Long ago, when we first started representing the makers of prescription pharmaceuticals, it was said that people did not tend to sue over life-saving medications.  Contraceptives, pain medications, obesity medications, diabetes medications, psychiatric medications, and many others were fair game, even if the risk-benefit calculus for an individual patient might involve major benefits on one side of the scale.  Plaintiff lawyers would not waste their time, it was said, with medications to treat potentially terminal cancer or other conditions that would kill the patient absent effective treatment.  Regardless of whether that old saw was ever true, dockets have been full for a while with cases about medications that are clearly life-saving.  (Some of those plaintiffs also seek to prevent the defendants from properly characterizing their medicines as life-saving, but that is a different matter.)

AIDS used to be one of those conditions that came with a death sentence.  Now, with dozens of medications, often combining different active ingredients, on the market since AZT was approved in 1987, the ability of the medical community to treat HIV, the virus that causes AIDS, is one of the great success stories of medicine.  Dr. Fauci and others from NIAID who have been in the news over the past several months played an important role in this success, but so too have pharmaceutical companies.  Not only can modern treatment regimens keep viral loads below detectable levels and make it so patients with HIV die of old age or unrelated conditions, but the advent of Pre-Exposure Prophylaxis with combinations of medications can prevent transmission in some instances, something unthinkable in the early days of the HIV/AIDS epidemic.

In Epstein v. Gilead Sciences, Inc., No. 19-81474-CIV-SINGHAL, 202 WL 4333011 (S.D. Fla. July 27, 2020) (Singhal, M.J.), these two trends intersected.  The plaintiff claimed to have suffered kidney and bone damages from his use of the prescription drugs Viread and Atripla, a combination of Viread and two other active substances.  In support, he asserted seven different state law claims, including that the drugs were defectively designed because Viread should have had tenofovir alafenamine instead of the tenofovir disproxil as its active ingredient, the drugs never should have been sold, and the drugs should have had different warnings about the risk of kidney and bone damage (of some sort).  This brought us to another trend:  implied preemption of design and warnings claims with branded prescription drugs.  Leading up to and for a while after the terrible Levine decision there was not much hope of getting such design and warnings claims out on preemption, let alone on a motion to dismiss.  But, after Mensing, Bartlett, Albrecht, and a bunch of cases along the way, things have changed for the better.

After noting the plaintiff’s position that “no federal law prevented Gilead from designing its TDF Drugs to be safer before FDA approval and because Gilead could unilaterally change their label to make it stronger to comply with state law” and citing Albrecht, two cases, and the Supremacy Clause, this was the entirety of the Court’s analysis:

Plaintiff’s Complaint is premised on the allegations that:  (1) Gilead should have designed Atripla and Viread with TAF instead of TDF, and thus, never should have sold Atripla and Viread; and/or (2) Gilead failed to adequately warn Plaintiff or his doctors about the bone and kidney risks associated with Atripla and Viread.  Gilead argues these claims are preempted, because Gilead could not have marketed or sold medications containing this design change without first seeking and obtaining FDA approval.  See 21 C.F.R. §314.7-(b)(2)(i) (defining “changes in the qualitative or quantitative formulation of the drug product” as “major changes” that “requir[e] supplement submission and approval prior to distribution of the product”).  This Court agrees, it would have been impossible for Gilead to comply with both its state duties to change the products’ labels and its federal duties not to make such changes without first obtaining FDA approval.  See Mut. Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 475 (2013).  Additionally, Plaintiff contends that TAF should have been used instead of TDF; however, the FDA approved Gilead’s formula and any changes would have required further approval.

Id. at *2.  As we said above, short and sweet.  (Not like the path described here.)  Also clearly right on the law.  The narrow CBE exception that Levine latched onto and made something so much bigger did not apply here.  (Peruse these posts, perhaps:  this, this, and this.)  Insisting that a drug should have had a different compound as its active ingredient is not really a design claim, but it definitely requires a few layers of FDA decisions that cannot be taken for granted.  So, plaintiff’s standard product liability claims were preempted.

Plaintiff asserted (and did not drop) state claim claims for fraud, express warranty, and implied warranty.  The Defendant also moved to dismiss those on preemption, but the court only evaluated them on the adequacy of pleading, presumably because of the doctrine of constitutional avoidance.  So, while the preempted claims were dismissed with prejudice, these three were dismissed without prejudice and the plaintiff was given a little time to try to amend.  We do not know yet if he took a second swing, but, if he did, we expect to see another preemption order out of this case.  Preferably, another one that is concise and correct like this one.

 

We’re calling this a “quasi” guest post because the author, Reed Smith‘s Dean Balaes, is actually trying out to join our blogging team.  This is his inaugural post, of what we hope will be many more.  This particular post addresses the causation aspects of a case, Gayle v. Pfizer, Inc., ___ F. Supp.3d ___, 2020 WL 1685313 (S.D.N.Y. April 7, 2020), that we mentioned in yesterday’s preemption post.  As we hope you’ll see shortly, the causation issues in Gayle are also interesting, and favorable to the right side of the “v.”  Without further ado, take it away Dean.

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As is often the case in pharmaceutical product liability actions, another group of plaintiffs’ claims suffered a fatal deficiency:  establishing a causal association between the drug at issue and the alleged injury.  Gayle v. Pfizer, Inc., ___ F. Supp.3d ___, No. 19-CV-3451, 2020 WL 1685313 (S.D.N.Y. April 7, 2020), illustrates this debilitating deficiency when the other side alleged that Lipitor causes Type 2 diabetes by relying on anecdotal adverse event reports.  This blog will provide specific attention and commentary regarding causation fallacies as observed in Gayle, but note that one should also review Gayle for its favorable preemption ruling.

The other side tried to Febreze the air around this malodorous causation reality by relying on 6000 adverse event reports related to an earlier “changes being effected” (“CBE”) labeling change between the defendant manufacturer and the FDA.  The idea was to suggest that the mere existence of adverse event reports related to a drug (without evidence showing a causal association between the drug and the alleged injury) means that the manufacturer knew that the drug categorically caused the disease.  Thus, the Gayle plaintiffs nitpicked the drug’s label change – claiming it only warned about two conditions related to Type 2 diabetes, but should have warned that it causes Type 2 diabetes.

Opposing counsel’s legal gymnastics to hurtle over the fallacy in causation did not work.  According to the FDA, adverse reactions listed in the label are limited to “only those adverse events for which there is some basis to believe there is a causal relationship between the drug and the occurrence of the adverse event.”  21 C.F.R. § 201.57(c)(7).  After initial FDA-approval, a manufacturer can change labels through the CBE regulation to promote the safe use of the drug product only on the basis of “newly acquired information.”  21 C.F.R. § 314.70(c)(6)(iii).  As the blog’s readers know from scores of preemption posts, the FDA narrowly defines “newly acquired information” as:

[D]ata, analyses, or other information not previously submitted to the [FDA], which may include (but is not limited to) data derived from new clinical studies, reports of adverse events, or new analyses of previously submitted data (e.g., meta analyses) if the studies, events, or analyses reveal risks of a different type or greater severity or frequency than previously included in submissions to the FDA. 

21 C.F.R. § 314.3(b) (cited at 2020 WL 1685313, at *3) (emphasis added).  FDA imposes this limit for a reason.  “Over-disclosure dilutes warnings of more significant adverse reactions both by likelihood and severity of the reaction and can unjustifiably deter patients from a helpful drug or therapy.”  Id. at *3.

On a motion to dismiss, there is no weighing of evidence yet to prove causation, so Gayle highlights a well- (or at least over-) used plaintiffs’ strategy just to plead some purported evidence – here adverse event reports – and allege that such reports mean that the defendant knew that Lipitor causes Type 2 diabetes.  It is like Senator Hendrickson in the 1954 comic book hearings alleging that reading comic books causes juvenile delinquency.  With no actual evidence proving causality, plaintiffs rely on anecdotal, one-sided, and unverified hearsay (see the blog’s cheat sheet here) such as adverse event reports.  Throw mud against the wall and hope something sticks − either plaintiffs do not have a firm grasp of logical causation, or (more likely) they are hoping judges do not, when all they plead is that there are adverse event reports making the same allegations.

Thus, these plaintiffs erroneously alleged that the 6,000 adverse event reports constituted “newly acquired information.”  Gayle, 2020 WL 1685313, at * 5.  TwIqbal prevailed again, as plaintiffs’ claims were dismissed with prejudice and either barred by the state’s statute of limitations or preempted by federal law (see the blog’s preemption cheat sheet here).  Whether it was one, or 6000, the pleading of adverse event reports were simply vague causation assertions that did not amount to a plausible claim.  See Id. at *5.  As the blog has already discussed, an entire MDL raising the same purported injury against the same drug was dismissed a few years ago for – guess what – failure to establish causation.  Indeed, one would not be at all surprised if the purported 6000 adverse event reports include thousands of plaintiffs from that previous MDL whose claims have already been conclusively adjudicated non-causal.

The fundamentally flawed presumption in the plaintiffs’ causation reasoning is simple:  a phenomenon cannot be proven to occur on the basis of anecdotal adverse event reports.  It is like the child who believes that the song of birds makes the morning happen or the Monte Carlo Fallacy, which makes gamblers believe that a winning streak increases the chances of future winnings.  Alas for plaintiffs, coincidence is not causation.  These plaintiffs’ reliance on adverse event reports did not constitute “newly acquired information” because the reports merely described instances “where patients taking [the drug] were diagnosed with type 2 diabetes, but do not reach any conclusions regarding a causal association.”  Id. at * 6.  Thus, “under a plain reading of the regulations, adverse event reports, without any analysis indicating causality, cannot constitute ‘newly acquired information.’”  Id.

Gayle is worth the read because it is yet one more case (and this is yet one more post) reminding plaintiffs that the mere presence of anecdotal adverse event reports does not necessitate a causal connection based on coincidental relationships. Thankfully, Gayle also shows that judges do understand the fallacies of logical causation.

We’ve noticed quite a few prescription drug preemption decisions lately involving “newly acquired information.”  That’s because the Supreme Court doubled down in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), on the boundary of impossibility preemption being set by a defendant’s ability to utilize the FDA’s “changes being effected” regulation, 21 C.F.R. §314.70(c)(6)(iii)(A), to make certain label changes unilaterally. 139 S. Ct. at 1673.  If a defendant can’t make a CBE change, then it has to get FDA pre-approval for that change, so a state-law claim for not based on not changing the label is preempted under the Mensing independence principle.  You can find all these cases on our post-Levine prescription drug preemption cheat sheet.

While we question the wisdom of having something as important as preemption turn on the complexities of an FDA regulation not intended for that purpose, Albrecht is what it is.  Thus, we’ve been parsing the CBE regulation closely, looking at the prerequisites for its application.  Chief among them is a requirement that a manufacturer possess “newly acquired information” concerning a “clinically significant adverse reaction.”  See 21 C.F.R. §201.57(c)(6)(i) (defining “newly acquired information” for purposes of CBE regulation as concerning an adverse reaction that is either “potentially fatal,” “serious even if infrequent,” or can “be prevented or mitigated through appropriate use of the drug”).  These definitions give our side quite a bit to work with.

Albrecht was decided a little less than a year ago.  Post-Albrecht precedent can’t tell us definitively what “newly acquired information” is, but we can identify with some confidence four things that are not enough.

First, because the information in question must be “new,” when “the undisputed evidence shows that the FDA was aware of the nature of the data it received from” the manufacturer, that data isn’t “new,” even when it is later regurgitated in another article.  Dolin v. GlaxoSmithKline LLC, 901 F.3d 803, 815 (7th Cir. 2018) (blogged about here).  In CBE-land, plagiarism cannot preclude preemption.  “[A]ny claim that a drug label should be changed based solely on information previously submitted to the FDA is preempted because the CBE regulation cannot be used to make a label change based on such information.”  In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices & Product Liability Litigation, 185 F. Supp.3d 761, 769 (D.S.C. 2016).  “New” information must “reveal[] risks of a different type or greater severity or frequency than previously included in submissions to the FDA.”  Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 708 (2d Cir. 2019) (quoting 21 C.F.R. §314.3(b)) (blogged about here).

Thus, the plaintiffs in Ridings v. Maurice, ___ F. Supp.3d ___, 2020 WL 1264178 (W.D. Mo. March 16, 2020) (blogged about here), could not avoid preemption where “[b]y and large, nearly all of the ‘newly acquired information’” they relied upon “still relies upon . . . and reflects information – for all intents and purposes – that was provided to the FDA at the time of the initial approval of [the drug] for the American market.”  Id. at *15.  Information that was in essence “previously submitted to the [FDA]” or that “contained the same figures as [defendant’s pre-approval] analysis, which [was] submitted to the FDA” doesn’t become shiny and new again simply because somebody discusses it again later on.  Roberto v. Boehringer Ingelheim Pharmaceuticals, Inc., 2019 WL 5068452, *18 (Conn. Super. Sept. 11, 2019) (blogged about here).  Accord Adkins v. Boehringer Ingelheim Pharmaceuticals, Inc., 2020 WL 1890681, at *10 (Conn. Super. March 13, 2020) (reaching same conclusion as Roberto) (blogged about here).

Second, data cannot be “new” when that data did not exist until after a particular plaintiff’s use of the drug was over. “[N]ewly acquired information must have been available to [defendant] after the FDA approved the relevant label on . . ., but before Plaintiff last used [the product].”  Mahnke v. Bayer Corp., 2020 WL 2048622, at *3 (C.D. Cal. March 10, 2020).  “The Court will disregard the many articles cited in the Amended Complaint that were published after [plaintiff’s] last [use of the product].  These studies can have no bearing on her failure-to-warn claim.”  Sabol v. Bayer Healthcare Pharmaceuticals, Inc., ___ F. Supp.3d ___, 2020 WL 705170, at *12 n.13 (S.D.N.Y. Feb. 12, 2020) (blogged about here).

[T[he complaint does not cite any newly acquired information that arose after the FDA’s approval of [the product’s] revised label . . . and before Plaintiff was administered [the product. . . .  Without factual allegations that [defendant] had new information in this time period such that it could have or should have amended the label pursuant to the CBE regulation, the complaint is barred as preempted.

Goodell v. Bayer Healthcare Pharmaceuticals, Inc., 2019 WL 4771136, at *4 (D. Mass. Sept. 30, 2019) (blogged about here).

In Ridings, the plaintiff used the drug at issue between early 2012 and mid-2013.  2020 WL 1264178, at *5, 11.  “[S]tudies published after a plaintiff’s injury [are not] relevant to constitute newly acquired information.”  Id. (quoting Roberto, 2019 WL 5068452, at *14).  “Based on [that] reasoning,” Ridings determined that post-use materials could not “constitute even prima facie ‘newly acquired information’” and did not consider that material further.  Id. at *16.  Accord McGrath v. Bayer HealthCare Pharmaceuticals, Inc., 393 F. Supp.3d 161, 170 (E.D.N.Y. 2019) (“this study . . . was published after Plaintiff’s exposure to [the product] and thus cannot support a failure-to-warn claim based on what [defendant] knew or should have known”).

Third, “[c]linically significant” risks must be “‘potentially fatal’ or ‘serious,’ [or have] a ‘significant impact on therapeutic decision-making.’”  Klein v. Bayer Healthcare Pharmaceuticals, Inc., 2019 WL 3945652, at *5 (D. Nev. Aug. 21, 2019) (quoting 71 Fed. Reg. 3922, 3946 (FDA Jan. 24, 2006)) (blogged about here).  Thus, post-Albrecht case law also rejects inconclusive studies as “newly acquired information.”

[S]tudies concluding that it “remains unknown” whether a drug is linked to a particular adverse reaction or risk or that “further studies are required to address possible clinical consequences” do not constitute reasonable or well-grounded scientific evidence of “clinically significant adverse effects” under the CBE regulation.

Ridings, 2020 WL 1264178, at *15.

McGrath likewise held that “[r]eports and studies that . . . do not reach any conclusions regarding the adverse effects or risks” of a product cannot be “newly acquired information” that could support a going ahead with a CBE warning change.  393 F. Supp.3d at 169 (emphasis original).  “[I]t helps precious little to mount scientific minutiae on top of technical jargon if that information ultimately does not plead a plausible causal association between [the product] and adverse effects.”  Id.  See Sabol, 2020 WL 705170, at *13 (“a tentative, at best, suggestion of a causal relationship” cannot “support[] the inference” of “a clinically significant adverse reaction that would require a manufacturer to change its label”); Adkins, 2020 WL 1704646, at *13 (article’s “rather tentative statement . . . and its conclusion that its proposal . . . ‘lends itself to further clinical trials’ do not establish newly acquired information”).In sum, the “new information” at issue must make out a “a reasonable, if not compelling, causal association” so that the risk at issue “become[s] apparent” as specified by AlbrechtMcGrath, 393 F. Supp.3d at 170-71 (quoting Albrecht, 138 S. Ct. at 1677) (emphasis original).

Fourth, unanalyzed adverse event reports are sufficiently low on the hierarchy of scientific evidence that they “do[] not necessarily reflect a conclusion . . . that the drug caused or contributed to an adverse effect.”  Gayle v. Pfizer Inc., ___ F. Supp.3d ___, 2020 WL 1685313, at *5 (S.D.N.Y. April 7, 2020) (quoting 21 C.F.R. §314.80(l)).

[A]dverse event reports do not constitute “newly acquired information.”  In order to qualify as “newly acquired information,” the information must demonstrate “reasonable evidence of a causal association with a drug.”  But “[t]he fact that a user of a drug has suffered an adverse event, standing alone, does not mean that the drug caused that event.”  The reports describe instances where patients taking [the drug] were diagnosed with [a condition] but do not reach any conclusions regarding a causal association.  Under a plain reading of the regulations, adverse event reports, without any analysis indicating causality, cannot constitute “newly acquired information.”

Id. (quoting Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 44 (2011), other citations omitted).  Raw AERs “miss[] the mark,” where plaintiffs “offer no analysis” and “merely proffer the adverse event reports by themselves.”  Id.  Voluntarily collected AERs are such weak evidence that “sheer numbers of case reports . . . reveal little about how frequently the events occur in the broader patient population.”  Utts v. Bristol-Myers Squibb Co., 251 F. Supp.3d 644, 664 (S.D.N.Y. 2017) (blogged about here), aff’d, 919 F.3d 699 (2d Cir. 2019).  Even “[r]eports and studies that discuss” adverse events are not “newly acquired information.”  McGrath, 393 F. Supp.3d at 169.

We’ve said it before, and we’ll say it again – many (probably most) allegations of causation that we get from the other side are based on pseudoscientific garbage.  With Albrecht mandating that courts, not juries, decide preemption questions, plaintiffs are no longer entitled to the benefit of the doubt, because courts now have to decide “material” factual disputes in the preemption context.  A judge who “simply ask[s] himself or herself whether the relevant federal and state laws irreconcilably conflict,” 139 S. Ct. at 1679, is much more likely to see the garbage for what it is, and to do the right thing.

Not too long ago, our search keyed to Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), picked up the following article in Trial Magazine:  Abaray & Harman, “Navigating Preemption After Merck,” 56 Trial 20 (Jan. 2020).  For anybody who doesn’t know, Trial is the house organ of the American Ass’n for Justice – the rebranded name for ATLA – and thus a thought leader for the other side of the “v.”

Cognizant of the limits of fair use, we thought we’d provide our views on those arguments.  We’ll start with trivia – we prefer using plaintiff names to describe cases where, as here, there are many cases out there against the named defendant, so we’ll continue calling it Albrecht, except possibly in formal briefing.  That’s the same rule we use for Bauman, Levine, Lohr and a number of other cases we cite frequently where the sides of the “v.” were flipped by the vagaries of the appellate process (usually signifying that the defendant lost in an intermediate appellate court).  Speaking of naming conventions, we’ll refer to the article in this post as “NPAM.”

First off, we agree with the other side that “[a] court’s decision whether state law failure-to-warn claims are federally preempted is a pivotal, sometimes dispositive point in pharmaceutical litigation.”  NPAM, 56-JAN JTLATRIAL 20, at *21 (we’re using Westlaw cites and pagination, since we don’t subscribe).  In fact, for precisely that reason, we’ve supported Lawyers for Civil Justice in its not-yet-successful quest to have certain MDL decisions, including preemption, become eligible for immediate interlocutory review.  As for the Albrecht angle to this, we’ve mentioned before that the Court’s main holding in Albrecht – that preemption is a question of law to be decided by the court – should make the case for interlocutory appeals easier, both before the Rules Committee and under current standards:

[O]ne type of MDL ruling that everyone agrees qualifies as “important” is preemption.  Now that Albrecht has disconnected preemption decisions from factual disputes that require jury resolution, preemption rulings thereby become much more discrete, and thus collateral. . . .  Thus, Albrecht makes it much easier for the defense side to argue that MDL preemption decisions . . . are not only important, but procedurally severable, so as to facilitate interlocutory appeal.

In the same paragraph, and indeed throughout the NPAM article, the authors refer to “impossibility” preemption.  They’re right that Albrecht was an impossibility case, but wrong if they think its holdings are so limited.  In particular, the key holding that made Albrecht our #1 good case for 2019 is that preemption is a legal issue applies to all preemption cases.  That is how post-Albrecht decisions have treated it.  See Delfino v. Medtronic, Inc., 2019 WL 2415049, at *10 (Minn. App. June 10, 2019), review denied (Minn. Aug. 20, 2019) (express preemption case; “the issue of whether [something] constituted a federal requirement is a question of law to be decided by a judge”).  Delfino went on to hold that, given the Albrecht holding that preemption was an issue of law, it was proper to exclude plaintiff’s expert, since experts may not opine on questions of law.  Id. at *12 (“we explained in the preceding section, ‘determining compliance with a regulation . . . is a question of law”; “expert opinion as to a legal matter is generally inadmissible,” so the district court did not abuse its discretion by prohibiting [plaintiff’s expert] from opining on a legal question”).

Even though the Albrecht Court only decided the legal/factual question point, and with it the collateral proposition that there is no heightened evidentiary standard in preemption cases, the majority did reach out and alter the criteria for “clear evidence” of impossibility preemption in cases “like” LevineAlbrecht, 139 S. Ct. at 1678.  Levine (which the Court calls “Wyeth”) had stated:  “absent clear evidence that the FDA would not have approved a change to [the drug’s] label, we will not conclude that it was impossible for [defendant] to comply with both federal and state requirements.”  Wyeth v. Levine, 555 U.S. 555, 571 (2009).  Albrecht turned Levine’s holding into something resembling a multi-part test:

[I]n [Levine], we confronted that question in the context of a particular set of circumstances. . . .  In a case like [Levine], showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning.

Albrecht, 139 S. Ct. at 1678.

Almost all of NPAM focuses on various parts of this language – except it ignores the Albrecht majority’s “like” Levine qualifier entirely.  Indeed, the word “like” appears nowhere in NPAM.  That has a number of consequences that we will point out.

NPAM interprets Albrecht as eliminating any consideration of what FDA “would not have” done under the Levine standard.  NPAM, 56-JAN JTLATRIAL 20, at *22.  However, that is only true in cases “like” Levine.  In Levine, there was no claim or evidence that anyone other than the manufacturer had sought any relevant agency decision.  NPAM’s statement that “the manufacturer must have submitted a label change, and the FDA must have rejected it,” id., is thus way overbroad.  For years, pro-plaintiff organizations, usually in connection with litigation, have filed “citizen petitions” with the FDA concerning identical risks and demanding either warnings or to have the drug in question removed from the market.  FDA rulings on such petitions are final agency action.  21 U.S.C. §355(q)(1)(F); 21 C.F.R. §10.30(e)(3) (requiring publication of the FDA’s decision in the Federal Register).  Citizen petitions also produce “an official administrative record for an FDA decision.”  Albrecht, 139 S. Ct. at 1680.  See 21 C.F.R. §10.30(i) (specifying the “record of the administrative proceeding”).

NPAM’s argument, 56-JAN JTLATRIAL 20, at *25-26, that courts should ignore FDA resolution of citizen’s petitions ignores Albrecht’s “like” Levine qualifier to the discussion of what “manufacturers” submit.  Essentially, plaintiffs are trying to have it both ways – so their fellow traveler organizations (and even plaintiffs’ counsel themselves) can petition the FDA about anything they want with no consequences when the FDA denies their petitions, formally and on the record.  As we’ve pointed out before, post-Albrecht cases involving FDA resolutions of identical issues in citizen’s petitions agree with us.  An on-point FDA ruling on a citizen’s petition is a “set of circumstances with a key difference.”  Cerveny v. Aventis, Inc., 783 F. Appx. 804, 808 n. 9 (10th Cir. 2019); accord State v. Purdue Pharma L.P., 2019 WL 3776653, at *2-3 (N.D. Dist. July 22, 2019).  We also note that, to the extent NPAM advocates serving intrusive discovery on the FDA concerning its internal deliberations, 56-JAN JTLATRIAL 20, at *25, that is unlikely to succeed under United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).  For more about that, see here.

We also designated Albrecht as our #6 worst case of 2019, and one point NPAM discusses is the primary reason why.  “Lesser steps such as conversations with FDA employees, email exchanges, or internal FDA analyses of scientific data do not establish a federal requirement that can give rise to impossibility preemption.”  Id. at *22.  We think that’s probably correct, except when such “conversations,” exchanges,” or “analyses” produce some “other agency action carrying the force of law.”  Albrecht, 139 S. Ct. at 1679 (citing “e.g., 21 U.S.C. §355(o)(4)(A)”).  This arguable retreat is the primary reason for our designation.  Secondarily, are all the other, bogus arguments that plaintiffs will advance claiming support in Albrecht (in other words everything else in NPAM).

Albrecht stated, “[t]he Supremacy Clause grants ‘supreme’ status only to the ‘the Laws of the United States,’” 139 S. Ct. at 1679 (quoting U. S. Const., Art. VI, cl. 2.), so informal back-and-forth with the FDA by itself wouldn’t seem to qualify.  But preemption motions based on nothing more than that just aren’t very common.  The Third Circuit, for one, closed that door over a decade ago in Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 250 (3d Cir. 2008) (FDA “advisory and backgrounder” insufficient basis for conflict preemption).

Further, we think the converse is also true.  NPAM points out what falls short of Albrecht are “informal statements are not binding on the FDA.”  56-JAN JTLATRIAL 20, at *22.  Well, plaintiffs in both express and implied preemption situations (especially involving generic drugs) often seek to oppose preemption under “the Laws of the United States” with their own collection of FDA actions lacking the requisite “force of law.”  Albrecht, 139 S. Ct. at 1679.  Two prime examples are FDA warning letters and Forms 483.  This type of argument is particularly common in PMA preemption litigation, where the operation of an express preemption clause (21 U.S.C. §360k(a)), is frequently opposed by purported “parallel” claims also relying solely on “informal statements [that] are not binding on the FDA.”

Also, attention needs to be paid to Albrecht’s citation of §355(o)(4)(A) as an example of “other” preemptive “agency action carrying the force of law”:

If the [FDA] becomes aware of new information, including any new safety information or information related to reduced effectiveness, that the Secretary determines should be included in the labeling of the drug, the Secretary shall promptly notify the responsible person or, if the same drug approved under subsection (b) is not currently marketed, the holder of an approved application under subsection (j).

(Emphasis added).  Note, the reference to “subsection (j)” involves generic drugs.  This regulation cited by Albrecht nicely dovetails with the limitation of the FDA’s so-called “CBE regulation” authorizing unilateral changes to warnings only to” reflect newly acquired information.”  Albrecht, 139 S. Ct. at 1679.  FDA activity pursuant to this statutory power – whether affirmative or negative – should, if sufficiently formal, also support preemption in prescription drug cases.

Since the same “new information” both obligates the FDA to act unilaterally under §355(o)(4)(A) and allows the manufacturer to change warnings unilaterally under the CBE regulation, defendants desirous of the protections of preemption would be well advised to obtain formal FDA no-action letter under §355(o)(4)(A) to avoid the other side’s arguments outlined in NPAM.  NPAM concedes this as a valid reason for preemption, but describes it as “rare,” 56-JAN JTLATRIAL 20, at *23 n.12.  Albrecht provides reasons for our side to ensure that FDA decisions of this sort become much more common.

NPAM also urges plaintiffs to oppose preemption with intrusive discovery into the basis for any FDA’s decision rejecting the warning change at issue:

If the manufacturer establishes that the FDA denied the proposed label change, request discovery of all communications between the defendant and the agency pertaining to the risk at issue, and specifically request the drug manufacturer’s CBE or PAS submissions asking for the label change.

56-JAN JTLATRIAL 20, at *23.  That presents an obvious conflict with Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), as the article anticipates.  Id.  To argue that “Buckman should not be an obstacle to challenging a drug manufacturer’s deficient submissions to the FDA,” NPAM, 56-JAN JTLATRIAL 20, at *24, relies on the highlighted portion of the following discussion:

[I]f the FDA rejected a drug manufacturer’s supplemental application . . . on the ground that the information supporting the application was insufficient to warrant a labeling change, the meaning and scope of that decision might depend on what information the FDA had before it.  Yet in litigation between a drug consumer and a drug manufacturer (which will ordinarily lack an official administrative record for an FDA decision), the litigants may dispute whether the drug manufacturer submitted all material information to the FDA.

Albrecht, 139 S. Ct. at 1680.

The excerpt was from a discussion of why preemption is a legal, rather than a fact, question, and the Court doesn’t mention, let alone distinguish, Buckman.  Thus, it hardly stands for ignoring a unanimous Supreme Court decision.  It’s not the “litigants” who decide whether the FDA was fully informed.  Rather, under Albrecht, “the FDA, and only the FDA, can determine what information is “material” to its own decision to approve or reject a labelling change.”  In re Avandia Marketing, Sales & Products Liability Litigation, 945 F.3d 749, 759 (3d Cir. 2019) (emphasis original).  The obvious alternative is to ask the FDA.  We addressed the relationship between Albrecht and Buckman in more detail, here.

This can be done in several ways.  First, courts of the view that “only the FDA” can make the requisite determination could apply the doctrine of primary jurisdiction, which as we’ve discussed elsewhere, is the most reliable means to ensure that the FDA has requisite opportunity.  We haven’t seen a post-Albrecht decision addressing primary jurisdiction, but it’s the strongest option short of preemption itself to preserve the FDA’s decision-making power.  Second, as we discussed earlier in this post, another way is via citizen petition.  That was done recently in the Zofran, MDL, with the MDL judge telling the FDA he would express “no view as to the merits,” while urging the agency to “make its decision based on the relevant scientific and medical criteria, and according to the law, without regard to its potential impact on the litigation,” and to do so “without undue delay.”  Public letter to FDA, Zofran MDL PACER Docket #1773 (D. Mass. Dec. 13, 2019).

The NPAM article mentioned a third option, seeking an FDA amicus brief, something courts do from time to time (the last request we’re aware of happening in Albrecht itself).  The simple fact that the Supreme Court did precisely this in Albrecht substantially undercuts NPAM’s argument that FDA amicus briefs on “clear evidence” preemption questions:

[A]sk[] the court and the FDA to speculate about what the agency would have done in a counterfactual world in which the drug manufacturer fully informed the FDA.  Based on [Albrecht], such speculation has no place in a preemption analysis.

56-JAN JTLATRIAL 20, at *24.  This argument makes little sense.  First, courts routinely ask the FDA for amicus briefs in preemption cases, and even find such briefs persuasive in other cases.  E.g., Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 774-75 (3d Cir. 2018) (relying on requested FDA amicus brief in preemption decision); Williams v. Mentor Worldwide LLC, 2019 WL 4750843, at *6 (N.D. Ohio Sept. 30, 2019) (preemption decision citing FDA amicus brief in prior case); In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, 401 F. Supp.3d 538, 552, 554 (D. Md. 2019) (same as Williams, citing Shuker FDA amicus brief multiple times).  Second, there is nothing “counterfactual” or “hypothetical” about asking the FDA to state whether or not a specific decision that it has already made was “fully informed,” in light of whatever additional material the plaintiffs have brought forward.  This particular argument is based on one thing – plaintiffs’ fear of the prerequisites for preemption being decided by an independent, unbiased decision maker.

Finally, we’d like to point out all the preemption-related arguments NPAM avoids mentioning.  First and foremost, NPAM stays away from express preemption in PMA medical devices, as well as generic drug preemption.  As we’ve mentioned, the conclusion that preemption is a “legal question” and its emphasis on FDA decisions with “force of law” will have (and has already had) significant beneficial effects for defendants in all preemption cases:  (1) thumbs are now off the evidentiary scale – as we’ve discussed, the judge “simply ask[s]” who has the better of the argument, 139 S. Ct. at 1679; (2) precluding of expert testimony on questions of law; (3) Albrecht’s reiteration of the FDA’s CBE regulation as the basis for avoiding preemption, id., reinforcing the other, CBE-related bases for preemption, such as “newly acquired” information and other exceptions to that regulation; (4) Albrecht’s omission of any mention of a “presumption” against preemption from its restatement of Levine; (5) recognition of “overwarning” as a policy concern, id., at 1673 (“exaggeration of risk, or inclusion of speculative or hypothetical risks, could discourage appropriate use of a beneficial drug . . . or decrease the usefulness and accessibility of important information by diluting or obscuring it”); and (6) better arguments for interlocutory review.  There are good reasons we awarded Albrecht the # Best decision of 2019 that NPAM has no response to, and therefore remains mum.

We’re not just blowing smoke.  It’s still quite early, but we’ve already seen post-Albrecht decisions discussing overwarning.  McGrath v. Bayer HealthCare Pharm. Inc., 393 F. Supp. 3d 161, 169 (E.D.N.Y. 2019); Klein v. Bayer Healthcare Pharmaceuticals, Inc., 2019 WL 3945652, at *5 (D. Nev. Aug. 21, 2019).  Several courts have applied the “new evidence” limitation to the CBE exception and ruled in favor of preemption.  McGrath, 393 F. Supp.3d at 171; Goodell v. Bayer Healthcare Pharmaceuticals, Inc., 2019 WL 4771136, at *4 (D. Mass. Sept. 30, 2019); Pradaxa Cases, 2019 WL 6043513, at *3-4 (Cal. Super. Nov. 8, 2019); Roberto v. Boehringer Ingelheim Pharmaceuticals, Inc., 2019 WL 5068452, at *13 (Conn. Super. Sept. 11, 2019).

Welcome to our annual Elysium tour, in which we electronically acknowledge the sweet nectar of victory flowing from the top ten drug/device product liability decisions of the year.  It’s time to salute those fortunate decisions that brought the judicial Midas touch to our clients’ cases.  We echo what we said last year:  “we’re looking for nothing but pleasant news . . . [a]nd make no mistake about it, there’s plenty to celebrate this year.”

Occasionally, a court will do something decidedly anti-Dionysian, with an eleventh-hour awful decision (the infamous Bausch v. Stryker Corp., 630 F.3d 546 (7th Cir. 2010), was decided two days before Christmas), but barring that, we’re expecting pleasant dithyrambs from 2019’s paragons of judicial reasoning.

Before the Great Panathenaia begins, we remind readers that our scope of coverage is limited.  Our top (and bottom) ten lists are limited to cases involving prescription medical product liability litigation (relatively broadly defined).  Cases are decided each year that significantly impact what we do, even though not involving prescription medical products.  So, we’ll tip our collective pilei to In re Amendments to the Florida Evidence Code, 278 So.3d 551 (Fla. 2019) (discussed here), not really a “case” at all, but a monumental step forward for Florida law – adopting a Daubert-based standard for admissibility of expert witnesses.  Kudos also to two talc wins, State ex rel. Johnson & Johnson v. Burlison, 567 S.W.3d 168 (Mo. 2019) (discussed here), granting mandamus to disapprove venue abuse in St. Louis; and Johnson & Johnson Talcum Powder Cases (Echeverria), 249 Cal. Rptr. 3d 642 (Cal. App. 2019) (discussed here), j.n.o.v.ing several parts (including punitive damages) of an absurd $400+ million verdict and granting a new trial as to the rest due to inadequate causation evidence.  Also noteworthy is Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, ___ N.E.3d ___, 2019 WL 5792847 (Mass. App. Nov. 7, 2019) (discussed here), the first express appellate condemnation of plaintiff-side “reptile” tactics.  Finally, we recognize American Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc) (discussed here), for holding that the First Amendment precludes governmental mandate of a controversial “safety” statement in product advertising.

Enough with the introductions.  Now, let’s proceed with the panegyrics.

  1. Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019).  Even though Albrecht has enough aspects we don’t like to be named simultaneously as our sixth worst case, the Court’s disposition of the core preemption issues promises to be so beneficial to all defendants that Albrecht is also our number one best case for 2019.  Already, it wiped out our worst case of 2017, as well as two decisions that otherwise might have made this year’s bottom ten.  The impact of Albrecht’s holding that preemption is always a question of law for the court – including resolution of any subsidiary factual disputes – should have numerous beneficial effects.  The Third Circuit’s ill-fated “clear and convincing evidence” standard likewise vanished with the “question of fact” misnomer, and with no facts for juries to decide, the summary judgment “most favorable to nonmovant” standard for viewing facts also drops out (it hasn’t applied in analogous patent litigation).  Albrecht thus removed pro-plaintiff thumbs from the evidentiary scale in preemption cases.  In 95% of preemption cases (at least), we think defendants have the better side of the regulatory record, thus we should win most straight-up preemption arguments.  Courts can no longer cop out, or kick the can down the road, with the excuse of “disputed” facts.  Since expert testimony on questions of law is improper, obfuscation of preemption issues by paid “FDA experts” should lessen.  Also, with preemption as a discrete legal issue, separate from trial, arguments for interlocutory review of adverse preemption decisions improve (although judicial factual determinations, where present, may well get appellate “clearly erroneous” deference).  These points improve defense chances in all preemption cases, implied or express, since a level playing field should also greatly assist defeating FDCA intensive “parallel violation” claims in PMA preemption cases.  Other useful points include the Court’s first discussion of “overwarning” as a policy concern.  Albrecht omitting any “presumption” about preemption in its extensive Levine (2009-1) discussion, instead using only the older “assumption” language.  The last vestiges of the so-called “presumption against preemption” are now in doubt.  Albrecht also doubled down on the FDA changes-being-effected (“CBE”) regulation defining Levine’s safe harbor against impossibility preemption, which creates preemption arguments for everything that CBE doesn’t cover.  Even the reformulated FDA “fully informed” gloss on Levine “clear evidence” opens the door to the FDA itself answering that question (see the above 95% reference).  Likewise, the decision’s discussion of “force of law” also cuts both ways, and should restrict plaintiffs’ ability to rely on warning letters and other FDA actions lacking the required legal status.  Since preemption is the strongest defense our side has, all these favorable holdings and implications make Albrecht our number one decision for 2019.  We analyzed Albrecht on multiple occasions, most notably here and here, and will undoubtedly do so again.
  2. Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019).  Gibbons is a two-fer.  Its preemption ruling is extremely helpful – affirming in all respects the district court’s extensive and expansive preemption rulings based, not on Levine (2009-1) clear evidence, but on the “newly acquired information” limitation in the FDA’s CBE regulation.  Those rulings showed the strength of “newly acquired evidence” as a separate preemption basis, enough to be our top district court decision in 2017Gibbons also confirmed that Mensing (2011+1)/Bartlett (2013+1) preemption is indeed of universal applicability, and not limited (as plaintiffs argued) to generic drug cases.  Thus, whenever FDA pre-approval is required for a given alteration in the design or warning of a drug (or device), the Mensing independence principle mandates preemption.  Gibbons also confirms the value of TwIqbal in preemption cases, upholding preemption where plaintiffs failed to plead any “newly acquired information” that could get them into Levine’s CBE preemption safe harbor.  Gibbons demonstrates the power of preemption – an entire MDL went down to defeat.  That’s one.  The second part of Gibbons strongly confirmed that defendants can properly remove cases to federal court before service of process on a “forum defendant” that would otherwise prevent removal.  That’s what the statute said, so that’s what defendants can do.  Litigation tourist plaintiffs have exploited the archaic “forum defendant rule” to create mass torts in their favored locales, even though their target defendant is otherwise diverse and would be exposed to pro-plaintiff “home cooking” in such places.  For handing defendants wins in both preemption and removal, Gibbons comes in second only to a Supreme Court decision.  We goggled over Gibbons here.
  3. Weber v. Allergan, Inc., 940 F.3d 1106 (9th Cir. 2019).  Preemption, again.  Hey, it’s our strongest defense.  In this pre-market approval case, the plaintiff sought to prove the FDCA violation necessary to support a “parallel violation” claim on what amounted to res ipsa loquitur – asserting that a device malfunction allows the inference, not just of a product defect, but of a regulatory violation (but don’t ask the plaintiff what it was).  Weber became the first appellate court to hold that plaintiffs can’t do that.  Res ipsa loquitur may allow inference of a product defect, but not a violation of any particular regulation.  Instead, to avoid preemption, a plaintiff must show that the defendant device deviated from the device’s pre-market approval requirements or some other applicable FDA standard.  The FDA approves devices knowing they can malfunction.  Since full compliance can’t eliminate malfunctions, no inference of regulatory violation from a mere malfunction is possible.  A secondary, and helpful, ruling in Weber was that a factual description of clinical trial results did not create any express warranty that every device would always perform within that description.  Such a mandatory guarantee was “different from” applicable FDA requirements, and thus also preempted.  We welcomed Weber here.
  4. In re 3M Bair Hugger Litigation, 924 N.W.2d 16 (Minn. App. 2019).  The appellate decision that put an end to the Bair Hugger litigation rates as our best state-court decision of 2019.  The opinion described what we called the “Dostoyevskian” origins of the litigation, stirred up by the jilted inventor of the device, who left the company under a legal cloud, invented a competing device, and then tried to use this product liability litigation as a tool either to obtain a competitive edge or to force the defendant to buy his company.  Suffice it to say, that it did not end well for plaintiffs – particularly since the FDA disagreed with the inventor’s supposed “scientific” study of comparative device safety.  Of course, the thrice-jilted inventor also served as plaintiffs’ expert in the litigation.  Minnesota doesn’t follow Daubert, but in Bair Hugger that hardly mattered.  The novel scientific theory touted by plaintiffs and their expert wasn’t generally accepted, so all the Bair Hugger claims failed on causation grounds.  The best legal ruling in Bair Hugger was that the Frye test (Minnesota’s version, anyway) applied to both methods and to ultimate opinions.  In other words, even when an expert is devious enough to manipulate accepted methods to reach a crazy result, the craziness of the result is sufficient to require exclusion.  We gave Bair Hugger a big hug here.
  5. Robinson v. Davol, Inc., 913 F.3d 690 (7th Cir. 2019).  Robinson was our best Daubert decision of the year.  Plaintiff had a medical device – later recalled – implanted.  Plaintiff also died from after implantation of the device.  Plaintiff’s problem was that the two didn’t relate to each other.  The recall did not involve any risk pertinent to the the decedent’s death.  Plaintiffs’ three experts tried, but failed.  The first simply wasn’t competent to make such a diagnosis.  He was a “biomedical engineer” but didn’t know the medical issues surrounding the death.  The second, the coroner who performed the autopsy, and later hired as a plaintiff-side expert, was properly excluded on the procedural ground of not being timely disclosed as a retained expert, since those opinions went beyond the autopsy.  The third expert made up a novel causation theory, but had no pre-existing science to support his ipse dixit.  He claimed to have seen it happen in his other patients, but refused to identify the patients or produce relevant medical records.  Nor did the decedent’s medical records or autopsy contain any support.  The Seventh Circuit found that opinion the paradigm of unreliability.  No “differential diagnosis” worthy of the name was conducted, because the expert lacked any basis for ruling in the device as a possible cause.  We recommended Robinson here.
  6. Sherman v. Pfizer, Inc., 440 P.3d 1016 (Wash. App. 2019).  Mostly because of preemption, we don’t run across many product liability decisions involving generic drugs anymore.  Sherman points out other reasons, besides preemption, why this is so.  All of the usual inadequate warning claims would have been preempted (or might have been in the trial court; we can’t tell) so plaintiff appealed duty-to-update allegations and a claim that warnings should have been given “in ways other than the package insert.”  Didn’t work.  Turns out the prescriber didn’t rely on package inserts for drug risks at all.  Preemption or no, non-reliance on an allegedly inadequate warning kills causation.  Preemption probably would have taken out the “other ways” claim, but a quirk of the Washington product liability statute got there first.  Warning claims by statute are limited to material “provided with the product.”  The statute says what it says, so non-label-based claims don’t fly in Washington state.  We saluted Sherman here, and, the Washington Supreme Court has since denied review.  2019 WL 6682200 (Wash. Dec. 5, 2019).
  7. In re Genentech, Inc., Herceptin (Trastuzumab) Marketing & Sales Practices Litigation, 367 F. Supp.3d 1274 (N.D. Okla. 2019).  As was the case last year with Gustavsen (2018+2), garbage, no-injury class actions claiming dosage-related economic losses tend to produce favorable rulings.  The product, a biologic, cannot be easily produced (if at all) in exactly identical units, so the FDA approved it for marketing within plus-or-minus weight tolerances around a specified midpoint.  Plaintiffs claimed (in a class action, of course) that anything less than the specified midpoint shorted them out of valuable product.  That’s the opposite of the aforementioned Gustavsen case, where too-large doses allegedly wasted valuable product.  But the result was the same – preemption.  First, FDA regulations specifically permitted “reasonable variation in dose, creating a direct, and preemptive, conflict.  Second, plaintiffs could not challenge the FDA classification of the product.  Third, a “draft guidance,” particularly one after-the-fact, did not create any enforceable FDA requirements that could be violated.  Third, plaintiffs misinterpreted an FDA compliance guide to invent an exact dosage number that did not, in fact, exist.  Finally, to comply with plaintiffs’ demands for exact dose would require a change in manufacturing processes requiring prior FDA approval, meaning preemption under the Mensing (2011+1) independence principle.  We note that Genentech is currently on appeal, and given the numerous FDA-related arguments, our side of that appeal should be helped by Albrecht’s ruling that judges simply decide, straight up, which side is correct on preemption issues.  We grooved on Genentech here.  The district court’s decision is currently on appeal.
  8. Greager v. McNeil-PPC, Inc., ___ F. Supp.3d ___, 2019 WL 5549524 (N.D. Ill. Oct. 28, 2019).  Historically, generic preemption has been very extensive, whereas the role of preemption in over-the-counter (“OTC”) drugs has been rather more limited.  Thus, a lot of liability potentially depends on which side of that line generic OTC drugs fall.  This question of first impression was answered in Greager, and its application of generic preemption is good news for any potential defendant manufacturer of generic OTC products.  The drive-a-truck-through exception to OTC express preemption in the FDCA doesn’t affect application of generic preemption, because Mensing (2011+1)/Bartlett (2013+1) preemption is based on implied impossibility preemption.  Implied and express preemption operate independently, meaning that the express saving clause (which is limited to “this section” in any event) doesn’t restrict the wide scope of implied generic preemption.  The duty of sameness applies to OTC as well as prescription generics.  For this potential impact on litigation over an entire class of drugs, Greager makes our list.  We gloried in Greager, here.
  9. In re Mirena IUS Levonorgestrel-Related Products Liability Litigation (No. II), 387 F. Supp.3d 323 (S.D.N.Y. 2019).  Simply the name of the injury plaintiffs were claiming in this latest tort-based assault on contraceptive choice indicates severe Daubert problems ahead – “idiopathic intracranial hypertension.”  “Idiopathic” means an unknown cause.  And that’s what happened.  In 2018, the Daubert hammer came down on these claims, in a decision that was the first of our honorable mentions that year.  But in an MDL, plaintiffs never give up no matter how weak their position.  So despite all their experts being excluded, they claimed that they could prove that the drug caused “idiopathic” injury without any experts at all.  Mirena held that argument was just as dumb as it sounded to us.  Reviewing the law of all 50 states, Mirena found that, without exception, this kind of technical causation issue absolutely required expert support.  Further, general causation was a requirement for all tort claims.  As for the rather disorderly mess of non-expert “evidence” that plaintiffs claimed could prove causation, that “end run” was simply “unsustainable.”  Last and least, plaintiffs’ Seventh Amendment challenge to an MDL-wide ruling was rejected.  MDL Daubert decisions are a two-way street, a plaintiff loss has the same litigation-wide scope that plaintiffs claim when they win.  We not only made much of Mirena, here, but Mirena inspired us to create our own 50-state survey of expert-required causation decisions here.
  10. Forrest Laboratories v. Feheley, 2019 WL 5485548, __ So.3d __ (Ala. Oct. 25, 2019).  What is our only state high court decision in the top ten doing way down here?  Because, frankly, the result should have been obvious.  As we discussed at the time, in 2015 the Alabama legislature statutorily abolished the misguided innovator liability theory that a divided Alabama Supreme Court had created the year before in Weeks (2014-1).  This statute even timed its effective date to match with the very day that Weeks was decided.  So, of course, plaintiffs claimed that this statute either hadn’t, or couldn’t abrogate Weeks.  In Feheley that Alabama Supreme Court held that, yes, the legislature had actually abolished innovator liability.  Not surprisingly, this result was mandated by “the plain meaning of the words as written by the legislature.”  Plaintiffs’ last-ditch constitutional argument also failed.  Thus, the same court that decided Weeks accepted that its ruling had been overturned by the legislature as a co-equal branch of government.  That’s great, but the legislative intent was so obvious that plaintiff should have been laughed out of court rather than being able to appeal all the way to the state’s highest court.  We focused on Feheley here.

So these are our top ten picks as the best drug/medical device decisions of 2019.  While our list seems preemption heavy (4 of 10), that’s actually no different than 2018 or 2017.  Our picks reflect the simple fact that, where preemption exists, there is no stronger defense.

But we’re not done.  2019 was another good defense year (aside from opioids, which we can’t discuss for client reasons), so we found more than ten deserving decisions.  Thus, here are our runners up, the next ten good 2019 decisions that didn’t quite crack our top ten.

Honorable Mentions:  (11) Cerveny v. Aventis, Inc., 783 F. Appx. 804 (10th Cir. 2019), ended litigation that produced top-ten decisions in 2017 and 2016, holding that a claim about pregnancy warnings didn’t make any sense where the plaintiff only took the drug before being pregnant − with the added bonus of rejecting the post-Albrecht argument that preemption can’t be based on citizen petitions filed by non-manufacturers (here).  (12) In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 358 F. Supp.3d 418 (E.D. Pa. 2019), demonstrates how personal jurisdiction can win cases, even where the plaintiffs aren’t litigation tourists (here).  (13) In Nowell v. Medtronic Inc., 372 F. Supp.3d 1166 (D.N.M. 2019), the same judge who had, several years earlier, questioned the learned intermediary rule under New Mexico law resoundingly reaffirmed the rule’s application (here and here).  (14) Delfino v. Medtronic, Inc., 2019 WL 2415049 (Minn. App. June 10, 2019), would probably cracked the top ten had it been published, due to its first-in-the-nation post-Albrecht appellate ruling that FDA experts aren’t needed to decide “legal” preemption issues.  The defendant won because plaintiff’s purported “violations” misconstrued FDA regulations (here).  (15) Ideus v. Teva Pharmaceuticals USA, Inc., 361 F. Supp.3d 938 (D. Neb. 2019), rejected contraceptives and direct-to-consumer advertising as exceptions to Nebraska’s learned intermediary rule, and held the defendant’s warnings adequate as a matter of law (here).  (16) Powers v. Merck & Co., 773 F. Appx. 304 (6th Cir. 2019), exemplifies how the Vaccine Act has killed off vaccine-related litigation, ruling that an intentionally added substance cannot be a “contaminant” (here).  (17) Marroquin v. Pfizer, Inc., 367 F. Supp.3d 1152 (E.D. Cal. 2019), landed a one-two punch – first, the manufacturer’s warning was adequate as a matter of law, and second, since it was impossible for mere distributors to alter drug labels, preemption barred those claims (here).  (18) Davis v. McKesson Corp., 2019 WL 3532179 (D. Ariz. Aug. 2, 2019), demonstrates that, for Daubert reasons, the other side’s second assault on gadolinium contrast agents will be much less successful than the first (2010-5) (here).  (19) In McNeil-Williams v. DePuy Orthopaedics, 384 F. Supp.3d 570 (E.D.N.C. 2019), another court rejected the Stengel (2013-2) proposition that ordinary inadequate warning claims are somehow “parallel” to novel failure-to-report claims.  No such claim exists in North Carolina (here).  (20) Roberto v. Boehringer Ingelheim Pharmaceuticals, Inc., 2019 WL 4806271 (Conn. Super. Sept. 11, 2019).  The best state trial court decision of the year.  While ostensibly affirming this particular plaintiff’s verdict, it thoughtfully held that the claims most plaintiffs pursue in this mass tort are preempted, for the same “newly acquired information” rationale discussed, above, in Gibbons (here).

Our 2019 collection of cases concludes with a couple of near misses:  Hindermyer v. B. Braun Medical, Inc., ___ F. Supp.3d ___, 2019 WL 5881073 (D.N.J. Oct. 30, 2019) (here), and Kelsey v Alcon Laboratories, Inc., 2019 WL 1884225 (Utah Dist. April 22, 2019) (here).

Reviewing our prior lists of best and worst decisions, as already mentioned, the Supreme Court in Albrecht vacated the worst case of 2017, In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017).  Recently the Third Circuit remanded the preemption issue to the trial court, so we’ll be watching what happens.  More generally, we’re pleased to report that of our thirteen previous worst cases of the year (2017 had two), almost half are no longer good law, by reason of outright reversal (2017-1; 2016-1; 2012-1), legislative abrogation (2014-1; 2007-1), or being limited to their facts by subsequent rulings (2010-1).  By contrast, all twelve of our annual best cases are still good law.

From this year’s lists, A.Y. (2019-3) is the subject of a pending reargument petition in the Pennsylvania Superior Court.  From last year’s lists, on the dark side, Hammons (2018-3), has an appeal pending before Pennsylvania Supreme Court.  All of those other rotten tomatoes appear to be final, at least on direct appeal.  All of 2018’s top ten also seem to be concluded, with denial of certiorari in Dolin (2018+5).  There is more activity, however, among the honorable mentions, as discussed above, Mirena (2018-11) will undoubtedly be appealed.  An appeal to the Kentucky Supreme Court has been granted in the Russell (2018+17) IDE preemption case.  Further appeal was denied in Caltagirone (2018+16), another preemption case, and an appeal was withdrawn in Byrd (2018+19).  The others appear final.

As we thought last year at this time, the cy pres Supreme Court appeal in Frank v. Gaos turned into a rather good standing decision.  See Frank v. Gaos, 139 S. Ct. 1041 (2019).  The cy pres issues remain unresolved.

A quick and dirty review of the last few years of our earlier top/bottom ten lists found nothing suggesting further appeals or other consideration of the resolutions reached in those cases.

Looking forward, we know that an appeal from the adverse post-Safe Medical Devices Act §510(k) preemption decision in In re Bard IVC Filters Products Liability Litigation, 2017 WL 5625547 (D. Ariz. Nov. 22, 2017), is pending in the Ninth Circuit.  A win would have a huge upside – recognizing express 510(k) preemption on the basis of the 1990 rewriting of the Medical Device Amendments – whereas a loss would leave our side basically where it is now.  Closer to home, the Pennsylvania Supreme Court has a significant non-prescription medical product expert evidence decision pending (Walsh) on theories that could create some version of industry-wide liability.  Pennsylvania Superior Court has a pending appeal (Emmet) on comment k and medical devices, as well as a pending non-prescription medical product en banc appeal (Murray) on corporate registration to do business as “consent” to personal jurisdiction.  Bexis has filed amicus briefs in all of those appeals.

Finally, on the administrative front, we still haven’t seen any real FDA movement on its long-delayed promise to address the First Amendment obsolescence of its 1950s-vintage “intended use” regulations.  Nothing concerning off-label use issues appears in the FDA Commissioner’s recent comprehensive remarks on the direction of the Agency.  It appears, however, that the FDA itself has decided to go into the business of truthful promotion of off-label use.  The FDA also released, last September, a “Medical Device Safety Action Plan,” available here.  An interesting aspect of this plan is the National Evaluation System for health Technology (“NEST”), which is intended “to be an active surveillance and evaluation system.”  Id. at 6.  That should be one more nail in the coffin of claims predicated on failure to report, since if something’s serious, the FDA will probably learn about it (and thus be statutorily required to act, 21 U.S.C. §355(o)(4)(A)) independently of any reporting of adverse events.

Legislatively, there is a lot of talk about “high drug prices,” but whether that will actually result in legislation is questionable.  We think that any legislation should address the high and increasing “tort tax” that all the litigation we write about is imposing on prescription medical products.  All those crazy verdicts that we see – from Philadelphia, St. Louis, California, and elsewhere – would (if they stand up on appeal) only be satisfied by higher prices for all of the targeted defendants’ products, and the same goes for MDL settlements and litigation costs.

 

Sort of like hail in Alabama.  It happens, but when it does it’s an event.  Not like say picking a perfect NCAA March Madness bracket (1 in 2.4 trillion).  Maybe more like the chance of getting struck by lightning in a lifetime (1 in 13,000).  In any case, a California trial court decision finding no warning causation under the learned intermediary doctrine caught our attention as newsworthy.  The case is one of the coordinated Pradaxa Cases, Case No. CJC-16-004863 (Cal. Super. Nov. 8, 2019) (Lawson, CGC-17-559611), slip op.

Plaintiff was prescribed Pradaxa in late 2010 to treat her atrial fibrillation.  Id. at 2-3.  Her prescribing physician testified that at the time he prescribed Pradaxa to plaintiff he was aware that it carried a risk of significant bleeding, which risk was increased in female patients over the age of 75, which plaintiff was.  Id.  The prescriber also testified that he informed plaintiff of these risks.  In 2016, plaintiff suffered an intracranial hemorrhage.  She was administered the Pradaxa reversal agent and was stabilized.  Id. at 4.    Defendant moved for summary judgment on plaintiff’s claims for failure to warn, fraud, and misrepresentation.

We’ve seen these cases elsewhere before – no warning causation where doctor knew of the very risk (and in this case warned of the risk) that materialized.  But, again this is California.  The court pointed out that neither party cited any California cases to support their arguments on warning causation.  There was no binding precedent.  Id. at 8n.9.  What the court did find persuasive in this instance is the level of speculation needed on all sides to find causation – a level to which the court was unwilling to go.

First, plaintiff could not testify that she definitely would have changed her mind if provided additional risk information.  At best she said she “probably” would have refused or “might” have said no.  That’s not enough.  Id. at 4n.5.

Second, the prescribing physician, after being shown “various medical literature, references to [manufacturer] company documents, and regulatory documents,” testified that he stood by his prescribing decision.  The additional information would not have changed either his decision to prescribe Pradaxa to plaintiff or his informed consent discussion.  Id. at 5.  “This evidence is sufficient to demonstrate that Defendant’s alleged failure to warn did not proximately cause Plaintiff’s injury.”  Id. at 9.

What plaintiff clung to was her physician’s testimony that he would have liked to have known if there was a mechanism to monitor/measure a patient’s Pradaxa levels and that he would have measured the levels to see if there was a risk of a major bleed.  Id. at 5.  Plaintiff used this testimony to attempt a factual leap of causation.  If the doctor had known he could measure Pradaxa levels, he would have.  And if he did, he would have discovered her elevated levels and reduced her Pradaxa dosage or changed her medication to a different anticoagulant.  Id. at 9.  But the prescriber’s testimony only supports that he would have measured plaintiff’s levels, not whether those measurements would have caused him to alter courses.  In other words, [p]laintiff’s theory for proximate causation is speculative.”  Id.

The speculation could not be saved by a retained expert’s opinion.  Plaintiff’s expert testified that the elevated levels of Pradaxa in plaintiff’s blood “more likely than not caused her intracranial bleed.”  Id. at 11.  But warning causation is about the learned intermediary, not an outside expert:

However, regardless of [plaintiff’s expert’s] opinions, what matters to the causation inquiry in this case is [the prescriber’s] opinion, that is, as the learned intermediary, whether [the prescriber] would have changed his course of treatment or provided different warnings to Plaintiff.

Id. That evidence simply did not exist and that “absence of evidence” was fatal to plaintiff’s case.  Id. at 12.

Plaintiff’s last effort to save her case was to argue that because her prescribing physician testified that he may have changed some of his conduct if provided different information she had met her burden of proof.  But plaintiff did not frame the legal question correctly.

Upon a review of the case, the legal inquiry on causation is not, as Plaintiff suggests, whether the prescribing physician would have changed his conduct of the manner in which his [sic] would have prescribed the drug if he had received the warning or risk information of which he was unaware at the time.  Such a standard is too broad.  Rather, the change in a physician’s conduct or prescription procedures must have sufficiently prevented the Plaintiff’s injury, and/or be sufficiently connected to the injury.

Id. at 14 (citations and quotation marks omitted).  In other words, to defeat summary judgment, any change in the prescribing physician’s conduct must have been causally related to the alleged injury.  All doctor’s want to know more.  That is not enough to create a triable issue of fact.  Id. at 15-16.  Doctors get new information all the time that has no impact on their prescribing decisions.  To establish causation, the doctor must testify that he would have wanted to know and he would have done something differently that is related to the actual injury plaintiff suffered.  A possibility of a change in conduct is likewise insufficient – “might” or “may” are not enough.  Id.

The lack of warning causation was fatal to all of plaintiff’s warning-based claims and summary judgment was granted.  This might not be a blue moon (1 every 2.7 years) or a shark attack on a human (1 in 3.7 million).  It may not even be the only favorable California trial court decision we blog about this week.  But just because you find more than one four leaf clover in the same field doesn’t make it any less remarkable.  Who knows when the next one will come along?

It’s been a while since we’ve discussed pre-service removal, other than to mention a recent case.  Our last major post was “What’s up with Removal Before Service,” back in May 2011.

Since then, we pointed out an important statutory development – that when Congress rewrote other parts of the removal statute (28 U.S.C. §1441(b)) in 2011, it left intact the language that, read according to its terms (often referred to as “plain meaning” in the cases), allows pre-service removal.  That’s important, because the major argument against pre-service removal is that it’s “gamesmanship” (as if joining 99 disparate plaintiffs in a single complaint isn’t) that leads to “absurd” results that Congress could not have intended.  “However, one person’s ‘gamesmanship’ is strategy to another.” Francis v. Great West Casualty Co., 2018 WL 999679, at *2 (M.D. Ga. Feb. 21, 2018).

[F]rom a policy perspective, §1441(b) protects non-forum defendants from plaintiffs’ procedural maneuvering to deprive these defendants of their statutory right to litigate in a federal forum. . . . This protection . . . is particularly important because the forum defendant rule creates an opportunity for procedural gamesmanship on the part of plaintiffs attempting to keep an action in state court, and thus blocking removal, by either improperly joining a forum defendant, or not serving the forum defendant that they have no intention of pursuing.

In Re Plavix Products Liability & Marketing Litigation, 2014 WL 4954654, at *6 (D.N.J. Oct. 1, 2014) (citations omitted).

That Congress, knowing full well that pre-service removal was being routinely practiced, elected to leave intact the statutory language enabling pre-service removal, makes the “absurdity” argument a much harder sell.  After all, if the statute’s language permits too much “gamesmanship,” the proper response is for Congress to amend the statute, as it did back in 1948 when the “properly joined and served” language was first added.  See Goodwin v. Reynolds, 757 F.3d 1216, 1220-21 (11th Cir. 2014) (discussing 1948 amendment).  It is not the courts’ role to usurp Congress by making ad hoc modifications of statutory language, whenever judges feel like it, particularly when Congress had the opportunity to amend the statute again in 2011, but declined to do so.

[U]nder the plain meaning of §1441(b) an out-of-state defendant, by monitoring state court dockets electronically or otherwise, can dash to the federal courthouse almost immediately with a notice of removal before the complaint is served on it and on an in-state defendant.  As a consequence of advances in technology, there may well be fewer diversity actions precluded from removal under §1441(b) than heretofore.  If this result is deemed to be bad public policy, the remedy lies with Congress which, subject to constitutional limitations, controls the scope of this court’s subject matter jurisdiction and any right of removal.

Valido-Shade v. Wyeth, LLC, 875 F. Supp.2d 474, 478 (E.D. Pa. 2012), summarily aff’d, No. 14-4608 (3d Cir. April 29, 2015).

Enough ranting (for now).  In any event, since our “What’s up” post, we’ve also written several individual posts about:

Christison v. Biogen Idec, Inc., 2011 WL 13153242 (N.D. Cal. Nov. 14, 2011)

Poznanovich v. AstraZeneca Pharmaceuticals LP, 2011 WL 6180026 (D.N.J. Dec. 12, 2011)

Boyer v. Wyeth Pharmaceuticals, Inc., 2012 WL 1449246 (E.D. Pa. April 26, 2011)

Davis v. Hoffmann-La Roche, 2014 WL 12647769 (Mag. N.D. Cal. Jan. 14, 2014), adopted, 2014 WL 12647768 (N.D. Cal. Jan. 31, 2014)

Young v. Bristol-Myers Squibb Co., 2017 WL 2774735 (D. Del. June 27, 2017)

Cheung v. Bristol-Myers Squibb Co., 282 F. Supp.3d 638 (S.D.N.Y. 2017)

So, that’s six additional pre-service removal cases from five states since our last comprehensive post in 2011.  Let’s see how many more there are out there that we’ve missed.

The first thing we note is that some appellate authority now exists.  Since remand is unappealable (28 U.S.C. §1447(d)), appellate review is rare in remand situations.  Most recently, in Bank of New York Mellon v. Mazza, ___ F. Appx. ___, 2018 WL 3524899 (3d Cir. July 23, 2018), the court observed (albeit refraining from deciding the issue) “that every Court of Appeals to have addressed the issue has concluded that defendants in state-court actions may indeed remove them before being served with process.”  Id. at *2.  Mazza cited Novak v. Bank of N.Y. Mellon Trust Co., 783 F.3d 910, 914 (1st Cir. 2015); La Russo v. St. George’s University School, 747 F.3d 90, 97 (2d Cir. 2014), and Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000).

Delgado, of course, is from the antediluvian period before modern, technologically-aided pre-service removal, but the Fifth Circuit did state unequivocally that “service of process is not an absolute prerequisite to removal.”  231 F.3d at 177.  Rather, the language of §1441(b) “consciously reflect[s] a desire on the part of Congress to require than an action be commenced against a defendant before removal, but not that the defendant have been served.”  Id.  See also McCall v. Scott, 239 F.3d 808, 813 n.2 (6th Cir. 2001) (“Where there is complete diversity of citizenship . . . inclusion of an unserved resident defendant in the action does not defeat removal under 28 U.S.C. §1441(b).”).

Delgado was also cited in La Russo, where the Second Circuit held:

The argument lacks merit.  Nothing in sections 1441 or 1446 requires a removing defendant to have appeared in the state court proceeding prior to removal.  Nor is there merit in [plaintiff’s] claim that removal was improper because [a defendant] was not served.  Service of process upon a removing defendant is not a prerequisite to removal.

747 F.3d at 97 (citing not only Delgado, but also City of Ann Arbor Employees’ Retirement System v. Gecht, 2007 WL 760568, at *9 (N.D. Cal. March 9, 2007) – a modern pre-service removal case rejecting the “absurd results” argument).

Delgado was also cited in Novak, which is an even more powerful embrace of pre-service removal.  First, the First Circuit stated:

[W]e think it is clear that a defendant generally need not wait until formal receipt of service to remove.  There is no indication that . . . Congress intended to prohibit a defendant from filing a notice of removal before having been formally served

7893 F.3d at 912. A few pages later, Novak held:

[We find] no indication that a defendant was also prohibited from filing a notice of removal before service. We read the statute to contemplate otherwise.  Our interpretation thus aligns with the decisions of other federal courts that have considered this question. . . .  As far as we can tell, every one has concluded that formal service is not generally required before a defendant may file a notice of removal.  And, because Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change, we find it informative that Congress made no effort to cast aside this clear consensus among federal courts when it amended §1446 in 2011 without making any substantive change to subsection (b)(1)

Id. at 914 (citations and quotation marks omitted).  In addition to Delgado and LaRusso, Novak added Whitehurst v. Wal-Mart, 306 F. Appx. 446, 448 (11th Cir. 2008) (“nothing in the removal statute, or any other legal provision, requires that a defendant be served with the complaint before filing a notice of removal”), and Sutler v. Redland Insurance Co., 2012 WL 5240124, at *2 (D. Mass. Oct. 24, 2012), another district court case recognizing pre-service removal.  With Court of Appeals decisions now breaking in our favor, we can start trying to change the minds of district courts that have previously gone the other way.

Also, since our 2011 post − although not in a pre-service removal situation − the Seventh Circuit in Morris v. Nuzzo, 718 F.3d 660 (7th Cir. 2013), helpfully noted that the “properly joined and served” language in §1446(b) creates “a service-based exception to the forum defendant rule, meaning that a properly served out-of-state defendant will not be prevented from removing a case when the plaintiff has named but not yet served a resident defendant.”  Id. at 670 n. 3.

As far as the district courts go, here is what we now have – in addition to what we found back in our 2011 post (we did miss some back then, which we’re backfilling now).  As always, we do not do the other side’s research for them, so what follows are all cases allowing pre-service removal – except for those cases we listed back in 2011:

Alabama

Seong Ho Hwang v. Gladden, 2016 WL 9334726, at *5-7 (M.D. Ala. Dec. 21, 2016); Sasser v. Florida Pond Trucking, L.L.C., 2016 WL 3774125, at *4-5 (Mag. M.D. Ala. June 24, 2016), adopted, 2016 WL 3769754 (M.D. Ala. July 14, 2016); Pathmanathan v. Jackson National Life Insurance Co., 2015 WL 4605757, at *3-5 (M.D. Ala. July 30, 2015); Goodwin v. Reynolds, 2012 WL 4732215, at *3-6 (N.D. Ala. Sept. 28, 2012), aff’d on other grounds, 757 F.3d 1216 (11th Cir. 2014); Lemley v. Midwest Automation, Inc., 2009 WL 1211382, at *1 & n.2 (S.D. Ala. May 1, 2009).

Alaska

Seeds v. ERA Alaska, 2013 WL 11311389, at *3 (D. Alaska Nov. 4, 2013).

California

Saratoga Advantage Trust Technology & Communications Portfolio v. Marvell Technology Group, Ltd., 2015 WL 9269166, at *2 (N.D. Cal. Dec. 21, 2015); Sherman v. Haynes & Boone, 2014 WL 4211118, at *1 (N.D. Cal. Aug. 22, 2014); Wilder v. Bank of America, N.A., 2014 WL 12591934, at *4 (C.D. Cal. June 30, 2014); Davis v. Hoffmann-La Roche, 2014 WL 12647769, at *2 (Mag. N.D. Cal. Jan. 14, 2014), adopted, 2014 WL 12647768 (N.D. Cal. Jan. 31, 2014); Fontalvo v. Sikorsky Aircraft Corp., 2013 WL 3197071, at *9-10 (S.D. Cal. June 20, 2013); Regal Stone Ltd. v. Longs Drug Stores California, L.L.C., 881 F. Supp.2d 1123, 1127-29 (N.D. Cal. 2012); May v. Haas, 2012 WL 4961235, at *2-2 (E.D. Cal. Oct. 16, 2012); Christison v. Biogen Idec, Inc., 2011 WL 13153242, at *1 (N.D. Cal. Nov. 14, 2011); Cucci v. Edwards, 510 F. Supp.2d 479, 482-84 (C.D. Cal. 2007); Waldon v. Novartis Pharmaceuticals Corp., 2007 WL 1747128, at *2-3 (N.D. Cal. June 18, 2007); City of Ann Arbor Employee’s Retirement System v. Gecht, 2007 WL 760568, at *8-9 (N.D. Cal. March 9, 2007).

Delaware

Young v. Bristol-Myers Squibb Co., 2017 WL 2774735, at *2 (D. Del. June 27, 2017); Munchel v. Wyeth LLC, 2012 WL 4050072, at *3-4 (D. Del. Sept. 11, 2012); Hutchins v. Bayer Corp., 2009 WL 192468, at *10-11 (Mag. D. Del. Jan. 23, 2009).

District of Columbia

Middlebrooks v. Godwin Corp., 279 F.R.D. 8, 11-12 (D.D.C. 2011).

Florida

Bergmann v. State Farm Mutual Automobile Insurance Co., 2016 WL 9414108, at *2 (N.D. Fla. Dec. 28, 2016); ViSalus, Inc. v. Then, 2013 WL 3682239, at *3 (M.D. Fla. July 12, 2013); Visalus, Inc. v. Knox, 2013 WL 3462176, at *1-2 (M.D. Fla. July 9, 2013); North v. Precision Airmotive Corp., 600 F. Supp.2d 1263, 1268-70 (M.D. Fla. 2009); Valerio v. SmithKline Beecham Corp., 2008 WL 3286976, at *2 (S.D. Fla. Aug. 7, 2008); Bolin v. SmithKline Beecham Corp., 2008 WL 3286973, at *2 (S.D. Fla. Aug. 7, 2008); Masterson v. Apotex, Corp., 2008 WL 2047979, at *2 (S.D. Fla. May 13, 2008).

Georgia

Francis v. Great West Casualty Co., 2018 WL 999679, at *2 (M.D. Ga. Feb. 21, 2018); McClain v. Bank of America Corp., 2013 WL 1399309, at *3 (S.D. Ga. April 5, 2013).

Illinois

D.C. v. Abbott Laboratories Inc., 2018 WL 4095093, at *3-5 (N.D. Ill. Aug. 28, 2018); Graff v. Leslie Hindman Auctioneers, Inc., 299 F. Supp.3d 928, 934-37 (N.D. Ill. 2017); Selective Insurance Co. v. Target Corp., 2013 WL 12205696, at *1 (N.D. Ill. Dec. 13, 2013); In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL 656822, at *3-4 (S.D. Ill. Feb. 22, 2013); Massey v. Cassens & Sons, Inc., 2006 WL 381943, at *2-3 (S.D. Ill. Feb. 16, 2006).

Indiana

In re Bridgestone/Firestone, Inc., 184 F. Supp.2d 826, 828 (S.D. Ind. 2002).

Kentucky

United Steel Supply, LLC v. Buller, 2013 WL 3790913, at 1-2 (W.D. Ky. July 19, 2013); Darsie v. Cone, 2010 WL 2923285, at *5 (E.D. Ky. July 22, 2010); Stanley v. Insights Training Group, LLC, 2009 WL 3514590, at *1-2 (W.D. Ky. Oct. 29, 2009).

Louisiana

Lewis-Wallace v. Johnson, 2018 WL 1531921, at *2 (E.D. La. March 29, 2018); Leech v. 3M Co., 278 F. Supp.3d 933, 941-43 (E.D. La. 2017); Sexton v. Exxon Mobil Corp., 2017 WL 6803443, at *2 (Mag. M.D. La. Sept. 15, 2017), adopted, 2018 WL 283259 (M.D. La. Jan. 3, 2018); Mendoza v. JLG Industries, Inc., 2016 WL 6872107, at *2 (E.D. La. Nov. 22, 2016); Gorman v. Schiele, 2016 WL 3583645, at *2-3 (Mag. M.D. La. June 8, 2016), adopted, 2016 WL 3580669 (M.D. La. June 28, 2016); Gorman v. Schiele, 2016 WL 3583640, at *5-6 (Mag. M.D. La. May 20, 2016), adopted, 2016 WL 3580669 (M.D. La. June 28, 2016); Colletti v. Bendix, 2016 WL 770646, at *2 (E.D. La. Feb. 29, 2016); Williams v. Boyd Racing LLC, 2016 WL 236993, at *3 (W.D. La. Jan. 19, 2016); Groves v. Farthing, 2015 WL 3646724, at *4-5 (E.D. La. June 10, 2015); Harvey v. Shelter Insurance Co., 2013 WL 1768658, at *2 (E.D. La. April 24, 2013).

Maryland

Al-Ameri v. Johns Hopkins Hospital, 2015 WL 13738588, at *1-2 (D. Md. June 24, 2015); Moore v. Svehlak, 2013 WL 3683838, at *15 (D. Md. July 11, 2013); Clawson v. FedEx Ground Package System, Inc., 451 F. Supp.2d 731, 736 (D. Md. 2006).

Massachusetts

Sutler v. Redland Insurance Co., 2012 WL 5240124, at *2 (D. Mass. Oct. 24, 2012).

Michigan

Gordon v. Home Loan Center, LLC, 2011 WL 1261179, at *7 (E.D. Mich. March 31, 2011); Revere v. MERS, 2010 WL 1541506, at *2 (E.D. Mich. April 19, 2010).

Mississippi

Holmes v. Lafayette, , 2013 WL 654449, at *1 (N.D. Miss. Feb. 21, 2013); Ott v. Consolidated Freightways Corp., 213 F. Supp.2d 662, 665-66 (S.D. Miss. 2002).

Missouri

Gray v. Monsanto Co., 2018 WL 488935, at *2 (E.D. Mo. Jan. 19, 2018); Travers v. Five Below, Inc., 2017 WL 2813320, at *2-3 (E.D. Mo. June 29, 2017); Johnson v. Emerson Electric Co., 2013 WL 5442752, at *4 (E.D. Mo. Sept. 30, 2013); Taylor v. Cottrell, Inc., 2009 WL 1657427, at *2 (E.D. Mo. June 10, 2009); Brake v. Reser’s Fine Foods, Inc., 2009 WL 213013, at *2-3 (E.D. Mo. Jan. 28, 2009); Johnson v. Precision Airmotive, LLC, 2007 WL 4289656 at *6 (E.D. Mo. Dec. 4, 2007).

Montana

Mahana v. Enerplus Resources U.S.A. Corp., 2012 WL 1947101, at *2-3 (Mag. D. Mont. May 30, 2012), adopted, 2012 WL 4748178, at *1 (D. Mont. Oct. 4, 2012).

New Jersey

In Re Plavix Products Liability & Marketing Litigation, 2014 WL 4954654, at *4-6 (D.N.J. Oct. 1, 2014); Westfield Insurance Co. v. Interline Brands, Inc., 2013 WL 1288194, at *2-4 (D.N.J. March 25, 2013) Poznanovich v. AstraZeneca Pharmaceuticals LP, 2011 WL 6180026, at *3-5 (D.N.J. Dec. 12, 2011); Jaeger v. Schering Corp., 2007 WL 3170125, at *2 (D.N.J. Oct. 25, 2007); Yocham v. Novartis Pharmaceuticals Corp., 2007 WL 2318493 at *3 (D.N.J. Aug. 13, 2007); Frick v. Novartis Pharmaceuticals Corp., 2006 WL 454360, at *3 (D.N.J. Feb. 23, 2006).

New York

Cheung v. Bristol-Myers Squibb Co., 282 F. Supp.3d 638, 643-44 (S.D.N.Y. 2017); Petit v. Bristol-Myers Squibb Co., 2012 WL 11893525, at *1-2 (S.D.N.Y. March 23, 2012); Stop & Shop Supermarket Company LLC v. Goldsmith, 2011 WL 1236121, at *6 (S.D.N.Y. March 31, 2011); Deveer v. Gov’t Employees Insurance Co., 2008 WL 4443260, at *4 (E.D.N.Y. Sept. 26, 2008); In re Fosamax Products Liability Litigation, 2008 WL 2940560, at *2, 5 (S.D.N.Y. July 29, 2008).

Oklahoma

Howard v. Crossland Construction Co., 2018 WL 2463099, at *2 (N.D. Okla. June 1, 2018); Magallan v. Zurich American Insurance Co., 228 F. Supp.3d 1257, 1260-62 (N.D. Okla. 2017).

Pennsylvania

Rehmeyer v. Peake Plastics Corp., 2016 WL 7375027, at *3 (E.D. Pa. Dec. 20, 2016); Figured v. Davies, 2016 WL 3148392, at *3 (M.D. Pa. June 2, 2016); Parker Hannifin Corp. v. Federal Insurance Co., 23 F. Supp. 3d 588, 594 (W.D. Pa. 2014); Hutton v. KDM Transport, Inc., 2014 WL 3353237, at *4 (E.D. Pa. July 9, 2014); Valido-Shade v. Wyeth, LLC,, 875 F. Supp.2d 474, 477-78 (E.D. Pa. 2012), summarily aff’d, No. 14-4608 (3d Cir. April 29, 2015); Zokaites Properties, LP v. La Mesa Racing, LLC, 2012 WL 3144127, at *17 (W.D. Pa. Aug. 1, 2012); Banks v. Kmart Corp., 2012 WL 707025, at *2 (E.D. Pa. March 6, 2012); Boyer v. Wyeth Pharmaceuticals, Inc., 2012 WL 1449246, at *2 (E.D. Pa. April 26, 2011); Copley v. Wyeth, Inc., 2009 WL 1089663, at *3 (E.D. Pa. April 22, 2009); Vanderwerf v. Glaxosmithkline, PLC, 2005 WL 6151369, at *1 (E.D. Pa. May 5, 2005).

South Carolina

Fisher v. Pelstring, 2009 WL 10664813, at *2-4 (D.S.C. Sept. 29, 2009).

Tennessee

Linder v. Medtronic, Inc., 2013 WL 5486770, at *1-2 (W.D. Tenn. Sept. 30, 2013).

Texas

Cadena v. ASI Lloyds, 2018 WL 1904839, at *3 (Mag. W.D. Tex. Jan. 5, 2018), adopted, 2018 WL 1899750 (W.D. Tex. Feb. 13, 2018); Doe v. Geo Group, Inc., 2016 WL 3004675, at *3 (W.D. Tex. May 24, 2016); Reynolds v. Personal Representative of the Estate of Johnson, 139 F. Supp.3d 838, 841-43 (W.D. Tex. 2015); Breitweiser v. Chesapeake Energy Corp., 2015 WL 6322625, at *4-7 (N.D. Tex. Oct. 20, 2015); Rios v. Cooper Tire & Rubber Co., 2014 WL 12613385, at *3 (E.D. Tex. March 26, 2014); Carrs v. AVCO Corp., 2012 WL 1945629, at *1-3 (N.D. Tex. May 30, 2012).

West Virginia

Bloom v. Library Corp., 112 F. Supp.3d 498, 506 (N.D.W. Va. 2015); Konikowski v. Wheeling Island Gaming, Inc., 2012 WL 5378252, at *4 (N.D.W. Va. Oct. 31, 2012); Vitatoe v. Mylan Pharmaceuticals, Inc., 2008 WL 3540462, at *2-5 (N.D.W. Va. Aug. 13, 2008).

*          *          *          *

Finally, while not doing the plaintiffs’ research for them, we can safely state, after reading the “absurd result” cases, that the most dangerous form of pre-service removal is by a forum defendant alone, or equivalently, in a case where only forum defendants are sued.  That’s widely seen as a direct slap at the forum defendant rule.  The next most dangerous removals are those taken by forum defendants in cases where there are also non-resident defendants.  The most sympathetic pre-service removal scenario is when the removal is initiated by a non-resident defendant – the type of party that diversity jurisdiction was originally intended to protect.  When defendants have a choice, therefore, it would be best to let the non-resident defendant carry the flag in pre-service removal cases.

One can also hope that current trends in personal jurisdiction might result in dismissal in cases where defendants previously sought to rely upon pre-service removal, since jurisdiction over one affiliated, but separate, “forum defendant” corporation no longer translates into jurisdiction over other corporate defendants.  If, as occurs often in mass tort cases, the plaintiff is also a non-resident of the jurisdiction where suit is brought, then the plaintiff may well not be able to obtain jurisdiction over the non-resident corporate defendant.

Bexis gave a talk the other day at the Washington Legal Foundation on personal jurisdiction after last term’s United States Supreme Court decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), and BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017) (“BNSF”).  One of the highlighted areas of emerging jurisdictional issues was MDL practice – specifically the MDL practice of allowing plaintiffs anywhere in the country to “direct file” actions into the MDL after it has been established – thereby bypassing the provisions of the MDL statute, 28 U.S.C. §1407(a) that “transfers shall be made by the judicial panel on multidistrict litigation.”

We thought we’d examine that a bit today.

Essentially, we don’t think that there is any jurisdictional basis for direct filing – except the defendants’ waiver of any jurisdictional challenge.  Initially, the MDL statute itself does not confer such jurisdiction.  The statute nowhere mentions direct filing, and in only one instance is an MDL judge (also called the “transferee court”) clothed with extraordinary jurisdictional powers.  That has to do with depositions.  See 28 U.S.C. §1407(b) (MDL judge “may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions”).

Whether or not the legal maxim “expressio unius est exclusio alterius” (express mention of one item implies the exclusion of others of the same ilk) should apply here, we seriously doubt that Congress intended to hide any jurisdictional elephants in MDL statutory mouseholes.  Cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40-41 (1998) (refusing to imply MDL court jurisdiction to try transferred cases).  It “may or may not” be more efficient to allow direct filings, but the MDL statute does not so state, so “the proper venue for resolving that issue remains the floor of Congress.”  Id. at 40 (citations omitted).  We further note that the Judicial Panel on Multidistrict Litigation’s rule that has been interpreted as allowing direct filing, J.P.M.D.L.R 7.2(a), likewise does not mention jurisdiction – providing only that “[p]otential tag-along actions filed in the transferee district do not require Panel action.”

In BNSF (previously discussed here) the Supreme Court rejected an attempt to use a statute (the venue provision of the Federal Employees’ Liability Act) to create personal jurisdiction where it did not otherwise exist.  When Congress intends to expand jurisdiction (as opposed to venue) it “typical[ly]” does so by “authoriz[ing] service of process.”  137 S. Ct. at 1555 (list of examples omitted).  This statute did not expressly do so, and to the extent any prior precedent suggested otherwise, that precedent was obsolete:

[A]ll these cases . . . were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U.S. 310 (1945).  See [Bauman], 134 S. Ct. [746], 761, n.18 (cautioning against reliance on cases “decided in the era dominated by” the “territorial thinking” of Pennoyer v. Neff, 95 U.S. 714 (1878)).

Id. at 1555-56 (citations modified).  We’ve already raised this cautionary note with respect to century-old precedent in jurisdiction by consent cases, but it applies more broadly.

Demise of their statutory arguments left the plaintiffs in BNSF with nothing but state law to rely on.  While the defendant “ha[d] over 2,000 miles of railroad track and more than 2,000 employees” in the state, that was insufficient to permit suit by non-resident plaintiffs under either general or specific jurisdictional principles:

[T]he business BNSF does in [the state] is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in [the state].  But in-state business . . . does not suffice to permit the assertion of general jurisdiction over claims like [plaintiffs’] that are unrelated to any activity occurring in [the state].

Id. at 1559 (footnote omitted).

Turning to BMS, which was a mass tort worthy of a breaking news post, hundreds of plaintiffs filed in California to escape (among other things) an existing federal MDL.  Non-resident plaintiffs could not establish specific personal jurisdiction over a non-resident defendant, even though (like BNSF) resident plaintiffs could, and the non-residents might be able to sue a different defendant that was “at home” in that state.  “The primary focus of our personal jurisdiction inquiry is the defendant’s relationship to the forum State.”  137 S. Ct. at 1779.  Jurisdiction is “a consequence of the territorial limitations” on state power; therefore even a ‘convenient location for litigation’ may, as a consequence ‘of interstate federalism,’ be “divest[ed]. . . of its power to render a valid judgment.”  Id. at 1781 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980)).

Specific jurisdiction, as explained in BMS, requires “an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State.”  Id.  “[U]nconnected activities,” no matter how extensive, are irrelevant.  Id.  That “other,” in-state plaintiffs could bring suit was “an insufficient basis for jurisdiction,” as was the ability of the non-resident plaintiffs to sue other, in-state defendants.  Id. at 1781, 1783.  Jurisdictional requirements “must be met as to each defendant over whom a state court exercises jurisdiction.”  Id. at 1783 (citation and quotation marks omitted).  Where:

[t]he relevant plaintiffs are not [in-state] residents and do not claim to have suffered harm in that State[, and] all the conduct giving rise to the nonresidents’ claims occurred elsewhere[, i]t follows that the [state’s] courts cannot claim specific jurisdiction.

Id. at 1782 (citation omitted).  Mass tort plaintiffs have two choices after BMS:  they can all sue “in the States that have general jurisdiction” over a particular defendant, or “plaintiffs who are residents of a particular state . . . could probably sue together in their home States.”  Id. at 1873.

Returning to MDLs, as in BNSF, there is no “typical” jurisdictional provision anywhere in the MDL statute.  Unless a particular MDL happens to be located in a forum with “general jurisdiction” over a defendant, there is no constitutional basis for allowing plaintiffs anywhere in the country to file directly into the MDL and thereby bypass statutory procedures.  Further, since jurisdiction must exist “as to each defendant” individually, in MDLs with more than one major defendant (most MDLs), it is unlikely (albeit not impossible) for there to be any jurisdiction where all such defendants are “at home” so as to permit direct filing as a matter of constitutional Due Process.

Thus, the only jurisdictional basis for MDL direct filing is the acquiescence – and thus the waiver – of the defendant(s) being sued.  That is particularly dangerous in an MDL setting, as the recent decision in the Pinnacle Hip MDL litigation (discussed here) exemplifies.  See In re Depuy Orthopaedics, Inc., 870 F.3d 345 (5th Cir. 2017).  The defendants’ agreement to a direct filing order was – wrongly, a majority of the Court of Appeals held – interpreted as a waiver of jurisdictional objections.  Id. at 351-52.  As for the propriety of direct filing, there was no majority.  The lead opinion viewed direct filed cases as being “treated ‘as if they were transferred from a judicial district sitting in the state where the case originated.’”  Id. at 348 (quoting In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 1375011, at *6 (S.D. Ill. April 12, 2011)).  The first concurrence declined to reach the issue.  Id. at 356-57.  The second, concurring and dissenting, opinion would find direct filing invalid:

But for the possibility of a “global waiver” of personal jurisdiction, the [MDL court] had no claim to personal jurisdiction over the cases:  none of the plaintiffs’ surgeries occurred in [the state]; the plaintiffs aren’t [in-state] residents; and neither general nor specific jurisdiction exists over the [defendants] for purposes of these disputes.  For that reason, the district court relied solely on the “global waiver”. . . .  Petitioners are being forced to trial over their objections to personal jurisdiction.

By comparison, a scholarly opinion . . . in an MDL case resulted in dismissal of a nonresident defendant against which there was a “direct filed” case by a nonresident plaintiff.  In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, 2011 WL 1232352 (S.D. Tex. March 31, 2011).  The court first noted that the defendant’s agreement to transfer for purposes of pretrial proceedings was not inconsistent with and did not waive its personal jurisdiction challenge.  2011 WL 1232352 at *5–6.  Finding no waiver, the court then decided that it lacked personal jurisdiction over the non-consenting defendant based on [its] lack of minimum or relevant contacts with the [state in question]. 2011 WL 1232352 at *6–10.

Depuy Orthopaedics, 870 F.3d at 357.

This is a good place to start, so we examined the decisions cited by both sides.  Looking at Yasmin/Yaz, we were disappointed.  That decision doesn’t even discuss the jurisdictional ramifications of MDL direct filing.  Rather, as the first sentence of the opinion makes clear, “[t]his matter is before the Court for the purpose of resolving choice of law considerations.”  2011 WL 1375011, at *1.  The direct filing order at issue specified that direct filing would have no effect on choice of law.  Id. at *4 n.2, so the reference in Yasmin/Yaz to how direct filings were “treated” occurred in the context of deciding what “no effect” on choice of law meant:

As to the foreign direct filed cases, the choice of law decision is not as clear.  Foreign direct filed cases are filed in this Court pursuant to a direct filing order . . . [that] expressly provides that the parties’ direct filing agreement will not impact the choice of law that otherwise would apply to the direct filed actions.

In general, direct filing orders are beneficial to both parties because they streamline the litigation and help to eliminate the judicial inefficiency. . . .  However, direct filing orders also present difficult choice of law issues. . . .  The Court concludes that the better approach is to treat foreign direct filed cases as if they were transferred from a judicial district sitting in the state where the case originated.  For purposes of this analysis, the Court considers the originating state to be the state where the plaintiff purchased and was prescribed the subject drug.

Id. at *5-6 (citations omitted).  There is not one mention of personal jurisdiction in the entire Yasmin/Yaz opinion.

Turning instead to Heartland Payment, that case did involve a dispute over personal jurisdiction in a directly filed action.  See 2011 WL 1232352, at *4 (observing that “direct filings may present jurisdictional, venue, or related issues”).  The defendant moved to dismiss a direct filed action under Fed. R. Civ. P. 12(b)(2) on the ground that the state in which the MDL was situated had no personal jurisdiction over it.  Id. at *5.  March, 2011 was, of course, three years before Bauman was decided and even several months before the Supreme Court’s “at home” test debuted in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).  But even under the more lax standards of that time, personal jurisdiction did not lie simply because an MDL against the defendant happened to exist in the state in question.

As in Depuy Orthopaedics, the MDL plaintiffs in Heartland Payment first attempted to use the defendant’s agreement to direct filing as a waiver of personal jurisdiction.  2011 WL 1232352, at *7.  Unlike Depuy Orthopaedics, the MDL court in Heartland Payment rejected that argument.  Id.  As for specific jurisdiction, neither the defendant’s use of an in-state processing center nor its agreements with national credit card networks sufficed.  “[M]erely contracting with a resident of the forum state is insufficient to subject the nonresident defendant to personal jurisdiction in that state.”  Id. at *8.  Plaintiff did not even try to argue that the fortuitous, after-the-fact creation of an MDL in the jurisdiction could be a “minimum contact” justifying jurisdiction.  Without a basis for jurisdiction, the directly filed case had to be either transferred or, if the parties could not agree, dismissed.  Id. at *12, 14.

On the basis of these two cases, we’d have to give the edge to the dissent on the jurisdictional issue, since Heartland Payment decided the question at issue – the jurisdictional impact of MDL direct filing – while Yasmin/Yaz did not.  But is there anything else out there, other than these two opinions, decided two weeks apart, in 2011?

We took a look, but most of what we found were either MDL orders creating negotiated direct filing regimes, or cases, like Yasmin/Yaz, that dealt with the impact of direct filing on substantive choice of law issues.  See, e.g., In re Incretin Mimetics Products Liability Litigation, 2013 WL 12171761 (S.D. Cal. Nov. 13, 2013) (an example of the former); Wahl v. General Electric Co., 786 F.3d 491, 498-99 (6th Cir. 2015) (an example of the latter).  Other than that, it appears that the two 2011 precedents are pretty much all there is.  The issue was raised in In re New England Compounding Pharmacy, Inc. Products Liability Litigation, 2015 WL 178130 (D. Mass. Jan. 13, 2015), but mooted by plaintiffs refiling in their home jurisdiction and getting a JPMDL “tag along” order before it could be decided.  Id. at *1 n.3.  The court in In re Vioxx Products Liability Litigation, 478 F. Supp.2d 897, 904 n. 2 (E.D. La. 2007), noted the possibility that “the MDL forum” might not be able to “exercise personal jurisdiction over the defendant” in discussing direct-filed complaints, but that was an aside in another choice of law decision.  A direct-filed case was dismissed for lack of subject matter jurisdiction in In re Pradaxa (Dabigatran Etexilate Products Liability Litigation, 2014 WL 7145470, at *3 (S.D. Ill. Dec. 15, 2014), where the plaintiffs were from a foreign country – but personal jurisdiction was not discussed.  Thus, it appears that Depuy Orthopaedics and Heartland Payment are the only cases actually addressing personal jurisdiction in the context of direct-filed MDL actions.

In the context of an ordinary (non-MDL) transfer, the Supreme Court has sought to “ensure that the ‘accident’ of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed.”  Van Dusen v. Barrack, 376 U.S. 612, 638 (1964).  We think that this principle logically extends to personal jurisdiction – and to direct filed actions.

In MDLs that rest – as product liability litigation does – on state law and diversity of citizenship, there is no jurisdictional basis for direct filing of MDL actions other than the defendant’s waiver of their rights to assert lack of personal jurisdiction.  The Supreme Court’s recent jurisdictional decisions, culminating (so far; there will be more) with BMS and BNSF, have put the other side’s mass tort business model in significant jeopardy.  Thus, we see plaintiffs making extreme and exorbitant waiver arguments based on MDL direct filing agreements, not only in Depuy Orthopaedics, but also in the earlier Heartland Payment case, which also involved an aggressive waiver claim.  Our best advice is “don’t do it anymore.”  There is no statutory basis for personal jurisdiction in a direct filed MDL case, and Lexecon indicates that the Supreme Court won’t be inclined to create one.  Except for the rare MDL located in a place where every defendant is “at home,” there is no constitutional basis for direct filing creating personal jurisdiction either.

Weighing all these considerations, and given how the jurisdictional law is evolving, it is not a good idea for a defendant to waive any personal jurisdiction defense at this time.  Thus, we believe that there is no constitutional basis for personal jurisdiction in direct-filed MDL cases, and defendants should not do plaintiffs any favors by voluntarily agreeing to such procedures.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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 corporatiofn to general jurisdiction.
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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.
  29. 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.
  30. Anglin v. 21st Century Insurance Co., 2003 WL 1076538  (Wash. App. March 10, 2003) (Washington) (non-product liability).  Grant of motion to dismiss affirmed.
  31. 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.
  32. 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.
  33. 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.
  34. 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.
  35. 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.
  36. 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.
  37. 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.
  38. 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.
  39. 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.
  40. 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.
  41. 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.
  42. 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.
  43. 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.
  44. 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.
  45. 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.
  46. 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
  47. 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.
  48. 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.
  49. 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.
  50. 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.
  51. 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.
  52. 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.
  53. 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.
  54. 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.
  55. 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.
  56. 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.
  57. 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.
  58. 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.
  59. 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).
  60. 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.
  61. 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.
  62. 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.
  63. 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.
  64. 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.
  65. 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.
  66. 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.
  67. 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.
  68. 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.
  69. 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.
  70. 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.
  71. 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).
  72. 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.
  73. 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.
  74. 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.
  75. 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).
  76. 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.
  77. 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.
  78. 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.
  79. 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.
  80. 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.
  81. 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).
  82. 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.
  83. 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.
  84. 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.”
  85. 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.
  86. 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.
  87. 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.
  88. 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.
  89. 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.
  90. 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.
  91. 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.
  92. 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.
  93. 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.
  94. 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.
  95. 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.
  96. 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)
  97. 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.
  98. 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.
  99. 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.
  100. 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.
  101. 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.
  102. 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.
  103. 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.
  104. 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.
  105. 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.
  106. 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.
  107. 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).
  108. 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.
  109. 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.
  110. 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.
  111. 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.
  112. 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.
  113. 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.
  114. 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.
  115. 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.
  116. 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.”
  117. 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.
  118. 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.
  119. 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.
  120. 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.
  121. 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.
  122. 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.
  123. 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.
  124. 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.
  125. 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.
  126. 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.
  127. 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.
  128. 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).
  129. 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.
  130. 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.
  131. 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.
  132. 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.
  133. 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.
  134. 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.
  135. 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.
  136. 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.
  137. 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.
  138. 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.
  139. 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.
  140. 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.
  141. 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.
  142. 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.
  143. 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.
  144. 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.
  145. 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.
  146. 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.
  147. 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.
  148. 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.
  149. 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.
  150. 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).
  151. 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.
  152. 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.
  153. 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.
  154. 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.
  155. 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.”
  156. 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.
  157. 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.
  158. 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.
  159. 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.
  160. 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.
  161. 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).
  162. 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.
  163. 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.
  164. 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.
  165. 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.
  166. 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.
  167. 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).
  168. 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.
  169. 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.
  170. 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.
  171. 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.
  172. 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.
  173. 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.
  174. 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.”
  175. 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.
  176. 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.
  177. 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.
  178. 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.
  179. 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.
  180. 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.
  181. 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.
  182. 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.
  183. 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.
  184. 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.
  185. 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.
  186. 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.
  187. 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.
  188. 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.
  189. 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.
  190. 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.
  191. 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.
  192. 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.
  193. 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).
  194. 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.
  195. 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.
  196. 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.
  197. 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.
  198. 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).
  199. 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.
  200. 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.
  201. 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.
  202. 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.
  203. 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.
  204. 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.
  205. 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.
  206. 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.
  207. 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.
  208. 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.
  209. 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.
  210. 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.
  211. 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.
  212. 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.
  213. 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.
  214. 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.
  215. 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.
  216. 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.
  217. 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.
  218. 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.
  219. 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.
  220. 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.
  221. 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.
  222. 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).
  223. 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.
  224. 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.
  225. 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.
  226. 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.
  227. 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.
  228. 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).
  229. 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.
  230. 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.
  231. 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.
  232. 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.
  233. 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.
  234. 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.
  235. 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.
  236. 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.
  237. 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.
  238. 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.
  239. 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.
  240. 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.
  241. 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.
  242. 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.
  243. 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.
  244. 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.
  245. 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.
  246. 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.
  247. 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.
  248. 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.
  249. 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.
  250. 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.
  251. 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.
  252. 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.
  253. 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.
  254. 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.
  255. 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.
  256. 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.
  257. 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.  Reconsideration denied, 2018 WL 2159927 (N.D. Ala. May 10, 2018). Seeking FDA approval of a product is not conduct specifically directed to any state.
  258. 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.
  259. 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.
  260. 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.
  261. 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.
  262. Mallory v. Norfolk Southern Railway Co., 2018 WL 3043601, slip op. (Pa. C.P. May 30, 2018) (Pennsylvania) (non-product liability).  Motion to dismiss 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.).
  263. 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.
  264. 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.
  265. 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..
  266. 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.
  267. 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.
  268. 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.
  269. 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.
  270. 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.
  271. 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.
  272. 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.
  273. 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.
  274. 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.
  275. 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.
  276. 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.
  277. 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.
  278. 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.
  279. 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.
  280. 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.
  281. 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.
  282. 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.
  283. 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.
  284. 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.
  285. 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.).
  286. 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.
  287. 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.
  288. 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.
  289. 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.
  290. 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.
  291. 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.
  292. 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.
  293. 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.
  294. 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.
  295. 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.
  296. 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.
  297. 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.
  298. 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.
  299. 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.
  300. Muray 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.
  301. 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.
  302. 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.
  303. 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.
  304. 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.
  305. 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.
  306. 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.
  307. 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.
  308. 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).
  309. 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.
  310. 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.
  311. 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.
  312. 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.
  313. 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.
  314. 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.
  315. 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.
  316. 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.
  317. 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.
  318. 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.
  319. 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.
  320. 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.
  321. 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.
  322. 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.
  323. 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.
  324. 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.
  325. 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.
  326. 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.
  327. 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.
  328. 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.
  329. 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.
  330. 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.
  331. 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.
  332. 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.
  333. 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.
  334. 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.
  335. 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.
  336. 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.
  337. 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.
  338. 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.
  339. 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.
  340. 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.
  341. 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.
  342. 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.
  343. 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.
  344. 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.
  345. 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.
  346. 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.
  347. 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.
  348. 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.
  349. 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.
  350. 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.
  351. 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.
  352. 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.
  353. 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.
  354. 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.
  355. 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.
  356. 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.
  357. 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.
  358. 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.
  359. 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.
  360. 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.
  361. 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.
  362. 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.
  363. 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.
  364. 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.
  365. 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.
  366. 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.
  367. 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.
  368. 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.
  369. 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.
  370. 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.
  371. 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.
  372. 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.
  373. 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.
  374. 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.
  375. 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.
  376. 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.
  377. 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.
  378. 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.
  379. 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.
  380. Payrovi v. LG Chem America, Inc., 2020 WL 5798375 (N.D. Cal. Sept. 29, 2020)
  381. 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.
  382. 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.
  383. 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.
  384. 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.
  385. 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.
  386. 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.
  387. 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.
  388. 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.
  389. 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.
  390. 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.
  391. 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.
  392. 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.
  393. 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.
  394. 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.
  395. 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.
  396. 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.
  397. 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.
  398. 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.
  399. 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.
  400. 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.
  401. 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.
  402. 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.
  403. 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.
  404. 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.
  405. 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.
  406. 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.
  407. 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.
  408. 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.
  409. 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.
  410. 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.
  411. 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.
  412. 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.
  413. 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.
  414. 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.
  415. 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.
  416. 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.
  417. 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.
  418. 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.
  419. 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.
  420. 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.
  421. 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.
  422. 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.
  423. 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.
  424. 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.
  425. 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.
  426. 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).
  427. 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.
  428. 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.
  429. 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.
  430. 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.
  431. 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.”
  432. 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.
  433. 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.
  434. 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.
  435. 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.
  436. 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.
  437. 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.
  438. 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.
  439. 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.
  440. 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.
  441. 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.
  442. 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.
  443. 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.
  444. 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.
  445. 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.
  446. 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.
  447. 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.
  448. 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.
  449. 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.
  450. 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.
  451. 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.
  452. 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.
  453. 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.
  454. Aldrich v. National Collegiate Athletic Ass’n, ___ F. Supp.3d ___, 2020 WL 5255671 (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.
  455. 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.
  456. 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.
  457. 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.
  458. 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.
  459. 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.
  460. 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.
  461. 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.
  462. 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.
  463. 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.
  464. 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.
  465. 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.
  466. 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.
  467. 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.
  468. 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.
  469. 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.
  470. 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.
  471. 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.
  472. 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.
  473. 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.
  474. 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.
  475. 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.
  476. 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.
  477. 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.
  478. 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.
  479. 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.
  480. 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.
  481. 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.
  482. 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.
  483. 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.
  484. 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.
  485. 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.
  486. 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.
  487. 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.
  488. In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2020 WL 7866660 (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.
  489. 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.
  490. 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.
  491. 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.
  492. 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.
  493. 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.
  494. 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.
  495. 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.
  496. 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.

There’s a problem with attorney advertising in the prescription medical product space – but it’s not the one you normally hear us defense-side litigators kvetching about. Quite apart from its litigation-generating effects, attorney advertising can have adverse public health consequences when all the anti-pharma hyperbole causes patients to cease taking targeted products in violation of their physicians’ orders.  That problem is worse with some products than with others.  Currently, plaintiff-side lawyers and their litigation funder enablers have decided to target virtually all modern anticoagulant drugs (e.g., Effient, Eliquis, Plavix, Pradaxa, Xarelto) because they can cause (surprise) severe bleeding.  That’s a big problem because abruptly stopping those medications can very easily be fatal.  Nor is it the only example.  Halting, say, an anti-diabetes medication can lead to serious complications, although one would hope not in such a dramatic fashion as a stroke.

Congress held hearings on patient injuries caused by attorney advertising last month. Here’s a link to the testimony of the witnesses.  Two doctors testified about the impact of sensationalistic lawyer advertising on their patients, including patients who had died after being induced to stop taking their medicine by all the bombast.  A law professor testified about a law review article that discussed the difficulties of bar associations regulating such advertising, when it is often carried out by non-lawyers whose physical locations (lawyers are regulated on a state-by-state basis) are unclear.  A lawyer also testified, who raised First Amendment objections essentially to any regulation of attorney advertising – even when limited to issues affecting the public health.

We want to address that last point.

To the attorney advertisers, we say “welcome to the club.”  Our medical device and pharmaceutical clients, when they engage in advertising – including direct-to-consumer advertising – are engaged in the same type of speech as our adversaries, at least from a First Amendment perspective.  It’s all commercial speech.  We’ve written lots of blogposts on commercial speech, most being variations on the theme that the FDA can’t ban truthful commercial speech.  We readily extend the same consideration to our opponents.  The government can’t ban truthful attorney advertising either.

That said, the First Amendment isn’t an obstacle to the kind of regulation that was considered at the recent hearing.  Disclaimers?  Those are child’s play, constitutionally.  Judicial opinions recommend them frequently, when they hold disclaimers to be an alternative to advertising bans of various types (not just involving drugs).  E.g., ECM BioFilms, Inc. v. FTC, 851 F.3d 599, 617 (6th Cir. 2017) (“the Commission was not required to adopt the least restrictive disclaimer”); Pearson v. Shalala, 164 F.3d 650, 659 (D.C. Cir. 1999) (“we suspect that a clarifying disclaimer could be added to the effect that ‘The evidence in support of this claim is inconclusive.’”); American Home Products Corp. v. FTC, 695 F.2d 681, 696-702 (3d Cir. 1982) (agency may order advertiser making unsubstantiated scientific claim to include a disclaimer to that effect).  Indeed, as to attorney advertising itself, the Supreme Court pointed out:

[Attorney’s] constitutionally protected interest in not providing any particular factual information in his advertising is minimal.  Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception.

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (citation and quotation marks omitted).  The proposal during the hearings that attorney advertisements, at least those concerning certain products, be required to state, with equal emphasis, that under no circumstances should anyone stop their treatment without first consulting their doctor, is 100% constitutional.

Indeed, if anything, that proposal is constitutionally conservative.  Attorney advertisers targeting prescription medical products are simply the flip side of prescription medical product manufacturers in this regard.  Anything the FDA can require our clients to do, it could, constitutionally at least – require attorney advertisers to do – if it had the regulatory authority.  Theoretically, Congress could confer on the FDA the power to regulate all advertising concerning FDA-regulated products, not just that originating with the entities that the FDA now regulates.  We don’t advocate doing this, because we think that the FDA has more important work to do than evaluate attorney advertising.  Nor are we wild about giving an FDA imprimatur to whatever attorney advertisements that could survive the agency’s standards.  But from a constitutional perspective the FDA could undertake such regulation.  Since commercial speech is commercial speech, the FDA (or some other regulatory body) could impose on lawyer advertising the same standards for balance and scientific support that our clients’ advertising, both DTC and otherwise, must already meet.  Moreover, an agency could make the attorney advertisers pay for the review process, just as our clients do, through user fees.

The bottom line is this:  Lawyer advertising holds no preferred position among types of commercial speech.  Indeed, there are no “types” of commercial speech – it’s all the same constitutionally.  So when attorneys on the other side advocate bans on truthful manufacturer speech, because supposedly even truthful off-label information is a threat to the public health, they should remember that the same thing can be said about truthful attorney advertising.

We’re quite willing to apply the same standards to both sides. Truthful commercial speech about prescription medical products (or anything else) cannot be banned, but that doesn’t prohibit the FDA (or some other entity) from exercising the power at least to review it first.  As far as disclaimers, look no further than 21 C.F.R. §101.93(c)(2).  Every lawyer advertisement about FDA-regulated products could quite constitutionally be required to state, “These statements have not been evaluated by the Food and Drug Administration.”