.
Campbell v. Acme Insulations, Inc., 105 N.E.3d 984 (Ill. App. May 18, 2018) (Illinois) (product liability – non-drug/device). Denial of motion to dismiss reversed. Non-resident asbestos plaintiff cannot obtain specific jurisdiction over non-resident defendant for exposure to defendant’s products that took place elsewhere. Continuous and substantial in-state non-asbestos business is not case related, nor is it consent. Registration to do business is not consent to jurisdiction unrelated to in-state business. Neither plaintiff’s in-state exposure to other asbestos products, nor plaintiff’s out-of-state exposure to defendant’s products can be a case-related contact. Purported evidence of in-state exposure to defendant’s products was incompetent. Personal jurisdiction “by necessity” does not exist.
Metropolitan Group Property & Casualty Insurance Co. v. Electrolux Home Products, Inc., 2018 WL 2422023 (D.N.J. May 29, 2018) (New Jersey) (product liability – non-drug/device). Motion to dismiss granted. Registration to do business is not implied consent to general jurisdiction.
Mallory v. Norfolk Southern Railway Co., 2018 WL 3043601, slip op. (Pa. C.P. May 30, 2018) (Pennsylvania) (non-product liability). Preliminary objections granted. Corporate defendant, not subject to general or specific personal jurisdiction, cannot remain in suit under consent theory based on registration to do business. Pennsylvania’s registration statute specifying “general” jurisdiction, is unconstitutional under the due process principles of Bauman and BMS. The statute creates a Hobson’s choice and is not voluntary consent. Personal jurisdiction beyond Bauman/BMS violates due process. Pennoyer-era cases treating corporate registration as consent are no longer valid. On appeal at 802 EDA 2018 (Pa. Super.). Affirmed, 2021 Pa. Lexis 4318, below.
Molock v. Whole Foods Market Group, Inc., 317 F. Supp.3d 1 (D.D.C. June 11, 2018) (District of Columbia) (non-product liability). Certifying denial of motion to dismiss to appellate court. Does BMS apply to bar nationwide class actions where non-resident absent class members would be suing non-resident defendants? Court previously denied defendant’s motion to dismiss.
Kellman v. Whole Foods Market, Inc., 313 F. Supp.3d 1031 (N.D. Cal. June 12, 2018) (California) (non-product liability). Motion to dismiss granted. No specific jurisdiction over nonresident defendants based on Internet presence. No alter ego.
Beasley v. Providence Hospital, 2018 WL 2994380 (S.D. Ala. June 13, 2018) (Alabama) (non-product liability). Motion to dismiss granted in pertinent part and denied on other grounds. General jurisdiction is not available based on appointment of agent and registration to do business, which are not “exceptional” circumstances..
ASEA/AFSCME Local Health 52 Health Benefits Trust v. Abbot Laboratories, 2018 WL 3022670 (N.D. Ill. June 18, 2018) (Illinois) (prescription medical device product liability). Motion to dismiss granted. No alter ego. Forum state contacts must both relate to the lawsuit and be created by the defendant. Plaintiff did not pay for the product in state nor were the surgeries in-state. Specific jurisdiction cannot be premised on claims of unnamed class members. Jurisdictional discovery denied.
Rodriguez v. City of Philadelphia, 2018 WL 3036283 (E.D. Pa. June 18, 2018) (Iowa) (product liability – non-drug/device). Denying motion for reconsideration of dismissal. Targeting a national market does not amount to purposeful availment of the privilege of conducting activities in a specific state. In-state contacts post-dating suit are irrelevant.
Goellner-Grant v. JLG Industries, Inc., 2018 WL 3036453 (E.D. Mo. June 19, 2018) (Missouri) (product liability – non-drug/device). Motion to dismiss granted. An in-state sales network does not establish jurisdiction where the product was not sold in-state. The sales network was not a connection to the events of this case.
Jeffs v. Ford Motor Co., 2018 WL 3466965 (Ill. App. June 12, 2018) (unpublished) (Illinois) (product liability – non-drug/device). Reversing denial of motion to dismiss in asbestos case. No consent to general jurisdiction through appointment of agent and registration to do business. No case-linked jurisdiction where all exposure took place out of state.
Matter of Grabowski v. A.O. Smith Corp., 2018 WL 3158514 (N.Y. Sup. June 27, 2018) (New York) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. No consent to general jurisdiction through appointment of an agent and registration to do business. No general jurisdiction over separately incorporated subsidiary of parent that was once at home in-state. Case-linked jurisdiction confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. Without such connection, amount of unrelated in-state activity does not matter. Defendant’s several in-state facilities unrelated to plaintiff’s claims are insufficient. Non-resident plaintiffs cannot obtain case-linked jurisdiction over non-resident defendants over out-of-state exposures or injuries.
Ristesund v. Johnson & Johnson, 558 S.W.3d 77 (Mo. App. June 29, 2018) (Missouri) (product liability – non-drug/device). Reversing jury verdict for plaintiff. Multi-plaintiff complaint. A non-resident plaintiff may not establish personal jurisdiction simply by joining his or her claims to a resident’s pleading. No case-linked jurisdiction over nonresident defendant over injuries to nonresident plaintiff from products sold out-of-state. Plaintiff does not get a jurisdictional do-over of arguments that could have been raised earlier.
Kyowa Seni Co. v ANA Aircraft Technics, Co., 80 N.Y.S.3d 866 (N.Y. Sup. July 5, 2018) (New York) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through appointment of agent and registration to do business. Overseas activities unrelated to defendant’s in-state activities cannot establish case-linked jurisdiction.
Staker & Parson Companies, Inc. v. Scottsdale Insurance Co., 2018 WL 3575314 (D. Utah July 25, 2018) (Utah) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of an agent for service of process do not establish general jurisdiction.
New York City Asbestos Litigation, 2018 WL 3575072 (N.Y. Sup. July 25, 2018) (New York) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. No consent to general jurisdiction through appointment of agent and registration to do business. Prior contrary precedent is no longer viable after Bauman. Listing on in-state stock exchange does not create general jurisdiction. Case-linked jurisdiction confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. Without such connection, amount of unrelated in-state activity does not matter. Non-resident plaintiffs cannot obtain case-linked jurisdiction over non-resident defendants over out-of-state exposures or injuries.
New York City Asbestos Litigation, 2018 WL 3601393 (N.Y. Sup. July 27, 2018) (New York) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. Case-linked jurisdiction confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. Without such connection, amount of unrelated in-state activity does not matter. Non-resident plaintiffs cannot obtain case-linked jurisdiction over non-resident defendants over out-of-state exposures or injuries. Jurisdictional discovery denied.
Hinton v. Bayer Corp., 2018 WL 3725776, slip op. (E.D. Mo. July 27, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No case-linked jurisdiction over non-resident plaintiff claims based on in-state clinical trials and product marketing. Plaintiffs were neither enrolled in the trials and nor exposed to the marketing. Jurisdictional discovery denied.
Daniel v. Tootsie Roll Industries, LLC, 2018 WL 3650015 (S.D.N.Y. Aug. 1, 2018) (New York) (non-product liability). Motion to dismiss granted. Non-resident aspects of class action dismissed. Products purchased elsewhere have no connection to the state. No pendent jurisdiction. CAFA does not authorize non-resident class actions.
Megadrill Services Ltd. v. Brighouse, 556 S.W.3d 490 (Tex. App. Aug. 2, 2018) (Texas) (non-product liability). Denial of motion to dismiss reversed. Participation in unrelated prior litigation in the forum state is not perpetual consent to general jurisdiction. No case-linked jurisdiction because plaintiff’s injuries were not related to in-state refurbishment.
New York City Asbestos Litigation, 2018 WL 3636296 , slip op. (N.Y. Sup. July 31, 2018) (New York) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. Case-linked jurisdiction confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. Without such connection, amount of unrelated in-state activity does not matter. Non-resident plaintiffs cannot obtain case-linked jurisdiction over non-resident defendants over out-of-state exposures or injuries. Jurisdictional discovery denied.
New York City Asbestos Litigation, 2018 WL 3697135 (N.Y. Sup. Aug. 3, 2018) (New York) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. Case-linked jurisdiction confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. Without such connection, amount of unrelated in-state activity does not matter. Non-resident plaintiffs cannot obtain case-linked jurisdiction over non-resident defendants over out-of-state exposures or injuries. Jurisdictional discovery denied.
EZScreenPrint LLC v. SmallDog Prints LLC, 2018 WL 3729745 (D. Ariz. Aug. 6, 2018) (Arizona) (non-product liability). Motion to dismiss granted. Registration of a domain name with an in-state company does not establish general jurisdiction.
Kuhar v. Petzl Co., 2018 WL 3727368 (D.N.J. Aug. 6, 2018) (New Jersey) (product liability – non-drug/device). Motion to dismiss granted. Unrelated in-state purchases do not create case-linked jurisdiction. Simply placing an item into the stream of commerce, even where it is foreseeable that the item will end up in the forum state, is not enough to establish case-linked jurisdiction. Alter ego inapplicable where plaintiff dealt in-state with none of the alleged alter egos.
Gaines v. General Motors, LLC, 2018 WL 3752336 (S.D. Cal. Aug. 7, 2018) (California) (product liability – non-drug/device). Leave to amend to add non-forum class action claims denied. Class actions under state law cannot involve non-resident plaintiffs suing non-resident defendants over out-of-state activity. Whether an action is brought as a class action has no real effect on whether a defendant can challenge a court’s exercise of personal jurisdiction over it.
Mark Doyle Construction, LLC v. TriHM Foundation, LLC, 2018 WL 3763014 (W.D. La. Aug. 8, 2018) (Louisiana) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through registration to do business.
Wartsila North America, Inc. v. International Center for Dispute Resolution, 387 F. Supp.3d 715 (S.D. Tex. Aug. 14, 2018) (Texas) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through registration to conduct insurance business. On appeal, No. 18-20642 (5th Cir.).
New York City Asbestos Litigation, 2018 WL 3859695 (N.Y. Sup. Aug. 14, 2018) (New York) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. No consent to general jurisdiction through appointment of agent and registration to do business. Prior contrary precedent is no longer viable after Bauman. Defendant’s in-state activities had nothing to do with plaintiff’s exposure, which was entirely out of state. Jurisdictional discovery denied.
Indelicato v. Liberty Transportation, Inc., 2018 WL 3934074 (W.D.N.Y. Aug. 16, 2018) (New York) (non-product liability). Transfer granted. Registration to do business, even with other in-state contacts, insufficient to create general jurisdiction.
Storms v. Haugland Energy Group, LLC, 2018 WL 4347603 (Mag. S.D. Fla. Aug. 17, 2018), adopted, 2018 WL 4347604 (S.D. Fla. Sept. 4, 2018) (Florida) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through appointment of agent and registration to do business.
Waite v. All Acquisition Corp., 901 F.3d 1307 (11th Cir. Aug. 23, 2018) (Florida) (product liability – non-drug/device). Grant of motion to dismiss affirmed in asbestos case. No consent to general jurisdiction through appointment of agent and registration to do business. Overly broad interpretation of corporate registration as consent implicates Bauman.
Reinbold v. Advanced Auto Parts, Inc., 2018 WL 4051830 (S.D. Ill. Aug. 24, 2018) (Illinois) (product liability – non-drug/device). Motion to dismiss granted in asbestos case. Non-resident plaintiffs cannot obtain case-linked jurisdiction over non-resident defendants over out-of-state exposures or injuries.
Moore v. Bayer Corp., 2018 WL 4144795 (E.D. Mo. Aug. 29, 2018) (Missouri) (prescription medical device product liability). Motion to remand denied and motion to dismiss granted. Misjoined, multi-plaintiff complaints no longer preclude removal. No general jurisdiction under Bauman. No case-linked jurisdiction over non-resident plaintiff claims based on in-state clinical trials and product marketing. Plaintiffs were neither enrolled in the trials and nor exposed to the marketing. Jurisdictional discovery denied.
Woodruff-Sawyer & Co. v. Ghilotti, 255 So.3d 423 (Fla. App. Aug. 29, 2018) (Florida) (non-product liability). Denial of motion to dismiss reversed. No consent to general jurisdiction through appointment of agent and registration to do business.
Cunningham v. Nationwide Security Solutions, Inc., 2018 WL 4575005 (Mag. N.D. Tex. Aug. 31, 2018), adopted, 2018 WL 4568803 (N.D. Tex. Sept. 24, 2018) (Texas) (non-product liability). Motion to dismiss granted. Registration to do business does not create general jurisdiction.
Fekah v. Baker Hughes, Inc., 2018 WL 4257338 (N.Y. Sup. Sept. 6, 2018) (New York) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through appointment of agent and registration to do business.
Hitachi Data Systems Credit Corp. v. Precision Discovery, Inc., 331 F. Supp.3d 130 (S.D.N.Y. Sept. 7, 2018) (New York) (non-product liability). Motion to dismiss granted. Registration does not create general jurisdiction.
In re Talc Products Liability Litigation, 2018 WL 4340012 (Del. Super. Sept. 10, 2018) (Delaware) (product liability – non-drug/device). Multiple motions to dismiss granted. In-state marketing, contracts, and product testing are insufficient to establish case-linked jurisdiction for non-resident plaintiffs who were not affected by these activities. No jurisdiction based on in-state subsidiaries, agency or conspiracy. Jurisdictional discovery denied.
DeLeon v. BNSF Railway Co., 426 P.3d 1 (Mont. Sept. 11, 2018) (non-product liability). Grant of motion to dismiss affirmed. No consent to general jurisdiction through appointment of agent and registration to do business. Prior contrary precedent is no longer viable after Bauman, and would eliminate Bauman’s due process limitations.
Morgan v. Trokamed GmbH, 341 F. Supp.3d 953 (W.D. Wis. Sept. 14, 2018) (Wisconsin) (prescription medical device product liability). Motion to dismiss granted. Overseas manufacturer’s obtaining approval from the FDA were not contacts with any particular state that could constitute purposeful availment of any state’s market. Any in-state contacts were those of the defendant’s distributor, not of the defendant.
Chufen Chen v. Dunkin’ Brands, Inc., 2018 WL 9346682 (E.D.N.Y. Sept. 17, 2018) (New York) (non-product liability). Motion to dismiss granted. No general jurisdiction by reason of registration to do business. Older precedent overturned by Bauman. Each named plaintiff in a purported class action must show that in-state contacts specific to their claim give rise to specific jurisdiction over an out-of-state defendant. No constitutional difference between mass-tort the plaintiffs and the named plaintiffs of a class action. Affirmed, 954 F.3d 492, below.
Murray v.Cirrus Design Corp., 2018 WL 4550399 (N.D. Ill. Sept. 20, 2018) (Illinois) (product liability – non-drug/device). Motion to dismiss granted. That the product was involved in an in-state accident was fortuitous and did not establish case-linked jurisdiction. The accident did not arise from and was not related to any activity by the defendant in the jurisdiction.
Hawes v. Macy’s Inc., 2018 WL 4680813 (S.D. Ohio Sept. 28, 2018) (Ohio) (non-product liability). Motion to dismiss granted. Multi-plaintiff complaint. No jurisdiction over manufacturer and distributor for purchase of products in other states by non-residents. Engaging in “nationwide course of conduct” insufficient for specific jurisdiction over non-residents.
Doucet v. FCA US LLC, 2018 WL 4854632 (D.N.H. Oct. 5, 2018) (New Hampshire) (product liability – non-drug/device). Motion to dismiss granted. Plaintiff’s injuries did not arise from or relate to the defendant’s in-state activity because those activities were not a proximate cause. The product that allegedly injured him was not sold by the defendant in the state. Specific personal jurisdiction denied. Jurisdictional discovery denied.
Dochnal v. Thomson Reuters Corp., 2018 WL 5045205 (E.D. Tenn. Oct. 17, 2018) (Tennessee) (non-product liability). Motion to dismiss granted. In-state activities satisfy the “arise from” test only if they are the proximate cause of the plaintiff’s claimed injuries. No in-state activity caused plaintiff’s harm.
Adwar Casting Co. v. Star Gems, Inc., 2018 WL 5084826 (E.D.N.Y. Oct. 18, 2018) (New York) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction via forum selection clause in website terms of use. No requirement of “affirmative assent,” the website did not alert the user to possibility of jurisdiction. Motion to amend denied.
In re Del Valle Ruiz, 342 F. Supp.3d 448 (S.D.N.Y. Oct. 19, 2018) (non-product liability). Motion to conduct third-party discovery granted. Bank’s supervision by state agency does not create general jurisdiction, even with other in-state contacts.
Gazzillo v. Ply Gem Industries, 2018 WL 5253050 (N.D.N.Y. Oct. 22, 2018) (New York) (non-product liability). Motion to dismiss granted. Multi-plaintiff class action complaint. Non-resident plaintiffs who did not buy products in the forum state could not exercise specific jurisdiction over nonresident manufacturer and distributor regardless of how much in-state business the defendant conducted.
A.T. v. Hahn, 341 F. Supp.3d 1031 (E.D. Mo. Oct. 24, 2018) (Missouri) (product liability-non-drug/device). Motion to dismiss granted. Stream of commerce specific jurisdiction theory no longer viable. Relationships with third parties that have in-state contacts are insufficient. No alter ego.
Lee v. Branch Banking & Trust Co., 2018 WL 5633995 (S.D. Fla. Oct. 31, 2018) (Florida) (non-product liability). Motion to dismiss granted in part. Multi-plaintiff complaint. Dismissing claims by non-resident class members absent any connection with forum. Registration to do business and appointment of agent for service insufficient for general jurisdiction under Bauman. (Caveat: ruling that BMS did not require dismissal of claims against absent class members).
Carbonite Filter Corp. v. C. Overaa & Co., 353 F. Supp.3d 332 (M.D. Pa. Nov. 7, 2018) (Pennsylvania) (product liability-non-drug/device). Motion to dismiss granted. That defendant had significant in-state business with other entities did not create specific jurisdiction where, in this case, defendant had contracted with an out-of-state intermediary and had no in-state dealings in obtaining the product. That the product originated in-state did not cause the injuries complained of.
Brown v. Ford Motor Co., 2018 WL 5858123 (N.D. Ga. Nov. 9, 2018) (Georgia) (product liability-non-drug/device). Motion to dismiss granted. Plaintiff’s injuries were not related to the defendant’s in-state product sales. Plaintiff bought the product used from a person unaffiliated with the defendant.
Manning v. Portland Orthopaedics Ltd., 2018 WL 5892666 (D.N.M. Nov. 9, 2018) (New Mexico) (prescription medical product liability). Motion to dismiss granted. Where in-state plaintiff had surgery out of state, no specific jurisdiction over component manufacturer under stream of commerce theory. Component manufacturer had no in-state relationship with plaintiff or the manufacturer of the device. Jurisdictional discovery denied.
Morrison v. Ross Stores, Inc., 2018 WL 59820064 (N.D. Cal. Nov. 14, 2018) (California) (non-product liability). Motion to dismiss granted. That defendant had an in-state distributor for its products did not establish specific jurisdiction over the manufacturer defendant. Plaintiff did not buy the product in state or from that distributor.
Wagner v. Terumo Medical Corp., 2018 WL 6075951 (S.D. Cal. Nov. 21, 2018) (California) (prescription medical product liability). Motion to dismiss granted. Corporate designation of an agent for service of process and registration to do business is not consent to general personal jurisdiction. No specific jurisdiction based on product sold before defendant bought the rights to that product.
Roy v. FedEx Ground Package Systems, Inc., 353 F. Supp.3d 43 (D. Mass. Nov. 27, 2018) (Massachusetts) (non-product liability). Nationwide FLSA class certification denied. BMS applies to FSLA collective actions. Out-of-state plaintiffs cannot obtain jurisdiction to sue an out of state defendant over actions occurring out of state. BMS restricts personal jurisdiction over claims of putative nonresident class members. “Similarity of claims, alone” is insufficient to exercise personal jurisdiction.
McClellan v. CSX Transportation, Inc., 2018 WL 6192192 (N.D. Ill. Nov. 28, 2018) (Illinois) (non-product liability). Motion to dismiss granted. In-state regional headquarters does not establish general jurisdiction. Corporate registration is not consent to general jurisdiction. That defendant’s vehicle may have originated in-state was not related to anything that caused the out of state accident.
Ramirez v. Con-Way Multimodal, Inc., 2018 WL 6411276 (S.D.N.Y. Dec. 4, 2018) (New York) (non-product liability). Motion to dismiss granted. Automobile accident not caused by defendant’s registering vehicle in-state. Corporate registration is insufficient to establish general jurisdiction.
Carney v. Guerbet, LLC, 2018 WL 6524003 (E.D. Mo. Dec. 12, 2018) (Missouri) (prescription medical product liability). Transfer granted. That a non-resident pharmaceutical company researches, designs, tests, formulates, inspects, markets, or promotes a drug within the forum state are not enough to establish specific personal jurisdiction where the plaintiff did not suffer any in-state injury. Defendant’s alleged purchase of in-state subsidiary insufficient.
Osiris Therapeutics, Inc. v. MiMedx Group, Inc., 2018 WL 6573099, at *4 (D. Md. Dec. 13, 2018) (Maryland) (non-product liability). Motion to dismiss granted. In-state production of one component of a competing product insufficient. Purchase of in-state subsidiary insufficient where subsidiary was always a separate entity.
Imerys Talc America, Inc. v. Ricketts, 262 So.3d 799 (Fla. App. Dec. 19, 2018) (Florida) (product liability-non-drug/device). Denial of motion to dismiss reversed. An out of state sale of a product to an out of state buyer cannot be an in-state contact. Awareness that a component would be in a product and sold in a forum cannot, without more, establish specific personal jurisdiction. Rejecting stream of commerce jurisdiction.
Dykes v. BNSF Railway Co., 2018 WL 6696686 (W.D. Wash. Dec. 20, 2018) (Washington) (non-product liability). Motion to dismiss granted. None of the defendant’s contacts with Washington were the but for cause of an accident that occurred in a different jurisdiction.
Sonterra Capital Master Fund, Ltd. v. Barclays Bank PLC, 2018 WL 6725387 (S.D.N.Y. Dec. 21, 2018) (New York) (non-product liability). Motion to dismiss granted. Banking registration is not like general corporate registration, and even if it were, conferring general jurisdiction would be unconstitutional.
KeraLink International, Inc. v. Stradis Healthcare LLC, 2018 WL 6790305 (D. Md. Dec. 26, 2018) (Maryland) (prescription medical product liability). Motion to dismiss granted. No stream of commerce jurisdiction without purposeful availment. In-state sales of other products not case-related contacts. Sale of products to national retailers does not create purposeful availment inn every state where those retailers sell. Website selling other products is irrelevant. Jurisdictional discovery denied.
In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 358 F. Supp.3d 418 (E.D. Pa. Jan. 7, 2019) (Florida) (prescription medical product liability). Motion to dismiss granted in two cases. “Arising from” means the injury must occur in-state. Plaintiffs used the product in another state and were injured there, therefore they suffered no in-state injury even though they were generally in-state residents. Defendant’s in-state activities not involving the alleged injury-causing product were not jurisdictional contacts. Transfer denied, as MDL courts can only return cases to the transferor court and that court lacks jurisdiction.
In re Amiodarone Cases, 2019 WL 235339, slip op. (Cal. Super. Jan. 10, 2019) (California) (prescription medical product liability). Motion to quash service granted. Several hundred non-resident plaintiffs who took drug and suffered their alleged injuries in other states could not rely on various provisions of the defendants’ contracts with an in-state distributor to establish case-related jurisdiction. The clauses did not pertain to their product liability suits, nor were plaintiffs intended third-party beneficiaries. A defendant’s contacts with an in-state third party are insufficient to establish specific jurisdiction. Affirmed, 2020 WL 4355756, below.
Leppert v. Champion Petfoods USA, Inc., 2019 WL 216616 (N.D. Ill. Jan. 16, 2019) (Illinois) (product liability – non drug/device). Motion to dismiss granted in part. No specific jurisdiction over nonresident plaintiffs’ claims against foreign manufacturer under BMS. Plaintiffs “fail[ed] to identify any link” between the forum and their claims sufficient to comport with due process. Purchase of the same product and exposure to same marketing as residents insufficient for specific jurisdiction.
Goldstein v. Johnson & Johnson, 2019 WL 289290, slip op. (S.D. Fla. Jan. 21, 2019) (Florida) (prescription medical product liability). Motion to dismiss granted. Holding company has no in-state contacts. In-state use of trademarks insufficient to establish specific jurisdiction. Jurisdictional discovery denied.
Aybar v Aybar, 169 N.Y.S.3d 159 (N.Y. App. Div. Jan. 23, 2019) (New York) (product liability – non-drug/device). Motion to dismiss granted. No consent to general jurisdiction over nonresident manufacturers through registration to do business/appointment of agent for service. Prior contrary precedent no longer viable after Bauman. Jurisdictional discovery denied.
Pradaxa Cases, 2019 WL 1177510, slip op. (Cal. Super. Jan. 31, 2019) (California) (prescription medical product liability). Motion to quash service granted. All non-resident plaintiffs who took drug and suffered their alleged injuries in other states could not establish specific jurisdiction. Defendant’s 32 in-state clinical trial sites insufficient. Allegations about the conduct of the in-state trial had nothing to do with how the warnings were allegedly inadequate, and subsequent corrections had only a negligible effect on the warnings generally.
In re Dicamba Herbicides Litigation, 2019 WL 460500, at *5 (E.D. Mo. Feb. 6, 2019) (Missouri) (product liability – non drug/device). Motion to dismiss granted in part. Nationwide class action claims may not be maintained against a non-resident corporation. Non-resident class members cannot obtain jurisdiction over a non-resident corporation over non-forum injuries.
Marty v. Dave’s Wholesale Fireworks, 2019 WL 670344 (E.D. Mo. Feb. 19, 2019) (Missouri) (product liability – non-drug/device). Motion to dismiss granted. Non-resident defendant’s product marketing activities not targeted to the state insufficient where product was not sold in state. Standard of care inapplicable to advertisers. Marketing or labeling of a product, without purposeful direction in forum state insufficient. Making information available to potential customers insufficient.
Anaya v. Machines de Triage et Broyage, 2019 WL 1083783 (N.D. Cal. March 7, 2019) (California) (product liability – non-drug/device). Motion to dismiss granted, against third-party cross-complaint. No jurisdiction over a foreign defendant with no United States presence. No targeting of forum state. Conduct after the time of the relevant events is irrelevant. Third-party stream-of-commerce sales were not the actions of the defendant. Subsequent remedial measures after event giving rise to claims insufficient. Jurisdictional discovery denied.
Coates v. Ford Motor Co., 2019 WL 1118546 (D.V.I. March 11, 2019) (Virgin Islands) (product liability – non-drug/device). Denying motion to compel jurisdictional discovery unrelated to plaintiff. General jurisdiction discovery disproportionate where only specific jurisdiction is alleged. Interrogatories related to market share and forum related advertising insufficient.
Bakov v. Consolidated World Travel, Inc., 2019 WL 1294659 (N.D. Ill. March 21, 2019) (Illinois) (non-product liability). Nationwide class certification denied. No jurisdiction over nonresident putative class members asserting claims against nonresident corporation.
Seeley v. Caesars Entertainment Corp., 206 A.3d 1129 (Pa. Super. March 22, 2019) Pennsylvania) (non-product liability). Grant of preliminary objections affirmed. No automatic consent to personal jurisdiction by registration to do business. Defendant’s filing of preliminary objections demonstrated lack of consent. No alter ego.
Fisher v. BMW of North America, LLC, 2019 WL 1331978 (D. Colo. March 25, 2019) (Colorado) (product liability – non-drug/device). Motion to dismiss granted. Stream of commerce theory unavailable against a foreign manufacturer with no in-forum presence. Actions and sales of separate affiliates insufficient. Agency requires a showing of control. No alter ego.
Lawson v. Simmons Sporting Goods, Inc., 569 S.W.3d 865 (Ark. March 28, 2019) (Arkansas) (non-product liability) (unpublished). Affirming dismissal for lack of jurisdiction. No jurisdiction over nonresident defendant for nonresident plaintiff’s personal injury. In state advertising and promotional activities insufficient. Because jurisdiction must arise out of or relate to the defendant’s contacts with the forum state, this factor must outweigh all others. Prior test for specific personal jurisdiction, which weighted other factors equally, is no longer good law. Adopting new test for specific jurisdiction after BMS.
Schmitz v. Johnson & Johnson, 2019 WL 1574479 (Cal. Super. April 2, 2019) (California) (product liability – non drug/device). Motion to quash service granted. Plaintiff produced no evidence linking the product she used with the forum state. That facts were cited as absent in BMS does not establish that the presence of any of them is sufficient to establish specific jurisdiction. Nationwide product sales are irrelevant.
EnerQuest Oil & Gas, L.L.C. v. Antero Resources Corp., 2019 WL 1583921 (Tex. App. April 11, 2019) (Texas) (non-product liability). Overruling of special appearance reversed. In state registration to do business and conducting unrelated business insufficient to establish general jurisdiction. Actions of in-state third party insufficient to establish specific jurisdiction.
Vang v. State Farm Mutual Automobile Insurance Co., 2019 WL 1676150 (D. Ariz. April 17, 2019) (Arizona) (non-product liability). Motion to dismiss granted. No extraordinary case general jurisdiction. Alleged discrimination in handling out-of-state insurance claims did not arise from or relate to defendant’s in-state registration to do business, office complex, tax breaks, and stadium naming rights. In-state mail drop and actions after events at issue also insufficient. Jurisdictional discovery denied.
Zuehlsdorf v. FCA US LLC, 2019 WL 2098352 (C.D. Cal. April 30, 2019) (California) (non-product liability). Class action allegations involving out of state plaintiffs suing out of state defendant dismissed. No basis for specific jurisdiction alleged.
Cagle v. Rexon Industrial Corp., 2019 WL 1960360, at *5 (W.D. Okla. May 2, 2019) (Oklahoma) (product liability – non drug/device). Motion to dismiss granted. Stream of commerce jurisdiction no longer viable after BMS. That the defendant formerly waived jurisdiction in other litigation not relevant. Claims do not arise from or relate to either the defendant’s website or its customer service hotline. Jurisdictional discovery denied.
Pinkett v. Dr. Leonard’s Healthcare Corp., 2019 WL 1992904 (D.D.C. May 6, 2019) (District of Columbia) (product liability – non drug/device). Motion to dismiss granted. Where plaintiff did not purchase the product from a nearby store, the store’s existence could not establish specific jurisdiction. That other in-state buyers might use the store was not a case-linked contact.
Fullerton v. Smith & Nephew, Inc., 2019 WL 2028712 (E.D. Mo. May 8, 2019) (Missouri) (prescription medical product liability). Motion to dismiss granted. Missouri rejects general jurisdiction by consent based on registration to do business. Defendant’s extensive in-state sales of medical device insufficient to establish specific jurisdiction where plaintiff was not implanted with the device in the state, but only moved to the forum state after implantation. Alleged in-state failure of device was not connected to any in-state conduct by defendant, but only to plaintiff’s separate decision to move to the state.
Garvey v. American Bankers Insurance Co., 2019 WL 2076288 (N.D. Ill. May 10, 2019) (Illinois) (non-product liability). Nationwide class action allegations dismissed. No jurisdiction over nonresident putative class members asserting claims against nonresident corporation. Excusing possible waiver.
Golden Peanut Co., LLC v. Give & Go Prepared Foods Corp., 2019 WL 2098473 (Tex. App. May 14, 2019) (unpublished) (Texas) (non-product liability). Denial of motion to dismiss reversed. That a few percents of an allegedly contaminated load of raw product originated in-state insufficient. Amount was de minimus. Source of contamination not shown to be in-state.
In re Welspun Litigation, 2019 WL 2174089 (S.D.N.Y. May 20, 2019) (New York) (non-product liability). Motion to dismiss granted in part. No jurisdiction over claims relating to products purchased out-of-state by non-resident plaintiffs. Activities of related corporations insufficient.
Kellogg-Borchardt v. Mazda Motor Corp., 2019 WL 2189527, at *5 (D.N.M. May 21, 2019) (New Mexico) (product liability – non drug/device). Motion to dismiss granted. No specific jurisdiction without evidence that product came to be in the forum state as a result of some action of defendant targeted at this state. Jurisdictional discovery denied.
McDonald v. Kiloo Aps, 2019 WL 2211316 (N.D. Cal. May 22, 2019) (California) (non-product liability). Class action allegations involving out of state plaintiffs suing out of state defendants dismissed. In-state contract not a sufficient contact where plaintiffs were not parties to the contract.
Bryant v. Hasbro, Inc., 2019 WL 2211053 (M.D. Fla. May 22, 2019) (Florida) (non-product liability). Motion to dismiss granted. Registration to do business cannot establish general jurisdiction. Allegations of general in-state activities, such as a regional base, stores, and product delivery, without any specific connection to that alleged causes of action, cannot establish specific jurisdiction.
Hinkle v. Cirrus Design Corp., 775 F. Appx. 545 (11th Cir. May 23, 2019) (Florida) (product liability – non drug/device). Grant of motion to dismiss affirmed. Even if defendant’s in-state service network induced plaintiff to purchase the product, the alleged out of state accident did not arise from that service network, which never serviced the product. Product purchase was also out of state. Registration to do business did not create jurisdiction. Denial of jurisdictional discovery affirmed. Affirming 268 F. Supp.3d 1312, above.
Mitchell v. Depuy Orthopaedics, Inc., 2019 WL 2343847 (W.D. Mo. June 3, 2019) (Missouri) (prescription medical product liability). Motion to transfer granted. Out-of-state surgery did not relate to defendant’s in-state registration and activities. Plaintiffs never relied on any of defendant’s in-state marketing.
In re Asbestos Products Liability Litigation (No. VI), 384 F. Supp.3d 532 (E.D. Pa. June 6, 2019) (Pennsylvania) (product liability – non drug/device). Motion to dismiss granted. Bauman worked a sea change in general jurisdiction. The Pennsylvania statutory scheme requiring foreign corporations to register to do business and, therefore, to consent to “general” personal jurisdiction, offends the Due Process Clause and is unconstitutional. Pre-Bauman precedent, including the Third Circuit’s Bane v. Netflix decision, is no longer valid.
Timpone v. Ethicon, 2019 WL 2525780 (E.D. Mo. June 19, 2019) (Missouri) (prescription medical product liability). Motion to dismiss granted; motion to remand denied. 93 of 96 plaintiffs in misjoined multi-plaintiff complaint dismissed. No general jurisdiction. These plaintiffs do not allege that any of their specific devices were implanted in-state, nor that their devices were manufactured, marketed, advertised or promoted in the forum state. Remaining three plaintiffs had diverse citizenship.
Felix v. Novelis Corp., 446 P.3d 120 (Utah. App. June 20, 2019) (Utah) (product liability – non drug/device). Denial of motion to dismiss reversed. “Advertising” by adding the company’s name and logo to a package insufficient to establish specific jurisdiction.
Sivilli v. Wright Medical Technology, Inc., 2019 WL 2579794 (S.D. Cal. June 24, 2019) (California) (prescription medical product liability). Motion to dismiss granted. Defendant, a holding company, did not market or sell the device, and did not even have FDA clearance. No alter ego or agency.
Williams v. Takeda Pharmaceuticals America, Inc., 2019 WL 2615947 (E.D. Pa. June 26, 2019) (Pennsylvania) (prescription medical product liability). Motion to dismiss granted in part and denied in part. Bad on jurisdiction by consent. Specific jurisdiction does not exist where the plaintiff was not prescribed the drug, and did not purchase, ingest, or suffer injury from the drug in state. Plaintiff’s claims are not connected to defendant’s alleged in-state “researching, designing, formulating, compounding, testing, manufacturing, producing, processing, assembling, inspecting, distributing, marketing, labeling, promoting, packaging, and/or advertising” the drug.
Mondul v. Biomet, Inc., 2019 WL 2619541 (W.D. Va. June 26, 2019) (Virginia) (prescription medical product liability). Motion to dismiss granted. Registration to do business cannot establish general jurisdiction. Promotion and marketing allegations, not tied to plaintiff’s physician, insufficient, even if some occurred in-state.
Facebook, Inc. v. K.G.S., 294 So.3d 122 (Ala. June 28, 2019) (Alabama) (non-product liability). Denial of motion to dismiss reversed. In-state registration to do business insufficient. Any precedent that general jurisdiction could be based only on a defendant corporation doing business in the forum state is obsolete.
In re New York City Asbestos Litigation, 2019 WL 3063794 (N.Y. Sup. July 12, 2019) (New York) (product liability – non-drug/device). Motion to dismiss granted. No in-state exposure or injuries from any in-state business transaction.
In re New York City Asbestos Litigation, 2019 WL 3080947 (N.Y. Sup. July 15, 2019) (New York) (product liability – non-drug/device). Motion to dismiss granted. No specific jurisdiction where plaintiff only purchased, and was injured by, the product out of out-of-state. Sporadic in-state use of product purchased elsewhere insufficient. Non-case-specific allegations of concealment from other in-state persons insufficient.
State ex rel. Cedar Crest Apartments, LLC v. Grate, 577 S.W.3d 490 (Mo. July 16, 2019) (Missouri) (non-product liability). Mandamus granted requiring dismissal. Registration to do business insufficient by itself to support general or specific jurisdiction. In-state contacts do not involve plaintiff’s accident. Questioning continued validity of purposeful availment. No alter ego.
In re Aso, 2019 WL 3244151 (S.D.N.Y. July 19, 2019) (New York) (non-product liability). Application for third-party discovery denied. No consent to jurisdiction by registration to do business and appointment of agent.
Luevano v. Colonial Pipeline Co., 2019 WL 3252404 (S.D. Tex. July 19, 2019) (Texas) (product liability – non-drug/device). Motion to dismiss granted. Registration to do business cannot establish general jurisdiction. Involvement of in-state contractors and subcontractors insufficient absent contract or purposeful contact having something to do with plaintiff’s out-of-state injuries. Denial of jurisdictional discovery affirmed.
Singleton v. Senior Pharmatech, 2019 WL 3306522 (W.D. Pa. July 22, 2019) (Florida) (product liability – over-the-counter drug). Motion to dismiss third-party complaint granted. Third-party defendant provided no in-state services or products. Jurisdictional discovery denied.
Nolte v. Cec Entertainment, Inc., 2019 WL 4543102 (C.D. Cal. Aug. 2, 2019) (California) (product liability – non-drug/device). Motion to dismiss granted. Stream of commerce insufficient. Sales of unrelated products irrelevant. Contract for sale of product not negotiated or performed in forum state. No alter ego. Jurisdictional discovery denied.
Bradford Victor-Adams Mutual Insurance Co. v. Electrolux Home Products, Inc., 2019 WL 3604594 (C.D. Ill. Aug. 6, 2019) (Illinois) (product liability – non-drug/device). Motion to dismiss granted. No in-state design, manufacture, supply, or sale of the product. Registration to do business and in-state office and employees insufficient. Jurisdictional discovery denied.
Wise v. Wal-Mart Stores East, LP, 2019 WL 3769624 (N.D. Miss. Aug. 9, 2019) (Mississippi) (non-product liability). Motion to dismiss granted. Rejects general jurisdiction by consent through registration to do business/appointment of agent for service of process. Declining to follow Pennsylvania Fire.
Montgomery v. Air Serv Corp., 446 P.3d 659 (Wash. App. Aug. 12, 2019) (Washington) (non-product liability). Reversing denial of motion to dismiss. Unrelated business transactions in forum insufficient. The amount of non related business conducted in the forum is not a consideration after BMS. Specific jurisdiction is not flexible, and must arise from claim-specific forum contacts, regardless of any other contacts the nonresident defendant has with the forum state. Providing services in another state for an in-state resident insufficient. Jurisdictional contacts must be created by the defendant, not the plaintiff or third parties. Providing out-of-state services does not manifest any intention to submit to another state’s jurisdiction.
Rojas v. Hamm, 2019 WL 3779706 (N.D. Cal. Aug. 12, 2019) (California) (product liability – non-drug/device). Granting motion to dismiss after jurisdictional discovery. No purposeful availment allowing stream of commerce. Website and Proposition 65 compliance insufficient. No alter ego.
Andrade-Heymsfield v. Danone US, Inc., 2019 WL 3817948 (S.D. Cal. Aug. 14, 2019) (California) (non-product liability). Motion to dismiss granted. Multi-plaintiff class action complaint. No jurisdiction over no-residents’ class claims against nonresident corporation. Registration to do business cannot establish general jurisdiction. No pendant personal jurisdiction.
Bondurant v. 3M Co., 2019 WL 3842007 (E.D. La. Aug. 15, 2019) (Louisiana) (product liability – non-drug/device). Motion to dismiss granted in asbestos action. No in-state exposure or injuries, therefore in-state presence irrelevant. Alleged duty owed to plaintiff insufficient for specific jurisdiction, since plaintiff cannot be sole link. No consent jurisdiction through registration to do business and appointment of an agent. Contrary to prior precedent no longer viable after Bauman. Jurisdictional discovery denied.
In re New York City Asbestos Litigation, 2019 WL 3944486. (N.Y. Sup. Aug. 20, 2019) (New York) (product liability – non-drug/device). Motion to dismiss granted. No specific jurisdiction where plaintiff only obtained and was injured by the product out of out-of-state.
Best v. Guthrie Medical Group, P.C., 107 N.Y.S.3d 258 (N.Y. App. Div. 2019) (New York) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through hospital or physician licensure.
M.J. v. Ford Motor Co., 2019 WL 4194372 (E.D. Mo. Sept. 4, 2019) (Missouri) (product liability – non-drug/device). Motion to dismiss granted. Registration to do business and appointment of agent, sales of product to others insufficient for general jurisdiction. Allegations concerning a product designed, manufactured and sold out of state, and brought into state by plaintiff, did not relate to defendant’s forum conduct. In-forum sales of similar products could not support stream of commerce jurisdiction after BMS. Injury in forum state insufficient.
Hartford Fire Insurance Co. v. Maersk Line, 2019 WL 4450639 (S.D.N.Y. Sept. 17, 2019) (New York) (non-product liability). Motion to dismiss granted. No consent to general jurisdiction through registration to do business and appointment of agent. Contrary prior precedent no longer viable after Bauman.
Aybar v Goodyear Tire & Rubber Co., 2019 WL 4458609, 106 N.Y.S.3d 361 (mem.) (N.Y.A.D. Sept. 18, 2019) (New York) (product liability – non-drug/device). Motion to dismiss granted. No consent to general jurisdiction through registration to do business and appointment of agent for service.
In re Nissan North America, Inc. Litigation, 2019 WL 4601557 (N.D. Cal. Sept. 23, 2019) (California) (non-product liability). Granting motion to transfer. Multi-plaintiff class action complaint. Non-resident plaintiffs failed to identify link between forum and their claims, since they did not buy the products there. In-state research facility insufficient. Venue must be transferred to forum with jurisdiction over all claims. Jurisdictional discovery denied.
Baldwin v. Athens Gate Belize, LLC, 2019 WL 4674332 (D. Colo. Sept. 24, 2019) (Colorado) (non-product liability). Motion to dismiss granted. An widely available interactive website does not automatically confer specific or general jurisdiction. That would allow jurisdiction in many places, constituting a form of “loose and spurious” general jurisdiction rejected by BMS.
Thompson v. Ford Motor Co., 2019 WL 4645446 (D. Colo. Sept. 24, 2019) (Colorado) (product liability – non-drug/device). Motion to dismiss granted. Allegations concerning a product designed, manufactured and sold out of state, and brought into state by plaintiff, did not relate to defendant’s forum conduct. In-forum sales of similar products could not support stream of commerce jurisdiction after BMS. Injury in forum state insufficient. Jurisdictional discovery denied.
McClung v. 3M Co., 2019 WL 4668053 (D. N.J. Sept. 25, 2019) (New Jersey) (product liability – non-drug/device). Motions to transfer granted in asbestos action. As to two defendants, no in-state exposure or injuries, therefore other in-state presence irrelevant. Non-resident plaintiff exposed out of state. Presence of asbestos products made by others and purchased out of state insufficient.
Payrovi v. LG Chem America, Inc., 2020 WL 5798375 (N.D. Cal. Sept. 29, 2020)
Jovanovich v. Indiana Harbor Belt R.R. Co., 2020 WL 5843957 (Ill. App. Sept. 30, 2020) (Illinois) (non-product liability). Grant of motion to dismiss affirmed. In-state destination for items involved in out-of-state accident insufficient. Destination was fortuitous. In-state presence of a majority of defendant’s overall business insufficient to establish general jurisdiction.
Chavira v. OS Restaurant Services, LLC, 2019 WL 4769101 (D. Mass. Sept. 30, 2019) (Massachusetts) (non-product liability). Multi-plaintiff class action complaint. Motion to strike non-resident class action allegations granted in federal action under Fifth Amendment. No nationwide service of process. BMS applies to all cases, including class actions.
Goodell v. Bayer Healthcare Pharmaceuticals, Inc., 2019 WL 4771136 (D. Mass. Sept. 30, 2019) (Massachusetts) (prescription medical product liability). Motion to dismiss granted. Resident plaintiff cannot plausibly allege specific personal jurisdiction without pleading that the product was used or caused injury in the forum state. Alleged in-state activities have no nexus to the plaintiff’s injuries without such allegations. Plaintiff may amend, if jurisdictional facts exist.
Zvelo, Inc. v. Check Point Software Technologies, Ltd., 2019 WL 4751821 (D. Colo. Sept. 30, 2019) (Colorado) (non-product liability). Motion to dismiss granted. Plaintiff failed to establish that the action arose from defendant’s forum-specific activities. General nationwide allegations insufficient. Defendant’s interactive website is insufficient because it is no more directed to the forum state than to any other. Since any plaintiff could rely on such a website, that would be a loose and spurious form of general jurisdiction barred by BMS. Plaintiff’s action did not arise from anything having to do with defendant’s in-state office.
In re del Valle Ruiz, 939 F.3d 520 (2d Cir. Oct. 7, 2019) (New York) (non-product liability). Denial of third-party discovery affirmed. Due process standard apply equally to both non-parties and parties. Third party discovery can only be had of materials that were generated as a consequence of the target’s in-forum activities. Requestors failed to show the necessary causal connection to any of the materials being sought.
Holland v. Cook Group, Inc., 2019 WL 5073565 (W.D. Mo. Oct. 9, 2019) (Missouri) (prescription medical product liability). Motion to transfer granted. No waiver by not addressing jurisdiction in MDL, since no plaintiff-specific activity occurred, and motion promptly made after post-remand discovery revealed jurisdictional issue. Generalized doing business allegations insufficient. Product was not purchased, implanted, or alleged to cause injury in forum state.
In re National Hockey League Players’ Concussion Injury Litigation, 2019 WL 5079980 (D. Minn. Oct. 10, 2019) (Minnesota) (non-product liability). Motion to dismiss granted. Plaintiff and defendant are non-residents. Unless a defendant waives or modifies by stipulation, jurisdictional challenges to direct filed MDL actions are evaluated against the MDL forum state. Corporate jurisdictional principles apply to unincorporated associations. Plaintiff’s complaint does not concern any activity or occurrence that took place in the forum State. Plaintiff never played for the defendant’s team in the forum state, or alleged injury from a game there, so that team is irrelevant.
In re National Hockey League Players’ Concussion Injury Litigation, 2019 WL 5088516 (D. Minn. Oct. 10, 2019) (Minnesota) (non-product liability). Motion to dismiss granted. Plaintiff and defendant are non-residents. Unless a defendant waives or modifies by stipulation, jurisdictional challenges to direct filed MDL actions are evaluated against the MDL forum state. Corporate jurisdictional principles apply to unincorporated associations. Plaintiff’s complaint does not concern any activity or occurrence that took place in the forum State. Plaintiff never played for the defendant’s team in the forum state, or alleged injury from a game there, so that team is irrelevant.
Rodriguez v. West Coast Aircraft Maintenance, 2019 WL 5188794 (D. Ariz. Oct. 15, 2019) (Arizona) (product liability – non-drug/device). Motion to dismiss granted. That defendants were registered to do business in state and sold other products of the same nature insufficient where product at issue was not sold or serviced in state. Stream of commerce does not replace the general rule.
Allen v. Conagra Foods, Inc., 2019 WL 5191009 (N.D. Cal. Oct. 15, 2019) (California) (non-product liability). Motion to dismiss and transfer denied. None of non-resident class representatives have personal jurisdiction over the non-resident corporate defendant. BMS applies to class actions not involving federal claims.
Slemp v. Johnson & Johnson, 589 S.W.3d 92 (Mo. App. Oct. 15, 2019) (Missouri) (product liability – non-drug/device). Verdict reversed. Non-resident plaintiff had no basis for asserting jurisdiction over non-resident defendant after BMS. $110 million verdict vanishes.
Fekah v. Baker Hughes Inc., 110 N.Y.S.3d 1 (N.Y. App. Div. Oct. 17, 2019) (New York) (non-product liability). Grant of motion to dismiss affirmed. Registration to do business and designation of an agent to accept service is not constitute consent to submit to general jurisdiction.
Franklin v. Coloplast Corp., 2019 WL 5307085 (N.D.N.Y. Oct. 21, 2019) (New York) (prescription medical product liability). Motion to dismiss granted. No agency or alter ego between defendant parent and subsidiary. Defendant’s only in-state contacts occurred several years before plaintiff’s alleged injury. Holding and licensing patent insufficient.
Evans v. Wright Medical Technology, Inc., 2019 WL 5390548 (N.D. Ind. Oct. 21, 2019) (Indiana) (prescription medical product liability). Motion to dismiss granted. No jurisdiction over holding company or indirect parent. Separate corporate entities. No alter ego. Product defect could not possibly arise from any post-implantation contacts, so those contacts irrelevant. Operation of in-state research facility irrelevant to specific jurisdiction without link to product. Neither moving defendant “at home” to allow general jurisdiction.
Allen v. C.R. Bard, Inc., 2019 WL 5485023 (E.D. Mo. Oct. 22, 2019) (Missouri) (prescription medical product liability). Sua sponte order entered directing plaintiffs to consider transfer entered. Misjoined multi-plaintiff complaint is subject to jurisdictional challenge. The days of unrelated plaintiffs with no connection to a forum state suing out-of-state defendants for personal injuries in a state simply because defendants advertise or sell the product nationwide are over.
Gogel v. Maroulis, 2019 WL 5593280 (D. Md. Oct. 30, 2019) (Maryland) (product liability – non-drug/device). Introduction of goods into the state, through independent distributors, insufficient to establish specific jurisdiction. Registration to do business and appointment of agent for service do not create general jurisdiction.
Johnson v. UBS AG, 791 F. Appx. 240 (2d Cir. Nov. 7, 2019) (New York) (non-product liability). Affirming dismissal for lack of jurisdiction. No specific jurisdiction. In-state contacts unrelated to events giving rise to claim. Other in-state litigation insufficient. Conducting in-state business insufficient for general jurisdiction. Subject to in-state regulation insufficient. Denial of jurisdictional jurisdiction affirmed.
Whatley v. Ohio National Life Insurance Co., 2019 WL 6173500 (M.D. Ala. Nov. 19, 2019) (Alabama) (non-product liability). Motion to dismiss claims granted. Multi-plaintiff complaint. No consent to general jurisdiction through registration to do business and appointment of agent. In-state subsidiary and sales insufficient. No specific jurisdiction because non-residents’ claims did not arise in state.
Forero v. APM Terminals, 2019 WL 6168031 (D. N.J. Nov. 19, 2019) (New Jersey) (product liability – non-drug/device). Motion to dismiss granted. No allegations of any purposeful activity in forum. Group allegations not targeting any particular defendant insufficient.
Perez v. FCA United States, LLC, 2019 WL 6174434 (D. Colo. Nov. 20, 2019) (Colorado) (product liability – non-drug/device). Motion to dismiss granted. Occurrence of injury in forum insufficient, if, regardless “of the defendant’s forum-related activities” it would have happened anyway. In-state marketing, manufacture, sales, and distribution insufficient because unrelated to plaintiff’s injuries or in-state presence of the allegedly harm-causing product. No stream of commerce. Doe defendants do not affect jurisdiction.
Sloan v. General Motors LLC, 2019 WL 6612221 (N.D. Cal. Dec. 5, 2019) (California) (product liability – non-drug/device). Motion to dismiss out-of-state named plaintiff granted. Multi-plaintiff class action complaint. BMS applies to diversity cases in federal court, so no pendent party jurisdiction. In-state registration to do business, advertisements, sales to others, and commercial conduct insufficient as to out-of-state putative class representatives who made no in-state purchases. BMS applies to class actions.
Truinject Corp. v. Nestle Skin Health S.A., 2019 WL 6828984 (Mag. D. Del. Dec. 13, 2019) (Delaware) (non-product liability). Motion to dismiss recommended. No consent to jurisdiction based on forum selection clause, where defendant was not a party, third-party beneficiary, or “closely related” to signer of agreement containing the clause. “Closely related” theory may be unconstitutional for ignoring minimum contacts test. Indirect benefit insufficient. Jurisdictional discovery denial recommended.
Bailey v. Wyndham Vacation Ownership, Inc., 2019 WL 6836772 (N. D. Cal. Dec. 16, 2019) (California) (non-product liability). Motion to dismiss granted. Multi-plaintiff complaint. No consent to jurisdiction through registration to do business and appointment of agent. Sufficient in-state connection absent where plaintiffs, even if in-state residents, entered out-of-state contracts to make out-of-state purchases. No supplemental jurisdiction over state law claims.
Stehle v. Venture Logistics, LLC, 2020 WL 127707 (S.D. Ohio Jan. 10, 2020) (Ohio) (non-product liability). Motion to transfer for lack of personal jurisdiction granted. No consent to jurisdiction through registration to do business and appointment of agent for service. Contrary prior precedent no longer valid after Bauman. In-state business insufficient. No exceptional case.
In re Legal Aid Society of Suffolk County, 2020 WL 399189 (N.Y. Sup. Jan. 22, 2020) (New York) (non-product liability). Motion to dismiss granted. No consent to jurisdiction through registration for business and appointment of agent for service. Pre-complaint discovery requires personal jurisdiction.
Boris v. Atrium Medical Corp., 2020 WL 589440 (S.D.N.Y. Feb. 6, 2020) (New York) (prescription device product liability). Motion to dismiss granted. No consent to jurisdiction through registration to business and appointment of agent. No jurisdiction because defendant was an intermediary in chain of distribution for this type of product.
Bustamante v. Atrium Medical Corp., 2020 WL 583745 (S.D.N.Y. Feb. 6, 2020) (New York) (prescription device product liability). Motion to dismiss granted. No consent to jurisdiction through registration to business and appointment of agent. No jurisdiction because defendant was an intermediary in chain of distribution for this type of product.
Lugones v. Pete & Gerry’s Organic, LLC, 440 F. Supp.3d 226 (S.D.N.Y. Feb. 21, 2020) (New York) (non-product liability). Motion to dismiss granted. BMS applies to class actions. Each named plaintiff in a purported class action must show that in-state contacts specific to their claim give rise to specific jurisdiction over an out-of-state defendant.
Gebel v. Ethicon, Inc., 2020 WL 888729 (E.D. Mo. Feb. 24, 2020) (Missouri) (prescription medical product liability). Motion to dismiss granted; motion to remand denied. Considering personal jurisdiction first. 86 of 97 plaintiffs in misjoined multi-plaintiff complaint dismissed. No general jurisdiction. None of plaintiffs’ devices were implanted in-state. Similar injuries to other, in-state plaintiffs insufficient. Indistinguishable from Timpone. Remaining eleven plaintiffs had diverse citizenship.
Reynolds v. Turning Point Holding Co., 2020 WL 953279 (E.D. Pa. Feb. 26, 2020) (Pennsylvania) (non-product liability). Motion to dismiss granted. The Pennsylvania long arm statute is unconstitutional to the extent it authorizes general jurisdiction based solely on corporate registration.
Lanham v. BNSF Railway Co., 939 N.W.2d 363 (Neb. Feb. 28, 2020) (Nebraska) (non-product liability). Reversing denial of motion to dismiss. The concept of obtaining general jurisdiction by consent through corporate registration to do business is obsolete and does not survive Bauman. General jurisdiction can only be exercised over corporations “at home” in the state. Extent of defendant’s in-state business operations does not create an “exceptional” case allowing general jurisdiction.
Fidrych v. Marriott International, Inc., 952 F.3d 124 (4th Cir. March 2, 2020) (South Carolina) (non-product liability). Affirming dismissal for lack of jurisdiction. No consent to jurisdiction through registration to do business and appointment of agent for service. Registration does not automatically constitute personal jurisdiction. Management of 90 in-state properties not enough where plaintiff’s claim had nothing to do with any of them. Interactive website insufficient.
Carpenter v. PetSmart, Inc., 441 F. Supp.3d 1028 (S.D. Cal. March 2, 2020) (California) (non-product liability). Motion to dismiss granted. BMS applies to class actions. A state cannot assert specific jurisdiction over a nonresident defendant for claims of unnamed class members where it could not assert jurisdiction over identical individual claims. Out of state purchasers from an out of state defendant have insufficient in-state contacts. Rule 23 protects plaintiffs, whereas personal jurisdiction protects defendants. Nationwide class actions have to be filed where general jurisdiction exists.
Bates v. Triumph Engine Control Systems, LLC, 2020 WL 1656213, at *2 (Conn. Super. March 4, 2020) (Connecticut) (product liability – non-drug/device). Motion to dismiss granted. General personal jurisdiction is governed by whether the defendant is “at home” in the jurisdiction on the date the litigation was commenced, not the date of the events alleged in the complaint.
Hood v. American Auto Care, LLC, 2020 WL 1333091 (D. Colo. March 23, 2020) (Colorado) (non-product liability). Motion to dismiss granted. Even though defendant made lots of other allegedly illegal in-state telemarketing calls, the call plaintiff received was to telephone number not having an in-state area code. No in-state nexus to the plaintiff’s claim. Jurisdictional discovery denied.
First National Bank v. Estate of Carlson, 448 F. Supp.3d 1091 (D. Mont. March 24, 2020) (Montana) (non-product liability). Defendant’s registration to do business cannot subject it to general jurisdiction. No specific jurisdiction where transaction did had nothing to do with the state.
Vantage Mobility Int’l LLC v. Kersey Mobility LLC, 2020 WL 1432835 (D. Ariz. March 24, 2020) (Arizona) (non-product liability). Motion to dismiss granted. Defendant’s registration to do business cannot subject it to general jurisdiction. Forum selection clauses in contracts not at issue are insufficient for specific jurisdiction. Jurisdictional discovery denied.
Olivia v. Airbus Americas, Inc., 2020 WL 1451972 (N.D. Ohio March 25, 2020) (Ohio) (product liability – non-drug/device). Motion to dismiss granted. Plaintiff failed to show any forum activity by defendant. Specific jurisdiction cannot be established on the forum contacts of the plaintiff or third parties. Stream of commerce jurisdiction cannot be based on mere foreseeability. Jurisdictional discovery denied.
Barnes v. Kumho Tire U.S.A., Inc., 2020 WL 1492791 (E.D. Ark. March 25, 2020) (Arkansas) (product liability – non-drug/device). Motion to dismiss granted. That a third party sold products that used defendant’s product into the state was insufficient. Without personal jurisdiction over his own claims, plaintiff could not base jurisdiction on claims of absent class members.
Henry v. Angelini Pharma, Inc., 2020 WL 1532174 (E.D. Cal. March 31, 2020) (California) (prescription medical product liability). Motion to dismiss granted; motion to transfer denied. No specific jurisdiction over branded defendant in innovator liability case. Branded defendant had no case-linked contacts with state. Selling a different drug than the plaintiff took to others is not “related to” this case. Transfer denied because a defendant’s interactions with the FDA are not related to any particular case. To rule otherwise would create a “national supercourt” and violate due process.
Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492 (2d Cir. March 31, 2020) (New York) (non-product liability). Grant of motion to dismiss affirmed. The act of registering to do business under does not constitute consent to general personal jurisdiction. Affirming 2018 WL 9346682, above.
Henry v. Angelini Pharma, Inc., 2020 WL 1532174 (E.D. Cal. March 31, 2020) (California) (prescription medical product liability). Motion to dismiss granted. Plaintiff asserting innovator liability had no basis for personal jurisdiction over non-resident branded manufacturer. Defendant engaged in no relevant in-state conduct. In-state sales of other drugs to other people are insufficient.
Napoli-Bosse v. General Motors LLC, 453 F. Supp.3d 536 (D. Conn. April 6, 2020) (Connecticut) (product liability – non-drug/device). Motion to dismiss granted. BMS applies equally in state and federal court. Each named plaintiff in a purported class action must show that in-state contacts specific to their claim give rise to specific jurisdiction over an out-of-state defendant.
White v. Steak N Shake, 2020 WL 1703938 (E.D. Mo. Apr. 8, 2020) (Missouri) (non-product liability). Motion to dismiss granted. All non-residents from multi-plaintiff complaint dismissed. Due process is the same whether the action involves a federal or state law question. No consent to general jurisdiction through registration to do business and appointment of agent.
Goldstein v. General Motors LLC, 445 F. Supp.3d 1000 (S.D. Cal. April 13, 2020) (California) (non-product liability). Motion to dismiss granted. Each named plaintiff in a purported class action must show that in-state contacts specific to their claim give rise to specific jurisdiction over an out-of-state defendant. Named plaintiffs must demonstrate that the exercise of personal jurisdiction satisfies due process.
iMed Technology, Inc. v. Teleflex, Inc., 2020 WL 2106354 (Mag. N.D. Tex. April 13, 2020) (Texas) (non-product liability). Adopting magistrate’s recommendation, 2020 U.S. Dist. LEXIS 78537. Motion to dismiss granted. Contracting with an in-state entity insufficient where both formation and performance of the contract occurred elsewhere. No consent to general jurisdiction registration to do business and appointment of agent. Adopted 2020 WL 2104174 (N.D. Tex. May 1, 2020).
Shifchik v. Wyndham Worldwide Corp., 2020 WL 1866942 (N.J. Super. App. Div. April 14, 2020) (New Jersey) (non-product liability). Grant of motion to dismiss affirmed. Registration to do business is not constitute consent to submit to the general jurisdiction. Defendant’s in-state contacts are unrelated to plaintiff’s accident, defeating specific jurisdiction.
Chen v. United States Sports Academy, Inc., 956 F.3d 45 (1st Cir. April 15, 2020) (Massachusetts) (non-product liability). Grant of motion to dismiss affirmed. A highly interactive website and learning platform accessible in-state is insufficient for specific jurisdiction, absent the site specifically targeting the state. The universality of websites in the modern world cannot overcome constitutional limitations on the exercise of personal jurisdiction.
Skylift, Inc. v. Nash, 2020 WL 1879655 (Tex. App. April 16, 2020) (Texas) (product liability – non-drug/device). Denial of motion to dismiss reversed. Defendant’s in-state purchases of component parts insufficient where none of the parts were on the product in question.
Winters v. Akzo Nobel Surface Chemistry, LLC, 2020 WL 1986456, at *4 (E.D. Pa. April 27, 2020) (Pennsylvania) (product liability – non-drug/device). Motion to dismiss granted. Contracts with two in-state companies insufficient, even though they involved the transaction at issue. The relevant contacts were by the third-party contractors, not the defendant. The third-parties’ relationship to the transaction was all out of state.
Martin v. Grech Motors, Inc., 2020 WL 2091003, slip op. (Ariz. Super. April 28, 2020) (Arizona) (product liability – non-drug/device). Motion to dismiss granted. No general jurisdiction through registration to do business and appointment of agent for service. In-state sale of other products without some causal nexus to plaintiff’s injury is insufficient. Submissions to the FDA are not jurisdictional contacts in the state where the FDA is located. Location of a governmental agency is fortuitous, and not the basis for creating a national “supercourt.”
Alexander v. Bayerische Motoren Werke AG, 2020 WL 2098108 (D.S.C. May 1, 2020) (South Carolina) (product liability – non-drug/device). Motion to dismiss granted. No general jurisdiction by alter ego or agency. In-state manufacturing facility insufficient where plaintiff’s product not manufactured there. Unrelated in-state activities not “something more” for purposes of stream of commerce. Plaintiff did not purchase product in-state. Jurisdictional discovery denied.
Coates v. Ford Motor Co., 2020 WL 2499050 (D.V.I. May 14, 2020) (Virgin Islands) (product liability – non-drug/device). Motion to transfer granted. A non-resident defendant’s generic nationwide advertising campaign is insufficient to establish specific jurisdiction, even where a resident plaintiff claims to have been influenced. No in-state purchase of the product. In-state recall-related repairs insufficient where unrelated to the litigation.
Willis v. RhinoAg, Inc., 2020 WL 2529842 (W.D. Tenn. May 18, 2020) (Tennessee) (prescription medical product liability). Motion to dismiss granted. In-state sale by third persons of product containing defendant’s component part insufficient. Defendant’s manufacture and sale of component was out of state. No plus factor justifying stream of commerce.
Brown v. Aero Global Logistics, LLC, 2020 WL 2527799 (D. Mass. May 18, 2020) (Massachusetts) (non-product liability). Motion to dismiss granted. Communications with plaintiff’s in-state employer were insufficient where the subject of the communications were not related to the incident at suit. Defendant’s purchases occurred through third-party software and were only fortuitously directed to plaintiff’s in-state employer.
Arkansas Nursing Home Acquisition, LLC v. CFG Community Bank, 460 F. Supp.3d 621 (D. Md. May 19, 2020) (Maryland) (non-product liability). Motion to dismiss granted. Registration to do business is not a basis for general jurisdiction.
Story v. Heartland Payment Sys., LLC, 2020 WL 2559755 (M.D. Fla. May 20, 2020) (Florida) (non-product liability). Motion to dismiss granted. Non-resident class representatives dismissed. No in-state actions. Pendent party jurisdiction unavailable where personal jurisdiction lacking.
Alulis v. Container Store, Inc., 2020 WL 2556946 (E.D. Pa. May 20, 2020) (Pennsylvania) (product liability – non-drug/device). Motion to dismiss granted. Contacts between a non-resident defendant and an in-state distributor insufficient. Defendant’s doing business with other in-state businesses insufficient. Jurisdictional discovery denied. The sheer number of products sold nationwide does not create any in-state contact through foreseeability.
State ex rel. LG Chem, Ltd. v. McLaughlin, 599 S.W.3d 899 (Mo. June 2, 2020) (Missouri) (product liability – non-drug/device). Writ of prohibition against denial of motion to dismiss granted. A third-party’s unilateral distribution of the defendant’s product into the state is insufficient to establish specific jurisdiction.
LNS Enterprises LLC v. Continental Motors, Inc., 464 F. Supp.3d 1065 (D. Ariz. June 3, 2020) (Arizona) (product liability – non-drug/device). Motion to dismiss granted. In-state service centers insufficient absent evidence that product at issue was serviced. Publishing internet service bulletins insufficient. Jurisdictional discovery denied. Affirmed, 22 F.4th 852, below.
Rios v. Bayer Corp., ___ N.E.3d ___, 2020 WL 2963318, slip op. (Ill. June 4, 2020) (Illinois) (prescription medical product liability). Denial of motion to dismiss reversed. Non-resident plaintiff cannot assert specific jurisdiction over non-resident defendant for injuries suffered in their home states. No surgeries, product purchase, or any other individual in-state contacts. Defendant’s general in-state activity, clinical trials, marketing, and physician training, had no factual connection to their cases. No jurisdiction over manufacturing defect claim where product not manufactured in-state.
Saunders v. San Juan Construction Co., 2020 WL 3052206 (D. Haw. June 8, 2020) (Hawai’i) (non-product liability). Motion to transfer granted. Registration to do business, in-state office, and other projects insufficient to establish general jurisdiction.
Crockett v. Luitpold Pharmaceuticals, Inc., 2020 WL 3096527 (E.D. Pa. June 11, 2020) (Pennsylvania) (prescription medical product liability). Motion to dismiss foreign defendants granted. Stream of commerce is not a basis for personal jurisdiction. Cooperation with other, in-state defendant, including signing licensing agreement insufficient. No activity is relevant to plaintiff’s particular case. Jurisdictional discovery denied.
Stirling v. Novartis Pharmaceuticals Corp., 2020 WL 4259035, slip op. (Idaho Dist. July 13, 2020) (Idaho) (prescription medical product liability). Motion to dismiss granted. Plaintiff asserting innovator liability had no basis for personal jurisdiction over non-resident branded manufacturer. Defendant’s in-state conduct concerned a different product and was remote in time from plaintiff’s use.
Peerless Insurance Co. v. Broan-Nutone, LLC, 2020 WL 4194457 (W.D.N.Y. July 21, 2020) (New York) (product liability – non-drug/device). Motion to dismiss granted. Unrelated product lines do not count for stream of commerce. Website activity insufficient. Neither past nor present registration to do business can establish specific jurisdiction. Jurisdictional discovery denied.
In re Amiodarone Cases, 2020 WL 4355756 (Cal. App. July 30, 2020) (California) (prescription medical product liability). Quashing of service affirmed. Multi-plaintiff complaints. Jurisdiction could not be based on derivative liability from indemnification agreements with in-state distributor to which plaintiffs were not party. There was no joint duty to distribute medication guides nationwide. No general nationwide jurisdiction arises from an in-state distributor’s unilateral distribution decisions, even if using in-state facilities. No entitlement to any more jurisdictional discovery. Affirming, 2019 WL 235339, above.
Gamboa v. Great Lakes Dredge & Dock Co., LLC of Louisiana, 2020 WL 4373111 (M.D. La. July 30, 2020) (Louisiana) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of an agent for service of process is insufficient to establish general jurisdiction. No exceptional case.
Yamashita v. LG Chem, Ltd., 2020 WL 4431666 (D. Haw. July 31, 2020) (Hawaii) (product liability-non-drug/device). Motion to dismiss granted. No specific jurisdiction under stream of commerce theory. Stream of commerce is not a valid jurisdictional theory. Defendant not responsible for product’s in-state presence. Only contacts created by the defendant matter. Attending unrelated in-state events insufficient. Jurisdictional discovery denied.
Hernandez v. Equifax Information Services LLC, 2020 WL 4584249 (Mag. W.D.N.C. Aug. 10, 2020) (North Carolina) (non-product liability). Multi-plaintiff complaint. Recommending grant of motion to dismiss of non-resident plaintiffs. Non-residents cannot obtain jurisdiction over non-resident defendant concerning non-forum state events.
Farrar v. McFarlane Aviation, Inc., 823 F. Appx. 161 (4th Cir. Aug. 18, 2020) (West Virginia) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Defendant had no control over where third parties, including plaintiff would take the product. Government-mandated communications with in-state plaintiffs are not purposeful availment. Plaintiff’s claimed in-state contacts were incidental and attenuated.
Butler v. Daimler Trucks N. Am., LLC, 2020 WL 4785190 (D. Kan. Aug. 18, 2020) (Kansas) (product liability-non-drug/device). Motion to dismiss granted. No specific jurisdiction under stream of commerce theory. No targeting of the state. Defendant’s in-state contacts were unrelated to the accident. No alter ego. A subsidiary’s registration to do business cannot be imputed to a parent company.
FedEx Corp. v. Contreras, 2020 WL 4808721, at *8 (Tex. App. Aug. 19, 2020) (Texas) (non-product liability). Denial of motion to dismiss reversed. Registration to do business and appointment of agent for service of process is not consent to general personal jurisdiction.
Clarke Veneers & Plywood, Inc. v. Mentakab Veneer & Plywood, SDN BHD, 821 F. Appx. 243, 244 (4th Cir. Aug. 25, 2020) (Maryland) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Specific jurisdiction over non-resident seller could not be established based on in-state product storage where location chosen solely by plaintiff.
Aldrich v. National Collegiate Athletic Ass’n, 484 F. Supp.3d 779 (N.D. Cal. Sept. 3, 2020) (California) (non-product liability). Motion to dismiss granted. No specific jurisdiction based on non-resident defendant’s failure to act. Theory would improperly subject defendant to specific jurisdiction everywhere in the country.
Matthews v. United HealthCare Services, Inc., 2020 WL 5411698 (N.D. Tex. Sept. 9, 2020) (Texas) (non-product liability). Motion to dismiss granted. Registration to do business does not create general jurisdiction. Non-resident’s decision to seek in-state medical treatment insufficient for specific jurisdiction.
Zim Integrated Shipping Services Ltd. v. Bellwether Design Technologies LLC, 2020 WL 5503557 (S.D.N.Y. Sept. 10, 2020) (New York) (non-product liability). Motion to dismiss granted. Registration to do business does not create general jurisdiction. Conducting similar in-state business with third persons insufficient for specific jurisdiction.
Kimmons v. Autozone, Inc., 2020 WL 5506446 (E.D. Ark. Sept. 11, 2020) (Arkansas) (product liability-non-drug/device). Motion to dismiss granted. No specific jurisdiction under stream of commerce theory. No targeting of the state by defendant. Being the exclusive supplier of raw material to a product manufacturer is not enough to create specific personal jurisdiction in every state where the manufacturer sells its product.
Bissey v. Skyjack, Inc., 2020 WL 6266015, at *1 (E.D. Pa. Sept. 11, 2020) (Pennsylvania) (product liability-non-drug/device). Motion to dismiss granted. In-state injury insufficient where none of defendant’s other in-state contacts related to this product, and defendant did not sell the product in the state, and it was brought into state by third party.
National Casualty Co. v. KT2 LLC, 2020 WL 5544152 (N.D. Tex. Sept. 16, 2020) (Texas) (non-product liability). Motion to dismiss granted. In-state registration under Motor Carrier Act is not consent to general jurisdiction. Citizenship of in-state plaintiffs in underlying litigation was not related to insurance coverage litigation.
Wiggins v. Bank of America, ___ F. Supp.3d ___, 2020 WL 5642422 (S.D. Ohio Sept. 22, 2020) (Ohio) (non-product liability). Motion to dismiss granted. No specific jurisdiction over non-resident class representative’s claims against non-resident defendant. No pendent jurisdiction.
BNSF Railway Co. v. United Metallurgical Co., 2020 WL 6268481 (S.D. Iowa Sept. 23, 2020) (Iowa) (product liability-non-drug/device). Motion to dismiss granted. In-state use of reconditioned products, previously used by others, is insufficient, even under stream of commerce. In-state product presence fortuitous.
Rawls v. Old Republic General Insurance Group, Inc., ___ F. Supp.3d ___, 2020 WL 6374621 (S.D. Tex. Sept. 25, 2020) (Texas) (product liability-non-drug/device). Motion to dismiss granted. Registration to do business, even with substantial actual business, not a basis for general jurisdiction. Product being used by its buyer after out-of-state purchase is no longer in stream of commerce. Jurisdictional discovery denied.
Agape Broadcasters Inc. v. Estate of Sampson through Matix, ___ F. Supp.3d ___, 2020 WL 5806616 (W.D. La. Sept. 28, 2020) (Louisiana) (product liability-non-drug/device). Motion to dismiss granted. In-state presence of product fortuitous. No product-specific in-state allegations. In-state sales of similar products to third parties insufficient. Product being used by its buyer after out-of-state purchase is no longer in stream of commerce.
Allied Insurance Co. v. JPaulJones L.P., ___ F. Supp.3d ___, 2020 WL 5801028 (E.D. Mo. Sept. 29, 2020) (Missouri) (non-product liability). Motion to dismiss granted. Internet website accessible to all but targeted at no one in particular insufficient. That in-state persons could select in-state options insufficient, as that choice was not made by defendant.
Richter v. LG Chem, Ltd., 2020 WL 5878017 (N.D. Ill. Oct. 2, 2020) (Illinois) (product liability-non-drug/device). Motion to dismiss granted. In-state sales of similar products to third parties insufficient. No stream of commerce.
FPK Services LLC v. Does 1-10, 2020 WL 5982061 (N.D. Cal. Oct. 8, 2020) (California) (non-product liability). Motion to dismiss granted. An out-of-state defendant’s alleged accessing of third party in-state internet servers and using an in-state messaging system for hacking and phishing of an in-state plaintiff is insufficient to establish specific jurisdiction. The in-state contacts were fortuitous.
Lee Contracting, Inc. v. Shore Western Manufacturing, 2020 WL 6193628 (W.D. Mich. Oct. 22, 2020) (Michigan) (non-product liability). Motion to dismiss granted. In-state temporary executive offices are insufficient to be an “exceptional case” supporting general jurisdiction, where the defendant also maintained a separate out-of-state principal place of business. (non-product liability). Motion to dismiss granted.
Ashhab-Jones v. Cherokee Nation Strategic Programs, LLC, 2020 WL 6262090 (D.D.C. Oct. 23, 2020) (District of Columbia) (non-product liability). Motion to dismiss granted. Registration to do business and government contracts in the forum does not create general jurisdiction.
Malczuk v. Michaels Organization, 135 N.Y.S.3d 252 (N.Y. Sup. Oct. 23, 2020) (New York) (non-product liability). Motion to dismiss granted. Registration to do business does not create general jurisdiction by consent. In-state activity unrelated to the out-of-state accident insufficient for specific jurisdiction.
Walsh v. LG Chem Ltd., 834 F. Appx. 310 (9th Cir. Nov. 2, 2020) (Arizona) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Contacts with United States as a whole insufficient. No evidence of direct in-state sales, let alone of the product plaintiff purchased.
Shepler v. Big Sky Resort, 2020 WL 6786028 (Mag. D.N.J. Nov. 2, 2020), adopted, 2020 WL 6785647 (D.N.J. Nov. 17, 2020) (New Jersey) (non-product liability). Motion to transfer granted. Third-party articles insufficient. Injury cannot arise out of post-injury communications to in-state plaintiff. Interactive website insufficient to create jurisdiction anywhere in the world.
D.S. Brown Co. v. White-Schiavone, JV, ___ F. Supp.3d ___, 2020 WL 6526877, at *5 (D. Mass. Nov. 5, 2020) (Massachusetts) (product liability-non-drug/device). Motion to dismiss granted. Registration to do business insufficient to establish general jurisdiction. Product shipments to plaintiff outside state that plaintiff later transported and used in-state insufficient.
Penny v. Penn National Gaming, Inc., 2020 WL 6559407 (E.D. La. Nov. 9, 2020) (Louisiana) (non-product liability). Motion to dismiss granted. In-state advertising, even if inducing plaintiff’s business, insufficient to support general or specific jurisdiction where out-of-state injury is involved.
Shaneyfelt v. Norfolk Dredging Co., 2020 WL 6582276 (E.D. La. Nov. 10, 2020) (Louisiana) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to establish general jurisdiction.
Ackerman v. Howmedica Osteonics Corps., 2020 WL 6588358 (W.D. Mo. Nov. 10, 2020) (Missouri) (prescription medical product liability). Motion to dismiss granted. That the product came to the forum through the distribution system of a third party is insufficient. Contacts with United States as a whole insufficient.
Meunier v. Home Depot U.S.A., Inc., 2020 WL 6708379 (E.D. La. Nov. 16, 2020) (Louisiana) (product liability-non-drug/device). Motion to dismiss granted. Post-sale in-state contacts insufficient because the case did not arise from those contacts. Jurisdictional discovery denied.
Lisowski v. Henry Thayer Co., 2020 WL 6743258 (W.D. Pa. Nov. 17, 2020) (Pennsylvania) (non-product liability). Motion to dismiss granted. No in-state residence, product sale, or injury precluded specific jurisdiction over consumer fraud claim. No pendent jurisdiction.
State ex rel. Third-Party Defendant Health Plans v. Nines, 852 S.E.2d 251 (W. Va. Nov. 19, 2020) (West Virginia) (non-product liability). Writ of prohibition granted. Participation in nationwide insurance reimbursement program and listing in-state company as an in-network provider insufficient. Conspiracy allegations alone insufficient. Jurisdictional discovery denied.
Weirton Area Water Board v. 3M Co., 2020 WL 8184442, at *7 (N.D.W. Va. Nov. 20, 2020) (West Virginia) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to establish general jurisdiction. Jurisdictional discovery denied.
Weirton Area Water Board v. 3M Co., 2020 WL 8184654 (N.D.W. Va. Nov. 20, 2020) & Weirton Area Water Board v. 3M Co., 2020 WL 8184970 (N.D.W. Va. Nov. 20, 2020) (West Virginia) (non-product liability). Motion to dismiss granted. In-state facility and registration to do business insufficient to establish general jurisdiction. Specific jurisdiction does not lie where defendant did not sell any products to the in-state buyers at issue, and defendant’s in-state facility did not produce the product at issue. Stream of commerce does not apply to the arising from/relating to issue. Jurisdictional discovery denied.
Clark v. Marcus Todd Sampson Estate, 2020 WL 7034578 (W.D. La. Nov. 30, 2020) (Louisiana) (non-product liability). Motion to dismiss granted. No general jurisdiction by consent for registering to do business or having agent for service of process. An aviation insurance contract providing nationwide coverage does not subject the insurer to jurisdiction anywhere in the country, regardless of the underlying facts.
Burton v. Air France-KLM, 2020 WL 7212566 (D. Or. Dec. 7, 2020) (Oregon) (non-product liability). Motion to dismiss granted. In-state ticket purchase from Internet travel website available insufficient for specific jurisdiction where no in-state injury.
Steelers Keys LLC v. High Tech National LLC, 2020 WL 7197822, at *5 (S.D. Fla. Dec. 7, 2020) (Florida) (non-product liability). Motion to dismiss granted. No general jurisdiction by registering to do business.
Cannon v. Ethicon, Inc., 2020 WL 7322725 (S.D.W. Va. Dec. 11, 2020) & Cannon v. Ethicon, Inc., 2020 WL 7322726 (S.D.W. Va. Dec. 11, 2020) (California) (prescription medical product liability). Motion to dismiss granted. Plaintiff did not have the product implanted in the forum state. The claims are not related to similar products defendant sold in the forum state.
Carl v. Mazda Motor Corp., 2020 WL 7352563 (D.S.C. Dec. 15, 2020) & Carl v. Mazda Motor Corp., 2020 WL 7360174 (D.S.C. Dec. 15, 2020) (South Carolina) (product liability-non-drug/device). Motion to dismiss granted. Defendant had no relevant in-state contacts, with the product and its relevant components designed, manufactured and sold outside the forum. The product’s entry into the forum was solely the act of third persons.
Israel v. Alfa Laval, Inc., 2020 WL 76407303 (M.D. Fla. Dec. 23, 2020) (Florida) (product liability-non-drug/device). Motion to dismiss granted. No general jurisdiction by registering to do business.
Sentry Insurance v. TPI Corp., 2020 WL 7714406 (D. Kan. Dec. 29, 2020) (Kansas) (product liability-non-drug/device). Motion to dismiss granted. Substantial in-state sales and having an in-state representative insufficient for general jurisdiction. Sending a product component to another state from which someone else later trans-shipped is insufficient for stream of commerce specific jurisdiction. In-state sales to third parties insufficient.
In re Zantac (Ranitidine) Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. Dec. 31, 2020) (California and Massachusetts) (prescription medical product liability). Motion to dismiss granted. Innovator liability does not involve any contact between the defendant and the forum where the plaintiff is injured. Innovator liability allegations cannot support specific jurisdiction.
Annapolis Citizens Class Overcharged for Water-Sewer, by Loudon Operations, LLC v. Stantec, Inc., 2021 WL 75766 (D.D.C. Jan. 8, 2021) (District of Columbia) (non-product liability). Motion to dismiss granted. No general jurisdiction by registering to do business or having agent for service of process.
Fitzwater v. Air & Liquid Systems Corp., 2021 WL 112025 (N.Y. Sup. Jan. 11, 2021) (New York) (product liability-non-drug/device). Motion to dismiss granted. Plaintiff does not allege any exposure to defendant’s allegedly asbestos-containing product in the forum state.
Kim v. Korean Air Lines Co., 2021 WL 129083 (D.N.J. Jan. 14, 2021) (New Jersey) (non-product liability). Motion to transfer granted. No general jurisdiction by registering to do business. In-state ticket purchase from Internet website available to anyone insufficient for specific jurisdiction where no in-state injury.
George Moundreas & Co. SA v. Jinhai Intelligent Manufacturing Co Ltd, 2021 WL 168930 (S.D.N.Y. Jan. 18, 2021) (New York) (non-product liability). Motion to dismiss granted. No general jurisdiction by registering to do business. No exceptional case. In-state property insufficient for specific jurisdiction where claims are not property related.
Johnson v. Johnson & Johnson, Inc., 2021 WL 165099 (D.N.J. Jan. 19, 2021) (Missouri) (prescription medical product liability). Motion to sever granted. BMS requires that personal jurisdiction be determined on a plaintiff-by-plaintiff basis. Limitations on personal jurisdiction cannot be avoided by permissive joinder of plaintiffs who have no connection to that forum.
MSP Recovery Claims Series, LLC v. Nationwide Mutual Insurance. Co., 2021 WL 355133 (S.D. Fla. Feb. 2, 2021) (Florida) (non-product liability). Motion to dismiss granted. Plaintiffs’ claims did not arise from defendants’ forum conduct and being licensed to do business in the forum state, since plaintiffs are assignors and none of the payment decisions were made by defendants in the forum state. That the plaintiffs’ assignees may have been originally injured in the forum state was insufficient, since those contacts were between plaintiffs and third persons, and not created by defendants.
Trepko, Inc. v. Golden W. Trading, Inc., 2021 WL 424347 (M.D. Fla. Feb. 8, 2021) (Florida) (non-product liability. Motion to dismiss granted. Forum contract choice of law clause and payment to be received in the forum insufficient where all negotiations and contract performance occurred elsewhere.
White v. Aetna Life Insurance Co., 2021 WL 467210 (W.D.N.C. Feb. 9, 2021) (North Carolina) (non-product liability). Motion to transfer granted. Plaintiffs’ claims did not arise from defendant’s, but rather from their own, forum contact. The denial of coverage occurred before plaintiffs moved to the forum.
Macias v. LG Chem Ltd., 2021 WL 780478 (C.D. Cal. Feb. 28, 2021) (California) (product liability-non-drug/device). Motion to dismiss granted. In-state sales of the same product for different uses than what injured the plaintiff are not sufficient. Jurisdictional discovery allowed.
Zito v. United Airlines, Inc., 2021 WL 799265 (W.D.N.Y. March 3, 2021) (New York) (non-product liability). Motion to dismiss granted. Registration to do business insufficient to establish general jurisdiction. In-state purchase of travel arrangements insufficient where accident occurred elsewhere.
Virginia Transportation Corp. v. PACCAR, Inc., 2021 WL 914293 (D.R.I. March 10, 2021) (Rhode Island) (product liability – non-drug/device). Motion to transfer granted. In-state signing of contract of sale insufficient where products were manufactured and to be used elsewhere and were never present in state.
Midcap Funding XVIII Trust v. CSC Logic, Inc., 2021 WL 949601 (C.D. Cal. March 12, 2021) (California) (non-product liability). Motion to dismiss granted. Registration to do business is not a basis for general jurisdiction. Registration to do business is not a basis for specific personal jurisdiction where the underlying transaction has no in-state connection.
M.H. v. Omegle.com LLC, 2021 WL 1050234 (D.N.J. March 19, 2021) (New Jersey) (non-product liability). Motion to dismiss granted. An in-state plaintiff’s use of a website, no matter interactive, cannot create specific personal jurisdiction when it is equally accessible from any jurisdiction and thus is not purposeful availment. Jurisdictional discovery denied.
BCBSM, Inc. v. Celgene Corp., 2021 WL 1087662 (D. Minn. March 22, 2021) (Minnesota) (non-product liability). Motion to transfer granted. No anti-competitive activities occurred in forum. Plaintiff paying more on indirect drug sales into the forum not sufficient. Decided personal jurisdiction first because less complicated than subject matter jurisdiction. Dealings with intermediate pharmacy benefit manager insufficient where PBM was not a forum resident.
Tavel v. Riddle, 2021 WL 1121120 (N.D. Ill. March 24, 2021) (Illinois) (non-product liability). Motion to dismiss granted. No general jurisdiction by registering to do business.
Carter v. Ford Motor Co., 2021 WL 1165248 (S.D. Fla. March 26, 2021) (Florida) (non-product liability). Motion to dismiss granted in part. All non-resident putative class plaintiffs dismissed. None of their disputes with the defendant have any relationship to the forum. BMS applies equally to named class representatives, and to state and federal claims, where no federal statute creates nationwide service of process. No pendent jurisdiction. Ford Motor does not affect the analysis of non-resident plaintiffs’ claims.
Ruffing v. Wipro Limited, 529 F. Supp.3d 359 (E.D. Pa. March 29, 2021) (Pennsylvania) (non-product liability). Partial motion to dismiss granted. General jurisdiction by consent based on corporate registration is unconstitutional after Bauman. Pre-Bauman precedent is no longer good law. All claims by non-resident plaintiffs dismissed.
Kearney v. Bayerische Motoren Werke Aktiengesellschaft, 2021 WL 1207476 (D.N.J. March 31, 2021) (New Jersey) (non-product liability). Motion to dismiss granted. In-state interactions with subsidiary not enough. Warranty related contacts not related to plaintiff’s complaints since plaintiffs did not seek warranty coverage. That all products shipped to the United States passed through the forum state is form of rejected stream of commerce theory because defendant had already lost title. No alter ego. Ford Motor-type contacts belong to subsidiary, not parent. Jurisdictional discovery denied.
Colucci v. Whole Foods Market Services, Inc., 2021 WL 1222804 (N.D. Ill. April 1, 2021) (Illinois) (product liability-non-drug/device). Operation of an interactive Internet website selling products equally accessible to in- and out-of-state residents insufficient, where product in question not sold through website. Mere advertisement, without sale insufficient. Sale of unrelated products is an irrelevant contact.
Baity v. Johnson & Johnson, 2021 WL 1401460 (S.D. Ill. April 14, 2021) (Illinois) (prescription medical product liability). Multi-plaintiff complaint. Over 100 non-resident plaintiffs dismissed. No basis for jurisdiction after BMS and Rios. The contrast in Ford Motor between resident and non-resident plaintiffs supports the conclusion that non-residents should bring their actions in the forums where the activities giving rise to their claims occurred. Given the law, non-resident plaintiffs had no good-faith basis for filing in this jurisdiction. Therefore actions dismissed, rather than transferred, and plaintiffs will face whatever statute of limitations consequences that their invalid filing invited.
Arellano v. Tube Fabrication & Color, LLC., 2021 WL 1564879 (N.D. Ind. April 21, 2021) (Indiana) (non-product liability). Motion to dismiss granted. In-state ongoing contractual relationship between two defendants insufficient in third-party tort action. Defendants’ contacts may not be aggregated. A general relationship is insufficient to support jurisdiction when asserted by a stranger to that relationship.
Simmons v. Cardinal Health, 2021 WL 1577843 (E.D. La. April 22, 2021) (Louisiana) (prescription medical product liability). Motion to dismiss granted. Foreign manufacturer’s selling to an American distributor insufficient where defendant had no knowledge where products sold. Plaintiff moved to forum state after product used in other state. Only forum contacts were plaintiff’s unilateral acts. Jurisdictional discovery denied. In-state reported adverse event would not be sufficient where plaintiff only moved to forum state after using product elsewhere.
Durham v. LG Chem, Ltd., 2021 WL 1573898 (N.D. Ga. April 22, 2021) (Georgia) (product liability-non-drug/device). Motion to dismiss granted. In-state product sales through third parties not directly unrelated to defendant insufficient. Motion to transfer denied. Plaintiffs failed to show that any of the prospective transferee courts had personal jurisdiction over defendant. Jurisdictional discovery denied.
Pesa v. Scandinavian Airlines System, 2021 WL 1660863 (D.N.J. April 27, 2021) (New Jersey) (non-product liability). Motion to dismiss granted. Plaintiff’s injury suffered in an airport overseas did not arise out of the defendant’s in state activities. The flight plaintiff had purchased from the defendant in the forum state had already ended.
D.S. Brown Co. v. White-Schiavone, JV, 2021 WL 1670264 (D. Mass. April 28, 2021) (Massachusetts) (non-product liability). Registration to do business does not suffice to establish general jurisdiction. In-state activity for which no damages are sought is insufficient to create specific personal jurisdiction. A third party’s unilateral shipment of defendant’s product to forum state is insufficient, even if known to defendant. Jurisdictional discovery denied.
Shelter Mutual Insurance Co. v. Bissell Homecare, Inc., 2021 WL 1663585 (M.D. Tenn. April 28, 2021) (Tennessee) (product liability-non-drug/device). Motion to dismiss granted. In-state product sales through third parties not directly involving the defendant insufficient. Registration to do business is of no special jurisdictional weight.
Israel v. Alfa Laval, Inc., 2021 WL 1662770 (M.D. Fla. April 28, 2021) (Florida) (product liability-non-drug/device). Motion to dismiss granted. A non-resident’s possible asbestos exposure in the forum state is insufficient, alone to support specific personal jurisdiction. Registration to do business does not create specific personal jurisdiction where the claim does not involve defendant’s in-state activities. No evidence that defendant sought to serve the in-state market for similar products.
Alvin Macias v. LG Chem, 2021 WL 2953162 (C.D. Cal. May 7, 2021) (California) (product liability-non-drug/device). Motion to dismiss granted. In-state sales of other products, but not the product involved in the claimed accident are insufficient to establish “arising from” for purposes of specific jurisdiction.
Rickman v. BMW of N. Am. LLC, ___ F. Supp.3d ___, 2021 WL 1904740 (D.N.J. May 11, 2021) (New Jersey) (non-product liability). Motion to dismiss granted. Plaintiffs failed to identify defendant’s in-state conduct relating to the allegations. Conspiracy-based jurisdiction does not comport with the Due Process purposeful availment requirement, and has never been recognized by the forum state. Jurisdictional discovery granted as to other defendant.
Garrett-Alfred v. Facebook, Inc., ___ F. Supp.3d ___, 2021 WL 1946699 (M.D. Fla. May 14, 2021) (Florida) (non-product liability). Motion to dismiss granted. Partial motion to dismiss granted. Non-resident class representatives could not assert specific jurisdiction over non-resident defendant over matters not involving the defendant’s in-state activity.
Cullen v. Shutterfly Lifetouch, LLC, 2021 WL 2000247 (N.D. Cal. May 19, 2021) (California) (non-product liability). Motion to dismiss granted. Where plaintiff did not allege buying any product from defendant, that defendant’s alleged in-state activity fulfilling product orders by others is insufficient to establish specific jurisdiction.
Ex parte TitleMax of Georgia, Inc., 340 So.3d 395 (Ala. May 21, 2021) (Alabama) (non-product liability). Mandamus granted to require dismissal. Operation of in-state wholly owned subsidiary insufficient. Consent decree unrelated to issues in litigation insufficient. Waiver of personal jurisdiction defense in one suit is not waiver in unrelated litigation. No agency.
Elliot v. Cessna Aircraft Co., 2021 WL 2153820 (C.D. Cal. May 25, 2021) (California) (product liability-non-drug/device). Motion to dismiss granted. Fully interactive website reachable from anywhere insufficient. Jurisdictional discovery denied.
LG Chem, Ltd. v. Turner, 2021 WL 2154075 (Tex. App. May 27, 2021), and LG Chem, Ltd. v. Granger, 2021 WL 2153761 (Tex. App. May 27, 2021) (Texas) (product liability-non-drug/device). Denial of motion to dismiss reversed. In-state sales of same product in bulk for industrial uses insufficient where plaintiff’s injury did not involve such uses.
Rogers v. Coloplast Corp., 2021 WL 3017486 (M.D. Fla. June 1, 2021) (Florida) (prescription medical product liability). Motion to dismiss granted. FDA compliance and use of defendant’s trademarks are not directed to any particular state and are thus insufficient to allow stream of commerce jurisdiction.
Williams v. Praetorian Insurance Co., 2021 WL 2383329 (N.D. Cal. June 10, 2021) (California) (non-product liability). Motion to transfer granted. That insurance policy was obtained through in-state broker insufficient where both the insured plaintiff and the insured property were located elsewhere.
Perdomo v. Western Express, Inc., 2021 WL 3141972 (Conn. Super. June 17, 2021) (Connecticut) (non-product liability). Motion to dismiss granted. Registration to do business does not create general personal jurisdiction. None of the alleged conduct giving rise to the plaintiff’s claim occurred in Connecticut.
Okoroafor v. Emirates Airlines, 145 N.Y.S.3d 807 (N.Y.A.D. June 22, 2021) (New York) (non-product liability). Grant of motion to dismiss affirmed. Registration to do business in New York does not constitute consent to submit to general jurisdiction.
H.B. v. China Southern Airlines Co., 2021 WL 2581151 (S.D.N.Y. June 23, 2021) (New York) (non-product liability). Motion to dismiss granted. Registration to do business in New York does not constitute consent to submit to general jurisdiction. In-state purchase of another leg of a combined airplane flight insufficient where injury occurred on the other, entirely international, leg.
Heissenberg v. Doe, 2021 WL 2621100 (S.D. Fla. June 24, 2021) (Florida) (non-product liability). Motion to compel denied. Neither the discovery nor the underlying elements of the plaintiff’s claims were related to in-state comments of the target of the plaintiff’s third-party subpoena.
Stacker v. Intellisource, LLC, 2021 WL 2646444 (D. Kan. June 28, 2021) (Kansas) (non-product liability). Motion to strike nationwide class action allegations granted. BMS forecloses nationwide class actions against nonresident defendants for conduct outside the forum state. A defendant’s due process interests do not vanish just because it has been haled into a forum. Unless the absent class member would have jurisdiction in an individual suit, the Rules Enabling Act preludes use of Rule 23 to create jurisdiction that would not otherwise exist.
Klick v. Asbestos Corp., Ltd., 2021 WL 2666709 (D.N.J. June 28, 2021) (New Jersey) (product liability-non-drug/device). Motion to dismiss granted. Where plaintiff does not allege any in-state exposure to asbestos products supplied by the defendant, that the defendant purchased asbestos products from in-state suppliers for use out of state is insufficient. The defendant’s relations with third parties cannot create specific jurisdiction. Jurisdictional discovery denied.
In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2021 WL 2682602 (S.D. Fla. June 30, 2021) (California and Massachusetts) (prescription medical product liability). Motion to dismiss granted. Innovator liability plaintiffs could establish only that defendant purposefully availed itself of the relevant jurisdiction’s markets, but not that the label and alleged failure to update it related to those activities. The core conduct alleged in innovator liability is not state specific so as to confer jurisdiction.
Rivera v. Altec, Inc., 2021 WL 2784265 (D. Md. July 2, 2021) (Maryland) (product liability-non-drug/device). Motion to dismiss granted. Registration to do business in Maryland and some in-state independent dealerships sell the defendant’s products insufficient for general jurisdiction. A defendant’s systematic servicing of the state’s market cannot support specific jurisdiction where the plaintiff, the accident and the injuries were all out of state. Jurisdictional discovery denied.
Pena v. New Jersey Manufacturers Insurance Co., 2021 WL 2986512 (E.D.N.Y. July 15, 2021) (New York) (non-product liability). Motion to dismiss granted. Registration to do business in New York does not create general jurisdiction. Law preceding Bauman is outdated. Plaintiff’s unilateral moving insured property into state was insufficient.
Kingston v. Angiodynamics, Inc., 2021 WL 3022320 (D. Mass. July 16, 2021) (Massachusetts) (prescription medical product liability). Motion to dismiss granted. Having regulatory and research employees in state insufficient, particularly where the plaintiff is a nonresident and suffered no in-state injury. Defendant’s in-state activities were not an important or material element of proof of plaintiff’s claims. Jurisdictional discovery denied.
Cameron v. Thomson International, Inc., 2021 WL 3409999 (Mag. D. Mont. July 19, 2021) (Montana) (product liability-non-drug/device). Motion to dismiss granted. Small in-state sales through an third-party out of state wholesaler do not support purposeful availment. Adopted 2021 WL 3406352 (D. Mont. Aug. 4, 2021).
Brandon v. Wright Medical Technologies, Inc., 2021 WL 3134658 (D. Nev. July, 23, 2021) (Nevada) (prescription medical product liability). Motion to dismiss granted. Where plaintiff’s two surgeries occurred elsewhere, her in-state residence alone was insufficient, since that was the unilateral action of someone other than the defendant. Nationwide product sales are not purposeful availment in every state.
Antonacci v. Allergan USA, Inc., 2021 WL 3404023 (E.D. Mo. Aug. 4, 2021) (Missouri) (prescription medical product liability). Motion to dismiss granted. An acquisition after the product was sold does not establish personal jurisdiction over the acquiring party where corporate separation is maintained.
Cox v. HP Inc., 492 P.3d 1245 (Or. Aug. 5, 2021) (Oregon) (non-product liability). Denial of motion to dismiss reversed. In-state certification and solicitation of business insufficient where litigation does not concern in-state services performed for any in-state entity, or any product sold in-state.
McCoy v. General Motors, LLC, 2021 WL 3829968 (Conn. Super. Aug. 5, 2021) (Connecticut) (product liability-non-drug/device). Motion to dismiss granted. Stream of commerce insufficient against component part manufacturer where sale of product in state was the unilateral act of third parties.
Bogle v. JD Technologies, Inc., 2021 WL 3472151 (W.D. Pa. Aug. 6, 2021) (Pennsylvania) (product liability-non-drug/device). Motion to dismiss granted. Stream of commerce theory rejected because it is based on unilateral actions of third parties. Product sales to others through internet marketplace insufficient, since all in-state contacts were by third parties.
Beaton v. LG Chem, Ltd., 2021 WL 3828835 (D.N.J. Aug. 26, 2021) (New Jersey, California, Michigan) (product liability-non-drug/device). Motion to dismiss granted; motion to transfer denied. Where the plaintiff did not buy or use the product in a state, the claim does not relate to other contacts that the defendant had in the state. Consent to personal jurisdiction in one case is not consent to personal jurisdiction in any other case.
Lubbers v. John R. Jurgensen Co., 2021 WL 4066663 (E.D. Ky. Sept. 7, 2021) (Kentucky) (non-product liability). Motion to dismiss granted. Registration to do business does not create general jurisdiction.
Joe v. Union Pacific Railroad, 2021 WL 4200878 (E.D. Ark. Sept. 15, 2021) (non-product liability). Motion to dismiss granted. Where the alleged injury and the conduct causing it occurred out of state, plaintiff’s being based and being paid in-state is insufficient to create specific jurisdiction. In-state corporate registration is insufficient to create specific jurisdiction where the injury and allegedly liability creating conduct was all out of state.
68th Street Site Work Group v. Airgas, Inc., 2021 WL 4255030 (D. Md. Sept. 16, 2021) (Maryland) (non-product liability). Motion to dismiss granted. Registration to do business does not create general jurisdiction. No successor corporation specific jurisdiction. Jurisdictional discovery denied.
Patterson v. Chiappa Firearms, USA, Ltd., 2021 WL 4287431 (S.D. Ind. Sept. 21, 2021) (Indiana) (product liability-non-drug/device). Motion to dismiss granted. Sporadic forum contacts insufficient. Internet website identifying in-state dealers insufficient. No systematic marketing. Rejects stream of commerce based on internet website. Would create de facto universal jurisdiction. Jurisdictional discovery denied.
Parker v. Alcon, Inc., 2021 WL 4310985 (N.D. Ala. Sept. 22, 2021) (Alabama) (prescription medical product liability). Motion to dismiss granted. Foreign parent not subject to personal jurisdiction by contacts of subsidiary under stream of commerce theory. Jurisdictional discovery denied.
Pettit v. AngioDynamics, Inc., 2021 WL 4441261 (D. Mass. Sept. 28, 2021) (Massachusetts) (prescription medical product liability). Motion to dismiss granted. General research and regulatory activity in-state insufficient where plaintiff’s use of device was entirely in another state.
Harness v. AngioDynamics, Inc., 2021 WL 4441260 (D. Mass. Sept. 28, 2021) (Massachusetts) (prescription medical product liability). Motion to dismiss granted. General research and regulatory activity in-state insufficient where plaintiff’s use of device was entirely in another state.
Murphy v. Viad Corp., 2021 WL 4504229 (E.D. Mich. Oct. 1, 2021) (Michigan) (product liability-non-drug/device). Motion to dismiss granted; case transferred. In-state sales of a different asbestos-containing product insufficient. Plaintiff’s asbestos claims do not relate to those products. Plaintiff’s later move to the forum, where the claimed injury was discovered, is insufficient.
Aybar v. Aybar, ___ N.E.3d ___, 2021 WL 4596367 (N.Y. Oct. 7, 2021) (New York) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Under New York law registration to do business does not constitute consent to general personal jurisdiction. Exercise of general jurisdiction in every state in which a corporation engages in a substantial business would be unacceptably grasping.
Cincinnati Insurance Co. v. LG Chem America, Inc., 2021 WL 4864231 (S.D. Ill. Oct. 19, 2021) (Illinois) (product liability-non-drug/device). Motion to dismiss granted. Registration to do business does not constitute consent to general jurisdiction.
Green v. First Tenn. Bank National Ass’n, 2021 U.S. Dist. Lexis 200371 (N.D. Cal. Oct. 18, 2021) (California) (non-product liability). Motion to dismiss granted. Registration to do business and appointment of an agent for service of process is insufficient to establish general jurisdiction.
Chavez v. Bridgestone Americas Tire Operations, LLC, ___ P.3d ___, 2021 WL 5294978 (N.M. Nov. 15, 2021) (New Mexico) (product liability-non-drug/device). Denials of motions to dismiss reversed. Under New Mexico law, registration to do business does not constitute consent to general personal jurisdiction. Prior contrary precedent overruled. Given the Due Process concerns, the corporate registration statute is interpreted narrowly in accordance with its terms not to permit general jurisdiction by consent.
Tyler v. Ford Motor Co., 2021 U.S. Dist. Lexis 221863 (M.D. Ala. Nov. 17, 2021) (Alabama) (product liability-non-drug/device). Motion to dismiss granted. Registration to do business does not constitute consent to general jurisdiction. A state cannot require waiver of a constitutional right as a prerequisite to doing business. Pennsylvania Fire was overruled in Shaffer.
Metro Container Group v. AC&T Co., 2021 WL 5804374 (E.D. Pa. Dec. 7, 2021) (Pennsylvania) (non-product liability). Motion to dismiss granted in part. Registration to do business is insufficient to establish general jurisdiction. Caution: jurisdictional discovery allowed as to specific jurisdiction.
Mallory v. Norfolk Southern Railway. Co., 266 A.3d 542 (Pa. Dec. 22, 2021) (Pennsylvania) (non-product liability). Grant of preliminary objections affirmed. Registration to do business is insufficient to establish general jurisdiction. The Pennsylvania statute specifying “general” jurisdiction as a consequence of registration to do business is unconstitutional under Bauman. Affirming 2018 WL 3043601, above.
Wallace v. Yamaha Motors Corp, U.S.A., 2022 WL 61430 (4th Cir. Jan. 6, 2022) (South Carolina) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Plaintiff being a resident of the forum state is an insufficient basis for specific jurisdiction. Specific jurisdiction must arise out of the defendant’s contacts. The plaintiff’s injury did not occur in the forum state, nor did anything having to do with the defendant’s product.
LNS Enterprises LLC v. Continental Motors, Inc., 22 F.4th 852 (9th Cir. Jan. 12, 2020) (Arizona) (product liability – non-drug/device). Grant of motion to dismiss affirmed. No state-specific marketing effort. Website advertising in-state, independent service centers insufficient, particularly since no evidence that product at issue was serviced there. Subsequent corporate acquisitions did not provide fair notice. Affirming denial of jurisdictional discovery. Affirming, 464 F. Supp.3d 1065, above.
Rogers v. Coloplast Corp., 2022 U.S. Dist. Lexis 15177 (M.D. Fla. Jan. 27, 2022) (Florida) (prescription medical product liability). Motion to dismiss granted. In-state contacts by a subsidiary occurring before the defendant acquired the subsidiary are insufficient to support stream of commerce jurisdiction.
Kostedt v. C.R. Bard, Inc., 2022 U.S. Dist. Lexis 17848 (E.D. Mo. Feb. 1, 2022) (Missouri) (prescription medical product liability). Motion to dismiss granted. Multi-plaintiff complaint. That resident and non-resident plaintiffs share a common nucleus of facts does not provide non-residents with specific personal jurisdiction.
American Family Home Insurance v. McLaren Automotive, 2022 U.S. Dist. Lexis 32285 (E.D. Pa. Feb. 24, 2022) (Pennsylvania) (product liability-non-drug/device). Motion to dismiss granted. None of the defendant’s in-state activities had anything to do with plaintiff. Defendant worked on the product in another state at the behest of a different out-of-state defendant, and plaintiff arranged delivery into the forum state.
Oaks v. Largo Bioscience, Inc., 2022 U.S. Dist. Lexis 43604 (M.D. Tenn. March 11, 2022) (Tennessee) (prescription medical product liability). Motion to dismiss granted. Since plaintiff sought out defendant’s website and obtained one bottle of the product, that was insufficient evidence of purposeful availment of the state to support specific jurisdiction.
Mahurin v. BMW of North America, LLC, 2022 WL 825436 (W.D. Pa. March 18, 2022) (Pennsylvania) (product liability-non-drug/device). Motion to dismiss granted. In-state contacts of defendant’s subsidiary did not count. No agency, veil piercing, or stream of commerce. Overseas parent did not control subsidiary’s product marketing.
Bullock v. Otto Imports, LLC, 2022 U.S. Dist. Lexis 56662 (W.D. Ky. March 29, 2022) (Kentucky) (product liability-non-drug/device). Motion to dismiss granted; motion to transfer denied. Registration to do business in the forum, alone, does not establish specific personal jurisdiction. Nor does the in-state presence of unrelated property.
Kastigar v. Mercedes-Benz USA LLC, 2022 U.S. Dist. Lexis 69714 (D. Ariz. April 14, 2022) (Arizona) (product liability-non-drug/device). Motion to dismiss granted. Registration to do business insufficient” to sustain general or specific jurisdiction. Plaintiff’s accident unrelated to defendant’s in-state activities. Jurisdictional discovery denied.
Samsung SDI Co. v. Fields, ___ So.3d ___, 2022 WL 1562290 (Fla. App. May 18, 2022) (Florida) (product liability-non-drug/device). Denial of motion to dismiss reversed. In-state sale of different products insufficient.
In re Klein, 2022 U.S. Dist. Lexis 89720 (S.D.N.Y. May 18, 2022) (non-product liability). Subpoenas quashed. None of the target’s in-state business activities related to the documents that were being requested.
Greenwood v. Arthrex, Inc., 2022 WL 2117763 (W.D.N.Y. June 13, 2022) (New York) (prescription medical product liability). Motion to dismiss granted. Out-of-state component part sales for devices later used in state insufficient. No relationship with device manufacturer sufficient to impute intent to serve state market by component seller. Jurisdictional discovery denied.
LG Chem, Ltd v. Superior Court, ___ Cal. Rptr.4th ___, 2022 Cal. App. Lexis 555 (Cal. App. June 27, 2022) (California) (product liability-non-drug/device). Denial of demurrer reversed. In-state sales not enough where plaintiff’s use was contrary to warnings and defendant did not sell the product for that use. Defendant did not attempt to serve the relevant in-state market.
Bradley v. Globus Medical, Inc., 2022 WL 2373441 (Wash. App. June 30, 2022) (Washington) (prescription medical product liability). Grant of motion to dismiss affirmed. Nothing under Washington law allows general jurisdiction by consent merely by registering to do business. Nor does in-state registration support specific jurisdiction. Plaintiff has not claimed in-state surgery or how defendant’s product came to be used in her surgery.
Froman v. Coopersurgical, Inc., 2022 U.S. Dist. Lexis 120725 (N.D. Ala. July 8, 2022) (Alabama) (prescription medical product liability). Motion to dismiss granted. In-state plaintiff being injured by a competitor’s identical product before the defendant sold its product in the state insufficient to establish specific jurisdiction. Also no alter ego.
Ethridge v. Samsung SDI Co., ___ F. Supp.3d ___, 2022 WL 2920429 (S.D. Tex. July 26, 2022) (Texas) (product liability-non-drug/device). Motion to dismiss granted. In-state conduct of independent third-parties is insufficient to establish specific jurisdiction. Shipment of products to in-state customers for different intended uses is insufficient.
Mehl v. LG Chem Ltd., 2022 U.S. Dist. Lexis 150961 (D. Or. Aug. 23, 2022) (Oregon) (product liability-non-drug/device). Motion to dismiss granted. In-state on-line purchase of product from third party insufficient. Bulk trans-shipment through in-state ports for other uses in other states insufficient. Defendant never authorized the product’s sale for the plaintiff’s intended use. Jurisdictional discovery denied.
Bishop v. Amneal Pharmaceuticals Private Ltd., 2022 WL 4000544 (D. Neb. Sept. 1, 2022) (Nebraska) (product liability-non-drug/device). Motion to dismiss granted. Information and belief allegations insufficient in the face of a defense affidavit. One in-state purchase of a nationally sold product insufficient. BMS precludes stream of commerce allegations based solely on a defendant’s contacts with independent third-party distributors. Jurisdictional discovery denied.
Sellers v. Volkswagen AG, 2022 WL 4088185 (S.D. Miss. Sept. 6, 2022) (Mississippi) (product liability-non-drug/device). Motion to dismiss granted. Designing a vehicle that later caused injury in-state is insufficient. Stream of commerce is only available against manufacturers of products, not non-manufacturing designers who were not involved in product marketing. Jurisdictional discovery denied.
Kinnee v. TEI Biosciences Inc., 2022 WL 14118943 (S.D. Cal. Oct. 24, 2022) (California) (prescription medical product liability). Motion to dismiss granted. Placing a product in the stream of commerce through an independent distributor insufficient. No showing of anything targeting the forum state.
Miller v. Monsanto Co., 2022 WL 14812684 (N.D. Miss. Oct. 25, 2022) (Mississippi) (product liability-non-drug/device). Judgment on the pleadings granted. The defendant’s registration to do business is insufficient to establish general jurisdiction over out of state injuries suffered by plaintiff before he became a resident.
Armstrong v. Atrium Medical Corp., 2022 WL 16648824 (E.D. Wash. Oct. 26, 2022) (Washington) (prescription medical product liability). Motion to dismiss granted. No evidence of purposeful availment or targeting of forum state. Activities in other states insufficient. Stream of commerce without purposeful direction insufficient. No piercing corporate veil. Jurisdictional discovery denied.
Estate of Gibson v. Daimler North America Corp., No. 2:19-00095 (WOB-CJS), 2022 U.S. Dist. LEXIS 200434 (E.D. Ky. Nov. 3, 2022) (Kentucky) (product liability-non-drug/device). Motion to dismiss granted. No evidence of purposeful availment or targeting of forum state. Indirect in-state product sales insufficient where those products did not harm plaintiff. Fails “relates to” test. Stream of commerce without purposeful direction insufficient. Registration to do business does not support specific jurisdiction.
Straight v. LG Chem, Ltd., 2022 U.S. Dist. Lexis 204703 (S.D. Ohio Nov. 9, 2022) (Ohio) (product liability-non-drug/device). Motion to dismiss granted. In-state sales of different products insufficient. All similar technology does not relate to each other. In-state activity by others selling defendant’s products in an unauthorized fashion insufficient.
Grizzard v. LG Chem Ltd., ___ F. Supp.3d ___, 2022 U.S. Dist. Lexis 209846 (E.D. Va. Nov. 18, 2022) (Virginia) (product liability-non-drug/device). Motion to dismiss granted. No purposeful availment. Cease and desist letters mailed to in-state businesses are insufficient. Even if there was purposeful availment, plaintiff’s claims do not involve any product that the defendant sold in-state. Stream of commerce insufficient.
Adams v. Aircraft Spruce & Specialty Co., ___ A.3d ___, 2022 WL 17096855 (Conn. Nov. 22, 2022) (Connecticut) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Fails “relates to” test in the absence of any in-state action concerning either the specific product or product model at issue. In-state actions involving similar products manufactured by others insufficient. In-state plaintiff residence, without more, insufficient.
Rinaldi v. FCA US LLC, 2022 U.S. Dist. Lexis 215451 (D.N.J. Nov. 30, 2022) (New Jersey) (product liability-non-drug/device). Motion to dismiss granted; transfer denied. Plaintiff’s in-state telephonic rental car reservation insufficient, where accident and plaintiff’s use of vehicle were entirely out of state, and no aspect of manufacturing or sale of the vehicle occurred in-state.
Gutierrez v. Medtronic PLC, 2023 WL 376014 (Mag. D.N.J. Jan. 5, 2023), adopted, 2023 WL 375729 (D.N.J. Jan. 24, 2023) (New Jersey) (prescription medical product liability). Motion to dismiss granted. Overseas parent had no contacts with forum state and did not make any product to forum standards. Presence of subsidiary insufficient. Holding company does not manufacture or distribute any products. No stream of commerce or alter ego.
Paye v. Atrium Medical Corp., 2023 WL 349894 (D. Mass. Jan. 19, 2023) (Massachusetts) (prescription medical product liability). Motions to dismiss granted. No possible basis for jurisdiction based on contacts of a distributor that did not start distributing the product until after it was inserted in plaintiff. Overseas parent had no contacts with forum state and was not an alter ego of its domestic subsidiary.
Diagnostic Affiliates of Northeast Houston LLC v. Aetna, Inc., ___ F. Supp.3d ___, 2023 WL 1772197 (S.D. Tex. Feb. 1, 2023) (Texas) (non-product liability). Motion to dismiss granted. Registering to do business and having an in-state registered agent for service of process insufficient. Payments by in-state third parties insufficient.
LeGrand v. Abbott Laboratories, 2023 WL 1819159 (N.D. Cal. Feb. 8, 2023) (California) (product liability-non-drug/device). Partial motion to dismiss granted. Non-resident class action representative plaintiff pursuing diversity-related claims has no jurisdiction over a non-resident defendant for purposes of claims that do not relate to the defendant’s in-state activities. No pendent jurisdiction.
Watters v. CooperSurgical, Inc., 2023 WL 1982347 (E.D.N.C. Feb. 13, 2023) (North Carolina) (prescription medical product liability). Motions to dismiss granted. Two defendants were not marketing the product at all at the time of plaintiff’s surgery. Post-surgery in-state business activity are unrelated to the product at issue. In-state marketing of competing products by others insufficient. A contract with a national product distributor is that did not target the forum state is also insufficient.
LaRocca v. Invasix, Inc., 2023 WL 2391012 (S.D. Tex. March 7, 2023) (Texas) (prescription medical product liability). Motion to dismiss granted. Common use of a trade name with an affiliate that did in-state business and availability of a user locator website function that included in-state users insufficient. No alter ego.
Yamashita v. LG Chem, Ltd., ___ F.4th ___, 2023 WL 2374776 (9th Cir. March 6, 2023) (Hawai’i) (product liability-non-drug/device). Grant of motion to dismiss affirmed. Pure stream of commerce contacts, without targeting the forum state, insufficient. No purposeful availment. General trade activity through forum ports and purposeful forum marketing of different products insufficient. Different products and activities do not relate to plaintiff’s claims. Denial of jurisdictional discovery not an abuse of discretion.
Rivers v. Nice Recovery Systems LLC, 2023 WL 2525209 (D.R.I. March 15, 2023) (Rhode Island) (prescription medical product liability). Motion to dismiss granted. Non-forum-specific activities of independent distributor insufficient. In-state prescriber of defendant’s product had no contact with defendant. Suit by non-resident plaintiff who neither used the product nor was injured in-state fails “related to” test.
Mack v. CooperSurgical, Inc., 2023 WL 2653365 (M.D. Ala. March 27, 2023) (Alabama) (prescription medical product liability). Motion to dismiss granted. Allegations lumping several defendants together insufficient to allege contacts. Allegations about products a defendant did not make are insufficiently related. Caution: Jurisdiction exists as to other defendant.
Martinez v. Union Officine Meccaniche S.P.A., 2023 WL 3336644 (3d Cir. May 10, 2023) (New Jersey) (product liability-non-drug/device). One unit in state due to third-party conduct insufficient. Post sale purposeful availment through in-state contacts to keep its sole customer happy did not create the necessary strong relationship required by “related to” specific jurisdiction. No systematic service of in-state market.

Causation Testimony Excluded as “Unhelpful” and “Unreliable” in Heart-Lung Machine Death Case

By Rachel B. Weil on July 28, 2017

One of the wonders of parenthood is its ability to deliver interludes so sublime in their exquisite simplicity that they provoke smiles long after they end. Such was an evening last week when we journeyed to New York to celebrate the birthday of the Drug and Device Law Rock Climber, now a waxing college senior completing a summer internship at an insanely cool company in Lower Manhattan. We were treated to a tour of the office and to the comments that colleagues and mentors reserve for interns’ mothers. We had perfect saltimbocca at a beloved Italian bistro. We saw Waitress (again – we love this show). We stayed overnight on the Climber’s couch, joined at some point by a four-pound Chihuahua. And we relished every moment with this child-now-adult. We were awash in happiness for the entire train ride home.

We were also happy (yet another suspect segue) with the court’s evidentiary rulings in today’s case, but decidedly not with the case’s very sad facts—an all-too-frequent dichotomy in our line of work. Because we spend vast amounts of our professional time struggling to achieve the exclusion of plaintiffs’ causation experts, we are always pleased to read a Daubert opinion that layers tidy analytical segments to reach a satisfying conclusion that correctly applies the Rules of Evidence and controlling case law.

In Smith v. Terumo Cardiovascular Systems Corp., et al., 2017 U.S. Dist. LEXIS 108205 (D. Utah July 12, 2017), the plaintiff’s decedent underwent open-heart surgery in which a heart-lung machine was used to circulate oxygenated blood through the patient’s body while his heart was being repaired. At some point during the surgery, the machine stopped working for approximately ten minutes. The plaintiff’s decedent never left the hospital after the surgery. Eleven months later, he suffered a heart attack and died.

The plaintiff sued the hospital and the heart-lung machine’s manufacturer, asserting the usual claims. She hired a cardiologist as her causation expert, and he opined that the malfunction of the heart-lung machine caused the decedent to suffer physical and mental deterioration and ultimately caused his heart attack and his death. The defendants moved to exclude the expert’s testimony, arguing that: 1) his causation opinions were unhelpful and unreliable; 2) he was not qualified to opine on neurological injuries; and 3) he should not be allowed “to provide a narrative of events that can and should be provided by other witnesses and records.” Smith, 2017 U.S. Dist. LEXIS 108205 at *5 (citation omitted).

Explaining that , “to be helpful, [the expert’s] opinion . . . that the . . . surgery and related complications had any causal . . . relationship to Mr. Smith’s injuries and ultimate death must be based on a ‘valid scientific connection,’ the court held that that the expert’s own deposition testimony demonstrated that his opinion would not be helpful to a jury. To wit, in his deposition, the expert admitted that he could not testify with certainty that there was a connection “between the surgery, the ten-minute lack of flow, and the heart attack that caused” the decedent’s death. Id. at *10-11 (citations omitted). Instead, he could only go as far as concluding that “the events that happened at the time of surgery simply made it more likely” that the decedent would die as the result of a heart attack, although the decedent’s own risk factors –hypertension, smoking, diabetes, family history – were generally considered to be “the main contributors” to the development of the plaque that narrowed the decedent’s arteries and caused his myocardial infarction. As such, the expert concluded, “[While] I think that what happened . . . played a role in his having a heart attack and made it less likely that he would survive a heart attack, but I cannot say that it caused his heart attack.” Id. at *11-12 (emphasis in original, citation omitted).

While this is refreshing (and uncommon) candor for a plaintiff’s expert, it is obviously not “helpful” to the establishment of causation. Moreover, the court held, even if the testimony had been helpful, it was not reliable, because the expert did not “provide a basis to conclude that the relationship [was] causal and not merely corollary,” leaving too large a gap between his premise and conclusion, and because he failed to account for obvious alternative explanations for the decedent’s death. Id. at *15-16.

The expert also concluded, contrary to the results of the decedent’s autopsy, that the decedent had suffered an earlier heart attack, around the time of the surgery, before the one that ultimately killed him eleven months later. The court held that this opinion was also inadmissible because the expert’s diagnostic methods were not generally accepted. As such, the court concluded, “To allow the jury to hear [the expert’s] opinion on this point would be to allow the jury to hear conclusions based on inferior diagnostic metrics. This will not be permitted.” Id. at *20.

Next, the court addressed the expert’s opinion that the decedent “suffered an injury to the brain due to prolonged lack of oxygenated blood flow to the brain.” Id. at *20-21. The court held that the expert lacked the “knowledge, skill, training, or education that would qualify him to diagnose neurologic injuries.” Id. at 21 (internal punctuation and citation omitted). Moreover, the opinion lacked any scientific basis, as the autopsy revealed no sign of hypoxic encephalopathy. The court concluded, “[The expert] is not being as careful as he would be in his regular professional work outside his paid litigation consulting. A jury has no use for [this type of speculation], especially from someone whose expertise lies elsewhere.” Id. at *24.

The court did not exclude the expert’s entire report, permitting him to testify that the decedent’s heart was injured during his surgery and to indicate what he relied upon to form his opinions. It held, however, that the expert would not be permitted “to give a general narrative of Mr. Smith’s health before, during, and after the surgery.” Id.

We like this opinion. It draws the correct lines, and it does so in clear and logical fashion. It also reinforces the oft-apparent conclusion that plaintiffs’ lawyers disserve their clients when they hire the wrong people, and pay them to say the wrong things, in their quests for big settlement paychecks. We will continue to keep you posted on judges who properly bar the courtroom doors against such experts, and those who don’t.

Plaintiff’s Expert’s Opinions Trimmed Post-Remand in Mesh Litigation

By Michelle Yeary on July 27, 2017

This post is from the non-Reed Smith side of the blog.

There is always a level of uncertainty when a case gets remanded from an MDL. New judge; new interpretations of prior rulings; new rulings. It can be the cause of much anxiety on both sides. And the biggest question is – what’s left to be done? That might seem simple. The case was remanded for trial. But cases rarely go back completely trial ready. Legal issues that turn more on state law are often left to the remand court to decide, as are case specific evidentiary decisions. There are also often questions as to whether a particular issue was raised in the MDL or not. If so, what was the ruling? If not, was it waived? So, there is definitely wiggle room for remand judges to imprint their reasoning and conclusions on a case. And where you’ve made progress in the MDL, you certainly don’t want to lose momentum post-remand.

Which was likely the thinking of defendants in Walker v. Ethicon, Inc., 2017 U.S. Dist. LEXIS 112738 (ND IL Jun. 22, 2017) when faced with expert reports that went beyond the scope of what was deemed permissible by the MDL court in the mesh litigation. In this case, plaintiff served an expert report from Dr. Shull, a gynecologic surgeon. Dr. Shull had previously been challenged by defendants in the MDL but certain issues were reserved for the remand court. Certain issues had also been ruled on by the MDL court in the context of other cases and other experts – in defendants’ favor. Defendant here asked the court to apply those rulings. Generally speaking the remand court found plaintiff offered no justification not to.

First up was the expert’s opinion that different surgical procedures – ones not involving the use of the product — were safer alternatives to the defendant’s mesh product. Id. at *5. In addition to the vast body of case law holding that non-use is not an “alternative design” for the product, the mesh MDL court had so held in another case. Id. The remand court agreed. The remand court also considered the impact of Illinois state law because Illinois does not require plaintiff to prove the existence of a safer alternative design, but such evidence may be relevant. Id. at *7. Plaintiff tried to argue that because a product could be found unreasonably dangerous without evidence of a safer alternative design, it follows that a product could be found unreasonably dangerous with evidence of a safer alternative regardless of whether that was a different design or a different surgical procedure. Id. But that disregards that what is relevant but not required under Illinois law is evidence of a safer alternative design. Plaintiffs offered no support for interpreting “safer alternative design” in Illinois any differently than any other state. Nor did they explain how the alternative procedure was relevant to any element of any of plaintiff’s claims. Without relevance, the testimony was excluded. Id. at *8.

Next were the doctor’s opinion on the duties of medical device manufacturers – testing, pharmacovigilance, and training. The court excluded them all. Defendants challenged the opinion on adequacy of research and testing of the product on both the relevance and the doctor’s qualifications and competence. This is one of the topics on which the MDL court provided guidance but ultimately left the decision to the remand court. On relevance, the MDL court found it doubtful, but was willing to leave the call to the trial court based on nuances in state law. Id. at *10. Pertinent to defendants’ motion, the MDL court had also ruled that an expert “may not offer testimony that is solely a conduit for corporate information.” Id. On the qualification challenges, the MDL court did not exclude an expert on those grounds if the request for exclusion did not provide “specific content or context.” Id. at *11.

Applying those rulings to the specific case, the remand court found that defendants had properly challenged Dr. Shull’s qualifications with enough specificity and so that challenge was not denied, but reserved for the remand court. Id. So, on qualifications, Dr. Shull “is not qualified to testify regarding the standard of care for medical device testing.” Id. at *13. Plaintiffs, however, argued that they were only offering testimony from Dr. Shull regarding what testing defendants did or did not do – the extent of the testing rather than its adequacy. Id. at *12. The court took that as a concession, but went on to exclude that testimony as well. That is information found in company documents – don’t need the expert for that. Id.

Plaintiffs also wanted Dr. Shull to testify about how the defendants monitored adverse events. They claimed he was not offering an opinion as to what systems defendants should have been using just that what they were doing was “woefully inadequate.” The court found this was a “distinction without a difference.” Id. at *14-15. Dr. Shull’s experience as a surgeon does not give him the expertise to testify on the standard of care for adverse event reporting. Id. at *15. And, again if he planned to talk generally about adverse events, that’s company documents and not an area for expert testimony.

Finally, Dr. Shull’s report included an opinion on whether defendants appropriately trained physicians. On this point, the MDL court had already ruled that Dr. Shull could not testify about what should or should not be included in the Instructions for Use for the product – and that covers training of physicians. Dr. Shull could testify to the risks of the product and whether such risks were included in the product materials. Id. at *16. That’s it.

We’re not sure what remains in Dr. Shull’s report, but we certainly agree that the above portions were appropriately trimmed away.

Guest Post – Causation or No Causation, That Is the Question.

By Bexis on July 26, 2017

Today we feature another guest post from our European correspondents, Reed Smith partner Marilyn Moberg and associate Kathryn Bond. There has been another significant decision from the Court of Justice (its description, not ours) of the European Union, and once again it is bad news for manufacturers of life-saving prescription products – this time vaccines. Without stealing our guest bloggers’ thunder, let’s just say that the European attitude appears to be “Daubert? We don’t need no stinkin’ Daubert.” For the details, see below. As always our guest bloggers deserve 100% of the credit (and any blame) for what they write.

***********

Bonjour à tous.

Now that we have completely exhausted our entire high school French vocabulary, for today’s blog post we are traveling back across the Atlantic to France and Luxembourg. Today, we examine a recent judgment of the Court of Justice of the European Union relating to the evidentiary requirements for finding a causal link between a vaccine and an unrelated disease where there is no medical proof to support the existence of such a causal link. For our American readers who are familiar with the way vaccine cases used to be litigated, one may get a feeling of “déja vu,” and not in a good way.

If we cast our minds back to the 1980s scare over the DPT vaccine, large jury awards were given to plaintiffs despite the fact that most public health officials did not believe that there was a link between the vaccine and certain autism spectrum disorders. As a result of these cases, a number of vaccine makers decided to cease production. For the United States government, this development was worrying and threatened a drop in important childhood vaccinations. In order to encourage the continued production of vaccines, Congress passed the National Childhood Vaccine Injury Act, which set up the National Vaccine Injury Compensation Program (NVICP) in 1988 to compensate individuals (or their families) allegedly injured by certain covered childhood vaccines. The compensation scheme is funded by a tax on vaccines purchased. The scheme applies only to conditions that have already been determined administratively to be associated with the vaccine, therefore relieving (i) the plaintiff of the burden of proving a general causal link between the vaccine and the injury; and (ii) the vaccine producer of the cost of defending or settling expensive civil liability cases. The plaintiff is still required to prove that, on balance, a specific causal link between the vaccine and the injury. Although this scheme is limited to certain injuries caused by certain vaccines, it significantly reduced the number of product liability claims against manufacturers for vaccines. See generally Bruesewitz v. Wyeth LLC, 562 U.S. 223, 226-30 (2011) (describing NVICP and reasons for its enactment).

Now, back to the case at hand, which is Case C-621/15, N.W. and Others v Sanofi Pasteur MSD and Others (NW v Sanofi). The judgment has been widely reported as particularly favorable for claimants because it confirms that a claimant can establish, despite total lack of individualized corroborating medical evidence, a causal link between the vaccine and the disease where there is “serious, specific and consistent evidence” that a causal link exists.

By way of background, EU law on product liability is set out in the Product Liability Directive 85/374/EEC. Article 4 of the Directive stipulates that, in order to win a product liability claim, the claimant must prove the damage, the defect and the causal relationship between the defect and the damage. In other words, and unsurprisingly, the burden of proof is on the injured party.

In the NW v Sanofi case, NW developed multiple sclerosis a short period after being vaccinated against Hepatitis B. Although medical research has not established a connection between the Hepatitis B vaccine and multiple sclerosis, the claimant sought to rely on a provision of French case law of the Cour de Cassation (the highest French court). The case law provides that, in relation to the liability of producers of vaccines, proof of a causal link can be derived from “serious, specific and consistent presumptions” in the absence of medical research. The claimant believed that, on the basis of this case law, the French courts could take into account the following facts to find a “lien de causalité” or “causal link”: (1) the short time lapse between the administration of the vaccine and the onset of the disease; and (2) the patient’s lack of any personal or family history of the disease. Essentially, any product manufacturer becomes an insurer against any qualifying medical condition that might manifest itself during this short time lapse, regardless of scientific basis.

At first instance, the Tribunal de Grande Instance in Nanterre, France, found in favour of the claimant, but the decision was subsequently overturned on appeal by the Cour d’Appel in Versailles, France and the Cour d’Appel in Paris, France. When the case finally reached the Cour de Cassation, the judges faced some difficult questions concerning the compatibility of its case law with Article 4 of the Product Liability Directive. In particular, does Article 4 override France’s own national rules regarding the level of proof required to find a causal link between the defect and the damage? This was clearly a question of interpretation of EU law. The Cour de Cassation therefore referred this question to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling.

For those (most) of you not familiar with EU procedural law, here is some important background. The CJEU is based in Luxembourg and is the highest court of the European Union. The CJEU plays an important role in the EU, which includes interpreting EU law to make sure it is applied in the same way across all 28 (soon to be 27) Member States. One of the ways in which the CJEU achieves this is through the “renvoi préjudiciel” or “reference for a preliminary ruling,” which bears some resemblance to the American procedure of federal courts certifying state-law questions to state high courts for resolution. This procedure enables the courts of each Member State to refer questions to the CJEU for a ruling on the interpretation of a specific point of EU law. When the CJEU gives its ruling, its sole mandate is to rule on the point of EU law in question only.

In the case of NW v Sanofi, the CJEU considered the following points:

Whether Article 4 precludes the French Courts from considering its own national evidentiary rules (including those described above), in circumstances where medical research has not established a causal link between the administering of the vaccine and the disease, when determining whether there is a defect in the vaccine and whether there is a causal link between that defect and the disease?

In response to this question, the CJEU gave the following analysis at paras [18]-[43]:

It is ultimately the injured party’s responsibility to prove the damage, the defect and the causal relationship between the defect and the damage (para [19]).
The Product Liability Directive does not contain any definition of the concept of “causal relationship” for the purposes of Article 4 (para [22]). This means that, taking into account the principle of procedural autonomy of each Member State, it is for each Member State to establish:
1. the way in which evidence is to be provided;
2. what evidence is admissible;
3. the principles governing the national court’s assessment of the evidence; and
4. the level of proof required (para [25]).
The national court’s procedural autonomy should not, however, undermine the effectiveness of EU procedural rules. For example, the national rules should not bring about a reversal of the burden of proof set out in Article 4 of the Product Liability Directive (paras [26]-[27]).
The national courts must ensure that the evidence provided is sufficiently serious, specific and consistent to warrant the conclusion that, notwithstanding the evidence produced by the producer, a defect in the product appears to be the most plausible explanation for the occurrence of the damage, with the result that the defect and the causal link may reasonably be considered to be established (see para [37]).
Although the CJEU is not mandated to apply EU law to the facts of a specific case, the CJEU commented that facts such as:
1. a short time lapse between the administration of the vaccine and the occurrence of the disease;
2. the existence of a significant number of reported cases of the disease occurring following such vaccines being administered; and
3. a lack of personal and familial history of the disease,Based on the above analysis, the answer to the question was a clear “non,” provided that the specific application of a national court’s evidentiary rules do not result in the burden of proof in Article 4 being disregarded or undermined. Whether Article 4 precludes national evidentiary rules that are based on presumptions (such as a set of pre-determined causation-related facts) according to which, in circumstances where medical research has not established a causal link between the administering of the vaccine and the disease, a causal link can automatically be established?
4. The second question raised by the Cour de Cassation was the following:
5. could lead a national court to consider that the injured party has discharged its burden of proof under Article 4 (see para [41]).

In response to this question, the CJEU raised strong concerns. In particular, the CJEU held that establishing a set of pre-determined facts to automatically establish a causal link would make such presumptions irrefutable. This would therefore deprive the defendant from adducing evidence or putting forward arguments (such as scientific arguments) to rebut that presumption, which would not be a fair or effective result. Even if the defendant could rebut the presumption, the burden of proof would effectively be on the defendant rather than the injured party. This would therefore undermine the burden of proof of the injured party set out in Article 4 of the Product Liability Directive.

Based on the above analysis, the answer to the question was a strong “oui.”

There is no general Daubert requirement of verifiable scientific basis for causation in the EU. The CJEU’s judgment is a disturbing development as it lowers even further the standard of proof required from the injured party. However, as highlighted above, the national courts must ensure that the evidence provided is sufficiently serious, specific and consistent (however that might be interpreted) to warrant the conclusion that, notwithstanding the producer’s evidence, a defect in the product appears to be the most plausible explanation for the occurrence of the damage. Although the standard is lower, it is still a threshold. If the CJEU were to find causation without medical proof, the evidence brought by the injured party would have to be very compelling.

Now the pessimists – or perhaps “realists” – out there who remember the pre-NVICP vaccine litigation cases may think that this could make it too easy for plaintiffs to establish causation where there is no corroborating medical evidence and, as happened in the United States, result in a downturn in the availability of vaccines in Europe. Experts in the field are clearly concerned.

However, the full implications of this case are still unclear, and will perhaps remain unclear for some time. The case clearly reduces the burden of proof on the plaintiff, thus raising the spectre of adverse market consequences, but it remains to be seen how this will be adopted in practice by the national courts of the Member States.

In terms of the case at hand, the CJEU did not appear to contradict the most recent decision of the Cour d’Appel in Paris, which found that the plaintiff had not proved causation. It could (we wish) be a Pyrrhic victory for the plaintiff who, ironically, will likely be found by the relevant French court to have not proved causation.

We should also remember that this CJEU case concerns the application of national evidentiary rules. In this case, the French law of evidence set out in its Civil Code. As each Member State will have its own national evidentiary rules, the impact of the CJEU decision will vary depending on the relevant Member State’s own evidentiary rules.

Causation or no causation, that remains the question …

As Voltaire so intelligently put:

« Le hasard est un mot vide; rien ne peut exister sans une cause »

(“Chance is a word void of sense; nothing can exist without a cause”)

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The Rule of Law is the Best Medicine, Part 2

Causation Testimony Excluded as “Unhelpful” and “Unreliable” in Heart-Lung Machine Death Case

Plaintiff’s Expert’s Opinions Trimmed Post-Remand in Mesh Litigation

Guest Post – Causation or No Causation, That Is the Question.

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