As a follow-on to our post last year about remote (Zoom) depositions), we received a suggestion that we examine MDL orders to see how they have been handling remote deposition procedure during the COVID-19 pandemic.  That made sense to us because in MDLs every procedural jot and tittle is gone over with a fine-toothed comb.  We asked our crack legal assistants to review our internal library of MDL procedural orders (yes, we have such a thing) to see what recent MDL transferee judges – advised by the parties – have had to say about the conduct of remote depositions.

We start with the Manual for Complex Litigation.  The most recent edition is pre-COVID, but it does contain a rather elementary discussion of remote depositions:

Telephonic or videoconferenced depositions can reduce travel costs.  Federal Rule of Civil Procedure 30(b)(7) allows the court to order or the parties to stipulate to taking a deposition “by telephone or other remote electronic means”. . . .  Through use of . . . videoconference, distant witnesses may be examined by counsel from counsel’s offices, with the court reporter located with the witness or, by stipulation, at one of the attorneys’ offices. . . .  Remote depositions are most often used for relatively brief examinations that do not involve numerous documents, but may also be used to reduce travel costs. . . .  To ensure that [witnesses] are not coached, ground rules should specify who may be present with the [witness] during the examination.

Manual for Complex Litigation (4th), at 86-87.  This commentary does recognize two of the issues we addressed in our prior post – difficulties with use of documents, and the need to prevent surreptitious coaching of the witness being deposed.  The Manual also discusses general issues concerning the presentation of video depositions of any sort at trial.  See Id. at 144-45.

Numerous MDLs have entered orders authorizing remote depositions during the COVID-19 pandemic.  Without digging too deeply, we’ve reviewed:

  • In re Blackbaud, Inc., Customer Data Security Breach Litigation, MDL No. 2972, Stipulated Order (D.S.C. March 10, 2021).
  • In re Generic Pharmaceuticals Pricing Antitrust Litigation, MDL No. 2724, PTO No. 159 (E.D. Pa. Feb. 12, 2021).
  • In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Devices Liability Litigation, MDL No. 2846, CMO 30 (S.D. Ohio Dec. 14, 2020) (“Davol”).
  • In re Valsartan, Losartan, & Irbesartan Products Liability Litigation, MDL No. 2875, CMO 20 (D.N.J. Nov. 17, 2020).
  • In re Onglyza (Saxagliptin) & Kombiglyze XR (Saxagliptin & Metformin) Products Liability Litigation, MDL No. 2809, Order Regarding Remotely Conducted Depositions (E.D. Ky. Oct. 6, 2020).
  • In re Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924, PTO 48 (S.D. Fla. Oct. 5, 2020).
  • In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, MDL No. 2775, CMO 17 (D. Md. June 9, 2020) (“BHR”).
  • Huntington/Cabell v. ABDC, MDL No. 2804 (remanded), Remote Deposition Protocol (S.D.W. Va. June 6, 2020) (“H/C”).
  • In re Proton-Pump Inhibitor Products Liability Litigation, MDL No. 2789, CMO 40 (D.N.J. May 20, 2020) (“PPI”).

We particularly wish to thank Debbie Ford, the Reed Smith legal assistant who runs the firm’s MDL pretrial order electronic library.  We would also like to thank the folks at Esquire Deposition Solutions for demonstrating their technology, so we better understand exactly what these orders are addressing.

As we expected, these MDL-related remote deposition protocols cover just about every conceivable aspect of the conduct of remote depositions.  In the rest of this post, we have tried to organize the various, and sometimes conflicting, provisions of these seven MDL-related remote deposition orders into something that we, and other lawyers contemplating remote depositions, could use as a checklist for creating similar protocols in future litigation.

General

“All depositions . . . shall be conducted via videoconference, unless all parties agree to conduct the deposition in person.”  Valsartan Testimony ¶1; accord Blackbaud ¶2; Davol ¶2.

“Hybrid” remote depositions – where some participants are physically present, and others attend via Zoom or similar teleconference services, are permissible.  Blackbaud ¶37; Generic Pharmaceuticals Pricing ¶2; Davol ¶1; Zantac at p.1.

Objections to conducting a deposition remotely must be made in writing a set time in advance of the deposition and must be “supported by clear and convincing evidence of unfair prejudice or harm suffered by the movant.”  Valsartan Testimony ¶3.  Cf. Blackbaud ¶14 (objection process does not require clear and convincing evidence); BHR §I(L).

Either the witness or any counsel otherwise entitled to attend the deposition can require the deposition to occur remotely.  Generic Pharmaceuticals Pricing, ¶1; accord Blackbaud ¶12.

“No person shall be required to violate or disregard applicable health directives and recommendations or the advice of his or her physician.”  H/C ¶1(A); accord Zantac ¶22.  Cf. PPI ¶11 (participants must “comply with any government law, regulation or guidance regarding public health and safety during the COVID-19 pandemic”).

Some protocols provide that “[a] deposition that is noticed to take place remotely without advance agreement that the witness is available and able to proceed remotely at the noticed time shall be deemed void and unenforceable ab initio, and no motion shall be necessary to quash such a notice.”  H/C ¶1(B), accord Zantac ¶1; PPI ¶1.  Conversely, Blackbaud provides that “all depositions in this action shall be taken via remote videoconference . . . absent agreement, objection or court order to the contrary.”  Blackbaud ¶2.

Absent some other agreement the noticing party “shall bear the costs” for the host technology, the court reporter, and the videographer.  Blackbaud ¶22.  Each party pays for “its own real-time feed, deposition transcript (rough and final), and video copy of the deposition.”  Id.

Some MDL orders impose responsibility for ensuring the remote deposition’s accessibility to all participants on the noticing party.  Generic Pharmaceuticals Pricing ¶2; H/C ¶1(F)(1).  Others place this responsibility on the assigned court reporter or videographer.  Onglyza, ¶2.

The notice of deposition shall specify that it is remote and must identify the host technology, and a contact person at the host technology service.  H/C ¶2(C); accord Blackbaud ¶13; BHR §II(B).

“All remote witness deposition notices shall advise the planned location of the witness (city and state shall be sufficient identification for this purpose, with due regard for maintaining the privacy associated with home addresses), the court reporter, and the witnesses’ counsel who will attend remotely.”  Davol ¶3; accord PPI ¶4 (also including locations of court reporter and videographer).

All parties to the deposition must be informed of:  (1) the host technology to be used; (2) the “minimum technical specifications required . . . including equipment, software, and internet bandwidth requirements”; (3) any “additional software”; and (4) a contact person(s) “who will support the deposition and who can answer questions about technical requirements.”  H/C ¶1(F)(1).  Accord Davol ¶6 (notice to contain “detailed instructions”); Zantac ¶10; PPI ¶5; BHR §II(B).  Cf. Blackbaud ¶¶15-16, 25 (establishing minimum requirements for host technology and notice).

The noticing party must provide the court reporter with the MDL remote deposition protocol prior to the deposition.  Zantac ¶7; BHR §II(C).

Some protocols require a professional videographer to record all videotaped remote depositions.  Generic Pharmaceuticals Pricing ¶6; Blackbaud ¶20; BHR §I(N).  Others make separate video recording optional with parties making “best efforts” to “accommodate” such requests.  Valsartan Recording ¶2.

The videographer shall supply a “certified recording” containing “only time on the record.”  H/C ¶3(G).

Both a court reporter and a videographer shall participate in remote depositions, and “the deposition may not otherwise be recorded electronically.”  Zantac ¶4; see Id. ¶24 (“the deposition may not otherwise be recorded electronically without the consent of the Parties”); accord Davol ¶11; PPI ¶13; BHR §I(N).

Some orders designate a particular videoconferencing service.  Generic Pharmaceuticals Pricing, at p.1; Valsartan Communication ¶2.

Others specify only “use of a single court reporting service with a videoconferencing platform, which shall be used for all Remote Depositions.”  BHR §I(N).

The identity of the host technology, once chosen, cannot be changed except through a formal meet and confer process.  Davol ¶6 n.1.

The noticing party must arrange for technical support/training to be available to all participants through the host technology service.  Blackbaud ¶23; H/C ¶3(D).

The noticing party must, upon request, make available a “real-time transcript.”  Zantac, ¶14; accord Blackbaud ¶24; H/C ¶3(E).  Cf. Blackbaud ¶23 (each participant pays for its own real-time transcript).

Technical difficulties do not waive any objections.  Generic Pharmaceuticals Pricing ¶12; accord Zantac ¶33; PPI ¶17.

Delays or interruptions due to technical difficulties do not count against time limits.  Blackbaud ¶27; Generic Pharmaceuticals Pricing ¶12; H/C ¶3(F); BHR §IV(A).  That remote depositions may take longer may require the parties “to exceed time limits on deposition days,” necessitating “good faith efforts to make reasonable accommodations to allow all Parties adequate additional time.”  Zantac, ¶36.

A remote deposition may be rescheduled due to prolonged technical difficulties.  Blackbaud ¶41; Generic Pharmaceuticals Pricing ¶12; Zantac ¶33; BHR §IV(A); PPI ¶17.

To detect technical difficulties, the host technology must “automatically alert the court reporter if any Participant is disconnected.”  H/C ¶3(F).  The deposition is immediately halted until the issue causing the disconnection is resolved.  Id.

Inadvertent disclosure of privileged information “due to technical disruption” or “captured by a videoconferencing or other recording device” does not waive any privilege.  H/C ¶3(H); accord Zantac ¶30.

A “misplaced attendee” in a “breakout room” does not waive any privilege.  Zantac ¶32.

If technical difficulties prevent a timely objection, the objection may be raised, by “sworn affidavit,” within “within five business days of receipt of the final transcript.”  H/C ¶3(I).

Procedures for remote depositions of experts may vary.  Zantac ¶2.

A consenting non-party may be deposed remotely subject to the same protocol in place for party witnesses.  Generic Pharmaceuticals Pricing ¶15.

A remote deposition conducted under the protocols “may be admitted at trial with the same effect and pursuant to the same evidentiary rules as one recorded in-person.”  Zantac ¶34; accord Blackbaud ¶39; Davol ¶11; Valsartan ¶¶(R)(3), Recording 1.  Cf. PPI ¶13 (a deposition’s remote status “shall not, by itself, be a sufficient basis” for not admitting it “at trial with the same effect as a deposition video that was recorded in-person”).

Redeposition not allowed “absent a showing of good cause and obtaining leave of Court or agreement of the Parties.”  Zantac ¶35; accord PPI ¶18.

“Alterations” of the remote deposition video recording may only be made to comply with trial deposition designations, and with full disclosure.  Only cuts may be made, with “no color or other modification to the images.”  Davol ¶11.

The parties may meet and confer to agree to resumption of in-person depositions when they believe “the COVID-19 pandemic has been sufficiently mitigated such that in-person depositions may occur.”  Blackbaud ¶3 (setting out procedural steps).

Security

The host technology must ensure a secure and confidential connection, including keeping track at all times of everyone attending.  Generic Pharmaceuticals Pricing ¶10; accord Zantac ¶13.  Where a protective order is in effect, only persons governed by the order may participate in remote depositions using protected documents.  Onglyza, ¶3; H/C ¶1(E).

A set period (a day or two) before a remote deposition, the host technology service must be informed of the identities of all participants.  Blackbaud ¶17; Davol ¶5; Valsartan Communication ¶2(a); Zantac ¶12; H/C ¶3(B).

“The noticing party and/or its [host technology] must ensure that only registered Participants and Attendees are sent a link to join the deposition.”  Zantac ¶12.

Some orders are more rigorous than others in detailing security procedures:

  • Blackbaud ¶23 (“security measures must include a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition, the ability to disable the ‘record’ feature in the [host technology], and end-to-end encryption. The [host technology] must also offer training prior to the deposition to the [witness] and attorneys”).
  • Davol ¶7 (“security measures include using tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition,” “disabling the ‘record’ feature . . . for the witness and attending attorneys,” and “[s]election of a national court reporting service with an established” host technology service).
  • Valsartan Communication ¶2(c) (“enable the waiting room feature . . . to ensure each participant is only admitted after their identities have been confirmed”).
  • Onglyza ¶1 (the host technology “must be secured by password or comparable restriction”).
  • Zantac ¶11 (host technology “must have implemented adequate security measures to ensure the confidentiality of the Remote Deposition”).
  • H/C ¶1(E) (requiring “a secure [host technology] that, at a minimum, provides verifiable end-to-end encryption, requires unique user-identity authentication, and employs a [host technology]-moderated ‘green room’ or ‘lobby’ feature”).
  • PPI ¶6 (“security measures include using tools such as a ‘virtual waiting room’ that allows the court reporter to admit only individuals authorized to attend the deposition,” “disabling the ‘record’ feature . . . for the witness and attending attorneys,” and sharing electronic exhibits “only . . . vis a hyperlink . . . with the download function disabled”).

“All Participants who connect to the [host technology] must connect, through a private, password-protected network.  Connection through a public Wi-Fi network is not permitted.”  H/C ¶1(E)(1).

The noticing party must make available “technical and other information concerning the security of the proposed” host technology at least ten days before the deposition.  H/C ¶1(E)(2).

All devices to be used to participate in the remote deposition “must be secured with appropriate firewalls, VPN, or similar security infrastructure.”  H/C ¶1(F)(2).

No link to a remote deposition “should be posted on a website or otherwise made publicly available.”  H/C ¶3(C); accord Zantac ¶13.

“The deposition conference password shall be provided in a separate e-mail communication from the e-mail communication providing the platform link.”  H/C ¶3(C).

Confidential documents “shall be protected in the same manner as in an in-person deposition.”  BHR §IV(F).

“[T]o prevent confidential documents from being downloaded . . ., electronic exhibits may only be shared . . . through the [host technology] via a hyperlink to file sharing software . . . with the download function disabled.”  Zantac ¶11; accord Davol ¶7; PPI ¶6.

Nobody can attend a remote deposition “who is not identified on the record.”  BHR §I(N); H/C ¶6(C).

After the remote deposition is completed, the participants “shall store the exhibits in a secure location that protects confidentiality.”  H/C ¶5(D).

The Witness

The only video feed to be recorded is that of the witness.  Generic Pharmaceuticals Pricing ¶6; BHR §I(N); H/C ¶3(G).  See Onglyza, ¶3 (requiring recording of witness at all times from the waist up).

The witness is to be questioned in “a quiet, well-lit, indoor location, while seated in front of a neutral background, and facing the camera.”  Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶28; Davol ¶3; Valsartan Recording ¶2(a-b); Zantac ¶19; H/C ¶1(D); PPI ¶10.  Cf. BHR §IV(E) (participation shall be “in a space free of distractions and noise to the extent possible”).

During the deposition, no other applications should be running on the witness’ computer.  Generic Pharmaceuticals Pricing ¶6; accord Zantac ¶20.  “To confirm that no prohibited applications are open or running,” the host technology may require “the witness to share the screen of the witness’s electronic device.”  Zantac ¶20.

A witness’ “special circumstances” should be accommodated without any “unreasonable burden” on the witness or others in the “household.”  H/C ¶1(H); accord Zantac ¶17.

“All Remote Depositions shall be conducted during normal business hours within the witness’s local time zone.”  Zantac ¶17; accord H/C ¶1(H); PPI ¶8.

During the deposition, the witness “is to have their device positioned so his or her camera shows them from the waist up and it must stay that way.”  Onglyza ¶7; accord Valsartan Recording ¶2(c).

The witness is not allowed to wear a mask.  Valsartan Recording ¶2(a); Onglyza ¶9; BHR §I(M).

Counsel taking and defending the deposition aren’t allowed to wear masks.  BHR §I(M).

Most MDL orders allow remotely deposed witness to have their attorneys physically present, subject to some limitations:

  • Blackbaud ¶37 (if “counsel for the [witness] . . . is present at the same location as the [witness] . . . the court reporter and a videographer shall be in the same location”).
  • Generic Pharmaceuticals Pricing ¶¶1, 14 (“Nothing . . . shall be construed to preclude any witness and his or her attorney from appearing at the same location for any deposition;” a technician may also be physically present).
  • Davol ¶3 (if counsel defending the witness is physically present, the side taking the deposition “shall be permitted the same number of participants and/or attendees at the deposition location with the witness”).
  • Valsartan ¶(R)(4) (“Nothing in this Order prevents counsel for a witness from being present in-person to represent that witness.”).
  • Zantac ¶21 (“Only the witness’s counsel and in-house counsel for the Party affiliated with the witness is/are permitted to be in the same location as the witness during a Remote Deposition, at the sole discretion of the witness.”).
  • BHRI(M) (“The Deposing Counsel or the Defending Counsel may attend any Remote Deposition in-person, but only with the consent of the Witness, and consistent with applicable social-distancing and other health guidelines”).
  • H/C ¶1(C) (“the noticing party’s choice to participate in a deposition remotely shall not be reason to prevent the defending counsel from defending the deposition in person”).
  • PPI ¶10 (“Only the witness’s counsel and in-house counsel for the Party affiliated with the witness is/are permitted to be in the same location as the witness during a remote testimony, at the sole discretion of the witness.”).
  • But see Onglyza, ¶6 (“The [witness] and all attorneys must be in separate physical locations and on separate devices”).

Counsel defending the witness shall notify the noticing party at least a week before the deposition whether counsel will be attending the client’s deposition in person or remotely, and must identify anyone else who will be physically present.  Zantac ¶25; accord Davol ¶4 (two weeks notice); PPI ¶14 (notify “in advance”); BHR §I(M).

A physically attending defending attorney becomes “responsible” for ensuring that the witness remains on camera.  Generic Pharmaceuticals Pricing ¶6.

“Defending lawyers and the witness shall spend whatever time is necessary in advance of the deposition to ensure that the witness is fully fluent in the use of the technology.”  Davol ¶13.

The “questioning attorney” may “have a representative present at the [witness]’s location, subject to social distancing and safety considerations” for the purpose of handling hard copy exhibits.  Valsartan Exhibits ¶1.  Cf. BHR §I(O) (deposing counsel may have a “technical specialist and/or deposition “concierge” or other assistant” present at counsel’s expense “to assist with technology issues and/or presentation or use of exhibits”).

Remote witnesses must have an “available internet connection” that is “a Broadband connection (cable or satellite) of at least 10 Mbps or better.”  H/C ¶1(F)(1); accord Blackbaud ¶19; Davol ¶6; Zantac ¶15.

Remote witnesses “may be required to use a keyboard, mouse, or other similar means to open and/or advance the pages of an exhibit.”  Zantac ¶27; accord Valsartan Exhibits ¶2.

No later than two weeks before a remote deposition, the witness “shall confirm” possession of a computer and internet service meeting specified requirements for conducting the deposition.  Generic Pharmaceuticals Pricing ¶8.

Should the witness lack the requisite technology, most protocols impose on the party noticing the deposition to “arrange to loan or otherwise provide such hardware to the witness at least 48 hours before the deposition.”  Id.; accord Davol ¶6; Zantac ¶16; BHR §III(A); H/C ¶1(F)(2); PPI ¶7.  Cf. Davol ¶13 (examining counsel is to make the remote host technology “available to the witness and his/her attorney and staff, well in advance of the scheduled depositions, to help explain and facilitate”).

Blackbaud uniquely places the burden of furnishing necessary technology on the party defending the deposition, where the witness is represented.  Blackbaud ¶19 (“The Defending Party shall ensure that the Witness has access to technology that meets the minimum standards required.”).  If a witness is unrepresented, the noticing party is responsible “provide sufficient technology to the [witness] for use in the deposition.”  Blackbaud ¶26.

The noticing party shall arrange a test prior to each remote deposition to ensure that the technology works.  Generic Pharmaceuticals Pricing ¶9; Davol ¶¶6, 13; Zantac ¶16; BHR §III(B); H/C ¶1(G)(2); PPI ¶7.

If the witness has insufficient connectivity, “the noticing party, through the court reporter, shall send the witness a portable Wi-Fi hotspot for use at the deposition.”  Davol ¶¶6, 13 (at noticing counsel’s expense).

Witnesses may “reschedule remote depositions up until the time of the deposition due to either “changed circumstances in their health [or] their family’s health,” or “ professional obligations due to the COVID-19 pandemic.  PPI ¶8.

If the witness is to produce documents, counsel “shall work cooperatively with the Witness in advance of the Remote Deposition to obtain copies of such documents and to ensure that all Participating Counsel and the Court Reporter are provided with hard or electronic copies of the documents at least three business days prior to the Remote Deposition.”  BHR §III(E).

Prevention of Witness Coaching

Where the witness’ counsel is physically present, counsel must be visible “so that all Participants can see and hear the counsel for the witness or otherwise maintain a camera view showing both the witness and counsel (or any other persons assisting in the deposition, such as a paralegal or legal assistant).”  Zantac ¶22; accord Generic Pharmaceuticals Pricing ¶6; H/C ¶3(A); PPI ¶11.  That separate feed is not preserved once the deposition concludes.  Generic Pharmaceuticals Pricing ¶6; H/C ¶6(B).

No unrecorded communications – physical or electronic − with witnesses during depositions are permitted.  Blackbaud ¶40; Generic Pharmaceuticals Pricing ¶13; Davol ¶12; Valsartan Communication ¶2(d); Onglyza, ¶9; Zantac ¶31; BHR §IV(E); H/C ¶6(A); PPI ¶16.

“No counsel shall conduct a private communication with any [witness] while a question is pending, except for the purpose of determining whether a privilege should be asserted.”  Blackbaud ¶31.

“No counsel, present live or remotely, with a witness shall engage in any improper signaling or non-verbal communication designed to influence an answer of a witness.”  Davol ¶12 n.2.

A witness may confer with counsel during breaks to the same extent permitted during in-person depositions.  Generic Pharmaceuticals Pricing ¶13; Davol ¶12; Onglyza, ¶9; Zantac ¶31; BHR §IV(C); H/C ¶6(A)(2); PPI ¶16.

All private “chat” functions are disabled.  Blackbaud ¶21; Generic Pharmaceuticals Pricing ¶10; Valsartan Communication ¶2(d); Onglyza, ¶4; BHR §I(N); H/C ¶6(A)(1).

“[T]he witness shall not, without informing the noticing party, consult any outside sources of information other than the exhibits presented to the witness to obtain information in connection with his or her testimony.”  Generic Pharmaceuticals Pricing ¶14.

“The [witness] will confirm that he does not have any other devices near him and that his cell phone is not within reach or visible to him.”  Onglyza, ¶10.

Remote Deposition Procedure

Notice must be given to the host technology service and to all participants of any last-minute changes in any party’s designated attendee.  Blackbaud ¶17; Zantac ¶12; H/C ¶3(B).

All participants must log in.  Blackbaud ¶30.

“At the time of the deposition, the witness, all attorneys, and all support staff shall advise the court reporter of his or her physical location.”  Zantac ¶18; accord Davol ¶5.

“At the beginning of each deposition, . . . the videographer shall begin the deposition with an on-the-record statement that includes:  (i) the officer’s name and company affiliation; (ii) the date, time, and place of the deposition; (iii) the [witness’] name; (iv) the officer’s administration of the oath or affirmation to the [witness]; (v) the examining attorney for the deposition; and (vi) a statement on the record that all persons attending the deposition will be identified in the final stenographic transcript.”  Zantac ¶8; accord Blackbaud ¶40; Valsartan Recording ¶¶3-4.

Remote witnesses may be sworn remotely by the court reporter.  Blackbaud ¶¶35-36; Generic Pharmaceuticals Pricing ¶5; Davol ¶2; Valsartan Testimony ¶2; Onglyza ¶5; Zantac ¶¶3, 6; BHR §I(K); H/C ¶4; PPI ¶3.

All attendees “shall enable” “do not disturb” settings for applications not in use, “including but not limited to Skype, instant messaging, and/or e-mail notifications.”  Zantac ¶23; accord Blackbaud ¶29; Davol ¶6; PPI ¶12.

“Attorneys questioning a witness shall always be visible to the witness and should endeavor to appear on video visible to the other participants while asking questions.”  Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶30; Zantac ¶23; PPI ¶12.

At the beginning of the deposition, the witness “will pan their video around the room . . . so that everyone attending remotely can see the room setup.”  Onglyza, ¶6.

The host technology “must permit the defending lawyer(s) or other Attendees to assert objections in real time,” and the deposition must be paused if any problem prevents real-time objections.  H/C ¶3(I).

“[T]hose attending but not defending or actively questioning the witness must mute their microphones.”  Generic Pharmaceuticals Pricing ¶6; accord Blackbaud ¶17; Zantac ¶¶12, 23; BHR §IV(D); H/C ¶3(B); PPI ¶12.  Cf. Davol ¶6 (host technology “may also establish a separate access or conference line that is for listening/viewing only but that will otherwise remain muted throughout the deposition”).

Orders also differ on what non-questioning participants are supposed to do:

  • Blackbaud ¶30 (all attendees “shall log into” the host technology “so that all participants can hear each other and be aware of those who are present”).
  • Generic Pharmaceuticals Pricing ¶16 (“All attendees other than the witness, witness’s counsel, the examining attorney, and the court reporter should endeavor to keep their camera off during the deposition”).
  • Davol ¶6 (“participating attorneys must be visible to all other participants during the deposition”).
  • With Onglyza, ¶6 (“all attorneys” must be on “video so that their faces can be seen at all times”).
  • Zantac ¶12 (remote attendees who are not participating “shall also turn off their camera, such that they are not visible on screen”).

“Attendees appearing on video should not come and go while on the record during the deposition.”  Generic Pharmaceuticals Pricing ¶16.

There shall be “breaks of at least five minutes each hour during the deposition, or at such other intervals as the Witness or court reporter may request.”  BHR §IV(D).

If the host technology includes a “breakout room,” it shall be controlled by the court reporter.  “Breakout” conversations are not recorded.  Zantac ¶32; accord Blackbaud ¶32 (except the room is controlled by the host technology service).

Any attorney in the wrong breakout room “shall identify himself or herself and leave.”  Zantac ¶32.

Noticing or defending counsel may, “in good faith,” state a belief that “any deposition has been adversely affected by the fact it was taken as a Remote Deposition” and thereafter seek leave of court “to continue or re-open the deposition at a later date, either remotely or in person,” with the requesting party bearing the “burden” of persuasion.  BHR §V.(A).

Documents and Exhibits

Counsel taking and defending the remote deposition are jointly “responsible for ensuring that any exhibits they wish to use at the deposition can be shown to the Witness in a manner that enables [all participants] to review the complete exhibits (i.e., not a snapshot or excerpt) during the course of the deposition.”  BHR §III(C).

“The court reporter shall maintain the official records of exhibits introduced via any means during a remote deposition.”  Davol ¶7.

The host technology “must allow counsel to display and annotate exhibits for the witness, add and remove exhibits, and change the order in which the exhibits are presented to the witness.”  Zantac ¶27; accord Davol ¶7; Valsartan Exhibits ¶2; PPI ¶15.

Some MDL orders consider pre-marked electronic exhibits to be the rule.  Blackbaud ¶33; Generic Pharmaceuticals Pricing ¶11(A); Valsartan Exhibits ¶1; Onglyza, ¶14; PPI ¶15.  Others require use of hard copy exhibits.  H/C ¶5(A).  Some are ambiguous.  Davol ¶8.

Electronic documents are usually distributed through the host technology.  Davol ¶8.

Where electronic documents are preferred, parties may also use hard copy paper exhibits.  Generic Pharmaceuticals Pricing ¶11(A).  A witness’ desire for paper copies of exhibits should be accommodated (except for documents only existing electronically), with disputes resolved by the MDL magistrate.  Id.; accord Zantac ¶26.

Where hard copies are preferred, “the witness may not be required to review a document on the screen if he or she chooses not to do so and prefers instead to review the hard copy only.”  H/C ¶5(E); PPI ¶15.

Where hard copies are preferred, and “an unusual circumstance arises where counsel conducting the witness examination could not have anticipated using an exhibit,” an electronic document may be presented “using a shared screen” with that document transmitted to all participants before questioning begins.  H/C ¶5(F); accord Zantac ¶28.

“The witness and any party not taking the deposition will receive exhibits in real time, as would be the case in a standard, in-person deposition.”  Valsartan Exhibits ¶1.

“Deposing Counsel and Defending Counsel need not use the same means of sharing exhibits.  BHR §III(C).

Counsel defending the witness gets a second set of documents, if attending in person.  If attending remotely, the defending attorney receives “electronic copies of the exhibits which are identical to the hard copy and electronic exhibits provided to the witness.”  Zantac ¶26; PPI ¶¶14-15.  Cf. Blackbaud ¶40 (noticing counsel “shall provide to opposing counsel an electronic copy of all documents to be shown to the witness during the deposition, either before the deposition begins or contemporaneously with the showing of each document to the witness”).

Paper copies of exhibits should be delivered to the witness and counsel a set time in advance of the remote deposition.  They shall remained sealed and not reviewed by the witness or counsel until being unsealed on the record.  Generic Pharmaceuticals Pricing ¶11(A); Davol ¶8; Onglyza, ¶¶12-13; Zantac ¶26; BHR §III(C); H/C ¶5(A); PPI ¶14.

To the extent the witness (such as a treating doctor) has received any documents ex parte from plaintiffs’ counsel prior to the deposition, at least three days before the deposition, “[p]laintiffs’ [c]ounsel shall send to [d]efendant’s [c]ounsel a copy of all such documents, either in hard copy or electronic copy (in the same manner as provided to the [w]itness. . . .”).  BHR §III(D).

Any exhibit longer than 100 pages should be provided to the witness in hard copy.  Zantac ¶26; accord Davol ¶8; PPI ¶14.

“[T]o the extent practicable, at least 48 hours prior to a remote deposition of a non-party healthcare provider or other third party (but not retained experts), the noticing party shall exchange with counsel of record copies of all documents shown to, or discussed with, the [witness].”  Davol ¶9.

On pain of not being able to question on any exhibit not delivered, “[t]he noticing party and any other party who intends to use exhibits during the deposition shall deliver complete copies of all potential exhibits to be used to all Participants.”  H/C ¶5(A).

If the witness is required to produce documents, those documents must “be provided to the noticing party two days prior to the deposition in electronic format for use at the deposition.”  Onglyza, ¶11.  This order assumes a technologically proficient witness.

An “examining attorney” may “utilize[e] electronic versions of unanticipated exhibits where reasonably necessary.”  Zantac ¶26; accord Generic Pharmaceuticals Pricing ¶11(A); Onglyza, ¶13; H/C ¶5(A); PPI ¶14.

If necessary, electronic exhibits can be used, both by the noticing party (subject to a good faith requirement) and non-noticing participants.  Generic Pharmaceuticals Pricing ¶11(A).

That an exhibit was provided electronically is not a basis for inadmissibility at trial.  Zantac ¶27; accord Davol ¶7; Valsartan Exhibits ¶2; BHR §IV(B); PPI ¶15.

The party noticing the deposition is responsible for ensuring that electronic exhibits are accessible to all participants.  Generic Pharmaceuticals Pricing ¶11(B).  Witnesses “shall have the independent ability to manipulate the exhibit (scrolling, etc.) to facilitate their review.”  Id.; accord Onglyza, ¶14.  “[T]he witness must be afforded the independent ability to review the exhibit in its entirety.”  Onglyza, ¶14; accord Zantac ¶28; H/C ¶5(F).

When the witness is being questioned about a document, that exhibit should be displayed “side-by-side with the witness.”  Onglyza, ¶3.

“Following completion of the deposition, the [witness] will secure the exhibits that were used in the deposition in an envelope or box immediately following the deposition and will not alter any exhibit (mark up, remove pages, etc.) after the conclusion of the deposition.”  Zantac ¶29.

After the remote deposition is completed, the witness, or his/her counsel, “shall arrange for the delivery of the official set of exhibits from the [witness] to the court reporter.”  H/C ¶5(D).

Unused exhibits are not to be reviewed, and the noticing party may demand their return or destruction.  Generic Pharmaceuticals Pricing ¶11(A); Davol ¶8; Zantac ¶29; Onglyza, ¶13; H/C ¶5(A,D); PPI ¶14.

2021 is almost over.  Before 2021 – indeed, before the last half of 2021 – practically nobody other than stargazers had ever heard of “omicron,” unless someone was part of some fraternity or sorority.  Now everybody has.  The omicron viral variant demonstrates, once again in real time (as had the delta variant before it) that, yes, evolution is a fact, not a theory.  The law also evolves, and we hope that, like history, the arc of that evolution ultimately bends towards justice.  Chronicling cases that helped that hoped-for trend along, we once again take time for the Drug & Device Law Blog’s top ten decisions of the year.  Some cases directly extinguish harmful legal mutations, others provide overriding immunity, and still others limit the scope of infection.  All influence the course of future legal events, we think, for the good.

We temper our metaphysical tendencies with the relatively limited scope of our analysis.  To make our top (or bottom) ten lists, a case must involve some form of prescription medical product liability litigation.  Lots of other decisions occur each year that significantly impact what we do, even though not involving prescription medical products.  So, we’ll salute Mallory v. Norfolk Southern Railway Co., ___ A.3d ___, 2021 WL 6067172 (Pa. Dec. 22, 2021) (good on general jurisdiction by consent, here); Normandy v. American Medical Systems, Inc., ___ A.3d ___, 2021 WL 3482928 (Conn. Aug. 9 2021) (good on hospital liability, here); Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021) (good on Fed. R. Evid. 702, here); United States v. Supervalu, Inc., 9 F.4th 455 (7th Cir. 2021) (good on FCA objective reasonableness, here); Judge Rotenberg Educational Center, Inc. v. United States FDA, 3 F.4th 390 (D.C. Cir. 2021) (good on not banning off-label uses, here); Webb v. Trader Joe’s Co., 999 F.3d 1196 (9th Cir. 2021) (good on food preemption, here), Texas Health Huguley, Inc. v. Jones, ___ S.W.3d ____, 2021 WL 5405794 (Tex. App. Nov. 18, 2021) (good on ivermectin litigation, here); and Sullivan v. Holy Redeemer Hospital & Medical Center, ___ A.3d ___, 2021 WL 4344068 (Pa. Super. Sept. 24, 2021) (good on vaccinator liability, here).  All should come in handy in the future.

Enough with the introductions.  Now, let’s proceed

  1. State ex rel. Hunter v. Johnson & Johnson, ___ P.3d ____, 2021 WL 5191372 (Okla. Nov. 9, 2021).  We can’t discuss this case, but others have.  The Product Liability Advisory Council (“PLAC”), told its members:  “This is an extremely significant decision which, if followed by other States, could rein in the efforts of Plaintiffs to get around traditional principles of product liability through a sweeping application of nuisance law.  The Court’s finding that nuisance law does not apply to the lawful manufacturing, marketing and selling of products is a broad and unequivocal one that should apply with equal force to all products, not just prescription medications.  The Court also offers a sound and detailed analysis of the numerous reasons that nuisance law should not apply to the sale of products, which will make it more persuasive authority as similar issues are litigated in other courts throughout the United States.”  For other commentary, seehere, here, here and here.
  2. Brooks v. Mentor Worldwide LLC, 985 F.3d 1272 (10th Cir. 2021).  Our best preemption decision of the year.  Brooks is an example of breast implant litigation done right.  The FDA’s reclassification of breast implants as Class III in response to the original spate of – now scientifically discredited – breast implant litigation brought with it PMA preemption.  Brooks affirmed dismissal of all claims on preemption grounds, either express or implied.  Between §360k(a) and §337(a), the “narrow gap” could not be threaded.  Brooks recognized something we’ve been arguing all along, that FDCA-based negligence per se is necessarily preempted because the FDCA has to be a critical element of any such claim, and there’s no private FDCA enforcement allowed.  Warnings also fell.  First, there’s no mandatory duty to update FDA-approved labels.  Second, as we’ve put a lot of effort into arguing, there is no state-law equivalent to support a “parallel claim” for purported failure to make adverse event reports to the FDA.  Nor can there be an unpreempted “manufacturing defect” absent any facts that the particular implant the plaintiff received “differed” both from what the defendant’s design intended and from an FDA-approved product specification.  Alleging only general Good Manufacturing Practice violations did not cut it.  We burnished Brooks here.
  3. Albert v. Sheeley’s Drug Store, Inc., ___ A.3d ___, 2021 WL 6062555 (Pa. Dec. 22, 2021). The “in pari delicto” or “wrongful acts” doctrine prevents criminals from becoming plaintiffs.  One primary fact pattern is squarely in our sandbox – preventing illegal drug users from suing drug manufacturers or suppliers over injuries caused by their own criminal acts committed in order to obtain possession of controlled substances.  We’ve opposed recent efforts in the ALI that have sought to abolish in pari delicto, which precludes liability as a matter of law, and to replace it with a jury question of comparative fault.  Thus, Albert’s reaffirmation of the doctrine could not have been better timed.  In Albert the Pennsylvania Supreme Court agreed with us (literally, Bexis filed an amicus brief) that, because in pari delicto involved criminal activity, it was not merely another aspect of comparative fault.  Albert is powerful evidence refuting those who would green-light criminal plaintiffs by replacing in pari delicto’s bright line rule with a mushy jury issue.  Albert thus adds Pennsylvania to the majority view that overdose cases brought by illegal drug users are squarely within the scope of the in pari delicto  The doctrine exists “principally because holding otherwise would force courts to condone and perhaps even encourage criminal conduct.”  Albert warned litigants that “the judiciary is not tolerant of fraud and illegality,” and that criminal “culpability” can preclude perpetrators from later “seeking common-law redress.”  We adulated Albert here.
  4. In re Zofran (Ondansetron) Products Liability Litigation, ___ F. Supp.3d ___, 2021 WL 2209871 (D. Mass. June 1, 2021).  Zofran is our highest ranked district court decision of 2021, not only because of its preemption ruling disposing of an entire MDL, but also because of its procedural approach to establishing preemption post-Albrecht (2019+1,-6).  The best way, after Albrecht, to establish “clear evidence” preemption in prescription drug cases is to show that the FDA did reject a label change along the lines of that the plaintiffs were proposing while considering whatever junk science the plaintiffs rely on.  Since the FDCA now requires the FDA to respond to “new information” however received, 21 U.S.C. §355(o)(4)(A), the defendant filed its own citizen’s petition during the litigation that did precisely that.  Such petitions require a formal response from the FDA.  So, when the FDA declined to order a label change the label in response to all that the MDL plaintiffs had to offer, that was “clear evidence” barring the plaintiffs’ claims.  For companies confident that the science supports their warning-related positions (comprising most of our clients), Zofran provides the playbook for bringing the FDA’s expertise to bear in mass tort litigation.  The substantive preemption rulings in Zofran were excellent as well.  Zofran pointed out that, unlike other products, the FDA’s approach to labeling includes prevention of overwarning.  Nor could the court ignore the FDA by “assuming” that the FDA had not done what the statute required.  Nor was preemption in any way limited to FDA consideration of what a particular manufacturing defendant (that had sold the NDA in the interim) had done.  Science is science, whoever presents it, so the preemptive significance of the FDA’s action was the same no matter who prompted it.  Finally, the FDA’s decision finding insufficient scientific basis for a label change was necessarily dispositive of that same question for all prior dates, because earlier scientific knowledge could not have been declined in the interim.  We offered huzzahs for the dazzling Zofran decision here.
  5. Salinero v. Johnson & Johnson, 995 F.3d 959 (11th Cir. 2021).  Our best learned intermediary rule case of the year.  As longtime advocates of the learned intermediary rule, we oppose the other side’s unending attempts to poke holes in the doctrine.  One of the worst of supposed learned intermediary “exceptions,” due to the inherently prejudicial nature of its basis, is based upon supposed “financial bias” created by financial ties between the prescribing physician and the defendant.  Plaintiffs argue that such ties undermine the rule by compromising physician independence.  We explained before why such assumptions are ill founded and that the supposed exception has been almost universally rejected.  Still, the other side keeps trying.  In Salinero the court flatly rejected arguments that such an exception could exist under Florida law.  Basically, Salinero refused to allow a plaintiff, who was dead to rights under the prescriber’s unrebutted testimony, to instead attack the prescriber’s credibility.  Enhancing the opinion’s value was its reliance on another of our favorite doctrines – Erie conservatism.  “For us to create a wholly new doctrine, virtually out of whole cloth, would work a profound change in Florida’s law.  Sitting in diversity, we are Erie bound to follow Florida’s courts,” which have never even hinted at such an exception.  We saluted Salinero here.
  6. Ignacuinos v. Boehringer Ingelheim Pharmaceuticals, Inc., 8 F.4th 98 (2d Cir. 2021).  The logic of the Mensing (2011+1) independence principle is ineluctable.  “[W]hen a party cannot satisfy its state duties without the Federal Government’s special permission and assistance, which is dependent on the exercise of judgment by a federal agency, that party cannot independently satisfy those state duties for pre-emption purposes.”  564 U.S. at 623-24.  Given that decision, any state-law demand for the alteration of a drug (or a device) that the FDA regards as a “major” change is necessarily preempted, because all “major” changes require FDA pre-approval.  That’s precisely what Ignacuinos held, and that’s why it makes our top-ten list for this year.  This proposition is powerful.  It powered the Gustavsen (2018+2) decision to a lofty perch a few years ago.  Ignacuinos agreed with Gustavsen.  Any common-law demand for what the FDA lists a “major” change, as defined in 21 C.F.R. §314.70(b)(2), is preempted.  In so holding, Ignacuinos adopted an argument that we had articulated on the Blog back in 2013.  Given the preemptive power of this rationale – implied preemption could just as easily apply to medical devices as to drugs – Ignacuinos makes our list this year.  We agreed with Ignacuinos here.
  7. In re Taxotere (Docetaxel) Products Liability Litigation, 995 F.3d 384 (5th Cir. 2021), and In re Taxotere (Docetaxel) Products Liability Litigation, 994 F.3d 704 (5th Cir. 2021).  The Fifth Circuit decided these two related appeals two days apart.  The underlying litigation is founded on a presumption that we simply find incredible – that cancer victims would jeopardize their lives by refusing to use the most effective available chemotherapy treatment because they might permanently lose their hair.  The first case involved a statute of limitations decision based on plaintiffs defining their “injury” as hair loss persisting for more than six months.  That created an objective date for the statute of limitations running, six months plus the applicable statutory period.  Given that widespread attorney solicitation in MDL situations dredges up any number of stale cases (these plaintiffs filed their cases more than six years after the passing of pleaded six months of hair loss), a bright line is a wonderful thing, particularly when provided by the plaintiffs themselves.  The second case rejected the lenient “MDL treatment” that learned intermediary causation had received in Taxotere.  There was nothing “unique” about the physician-patient relationship in chemotherapy cases that would shift the focus from a prescriber’s decision-making to a patient’s.  The prescribing oncologist’s testimony that the label change about permanent hair loss wouldn’t have made any difference in his decision regarding what to do to keep cancer from killing this plaintiff was dispositive.  We expect that such prescriber testimony will be widespread in this MDL.  We trumpeted the Taxotere decisions here.
  8. Hrymoc v. Ethicon, Inc., 249 A.3d 191 (N.J. Super. App. Div. 2021), appeal granted, 261 A.3d 349, 350 (N.J. 2021).  In the Pelvic Mesh MDL, the court disregarded the previous majority rule that FDA regulatory decisions were generally admissible.  By misapplying the antiquated Lohr decision to an evidentiary issue to which it did not apply, Pelvic Mesh created a contra-factual world in mesh cases where juries never learned about the FDA’s role in clearing those products.  This led to some very (2020-1) bad (2018-1) decisions (2017-2).  In device litigation, those decisions converted the FDA’s oversight role into an all-or-nothing proposition – either it’s preemptive or it’s not even admissible.  Through this evidentiary sleight of hand, courts essentially repealed state compliance presumption statutes in medical device litigation in numerous states, one of them being New Jersey.  But in New Jersey, anyway, thanks to Hrymoc, that’s not the case, at least for now.  A unanimous panel recognized that exclusion of FDA device clearance was unduly prejudicial to defendants, reversing two multi-million dollar jury awards.  Thus, what the Pelvic Mesh MDL required is reversible error in New Jersey.  Hrymoc recognized that, since Lohr, the FDCA had been amended so that the §510(k) process could no longer be fairly characterized as having nothing to do with device safety.  Just because it is “less rigorous” than PMA approval does not make §510(k) clearance irrelevant under state evidentiary rules.  Further, jurors are not ignorant.  They know what the FDA is and expect to hear about in prescription medical product cases.  Plaintiffs may not mislead the jury by arguing that state law required pre-clearance actions that the FDA did not without the defendant being able to explain to the jury that the FDA did not require those steps.  We hailed Hrymoc here.
  9. Incretin-Based Therapies Products Liability Litigation, 524 F. Supp.3d 1007 (S.D. Cal. 2021).  In another preemption ruling taking down an entire MDL, Incretin dismissed the plaintiffs’ claims that the drugs in question caused pancreatic cancer under both prongs of Albrecht (2019+1,-6).  First, the Incretin plaintiffs couldn’t point to any “newly acquired information” that would allow a unilateral label change in the first place.  Some of what plaintiffs relied on was not “new,” other material didn’t qualify as “information,” and none qualified as both.  The MDL Plaintiffs made no fewer than 16 separate attacks on the information the defendants submitted to the FDA and lost on every single one of them.  With plaintiffs unable to raise the pre-Albrecht “fact question” canard, Incretin examined and ruled that, on each issue, the defendants had the better of the argument.  In sum, the FDA had been all over the pancreatic cancer issue, and there wasn’t anything worthwhile that the Agency hadn’t already reviewed.  Further, that same extensive administrative record was also “clear evidence,” after Albrecht, that the FDA would not approve the warnings the plaintiffs demanded about the purported risk.  At best the FDA found the risk “indeterminate,” which did not meet the Agency’s own scientific standards for a warning change.  As for what the FDA knew, Incretin cut through that preemption Gordian Knot with the simple logical syllogism – if there was no “new” evidence withheld, then necessarily the FDA was “fully informed.”  Moreover, everything the FDA did, including denying a citizen petition, was within the scope of its lawfully delegated powers – including an FDA-authored article in a medical journal.  Finally, given the FDA’s obligation to act on information however received (see, Zofran, above), Incretin rejected another of the other side’s favorite anti-preemption arguments, holding that FDA inaction can, under the circumstances in Incretin, support preemption.  For its comprehensive rejection of attempts to misuse Albrecht to rolling back implied preemption, Incretin also makes our list.  And on top of everything else, Incretin held that the plaintiffs’ expert causation opinions were inadmissible under Fed. R. Evid. 702.  One or (usually) more of plaintiffs’ seven purported experts improperly relied upon outdated, incomplete, and cherry-picked data.  They changed methodologies in midstream without explanation, applied those methodologies inconsistently, and used unvalidated methodologies.  They ignored human epidemiology in favor of animal and in vivo studies.  They relied blindly on each other, and their analysis could not be tested or replicated.  Their litigation-generated opinions differed from their academic work and were based on information supplied by counsel.  Incretin featured all the usual junk science we are accustomed to seeing from the other side, and all seven of the offending witnesses were excluded.  We idolized Incretin here.
  10. In re Zantac (Ranitidine) Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. Dec. 31, 2020). We bent the rules (by one day) for this one, which was decided on New Year’s Eve, 2020.  We may be fast, but we’re not that fast.  Besides, our post discussing this Zantac decision was also in 2021.  The Zantac MDL has a notably conscientious transferee judge who is ready, willing, and able to tackle tough issues.  We’ve blogged about no less than nine separate Zantac MDL decisions.  This one is the best of a pretty good lot, primarily because the issue involved, innovator liability, which poses an existential threat to non-generic pharmaceutical manufacturers.  The sprawling Zantac MDL includes plenty of plaintiffs who took only or mostly generic versions, and thus would face preemption claims (which they also lost) in suing the defendants that actually manufactured what they took.  So they brought innovator liability claims against the brand manufacturers, under the laws of no fewer than (and originally more than) 35 states.  In this Zantac opinion, plaintiffs lost – in every single state.  An “overwhelming national consensus” rejects innovator liability.  It didn’t matter whether the claim was viewed as a “product liability” or a “negligence” claim.  This sweeping rejection of a dangerous novel liability theory earns Zantac a spot on our annual best of list.  In addition to state law, Zantac also relied on another of our recurring favorites, that under the Erie doctrine, federal courts cannot make up new state tort liability “out of whole cloth.”  Plaintiffs from the two jurisdictions (Massachusetts (2018-1) and California (2017-1a)) allowing some form of innovator liability also lost, with Zantac adopting a personal jurisdiction argument first unveiled on this Blog in 2018:  because innovator liability does not turn on any activity at all that the defendant conducted in the forum state (but rather on FDA-approved labeling), the plaintiffs from those two states could not establish personal jurisdiction over the branded defendants under minimum contacts analysis.  Plaintiffs’ bizarre argument that California and Massachusetts law could apply extraterritorially also failed.  We zeroed in on Zantac here.

There you have it, our top ten picks as the best drug/medical device decisions of 2021.

But wait; there’s more.  Despite the pandemic, a lot of judges and lawyers did a lot of work during 2021.  In many of those cases, that work paid off for the right side of the “v.”  To recognize these additional pro-defense decisions, we have our annual list of runners up, the next ten most favorable 2020 decisions.

Honorable Mentions:  (11) Connell v. Lima Corp., 988 F.3d 1089 (9th Cir. 2021), was in the top ten until Albert (#3) happened.  Cornell reinforces the Biomaterials Access Assurance Act as a powerful defense for suppliers of medical device components by broadly interpreting its scope (bespoke components are protected, not just raw materials) and narrowly interpreting its exceptions (plaintiffs cannot voluntarily create a situation where they are “unlikely to recover full damages” by settling cheap with other defendants) (here).  (12)  Fajardo v. Boston Scientific Corp., ___ A.3d ___,  2021 WL 5989909 (Conn. Dec. 16, 2021).  Excellent state high court alternative design ruling if facing an extremist expert claiming everything using a particular material is defective.  Plaintiffs cannot change their tune and argue that a product made of the same material, and therefore defective according to their own expert, is a safer alternative design (too recent for a blogpost).  (13) Gall v. Smith & Nephew, Inc., 286 Cal. Rptr.3d 108 (Cal. App. 2021).  Relatively rare pro-defense California appellate decision.  FDA process violations held not genuinely equivalent to manufacturing defects and failure-to-report claims fail under the learned intermediary rule when the prescriber knows the risk (here).  (14) Black v. DJO Global, Inc., 488 P.3d 1283 (Idaho 2021).  Manufacturing defect claims dismissed where relevant device was no longer available.  Neither res ipsa loquitur nor malfunction theory can substitute for proof of defect where the claimed injury was a known risk of the product (here).  (15) Ideus v. Teva Pharms USA, Inc., 986 F.3d 1098 (8th Cir. 2021).  Another good learned intermediary rule case, affirming (2019+15).  The Nebraska learned intermediary rule extends to medical devices and does not include an exception requiring direct-to-patient warnings for contraceptive products (here).  (16) Frei v. Taro Pharmaceutical USA, Inc., 844 F. Appx. 444 (2d Cir. 2021).  Dismissals of dozens of amiodarone claims affirmed on TwIqbal grounds, including inadequate pleading of failure to report.  It seems sort of obvious that any reporting-based claim must at least identify some actual failure to report, but plaintiffs never learn (here).  (17) Carrozza v. CVS Pharmacy, 992 F.3d 44 (1st Cir. 2021).  Plaintiff could not pursue product liability claims against a pharmacist who properly filled a prescription.  Dismissal of other claims due to plaintiff’s inability to muster admissible expert testimony also affirmed (here).  (18) In re Zantac (Ranitidine) Products Liability Litigation, 510 F. Supp.3d 1234 (S.D. Fla. Dec. 31, 2020).  The next best of the many Zantac decisions (also on New Years’ Eve 2020) holds that plaintiffs could not evade generic preemption with a boilerplate “misbranding” claim since they could not privately enforce the FDCA.  To allow broad, vague misbranding claims would render preemption meaningless (here).  (19) In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2021 WL 5631687 (E.D. Pa. Dec. 1, 2021).  Summary judgment against all five bellwether plaintiffs after experts excluded for a litany of Rule 702 flaws largely involving differential diagnosis (here).  (20) Nelson v. C.R. Bard, Inc., ___ F. Supp.3d ___, 2021 WL 3578874 (S.D. Miss. Aug. 6, 2021).  Rejecting any duty to warn of comparative risks between competing products and finding device label adequate as a matter of law.  Comparative claims were not allowed under state law and were bad from a policy standpoint (here).

Our 2020 collection of cases concludes with more near misses than usual – there were quite a few good post-Albrecht preemption cases in 2021, prompted by excellent regulatory facts in Pradaxa and gadolinium litigation; you can check them all out on our preemption scorecard – so here are the next tier of victories:  Vieira v. Mentor Worldwide, LLC, 845 F. Appx. 503 (9th Cir. 2021), et al. (here); Dunn v. Genzyme Corp., 161 N.E.3d 390 (Mass. 2021) (here); Graham v. Mentor Worldwide LLC, 998 F.3d 800 (8th Cir. 2021) (here); In re Zantac (Ranitidine) Products Liability Litigation, 512 F. Supp.3d 1278 (S.D. Fla. 2021) (here); In re Xarelto (Rivaroxaban) Products Liability Litigation, 2021 WL 2853069 (E.D. La July 8, 2021) (here); Lowery v. Sanofi-Aventis LLC, 2021 WL 872620 (N.D. Ala. March 9, 2021) (here and here); Plourde v. Sorin Group USA, Inc., 517 F. Supp.3d 76 (D. Mass. 2021) (here).

Looking backwards, we reviewed our prior lists of best and worst decisions.  Three intermediate appellate decisions from last year, Cavanaugh (2020+9), Steins (2020+10), and Zitney (2020+11), all had review denied by their respective state high courts.  Certiorari was denied in Brooks (above).  Gayle (2020+18) was summarily affirmed “[f]or substantially the reasons stated by the District Court.”  Gayle v. Pfizer, Inc., 847 F. Appx. 79, 80 (2d Cir. 2021).  We skimmed over a couple of earlier years of our top/bottom ten lists.  Nowell (2019+13) was affirmed, but the only issues appealed were relatively uninteresting state-specific statute of limitations issues.  Nowell v. Medtronic, Inc., 2021 WL 4979300 (10th Cir. Oct. 27, 2021) (unpublished, even in F. Appx.).  We didn’t see any other decision, pro or con, that involved any further appellate review.  Finally, the recurring Pennsylvania issue concerning the applicability of comment k in medical device cases, is no longer on appeal, as the case before the Pennsylvania Supreme Court, Ebert, became part of a global settlement.

Looking forward, from this year’s list, above, we already know that the New Jersey Supreme Court has accepted our eighth best case, Hrymoc, for further review.  See Hrymoc v. Ethicon, Inc., 261 A.3d 349-50 (N.J. 2021) (granting four petitions).  We’re also aware that all three of the federal district court opinions in his year’s top ten, Zofran, Incretin, and Zantac, are currently on appeal, although the Zantac appeal is limited to Illinois law.  Quite a few additional Zantac-related appeals are now pending.  Also on tap for 2022, even with the demise of Ebert, we know of three federal court certifications to state supreme courts that could produce significant decisions in 2022:  Glover, on failure-to-report claims in Connecticut; Blackburn (2021-3), on learned intermediary rule causation issues in Alabama; and Dearinger, on whether there is a direct-to-consumer exception to the learned intermediary rule in Washington.  An interesting appeal is also pending in the oddball case, Atchley v. AstraZeneca UK Ltd., 474 F. Supp.3d 194 (D.D.C. 2020), on whether drug and device manufacturers allegedly providing “free goods and cash payments” to corrupt officials in Iraq could be liable under the Anti-Terrorism Act for how funds thereby generated were supposedly diverted to terrorists.

Finally, on the administrative front, the most significant development of 2021 is the proposal by the Advisory Committee on Civil Rules of the Federal Judicial Conference to amend Fed. R. Evid. 702 to specify that the proponent of expert testimony bears the burden of proving all of that rule’s prerequisites to admission – and also to state in the notes that numerous decisions relying on outdated, pre-2000, and pro-admissibility decisions are wrongly decided.  We discussed these amendments (here) and (here).  If adopted, the Rule 702 amendments would probably take effect by the end of 2022.

An amendment to Fed. R. Civ. P. 16 to mention early plaintiff vetting as something a judge supervising mass tort litigation can “consider” has been made.  That hardly seems worth the effort to us.

Also, as we discussed here, the FDA finally completed work on its long-overdue “intended use” regulatory update.  While we’re not familiar with the state of play, both the now-you-see-it, now-you-don’t administrative flip-flops over a “totality of the evidence” test for intended use, and the FDA’s rather labored approach to First Amendment issues involving “off-label promotion,” provide grounds for post-adoption challenges to the FDA’s final rule.

We’re not aware of any pending national legislation with any significant chance of passage that would impact on prescription medical product liability litigation.

See you in 2022.

Not long ago we pointed out, in our discussion of In re: Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp. ___, 2021 WL 2865869 (S.D. Fla. July 8, 2021), that court’s pithy takedown, in a preemption situation, of plaintiffs’ widespread habit of seizing upon some factual variation and calling it a new “duty” that had not yet been held preempted by prior case law.  Zantac put the kibosh on this, pointing out that “mere[] fact patterns” are not new “duties:”

The Court rejects the Plaintiffs’ theory that “sub-duties” are cognizable (and divisible) legal duties, let alone the duties to be used for comparison in federal pre-emption analysis. . . .   [T]hey do not fit within the required paradigm for pre-emption analysis.

Id. at *16-17.  Bingo.  Once duty to warn is held preempted (as held in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), for PMA medical devices, and in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), for generic drugs), it’s preempted, regardless of salami-slicing seeking to create claims for “warning-based design defect,” “failure to train,” “failure to test,” “failure to report,” “failure to supply medication guides,” “failure to conduct studies,” “failure to update,” and whatever other fact pattern plaintiffs dream up to disguise warning-based allegations as something other than the preempted warning claim they are.

We’ve also seen the same thing in design defect cases, which are also preempted by Riegel, for PMA devices, and by Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013), for generic (and we would say all, id. at 477 (“whether generic or brand-name”)) drugs.  Plaintiffs’ primary dodge has been an attempt to split the hitherto monolithic “design defect” claim into “pre-approval” and “post-approval” design defects.  As have the better reasoned decisions, we’ve condemned that effort here, and in a number of other posts.  It’s another transparent dodge, allowed only by courts with their own anti-preemption agendas, as we have yet to see any case drawing such a distinction in a non-preemption case.

This post is about the equally illegitimate offspring of both of the just-described trends, purported claims for “pre-approval” warning defects.  We became aware of this latest attempt at a warning-based sub-duty reading the awful decision on this point in Stube v. Pfizer, Inc., 446 F. Supp.3d 424 (W.D. Ark. 2020).  In response to a drugmaker’s implied preemption argument, Stube held:

Although defendants are correct in stating the labeling language must not deviate from that which was approved by the FDA, defendants still possessed the ability to implement stronger warning language into labeling by submitting stronger warning language for initial FDA approval.

Id. at 436-37 (citations and quotation marks omitted).  The two cases Stube cited for this proposition are two of the most putrid cases in prescription drug preemption history, Holley v. Gilead Sciences, Inc., 379 F. Supp.3d 809, 826 (N.D. Cal. 2019), which we lambasted here and here for various sins, including being the worst trial-court level decision of the year.  The other, and the one the originated the quote, is In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 60298, at *7 (W.D. La. Jan. 7, 2014).  We didn’t discuss that particular decision, but we:  (1) did nominate that particular MDL for ATRA’s first ever federal-court “judicial hellhole”; (2) pointed out that Actos procedural rulings were so universally viewed as unjust and prejudicial to defendants that they prompted change in the Federal Rules; and (3) slammed Actos MDL expert decisions as “a rare pentalogy of drecky decisions.”  So it’s safe to say that the Actos first-ever allowance of a “pre-approval warning” claim was par for the course from an extreme pro-plaintiff judge who had no business ever running an MDL.

That’s the bad stuff.

On the sane end of the spectrum is the appellate case that Stube refused to follow – starting with In re Celexa & Lexapro Marketing & Sales Practice Litigation, 779 F.3d 34 (1st Cir. 2015).  There, plaintiffs alleged “the FDA’s acceptance of the questionable data” in approving the warnings concerning a drug.  Id. at 38.  Because of that, plaintiffs alleged that the defendant’s labeling was defective ab initio.  That claim was preempted because there was zero chance that “newly acquired information,” and thus the ability to change warnings unilaterally under the FDA’s “changes being effected” (CBE) regulation, could exist at the time of a drug’s initial FDA approval:

To the extent that the underlying policy issue is one of who decides whether and how a drug can be marketed, the line so drawn lets the FDA be the exclusive judge of safety and efficacy based on information available at the commencement of marketing, while allowing the states to reach contrary conclusions when new information not considered by the FDA develops.  The CBE regulation, too, covers virtually all situations in which new information indicates new or greater risks, or misleading claims of efficacy.  By hinging preemption on the availability of that procedure in a particular case, [Levine] effectively reserves the launch of new drugs to the expertise of the FDA, but then preserves a wide scope for the states in requiring manufacturers to respond to information not considered by the FDA.

Id. at 41 (footnote omitted).  Delimiting preemption in this fashion, made “pragmatic sense” to the First Circuit.  Id.  There was “no precedent” allowing CBE changes based on the evidence “known to the FDA at the time of approval.”  Id. at 43.

Numerous other cases, however, are in accord with Celexa’s refusal to allow an unpreempted pre-approval warning claim.  Utts v. Bristol-Myers Squibb Co., 251 F. Supp.3d 644, 660 (S.D.N.Y. 2017), aff’d, 919 F.3d 699 (2d Cir. 2019), which Stube clumsily attempted to distinguish without admitting it, was actually adverse, 446 F. Supp.3d at 437 n.7, in fact roundly rejected purported warning defects at the pre-FDA-approval stage.  Reading Levine, Mensing, and Bartlett “holistically,” Utts concluded:

[F]ederal law preempts all pre-FDA approval failure to warn and design defect claims for branded prescription medication. . . .  [B]rand name drug manufacturers lack the authority to alter a drug’s design or a label’s warnings at the time the NDA approval process concludes.  State law claims that challenge labeling that FDA approved after being informed of the relevant risk are preempted.

251 F. Supp. at 660 (citations and quotation marks omitted).

In Mitchell v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 5617473, at *4-5 (W.D. Tenn. Nov. 21, 2017), the court recognized that attacking a drug warning prior to FDA approval was preempted by the fact of FDA approval of the exact labeling:

[A]ny claim that Plaintiff has made against Defendant based on the alleged inadequacy of the initial FDA approved label fails as a matter of law because Defendant was required to use that label when it first marketed [the drug] and could not have changed the label after FDA approval based on alleged pre-launch data that was known to the FDA at the time of the approval. . . .  The FDA’s premarket approval of a new drug application includes the approval of the exact text in the proposed label. . . .  Thus, [the drug] would have been misbranded if, upon approval, Defendant had marketed [it] with labeling other than what the FDA approved. . . .  Accordingly, Plaintiff’s allegation that [the drug] was unreasonably dangerous because of its labeling at the time it was first marketed on August 1, 2014, and the allegation that [defendant] should have provided a different label . . . on August 1, 2014, is preempted by federal law.

Id. at *4-5 (citations and quotation marks omitted).  Other decisions reaching the same result concerning the same claims about the same drug are:  McGee v. Boehringer Ingelheim Pharmaceuticals, Inc., 2018 WL 1399237, at *4 (N.D. Ala. March 20, 2018) (“To the extent [plaintiff] asserts that [defendant] should have alerted the FDA about [the drug’s claimed] risk before [its] approval, the claim is preempted because the claim is essentially one of failure to communicate with the FDA. Federal law preempts state-law claims based on a defendant’s failure to communicate with the FDA.”); MacMurray v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 11496825, at *5-6 (D. Utah Dec. 6, 2017) (“To the extent that Plaintiff’s failure-to-warn claims are premised on the adequacy of the label as approved by the FDA when [the drug] was first marketed in the United States, they are preempted.”)

Similarly, In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices & Products Liability Litigation, 185 F. Supp.3d 761 (D.S.C. 2016), held that attacks on labeling statements that the FDA “specifically approved” was preempted.  Id. at 669.  Following Celexa, Lipitor confirmed that “any claim that a drug label should be changed based 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.”  Id.  See also Maze v. Bayer Healthcare Pharmaceuticals, Inc., 2019 WL 1062387, at *3 (E.D. Tenn. March 6, 2019) (“any claim asserted by [plaintiff] and based on information known to the FDA as of [the date] − when the label at issue here was approved − is plainly preempted by federal law”); In re Genentech Herceptin (Trastuzumab) Marketing & Sales Practices Litigation, 2017 WL 9939631, at *4 (N.D. Okla. May 8, 2017) (“communications occurring prior to FDA approval are not relevant to impossibility preemption”); In re Plavix Product & Marketing Cases, 2017 WL 6812239, at *3 (Cal. Super. Dec. 1, 2017) (“an attack on the initial label is preempted”).

As recognized by the Supreme Court four times now (in Levine, Mensing, Bartlett, and Albrecht) there is only one way for a plaintiff to avoid preemption in a prescription drug case involving warning – to show “newly acquired information” such that the defendant could have unilaterally made the label change at issue under the FDA’s CBE regulation without the need to seek prior FDA approval.  Otherwise, simultaneous compliance with federal and state law is impossible.  Such newly acquired information evidence, by definition, cannot exist at the moment of FDA approval.  Therefore, novel theories asserting some sort of separate claim for “pre-approval warning defect” are necessarily preempted.

To find bloggable cases, we (well, Bexis) read a lot of cases that don’t turn out to be sufficiently significant to be bloggable.  Even those cases of lesser interest can alert us to trends, if the same issue or argument crops up repeatedly.  One of those is the TwIqbal concept of a “shotgun complaint” – meaning indiscriminate pleading that is violative of Fed. R. Civ. P. 8.  We’ve seen that phrase used enough in various decisions that we had a sense that this concept is most often used in cases litigated down South.  But we’ve only written one post about that, some five years ago.

The recent decision, Phillips v. Cook Inc., 2021 WL 3209860 (M.D. Fla. July 29, 2021), caused us to take a closer look, since we had also seen the term used quite a bit in the Zantac MDL litigation.  We searched for the phrase in federal district courts on Westlaw and came up with just over 1,500 hits.  Separating these cases by judicial district confirmed our suspicions – and honed them.  The “shotgun” complaint is very much an Eleventh Circuit “thing”, with 1337 of 1503 cases employing the phrase from the three states of Alabama, Florida, and Georgia.  Well over half (970) come just from the Northern District of Georgia and the Middle District of Florida.  So in order to “talk southern,” lawyers litigating prescription medical product litigation definitely need to know about the “shotgun complaint.”

Phillips cites Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), which does appear to be the leading case in this arcane field.  “Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly referred to as ‘shotgun pleadings.’”  Id. at 1320.  According to Weiland, the first case to call them such was a dissent in T.D.S. Inc. v. Shelby Mutual Insurance Co., 760 F.2d 1520 (11th Cir. 1985):

“Shotgun” pleadings, calculated to confuse the “enemy,” and the court, so that theories for relief not provided by law and which can prejudice an opponent’s case, especially before the jury, can be masked, are flatly forbidden by the [spirit], if not the [letter], of these rules.

792 F.3d at 1320 (quoting T.D.S., 760 F.2d at 1544, n.14 (Tjoflat, J., dissenting)).

Weiland grouped shotgun complaints into four calibers:

  • “The most common type − by a long shot − is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.
  • “The next most common type . . . is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.
  • “The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief.
  • “Fourth, and finally, there is the relatively rare [note, in our experience, this is no longer rare at all] sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.

792 F.3d at 1321-32.  Weiland provided (which we have omitted) lengthy footnotes of cases dealing with each of these four types of improper pleading.  Looking through these footnotes, it doesn’t appear that any of the collected cases involved prescription medical product liability.

But that doesn’t mean – not at all – that shotgun complaints aren’t something that our clients face.  Quite the contrary.  See (in addition to Phillips) Bey v. Teva Pharmacueticals, USA, Inc., 2021 WL 2633822, at *1 (M.D. Fla. June 25, 2021); Minton v. Ethicon, Inc., 2021 WL 1398965, at *1 (N.D. Fla. April 1, 2021) Rosado-Cabrera v. Pfizer, Inc., 2021 WL 662220, at *2-3 (M.D. Fla. Feb. 19, 2021); In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 7866674, at *7 (S.D. Fla. Dec. 31, 2020); Gergenti v. Ethicon, Inc., 2020 WL 7695646, at *2 (M.D. Fla. Dec. 28, 2020); Smith v. Ethicon, Inc., 2020 WL 9071685, at *2-3 (N.D. Fla. Dec. 28, 2020); Epstein v. Gilead Sciences, Inc., 2020 WL 4333011, at *3 (S.D. Fla. July 27, 2020); Thornton v. Nationall Compounding Co., 2019 WL 2744623, at *11-12 (M.D. Fla. July 1, 2019) (False Claims Act case); Aguilar v. B Braun Medical, Inc., 2019 WL 2173777, at *2 (M.D. Fla. May 20, 2019); Munson v. Insys Therapeutics, Inc., 2018 WL 8244594, at *2 (M.D. Fla. Nov. 6, 2018); Erickson v. Merck & Co., 2018 WL 2357273, at *2-3 (M.D. Fla. May 17, 2018); McGee v. Boehringer Ingelheim Pharmaceuticals, Inc., 2018 WL 1399237, at *5 (N.D. Ala. March 20, 2018); Erickson v. Merck & Co., 2018 WL 3626469, at *3 (M.D. Fla. Feb. 22, 2018); Barnes v. AstraZeneca Pharmaceuticals LP, 253 F. Supp.3d 1168, 1171-72 (N.D. Ga. 2017); Erickson v. Merck & Co., 2017 WL 9938491, at *2-3 (M.D. Fla. Dec. 8, 2017); Thornton v. AstraZeneca Pharmaceuticals LP, 2017 WL 2255776, at *3-4 (N.D. Ga. May 15, 2017); Brazil v. Janssen Research & Development LLC, 249 F. Supp.3d 1321, 1336-37 (N.D. Ga. 2016); Gerold v. Astellas Pharma US, Inc., 2016 WL 1627049, at *1-2 (M.D. Fla. April 25, 2016); Tsavaris v. Pfizer, Inc., 2016 WL 375008, at *2 (S.D. Fla. Feb. 1, 2016) (the case we blogged about before); Gerold v. Astellas Pharma US, Inc., 2015 WL 7759395, at *2-3 (M.D. Fla. Dec. 2, 2015); Lonon v. Globus Medical, Inc., 2015 WL 1032861, at *3 (S.D. Ga. March 9, 2015); Dimieri v. Medicis Pharmaceutical Corp., 2014 WL 6673156, at *2 (M.D. Fla. Nov. 24, 2014); Karhu v. Vital Pharmaceuticals, Inc., 2013 WL 4047016, at *3 (S.D. Fla. Aug. 9, 2013); Batchelor v. Pfizer, Inc., 2013 WL 3873242, at *3 (M.D. Ala. July 25, 2013); Marsar v. Smith & Nephew, Inc., 2013 WL 3199984, at *1 (M.D. Fla. May 30, 2013); Jovine v. Abbott Laboratories, Inc., 795 F. Supp.2d 1331, 1336-37 (S.D. Fla. 2011); Kaufman v. Pfizer Pharmaceuticals, Inc., 2010 WL 9438673, at *3-4 (S.D. Fla. Nov. 23, 2010); Beale v. Biomet, Inc., 2006 WL 8433264, at *4 (S.D. Fla. Aug. 21, 2006).  There is plenty of law here to choose from in putting together a drug/device motion to dismiss a “shotgun complaint,” at least in the Eleventh Circuit.  Chances are that, whatever pleading sin a particular plaintiff has committed, there is a case in the relevant jurisdiction that has already required dismissal.

Significantly, the concept of a “shotgun complaint” is not limited to the Eleventh Circuit.  The Ninth Circuit affirmed dismissal of a “shotgun” pleading in Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011), where after one amendment, the plaintiff’s complaint “continu[ed] to make ‘everyone did everything’ allegations.”  Id. at 958.

In Rosenberg v. C.R. Bard, Inc., 387 F. Supp.3d 572, 582 (E.D. Pa. 2019), the court cited Hynson v. City of Chester Legal Dept., 864 F.2d 1026, 1031 n.13 (3d Cir. 1988), for the Third Circuit also “criticiz[ing]” “shotgun” pleadings, and dismissed the complaint:

Plaintiff has failed to connect the facts alleged in the beginning of her complaint with the specific negligence claim she asserts.  Indeed, the Court (and Defendant) are left to guess not only which facts support Plaintiff’s negligence claim but also which aspect of Defendant’s conduct Plaintiff asserts was negligent.  Therefore, Plaintiff’s negligence claim will be dismissed without prejudice with leave to amend.

Id.  Here are other non-Eleventh Circuit prescription medical product liability cases we’ve found that have dismissed “shotgun complaints.”  Payton v. Johnson & Johnson, 2021 WL 1923799, at *3-4 (S.D. Ind. May 13, 2021); McCormick v. Caldera Medical, Inc., No. 3:20-CV-132, 2021 WL 488340, at *2 (S.D. Ohio Feb. 10, 2021); Dreifort v. DJO Global, Inc., 2019 WL 5578240, at *7 (S.D. Cal. Oct. 28, 2019); Lynch v. Olympus America, Inc., 2018 WL 5619327, at *14 (D. Colo. Oct. 30, 2018).  So there is room to work with exporting the “shotgun complaint” basis for dismissal to courts outside the Eleventh Circuit.

Finally, another thing about Phillips and the “shotgun complaint” concept that caught our eye is this – it’s something a court not only may, but is required (at least in the Eleventh Circuit), to do sua sponte [for readers not familiar with legal Latin, that means “of its own accord without being requested]:

If, in the face of a shotgun complaint, the defendant] does not move the district court to require a more definite statement, the court, in the exercise of its inherent power, must intervene sua sponte and order a repleader.

Phillips, 2021 WL 3209860, at *2 (quoting McWhorter v. Miller, Einhouse, Rymer & Boyd, Inc., 2009 WL 92846, at *2 (M.D. Fla. Jan. 14, 2009)) (emphasis added).  They’re serious about TwIqbal in the Eleventh Circuit.

So by all means – particularly in the Eleventh Circuit – defendants should declare open season on “shotgun complaints.”

We have been consistently critical of the MDL system for encouraging judges presiding over such massive aggregations to manipulate the applicable law to create settlement pressure on defendants.  We’ve seen that with federal preemption, willingness to create novel state-law causes of action, choice of law, and trial consolidation of multiple plaintiffs.  But perhaps none has been more blatant than the exclusion of all mention of FDA medical device clearance on the bogus rationale that, because it is not “rigorous” enough to be preemptive of state-law claims under the obsolete decision in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), it isn’t relevant enough to be admitted at all.

That wasn’t the law anywhere until the Pelvic Mesh MDLs, as we set forth here.  Then Pelvic Mesh cases decided that it would be a great settlement tool to deprive defendants of the jury knowing that their products had, in fact, received FDA’s permission to be marketed, and that FDA saw no reason to require clinical trials before that happened.  E.g., Kaiser v. Johnson & Johnson, 947 F.3d 996, 1018 (7th Cir. 2020); Campbell v. Boston Scientific Corp., 882 F.3d 70, 77 (4th Cir. 2018); Eghnayem v. Boston Scientific Corp., 873 F.3d 1304, 1318-19 (11th Cir. 2017); In re C.R. Bard, Inc., 810 F.3d 913, 922-23 (4th Cir. 2016); Sanchez v. Boston Scientific Corp., 38 F. Supp.3d 727, 744 (S.D.W. Va. 2014); Lewis v. Johnson & Johnson, 991 F. Supp. 2d 748, 755-56 (S.D. W. Va. 2014).  Of course, by the time that appellate courts were able to review this Pelvic Mesh FDA gag rule (years after the fact, another problem with MDLs) hydraulic pressure to affirm existed, since to restore the law to where it belonged would have resulted in throwing out years of MDL activity – and affirm they did.

These cases turned FDA medical device regulation, particularly concerning design defect, into an all-or-nothing game.  Either, the FDA’s decision was preemptive, as with PMA medical devices, or such decisions weren’t admissible at all.  That’s a neat trick, from the plaintiffs’ perspective, because it also had the effect of repealing a dozen states’ pro-defendant compliance presumptions, since when FDA compliance was either preemptive or inadmissible, there was no situation in which such a presumption could ever come into play.  E.g., Adams v. Boston Scientific Corp., 177 F. Supp.3d 959, 963-64 (S.D.W. Va. 2016) (effectively nullifying Texas compliance statute); but see Ocasio v. C.R. Bard, Inc., 2020 WL 3288026, at *5-6 (M.D. Fla. June 18, 2020) (refusing to nullify Florida compliance statute) (discussed here).  These cases also created a “heads plaintiffs win; tails defendants lose” situation with the FDA – so that the FDA did not exist, except when a plaintiff wanted it to exist (when the FDA did something unfavorable to the defense), as we described here.

But particularly outside of the settlement uber alles context of the Pelvic Mesh MDL, there has been a fair amount of push-back against this blatantly pro-plaintiff manipulation of the rules of evidence.  We have discussed several such cases rejecting the Pelvic Mesh FDA gag rule, Keen v. C.R. Bard, Inc., 480 F. Supp.3d 646, 650-51 (E.D. Pa. 2020) (here); In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices & Products Liability Litigation, 2018 WL 6617375, at *1-2 (S.D. Ind. Dec. 18, 2018) (here); In re Bard IVC Filters Products Liability Litigation, 289 F. Supp. 3d 1045, 1047-48 (D. Ariz. 2018) (here); Winebarger v. Boston Scientific Corp., 2015 WL 5567578, at *5-7 (W.D.N.C. Sept. 22, 2015) (here); McCracken v. DePuy Orthopaedics, Inc., 2013 WL 12141334, at *4-5 (N.D. Ohio July 26, 2013) (here).  See also In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation, 2020 WL 6603657, at *7-8 (S.D. Ohio Oct. 20, 2020); Retractable Technologies, Inc. v. Becton, Dickinson & Co., 2013 WL 4101810, at *2 (E.D. Tex. Aug. 12, 2013).

We’re pleased to report that the first state appellate court has agreed with us and refused to follow the same FDA gag rule even in Pelvic Mesh cases.  In Hrymoc v. Ethicon, Inc., ___ A.3d ___, 2021 WL 787039 (N.J. Super. App. Div. Mar. 2, 2021), a unanimous panel of the Appellate Division of New Jersey’s Superior Court recognized that exclusion of FDA device clearance was unduly prejudicial to defendants.  Refusing to bow to the inherent pressure to affirm, Hrymoc reversed two verdicts by juries deprived of FDA clearance information that had hit two different pelvic mesh manufacturers with multi-million dollar awards.  Hrymoc refused to inflate the no-preemption decision in Lohr to into a no-FDA-evidence-at-all gag rule:

[T]he absence of such a regulatory testing requirement does not preempt the ability of state law to impose liability upon manufacturers for selling a defective and unsafe product.  But that does not make a total ban on disclosure to the jury of the FDA’s actual involvement fair or appropriate.

Hrymoc, 2021 WL 787039, at *15 (Lohr citation omitted).  The FDA’s §510(k) process was different now.  “Following amendments to the MDA in 1990, [FDA] special controls could include . . . ‘the promulgation of performance standards as well as postmarket surveillance, patient registries, development and dissemination of guidelines,” and other actions deemed necessary by the FDA.’”  Id. at *7 (quoting FDA, “The 510(k) Program:  Evaluating Substantial Equivalence in Premarket Notifications; Guidance for Industry and Food and Drug Administration Staff,” at 2 (2014)) (for more on the 1990 amendments see our post, here).

Hrymoc found the Pelvic Mesh FDA gag rule unfair to defendants and misleading to juries.  Calling out the Pelvic Mesh MDL judge by name, 2021 WL 787039, at *12, Hrymoc disagreed with those cases, and held the same blanket exclusion of FDA device clearance evidence to be an abuse of discretion under New Jersey law.  A “complete ban on any disclosure of the 510(k) clearance process to the jurors” was reversible error because it “had the clear capacity to lead to possibly unjust results.”  Id. at *17 (footnote omitted).

While it is true that §510(k) clearance “is far less rigorous than the more elaborate and time-consuming process for obtaining the FDA’s premarket approval,” id. at *14, it is hardly a rubber stamp or unconcerned with safety.  As “it has evolved over the years”:

[T]he process for obtaining 510(k) clearance requires an applicant to address a lengthy checklist of filing requirements.  Among other things, the FDA’s review can encompass whether any differences in the submission device from the predicate device affect its safety and effectiveness, detailed information or data concerning adverse health effects, and, in some instances, clinical or scientific data, depending on if the applicant contends its device has the same technological characteristics as the predicate.

Id. (citations and footnote omitted).

That §510(k) clearance is “less rigorous,” does not make it irrelevant.  The FDA’s clearance nonetheless “provide[s] evidence that a device manufacturer obtained regulatory authorization to market the product at issue.”  Id.  That’s all that relevance requires.  “The bar for relevancy under N.J.R.E. 401 only requires a ‘tendency in reason’ for evidence to prove or disprove a fact of consequence to the case.”  Id.

Nor was there a valid argument that the obvious relevance of FDA device clearance was “substantially outweighed” by any “countervailing considerations” under Rule 403 (New Jersey’s evidence rules essentially reflect the federal rules in this area).  2021 WL 787039, at *15.  Many (if not most) jurors know about the FDA and would expect to hear about it in this type of case:

Many jurors in our present society would naturally expect that the FDA would have some involvement in the regulation of a new medical product being implanted in patients, and that the FDA would have had some oversight role concerning bringing a product to market.

Id.  Simply telling jurors “to ignore the possible role of the FDA” was neither a “fair” nor “adequate solution.”  Id.

Nor did “waste of time” or “jury confusion” justify an FDA gag rule.

[T]he judge could impose reasonable limits on the number of witnesses and the amount of trial time expended on the subject.  The judge could also explain to the jury − in a neutral manner − the basic and rather understandable conceptual difference between Class II “substantial equivalency” clearance and the more rigorous Class III premarket approval that evaluates a device’s safety and effectiveness in depth.

Hrymoc, 2021 WL 787039, at *16.  “It is wrong to presume the jury would not have been able to understand and follow a limiting instruction from the judge about the proper use of 510(k) evidence.” Id. at *17.

[W]e believe the revelation of the FDA’s 510(k) clearance of these devices can be conveyed to the jurors effectively and plainly without extensive elaboration.  The subject need not devolve into a “mini-trial” before the jury.  Prudent oversight measures by the court can assure that neither side goes too far in presenting evidence or making arguments to the jury about the 510(k) process.

Id.

We bloggers think the whole “mini trial” argument is ridiculously overblown in §510(k) cases anyway – since plaintiffs’ counsel in other MDLs have no compunction about raising absurdly complex FDA-based liability theories.  The Zantac MDL is but one recent example of the other side’s digging deeply into FDA regulatory workings whenever it suits their purposes.  Their regulatory experts are often walking, talking “mini trials” in their own right.  Thus, we agree that, as to FDA evidence, “[t]he playing field can be leveled without a dramatic alteration of the overall contest.”  Hrymoc, 2021 WL 787039, at *17.

And of course plaintiffs’ counsel at the two trials engaged in their usual hijinks once the FDA gag rule was in effect.  Their “undue tactical advantage,” id. at *17, included arguing that pre-marketing clinical trials were “needed” and “required” – as if these cases involved PMA devices – while the defendants were prohibited from telling the jury that the FDA did not require such costly and time-consuming testing.  Id. at *15.  Moreover, “[t]he inherent unfairness of the situation [was] perhaps most pronounced in connection with the punitive damages aspect of these cases.”  Id. at *16.  Plaintiffs’ counsel “exhorted the jury to impose punitive damages to punish’ defendants so they would ‘do clinical studies.’”  Id. at *15.

Plaintiffs’ trial conduct made it particularly egregious to exclude an FDA document in which “the FDA reviewer who recommended 510(k) clearance for [one] device noted on the clearance form that ‘clinical data’ was not ‘necessary to support the review.’”  Id. at *17.  Hymoc recognized that the defendants had been forced by the FDA gag rule to litigate with one hand tied behind their backs.  “[D]efendants should have been permitted to try to counter [those arguments] by allowing the jurors to at least know about the 510(k) clearance process and the fact that the FDA did not require such clinical studies.”  Id. at *15.

Thus, in future New Jersey trials involving §510(k) cleared medical devices, instead of “complete ban” on FDA evidence, Hrymoc encouraged trial judges to conduct preliminary proceedings under Rule 104 to consider such evidence judiciously.  Id. at *17.  Such hearings would allow:

a more in-depth exploration . . . of exactly what proofs and counterproofs about 510(k) clearance might be appropriately presented, what constraints on counsel might be sensible, and what the precise wording of a limiting instruction might contain.

Id.

There are various and sundry other rulings in Hrymoc that are not as helpful to defendants, see, id. at *18-23, but they are minor and case-specific compared to the court’s resounding rejection of the Pelvic Mesh FDA gag rule.  At least in New Jersey a serious, ongoing injustice has – albeit belatedly − been righted.

Full disclosure:  Reed Smith has been involved in this litigation representing both defendants.  Reed Smith has also been involved in Pelvic Mesh litigation generally.

We are not going to beat around the bush today.  When we see a “prediction” of an “expansion” of state law by a federal court, we have only one question.  What about Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)?  That should have been a front and center question for the court in In re: Fluoroquinolone Products Liability Litigation, 2021 WL 396819 (Feb. 4, 2021).  We’ll give the court credit for not ignoring Erie completely.  Although perhaps the partial acknowledgement is worse than none at all.  Faced with a question of Illinois law that had not been addressed by that state’s highest court, the MDL court recognized that its role was to “predict” how that court would rule on the issue.  Id. at *5.  But the MDL court stopped short.  It neglected the rest of Erie doctrine which provides that

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

Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975).  In other words, a federal court sitting in diversity is not supposed to expand state law.  If a state has not recognized a cause of action, an MDL court should not be the first to do so.  Erie is a conservative doctrine aimed at ensuring that federal judges do not displace state law.  Where a state’s highest court has ruled on the issue, Erie means applying that rule.  Where a state’s highest court has not, “[t]he proper function” of a federal court “is to ascertain what the state law is, not what it ought to be.”  Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 497 (1941).  But that is precisely what the Cipro MDL court did when it predicted that Illinois would apply innovator liability, despite not a single Illinois state court ever having done so and contrary to Illinois Supreme Court decisions otherwise requiring product identification.  It decided what it thought Illinois law should be, rather than applying what it is.

Defendant, the brand manufacturer, moved to dismiss the claims of a plaintiff who admitted to only using the generic drug which was not manufactured or sold by defendant.  Those claims included product liability failure to warn, negligence, breach of express and implied warranties, fraud, negligent misrepresentation, fraudulent concealment, and consumer protection.  In re: Fluoroquinolone Prods. Liab. Litig., at *2.

With no law on directly on point, defendant argued that the governing law in Illinois, as decided by the Illinois Supreme Court, was that “[e]ach manufacturer owes a duty to plaintiffs who will use its drug or be injured by it. However, the duty is not so broad as to extend to anyone who uses the type of drug manufactured by a defendant[.]” Id. at *6 (quoting Smith v. Eli Lilly, 560 N.E.2d 324,  343 (Ill. 1990)).  So, per the highest court in Illinois, a fundamental requirement of bringing suit for harm caused by a product is that you must sue the manufacturer of the product you used, not the manufacturer of a similar product.

Not only is this the controlling law of Illinois, the Cipro MDL court admitted that the concept of innovator liability, or what it calls “warning label liability,” is a minority view.  It decided to read into Illinois law something that was neither recognized by that state or even by a majority of courts to have reviewed the issue.  Rather, it relied on one decision by an Illinois federal court that also ran roughshod over Erie to predict this expansion of Illinois tort law. Id.  A decision that was recently rejected by In re Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924 (S.D. Fla. Dec. 31, 2020)(predicting 35 states would reject innovator liability, including Illinois).  Also ignoring the Sixth Circuit’s prediction that innovator liability claims would fail under Illinois law.  See In re Darvocet, Darvon, and Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 944 (6th Cir. 2014).

The sum total of all of this is that the question of whether a generics warning label claim could be brought against the brand manufacturer is far from settled in Illinois and the majority of courts to consider Illinois law on the issue have held the state would not recognize the claim.  Given this set of circumstances, the Cipro MDL court had no basis on which to create new Illinois law.  Even if at some time in the future the MDL court turns out to be correct, a notion we loathe to even suggest, the fact is – that is not the law now and that is the only law a federal court sitting in diversity can apply.

Ultimately, the Cipro MDL court placed plaintiff’s claims into two buckets – products liability claims and warning label claims.  While the MDL court was willing to find that the brand manufacturer owed a duty to the generic user, it determined that it was a “limited” liability that only extended to injuries caused by the label.  In re Fluoroquinolone, at *9.    As an aside, it is difficult to understand how an action called “warning label liability” is divorced from or independent of products liability.  The label and its contents are part of the product.  In a failure to warn context, it is the label that plaintiff alleges is defective.  Hence, it is products liability.  Calling a claim that a label is deficient anything else is the worst case of form over substance.  Here again the court chose to ignore the Sixth Circuit which held that warnings claims are in fact products claims.  See In re Darvocet.

This separation of warnings versus products claims gets even more difficult to understand in practice.  Dismissing the breach of warranty claims is straightforward.  They fail for lack of privity.  Id. at *10.  But what about failure to warn claims?  First, the court dismisses plaintiff’s strict liability failure to warn claim because strict liability can only be imposed against an entity in the distributive chain, which the brand manufacturer is not.  Id. at *9.  Then the court dismisses plaintiff’s negligent failure to warn claim because that claim requires “an analysis of the condition of the product.”  Id.  The product plaintiff used is not the one manufactured by the defendant, so that claim is not viable.

The MDL court’s analysis changes when it comes to plaintiff’s fraud and misrepresentation claims.  Here, the court found that plaintiff could pursue these claims against the brand manufacturer based on allegations that the brand label did not contain certain warnings.  But we are left wondering how that differs from plaintiff’s failure to warn claims.  Plaintiff is making the same allegations in each cause of action.  He was not properly warned and as a result he was injured by the drug.  Allowing failure to warn claims to masquerade as fraud and misrepresentation claims just so they can be brought against the brand defendant is a severe distortion of tort law, both generally and in Illinois.

 

 

In our personal jurisdiction posts, we’ve generally taken a dim view of plaintiffs who attempt to oppose Rule 12(b)(2) dismissal motions with requests for jurisdictional discovery.  Both our experience and our perspective leads us to view such requests as overwhelmingly likely to be fishing expeditions, designed more to delay and to increase the expense of jurisdictional motions than with any expectation of actually finding relevant jurisdictional facts.

But what about defendants?  Are they allowed to seek jurisdictional discovery from plaintiffs?  Remember what Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), had to say about facts that mass tort plaintiffs’ needed to have in order to assert personal jurisdiction:

The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims.  As noted, the nonresidents were not prescribed [the product] in California, did not purchase [the product] in California, did not ingest [the product] in California, and were not injured by [the product] in California. . . .

Id. at at 1781.  Thus, mass tort plaintiffs are unlikely to be able to establish personal jurisdiction over a defendant if they:  (1) were not prescribed the defendant’s product; (2) did not purchase the defendant’s product; and/or (3) did not in fact use the defendant’s product.  BMS was concerned about allegations of non-forum use, but no use at all would be equally lacking in jurisdictional contacts.

That could help solve another problem.

Since one of the principal complaints the we (and virtually everyone representing defendants) have about MDLs is the lack of early vetting of plaintiffs for (among other things) not having the precise things that BMS listed, maybe personal jurisdiction can, at least sometimes, provide us a means of obtaining this information in a more timely fashion.  Not only do plaintiffs lacking these in-state contacts fail to state a claim, they also lack a basis for personal jurisdiction.  We’ve seen the jurisdictional aspect of BMS pursued in innovator liability cases, Henry v. Angelini Pharma, Inc., 2020 WL 1532174, at *4 (E.D. Cal. March 31, 2020); Stirling v. Novartis Pharmaceutical Corp., 2020 WL 4259035, at *3 (Idaho Dist. July 13, 2020), but it is just as true as a general matter.

“Where issues arise as to jurisdiction or venue, discovery is available to ascertain facts bearing on such issues.”  Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978).  “[W]hen facts that go to the merits and the court’s jurisdiction are intertwined and genuinely in dispute, parties have a qualified right to jurisdictional discovery.”  ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017).  “Jurisdictional discovery is not necessarily a one-way street.”  Mithril GP Employee Feeder LLC v. McKellar, 2020 WL 3206555, at *2 (D. Del. June 15, 2020) (granting jurisdictional discovery to the defendant orcs and ents).  Where “evidence may exist to refute Plaintiff’s jurisdictional allegations, and th[e] Defendant may not be in possession of such evidence[’  i]t is appropriate to permit Defendant the opportunity to discover and present such evidence.”   Young v. Bridgestone Americas Tire Operations, LLC, 2021 WL 50478, at *2 (D. Utah Jan. 6, 2021).

Thus, in One Bank & Trust NA v. Galea, 2011 WL 13141643 (E.D. Ark. Sept. 27, 2011), the plaintiff’s claim to personal jurisdiction rested on a forum selection clause that the defendant claimed was fraudulently induced, and the court held that the defendant’s request for “jurisdictional discovery on these types of issues seems appropriate under these circumstance.”  Id. at *2.  In Vai, Inc. v. Miller Energy Resources, Inc., 2012 WL 12897099, at *2 (E.D. Pa. Feb. 24, 2012), the defendant received jurisdictional discovery (of plaintiff’s business travel) to determine where plaintiff was when the relevant contract negotiations occurred.  Id. at *1 n.1.  Similarly, BMS has now recognized that the personal jurisdiction claims of litigation tourist product liability plaintiffs turns on where they obtained or used the product at issue.

Thus, no procedural basis exists to deny defendants their equal right to take jurisdictional discovery of mass tort plaintiffs concerning the jurisdictional facts recently identified in BMSSee Fed. R. Civ. P. 26(b)(1) (right to discovery belongs to “parties”).

To be sure, arguments challenging personal jurisdiction typically result in discovery where a plaintiff takes limited jurisdictional discovery of the defendant, to see whether the defendant’s activities fall within the long-arm statute, and, if so, whether the defendant has sufficient minimum contacts.  But Plaintiffs here have not called attention to any case law or other authority which would prevent limited discovery of a plaintiff . . . adopting the “what’s-sauce-for-the-goose-is-sauce-for-the-gander” maxim.

Vorbe v. Morisseau, 2014 WL 12637924, at *4 (S.D. Fla. Aug. 27, 2014) (emphasis original).  Just as plaintiffs are allowed to dispute a defendant’s jurisdictional assertions, defendants have the same right where they “provide[] some specific indication regarding what facts discovery would produce to affect the jurisdictional analysis.”  Wright & Miller, 8 Fed. Prac. & Proc. Civ. §2008.3, “Relevancy to the Subject Matter, Discovery About Jurisdictional Issues,” n.4 (3d ed.).

Indeed, in recent decision from the Zantac MDL suggests that a BMS-based motion for jurisdictional discovery against plaintiffs may well have succeeded.  In Zantac, as we discussed, certain overseas defendants were denied jurisdictional discovery only because the lack of any purchasers of their products was not in dispute – plaintiffs complaints “d[id] not contain any well-pled allegations that” such purchasers existed.  In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 6907056, at *9 (S.D. Fla. Nov. 24, 2020).  If there had actually been a factual dispute to which discovery was relevant, the defense motion for jurisdictional discovery in all probability would have been granted, since the Zantac court held:  (1) defendants sought jurisdictional discovery in good faith; and (2) “reject[ed] Plaintiffs’ argument that the request . . . is improper merits discovery and/or is subsumed within [other] motions.”  Id. at *8.  Indeed, in Zantac, the MDL “[p]laintiffs conceded . . . that, in appropriate circumstances, the Court has discretion to authorize a defendant to take jurisdictional discovery in support of a 12(b)(2) motion.”  Id.

Thus, another consequence of the BMS decision appears to be to provide a partial vehicle for obtaining early dismissals of, at least, litigation tourist MDL plaintiffs where they cannot produce evidence of use of a defendant’s product at the outset of the litigation.  We say “at least” because the innovator liability cases establish that even a plaintiff suing in his/her home state cannot establish personal jurisdiction without evidence of using the defendant’s product.

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 corporation 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).  Preliminary objections granted.  Corporate defendant, not subject to general or specific personal jurisdiction, cannot remain in suit under consent theory based on registration to do business.  Pennsylvania’s registration statute specifying “general” jurisdiction, is unconstitutional under the due process principles of Bauman and BMS.  The statute creates a Hobson’s choice and is not voluntary consent.  Personal jurisdiction beyond Bauman/BMS violates due process.  Pennoyer-era cases treating corporate registration as consent are no longer valid.  On appeal at 802 EDA 2018 (Pa. Super.).  Affirmed, 2021 Pa. Lexis 4318, below.
  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. Murray v.Cirrus Design Corp., 2018 WL 4550399 (N.D. Ill. Sept. 20, 2018) (Illinois) (product liability – non-drug/device).  Motion to dismiss granted.  That the product was involved in an in-state accident was fortuitous and did not establish case-linked jurisdiction.  The accident did not arise from and was not related to any activity by the defendant in the jurisdiction.
  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. Facebook, Inc. v. K.G.S., 294 So.3d 122 (Ala. June 28, 2019) (Alabama) (non-product liability).  Denial of motion to dismiss reversed.  In-state registration to do business insufficient.  Any precedent that general jurisdiction could be based only on a defendant corporation doing business in the forum state is obsolete.
  359. 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.
  360. 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.
  361. 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.
  362. 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.
  363. 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.
  364. 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.
  365. 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.
  366. 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.
  367. 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.
  368. 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.
  369. 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.
  370. 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.
  371. 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.
  372. 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.
  373. 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.
  374. 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.
  375. 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.
  376. 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.
  377. 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.
  378. 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.
  379. 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.
  380. 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.
  381. Payrovi v. LG Chem America, Inc., 2020 WL 5798375 (N.D. Cal. Sept. 29, 2020)
  382. 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.
  383. 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.
  384. 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.
  385. 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.
  386. 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.
  387. 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.
  388. 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.
  389. 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.
  390. 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.
  391. 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.
  392. 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.
  393. 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.
  394. 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.
  395. 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.
  396. 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.
  397. 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.
  398. 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.
  399. 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.
  400. 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.
  401. 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.
  402. 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.
  403. 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.
  404. 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.
  405. 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.
  406. 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.
  407. 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.
  408. 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.
  409. 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.
  410. 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.
  411. 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.
  412. 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.
  413. 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.
  414. 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.
  415. 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.
  416. 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.
  417. 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.
  418. 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.
  419. 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.
  420. 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.
  421. 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.
  422. 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.
  423. 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.
  424. 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.
  425. 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.
  426. 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.
  427. 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).
  428. 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.
  429. 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.
  430. 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.
  431. 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.
  432. 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.”
  433. 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.
  434. 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.
  435. 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.
  436. 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.
  437. 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.
  438. 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.
  439. 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.
  440. 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.
  441. 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.
  442. 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.
  443. 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.
  444. 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.
  445. 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.
  446. 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.
  447. 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.
  448. 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.
  449. 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.
  450. 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.
  451. 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.
  452. 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.
  453. 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.
  454. 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.
  455. Aldrich v. National Collegiate Athletic Ass’n, 484 F. Supp.3d 779 (N.D. Cal. Sept. 3, 2020) (California) (non-product liability).  Motion to dismiss granted.  No specific jurisdiction based on non-resident defendant’s failure to act.  Theory would improperly subject defendant to specific jurisdiction everywhere in the country.
  456. 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.
  457. 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.
  458. 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.
  459. 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.
  460. 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.
  461. 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.
  462. 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.
  463. 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.
  464. 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.
  465. 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.
  466. 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.
  467. 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.
  468. 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.
  469. 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.
  470. 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.
  471. 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.
  472. 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.
  473. 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.
  474. 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.
  475. 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.
  476. 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.
  477. 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.
  478. 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.
  479. 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.
  480. 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.
  481. 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.
  482. 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.
  483. 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.
  484. 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.
  485. 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.
  486. 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.
  487. 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.
  488. 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.
  489. In re Zantac (Ranitidine) Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. Dec. 31, 2020) (California and Massachusetts) (prescription medical product liability).  Motion to dismiss granted.  Innovator liability does not involve any contact between the defendant and the forum where the plaintiff is injured.  Innovator liability allegations cannot support specific jurisdiction.
  490. 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.
  491. 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.
  492. 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.
  493. 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.
  494. 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.
  495. 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.
  496. 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.
  497. 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.
  498. Macias v. LG Chem Ltd., 2021 WL 780478 (C.D. Cal. Feb. 28, 2021) (California) (product liability-non-drug/device).  Motion to dismiss granted.  In-state sales of the same product for different uses than what injured the plaintiff are not sufficient.  Jurisdictional discovery allowed.
  499. Zito v. United Airlines, Inc., 2021 WL 799265 (W.D.N.Y. March 3, 2021) (New York) (non-product liability).  Motion to dismiss granted.  Registration to do business insufficient to establish general jurisdiction.  In-state purchase of travel arrangements insufficient where accident occurred elsewhere.
  500. Virginia Transportation Corp. v. PACCAR, Inc., 2021 WL 914293 (D.R.I. March 10, 2021) (Rhode Island) (product liability – non-drug/device).  Motion to transfer granted.  In-state signing of contract of sale insufficient where products were manufactured and to be used elsewhere and were never present in state.
  501. Midcap Funding XVIII Trust v. CSC Logic, Inc., 2021 WL 949601 (C.D. Cal. March 12, 2021) (California) (non-product liability).  Motion to dismiss granted.  Registration to do business is not a basis for general jurisdiction.  Registration to do business is not a basis for specific personal jurisdiction where the underlying transaction has no in-state connection.
  502. M.H. v. Omegle.com LLC, 2021 WL 1050234 (D.N.J. March 19, 2021) (New Jersey) (non-product liability).  Motion to dismiss granted.  An in-state plaintiff’s use of a website, no matter interactive, cannot create specific personal jurisdiction when it is equally accessible from any jurisdiction and thus is not purposeful availment.  Jurisdictional discovery denied.
  503. BCBSM, Inc. v. Celgene Corp., 2021 WL 1087662 (D. Minn. March 22, 2021) (Minnesota) (non-product liability).  Motion to transfer granted.   No anti-competitive activities occurred in forum.  Plaintiff paying more on indirect drug sales into the forum not sufficient.  Decided personal jurisdiction first because less complicated than subject matter jurisdiction. Dealings with intermediate pharmacy benefit manager insufficient where PBM was not a forum resident.
  504. Tavel v. Riddle, 2021 WL 1121120 (N.D. Ill. March 24, 2021) (Illinois) (non-product liability).  Motion to dismiss granted.  No general jurisdiction by registering to do business.
  505. Carter v. Ford Motor Co., 2021 WL 1165248 (S.D. Fla. March 26, 2021) (Florida) (non-product liability).  Motion to dismiss granted in part.  All non-resident putative class plaintiffs dismissed.  None of their disputes with the defendant have any relationship to the forum.  BMS applies equally to named class representatives, and to state and federal claims, where no federal statute creates nationwide service of process.  No pendent jurisdiction.  Ford Motor does not affect the analysis of non-resident plaintiffs’ claims.
  506. Ruffing v. Wipro Limited, 529 F. Supp.3d 359 (E.D. Pa. March 29, 2021) (Pennsylvania) (non-product liability).  Partial motion to dismiss granted.  General jurisdiction by consent based on corporate registration is unconstitutional after Bauman.  Pre-Bauman precedent is no longer good law.  All claims by non-resident plaintiffs dismissed.
  507. Kearney v. Bayerische Motoren Werke Aktiengesellschaft, 2021 WL 1207476 (D.N.J. March 31, 2021) (New Jersey) (non-product liability).  Motion to dismiss granted.  In-state interactions with subsidiary not enough.  Warranty related contacts not related to plaintiff’s complaints since plaintiffs did not seek warranty coverage.  That all products shipped to the United States passed through the forum state is form of rejected stream of commerce theory because defendant had already lost title.  No alter ego.  Ford Motor-type contacts belong to subsidiary, not parent.  Jurisdictional discovery denied.
  508. Colucci v. Whole Foods Market Services, Inc., 2021 WL 1222804 (N.D. Ill. April 1, 2021) (Illinois) (product liability-non-drug/device).  Operation of an interactive Internet website selling products equally accessible to in- and out-of-state residents insufficient, where product in question not sold through website.  Mere advertisement, without sale insufficient.  Sale of unrelated products is an irrelevant contact.
  509. Baity v. Johnson & Johnson,  2021 WL 1401460 (S.D. Ill. April 14, 2021) (Illinois) (prescription medical product liability).  Multi-plaintiff complaint.  Over 100 non-resident plaintiffs dismissed.  No basis for jurisdiction after BMS and Rios. The contrast in Ford Motor between resident and non-resident plaintiffs supports the conclusion that non-residents should bring their actions in the forums where the activities giving rise to their claims occurred.  Given the law, non-resident plaintiffs had no good-faith basis for filing in this jurisdiction.  Therefore actions dismissed, rather than transferred, and plaintiffs will face whatever statute of limitations consequences that their invalid filing invited.
  510. Arellano v. Tube Fabrication & Color, LLC., 2021 WL 1564879 (N.D. Ind. April 21, 2021) (Indiana) (non-product liability).  Motion to dismiss granted.  In-state ongoing contractual relationship between two defendants insufficient in third-party tort action.  Defendants’ contacts may not be aggregated.  A general relationship is insufficient to support jurisdiction when asserted by a stranger to that relationship.
  511. Simmons v. Cardinal Health, 2021 WL 1577843 (E.D. La. April 22, 2021) (Louisiana) (prescription medical product liability).  Motion to dismiss granted.  Foreign manufacturer’s selling to an American distributor insufficient where defendant had no knowledge where products sold.  Plaintiff moved to forum state after product used in other state.  Only forum contacts were plaintiff’s unilateral acts.  Jurisdictional discovery denied.  In-state reported adverse event would not be sufficient where plaintiff only moved to forum state after using product elsewhere.
  512. Durham v. LG Chem, Ltd., 2021 WL 1573898 (N.D. Ga. April 22, 2021) (Georgia) (product liability-non-drug/device).  Motion to dismiss granted.  In-state product sales through third parties not directly unrelated to defendant insufficient.  Motion to transfer denied.  Plaintiffs failed to show that any of the prospective transferee courts had personal jurisdiction over defendant.  Jurisdictional discovery denied.
  513. Pesa v. Scandinavian Airlines System, 2021 WL 1660863 (D.N.J. April 27, 2021) (New Jersey) (non-product liability).  Motion to dismiss granted.  Plaintiff’s injury suffered in an airport overseas did not arise out of the defendant’s in state activities.  The flight plaintiff had purchased from the defendant in the forum state had already ended.
  514. D.S. Brown Co. v. White-Schiavone, JV, 2021 WL 1670264 (D. Mass. April 28, 2021) (Massachusetts) (non-product liability).  Registration to do business does not suffice to establish general jurisdiction.  In-state activity for which no damages are sought is insufficient to create specific personal jurisdiction.  A third party’s unilateral shipment of defendant’s product to forum state is insufficient, even if known to defendant.  Jurisdictional discovery denied.
  515. Shelter Mutual Insurance Co. v. Bissell Homecare, Inc., 2021 WL 1663585 (M.D. Tenn. April 28, 2021) (Tennessee) (product liability-non-drug/device).  Motion to dismiss granted.  In-state product sales through third parties not directly involving the defendant insufficient.  Registration to do business is of no special jurisdictional weight.
  516. Israel v. Alfa Laval, Inc., 2021 WL 1662770 (M.D. Fla. April 28, 2021) (Florida) (product liability-non-drug/device).  Motion to dismiss granted.  A non-resident’s possible asbestos exposure in the forum state is insufficient, alone to support specific personal jurisdiction.  Registration to do business does not create specific personal jurisdiction where the claim does not involve defendant’s in-state activities.  No evidence that defendant sought to serve the in-state market for similar products.
  517. Alvin Macias v. LG Chem, 2021 WL 2953162 (C.D. Cal. May 7, 2021) (California) (product liability-non-drug/device).  Motion to dismiss granted.  In-state sales of other products, but not the product involved in the claimed accident are insufficient to establish “arising from” for purposes of specific jurisdiction.
  518. Rickman v. BMW of N. Am. LLC, ___ F. Supp.3d ___, 2021 WL 1904740 (D.N.J. May 11, 2021) (New Jersey) (non-product liability).  Motion to dismiss granted.  Plaintiffs failed to identify defendant’s in-state conduct relating to the allegations.  Conspiracy-based jurisdiction does not comport with the Due Process purposeful availment requirement, and has never been recognized by the forum state.  Jurisdictional discovery granted as to other defendant.
  519. Garrett-Alfred v. Facebook, Inc., ___ F. Supp.3d ___, 2021 WL 1946699 (M.D. Fla. May 14, 2021) (Florida) (non-product liability).  Motion to dismiss granted.  Partial motion to dismiss granted.  Non-resident class representatives could not assert specific jurisdiction over non-resident defendant over matters not involving the defendant’s in-state activity.
  520. Cullen v. Shutterfly Lifetouch, LLC, 2021 WL 2000247 (N.D. Cal. May 19, 2021) (California) (non-product liability).  Motion to dismiss granted.  Where plaintiff did not allege buying any product from defendant, that defendant’s alleged in-state activity fulfilling product orders by others is insufficient to establish specific jurisdiction.
  521. Ex parte TitleMax of Georgia, Inc., ___ So.3d ___,  2021 WL 2024678 (Ala. May 21, 2021) (Alabama) (non-product liability).  Mandamus granted to require dismissal.  Operation of in-state wholly owned subsidiary insufficient.  Consent decree unrelated to issues in litigation insufficient.  Waiver of personal jurisdiction defense in one suit is not waiver in unrelated litigation.  No agency.
  522. Elliot v. Cessna Aircraft Co., 2021 WL 2153820 (C.D. Cal. May 25, 2021) (California) (product liability-non-drug/device).  Motion to dismiss granted.  Fully interactive website reachable from anywhere insufficient.  Jurisdictional discovery denied.
  523. LG Chem, Ltd. v. Turner, 2021 WL 2154075 (Tex. App. May 27, 2021), and LG Chem, Ltd. v. Granger, 2021 WL 2153761 (Tex. App. May 27, 2021) (Texas) (product liability-non-drug/device).  Denial of motion to dismiss reversed.  In-state sales of same product in bulk for industrial uses insufficient where plaintiff’s injury did not involve such uses.
  524. Rogers v. Coloplast Corp., 2021 WL 3017486 (M.D. Fla. June 1, 2021) (Florida) (prescription medical product liability).  Motion to dismiss granted.  FDA compliance and use of defendant’s trademarks are not directed to any particular state and are thus insufficient to allow stream of commerce jurisdiction.
  525. Williams v. Praetorian Insurance Co., 2021 WL 2383329 (N.D. Cal. June 10, 2021) (California) (non-product liability).  Motion to transfer granted.  That insurance policy was obtained through in-state broker insufficient where both the insured plaintiff and the insured property were located elsewhere.
  526. Perdomo v. Western Express, Inc., 2021 WL 3141972 (Conn. Super. June 17, 2021) (Connecticut) (non-product liability).  Motion to dismiss granted.  Registration to do business does not create general personal jurisdiction.  None of the alleged conduct giving rise to the plaintiff’s claim occurred in Connecticut.
  527. Okoroafor v. Emirates Airlines, 145 N.Y.S.3d 807 (N.Y.A.D. June 22, 2021) (New York) (non-product liability).  Grant of motion to dismiss affirmed.  Registration to do business in New York does not constitute consent to submit to general jurisdiction.
  528. H.B. v. China Southern Airlines Co., 2021 WL 2581151 (S.D.N.Y. June 23, 2021) (New York) (non-product liability).  Motion to dismiss granted.  Registration to do business in New York does not constitute consent to submit to general jurisdiction.  In-state purchase of another leg of a combined airplane flight insufficient where injury occurred on the other, entirely international, leg.
  529. Heissenberg v. Doe, 2021 WL 2621100 (S.D. Fla. June 24, 2021) (Florida) (non-product liability).  Motion to compel denied.  Neither the discovery nor the underlying elements of the plaintiff’s claims were related to in-state comments of the target of the plaintiff’s third-party subpoena.
  530. Stacker v. Intellisource, LLC, 2021 WL 2646444 (D. Kan. June 28, 2021) (Kansas) (non-product liability).  Motion to strike nationwide class action allegations granted.   BMS forecloses nationwide class actions against nonresident defendants for conduct outside the forum state.  A defendant’s due process interests do not vanish just because it has been haled into a forum.  Unless the absent class member would have jurisdiction in an individual suit, the Rules Enabling Act preludes use of Rule 23 to create jurisdiction that would not otherwise exist.
  531. Klick v. Asbestos Corp., Ltd., 2021 WL 2666709 (D.N.J. June 28, 2021) (New Jersey) (product liability-non-drug/device).  Motion to dismiss granted.  Where plaintiff does not allege any in-state exposure to asbestos products supplied by the defendant, that the defendant purchased asbestos products from in-state suppliers for use out of state is insufficient.  The defendant’s relations with third parties cannot create specific jurisdiction.  Jurisdictional discovery denied.
  532. In re Zantac (Ranitidine) Products Liability Litigation, ___ F. Supp.3d ___, 2021 WL 2682602 (S.D. Fla. June 30, 2021) (California and Massachusetts) (prescription medical product liability).  Motion to dismiss granted.  Innovator liability plaintiffs could establish only that defendant purposefully availed itself of the relevant jurisdiction’s markets, but not that the label and alleged failure to update it related to those activities.  The core conduct alleged in innovator liability is not state specific so as to confer jurisdiction.
  533. Rivera v. Altec, Inc., 2021 WL 2784265 (D. Md. July 2, 2021) (Maryland) (product liability-non-drug/device).  Motion to dismiss granted.  Registration to do business in Maryland and some in-state independent dealerships sell the defendant’s products insufficient for general jurisdiction.  A defendant’s systematic servicing of the state’s market cannot support specific jurisdiction where the plaintiff, the accident and the injuries were all out of state.  Jurisdictional discovery denied.
  534. Pena v. New Jersey Manufacturers Insurance Co., 2021 WL 2986512 (E.D.N.Y. July 15, 2021) (New York) (non-product liability).  Motion to dismiss granted.  Registration to do business in New York does not create general jurisdiction.  Law preceding Bauman is outdated.  Plaintiff’s unilateral moving insured property into state was insufficient.
  535. Kingston v. Angiodynamics, Inc., 2021 WL 3022320 (D. Mass. July 16, 2021) (Massachusetts) (prescription medical product liability).  Motion to dismiss granted.  Having regulatory and research employees in state insufficient, particularly where the plaintiff is a nonresident and suffered no in-state injury.  Defendant’s in-state activities were not an important or material element of proof of plaintiff’s claims.  Jurisdictional discovery denied.
  536. Cameron v. Thomson International, Inc., 2021 WL 3409999 (Mag. D. Mont. July 19, 2021) (Montana) (product liability-non-drug/device).  Motion to dismiss granted.  Small in-state sales through an third-party out of state wholesaler do not support purposeful availment.  Adopted 2021 WL 3406352 (D. Mont. Aug. 4, 2021).
  537. Brandon v. Wright Medical Technologies, Inc., 2021 WL 3134658 (D. Nev. July, 23, 2021) (Nevada) (prescription medical product liability).  Motion to dismiss granted.  Where plaintiff’s two surgeries occurred elsewhere, her in-state residence alone was insufficient, since that was the unilateral action of someone other than the defendant.  Nationwide product sales are not purposeful availment in every state.
  538. Antonacci v. Allergan USA, Inc., 2021 WL 3404023 (E.D. Mo. Aug. 4, 2021) (Missouri) (prescription medical product liability).  Motion to dismiss granted.  An acquisition after the product was sold does not establish personal jurisdiction over the acquiring party where corporate separation is maintained.
  539. Cox v. HP Inc., 492 P.3d 1245 (Or. Aug. 5, 2021) (Oregon) (non-product liability).  Denial of motion to dismiss reversed.  In-state certification and solicitation of business insufficient where litigation does not concern in-state services performed for any in-state entity, or any product sold in-state.
  540. McCoy v. General Motors, LLC, 2021 WL 3829968 (Conn. Super.  Aug. 5, 2021) (Connecticut) (product liability-non-drug/device).  Motion to dismiss granted.  Stream of commerce insufficient against component part manufacturer where sale of product in state was the unilateral act of third parties.
  541. Bogle v. JD Technologies, Inc., 2021 WL 3472151 (W.D. Pa. Aug. 6, 2021) (Pennsylvania) (product liability-non-drug/device).  Motion to dismiss granted.  Stream of commerce theory rejected because it is based on unilateral actions of third parties.  Product sales to others through internet marketplace insufficient, since all in-state contacts were by third parties.
  542. Beaton v. LG Chem, Ltd., 2021 WL 3828835 (D.N.J. Aug. 26, 2021) (New Jersey, California, Michigan) (product liability-non-drug/device).  Motion to dismiss granted; motion to transfer denied.  Where the plaintiff did not buy or use the product in a state, the claim does not relate to other contacts that the defendant had in the state.  Consent to personal jurisdiction in one case is not consent to personal jurisdiction in any other case.
  543. Lubbers v. John R. Jurgensen Co., 2021 WL 4066663 (E.D. Ky. Sept. 7, 2021) (Kentucky) (non-product liability).  Motion to dismiss granted.  Registration to do business does not create general jurisdiction.
  544. Joe v. Union Pacific Railroad, 2021 WL 4200878 (E.D. Ark. Sept. 15, 2021) (non-product liability).  Motion to dismiss granted.  Where the alleged injury and the conduct causing it occurred out of state, plaintiff’s being based and being paid in-state is insufficient to create specific jurisdiction.  In-state corporate registration is insufficient to create specific jurisdiction where the injury and allegedly liability creating conduct was all out of state.
  545. 68th Street Site Work Group v. Airgas, Inc., 2021 WL 4255030 (D. Md. Sept. 16, 2021) (Maryland) (non-product liability).  Motion to dismiss granted.  Registration to do business does not create general jurisdiction.  No successor corporation specific jurisdiction.  Jurisdictional discovery denied.
  546. Patterson v. Chiappa Firearms, USA, Ltd., 2021 WL 4287431 (S.D. Ind. Sept. 21, 2021) (Indiana) (product liability-non-drug/device).  Motion to dismiss granted.  Sporadic forum contacts insufficient.  Internet website identifying in-state dealers insufficient.  No systematic marketing.  Rejects stream of commerce based on internet website.  Would create de facto universal jurisdiction.  Jurisdictional discovery denied.
  547. Parker v. Alcon, Inc., 2021 WL 4310985 (N.D. Ala. Sept. 22, 2021) (Alabama) (prescription medical product liability).  Motion to dismiss granted.  Foreign parent not subject to personal jurisdiction by contacts of subsidiary under stream of commerce theory.  Jurisdictional discovery denied.
  548. Pettit v. AngioDynamics, Inc., 2021 WL 4441261 (D. Mass. Sept. 28, 2021) (Massachusetts) (prescription medical product liability).  Motion to dismiss granted.  General research and regulatory activity in-state insufficient where plaintiff’s use of device was entirely in another state.
  549. Harness v. AngioDynamics, Inc., 2021 WL 4441260
    (D. Mass. Sept. 28, 2021) (Massachusetts) (prescription medical product liability).  Motion to dismiss granted.  General research and regulatory activity in-state insufficient where plaintiff’s use of device was entirely in another state.
  550. Murphy v. Viad Corp., 2021 WL 4504229 (E.D. Mich. Oct. 1, 2021) (Michigan) (product liability-non-drug/device).  Motion to dismiss granted; case transferred.  In-state sales of a different asbestos-containing product insufficient.  Plaintiff’s asbestos claims do not relate to those products.  Plaintiff’s later move to the forum, where the claimed injury was discovered, is insufficient.
  551. Aybar v. Aybar, ___ N.E.3d ___, 2021 WL 4596367 (N.Y. Oct. 7, 2021) (New York) (product liability-non-drug/device).  Grant of motion to dismiss affirmed.  Under New York law registration to do business does not constitute consent to general personal jurisdiction.  Exercise of general jurisdiction in every state in which a corporation engages in a substantial business would be unacceptably grasping.
  552. Cincinnati Insurance Co. v. LG Chem America, Inc., 2021 WL 4864231 (S.D. Ill. Oct. 19, 2021) (Illinois) (product liability-non-drug/device).  Motion to dismiss granted.  Registration to do business does not constitute consent to general jurisdiction.
  553. Green v. First Tenn. Bank National Ass’n, 2021 U.S. Dist. Lexis 200371 (N.D. Cal. Oct. 18, 2021) (California) (non-product liability).  Motion to dismiss granted.  Registration to do business and appointment of an agent for service of process is insufficient to establish general jurisdiction.
  554. Chavez v. Bridgestone Americas Tire Operations, LLC, ___ P.3d ___, 2021 WL 5294978 (N.M. Nov. 15, 2021) (New Mexico) (product liability-non-drug/device).  Denials of motions to dismiss reversed.  Under New Mexico law, registration to do business does not constitute consent to general personal jurisdiction.  Prior contrary precedent overruled.  Given the Due Process concerns, the corporate registration statute is interpreted narrowly in accordance with its terms not to permit general jurisdiction by consent.
  555. Tyler v. Ford Motor Co., 2021 U.S. Dist. Lexis 221863 (M.D. Ala. Nov. 17, 2021) (Alabama) (product liability-non-drug/device). Motion to dismiss granted.  Registration to do business does not constitute consent to general jurisdiction.  A state cannot require waiver of a constitutional right as a prerequisite to doing business.  Pennsylvania Fire was overruled in Shaffer.
  556. Metro Container Group v. AC&T Co., 2021 WL 5804374 (E.D. Pa. Dec. 7, 2021) (Pennsylvania) (non-product liability).  Motion to dismiss granted in part.  Registration to do business is insufficient to establish general jurisdiction.  Caution:  jurisdictional discovery allowed as to specific jurisdiction.
  557. Mallory v. Norfolk Southern Railway. Co., ___ A.3d ___,  2021 Pa. Lexis 4318 (Pa. Dec. 22, 2021) (Pennsylvania) (non-product liability).  Grant of preliminary objections affirmed.  Registration to do business is insufficient to establish general jurisdiction.  The Pennsylvania statute specifying “general” jurisdiction as a consequence of registration to do business is unconstitutional under Bauman.  Affirming 2018 WL 3043601, above.
  558. Wallace v. Yamaha Motors Corp, U.S.A., 2022 WL 61430 (4th Cir. Jan. 6, 2022) (South Carolina).  Grant of motion to dismiss affirmed.  Plaintiff being a resident of the forum state is an insufficient basis for specific jurisdiction.  Specific jurisdiction must arise out of the defendant’s contacts.  The plaintiff’s injury did not occur in the forum state, nor did anything having to do with the defendant’s product.

This post is only from the Reed Smith (more properly, the non-Dechert) side of the blog.  It is updated whenever a relevant new decision is found.

One hundred what, you say?

Certainly not years; the awful Conte v. Wyeth, Inc., 85 Cal. Rptr.3d 299 (Cal. App. 2008), decision just turned six – this blog is older than that.

According to our innovator liability scorecard, there are now (when this post was first written in 2014) more than 100 decisions rejecting innovator liability/Conte theories – quite a few more, if you count all the different opinions in litigation where the invalidity of innovator liability has been affirmed on appeal.

Our last post on the subject (back in 2014) was just last Friday, to break the news of Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014), but Huck isn’t even the last  case on our scorecard any longer – that honor currently belongs to Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605 (5th Cir. 2014) (applying Louisiana law), which we later found out was decided the same day.

In one of our earlier posts, less than a week after Conte was decided, we made up an example to illustrate the potentially wide-ranging impact of allowing non-manufacturer liability for products based solely on “foreseeability”:

Plaintiff New Dad gives plaintiff New Mom his old SUV, manufactured by Gasguzzlers ‘R Us, so she has something big and safe to drive New Baby around.  To replace it, he buys a hybrid made by Minigas, Inc. to drive to work.  Wife puts New Baby’s car seat in the front seat, and plows into a telephone pole (or something else, it really doesn’t matter).  The airbag kills New Baby.  Gasguzzlers ‘R Us didn’t get its federal bailout and goes bankrupt.  But since both of the family cars had identical government-mandated (allegedly) inadequate warnings about not putting an infant car seat next to an airbag, who gets sued, Minigas – even though it’s car had nothing to do with the accident.

Farfetched?  We wish.  Isn’t it foreseeable that New Mom and Dad would have relied on the warnings in the brand new owner’s manual they just saw when buying their brand new hybrid, instead of the older manual in the SUV, which they haven’t looked at in years (assuming they still have the old manual at all)?  Under Conte’s omniforeseeability analysis, why not?

More Thoughts On Conte v. Wyeth (Nov.13, 2008).  Now we didn’t think much more about that – analogies are a dime a dozen – until we were reading another recent case rejecting Conte.  Guess what we found in Huck?

We are unwilling to make brand manufacturers the de facto insurers for competing generic manufacturers.  It may well be foreseeable that competitors will mimic a product design or label.  But, we decline [plaintiff’s] invitation to step onto the slippery slope of imposing a form of innovator liability on manufacturers for harm caused by a competitor’s product.  Where would such liability stop?  If a car seat manufacturer recognized as the industry leader designed a popular car seat, could it be sued for injuries sustained by a consumer using a competitor’s seat that copied the design?  Why not, under Huck’s theory, if it is foreseeable others will copy the design?

850 N.W.2d at 380 (citation omitted).  It’s not exact, but this eerily close for a coincidence.  So maybe we are having some sort of influence after all.

If we are, we certainly want to keep that up.  Thus, we think it’s time to take a closer look at the status of innovator liability.  A lot of states now have some sort of decision on this specific subject, but depending on the strength of that precedent, we may add some thoughts on product identification generally, since the issue comes up in other contexts, most notably market share liability and asbestos.  For example, Huck relied primarily on the Iowa Supreme Court’s prior decision rejecting market share liability – another novel claim that tries to decouple liability from actually making the allegedly injurious product.

So on the occasion of 100 decisions rejecting Conte innovator liability theories, here is a 50-state survey on the status of this benighted form of liability.  Fortunately, “‘the overwhelming
national consensus – including the decisions of every [federal] court of appeal and the vast majority of district courts around the country to consider the question – is that a brand-name manufacturer cannot be liable for injuries caused by the ingestion of the generic form of a product.’”  In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1195 (S.D. Fla. 2020) (quoting Guarino v. Wyeth, LLC, 719 F.3d 1245, 1252 (11th Cir. 2013)).

If any of our readers know of any innovator liability decisions that we have missed, by all means send them along.

The Current Restatement of Torts

True, it’s not the law of this state or that state, but the American Law Institute has been in the business of “restating” consensus/better view common-law principles for over seventy years.  The Third Restatement of Torts, Products Liability has this to say about product-related misrepresentation claims:

§9.       Liability of Commercial Product Seller or Distributor for Harm Caused by Misrepresentation

One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation.

That’s what you call “black letter law.”  The elements of Third Restatement §9 are inconsistent with innovator liability in two ways.  First, as is true of other theories of product liability, the defendant in a claim for “misrepresentation” in the product related context must be “[o]ne engaged in the business of selling or otherwise distributing products.”  Second, the claimed misrepresentation must have occurred “in connection with the sale of a product.”  Neither of these elements is present where the claimed misrepresentation was not made by the product seller at all, but rather allegedly occurred in in the labeling for a different manufacturer’s product and that labeling pre-existed the generic drug that was actually “sold” to the plaintiff and that is claimed to have caused the harm.

Furthermore, the more general sections of both the Second and Third Restatements of Torts likewise limit the scope of product liability to manufacturers and other sellers of products.  See Restatement (Third) of Torts: Products Liability § 1 (1998) (product liability limited to “[o]ne engaged in the business of selling or otherwise distributing products”); Restatement (Second) of Torts § 402A(1) (1965) (strict liability for “[o]ne who sells any product”); Restatement (Second) of Torts §388 (1965) (negligent failure to warn limited to “[[o]ne who supplies …   a chattel”).

So, for beginners we have the current restatement of torts on our side.

Alabama

Innovator liability has been statutorily abolished in Alabama:

In any civil action for personal injury, death, or property damage caused by a product, regardless of the type of claims alleged or the theory of liability asserted, the plaintiff must prove, among other elements, that the defendant designed, manufactured, sold, or leased the particular product the use of which is alleged to have caused the injury on which the claim is based, and not a similar or equivalent product. Designers, manufacturers, sellers, or lessors of products not identified as having been used, ingested, or encountered by an allegedly injured party may not be held liable for any alleged injury.  A person, firm, corporation, association, partnership, or other legal or business entity whose design is copied or otherwise used by a manufacturer without the designer’s express authorization is not subject to liability for personal injury, death, or property damage caused by the manufacturer’s product, even if use of the design is foreseeable.

Ala. Code §6-5-530(a) (emphasis added).  Only cases filed prior to the statute’s six-months-after-becoming-law applicability date escape.  SB-80 §4.  The legislation likewise abolishes (to the extent they ever existed in Alabama) claims for market share liability, alternative liability, and conspiracy liability, if the effect is to impose liability on non-manufacturers.  This statute means what it says, and the legislature was entitled to enact it.  Forest Laboratories, LLC v. Feheley, 296 So.3d 302, 314-15 (Ala. 2019).

The Alabama legislature was forced to act because, in a long and awful opinion that ignored much of the law cited in this post, the Alabama Supreme Court decided that Alabama would allow innovator liability, under a “misrepresentation” (not products liability) theory.  Wyeth, Inc. v. Weeks, 159 So.3d 649, 670-77 (Ala. 2014).  We discussed that Weeks reasoning extensively at the time, so we won’t inflict that on you again.

Prior to Weeks, courts applying Alabama law had rejected other forms on non-manufacturer liability such as market share liability, Franklin County School Board v. Lake Asbestos of Quebec, Ltd., 1986 WL 69060, at *5-6 (N.D. Ala. Feb. 13, 1986), and generally required product identification as an essential element in other product-related litigation involving prescription medical products.  Bloodsworth v. Smith & Nephew, 2005 WL 3470337, at *5 (M.D. Ala. Dec. 19, 2005).  None of that mattered to (or was even cited by) the Alabama Supreme Court in Weeks, except in the dissent.

Alaska

Alaska hasn’t been cursed with much prescription medical product liability litigation, and we haven’t run across anything on Conte, market share liability, or product identification.  The general statement of strict liability in Alaska is that “a manufacturer is strictly liable . . . when an article he places on the market” is defective.  Shanks v. Upjohn Co., 835 P.2d 1189, 1194 (Alaska 1992) (quoting Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244, 247 (Alaska 1969)).  The very “purpose of the modern strict liability regime is to insure that the cost of injuries resulting from defective products is borne by the manufacturers that put such products on the market.”  Savage Arms, Inc. v. Western Auto Supply Co., 18 P.3d 49, 53 (Alaska 2001) (quotation marks omitted).

The MDL court in In re Zantac Ranitidine Products Liability Litigation510 F. Supp.3d 1175 (S.D. Fla. 2020), followed these precedents in concluding that innovator liability was incompatible with Alaska strict liability law.  “Under Alaska law, therefore, product identification must be alleged in order to maintain a products liability claim.”  Id. at 1203.  Nor, on general negligence principles, could innovator liability arise in negligence:

[T]he Court predicts that the Alaska Supreme Court would follow the majority view and hold that Defendants do not owe a duty to Plaintiffs. First, generic consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct. . . . To impose a duty under Alaska law would be to stretch the concept of foreseeability too far.  Further, the Court finds that the connection between Defendants’ alleged conduct and Plaintiffs’ alleged injuries is attenuated, given the absence of a relationship between the parties.  Additionally, the burden to Defendants and the consequences to the community of imposing a duty of care are great. . . .  [M]any public policy considerations weigh against holding brand-name manufacturers liable for injuries caused by their generic competitors’ drugs.
Id. at 1204 (citations and quotation marks omitted).
Arizona

Arizona has a product liability statute governing “any action brought against a manufacturer or seller of a product.”  Ariz. Rev. Stat. §12-681, meaning that a defendant must have made the product.  No Arizona court has directly passed on innovator liability, but the federal district court in the Darvocet litigation twice held that the theory was incompatible with Arizona law.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *7-8 (E.D. Ky. Sept. 5, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *2-3 (E.D. Ky. Oct. 10, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014).  No Arizona plaintiffs appealed in Darvocet, so the Sixth Circuit’s opinion, In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), doesn’t discuss Arizona law.

Otherwise, courts applying Arizona law have rejected market share liability, both as to prescription medical products, In re Minnesota Breast Implant Litigation, 36 F. Supp.2d 863, 876 (D. Minn. 1998) (applying Arizona law), and products generally.  White v. Celotex Corp., 907 F.2d 104, 105 (9th Cir. 1990) (asbestos) (applying Arizona law).  Product identification has been required in pain pump cases under Arizona law.  Placencia v. I-Flow Corp., 2011 WL 1361562, at *2, 3-4 (D. Ariz. April 11, 2011); Peterson v. Breg, Inc., 2010 WL 2044248, at *2 (D. Ariz. April 29, 2010).  A ringing defense of the principle that liability runs with the manufacture of, and profit from, the product is found in the successor liability case, Windsor v. Glasswerks PPX, LLC, 63 P.3d 1040, 1049 (Ariz. App. 2003).

The statute, and Windsor convinced the MDL court in In re Zantac Ranitidine Products Liability Litigation510 F. Supp.3d 1175 (S.D. Fla. 2020), that Arizona would not adopt innovator liability:

Given the plain language of § 12-681, the Court predicts that the Arizona Supreme Court would find all of Plaintiffs’ claims to be products liability claims, regardless of how they are characterized, and that such claims require product identification to be viable.  For this reason, the Court predicts that the Arizona Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification.

Id. at 1205 (footnote omitted).

Arkansas

The Eighth Circuit has twice held that Arkansas law rejects innovator liability.  Fullington v. PLIVA, Inc., 720 F.3d 739, 744 (8th Cir. 2013); Bell v. Pfizer, Inc., 716 F.3d 1087, 1092-93 (8th Cir. 2013).  So did the Sixth Circuit in Darvocet.

Guided by our sister circuit, we likewise predict that the Arkansas Supreme Court would construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification under Arkansas law.

In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 941 (6th Cir. 2014).  See also Fields v. Wyeth, Inc., 613 F. Supp.2d 1056, 1060-61 (W.D. Ark. May 11, 2009); Neal v. Teva Pharmaceuticals USA, Inc., 2010 WL 2640170, at *2 (W.D. Ark. July 1, 2010).

The Eighth Circuit rulings were enough to persuade the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that Arkansas would reject innovator liability:

[T]he Court finds the Eighth Circuit’s reasoning to be reliable data tending convincingly to show whether the Arkansas Supreme Court would find the theory of liability at issue to be viable. The Court therefore predicts that the Arkansas Supreme Court would hold that Plaintiffs’ claims fail for lack of product identification and for lack of a duty giving rise to liability under Arkansas law.

Id. at 1206 (citation, quotation marks, and footnote omitted).

California

California is now the home of innovator liability.  In T.H. v. Novartis Pharmaceuticals Corp., 407 P.3d 18 (Cal. 2017), the California Supreme Court unanimously decided that a non-manufacturer branded drug company could be liable for negligent misrepresentations in its labeling (which by federal requirement, generic companies must use without change) because it is “foreseeable” that such misrepresentations could influence physicians prescribing generic drugs.  Even alleged off-label promotion and the passage of over six years since the defendant last gave a warning did not preclude a jury from finding “foreseeable” injury.  Id. at 30.  Other considerations − the greater control of actual generic sellers and manufacturers over their products, the lack of any economic benefit to branded companies from generic products, the imposition of liability for 100% of products on 10% of the actual market, and the simple common sense of product liability that liability follows profit, failed to move even a single member of the current California high court.  Indeed, even asbestos fares better than FDA-approved drugs now, since generic use of branded labels undergirded the foreseeability uber alles rationale that the same court rejected in asbestos cases.  See T.H., 407 P.3d at 30-31 (distinguishing O’Neil v. Crane Co., 266 P.3d 987, 1003 (Cal. 2012)).  The overwhelming weight of precedent against innovator liability is dismissed as mere “crowd” noise against which “the mere fact that the claim is novel will not of itself operate as a bar to the remedy.”  Id. at 47.

Even more extreme, a 4-3 majority of the court decided that innovator liability can effectively be perpetual.   The dissenters made nine points:  (1) predecessors cannot control a successor’s warnings or promotional activities; (2) assessing massive liability on alleged misreading of emerging scientific data encourages overwarning of scientifically questionable risks; (3) loss of liability’s deterrent effect against actual product manufacturers; (4) “destabilization” of the pharmaceutical industry by perpetual, unlimited liability; (5) liability spillover to other products; (6) basing liability on an unrealistic view of corporate transactions; (7) a former seller’s relative lack of moral blame; (8) unavailability of insurance for risks of competing products; and (9) the increase in the price of branded drugs that did not cause injury.  T.H., 407 P.3d at 54-59.  In reality T.H. imposes common-law liability as a way to hold branded drugs hostage to force federal action against generic preemption.  See Id. at 31 n.2 (majority), 48 (concurrence).

Colorado

Colorado has a product liability statute that pretty explicitly defines “product liability action” as litigation brought against a “manufacturer” and the definition of manufacturer is not broad enough to include the manufacturer of a competing product that the plaintiff did not take.  Colo. Rev. Stat. §13-21-401.  Thus, a “plaintiff must establish that a particular defendant’s product was a substantial contributing cause of his injury.” Merkley v. Pittsburgh Corning Corp., 910 P.2d 58, 59 (Colo. App. 1995).  In Sheeks v. American Home Products Corp., 2004 WL 4056060, at *1-2 (Colo. Dist. Oct. 15, 2004), the court expressly rejected innovator liability.

Sheeks’ reasoning convinced the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that innovator liability was incompatible with Colorado law:

the Court finds the Colorado District Court’s reasoning to be “reliable data tending convincingly to show” whether the Colorado Supreme Court would find the theory of liability at issue to be viable.  The Court therefore predicts that the Colorado Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and would otherwise fail for lack of a duty giving rise to liability under Colorado law.

Id. at 1207 (citation and quotation marks omitted).

Connecticut

Connecticut was one of the states that the Sixth Circuit in In re Darvocet, Darvon, &  Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), held would reject innovator liability:

Because Plaintiffs bring a personal injury claim allegedly caused by a defective product, their claims are within the scope of the CPLA [Connecticut Product Liability Act] and require product identification. . . .  We predict that if the Connecticut Supreme Court were directly faced with this question under Connecticut Law, it would find that Plaintiffs’ claims are product liability claims within the scope of the CPLA that do not survive under CUTPA [Connecticut Unfair Trade Practices Act]. Accordingly, the district court did not err in dismissing Plaintiffs’ claims against the Brand Manufacturers arising under Connecticut law because Plaintiffs did not allege that they ingested a product manufactured by the Brand Manufacturers.

Id. at 942.  Accord In re Zofran (Ondansetron) Products Liability Litigation, 2018 WL 2317525, at *4-5 (D. Mass. May 21, 2018) (following Darvocet as to Connecticut law).

Connecticut law also rejects market share liability, even in the DES context.  Gullotta v. Eli Lilly & Co., 1985 WL 502793, at *9 (D. Conn. May 9, 1985).  Product identification has also been required in prescription medical product cases, Barbour v. Dow Corning Corp., 2002 WL 983346, at *3 (Conn. Super. April 19, 2002) (no liability for products made after sale of manufacturing subsidiary); and in product liability generally.  Bobryk v. Lincoln Amusements, Inc., 1996 WL 24566, at *3 (Conn. Super. Jan. 5, 1996) (“the plaintiff must plead and prove that the item which caused him harm was in fact the defendant’s ‘product’ within the meaning of the Act”).

the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), concluded on the basis of the product identification analysis in Darvocet that Connecticut would reject innovator liability:

[T]he Court finds the Sixth Circuit’s reasoning to be reliable data tending convincingly to show whether the Connecticut Supreme Court would find the theory of liability at issue to be viable. The Court therefore predicts that the Connecticut Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification.

Id. at 1207 (citation and quotation marks omitted).

Delaware

In Delaware plaintiffs must prove “that there was a causal relationship between the defendant’s product and the plaintiff’s physical injury.”  Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1377 (Del. 1991).  Thus in Trower v. Janssen Pharmaceuticals, Inc., 2019 WL 1571834 (D. Del. April 11, 2019), the court directly rejected innovator liability, holding that “Delaware law does not support imposing liability on a brand name defendant for a generic manufacturer’s product.”  Id. at *4.   Similarly, Delaware rejects market share liability.  Nutt v. A.C. & S. Co., 517 A.2d 690, 694 (Del. Super. 1986) (asbestos); In re Asbestos Litigation, 509 A.2d 1116, 1118 (Del. Super. 1986), aff’d, 525 A.2d 146 (Del. 1987).

Trower and Nutt sufficed for the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), also to predict that Delaware would stay away from innovator liability:

[T]he Court finds the Trower court’s reasoning to be reliable data tending convincingly to show whether the Delaware Supreme Court would find the theory of liability at issue to be viable.  The Court therefore predicts that the Delaware Supreme Court either would construe all of Plaintiffs’ claims as products liability claims that fail for lack of product identification or would rule that Plaintiffs’ claims otherwise fail for lack of a duty giving rise to liability under Delaware law.

Id. at 1208 (quotation marks omitted).

District of Columbia

In the District, “[i]t is, of course, incumbent on the plaintiff in any product liability action to show that the defendant’s product was the cause of his or her injuries.”  Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1381 (D.C. 1995).  D.C. courts haven’t passed on innovator liability.  However D.C. law has rejected market share liability, even in the DES context.  Tidler v. Eli Lilly & Co., 851 F.2d 418, 424 (D.C. Cir. 1988).  Market share liability has also been rejected with respect to other products.  Bly v. Tri-Continental Industries, Inc., 663 A.2d 1232, 1244 (D.C. 1995) (gasoline); Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1383 & n.10 (D.C. 1995) (asbestos); District of Columbia v. Beretta U.S.A. Corp., 2002 WL 31811717, at *55-56 (D.C. Super. Dec. 16, 2002), aff’d in part and rev’d in part on other grounds, 872 A.2d 633 (D.C. 2005) (firearms).

Claytor’s firm acceptance of product identification, along with a dearth of any contrary precedent, led the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), to predict that the District would steer clear of innovator liability:

[T]he Court predicts that the D.C. Court of Appeals would follow the majority view and hold that Defendants do not owe a duty to Plaintiffs. First, the generic consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct. . . .  Additionally, the Court views the relationship between the brand-name manufacturers and generic consumers to be, at best, at arms’ length.  The Court predicts that the D.C. Court of Appeals would not recognize a duty owed by Defendants to Plaintiffs.  In sum, the Court predicts that D.C. Court of Appeals would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under D.C. law.

Id. at 1208-09 (citations and quotation marks omitted).

Florida

In Florida, tort claims “fail as a matter of law [when] the record is undisputed that [defendant] did not design, manufacture, or distribute the [product].”  Hall v. Sunjoy Indus. Grp., Inc., 764 F. Supp. 2d 1297, 1301 (M.D. Fla. 2011) (collecting cases).  Florida is one of the states where innovator liability has been rejected over and over again.  Florida state courts have done so.  Dietrich v. Wyeth, Inc., 2009 WL 4924722 (Fla. Cir. Dec. 21, 2009); Sharp v. Leichus, 2006 WL 515532, at *2-6 (Fla. Cir. Feb. 17, 2006), aff’d per curiam, 952 So.2d 555 (Fla. App. 2007).

The Eleventh Circuit threw out all such claims in Guarino v. Wyeth, 719 F.3d 1245 (11th Cir. 2013), in reliance upon a “mountain of authority.”  Id. at 1251-53.  So have the following federal district courts:  Tsavaris v. Pfizer, Inc., 154 F. Supp.3d 1327, 1339-41 (S.D. Fla. 2016); Metz v. Wyeth, Inc., 830 F. Supp.2d 1291, 1293-95 (M.D. Fla. 2011), aff’d, 525 F. Appx. 893 (11th Cir. 2013); Levine v. Wyeth, Inc., 684 F. Supp.2d 1338, 1344-46 (M.D. Fla. 2010); Howe v. Wyeth Inc., 2010 WL 1708857, at *3-4 (M.D. Fla. Apr. 26, 2010).

Florida was also one of the states’ laws addressed in the Darvocet litigation.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 942-43 (6th Cir. 2014) (“We predict that the Florida Supreme Court would construe Plaintiffs’ misrepresentation claim as a product liability claim that fails for lack of product identification under Florida law”); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *7 (E.D. Ky. Sept. 5, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014).

Georgia

The Georgia product liability statute limits liability to manufacturers.  OCGA §51-1-11(b)(1). Thus, [r]egardless of whether the plaintiff proceeds under a theory of negligence or strict liability, a plaintiff must prove as part of his case that the defendant’s product was the proximate cause of the injuries alleged.” Fouch v. Bicknell Supply Co., 756 S.E.2d 682, 687 (Ga. App. 2014).

In PLIVA, Inc. v. Dement, 780 S.E.2d 735 (Ga. App. 2015), cert. granted on other grounds (Ga. Sept. 6, 2016) (generic defendants), the court held:

Regarding liability of a name brand drug manufacturer to a consumer who used only a generic drug, the overwhelming national consensus is that a brand-name manufacturer cannot be liable for injuries caused by the ingestion of the generic form of a product.  Because the name brand drug manufacturers owed no duty of care to [plaintiff], who never used their product, those defendants were entitled to judgment as a matter of law.

Id. at 743 (footnotes and quotation marks omitted).  See also Reynolds v. Anton, 2004 WL 5000272, at ??? (Ga. Super. Oct. 28, 2004) (“holding one manufacturer liable for the packaging/warnings of another is not based upon traditional Georgia tort law principles”) (no page numbering; last issue in opinion).

A couple of Georgia federal district courts have likewise rejected innovator liability.  Moore v. Mylan, Inc., 840 F. Supp.2d 1337, 1344 (N.D. Ga. Jan. 5, 2012); Swicegood v. Pliva, Inc., 543 F. Supp.2d 1351, 1354-59 (N.D. Ga. 2008).

The Sixth Circuit in Darvocet predicted that Georgia law would reject innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 943 (6th Cir. 2014) (“we predict that the Georgia Supreme Court would either construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification or that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Georgia law”); accord In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2013 WL 5184129, at *2 (E.D. Ky. July 29, 2013).

Similarly, the court in In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *9-10 (D. Mass. Aug. 4, 2017), relied on the above precedents to predict that Georgia would adopt the majority view and reject innovator liability.

Georgia law rejected market share liability even before it was prohibited by statute.  Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir. 1985) (applying Georgia law); Starling v. Seaboard Coast Line Railroad Co., 533 F. Supp. 183, 186 (S.D. Ga. 1982).  The Georgia product liability statute broadly prohibits “theories of market share or enterprise, or other theories of industry-wide liability.”  OCGA §51-1-11(d).  Innovator liability can be considered an “other” theory of “industry-wide liability.”

Product identification has also been required in other situations:

To survive summary judgment, Hoffman clearly needed to present evidence that she was exposed to defendants’ products. . . .  [U]nless the manufacturer’s defective product can be shown to be the proximate cause of the injuries there can be no recovery.  A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of the design of his own marketed product and not that of someone else.

Hoffman v. AC&S, Inc., 548 S.E.2d 379, 382 (Ga .App. 2001) (citations and quotation marks omitted) (asbestos case).  See Thurmon v. A.W. Chesterton, Inc., 61 F. Supp.3d 1280, 1285-86 (N.D. Ga. 2014) (same); Cox v. Johnson & Johnson, 2021 WL 4490456, at *_ (D.N.J. Oct. 1, 2021) (rejecting non-manufacturer liability in talc cases; following Swicegood) (applying Georgia law); Murphy v. Aventis Pasteur, Inc., 270 F. Supp.2d 1368, 1377 (N.D. Ga. 2003) (holder of expired patent for medical device owed no “duty to warn the purchasers and recipients of . . . copied products manufactured by other companies”).

Hawaii

There isn’t any law in Hawaii on innovator liability.  But the Supreme Court of Hawaii has recognized the general product liability  “principle” that “a manufacturer owes a duty to warn regarding its own product, not regarding products it did not produce, sell, or control.”  Acoba v. General Tire, Inc., 986 P.2d 288, 305 (Haw. 1999) (emphasis original).  Acoba clinched the absence of innovator liability for the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020):

While Hawaii has no products liability statute that would subsume Plaintiffs’ negligence-based claims, the court’s meaning in Acoba is clear:  a manufacturer owes no duty to consumers of products it did not produce, sell, or control.  Therefore, the Court predicts that the Supreme Court of Hawaii would not recognize a duty owed by Defendants to Plaintiffs.  In sum, the Court predicts that the Supreme Court of Hawaii would hold that Plaintiffs’ claims against Defendants fail for lack of a duty giving rise to liability under Hawaii Law.

Id. at 1209.

Idaho

In Stirling v. Novartis Pharmaceuticals Corp., 2019 WL 6456186 (Idaho Dist. Sept. 25, 2019), an Idaho trial court rejected innovator liability as to the same drug involved in the adverse T.H. case in California.  “It has long been the general law in Idaho that a company is not liable for the injuries caused by another company’s products.  This Court finds persuasive the reasoning of the Supreme Court of Iowa in Huck v. Wyeth,” rejecting innovator liability.  Id. at *5-6.  Along the same lines, in Doe v. Cutter Biological, 852 F. Supp. 909, 912-914 (D. Idaho 1994), the court rejected market share liability in the context of a blood product.  “Idaho would not allow recovery when it is not possible for plaintiff to prove which defendant caused his injury.”  Id. at 924.

Illinois

Illinois has long required product identification for all product liability matters, as evinced by the Illinois Supreme Court’s rejection of industry-wide liability under both market share liability and public nuisance rubrics.  See Young v. Bryco Arms, 821 N.E.2d 1078, 1087-91 (2004) (public nuisance); Smith v. Eli Lilly & Co., 560 N.E.2d 324, 337-39, 343-45 (Ill. 1990) “duty . . . is not so broad as to extend to
anyone who uses the type of drug manufactured by a defendant”) (market share liability); City of Chicago v. American Cyanamid Co., 823 N.E.2d 126, 134-35 (Ill. App. 2005) (market share liability in public nuisance); Lewis v. Lead Industries Ass’n. Inc., 793 N.E.2d 869, 874-76 (2003) (same) (all four cases finding no causation as a matter of law without product identification).  See also Leng v. Celotex Corp., 554 N.E.2d 468, 470-471 (Ill. App. 1990) (rejecting market share liability pre-Smith in asbestos case); York v. Lunkes, 545 N.E.2d 478, 480 (Ill. App. 1989) (rejecting market share liability pre-Smith in battery case); Poole v. Alpha Therapeutic Corp., 696 F. Supp. 351, 353 (N.D. Ill. 1988) (rejecting market share liability pre-Smith in blood products case); Coerper v. Dayton-Walther, 1986 WL 4111, at *1 (N.D. Ill. March 27, 1986) (rejecting market share liability pre-Smith in tire rim case).

Moreover, in Illinois there is no duty to warn about the risks of a competing product:

[Defendant] is under no duty to provide information on other products in the marketplace.  Such a duty would require drug manufacturers to rely upon the representations made by competitor drug companies.  This arrangement would only lead to greater liability on behalf of drug manufacturers that were required to vouch for the efficacy of a competitor’s product.

Pluto v. Searle Laboratories, 690 N.E.2d 619, 621 (Ill. App. 1997).  More recently, an Illinois appellate court recognized in dictum that an “overwhelming majority of courts have held that generic consumers may not sue the brand-name manufacturer.”  Guvenoz v. Target Corp., 30 N.E.3d 404, 409 n.1 (Ill. App. 2015).  See Id. at 416 (plaintiffs “cannot obtain relief from brand-name drug manufacturers whose products they did not ingest”).

Nonetheless, in the teeth of all this precedent, a couple of federal courts sitting in diversity improperly predicted an expansion of Illinois law to encompass innovator liability.  First, in Dolin v. SmithKlineBeecham Corp., 62 F. Supp.3d 705, 718 (N.D. Ill. 2014) (“Taken out of context, language in product identification cases like Smith and Lewis may well appear to support [defendant’s] argument.  In truth, the principles for which that line of cases stands are inapposite here”).  In one paragraph, after agreeing that strict liability is precluded, Dolin decided that negligence was different:

This reasoning does not hold where a name-brand manufacturer is found, not strictly liable, but liable for negligence.  An injury (or at least liability for an injury) that occurs due to negligence can be avoided simply by satisfying one’s duty of care.  Significantly, this is so without regard to whether the name-brand or generic version of the drug was consumed.  Where a company’s negligence in connection with a product causes injury, it may naturally be held liable for having caused that injury.  Where there is no fault, however, the public policy rationale that justifies burdening the seller with the cost of injury rather than the consumer does not merit placing liability on an entity whose benefit from the sale is so remote, and whose ability to account for the cost is so limited.

Id. at 723 (no citations omitted; Dolin did not cite anything).  As we’ve said many times before, federal courts sitting in diversity should not do this – they have no authority to invent new forms of state-law liability.  Years later, after much litigation expense, Dolin was reversed on other grounds.  See Dolin v. GlaxoSmithKline LLC901 F.3d 803 (7th Cir. 2018) (all claims preempted as a matter of law; refusing to offer Erie prediction of Illinois law on innovator liability).

Another Illinois decision, Garner v. Johnson & Johnson, 2017 WL 6945335, at *6-9 (C.D. Ill. Sept. 6, 2017), followed Dolin prior to its Seventh Circuit reversal.  Garner never mentioned Erie standards for predicting federal law, but did distinguish some of the extensive adverse Illinois product identification precedent as involving “when it is unclear which manufacturer, in a sea of manufacturers working in an industry, has created the faulty product.”  Id. at *7.  That distinction fails to address the gun cases, Guvenoz, or Pluto.

In a third aberrant decision, likewise ignoring the extensive Illinois precedent requiring product identification, an MDL judge in In re Fluoroquinolone Products Liability Litigation, 517 F. Supp.3d 806 (D. Minn. 2021), permitted innovator liability claims to survive, purportedly under Illinois law, based on theories negligent and fraudulent misrepresentation.  Id. at 823-25.

However, In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the Sixth Circuit was also called upon to construe Illinois law. The appellate court trashed Dolin thoroughly:

We disagree with the Dolin court’s holding.  While Illinois does not have a product liability statute, its case law indicates that Plaintiffs’ misrepresentation claims would be construed as product liability claims and fail for lack of product identification.  Under Illinois law, a plaintiff must identify the supplier of the product and establish a causal connection between the injury and the product.  [citing Smith and York].  But, even if Plaintiffs’ misrepresentation claims were not construed as product liability claims, applying the same factors, we predict that the Illinois Supreme Court would not recognize brand manufacturers owed generic consumers a duty that can give rise to liability.

First, the generic consumers’ injuries are not the foreseeable result of the brand manufacturers’ conduct, but of the laws over which the brand manufacturers have no control.  Congress made the public policy decisions to lower barriers of entry for generic drugs, as has the Illinois state legislature in enacting laws to require certain prescriptions be filled with available generics.  Using these laws as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Additionally, the Dolin court failed to properly account for the magnitude of brand manufacturers’ burden of guarding against the injury; and the consequences of placing that burden on the brand manufacturers.  Courts in the majority note the traditional reticence against imposing liability on a manufacturer for injuries caused by their competitor’s products.  Further, there are grave health policy consequences associated with recognizing brand manufacturer liability in these situations including higher priced brand name drugs and fewer innovative drugs.

As a federal court predicting state law . . ., given a choice between an interpretation of state law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.  The potential for wide-ranging ramifications on Illinoisans’ health and welfare should we recognize a duty in this case renders the narrower path the proper choice.

We predict that the Illinois Supreme Court would either construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification or that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Illinois law.

Darvocet, 756 F.3d at 944-45 (citations and quotation marks omitted).

Since Darvocet is backed up by extensive Illinois precedent, whereas the three blind mice in Dolin, Garner, and Fluoroquinolone are not, the MDL court in In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), followed Darvocet in predicting Illinois’ rejection of innovator liability:

The Court finds the reasoning of the Sixth Circuit in In re Darvocet to be sound and more persuasive than the reasoning of the Dolin and Garner courts.  . . .  [T]he Court finds the Sixth Circuit’s reasoning to be reliable data tending convincingly to show whether the Supreme Court of Illinois would find the theory of liability at issue to be viable.  The Court therefore predicts that the Supreme Court of Illinois would hold that Plaintiffs’ claims fail for lack of product identification and for lack of a duty giving rise to liability under Illinois law.

Id. at 1120-21 (citation and quotation marks omitted).

Indiana
Indiana’s statutory product liability law (Ind. Code §34-20-2-1) requires a plaintiff to “produce evidence to support a reasonable inference that the defendants’ products caused” the claimed injury.  Peerman v. Georgia-Pac. Corp., 35 F.3d 284, 287 (7th Cir. 1994) (applying Indiana law); accord Piltch v. Ford Motor Co., 11 F. Supp.3d 884, 888 (N.D. Ind. 2014) (the defendant’s product must have caused the plaintiff’s injuries); Thornburg v. Stryker Corp., 2006 WL 1843351, at *3–4 (S.D. Ind. June 29, 2006) (summary judgment where defendant neither sold nor manufactured product).
An Indiana trial court rejected Conte and innovator liability in Short v. Eli Lilly & Co., 2009 WL 9867531, at *4-9, slip op. (Ind. Super. Marion Co. March 25, 2009).  Indiana has a product liability statute, Ind. Code §34-20-1-1, et seq., that applies to all theories and limits liability to manufacturers.  Failure to identify the defendant’s product as being ingested by the plaintiff was fatal.  Id. at  *5-6.  Negligent misrepresentation was no away around the statute because the plaintiff never relied upon the defendant.  Id. at *6 (citing one of Bexis’ Bone Screw cases).  Conte was “inconsistent with Indiana law.”  Id. at *7-9.
Three federal courts applying Indiana law have relied on Short rejected innovator liability.  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the court recognized its role in diversity to tread softly on state law.  Id. at 945.  The court found no basis under Indiana law principles to hold a manufacturer liable for defects in a competing product:
[W]e take up the three factors in [used by the Indiana Supreme Court to evaluate duty claims].  First, the party’s relationship, we note that the generic consumers were injured by a product that the Brand Manufacturers did not manufacture, and, as already noted, courts are reluctant to impose “competitor liability.”  Second, the generic consumers’ injuries are not the foreseeable result of the Brand Manufacturers’ conduct, but of the laws over which the Brand Manufacturers have no control.  Using federal and Indiana state laws designed to increase the availability of generic drugs as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Further there are grave health policy consequences associated with recognizing brand manufacturer liability in these situations including higher priced brand name drugs and fewer innovative drugs. Taken together, we predict that the Indiana Supreme Court would decline to recognize that brand manufacturers owe generic consumers a duty of care that could give rise to liability.
Id. (citations and quotation marks omitted).
Similarly, the court in In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *10-11 (D. Mass. Aug. 4, 2017), relied largely on the “comprehensive” discussion of the issue in Darvocet to predict that Indiana would follow the majority rule and reject innovator liability.  Another prediction that Indiana law would reject innovator liability occurred in Stewart v. Sanofi Aventis U.S., LLC, 15 F. Supp.3d 1151 (N.D. Ala. 2014):
While the Indiana Supreme Court apparently has not yet addressed this specific issue, a plain reading of the IPLA [Indiana Product Liability Act] as well as several IPLA-related opinions from other Indiana courts persuade this court that a plaintiff . . . who allegedly was injured by a prescription drug cannot state a claim for failure to warn under the IPLA against the manufacturer of a brand name prescription drug . . . when the allegations show that the plaintiff ingested solely a generic form of the drug.
Id. at 1153.  Most recently, in In re Mirapex Products Liability Litigation, 2016 WL 4217758 (Mag. D. Minn. Jun. 16, 2016), adopted, 2016 WL 4203422 (D. Minn. Aug. 9, 2016), the court again rejected innovator liability under Indiana law.
[M]anufacturers of a brand-name product are generally not liable for injuries caused to users of a generic equivalent (i.e., “innovator liability”). . . .  The plain language of the [Indiana statute] does not support a theory of innovator liability in Indiana. The opening clause of §34-20-2-1 requires that the defendant must have sold, leased, or otherwise put into the stream of commerce the product that caused the user or consumer’s physical harm.  Defendants cannot be held liable under the [statute] because they did not sell, lease, or put the generic drug into commerce. . . .  Based on the overwhelming authority that has declined to recognize a theory of innovator liability, the Court agrees with the Stewart and In re Darvocet courts that the Indiana Supreme Court would decline to recognize a theory of innovator liability.  Plaintiffs cannot hold Defendants liable for generic drugs manufactured by different pharmaceutical companies.
Id. at *5.
Indiana has also rejected market share liability.  City of Gary v. Smith & Wesson, Corp., 801 N.E.2d 1222, 1245 (Ind. 2003).  It requires product identification in asbestos cases.  Asbestos Corp. Ltd. v. Akaiwa, 872 N.E.2d 1095, 1098 (Ind. App. 2007).
Iowa
In Iowa we have Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014).  In Huck the Iowa Supreme Court does a number on innovator liability.  Id. at 369-81.  Huck is firmly based in Iowa precedent, which mandates product identification.  See  Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 75-76 (Iowa 1986) (rejecting market share liability in DES cases); Doe v. Baxter Healthcare Corp., 380 F.3d 399, 410-11 (8th Cir. 2004) (evidence insufficient to exclude other products as possible causes) (applying Iowa law).  You can read more about Huck here.
Kansas

In Kansas, “[the plaintiff] still has the burden of establishing that the particular defendant has sold a product . . . and that it caused his injury.”  Mays v. Ciba–Geigy Corp., 661 P.2d 348, 357 (Kans. 1983).  Kansas has as product liability statute, K.S.A. §60-3301, et seq., which merges all common-law theories and requires that the defendant be in the chain of sale.  In Anselmo v. Sanofi-Aventis, Inc. USA, 2014 WL 8849464, slip op. (Kan. Dist. Oct. 13, 2014), the court rejected innovator liability, holding that Conte was an outlier that was incompatible with the Kansas statute.

Plaintiffs’ generic liability theory has been overwhelmingly rejected by over forty courts in more than twenty states. . . .  These courts have reached a common conclusion: a brand name manufacturer cannot be held liable for injuries allegedly caused by a generic manufacturer’s product.  Based upon the similarities between the KPLA and these majority states’ statutes, this Court feels compelled to reach a similar conclusion.

Anselmo, 2014 WL 8849464, at *2.  The court also rejected a “negligent design” variant for similar reasons.  Id. at *3.

Kentucky

The Sixth Circuit has twice held that Kentucky’s product liability statute precludes innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 945-46 (6th Cir. 2014); Smith v. Wyeth, Inc., 657 F.3d. 420, 423-24 (6th Cir. 2011) (applying Kentucky law).  In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *11 (D. Mass. Aug. 4, 2017), relied on these two Sixth Circuit decisions likewise to reject innovator liability under Kentucky law.
So have Missouri courts, which rampant litigation tourism has placed in the odd position of interpreting Kentucky law.  Franzman v. Wyeth, Inc., 451 S.W.3d 676, 689-92 (Mo. App. 2014) (applying Kentucky law); Nicely v. Wyeth, Inc., 451 S.W.3d 694, 697 (Mo. App. 2014) (applying Kentucky law); Neeley v. Wolters Kluwer Health, Inc., 2013 WL 3929059, at *20-24 (E.D. Mo. July 29, 2013) (applying Kentucky law).  Back in Kentucky, the same plaintiff struck out again.  Neeley v. Wolters Kluwer Health, Inc., 2015 WL 8967931, at *5 (E.D. Ky. Dec. 15, 2015) (Darvocet and Smith control; Kentucky law not “unsettled”).
That’s probably enough, but every Kentucky case to consider market share liability has also rejected that dodge of product identification. Collins v. Ansell Inc., 2003 WL 22769266, at *2 (W.D. Ky. Nov. 19, 2003) (rejecting market share liability in latex gloves case); Dawson v. Bristol Laboratories, 658 F. Supp. 1036, 1040-41 (W.D. Ky. 1987) (rejecting market share liability in antibiotic case).
Louisiana
Louisiana, with its statutory product liability regime (La. Rev. Stat. §9:2800.52), is another of these states with lots of precedent rejecting innovator liability, every which way but loose.  The Fifth Circuit has rejected the theory twice.  Johnson, 758 F.3d 605, 614-16; Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 183-84 (5th Cir. 2012). The Sixth Circuit followed Demahy in reaching an identical holding in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 917 F.3d 917, 946 (6th Cir. 2014).
A Louisiana appellate court agreed.  Stanley v. Wyeth, Inc., 991 So.2d 31, 34-35 (La. App. 2008) (“a name brand drug manufacturer owes no legal duty to the consumer of a generic equivalent of its drug”).
Given all this appellate authority, Louisiana federal district courts have for years been playing wac-a-mole with plaintiffs asserting innovator liability.  Tillman v. Woldenberg Village, Inc., 2013 WL 6198864, at *5 (E.D. La. Nov. 27, 2013); Morris v. Wyeth, Inc., 2011 WL 4975317, at *3-4 (W.D. La. Oct. 19, 2011); Cooper v. Wyeth, Inc., 2010 WL 4318816, at *2-3, (M.D. La. Oct. 26, 2010); Craig v. Pfizer, Inc., 2010 WL 2649545, at *2-4 (Mag. E.D. La. May 26, 2010), adopted, 2010 WL 2649544 (W.D. La. June 29, 2010); Morris v. Wyeth, Inc., 2009 WL 4064103, at *4-6 (W.D. La. Nov. 23, 2009); LeBlanc v. Wyeth, Inc., 2006 WL 2883030, at *5-6 (W.D. La. Oct. 5, 2006); Possa v. Eli Lilly & Co., 2006 WL 6393160, at *1 (M.D. La. May 10, 2006); Tarver v. Wyeth, Inc., 2005 WL 4052382, at *2 (Mag. W.D. La. June 7, 2005), adopted, 2006 WL 1517546, at *2-3 (W.D. La. Jan. 26, 2006).
Maine
No court applying Maine law has addressed innovator liability, but in Maine there is “no authority for . . . a duty to warn against another supplier’s dangerous product.”  Bouchard v. American Orthodontics, 661 A.2d 1143, 1145 (Me. 1995).  Such claims “failed to establish any causal link between defendant’s product and plaintiffs’ harm.”  Id.  See Doe v. Solvay Pharmaceuticals, Inc., 350 F. Supp.2d 257, 263 (D. Me. 2004) (“[a] manufacturer or seller owes a duty to exercise reasonable care to foreseeable users of its products”),  aff’d, 153 F. Appx. 1 (1st Cir. 2005).
In Kinnett v. Mass Gas & Electric Supply Co., 716 F. Supp. 695, 697 n.7 (D.N.H. 1989) (applying Maine law), the court suggested that Maine would reject market share liability.  Defendant-specific product identification has also been required in Maine asbestos cases.  E.g., Elderkin-Graham v. New England Insulation Co., Inc., 2011 WL 6424838, at 1 n.1 (E.D. Pa. Nov. 28, 2011) (applying Maine law); Rumery v. Garlock Sealing Technologies, Inc., 2009 WL 1747854 (Me. Super. April 24, 2009).
All this convinced the MDL court in In re Zantac Ranitidine Products Liability Litigation, “that Maine would adopt the majority view requiring product identification for products liability claims.”  510 F. Supp.3d 1175, 1211 (S.D. Fla. 2020).
[B]ased on the same caselaw the Court relied upon in holding that the Maine Supreme Judicial Court would require product identification, the Court also predicts that the Maine Supreme Judicial Court would not recognize a duty owed by brand-name manufacturers to generic consumers.  In sum, the Court predicts that the Maine Supreme Judicial Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Maine law.
Id. (citations omitted).
Maryland
Maryland law produced the first decision rejecting innovator liability in a generic drug case.  Foster v. American Home Products Corp., 29 F.3d 165 (4th Cir. 1994) (applying Maryland law).
Although actions for negligent misrepresentation arise in many contexts other than products liability, in this case the allegations of negligent misrepresentation are an effort to recover for injuries caused by a product without meeting the requirements the law imposes in products liability actions.  Maryland law requires a plaintiff seeking to recover for an injury by a product to demonstrate that the defendant manufactured the product at issue.
Id. at 168; accord id. at 171 (plaintiffs “offer no authority for their assertion that one manufacturer can be held liable for injuries stemming from another manufacturer’s product”).  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 946 (6th Cir. 2014), the Sixth Circuit was “guided” by Foster and reiterated that Maryland would reject innovator liability.  Accord Gross v. Pfizer, Inc., 2010 WL 4485774, at *2-3 (D. Md. Nov. 9, 2010) (following Foster; rejecting Conte), reconsideration denied, 2011 WL 4005266 (D. Md. Sept. 7, 2011); Camejo v. Angelini Pharma, Inc., 2021 WL 141338, at *3 (Del. Super. Jan. 15, 2021) (“Many courts, including those applying Maryland law, have rejected this theory of [innovator] liability”.).
As discussed in Foster, Maryland has rejected market share liability, even in the DES context.  Tidler v. Eli Lilly & Co., 851 F.2d 418, 424 (D.C. Cir. 1988) (applying Maryland law).
A fortiori Maryland has also retained its product identification requirement and refused to apply market share liability outside of DES.  Reiter v. AC&S, Inc., 947 A.2d 570, 573 (Md. App. 2008) (asbestos), aff’d, 8 A.3d 725 (Md. 2010); Lee v. Baxter Healthcare Corp., 721 F. Supp. 89, 93-94 (D. Md. 1989) (breast implant), aff’d without op., 898 F.2d 146 (4th Cir. 1990); Herlihy v. Ply-Gem Industries, Inc., 752 F. Supp. 1282, 1291 (D. Md. 1990) (fire retardants).  See Jensen v. American Motors Corp., 437 A.2d 242, 247 (Md. App.1981) (requiring “attribution of the defect to the seller” in all product liability cases “[r]egardless of the recovery theory”); Miller v. Bristol-Myers Squibb Co., 121 F. Supp.2d 831, 836-837 (D. Md. 2000) (granting summary judgment where “Plaintiff will not have testimonial, documentary, or real evidence available at trial to confirm the identity of the manufacturer”).
This abundant precedent supported the MDL court’s prediction in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that Maryland would not recognize innovator liability:
Maryland law would not support recognizing a duty owed by brand-name manufacturers to generic consumers. . . . [T]he Court finds the Fourth Circuit’s reasoning [in Foster] to be reliable data tending convincingly to show whether the Maryland Court of Appeals would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the Maryland Court of Appeals would hold that Plaintiffs’ claims fail for lack of product identification and for lack of a duty giving rise to liability under Maryland law.
Id. at 1212 (citations, quotation marks, and footnote omitted).
Massachusetts
Massachusetts recognized a limited form of innovator liability in Rafferty v. Merck & Co., 92 N.E.3d 1205 (Mass. 2018), as we discussed in detail here.  Recognizing that [“if consumers of generic drugs were allowed to recover damages for a brand-name manufacturer’s negligent failure to warn, it would be far more difficult for the manufacturer to shoulder these costs,” id. at 1216, Rafferty, created innovator liability for “reckless” conduct.  Id. at *1218.

Under this standard, a brand-name manufacturer that intentionally fails to update the label on its drug to warn of an unreasonable risk of death or grave bodily injury, where the manufacturer knows of this risk or knows of facts that would disclose this risk to any reasonable person, will be held responsible for the resulting harm.

Id. at 1220.  By making “intentional[] fail[ure] to update” part of the cause of action, Rafferty, at least seems to rule out liability after a New Drug Application (and thus an ability to update) has been sold or withdrawn.  No innovator liability can lie in strict liability, negligence, on under the Massachusetts consumer protection statute.  Id. at 1212, 1222-23.

Other courts applying Massachusetts law have considered, and rejected, innovator liability under theories other than the intentional tort basis allowed in RaffertySee In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *12-13 (D. Mass. Aug. 4, 2017); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *3 (E.D. Ky. Oct. 10, 2012), aff’d on other grounds, 917 F.3d 917 (6th Cir. 2014).
Michigan
There hasn’t been much prescription drug litigation in Michigan since the state enacted its FDA compliance presumption.  Market share liability under the state’s peculiar Abel v. Eli Lilly & Co., 343 N.W.2d 164 (Mich 1984), DES theory has not extended beyond that drug, since Abel also held generally that “the threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer.”  Id. at 170.
In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), the Sixth Circuit concluded that Michigan law was incompatible with innovator liability:
[W]e take up the three [duty] factors in [Michigan law].  First, regarding the party’s relationship, the generic consumers were injured by a product that the Brand Manufacturers did not manufacture, and as already noted, courts are reluctant to impose competitor liability.  Second, the generic consumers’ injuries are not the foreseeable result of the brand manufacturers’ conduct, but of the laws over which the brand manufacturers have no control. Using federal and Michigan state laws designed to increase the availability of generic drugs as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Finally, there are grave health policy consequences associated with recognizing brand manufacturer liability in these situations, including higher priced brand name drugs and fewer innovative drugs.  Taken together, we predict that the Michigan Supreme Court would decline to recognize that brand manufacturers owe generic consumers a duty of care that could give rise to liability.
Id. at 946-47 (citations and quotation marks omitted).
Product identification has been maintained in both breast implants, In re Dow Corning Corp., 2010 WL 750200, at *2-3 (E.D. Mich. March 3, 2010) (“threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer”); In re Dow Corning Corp., 250 B.R. 298, 362-63 (Bankr. E.D. Mich. 2000), and in asbestos.  Marshall v. Celotex Corp., 651 F. Supp. 389, 392-94 (E.D. Mich. 1987).  Further, in Michigan there is no “duty to warn of the hazards of using products manufactured by someone else.”  Brown v. Drake-Willock International, Ltd., 530 N.W.2d 510, 515 (Mich. App. 1995).
Darvocet’s analysis persuaded the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1211 (S.D. Fla. 2020), that Michigan would not adopt innovator liability:
[T]he Court finds the Sixth Circuit’s reasoning to be reliable data tending convincingly to show whether the Michigan Supreme Court would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the Michigan Supreme Court would hold that Plaintiffs’ claims fail for lack of product identification and for lack of a duty giving rise to liability under Michigan law.
Id. at 1213 (citations and quotation marks omitted).
Minnesota
An appellate court in Minnesota rejected innovator liability in Flynn v. American Home Products Corp., 627 N.W.2d 342 (Minn. App. 2001).
Appellant argues that respondents intended all consumers rely on their representations to the FDA and owed all consumers a duty to disclose material facts, but that contention conflicts with Minnesota common law, which requires a stronger relationship and a direct communication.  Appellant did not purchase or use respondents’ product, and therefore, there was no direct relationship between them, let alone a fiduciary relationship that gave rise to a duty.
Id. at 350.
Applying Minnesota law, the Eighth Circuit rejected innovator liability in Mensing v. Wyeth, Inc., 588 F.3d 603, 612-14 (8th Cir. 2009) (relying on Flynn and Foster), rev’d in part on other grounds, 131 S. Ct. 2567 (2011), reaffirmed in pertinent part and vacated in part on other grounds, 658 F.3d 867 (8th Cir. 2011).
In Zandi v. Wyeth, 2009 WL 2151141, at *3-4 (Minn. App. July 21, 2009) (unpublished), the court affirmed summary judgment for an innovator drug manufacturer and one generic company where the plaintiff failed to introduce evidence that she ever ingested those defendant’s drugs, as opposed to a different generic brand.
Minnesota has rejected market share liability as a way around product identification.  Bixler v. Avondale Mills, 405 N.W.2d 428, 430 (Minn. App. 1987) (cotton cloth); Mason v. Spiegel, Inc., 610 F. Supp. 401, 406 & n.7 (D. Minn. 1985) (same).
This favorable precedent convinced the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that innovator liability was incompatible with Minnesota law:
the Court finds the reasoning of the Eighth Circuit, as well as that of the Minnesota Court of Appeals in Flynn, to be reliable data tending convincingly to show whether the Minnesota Supreme Court would find the theory of liability at issue to be viable. The Court therefore predicts that the Minnesota Supreme Court would hold that Plaintiffs’ claims fail for lack of product identification and for lack of a duty giving rise to liability under Minnesota law.
Id. at 1214 (citations and quotation marks omitted).
Mississippi
Mississippi is another state with an abundance of law concerning innovator liability.  In Lashley v. Pfizer, Inc., 750 F.3d 470 (5th Cir. 2014), the Fifth Circuit affirmed that Mississippi rejects this theory:
The Mississippi Products Liability Act (“MPLA”) applies “in any action for damages caused by a product” and requires a plaintiff to prove that it was the defendant’s product that caused the injury.  [Plaintiff] argues that the . . . brand defendants are not “manufacturers or sellers” of the product, relying on a Mississippi case holding that “the MPLA does not preclude claims against defendants who are neither manufacturers nor sellers” of a defective product.  Lawson v. Honeywell International, Inc., 75 So.3d 1024, 1030 (Miss. 2011).  This argument fails because brand defendants are, indeed, manufacturers − and were they not, there would be no relationship on which to presume liability (since they did not design the drug).  In any event, because [plaintiff] did not ingest the . . . brand defendants’ products, he has not established a duty.
Id. at 476-77 (other citations omitted).  The district court opinion that was affirmed, Lashley v. Pfizer, Inc., 877 F. Supp.2d 466, 471-76, 480 (S.D. Miss. 2012), contained a lengthy discussion of why innovator liability was incompatible with Mississippi law.  Other Mississippi trial courts agree.  Truddle v. Wyeth LLC, 2015 WL 160696, at *4 (N.D. Miss. Jan. 12, 2015); Gardley-Starks v. Pfizer, Inc., 917 F. Supp.2d 597, 601-04 (N.D. Miss. 2013), reconsideration denied, 2013 WL 12379417 (N.D. Miss. May 23, 2013); Washington v. Medicis Pharmaceuticals Corp., 2013 WL 496063, at *3-4 (S.D. Miss. Feb. 7, 2013).  In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 947-48 (6th Cir. 2014), the Sixth Circuit followed Lashley in holding that Mississippi rejects innovator liability.
Chatman v. Pfizer, Inc., 960 F. Supp.2d 641 (S.D. Miss. 2013), allowed innovator liability based on a misrepresentation theory (recognizing that product liability theories were invalid).  However, Chatman relied (id. at 652-55) on the same Lawson v. Honeywell rationale specifically rejected by the Fifth Circuit in Lashley. The Chatman court recognized that Lashley invalidated its misrepresentation theory in Chatman v. Pfizer, Inc., 2015 WL 160696, at *4 (S.D. Miss. Sept. 11, 2014), and vacated that part of its prior decision, entering summary judgment for the innovator defendant on all claims.
In Monsanto Co. v. Hall, 912 So.2d 134, 136-37 (Miss. 2005), and Gorman–Rupp Co. v. Hall, 908 So.2d 749, 757 (Miss. 2005), the court enforced the product identification requirement in an asbestos cases.
Lashley and the cases it cited sufficed to convince the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that innovator liability and Mississippi law did not mix:
[T]he Court finds the Fifth Circuit’s reasoning to be reliable data tending convincingly to show whether the Supreme Court of Mississippi would find the theory of liability at issue to be viable.  The Court therefore predicts that the Supreme Court of Mississippi would hold that Plaintiffs’ claims fail for lack of product identification.
Id. at 1214 (citations, quotation marks, and footnote omitted).
Missouri
In Missouri, a plaintiff must “establish that the particular defendant actually caused the problem.  Absent product identification evidence, [plaintiff] simply cannot prove actual causation.”  City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 116 (Mo. 2007).  “The common thread among Missouri products liability cases is that an entity must have plac[ed] a defective product in the stream of commerce.”  Ford v. GACS, Inc., 265 F.3d 670, 680 (8th Cir. 2001) (citation and quotation marks omitted).
The only Missouri precedent specifically on innovator liability is, In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3610237, at *2 & n.7 (E.D. Ky. Aug. 21, 2012) (“There is no theory of product liability under which a defendant can be held liable for an injury caused by a product it did not sell, manufacture, or otherwise supply to the plaintiff.”), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014) (no Missouri plaintiff appealed).  This Darvocet opinion cited, inter aliaSt. Louis v. Benjamin Moore, 226 S.W.3d at 112–15, in which the Missouri Supreme Court rejected market share liability.  Indeed, Missouri rejected market share liability as a way around product identification, even in the DES context.  Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 246-47 (Mo. 1984) (discourages safety innovations since defendants liable for competitors’ conduct).  In all “product liability claims,” a Missouri statute requires that the defendant have “transferred” the product that injured the plaintiff.  VAMS §537.760(1).
All this precedent persuaded the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that no basis in Missouri law existed for innovator liability:
[T]he Court predicts that the Supreme Court of Missouri would follow the majority view and hold that Defendants do not owe a duty to Plaintiffs. First, generic consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct. . . .  Further, the Court finds that the burden to Defendants and the consequences to the community of imposing a duty of care are great. . . .  In sum, the Court predicts that the Supreme Court of Missouri would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Missouri law.
Id. at 1215-16 (citations and quotation marks omitted).
Montana
The general causation rule for product liability actions in Montana requires that a “defect existed when the product left the hands of the particular defendant.”  Schelske v. Creative Nail Design, Inc., 933 P.2d 799, 803 (Mont. 1997) (quoting Brothers v. General Motors Corp., 658 P.2d 1108, 1109 (1983)).  This law, and the factors Montana courts use to evaluate duty, persuaded the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that “the Montana Supreme Court would follow the majority view and hold that Defendants do not owe a duty to Plaintiffs.”  Id. at 1217.  It therefore rejected innovator liability:
First, generic consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct.  Rather, the injuries are the foreseeable result of the laws over which the brand manufacturers have no control. . . .   Further, the Court finds that the burden to Defendants and the consequences to the community of imposing a duty of care are great. . . .  In sum, the Court predicts that the Supreme Court of Montana Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Montana law.
Id. at 1216-17 (citations and quotation marks omitted).
Nebraska

“[U]nder Nebraska law, a plaintiff must show, inter alia, the defendant’s product caused injury to a plaintiff.”  Barrett v. Rhodia, Inc., 2009 WL 2477560, at *8 (D. Neb. Aug. 11, 2009), aff’d, 606 F.3d 975 (8th Cir. 2010).  See Neb. Rev. Stat. § 25-21,180 (2020) (liability only of “the manufacturer of the product or part thereof claimed to be defective”).

In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 948-49 (6th Cir. 2014), the Sixth Circuit predicted that Nebraska would reject innovator liability:

We predict that the Nebraska Supreme Court would either construe Plaintiffs’ misrepresentation claims as product liability claims under the Nebraska statute defining product liability actions that fail for lack of product identification, or that the Brand Manufacturers did not owe the Plaintiffs a duty that could give rise to liability under Nebraska law.

Id. at *28 (noting that Nebraska, like a number of other states, has a comprehensive product liability statute).  The Tenth Circuit has also indicated that Nebraska would adhere to product identification and reject market share liability.  Menne v. Celotex Corp., 861 F.2d 1453, 1468 n.22 (10th Cir. 1988) (applying Nebraska law).

The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), followed Darvocet in predicting that Nebraska would not permit innovator liability.

[T]he Court finds the Sixth Circuit’s reasoning to be reliable data tending convincingly to show whether the Nebraska Supreme Court would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the Nebraska Supreme Court would hold that Plaintiffs’ claims fail for lack of product identification and duty giving rise to liability under Nebraska Law.

Id. at 1218 (citations and quotation marks omitted).

Nevada
In Nevada, “the injured party must prove that exposure to the products made or sold by that particular defendant was a substantial factor in causing the injury.”  Holcomb v. Georgia Pac., LLC, 289 P.3d 188, 197 (Nev. 2012) (citations omitted).  In Moretti v. Wyeth, Inc., 579 F. Appx. 563 (9th Cir. 2009) (affirming Moretti v. Wyeth, Inc., 2009 WL 749532, at *3-4 (D. Nev. March 20, 2009)), the court held:
The district court properly concluded that Nevada law does not recognize [plaintiff’s] claims.  Under Nevada law, a misrepresentation by omission is actionable only if the defendant was under a duty to disclose the relevant information.  The duty to disclose requires, at a minimum, some form of relationship between the parties.  [The Nevada Supreme Court] explicitly rejected concealment claims against [a defendant], stating that: “[it] had no duty to disclose to the [plaintiffs] any superior knowledge it may have had regarding the safety of [its] products, however, because it was not directly involved in the transaction from which this lawsuit arose, or any other transaction with the [plaintiffs].
Id. at 564 (following Dow Chemical Co. v. Mahlum, 970 P.2d 98 (Nev. 1998)).  Accord Baymiller v. Ranbaxy Pharmaceuticals Inc., 894 F. Supp.2d 1302, 1307-11 (D. Nev. 2012) (also rejecting innovator liability and Conte).
The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), followed Moretti and Baymiller in determining that Nevada would not adopt innovator liability.
[T]he Court finds the District Court of Nevada’s reasoning to be reliable data tending convincingly to show whether the Supreme Court of Nevada would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the Supreme Court of Nevada would hold that Plaintiffs’ claims fail for lack of product identification and for lack of a duty giving rise to liability under Nevada Law.
Id. at 1218-19 (citations and quotation marks omitted).
New Hampshire
In Bartlett v. Mutual Pharmaceutical Co., 659 F. Supp.2d 279 (D.N.H. Sept. 30, 2009), the court, in the course of rejecting a (pre-Mensing) preemption argument, noted:
The vast majority of courts have rejected the notion that the manufacturer of the brand-name drug may be liable for defects in its generic equivalent on a theory of “innovator liability.”
Id. at 309 n.40.  Bartlett did not decide the issue under New Hampshire law.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 3842045, at *7 (E.D. Ky. Sept. 5, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014), the court held that New Hampshire would reject innovator liability.  Darvocet cited University System of New Hampshire v. U.S. Gypsum Co., 756 F. Supp. 640, 653-56 (D.N.H. 1991), rejecting market share liability in an asbestos case, and MacCleery v. T.S.S. Retail Corp., 882 F. Supp. 13, 15-16 (D.N.H. 1994), a corporate succession dispute holding that “imposition of liability depends upon the plaintiff proving that the defendant manufacturer made the product that caused the plaintiff’s injury.”
Based on this precedent the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), concluded that “New Hampshire law requires product identification,” id. at 1219, and therefore was incompatible with innovator liability:
Defendants and Plaintiffs have no relationship, let alone the required special relationship, and the Court is unaware of any other special circumstances” in this case that would warrant imposing [innovator] liability upon Defendants. Therefore, the Court predicts that the New Hampshire Supreme Court would follow the majority view and hold that Defendants do not owe a duty to Plaintiffs.
Id. (quotation marks omitted).
New Jersey
New Jersey has a product liability statute that subsumes all other claims and requires product identification.  N.J.S.A. §§2A:58C-l, et seq.  Four New Jersey trial court opinions have rejected innovator liability in generic drug cases, most recently Condouris v. Wyeth, 2012 WL 2401776 (N.J. Super. Law Div. June 26, 2012):
Having concluded that the Plaintiffs’ claims are governed by the [Product Liability Act], the Court finds that Plaintiffs’ action must fail because they did not ingest a product made or sold by the Brand Defendants.  In New Jersey, it is well-settled that in products-liability litigation, [a plaintiff] must demonstrate that his or her injuries were caused by defendant’s product.
Id. (citation and quotation marks omitted).  Condouris followed the prior three cases, Rossi v. Hoffmann-LaRoche, 2007 WL 7632318 (N.J. Super. Law Div. Jan. 3, 2007); Westerlund v. Wyeth, Inc., 2008 WL 5592753, at *3 (N.J. Super. Law Div. Oct. 20, 2008); Sloan v. Wyeth, 2004 WL 5767103 (N.J. Super Law. Div. Oct. 13, 2004).
Federal courts agree.  Three different Darvocet opinions have rejected innovator liability under New Jersey law.  In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 856 F. Supp.2d 904, 911 (E.D. Ky. 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir.  2014); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 767595, at *2 n.5 (E.D. Ky. March 7, 2012), aff’d on other grounds, 756 F.3d 917 (6th Cir. 2014); In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 4831632, at *1-3 (E.D. Ky. Oct. 10, 2012), aff’d and rev’d on other grounds, 917 F.3d 756 (6th Cir. 2014).  None of the New Jersey plaintiffs appealed, so the Sixth Circuit did not address New Jersey law.  Also, in Adamson v. Ortho-McNeil Pharmaceutical, Inc., 463 F. Supp.2d 496, 505 (D.N.J. Nov. 16, 2006), reconsideration denied, 2007 WL 604790 (D.N.J. Feb. 20, 2007), the court rejected innovator liability under New Jersey law when advanced as a claim for unjust enrichment.  Finally, In re Zofran (Ondansetron) Products Liability Litigation, 2018 WL 2317525, at *5-6 (D. Mass. May 21, 2018), relied on this precedent also to reject innovator liability under New Jersey law.  “[T]he five courts to have addressed the issue have concluded that under New Jersey law a plaintiff may not hold a brand-name manufacturer liable for injuries allegedly caused by ingestion of a generic version of a drug” and “there is no New Jersey authority to the contrary.”  Id. at *6.
Product identification has repeatedly been required in cases rejecting market share liability, both with respect to DES and other products, including prescription medical products.  Shackil v. Lederle Laboratories, 561 A.2d 511, 517, 526 (N.J. 1989); (no market share liability in vaccine cases); Namm v. Charles E. Frosst & Co., 427 A.2d 1121, 1125 (N.J. Super. App. Div. 1981) (same, DES); Lyons v. Premo Pharmaceutical Labs, Inc., 406 A.2d 185, 190 (N.J. Super. App. Div. 1979) (same, DES); Johnston v. Aventis, 2007 WL 954017 (N.J. Super. Law Div. March 9, 2007) (same, vaccine); Pipon v. Burroughs-Wellcome Co., 532 F. Supp. 637, 639 (D.N.J. 1982) (same, asbestos), aff’d without op., 696 F.2d 984 (3d Cir. 1982) (applying New Jersey law); Gianvito v. Premo Pharmaceutical Laboratories Inc., 940 N.Y.S.2d 272, 273-74 (N.Y. App. Div. March 20, 2012) (same, DES) (applying New Jersey law).
New Mexico
An essential element of New Mexico product liability is that “the product was defective when it left the hands of the defendant.”   Tenney v. Seven-Up Co., 159, 584 P.2d 205, 206 (N.M. App. 1978).  The general New Mexico causation standard is that “[a] defendant can only be liable for damages that the particular defendant caused.”  Westbrook v. Lea General Hospital, 510 P.2d 515, 518 (N.M. App. 1973).  In asbestos cases, New Mexico law requires “product identification” so “that defendants’ products actually caused the [injuries].”  Huber v. Armstrong World Industries, Inc., 930 F. Supp. 1463, 1465 (D.N.M. 1996).  Thus, “New Mexico products liability law requires product identification.”  Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1220 (S.D. Fla. 2020).  Zantac therefore further concluded that New Mexico would reject innovator liability:
The Court predicts that the New Mexico Supreme Court would follow the majority view and determine that Defendants do not owe Plaintiffs a duty of care. . . .  [T]he brand-name manufacturers’ conduct did not create the risk of harm that caused plaintiffs’ injuries, rather the Congressional and . . . state laws designed to increase the availability of generic drugs did. . . .  The potential health and welfare ramifications of recognizing such a duty make the case “exceptional” and warrant denying liability.  In sum, the Court predicts that the New Mexico Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under New Mexico law.
Id. (citation to Darvocet omitted).
New York
“Six federal courts and two New York state trial courts have held that Plaintiffs’ theory of liability is inconsistent with New York law because a generic consumer’s claims against brand-name manufacturers fail for lack of product identification or a duty triggering liability.”  Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1220-21 (S.D. Fla. 2020).  In Coleson v. Janssen Pharmaceutical, Inc., 251 F. Supp.3d 716 (S.D.N.Y. 2017), the court rejected the theory even in the wake of New York’s recent asbestos bare metal decision:
Defendants had no oversight in the manufacturing of the generic drugs.  They earned no profit from the sale of the generic drugs.  Given the length of time generic drugs can sell following a patent’s expiration, to find a new duty would unforeseeably expand the cost of liability on brand name drug manufacturers.  With this judicial landscape, it is concluded that the New York authorities are consistent with the majority of other courts around the country in rejecting liability for a company that itself did not manufacture, sell, or distribute generic versions of its name-brand drug.
Id. at 721-22.  Another New York case doing so is Montero v. Teva Pharmaceuticals United States, 2019 WL 6907467 (S.D.N.Y. Dec. 4, 2019):
Plaintiff attempts to proceed on a theory of “innovator liability,” arguing that the manufacturer of a name-brand drug can be liable for injuries caused by the generic version, particularly where the generic drug’s manufacturer uses the warning label from the brand-name product. Courts applying New York law have consistently rejected this theory.  Plaintiff has not sufficiently alleged that [the branded manufacturer] owed her a duty or that [its drug] was the cause of her injuries.
Id. at *1.  Here’s another:
Although the New York Court of Appeals has not addressed whether a name-brand drug manufacturer may be held liable for injuries resulting from a generic drug manufacturer’s equivalent products, the majority of courts to consider the issue, including at least two courts in this Circuit, have answered no to the question.  I agree.  Because, by Plaintiff’s own admission, Defendant . . .  did not manufacture the drug that Plaintiff alleges he took,  Plaintiff’s product liability claims against Defendant . . . are dismissed.
Rosser v. Sanofi-Aventis, 2018 WL 4080351, at *4 (S.D.N.Y. Aug. 26, 2018)
In In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. June 27, 2014), the Sixth Circuit held that innovator liability did not exist under New York law:
[A]ny duty a brand defendant has in connection with its own products and labels does not extend to products and labeling over which it has no control, even if those products and labels mirror its own, because it has done nothing toward putting them in the hands of consumers.  We predict that the New York Court of Appeals would construe Plaintiffs’ misrepresentation claims as a product liability claim that fails for lack of product identification, or alternatively that the Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability.
Id. at 949 (citations and quotation marks omitted).  Darvocet relied upon prior New York precedent rejecting innovator liability.  Id. (citing Goldych v. Eli Lilly & Co., 2006 WL 2038436, at *3-8 (N.D.N.Y. July 19, 2006); Weese v. Pfizer, Inc., 2013 WL 5691993, at *2 (N.Y. Sup. Oct. 8, 2013).  These decisions were followed in In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *13-14 (D. Mass. Aug. 4, 2017), also predicting that New York would reject innovator liability, and in Preston v. Janssen Pharmaceuticals, Inc., 2018 WL 5017045, at *3 (N.Y. Sup. Oct. 12, 2018) (“named-brand drug manufacturers . . . cannot be held liable to the user of the generic form of their drug, since the manufacturer of the brand named drug owes no duty to the user of the drug’s generic form”).
Zantac understandably followed this extensive precedent:
[T]he Court finds the reasoning in Goldych and Weese to be reliable data tending convincingly to show whether the New York Court of Appeals would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the New York Court of Appeals would hold that Plaintiffs’ claims fail for lack of product identification or duty giving rise to liability under New York Law.
510 F. Supp.3d at 1221 (citation, quotation marks, and footnote omitted).
In addition, New York has allowed market share liability for DES, and only DES, distinguishing both the characteristics of the product and the circumstances of DES-specific legislative action.  With respect to all other products, medical or otherwise, the product identification requirement remains.  See Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 1067-68 (N.Y. 2001) (no market share liability for handguns); Brenner v. American Cyanamid Co., 699 N.Y.S.2d 848, 851-52 (N.Y. App. Div. 1999) (same, lead paint); In re New York State Silicone Breast Implant Litigation, 631 N.Y.S.2d 491, 494 (N.Y. Sup. 1995) (same, breast implants), aff’d mem., 650 N.Y.S.2d 558 (N.Y. App. Div. 1996); Catherwood v. American Sterilizer Co., 532 N.Y.S.2d 216, 220 (N.Y. Sup. 1988) (same, toxic chemical); 210 E. 86th St. Corp. v. Combustion Engineering, 821 F. Supp. 125, 145-46 (S.D.N.Y. 1993) (same, asbestos).
Nor does New York impose a duty to warn about other manufacturer’s similar products:
[W]e decline to hold that one manufacturer has a duty to warn about another manufacturer’s product when the first manufacturer . . . had no control over the production of the subject [product], had no role in placing that [product] in the stream of commerce, and derived no benefit from its sale.
Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 225-26 (N.Y. 1992).
North Carolina
North Carolina federal district courts, applying the state’s product liability statute, N.C. Gen. Stat. §§99B–1, et seq., have rejected innovator liability three times.  Perdue v. Wyeth Pharmaceuticals, Inc., 209 F. Supp.3d 847, 853 (E.D.N.C. 2016) (“Under North Carolina law, a defendant may not be held liable for injuries allegedly caused by the use of another’s product.”); Couick v. Wyeth, Inc., 691 F. Supp.2d 643, 645 (W.D.N.C. 2010) (“no North Carolina authority allow[s] a name-brand drug manufacturer to be held liable for injuries caused by a generic competitor’s drug”); Stoddard v. Wyeth, Inc., 630 F. Supp.2d 631, 633-34 (E.D.N.C. 2009) (“under North Carolina law a manufacturer of a brand name pharmaceutical may not be held liable for injuries stemming from the use of another manufacturer’s generic bioequivalent”).
This authority convinced the Sixth Circuit in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. 2014), that North Carolina would not embrace the theory:
Guided by these decisions, we predict that the North Carolina Supreme Court would construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification, or alternatively that the Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability.
Id. at 950.  The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), held likewise:
[T]he Court finds the district court’s reasoning in Couick to be reliable data tending convincingly to show whether the North Carolina Supreme Court would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the North Carolina Supreme Court would hold that Plaintiffs’ claims fail for lack of product identification or, alternatively, for lack of a duty giving rise to liability under North Carolina Law.
Id. at 1222 (citation, quotation marks, and footnote omitted).  See also Bennett v. Hoffmann-LaRoche Inc., 2013 WL 1191899, at *3-6 (E.D.N.C. March 22, 2013) (rejecting innovator liability; finding sufficient product identification evidence to survive summary judgment); John & Jane Doe 2 v. Ortho-Clinical Diagnostics, Inc., 335 F. Supp.2d 614, 628-29 (M.D.N.C. 2004) (defendant’s “duty to Plaintiffs would not extend to warning Plaintiffs or other manufacturers who copied [defendant’s contrast agent]”).
North Carolina also rejects market share liability.  Griffin v. Tenneco Resins, Inc., 648 F. Supp. 964, 966 (W.D.N.C. 1986) (applying North Carolina law) (“the defendant manufacturer must be identified with the specific instrumentality allegedly causing the injury”).
North Dakota
In North Dakota, “a plaintiff must prove that there was a defect in the defendant’s product.”  Reagan v. Hi-Speed Checkweigher Co., 30 F.3d 947, 948 (8th Cir. 1994).  North Dakota has not allowed market share liability.  Black v. Abex Corp., 603 N.W.2d 182, 189 (N.D. 1999) (asbestos).  Other asbestos cases under North Dakota law also impose a product identification requirement.  E.g., Various Plaintiffs v. Various Defendants, 847 F. Supp. 2d 722, 732 (E.D. Pa. 2012) (applying North Dakota law).  Thus, “North Dakota products liability law requires product identification.”  Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1222 (S.D. Fla. 2020),
In Zantac, the court predicted that North Dakota would reject innovator liability:
[T]he North Dakota Supreme Court would not recognize a duty owed by Defendants to Plaintiffs. There is no relationship between the parties. Additionally, generic consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct. . . .  To impose a duty under North Dakota law would be to stretch the concept of foreseeability too far. In sum, the Court predicts that the North Dakota Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under North Dakota law.
Id. at 1223 (citation and quotation marks omitted).
Ohio
Product identification is incorporated into the Ohio Product Liability Act (“OPLA”).  A plaintiff must prove that the defendant “designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of harm for which the claimant seeks to recover.”  Ohio Rev. Code §2307.73(A)(3).  The statute expressly bans innovator (“the type of product”), as well as market share liability:
Proof that a manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual defective product. . . .  A manufacturer may not be held liable in a product liability action based on market share, enterprise, or industrywide liability.
Ohio Rev. Code Ann. §2307.73(C).  Cf. Sutowski v. Eli Lilly & Co., 696 N.E.2d 187, 192-93 (Ohio 1998) (rejecting market share liability in DES cases); Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1431-32 (6th Cir. 1997) (same) (applying Ohio law).
Ohio courts have twice rejected innovator liability under OPLA.  Hendricks v. Pharmacia Corp., 2014 WL 2515478, at *5-6 (Mag. S.D. Ohio June 4, 2014) (§2307.73(C) “readily dispose[s]” of innovator liability), adopted, 2014 WL 4961550 (S.D. Ohio Oct. 2, 2014); Hogue v. Pfizer, Inc., 893 F. Supp.2d 914, 918-19 (S.D. Ohio 2012) (“OPLA precludes [plaintiff’s] argument that the Brand Manufacturers are subject to liability as inventors or primary manufacturers of [the drug] as neither theory is an exception to the rule that a plaintiff must prove [his or] her injuries were caused by the actual product the defendant manufactured”).  This precedent “guided” the Sixth Circuit’s conclusion that Ohio would not permit innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 950 (6th Cir. 2014) (“we predict that the Ohio Supreme Court would construe Plaintiffs’ misrepresentation claims as product liability claims that fail for lack of product identification”).
Oklahoma
The Tenth Circuit held that innovator liability was incompatible with Oklahoma law in Schrock v. Wyeth, Inc., 727 F.3d 1273 (10th Cir. 2013), rejecting:  strict liability, negligence, fraud/misrepresentation, a “duty to speak,” and warranty.  Id. at 1281-84.  Plaintiffs “fail[ed] to cite Oklahoma case law suggesting that these general tort principles impose liability with respect to a defendant that did not sell, distribute, manufacture, or otherwise have contact with the allegedly harmful product.”  Id. at 1284 (affirming 601 F. Supp.2d 1262, 1266 (W.D. Okla. 2009)).
In reliance on these precedents, the Sixth Circuit agreed that Oklahoma law did not recognize innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 950-51 (6th Cir. 2014) (“Guided by our sister circuit’s analysis of Oklahoma tort law, we predict that the Oklahoma Supreme Court would find that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Oklahoma law”).  A similar result occurred in In re Zofran (Ondansetron) Products Liability Litigation, 2017 WL 3448548, at *14 (D. Mass. Aug. 4, 2017), rejecting innovator liability under any of numerous theories.  See In re Zofran (Ondansetron) Products Liability Litigation, 2018 WL 2317525, at *4 (D. Mass. May 21, 2018) (second ruling under Oklahoma law).  Likewise, a Massachusetts state trial court, called upon to opine on Oklahoma law, followed Schrock and rejected innovator liability.  Cardinal v. Elsevier Inc., 2014 WL 10937406, at *2-3 (Mass. Super. Aug. 11, 2014).
These cases convinced the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), to reject innovator liability under Oklahoma law.
[T]he Court finds the Tenth Circuit’s reasoning to be reliable data tending convincingly to show whether the Supreme Court of Oklahoma would find the theory of liability at issue to be viable. In sum, the Court therefore predicts that the Supreme Court of Oklahoma would hold that Plaintiffs’ claims fail for lack of a duty.
Id. at 1224 (citation and quotation marks omitted).
In the course of rejecting public nuisance as a product liability cause of action, the Oklahoma Supreme Court reiterated, “A manufacturer traditionally does not have a duty to people who use other manufacturers’ products.”  Oklahoma v. Johnson & Johnson, ___ P.3d ____, 2021 WL 5191372, at *9 (Okla. Nov. 9, 2021) (footnote omitted).  If all that were not enough, Oklahoma has also rejected market share liability, both in the DES context and elsewhere.  Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla. 1987) (asbestos); Wood v. Eli Lilly & Co., 38 F.3d 510, 513-514 (10th Cir. 1994) (applying Oklahoma law) (DES).
Oregon
The Oregon Supreme Court determined in Senn v. Merrell-Dow Pharmaceuticals, Inc., 751 P.2d 215, 233 (Or. 1988), that any tort theory that eliminated a plaintiff’s obligation to prove product identification “requires a profound change in fundamental tort principles of causation,” and “cannot [be] . . . consistent with common law principles of tort liability.”  Id. at 223 (rejecting alternative liability).
Three Oregon trial courts have rejected innovator liability.  In Phelps v. Wyeth, Inc., 857 F. Supp.2d 1114 (D. Or. 2012), the court, following the Mensing generic preemption decision, reaffirmed this position:
Under Oregon’s product liability law, the name-brand defendants cannot be found liable for plaintiffs’ injuries because plaintiffs cannot show that their injuries resulted from the use of the name-brand manufacturers’ product . . . .  I decline to stretch the duty of care for name-brand defendants to cover injuries caused by generic manufacturers’ products, given that their argument directly contradicts Oregon law.  [discussion rejecting Conte and Kellog omitted]  Oregon product liability law is controlling here, and it does not allow for name-brand manufacturer liability unless [plaintiff] can demonstrate that the name-brand manufacturers’ products caused her injury.
Id. at 1120-21. See Phelps v. Wyeth, Inc., 2010 WL 2553619, at *2 (Mag. D. Or. May 28, 2010) (“I cannot find that a decision to hold a manufacturer liable for injury caused by its competitor’s product is rooted in common sense”), adopted, 2010 WL 2553614 (D. Or. June 21, 2010).  Accord DaCosta v. Novartis AG, 2002 WL 31957424, at *8-9 (D. Or. March 1, 2002) (no liability where plaintiff never took defendant’s “chemically identical drugs”; “the allegedly defective product or form of [the drug], that [defendant] sold was not consumed by [plaintiff] and could not have caused [her] injuries”); Lukas-Werner v. Novo Nordisk, A/S, No. 1009-13177, transcript at 26 (Or. Cir. May 11, 2012) (“I do not think the Oregon Supreme Court would conclude that the innovator, the original manufacturer of a drug responsible for its labeling, has a duty arising out of the FDA regulations to the consumers or prescribers of all generic versions of its drug”).
The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), largely followed Phelps in concluding that Oregon would not embrace innovator liability.
[T]he Court finds the district court’s reasoning in Phelps to be reliable data tending convincingly to show whether the Oregon Supreme Court would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the Oregon Supreme Court would hold that Plaintiffs’ claims fail for lack of product identification.
Id. at 1224 (citation and quotation marks omitted).
Pennsylvania
“Pennsylvania . . . follows the general rule that a plaintiff, in order to recover, must establish that a particular defendant’s negligence was the proximate cause of her injuries.”  Skipworth v. Lead Industries Ass’n, 690 A.2d 169, 172 (Pa. 1997) (rejecting market share liability) (lead paint case).  Thus, “[a] plaintiff must also establish that the injuries were caused by a product of a particular manufacturer.”  DeWeese v. Anchor Hocking Consumer & Industrial Products Group, 628 A.2d 421, 423 (Pa. Super. 1993).
[A] defendant must be identified as the manufacturer, distributor, or seller of the offending product before the injuries suffered by the plaintiff may be found to be proximately caused by some negligent act or omission of the defendant.  Absent such identification, there can be no allegations of duty, breach of duty, or legal causation, and hence there can be no liability.
Mellon v. Barre-National Drug Co., 636 A.2d 187, 191-91 (Pa. Super. 1993) (citations and quotation marks omitted) (rejecting market share liability for OTC drug).
The first Pennsylvania court to consider innovator liability was Colacicco v. Apotex, Inc., 432 F. Supp.2d 514 (E.D. Pa. May 25, 2006), aff’d on other grounds, 521 F.3d 253 (3d Cir. 2008), vacated on other grounds, 556 U.S. 1101 (2009).  Finding Foster “persuasive,” the court held:
[W]e agree that to impose a duty in this case would be to stretch the concept of foreseeability too far, as [an innovator manufacturer] cannot reasonably expect that consumers will rely on information they provide when actually ingesting another company’s drug.  Also, we agree that unfair consequences would result if we were to impose a duty upon [an innovator], when it obtained no benefit from the sale of [the] generic equivalent and had no control over the manufacturing or labeling of [the generic drug], yet it bore the expense of developing [the innovator drug] from which [the generic manufacturer] materially benefits.
*          *          *          *
Plaintiff in this case invites this Court to drastically expand the boundaries of Pennsylvania tort law without precedent or policy to support his position.  We believe the Supreme Court of Pennsylvania would not accept this invitation, and accordingly, we decline to do so as well.  Thus, this Court holds that under Pennsylvania law, there is no duty of care owed by a brand-name prescription drug manufacturer to a plaintiff allegedly injured by a generic equivalent drug manufactured by another company.
432 F. Supp.2d at 541 (footnote, citations and quotation marks omitted).
Based largely on Colacicco, the Sixth Circuit in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 951 (6th Cir. 2014) (“Guided by the Eastern District’s analysis of Pennsylvania tort law, we predict that the Pennsylvania Supreme Court would find that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under Pennsylvania law”).
Taking a contrary view in an economic loss case, the court in Clark v. Pfizer, Inc., 2008 WL 7668730 (Pa. C.P. Phila. Co. March 17, 2008), held that an innovator manufacturer that allegedly promoted its product off-label could be liable for the “foreseeable” effect that its promotion would also increase off-label prescriptions of generic equivalents.  Id. (applying Restatement (Second) of Torts §§ 552 & 531 (1965)).
The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), largely followed Colacicco in concluding that Pennsylvania would not embrace innovator liability.
[T]he Court finds the district court’s reasoning in Colacicco to be reliable data tending convincingly to show whether the Supreme Court of Pennsylvania would find the theory of liability at issue to be viable. In sum, the Court therefore predicts that the Supreme Court of Pennsylvania would hold that Plaintiffs’ claims fail for lack of a duty triggering liability under Pennsylvania law.
Id. at 1225 (citation and quotation marks omitted).
In addition to Skipworth and Mellon, numerous appellate courts have reaffirmed the product identification requirement under Pennsylvania law by rejecting market share liability or similar theories in litigation involving a wide variety of products.  Pennfield Corp. v. Meadow Valley Electric, Inc., 604 A.2d 1082, 1088 (Pa. Super. 1992) (electrical cable); Cummins v. Firestone Tire & Rubber Co., 495 A.2d 963, 972 (Pa. Super. 1985) (tires); City of Philadelphia v. Lead Industries Ass’n, 994 F.2d 112, 127 (3d Cir. 1993) (lead paint) (applying Pennsylvania law); Robertson v. Allied Signal, Inc., 914 F.2d 360, 379-81 (3d Cir. 1990) (asbestos; rejecting “fiber drift” theory) (applying Pennsylvania law); see also Bortell v. Eli Lilly & Co., 406 F. Supp.2d 1, 6-7 (D.D.C. 2005) (DES) (applying Pennsylvania law).
Puerto Rico
We didn’t even have an entry for Puerto Rico until the Zantac Ranitidine Products Liability Litigation, decision holding that “Puerto Rico products liability law requires product identification.”  510 F. Supp.3d 1175, 1226 (S.D. Fla. 2020).  Zantac cited the discussion in Rivera Santana v. Superior Packaging Inc., 132 D.P.R. 115 (P.R. 1992), that “[a] manufacturer is strictly liable in tort when an article he places on the market . . . proves to have a defect,” and that such liability is to be “borne by the manufacturers who sent such products to market.”  Id. at 125-26.
There is no Puerto Rico statute or regulation that imposes a duty on brand-name manufacturers to generic consumers. Nor is there a “special relationship between the parties” from which a duty of care may be recognized; in fact, there is no relationship between brand-name manufacturers and generic consumers.  Further, there exists no “traditionally recognized duty of care” requiring a brand-name manufacturer to go beyond ensuring the safety of its own product.  Thus, the Court predicts that the Supreme Court of Puerto Rico would not recognize a duty owed by Defendants to Plaintiffs triggering liability under Puerto Rico law.

510 F. Supp.3d  at 1226.

Rhode Island
In Rhode Island, “[i]t is axiomatic that a plaintiff must prove that the proximate cause of his or her injuries was the defendant’s product.”  Clift v. Vose Hardware, Inc., 848 A.2d 1130, 1132 (R.I. 2004).  The product identification requirement is strongly supported by the Rhode Island Supreme Court’s firm rejection of market share liability non-manufacturer liability in Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I. 1991), refusing to allow market share liability even in DES cases.
The only Rhode Island law on innovator liability is the prediction in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), that the state would reject such liability:
the Rhode Island Supreme Court would follow the majority view and hold that Defendants do not owe a duty to Plaintiffs. There is no relationship between brand-name drug manufacturers and generic consumers, and the burden to Defendants and the consequences to the community of imposing a duty of care are great. . . .  Additionally, generic consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct. . . .  In sum, the Court predicts that the Rhode Island Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Rhode Island law.
Id. at 1227 (citations omitted).
South Carolina
“It is a fundamental principle of the law of products liability that a product manufacturer is not an insurer of its product, and a plaintiff may recover against a manufacturer only upon a showing that the product was in a defective condition unreasonably dangerous at the time it left the manufacturer’s control.”  Baughman v. General Motors Corp., 627 F. Supp. 871, 874 (D.S.C. 1985).
In Fisher v. Pelstring, 2010 WL 2998474 (D.S.C. July 28, 2010), after a lengthy discussion of the Fourth Circuit’s Foster decision and its progeny, the court “conclude[d] that South Carolina law does not support an action against the name-brand drug manufacturers . . .  for injuries allegedly caused by a generic drug manufactured by another company.  Id. at *8.  The same cases cited in Fisher led the Sixth Circuit to agree that South Carolina would not adopt innovator liability:
[P]laintiffs could not establish that the brand manufacturers owed them a duty because they did not manufacture or sell the products allegedly responsible for their injuries.  Guided by the Fisher court’s analysis of South Carolina law, we predict that the South Carolina Supreme Court would find that Brand Manufacturers did not owe Plaintiffs a duty that could give rise to liability under South Carolina law.
In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 951-52 (6th Cir. 2014).
Among the cases relied upon in Fisher were those holding that South Carolina would rejected market share liability, even in DES cases.  Mizell v. Eli Lilly & Co., 526 F. Supp. 589, 596 (D.S.C. 1981) (applying South Carolina law); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1007 (D.S.C. 1981) (applying South Carolina law).
Relying on these cases, particularly Fisher, the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), concluded that South Carolina would not embrace innovator liability:
[T]he district court’s reasoning in Fisher [is] reliable data tending convincingly to show whether the South Carolina Supreme Court would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the South Carolina Supreme Court would hold that Plaintiffs’ claims fail for lack of a duty triggering liability under South Carolina law.
Id. at 1228 (citation and quotation marks omitted).
South Dakota
“It is a fundamental principle that a plaintiff must prove, as an essential element of his case, that the defendant manufacturer actually made the particular product in question.”  Bradley v. Firestone Tire and Rubber Co., 590 F. Supp. 1177, 1179 (D.S.D. 1984) (refusing to expand market share liability beyond DES).  Relying on Bradley, the MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), determined that South Dakota would reject innovator liability:
The Court predicts that the South Dakota Supreme Court would hold that a generic consumer’s negligence claims against a brand-name manufacturer fail for lack of a duty triggering liability.  As previously discussed, the Court finds there to be a complete absence of a relationship between a generic consumer and a brand-name manufacturer. Further, generic consumers’ injuries are not the foreseeable result of brand-name manufacturers’ conduct. . . .  In sum, the Court predicts that the South Dakota Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under South Dakota law.
Id. at 1228-295 (citations omitted).
Tennessee
The Tennessee product liability statute requires product identification.  “The TPLA specifically provides that a defendant shall not be liable under the TPLA unless the product is defective or unreasonably dangerous at the time it left the defendant’s control.”  Coffman v. Armstrong Int’l, Inc., 615 S.W.3d 888, 895 (Tenn. 2021) (citing Tenn. Code Ann. § 29-28-105(a)) (asbestos case).  “The TPLA link a defendant’s liability to the defendant’s own product, not the product of another manufacturer.”  Id. at 897.
[W]e find it dispositive that the end-products at issue on this appeal were neither made nor sold by the Equipment Defendants. . . .  Several provisions of the TPLA state that a manufacturer or seller’s duty to warn is limited to products actually made or sold by that defendant.
Id. (emphasis original).  Thus, “under the TPLA, manufacturers have no duty to warn with respect to products manufactured and sold by others.”  Id. at 899.
Tennessee law also rejects market share liability.  Barnes v. Kerr Corp., 418 F.3d 583, 589 (6th Cir. 2005) (applying Tennessee law) (dental amalgam).  Nor is there any duty to warn about other manufacturer’s products.  Id. at 591 (“a product manufacturer generally has a duty to warn of the dangers of its own products, it does not have a duty to warn of the dangers of another manufacturer’s products”); McConkey v. McGhan Medical Corp., 144 F. Supp. 2d 958, 964 (E.D. Tenn. 2000) (“Plaintiffs cannot establish that [defendant] owed a duty . . . to warn about dangers of breast implants it did not produce”); Kellar v. Inductotherm Corp., 498 F. Supp. 172, 175 (E.D. Tenn. 1978) (“[i]f a manufacturer could be held liable for injury merely because it foresaw a danger created by another party, there would literally be no end of potential liability,” and manufacturers would become “insurers of products manufactured by others”).
The Sixth Circuit has twice determined that innovator liability is contrary to the law of Tennessee.  In Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d 378 (6th Cir. 2013), the court held:
The Tennessee Product Liability Act] . . . applies to all of the plaintiffs’ claims against the Brand-Name Manufacturers.  Unfortunately for the plaintiffs, however, these defendants were not the manufacturers or sellers of the generic drugs that injured the plaintiffs.  Yet “in order to recover under the TPLA, a plaintiff must show that the product manufactured and sold by the defendant caused the injuries he alleges to have sustained. . . .  [S]imply because a particular harm is foreseeable “is not dispositive in determining the existence of a legal duty. . . .  [W]e have no basis to conclude in this diversity case that the Tennessee Supreme Court would overrule its prior decisions holding that a manufacturer owes no duty of care to consumers of products made by others.  Tennessee law instead requires manufacturers to warn of hidden and unknown dangers in their products.

Id. at 403-05 (citations and quotation marks omitted) (affirming 882 F. Supp.2d 1020, 1028-31 (W.D. Tenn. Aug. 8, 2012)).  See In re Darvocet,Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 952 (6th Cir. 2014) (“[t]his Court has already determined that claims by consumers of generic drugs against brand manufacturers cannot stand under Tennessee law”).

Texas

Texas is another state with abundant precedent rejecting innovator liability.  In Eckhardt v. Qualitest Pharmaceuticals, Inc., 751 F.3d 674 (5th Cir. 2014), the court relied on extensive contrary precedent, in Texas and elsewhere:

Although [plaintiff] concedes that he has never used a product manufactured by the Brand Defendants, he argues that given the structure of the pharmaceutical industry as a result of federal law, the Brand Defendants owe a duty to eventual consumers of the drugs they design, even if those consumers use a generic version of the drug.  Several courts have faced this question.  Every circuit court has held (under the laws of several different states) that a brand-name manufacturer does not owe a duty to consumers who use a generic version of the drug.

Id. at 681 (citations omitted) (affirming 889 F. Supp.2d 901, 905-10 (S.D. Tex. 2012)).  The court in Lashley v. Pfizer, Inc., 750 F.3d 470 (5th Cir. 2014), the court reached the same conclusion.

Under Texas law, meanwhile, a products liability action is broadly defined as “any action against a manufacturer or seller for recovery of damages arising out of personal injury . . . allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.”  Tex. Civ. Prac. & Rem. Code Ann. §82.001(2).  The Texas Supreme Court has determined that under this statute, entities are “‘manufacturers’ . . . only with respect to their own products.”  It has also found that “[a] fundamental principle of traditional products liability law is that the plaintiff must prove that the defendants supplied the product which caused the injury.”

Id. at 477-78 (quoting Owens & Minor, Inc. v. Ansell Healthcare Products, Inc., 251 S.W.3d 481, 485 (Tex. 2008) (no duty to indemnify for competing products)); Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989) (rejecting market share liability in asbestos cases)).  The Sixth Circuit concurred in this conclusion.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 952-53 (6th Cir. 2014).

A raft of Texas trial courts also reject innovator liability.  Negron v. Teva Pharmaceuticals USA, Inc., 2010 WL 8357563, at *1 (Tex. Dist. May 7, 2010); Phares v. Actavis-Elizabeth LLC, 2015 WL 12780637, at *4-5 (S.D. Tex. March 19, 2015) (fraud claims); Willis v. Schwarz-Pharma, Inc., 62 F. Supp.3d 560, 564-66 (E.D. Tex. 2014); Phares v. Actavis-Elizabeth LLC, 892 F. Supp.2d 835, 844-46 (S.D. Tex. 2012), reconsideration denied, 2015 WL 12780637, at *4-5 (S.D. Tex. March 19, 2015); Finnicum v. Wyeth, Inc., 708 F. Supp.2d 616, 620-22 (E.D. Tex. 2010); Hardy v. Wyeth, Inc., 2010 WL 1049588, at *2-5 (Mag. E.D. Tex. March 8, 2010), adopted, 2010 WL 1222183 (E.D. Tex. March 29, 2010); Burke v. Wyeth, Inc., 2009 WL 3698480, at *2-3 (S.D. Tex. Oct. 29, 2009); Cousins v. Wyeth Pharmaceutical, Inc., 2009 WL 648703, at *2 (N.D. Tex. March 10, 2009); Pustejovsky v. Wyeth, Inc., 2008 WL 1314902, at *2 (N.D. Tex. April 3, 2008), aff’d on other grounds, 623 F.3d 271 (5th Cir. 2010); Block v. Wyeth, Inc., 2003 WL 203067, at *2 (N.D. Tex. Jan. 28, 2003).

Wells v. Wyeth Pharmaceuticals, Inc., 2016 WL 8849935, at *4 (Mag. W.D. Tex. Dec. 16, 2016), adopted, 2017 WL 1826295 (W.D. Tex. Jan. 11, 2017), rejected a claim that an innovator’s alleged off-label promotion allowed it to be sued by a user of solely generic products.

Utah

Utah “imposes [strict] liability on every ‘seller’ of the product – manufacturers, wholesalers, retailers, and any other party involved in the product’s chain of distribution” so that “the costs of injuries resulting from defective products are borne by the manufacturer that put such products on the market.”  Bylsma v. R.C. Willey, 416 P.3d 595, 604 (Utah 2017).  In Utah, there must be “causation between [a plaintiff’s injuries] and the breach of any particular defendant.”  Highland Construction Co. v. Union Pacific Railroad Co., 683 P.2d 1042, 1047 (Utah 1984).  “Thus, Utah products liability law requires product identification.”  Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175, 1229 (S.D. Fla. 2020).

Innovator liability was rejected in Beutella v. A.H. Robins Co., 2001 WL 35669202, at *2-3 (Utah Dist. Dec. 10, 2001).

In Zantac, the court reached the same conclusion:

the Court predicts that the Utah Supreme Court would follow the majority view and hold that brand-name manufacturers do not owe a duty to generic consumers. . . .  [G]eneric consumers’ injuries are not the foreseeable result of brand-name manufacturers’ conduct. . . . [and] many public policy considerations weigh against holding brand-name competitors liable for injuries caused by their generic competitors’ drugs.  In sum, the Court predicts that the Utah Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Utah law.

510 F. Supp.3d at 1129-30 (citations and footnote omitted).

Vermont

In Vermont, “in a products liability action, a plaintiff must show that the defendant’s product . . . caused injury to the consumer.”  Farnham v. Bombardier, Inc., 640 A.2d 47, 48 (Vt. 1994); see Haskins v. Zimmer Holdings Inc., 2010 WL 342552, at *2 (D. Vt. Jan. 29, 2010) (“Plaintiffs must at least allege in their complaint that [defendant’s] product was administered”).  Nonetheless, a federal district court, in the absence of any Vermont precedent, chose to recognize innovator liability in Kellogg v. Wyeth, 762 F. Supp.2d 694 (D. Vt. 2010), because it was “fair” and “[t]here is no reason, under Vermont law, to limit [defendant’s] duty of care to physicians by the pharmacist’s choice of a generic bioequivalent.”  Id. at 706, 709.  Cf. Lyman v. Pfizer, Inc., 2012 WL 2970627, at *17-18 (D. Vt. July 20, 2012) (dismissing innovator liability case where warnings have changed because any reliance on older warnings would
not have been justifiable as a matter of law).

The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), took a look at Vermont law and “disagree[d]” with Kellogg:

[T]he Court disagrees with the District of Vermont’s reasoning and conclusion regarding whether the Vermont Supreme Court would recognize a duty owed by brand-name manufacturers to generic consumers.  Generic consumers’ injuries are not the foreseeable result of the brand manufacturers’ conduct, but of the Vermont and federal laws over which the brand manufacturers have no control, and to use these laws as the basis of supplying the duty element for tort liability stretches foreseeability too far.  Additionally, the District of Vermont failed to account for the grave health policy consequences associated with recognizing brand manufacturer liability in these situations including higher brand name drugs and fewer innovative drugs and the complete absence of any relationship between brand-name manufacturers and generic consumers.  In sum, the Court predicts that the Vermont Supreme Court would hold that Plaintiffs’ claims fail either for lack of product identification and a duty giving rise to liability under Vermont law.

Id. at 1231 (citations and quotation marks omitted).

Virginia

In Virginia, a duty to warn “has no application in this case because [defendant] was not the manufacturer of the [product] or any of its component parts.”  Baker v. Poolservice Co., 636 S.E.2d 360 (Va. 2006).

In Colas v. Abbvie, Inc., 2014 WL 2699756 (N.D. Ill. June 13, 2014), the court, predicting Virginia law, held that Virginia would not recognize innovator liability.

Plaintiff admits that defendants were not the “suppliers” of the [drug] he took.  Thus, plaintiff cannot, as a matter of Virginia law, state a failure to warn claim against defendants. . . . Apparently, no Virginia court has decided whether a company that makes a brand name drug owes a duty to consumers of a generic drug made by another company.  However, the Virginia failure to warn decisions, and the weight of authority from other jurisdictions, suggest that the Virginia Supreme Court would not recognize such a duty.

Id. at *2 (citations omitted).

The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), agreed with Colas.

[T]he Court finds the district court’s reasoning in Colas to be reliable data tending convincingly to show whether the Supreme Court of Virginia would find the theory of liability at issue to be viable.  In sum, the Court therefore predicts that the Supreme Court of Virginia would hold that Plaintiffs’ claims fail for lack of a duty triggering liability under Virginia law.

Id. at 1232 (citations and quotation marks omitted).

Washington

In Washington, “[i]n order to have a cause of action, the plaintiff must identify the particular manufacturer of the product that caused the injury.”  Lockwood v. AC & S, Inc., 744 P.2d 605, 612 (Wash. 1987).  Further, a “manufacturer’s  duty to warn is restricted to warnings based on the characteristics of the manufacturer’s own products, the law generally does not require a manufacturer to study and analyze the products of others and warn users of the risks of those products.”  Braaten v. Saberhagen Holdings, 198 P.3d 493, 498 (Wash. 2008) (citations and quotation marks omitted).  Accord Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1072 (Wash. 2012) (“a manufacturer does not have a duty to warn of the dangers inherent in a
product that it does not manufacture, sell, or supply”).

In Madden v. Teva Pharmaceuticals, USA, Inc., 2012 WL 4757253 (Pa. C.P. Phila. Co. Oct. 1, 2012), the court applied Washington law (where the plaintiff was domiciled and the prescription written) and concluded that innovator liability was not proper:

[T]he Court properly dismissed Plaintiff’s claims . . . because [defendant] was not the manufacturer or seller of the product ingested by the Plaintiff.  Here, it is undisputed that the Plaintiff purchased and ingested the generic drug . . ., not the brand-name drug . . . manufactured by [defendant].  Moreover, courts across the country have overwhelmingly refused to allow claims against the manufacturer of a name-brand medication for damages allegedly caused by the use of another manufacturer’s generic-equivalent medication on both legal and policy grounds.

Id. at ?? (near end of opinion) (footnote omitted).  In reliance on Madden, the Sixth Circuit also concluded that Washington would not recognize innovator liability.  In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 953 (6th Cir. 2014).

West Virginia

In McNair v. Johnson & Johnson, 818 S.E.2d 852 (W. Va. 2018), the West Virginia Supreme Court of Appeals rejected innovator liability:

There is no cause of action in West Virginia for failure to warn and negligent misrepresentation against a brand-name drug manufacturer when the drug ingested was produced by a generic drug manufacturer.

818 S.E.2d at 854, syllabus, point 4.

Innovator liability “would sever the connection between risk and reward . . . that forms the basis of products liability law.”  Id. at 866.

[S]trict liability has only been applied to a manufacturer, seller, or distributor of the product in question.  In other words, a plaintiff cannot recover damages in a strict liability action against the defendant, in the absence of showing that the defendant either manufactured or sold the product that allegedly injured the plaintiff.

Id. at 860 (citation, footnote, and quotation marks omitted). There’s very good reason for this limitation:

[T]his Court, as well as other courts, adopted products liability to place responsibility for the harm caused by a product on the party who profits from its manufacture and sale.  Because the brand manufacturer did not place the generic product on the market, it cannot spread the cost of compensating generic consumers by including the cost of insurance or judgments as part of the product’s price tag.

Id. at 866 (citations and quotation marks omitted). Particularly in the case of prescription drugs,

If brand manufacturers become liable for injuries allegedly caused by generic drugs, significant litigation costs would be added to the price of new drugs to the disadvantage of consumers.  Further, the increase in litigation against brand manufacturers could stifle the development of new drugs, which would have negative health consequences for society.

Id. (citation omitted).  See McNair v. Johnson & Johnson, 773 F. Appx. 681, 682 (4th Cir. 2019) (affirming dismissal after remand from West Virginia Supreme Court of Appeals).  This logic applied to all theories by which a product manufacturer could be held liable.  Negligent misrepresentation likewise failed, for the reasons stated in In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 954 (6th Cir. 2014) (applying West Virginia law), and Huck v. Wyeth (see Iowa). McNair, 2018 WL 2186550 at *7-8.  As to general negligence, “all federal circuit courts that have considered the question have held, under the laws of different states, that a brand manufacturer does not owe a duty to a consumer who uses a generic drug.”  Id. at *8 (string citation omitted; see our scorecard for these cases).  “Any recognition of an outlier theory of liability permitting a generic drug consumer to bring an action against the brand manufacturer for an injury allegedly arising from the use of the generic drug would be plainly at odds with this public policy.”  Id. at *10.

See also Meade v. Parsley, 2009 WL 3806716, at *2-3 (S.D.W. Va. Nov. 13, 2009) (“[I]nnovator defendants] are not responsible for the damage resulting from a product that they did not manufacture, distribute or sell. . . .  Product liability law in West Virginia allows for recovery when the plaintiff can prove that “a product was defective when it left the manufacturer and the defective product was the proximate cause of the plaintiff’s injuries.”).

Wisconsin

Wisconsin’s 2014 product liability statute subsumes all common-law claims (W.S.A. §895.046(2)) and mandates product identification.

[T]he manufacturer, distributor, seller, or promoter of a product may be held liable in an action under sub. (2) only if the claimant proves, in addition to any other elements required to prove his or her claim, that the manufacturer, distributor, seller, or promoter of a product manufactured, distributed, sold, or promoted the specific product alleged to have caused the claimant’s injury or harm.

W.S.A. §895.046(3).  Cf. Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 746 (Wis. 2001) (pre-statute decision that “strict products liability holds that manufacturer responsible for injuries caused by that product”); Schreiner v. Wieser Concrete Products, Inc., 720 N.W.2d 525, 531 (Wis. App. 2006) (pre-statute decision that “a manufacturer only owes a duty to warn regarding its own products, not products it did not manufacture, sell, or otherwise place in the stream of commerce”).

A very limited exception is provided to the statutory product identification requirement, but it cannot be applicable to prescription drugs.  An essential element of that exception requires that the product “[w]as distributed or sold without labeling or any distinctive characteristic that identified the manufacturer, distributor, seller, or promoter.”  W.S.A. §895.046(4)(a)(3)(c).

In R.S.B. v. Merck & Co.2021 WL 6113765 (E.D. Wis. Dec. 27, 2021), the court rejected an attempt to assert innovator liability notwithstanding this statutory language.  The statute “applies to all actions in law or equity,” including negligent misrepresentation.  Id. at *4.  Section 895.046(4)(a) was “clear that claims alleging personal injury caused by the use of a product sold in the state could not otherwise be brought against parties that were not the manufacturer, seller or promoter of the product alleged to have cause the plaintiff’s injury.”  Nor could plaintiff plausibly claim that, by promoting its own product, a branded manufacturer necessarily promoted competing generic products.  That argument would render the statute “meaningless,” and moreover, was absurd:

[P]otential plaintiffs could always make the showing that a defendant promoted its own product and therefore qualifies as a promoter of all other products within the same category.  Put simply, just because two businesses compete in the same space and advertise their own products does not mean that the businesses, by promoting their own product, are promoting the products of their competitors. . . .  A company, no matter what precarious position it may be in, does not intend to promote a competitor’s product to the detriment of its own sales. . . .  To assert that [a branded defendant] is promoting [a] generic . . . is to assert that [it] is promoting the products of its direct competitors to the detriment of its own product. This line of logic belies basic business principles and would render §895.046(4) meaningless.

Id. at *5 (citation omitted).

The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), took a look at Wisconsin law and concluded innovator liability was not a viable cause of action:

[G]eneric consumers’ injuries are not the foreseeable result of brand-name drug manufacturers’ conduct. . . .  Thus, given the appellate court’s holding in Screiner and the lack of foreseeability of generic consumers’ injuries, the Court predicts that the Wisconsin Supreme Court would not impose a duty on brand-name drug manufacturers to generic consumers.  In sum, the Court predicts that the Wisconsin Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Wisconsin law.

Id. at 1232 (citations omitted).

Wyoming

The general Wyoming causation standard “require[s] the plaintiff to show the defendant’s product or negligence was a ‘substantial factor’ in bringing about the plaintiff’s harm.”  Johnson v. Allis-Chalmers Corp. Products Liability Trust, 11 F. Supp.3d 1119, 1125 (D. Wyo. 2014).

The MDL court in Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1175 (S.D. Fla. 2020), determined that “Wyoming products liability law requires product identification,” predicted that Wyoming would reject innovator liability :

[T]he Court predicts that the Wyoming Supreme Court would follow the majority view and hold that brand-name drug manufacturers do not owe a duty to generic consumers. First, generic consumers’ injuries are not the foreseeable result of brand-name manufacturers’ conduct. . . .  To impose a duty under Wyoming law would be to stretch the concept of foreseeability too far.  Further, the Court finds that the connection between brand-name manufacturers’ conduct and generic consumers injuries is attenuated, given the absence of a relationship between the them.  And the burden to brand-name manufacturers and the consequences to the community of imposing a duty of care are great.  In sum, the Court predicts that the Wyoming Supreme Court would hold that Plaintiffs’ claims against Defendants fail for lack of product identification and for lack of a duty giving rise to liability under Wyoming law.

Id. at 1233-34 (citations and quotation marks omitted).

Canada

Innovator liability has also been raised, and rejected, by two Canadian (Ontario) courts.  In Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095 (Ont. Super. Feb. 18, 2010), the court comprehensively took down the concept of innovator liability under Canadian law.  Id. at ¶¶65-100. The court concluded:

Would it be fair to make the Defendants, as innovators, liable simply for releasing an idea that is copied? I think not, because once again this would be to impose strict liability and because the harm in releasing the idea is caused by releasing the idea without appropriate warnings about how the associated product may be used, but the innovator is not in a position to give any warnings about the uses being made by consumers of a copied version of the innovator’s product. A drug innovator cannot issue warnings about the hazards of a drug manufactured and sold by another pharmaceutical company, particularly when the hazards may be associated with off-label uses. Although the drug innovator can control the manufacture of its own product, monitor for adverse reactions to its product and give warnings about its own product, the innovator is not in a position to stop the generic manufacturer from releasing the generic drug or to stop physicians from prescribing the generic drug for off label uses. This conduct is not the innovator’s conduct, and, in my opinion, it would be unfair to impose a duty of care on the innovator for another’s conduct when the innovator cannot control, qualify, or stop that conduct. In my opinion, it would not be fair or just to make the innovator liable for failing to do something that should and can only be done by others.

Put differently, normally, an innovator of a prescription drug may discharge its duty of care by giving a warning about the risks associated with its own drug, but imposing a duty of care on the innovator for simply releasing the idea of the drug into the stream of commerce is to impose strict liability on the innovator and also to deny the innovator the defence of having given an adequate warning to a learned intermediary. In my opinion, such an imposition of liability would be unfair.

I, therefore, conclude that it is plain and obvious that the Defendants do not have a duty of care to the consumers of generic [drugs].

Id. at ¶¶98-100.  In an order as terse as Goodridge was extensive, the court in Brown v. Janssen, Inc., 2016 CarswellOnt 12959, slip op. (Ont. Super. April 7, 2016), the court struck all generic references from the complaint, finding that Goodridge “is directly on point and was correctly decided.”  Id. at 1. “No Canadian court has ever held that a brand name manufacturer owes a duty of care to the consumers of the generic version manufactured by a competitor.”  Id.

 

We’ve decided that, since PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), product liability preemption in the context of generic drugs has come into its own and should no longer be lumped in with the overall topic of drug/vaccine preemption.  Thus we’re bestowing a new scorecard on post-Mensing generic drug preemption decisions. We’ll start with Mensing itself and go from there:

  1. PLIVA, Inc. v. Mensing, 564 U.S. 604 (U.S. June 23, 2011) (metoclopramide).  Hatch Waxman Act’s requirement that generic drug labeling must stay the same as branded labeling preempts failure to warn claims against generic drug makers.  Generic drug manufacturers cannot change their labels without prior FDA approval.  Dear Doctor/DHCP letters cannot vary from generic drug labeling.  The bare chance that the FDA, if approached, might agree to change both the generic and branded labels simultaneously, is insufficient to prevent preemption.
  2. Sacks v. Endoscopy Center, 2011 WL 4915174 (Nev. Dist. July 28, 2011) (propofol).  Motion for summary judgment denied.   Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.  Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.  Design defect and implied warranty claims are not preempted.
  3. Brown v. Actavis Elizabeth LLC, 2011 WL 5826022, slip op. (E.D. La. Aug. 10, 2011) (metoclopramide).  Motion to dismiss granted. State law claims challenging the adequacy of generic drug labeling are preempted.  Minute order.
  4. Keck v. Endoscopy Center, 2011 WL 3921690, slip op. (Nev. Dist. Aug. 19, 2011) (propofol).  Granting partial summary judgment against preemption defense.  Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.  Plaintiffs cannot argue that the label on the drug itself should be changed.  Refusing to defer to FDA view that generic manufacturers could not unilaterally send any such letters.  State law failure to warn claims are preempted.
  5. Demahy v. Actavis, Inc., 650 F.3d 1045 (5th Cir. Aug. 22, 2011) (metoclopramide).  Per curiam order on remand from the Supreme Court, vacating and remanding for entry of judgment in favor of defendant on grounds of preemption.
  6. Henderson v. Sun Pharmaceuticals Industries, Ltd, 809 F. Supp.2d 1373 (N.D. Ga. Aug. 22, 2011) (phenytoin and fosphenytoin).  Motion to amend denied; motion to dismiss granted.  Manufacturing-related warning letter sent to defendant did not relate to drug in question or to the plaintiff’s alleged injury.  None of the allegations plead causation.  State law failure to warn claims are preempted.
  7. Scott v. Baxter Healthcare Corp., 2011 WL 4007675 (S.D. Ala. Sept. 9, 2011) (phenergan). Unopposed summary judgment granted.  State law claims challenging the adequacy of generic drug labeling are preempted.
  8. Brasley-Thrash v. Teva Pharmaceuticals USA, Inc., 2011 WL 4025734 (S.D. Ala. Sept. 12, 2011) (metoclopramide).  Motion to amend granted in part and denied in part.  Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.  At the time of the prescription, the FDA did not require pre-approval of such letters. State law claims challenging the adequacy of generic drug labeling are preempted.
  9. Beck v. Teva Pharmaceutical Industries Ltd., 2011 WL 4062219 (E.D. La. Sept. 13, 2011) (methotrexate).  Motion to dismiss granted.  State law claims challenging the adequacy of generic drug labeling are preempted.
  10. Hutchinson v. Endoscopy Center, 2011 WL 9378975 (Nev. Dist. Sept. 16, 2011) (propofol).  Motion in limine to exclude fake dear doctor letter denied.   State law claims challenging the adequacy of generic drug labeling are preempted. Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.
  11. Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. Sept. 22, 2011) (metoclopramide).  State law claims challenging the adequacy of generic drug labeling are preempted.  Cert. denied, 132 S.Ct. 2103 (2012).
  12. Schork v. Baxter Healthcare Corp., 2011 WL 4402602 (S.D. Ind. Sept. 22, 2011) (promethazine HCL).  State law claims challenging the adequacy of generic drug labeling are preempted.
  13. Fisher v. Pelstring, 817 F. Supp.2d 791 (D.S.C. Sept. 30, 2011) (metoclopramide), reconsideration denied, (Jan. 11, 2012) (see below).  Motion to dismiss on preemption grounds denied due to uncertainty whether generic drug labeling at the time of plaintiff’s prescription timely included the most recent update to branded warnings.  Summary judgment on failure to warn, implied warranty, consumer fraud, and emotional distress denied because, inter alia, the defendant could have sent a “Dear Doctor” letter about the label changes it failed to include.  Express warranty, fraud, and misrepresentation claims preempted because they would have required a non-identical label change.  Plaintiff’s claim for breach of a duty to keep current with scientific literature is preempted because without a non-identical label change, the duty could not be causal.
  14. LaBruyere v. Actavis, Inc., 2011 WL 5826018, slip op. (E.D. La. Oct. 4, 2011) (metoclopramide).  Unopposed motion to dismiss granted. State law claims challenging the adequacy of generic drug labeling are preempted.  Minute order.
  15. Stevens v. Community Health Care, Inc., 29 Mass. L. Rptr. 153, 2011 WL 6379298 (Mass. Super. Oct. 5, 2011)  (clarithromycin).  Summary judgment granted.  An distributor of a generic drug has no ability to change the warnings on generic drugs.
  16. Hutchinson v. Endoscopy Center, 2011 WL 6688744 (Nev. Dist. Oct. 5, 2011) (propofol).  Motion for summary judgment denied in part and granted in part.  State law claims challenging the adequacy of generic drug labeling are preempted.  Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.  Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.
  17. Guilbeau v. Wyeth, Inc., 2011 WL 4948996 (W.D. La. Oct. 14, 2011) (metoclopramide).  Motion for judgment on the pleadings granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  No facts are pleaded to support any other claim.
  18. Phillips v. Wyeth, Inc., 2011 WL 5826035, slip op. (W.D. La. Oct. 14, 2011) (metoclopramide).  Unopposed motion for judgment on the pleadings granted on same grounds as Guilbeau.
  19. Morris v. Wyeth, Inc., 2011 WL 4973839, slip op. (W.D. La. Oct. 19, 2011) (metoclopramide).  Motion to dismiss granted. State law claims challenging the adequacy of generic drug labeling are preempted.  Express preemption cases do not control.  Claims based upon alleged failure to use other “FDA-recommended communication tools,” such as “Dear Doctor” letters are preempted.  Plaintiff alleged no facts in support of any non-warning claim.  Motion to amend denied, 2012 WL 601455 (W.D. La. Feb. 21, 2012), plaintiff’s failure-to-update claims claims that all pre-2009 labeling was defective, which is preempted; pre-Mensing cases recognizing less preemption are overruled.  Express warranty claims are preempted.  A reference listed drug designation does not convert the defendant into a branded manufacturer for purposes of preemption.  Affirmed, 713 F.3d 774 (5th Cir. Feb. 14 2013) (see below).
  20. Richardson v. Wyeth, Inc., 2011 WL 5402184, slip op. (W.D. La. Oct. 20, 2011), adopted, 2011 WL 5402396, slip op. (W.D. La. Nov. 6, 2011) (metoclopramide).  Unopposed motion to dismiss granted. State law claims challenging the adequacy of generic drug labeling are preempted.
  21. Metz v. Wyeth, LLC, 872 F. Supp.2d 1335 (M.D. Fla. Oct. 20, 2011) (metoclopramide).  Motion to dismiss granted.  All warning claims are preempted.  All non-warning claims are inadequately pleaded.  Causation must be pleaded in any non-preempted claim.  Claims that the defendant failed to monitor developments, or notify the FDA, relate to warnings and are preempted.  Design claims must allege that the generic defendant designed the product.  Warranty and fraud claims relate to information about the product and are preempted.  Negligence per se claims based on labeling are preempted.  Affirmed by unpublished order, No. 12-13321, slip op. (11th Cir. Aug. 1, 2013).
  22. Waguespack v. PLIVA USA, Inc., 2011 WL 5826015, slip op. (E.D. La. Nov. 3, 2011) (metoclopramide).  Motion for judgment on the pleadings granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  Plaintiff did not plead an identical Dear Doctor letter claim.
  23. Sincoskie v. West Ward Pharmaceuticals, No. MEL-L-2643-10, transcript (N.J. Super. Law Div. Mercer Co. Nov. 4, 1022).  Motion to dismiss granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  That the defendant’s product has been designated a reference listed drug does not establish that it may unilaterally change its warnings.
  24. Guarino v. Wyeth LLC, 823 F. Supp.2d 1289 (M.D. Fla. Nov. 7, 2011) (metoclopramide).  Motion to dismiss granted.  All warning claims are preempted.  Mensing does not include an exception for parallel violation claims.  “Failure to communicate” claims, based on Dear Doctor letters, are preempted. Reconsideration denied, 2012 WL 28810 (M.D. Fla. Jan. 5, 2012), second reconsideration denied, 2012 WL 1890516 (M.D. Fla. May 23, 2012).  Affirmed, 719 F.3d 1245, below.
  25. In re Accutane Products Liability Litigation, 2011 WL 6224546, slip op. (M.D. Fla. Nov. 9, 2011) (isotretinoin).  Judgment on the pleadings granted.  All warning claims are preempted.  (Unspecified) arguments that plaintiffs claims are not warning claims are “devoid of merit.”  Warning-based claims against a pharmacist selling generic drugs are also preempted.
  26. Stevens v. PLIVA, Inc., 2011 WL 6224569, slip op. (Mag. W.D. La. Nov. 15, 2011) (metoclopramide). Unopposed motion to dismiss granted. State law claims challenging the adequacy of generic drug labeling are preempted.  Design defect claims are preempted. Adopted, 2011 WL 6224556 (W.D. La. Dec. 2, 2011).
  27. In re Reglan/Metoclopramide Litigation, 2011 WL 6259558, slip op. (Pa. C.P. Philadelphia Co. Nov. 18, 2011) (metoclopramide).  Master preliminary objections denied.  It is not shown with certainty that there can be no legal recovery in 2000 cases brought under the laws of numerous states.  Mensing “carve outs” must be decided on a state-by-state basis.  The same is true for claims involving the injectable form of the drug.
  28. In re Fosamax Litigation, 2011 WL 5903623 (D.N.J. Nov. 21, 2011) (alendronate sodium).  Judgment on the pleadings granted as to all generic defendants (some defendants’ status as generic manufacturers was disputed and could not be resolved on the pleadings).  No factual allegations support any sort of manufacturing-related claim.  The design of a generic drug, like its warnings, must be the same as the branded reference drug.  Therefore design defect claims and negligent design claims are preempted.  State law claims challenging the adequacy of generic drug labeling are preempted.  Taking alleged increased risk evidence to the branded manufacturer rather than the FDA does not change the preemption analysis because any label change would still be dependent upon the act of an independent third party.  Nothing in the 2007 FDAAA changes the generic preemption analysis.  There is no evidence that generic labels were not updated promptly.  Negligence claims related to warnings are preempted.  Implied warranty claims are founded on changing the design of the drug, and are therefore preempted.  Express warranty, fraud, misrepresentation, and consumer protection claims all attack the drug’s labeling and are therefore preempted.  Dependent claims are also dismissed.  Affirmed see below.
  29. Gross v. Pfizer, Inc., 825 F. Supp.2d 654 (D. Md. Nov. 22, 2011) (metoclopramide).  Judgment on the pleadings granted.  Negligence claims alleging that generic manufacturers had a duty to cease selling their product at all are preempted.  Such a claim, if it existed at all, would directly conflict with FDA authority to determine what drugs can be sold in interstate commerce.  Claims for concealing information are warning claims and are preempted.  Failure to test/inspect are warning claims and are preempted.  Claims alleging failure to update do not exist at state law, and in any event are preempted.  Reconsideration denied, 825 F. Supp. 2d 661 (D. Md. Jan. 27, 2012).  Plaintiffs have not pleaded that the allegedly unupdated warning was adequate, so that claim is also preempted.  Affirmed ___ F.3d ___, 2014 WL 292700 (4th Cir. Jan. 28, 2014) (see below under “Drager“).
  30. Phelps v. Wyeth, Inc., 2011 WL 7629569 (Mag. D. Or. Nov. 30, 2011) (metoclopramide).  Motion to dismiss granted against all claims, including  post-marketing failure to monitor, with the exception of failure to update warnings after the branded label was changed.  Failure to update may be asserted as negligence per se.
  31. Whitener, v. PLIVA, Inc., 2011 WL 6056546 (E.D. La. Dec. 6, 2011) (metoclopramide).  Judgment on the pleadings granted in part and denied in part.  Nothing in the 2007 FDAAA affects the preemption rationale in Mensing.  Off-label use does not defeat preemption.  Any additional warning about an off-label would create a label that is not the same as the branded label.  If plaintiffs want to assert some claim based upon illegal off-label promotion, they must amend their complaint.  On reconsideration at, 2012 WL 3948797 (E.D. La. Sept. 10, 2012).  Conceivably illegal off-label promotion could also violate state law so the claim will not be dismissed on the pleadings.  The 2007 FDAAA made no changes in generic labeling, thus nothing in FDAAA bars preemption of post-2007 claims.  Later dismissal affirmed on non-preemption grounds, ___ F. Appx. ___, 2014 WL 1570051 (5th Cir. April 9, 2015).
  32. Schrock v. Wyeth Inc., 2011 WL 6130924 (W.D. Okla. Dec. 8, 2009) (metoclopramide).  Motion for leave to amend denied.  Express and implied warranty claims are preempted.  Affirmed see below.
  33. Fullington v. PLIVA, Inc., 2011 WL 6153608 (E.D. Ark. Dec. 12, 2011) (metoclopramide).  Motion to dismiss granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  Non-warning claims not adequately pleaded.  Failure to update labeling claims not adequately pleaded.  Claims alleging that generic manufacturers had a duty to cease selling their product at all are preempted.  Amended complaint dismissed except for one count, 2012 WL 1893749 (E.D. Ark. May 23, 2012).  Alleged design defect claim alleging improper use of bulk packaging was actually a warning claim and was preempted.  Bartlett is distinguishable because it was pure risk-utility rather than involving only one use.  Failure to update claims are preempted to the extent that the updated label was allegedly still defective.  Other failure to update claims will be addressed on summary judgment.  Reconsideration denied, 2012 WL 2918711 (E.D. Ark. July 17, 2012), aff’d in part and vacated in part, 720 F.3d 739 (8th Cur, 2013) (see below).
  34. Del Valle v. PLIVA, Inc., 2011 WL 7168620, slip op. (Mag. S.D. Tex. Dec. 21, 2011) (metoclopramide).  Motion to dismiss granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  Claims for failure to add label changes that plaintiffs claim were still defective do not state a claim, as there can be no causation for failing to add labeling that was still defective.  adopted 2012 WL 2899406 (S.D. Tex. June 22, 2012).  Affirmed ___ F. Appx. ___, Nos. 12-60861, 12-41148, slip op. (5th Cir. Feb. 21, 2014), see below.
  35. Grinage v. Mylan Pharmaceuticals, Inc., 840 F. Supp.2d 862 (D. Md. Dec. 30, 2011) (allopurinol).  Motion to dismiss granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  All forms of communication between manufacturers and doctors, “Dear Doctor” letters, physician training, and professional publications, are labeling and preempted if different from branded labeling.  To the extent plaintiff argues for other communications bearing identical information, no causation is pleaded.  Taking alleged increased risk evidence to the branded manufacturer rather than the FDA does not change the preemption analysis because any label change would still be dependent upon the act of an independent third party.  Consumer expectation-based design defect claims are based on warning information and are preempted.  No alternative design or lack of utility is pleaded that could support a risk-utility design defect claim.  Implied warranty claims are either preempted or inadequately pleaded.  Fraud claims implicating the label are preempted, any others are inadequately pleaded.
  36. Yamane v. Wyeth, 2012 WL 1120367 (Haw. Cir. Jan. 3, 2012) (phenergan).  Summary Judgment granted.  All plaintiff’s state law claims, including warranty, consumer fraud, and design defect, are really warning claims.  All warning claims involving a generic drug are preempted.  That no branded equivalent drug remains on the market does not affect preemption.  That the generic manufacturer purchased the brand name for the drug does not affect preemption.
  37. Moore v. Mylan, Inc., 840 F. Supp.2d 1337 (N.D. Ga. Jan. 5, 2012) (phenytoin).  Motion to dismiss granted.  State law claims challenging the adequacy of generic drug labeling are preempted.  That the defendant’s product has been designated a reference listed drug does not establish that it may unilaterally change its warnings.  Negligence claims alleging that generic manufacturers had a duty to cease selling their product at all are preempted.  Such a claim, if it existed at all, would directly conflict with FDA authority to determine what drugs can be sold in interstate commerce.
  38. Fisher v. Pelstring, 817 F. Supp.2d 791 (D.S.C. Jan. 11, 2012) (metoclopramide).  Motion to dismiss denied with respect to preemption arguments.  An implied warranty claim not premised on warnings is not preempted.  Motion to dismiss denied on negligence, fraud, consumer fraud, and emotional distress claims relating to failure to update generic drug labeling to include FDA-approved changes. The changes relate to the plaintiff’s claim.  A negligence action in which the standard of care is defined by statute is not necessarily the equivalent of private enforcement of the FDCA. Claim that generic defendants should have sent a Dear Doctor/DHCP letter consistent with the drug’s labeling, and without any new or additional warnings, are not preempted.
  39. Couick v. Wyeth, Inc., 2012 WL 79670 (W.D.N.C. Jan. 11, 2012) (metoclopramide). Motion to dismiss granted in part and denied in part. Without a showing establishing that the defendant’s label actually mirrored the branded label, state law warning and express warranty claims may not be preempted. An implied warranty claim not premised on warnings is not preempted. No cause of action exists for failure to test. FDCA violation claims are preempted under Buckman.
  40. In re Fosamax Litigation, 2012 WL 181411 (D.N.J. Jan. 17, 2012) (alendronate sodium).  Motion for judgment on the pleadings granted.  An authorized distributor of a generic drug has no more ability to change warnings than any other generic drug manufacturer.
  41. Coney v. Mylan Pharmaceuticals, Inc., 2012 WL 170143, slip op. (S.D. Ga. Jan. 19, 2012) (phenytoin).  Motion for summary judgment granted.  State law claims, including fraud, challenging the adequacy of generic drug labeling are preempted.  Various warning theories were not pleaded.  Claims that generic manufacturers had a duty to cease selling their product at all are preempted.  Such claims  would directly conflict with FDA authority to determine what drugs can be sold in interstate commerce.  Generic preemption is not dependent on any way on conduct of branded manufacturers or other third parties.  Nonwarning claims are inadequately pleaded.
  42. In re Pamidronate Products Liability Litigation, 842 F. Supp.2d 479 (E.D.N.Y. Jan. 30, 2012) (pamindronate).  Motion to dismiss granted.  All state law claims are preempted.  State law claims challenging the adequacy of generic drug labeling are preempted.  Design defect claims are preempted because the same requirement of “sameness” applied to the design of generic drugs.  Negligent testing and breach of express warranty claims are warning claims in disguise and are preempted.  Implied warranty claims are design defect claims in disguise and are preempted.
  43. Mardegan v. Mylan, Inc., 2012 WL 12850781 (S.D. Fla. Jan. 31, 2012) (fentanyl patch).  Motion for partial summary judgment granted.  Warning and misrepresentation claims preempted.  Dear Doctor letter claim preempted.
  44. Kellogg v. Wyeth, 2012 WL 368658, slip op. (D. Vt. Feb. 3, 2012) (metoclopramide).  Motion for judgment on the pleadings granted.  All state law warning claims are preempted.  All claims alleging a duty to provide additional information are preempted, whether for promotional or educational purposes, and whether involving on or off-label use, as they would be different from the approved labeling.  Reconsideration denied, 2012 WL 12878737 (D. Vt. March 30, 2012), preemption extends to all information, including any disseminated through reprint distribution and sponsorship of CME programs, including mentions of off-label use.
  45. Lyman v. Pfizer, Inc., 2012 WL 368675, slip op. (D. Vt. Feb. 3, 2012) (metoclopramide).  Motion for judgment on the pleadings granted in part and denied in part.  All state law warning claims are preempted.  Design defect claims are preempted because the same requirement of “sameness” applied to the design of generic drugs.  Claims that generic manufacturers had a duty to cease selling their product at all are preempted.  Claims that generic manufacturers engaged in inadequate post-marketing surveillance are preempted.  Claims relating to failure to update generic drug labeling to include FDA-approved changes are not preempted but are inadequately pleaded.
  46. Moretti v. Mutual Pharmaceutical Co., 852 F. Supp.2d 1114 (D. Minn. Feb. 13, 2012) (metoclopramide).  Motion for judgment on the pleadings granted.  All state law warning claims are preempted.  Claims alleging inadequate post-marketing surveillance are warning-related claims and are preempted.   Claims that generic manufacturers had a duty to cease marketing their product at all are preempted.  Affirmed 2013 WL 3107472 (8th Cir. June 21, 2013), see below.
  47. Gaeta v. Perrigo Pharmaceuticals Co., 469 Fed. Appx. 556 (9th Cir. Feb. 27, 2012). Summary affirmance of pre-Mensing decision holding claims against generic manufacturer preempted. Follows remand from the Supreme Court.
  48. Manous v. Mylan Pharmaceuticals, Inc., 2012 WL 13208516 (W.D. Okla. Feb. 28, 2012) (fentanyl patch). Motion to dismiss granted in part and denied in part.  Warning claims preempted.  Manufacturing defect claims survive.  Taking judicial notice of FDA documents and labeling.
  49. Bowman v. Wyeth, LLC, 2012 WL 684116 (D. Minn. March 2, 2012) (metoclopramide).  Motion for judgment on the pleadings granted.  Claims alleging false information, concealment, and knowingly marketing an unreasonably dangerous product are warning claims and are preempted.  Failure to update claims were not pleaded and fail to state a cause of action because plaintiff claims the later warnings are inadequate, and there is no duty to provide an inadequate warning.
  50. In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 718618, slip op.  (E.D. Ky. March 5, 2012) (propoxyphene).  Motion to dismiss granted.  Wrongful marketing claims that generic manufacturers had a duty to cease selling their product at all are preempted.  The sameness obligation applies to design as well as warning.  Both design and warning claims are preempted.  “Information and belief” pleading that the defendants did not update their warnings in a timely fashion is pure conjecture insufficient under TwIqbal to state a claim.  “Dear Doctor” letter-based warning claims are inadequately pleaded and would be preempted.  That a defendant’s product has been designated a reference listed drug does not establish that it may unilaterally change its warnings.  Fraud, consumer fraud, and express warranty claims seek to change the label and are preempted.  Claims based on alleged violations of the FDCA are preempted as improper private rights of action.  Motion to amend denied 2012 WL 1478798 (E.D. Ky. April 27, 2012).
  51. Cooper v. Wyeth, Inc., 2012 WL 733846, slip op. (M.D. La. March 6, 2012) (metoclopramide).  Motion to dismiss granted in part and denied in part.  Claims that the defendant manufacturer failed to update its generic drug labeling to include FDA-approved changes are not preempted.  It is not impossible to comply with federal law.  Claims for failure to communicate strengthened labels via “Dear Doctor” letter following an FDA label change are not preempted.  These claims fit within existing tort causes of action and thus are not barred as private rights of action.  Claims of inadequate post-marketing pharmacovigilance are preempted.  Claims that generic manufacturers had a duty to cease selling their product at all seek repudiation of the FDA approved label and are preempted.  Claims of failure to use additional forms of communication to provide warnings are preempted.  That a defendant’s product has been designated a reference listed drug does not establish that it may unilaterally change its warnings.  Express warranty claims based on labeling are preempted.  Design defect claims are do not really challenge the design, only the warnings, and thus are preempted.  Manufacturing defect claims are inadequately pleaded.  Reconsideration granted 2013 WL 6502554 (M.D. La. Dec. 11, 2013), all remaining claims dismissed.  “Dear Doctor” letters are labeling which cannot be unilaterally altered.  A duty to update claim involves breach of a purely federal obligation.  There is no state law duty to give an inadequate warning.
  52. Blauvelt v. Teva Pharmaceuticals, USA, Inc., 2012 WL 4766950 (Pa. C.P. March 12, 2012) (cephalexin). Judgment on the pleadings granted. All of the plaintiffs’ claims are effectively failure to warn claims and are preempted.
  53. Metz v. Wyeth, 872 F. Supp.2d 1335 (M.D. Fla. March 28, 2012) (metoclopramide).  Motion to dismiss granted in part and denied in part.  Summary judgment motion granted.  Negligence and warranty claims escape preemption to the extent they allege that the defendant should have taken additional steps to warn about information recently added to the FDA-approved label.  Claims that the drug should have been redesigned or removed from the market are preempted.  Inadequate testing and failure to report claims are preempted.  Summary judgment granted on grounds that the warnings were adequate as a matter of law.
  54. Phelps v. Wyeth, Inc., 857 F. Supp.2d 1114 (D. Or. April 24, 2012) (metoclopramide).  Summary judgment granted.  All warning claims preempted.  FDCA-based claims fail for lack of any private right of action.  Testing and monitoring claims cannot stand independently of a duty to warn.  Parallel claims cannot avoid implied preemption.
  55. Eckhardt v. Qualitest Pharmaceuticals, Inc., 858 F. Supp.2d 792 (S.D. Tex. April 30, 2012) (metoclopramide).  Motion to dismiss granted.  Preemption is unaffected by the 2007 FDAAA amendments .  The fraud on the FDA exception to the Texas presumption of adequacy statute is preempted.  Failure to test or monitor is noncausal unless it results in a changed warning, and all warning claims are preempted.  Failure to update claims are preempted, to the extent pleaded, and not pleaded to the extend unpreempted.  Withdrawal from the market claims are a fortiori preempted.  Design defect and consumer fraud claims are preempted.  Defendant cannot be liable on theories Texas law has not recognized.  Affirmed, see below.
  56. Bartlett v. Mutual Pharmaceutical Co., 678 F.3d 30 (1st Cir. May 2, 2012) (suldinac).  Jury verdict for plaintiff affirmed.  A no-alternative design design defect claim is not preempted.  State law may impose liability on a generic drug manufacturer for not removing an FDA-approved drug from the market based on the jury’s independent re-evaluation of the product’s risks and benefits.  Second-guessing the FDA is permissible under Levine.
  57. In re Reglan Litigation, 2012 WL 1613329, slip op. (N.J. Super. Law Div. May 4, 2012) (metoclopramide).  Motion to dismiss granted in large part.   All plaintiffs’ claims are warning-based and are preempted, except for failure to update labels when required by the FDA.  Nothing in the 2007 FDAAA changes the generic preemption analysis.  Claims of failure to use additional forms of communication to provide warnings are preempted.  Withdrawal from the market claims do not exist under state law and would be preempted if they did.  Affirmed 2014 WL 5840281 (N.J. Super. App. Div), and 2016 WL 4420637 (N.J. Supreme Court), below.
  58. In re Reglan Litigation,  2012 WL 1617417, slip op. (N.J. Super. Law Div. May 4, 2012) (“Reglan II“) (metoclopramide).  Motion to dismiss granted.  That a defendant’s product has been designated a reference listed drug does not establish that it may unilaterally change its warnings.
  59. Brinkley v. Pfizer, Inc., 2012 WL 1865402 (W.D. Mo. May 22, 2012) (metoclopramide).  Motion for judgment on the pleadings granted.  All claims, including failure to communicate with doctors in other ways and failure to update, are merely back-door warning claims that are preempted.  Affirmed, see below..
  60. Johnson v. Teva Pharmaceuticals USA, Inc., 2012 WL 1866839 (W.D. La. May 21, 2012) (metoclopramide).  Judgment on the pleadings granted.   All warning claims preempted.  Claims of failure to use additional forms of communication to provide warnings are preempted.  Failure to update claims are not preempted, but fail to state a claim because plaintiff pleaded that even the updated warning would have been inadequate.  Express warranty and design defect claim asserting an alternative package design are really warning claims and are preempted.  Regular design defect claims are preempted because prior FDA approval is required.  A claim that the drug should have been removed from the market is preempted and does not state a claim under state law.  Affirmed see below.
  61. Kriesmer v. Upsher-Smith Laboratories, Inc., 2012 WL 2003945 (Ohio C.P. May 24, 2012) (warfarin).  Motion to dismiss granted in part and denied in part.  All warning claims preempted.  Design/manufacturing defect claim that doses were subject to a recall because they contained more of the active ingredient than they were supposed to were not preempted.  Consumer fraud action survived because it did not have to be pleaded with specificity.
  62. Whalen v. Thompson, 2012 WL 9504373 (N.Y. Sup. May 29, 2012) (amiodorone).  Motion to dismiss granted.  Only warning claims are alleged, and all warning claims are preempted.
  63. Whitener, v. PLIVA, Inc., 2012 WL 1995795 (E.D. La. June 4, 2012) (metoclopramide).  Claims that the defendant passively knew its drug was being used off label are preempted.  Claims that the defendant actively promoted its drug for off-label use in violation of the FDCA might not be preempted and survive a motion to dismiss.  Later dismissal affirmed on non-preemption grounds, ___ F. Appx. ___, 2014 WL 1570051 (5th Cir. April 9, 2015).
  64. In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 2457825, slip op. (E.D. Ky. June 22, 2012) (propoxyphene).  Motion to reconsider denied.  The Bartlett remove the product from the market theory is unpersuasive and is rejected.
  65. Lashley v. Pfizer, Inc., 877 F. Supp.2d 466 (S.D. Miss. June 27, 2012) (metoclopramide).  Motion to dismiss granted.  All warning and design claims preempted.  Reconsideration denied (same citation, at p. 479).  Rejecting Bartlett and removal from the market claim, rejecting attempt to import parallel claim analysis into implied preemption.  Affirmed ___ F. Appx. ___, Nos. 12-60861, 12-41148, slip op. (5th Cir. Feb. 21, 2014), see below.
  66. Lyman v. Pfizer, Inc., 2012 WL 2970627 (D. Vt. July 20, 2012) (metoclopramide). Motion to dismiss granted. All warning claims preempted.  Claims of failure to use additional forms of communication to transmit later changed warnings are not preempted.  A failure to update claim is not preempted.  Claims that the product should have been packaged differently to discourage certain uses are preempted.  Design claim was preempted as a disguised attack on the product’s warnings.
  67. Aucoin v. Amneal Pharmaceuticals, LLC, 2012 WL 2990697 (E.D. La. July 20, 2012) (tramadol). Motion to dismiss granted.  A claim that the drug should have been removed from the market is preempted as they necessarily repudiate the FDA approved label.  Design defect claims are preempted as generic designs are subject to the same “sameness” requirements as generic warnings.
  68. In re Darvocet, Darvon & Propoxyphene Products Liability Litigation,  2012 WL 3109424 (E.D. Ky. July 31, 2012) (propoxyphene).  Judgment on the pleadings granted.  All claims against a contract manufacturer of generic drugs are either preempted by Mensing or barred by product identification.
  69. In re: Accutane (Isotretinoin) Products Liability Litigation, 2012 WL 3194952 (M.D. Fla. Aug. 7, 2012) (isotretinoin).  Judgment on the pleadings granted in part.  All warning claims preempted.  Design defect claims preempted under the statute’s sameness requirement.  Plaintiff may replead a manufacturing defect claim.
  70. Strayhorn v. Wyeth Pharmaceuticals, Inc., 887 F. Supp.2d 799 (W.D. Tenn. Aug. 8, 2012) (metoclopramide).  Motions to dismiss granted in seven cases.  All warning claims preempted.  The Bartlett remove the product from the market theory is rejected.  Conte is unpersuasive and rejected.  Express preemption cases are irrelevant to implied preemption.  Dear Doctor letters are labeling so claims based on them are preempted.  Failure to conform claims are preempted as private attempts to enforce the FDCA.  Conspiracy claims are preempted.  Affirmed, 737 F.3d 378, below.
  71. Truddle v. Wyeth, LLC, 2012 WL 3338715 (N.D. Miss. Aug. 14, 2012) (metoclopramide).  Motion to dismiss granted.  All warning claims preempted, including consumer fraud.  A duty to test claim is a preempted warning claim because the test results would have to be communicated.  Fraud on the FDA claims are preempted.
  72. Wiley v. Jackson Medical Center, 2012 WL 6755096 (Ala. Cir. Aug 16, 2012) (promethazine).  Motion for summary judgment granted.  All warning claims preempted.  The branded drug’s exit from the market did not allow the generic to change warnings unilaterally.  Even if the generic contractually obligated itself to update warnings, under the FDA regulations, it could not do so unilaterally.
  73. Jacobsen v. Wyeth, LLC, 2012 WL 3575293 (E.D. La. Aug. 20, 2012) (metoclopramide).  Motion to dismiss granted.  To the extent a failure to monitor claim exists under Louisiana law, it is a warning claim and is preempted.  Monitoring must result in a label change to have any effect.  A “unit of use” design defect claim is really a warning claim and is preempted.  Design defect claims are also preempted by federal “sameness” requirements.  All warning claims, including Dear Doctor letters, are preempted.  Requiring a generic drug to be removed from the market is preempted as a repudiation of the label.  No failure to update claim was pleaded, and leave to amend is not sought.  An express warranty claim based on generic labeling is preempted, and no other warranty is alleged.
  74. Phares v. Actavis-Elizabeth LLC, 892 F. Supp.2d 835 (S.D. Tex. Aug. 30, 2012) (metoclopramide).  Motion to dismiss granted.  All warning claims preempted.  The fraud on the FDA exception to the Texas statutory presumption of adequacy is preempted, therefore the statutory presumption applied.  Fraud and suppression of evidence are inadequately pleaded.  Reconsideration denied, 2015 WL 12780637 (S.D. Tex. March 19, 2015), design claim preempted, parallel claims are not an exception to preemption.
  75. Madden v. Teva Pharmaceuticals USA, Inc.,  2012 WL 5129709 (Pa. C.P. Sept. 18, 2012) (zolpidem).  Judgment on the pleadings granted.  All warning claims preempted.
  76. Hogue v. Pfizer, Inc., 2012 WL 11944897 (S.D. Ohio Sept. 27, 2012) (metoclopramide).  Judgment on the pleadings granted.  All warning claims preempted, which includes express and implied warranty, misrepresentation, fraud, and misbranding-based negligence per se claims.  A reference listed drug designation does not convert the defendant into a branded manufacturer for purposes of preemption.  Dear Doctor letter, failure to update, and design defect claims preempted.
  77. Demahy v. Schwarz Pharma, Inc., 702 F.3d 177 (5th Cir. Oct. 25, 2012) (metoclopramide).  Motion to set aside judgment denied.  All warning claims preempted, and plaintiff did not assert anything else.  Equating design-related claims with failure to warn.
  78. Acree v. Watson Pharmaceuticals, Inc., 2012 WL 5306296 (N.D. Ill. Oct. 26, 2012) (fentamy patch).  Summary judgment denied.  Plaintiff’s design defect claim was not preempted because evidence established a disputed issue of fact whether the FDA would have approved an ANDA using the alternative delivery design plaintiff advocated.  The evidence established that a competitor had such an ANDA approved.
  79. Pirello v. Qualitest Pharmaceuticals, Inc., 2012 WL 5363243 (M.D. La. Oct. 30, 2012) (metoclopramide). Judgment on the pleadings granted.  All warning claims preempted, and all means of communication with physicians are labeling, subject to sameness requirement. No express warranty claim survives because no advertisements beyond FDA-regulated labeling are alleged. Plaintiff failed to plead a design defect claim and Bartlett is not persuasive.
  80. Purvis v. Teva Pharmaceuticals, USA, Inc., 901 F. Supp.2d 716 (M.D. La. Oct. 30, 2012) (metoclopramide).  Judgment on the pleadings granted.  All warning claims preempted, and all means of communication with physicians are labeling, subject to sameness requirement.  No express warranty claim survives because no advertisements beyond FDA-regulated labeling are alleged.  Plaintiff failed to plead a design defect claim and Bartlett is not persuasive.
  81. Matherne v. Bayer Healthcare Pharmaceuticals, Inc., 2012 WL 12991011 (E.D. La. Nov. 2, 2012)  (ciprofloxacin).  Judgment on the pleadings granted in part and denied in part.  All claims except one that defendant’s label was not the same as the branded drug are preempted.
  82. Thiel v. Wyeth Inc., 2012 WL 12932936 (M.D. Fla. Nov. 6, 2012) (metoclopramide).  Motion to dismiss granted.  Removal from market claim preempted.
  83. Bowdrie v. Sun Pharmaceutical Industries Ltd., 909 F. Supp.2d 179 (E.D.N.Y. Nov. 9, 2012) (phenytoin).  Remand denied; motion to dismiss granted.  Where preemption has removed the usual common-law claims involving generic drugs, leaving only allegations that the defendant violated a federal “duty of sameness” and other FDCA-related claims, the causes of action have a substantial, disputed question of federal law as a necessary element, and the complaint is removable under federal question jurisdiction.  The failure to update claim is preempted because even updates to match branded label changes require approval by the FDA.  Strict liability, warranty, fraud, and negligence per se claims based on failure to update are likewise preempted.
  84. James C H v. Mylan Inc., 2012 WL 5504785 (E.D. Wis. Nov. 13, 2012) (fentamyl patch).  Partial motion to dismiss granted.  Marketing based claims, fraud, misrepresentation, and failure to warn claims are all labeling related and thus preempted.  All claims attacking the information provided the FDA are preempted by Buckman.
  85. Harris v. Pharmaceutical Associates, Inc., 2012 WL 6025954 (E.D. La. Dec. 4, 2012) (metoclopramide).  Motion to amend denied with prejudice.  All warning claims, including those involving Dear Doctor letters, “training programs” for doctors, and “specialized packaging” are preempted as involving labeling subject to the “sameness” requirement.
  86. Frazier v. Mylan, Inc., 911 F. Supp.2d 1285 (N.D. Ga. Dec. 18, 2012) (phentoyin).  Generic defendant’s motion to dismiss granted.  All warning claims are preempted.  Any state-law duty to withdraw a product would be preempted by direct conflict with the FDA’s power to determine what drugs can be sold in interstate commerce.  Design defect claims are preempted because generic designs are also subject to federal “sameness” requirements.  Bartlett is contrary to the logic of Mensing.
  87. White v. Mylan, Inc., 2012 WL 6951323 (W.D. Okla. Dec. 28, 2012) (fentamyl patch).  Motion to dismiss granted, primarily on TwIqbal grounds.  The complaint is too vague to find preemption, although several of the claims probably are.  Any request for judicial notice must comply with Rule 201.
  88. Abicht v. PLIVA, Inc., 2013 WL 141724 (D. Minn. Jan. 9, 2013) (metoclopramide).  Judgment on the pleadings granted.  All warning claims are preempted.  Failure to update claim is preempted because it seeks to enforce the FDCA.
  89. Gardley-Starks v. Pfizer, Inc., 917 F. Supp.2d 597 (N.D. Miss. Jan. 10, 2013) (metoclopramide).  Motion to dismiss granted.  All warning claims including “dear doctor” letters are preempted.  Failure to withdraw claim is preempted.  Failure to update claim dismissed as inadequately pleaded.  Design defect claim is preempted.  Reconsideration denied, 2013 WL 12379417 (N.D. Miss. May 23, 2013).  Rejecting parallel claim and failure to update claims.  Second reconsideration denied, 2013 WL 5423951 (N.D. Miss. Sept. 26, 2013).  Bartlett only reinforces preemption.  Mississippi follows risk/utility design defect.
  90. Holmes v. Hospira, Inc., 2013 WL 12132046 (C.D. Cal. Jan. 10, 2013) (fosphenytoin).  Motion to dismiss granted in part and denied in part.  Warning claims, failure to consult with FDA, “dear doctor” letter, and other forms of communication all preempted the FDAAA made no material changes in duty of sameness.  Duty to update claim not preempted.
  91. Arters v. Sandoz, Inc., 921 F. Supp.2d 813 (S.D. Ohio Jan. 25, 2013) (amiodarone).  Judgment on the pleadings granted in part and denied in part.  Applies presumption against presumption and pre-TwIqbal (Conley) standard of review.  All warning claims including “dear doctor” letters, are preempted.  Failure to withdraw/design defect claims involve a different duty and are not preempted.  Negligence, implied warranty, and fraud claims alleging off-label promotion are not preempted.
  92. Bryant v. Apotex, Inc., 2013 WL 394705 (E.D. Cal. Jan 30, 2013) (Gabapentin and Tramadol).  Judgment on the pleadings granted in part and denied in part.  Fraud claims are inadequately pleaded.  Overpromotion-type allegation that manufacturer told plaintiff’s prison physicians to ignore its warnings and administer the drugs in a contraindicated fashion was not preempted.
  93. Stoddard v. PLIVA USA, Inc., 2013 WL 9675806 (E.D.N.C. Jan. 30, 2013) (metoclopramide).   Judgment on the pleadings granted in part and denied in part.  This case is just like Mensing, except for regulatory violation claims that may not be preempted.  Failure to monitor is preempted because it would require a different label.  Reconsideration denied, 2014 WL 4416085 (E.D.N.C. Sept. 8, 2014) Negligence per se claim for failure to report adverse events not preempted.
  94. Morris v. PLIVA, Inc., 713 F.3d 774 (5th Cir. Feb. 14, 2013) (metoclopramide).  Judgment on the pleadings affirmed.  All warning claims, including those involving Dear Doctor letters are preempted.  Failure to update claim fails because plaintiffs alleged the updated warning was still defective.  Failure to update and test claims are preempted because they seek to enforce the FDCA.  A reference listed drug designation does not convert the defendant into a branded manufacturer for purposes of preemption.  Express warranty claim based on failure to remove from the market is preempted.
  95. Rojas v. Teva Pharmaceuticals USA, Inc., 920 F. Supp.2d 772 (S.D. Tex. Feb. 21, 2013) (metoclopramide).   Judgment on the pleadings granted.  All warning claims, including failure to test and off-label promotion, are preempted.  Manufacturing defect and fraud claims are not adequately pleaded.  Remove from the market claims are preempted, disagreeing with Bartlett.  Design defect claims are preempted by sameness requirement, and do not state a cause of action for lack of alternative design.  Failure to update claims fail to plead causation under the learned intermediary rule.
  96. Garza v. Wyeth LLC, 2013 WL 878586 (S.D. Tex. March 7, 2013) (metoclopramide).  Motion to dismiss granted in part and denied in part.  All warning claims are preempted except for failure to update in violation of FDA regulations.  State law does not recognize any claims other than warning in prescription drug cases.  Allegation of violation of FDA regulations precludes dismissal of warning claim under state presumption.  Fraud on the FDA statutory exception is preempted.  Second decision also allowing failure to update (but no other) claim – 2013 WL 3293956 (S.D. Tex. June 28, 2013).  Third decision granting summary judgment where warning was actually updated and rejecting Dear Doctor letter claim – 2013 WL 3293704 (S.D. Tex. June 28, 2013).
  97. Fulgenzi v. PLIVA, Inc., 711 F.3d 578 (6th Cir. March 13, 2013) (metoclopramide).   Granting of motion to dismiss reversed in part.  A duty to update claim is not preempted.  It is not impossible to update warnings that the FDA has ordered changed, it is required.  Implied preemption is not supported by a general congressional purpose to encourage use of generic drugs.  Duty to update claims are not impliedly preempted as attempts to enforce an exclusively federal duty because such a duty may also exist under state law, separately from the FDCA.  Nothing in Ohio law prohibits assertion of a duty to give a warning that is nevertheless legally inadequate.  Because of the sameness requirement, plaintiff cannot suggest that any other warning, besides the FDA-approved update, should be given.  Reversing Fulgenzi v. PLIVA, Inc., 867 F. Supp.2d 966 (N.D. Ohio March 31, 2012).
  98. Chatman v. Pfizer, Inc., 960 F. Supp.2d 641 (S.D. Miss. March 28, 2013) (metoclopramide).  Judgment on the pleadings granted.  Warning claims concededly preempted.  “Dear Doctor” letter claim is preempted.  Failure to update claims preempted.  Design defect, express warranty, fraud, and negligence claims are disguised warning claims.
  99. Phelps v. Wyeth Inc., 938 F. Supp.2d 1055 (D. Or. April 2, 2013) (metoclopramide).  Summary judgment denied on failure to update claims.  Impossibility rationale does not apply since FDCA required updating.  Mensing and some other appellate cases did not address updating violations.  Update claim based on state negligence is not disguised private enforcement of the FDCA.  Failure to update can inform state negligence duties.
  100. Krelic v. Mutual Pharmaceuticals Co., 31 Pa. D. &C.5th 449 (Pa. C.P. Allegheny Co. April 11, 2013)  (prednisone). Summary judgment granted.  All plaintiff’s claims involve changes to the defendant’s warnings and are preempted.  The “different manufacturers exception” to the sameness exception does not defeat preemption of warning claims. That exception does not permit different labeling as to safety and efficacy.  It does not apply to active ingredients and other aspects where sameness is required, but only to inactive ingredients and other irrelevant aspects of generic drugs.  The FDA rejected comments advocating the equivalent of a CBE process for generic drugs.
  101. Teva Pharmaceuticals USA, Inc. v. Superior Court, 217 Cal. App.4th 96, 158 Cal. Rptr.3d 150 (Cal. App. June 13, 2013) (alendronate).  Overruling of demurrer affirmed.  A duty to update claim is not preempted.  It is not impossible to update warnings that the FDA has ordered changed, it is required.  Following Fulgenzi.   A “Dear Doctor” letter claim is not preempted, to the extent that the communication followed FDA-approved updates in the labeling.
  102. Bell v. Pfizer, Inc., 716 F.3d 1087 (8th Cir. June 14, 2013) (metoclopramide).   Motion to dismiss affirmed as to all warning claims. All state law warning claims are preempted. Whether design defect and implied warranty claims are warning claims was not fully addressed by the district court, so dismissal of those claims is vacated and remanded.  Failure to update generic warning claims fail because the prescriber did not rely on the generic defendants’ warnings, so preemption issues need not be addressed.  Affirming in part and vacating in part 845 F.Supp.2d 967.  Opinion after remand, 2014 WL 12160739, below.
  103. Moretti v. Mutual Pharmaceutical Co., 518 Fed. Appx. 486 (8th Cir. June 21, 2013) (metoclopramide).  Judgment on the pleadings affirmed.  All of plaintiff’s claims involved warnings.  All other arguments were waived.
  104. Mutual Pharmaceutical Co. v. Bartlett, 133 S.Ct. 2466, slip op. (U.S. June 24, 2013) (suldinac).  Jury verdict for plaintiff reversed.  Bartlett v. Mutual Pharmaceutical Co., (1st Cir. May 2, 2012) affirmed.   Generic drug companies cannot be liable for design defects.  The design of a generic drug must be the same as its reference drug.  Drugs composed of a single molecule cannot be redesigned, only labeled differently.  Mensing bars all warning-related claims.  Impossibility preemption cannot be avoided by arguing that manufacturers have the option of removing their FDA-approved products from the market altogether.  That argument would eliminate implied preemption.  Reversing 678 F.3d 30.
  105. Guarino v. Wyeth, 719 F.3d 1245 (11th Cir. June 25, 2013) (metoclopramide).  Rule 12(b)(6) dismissal affirmed.  A “failure to communicate” claim based on Dear Doctor letters is a warning claim in disguise.  All state law warning claims are preempted.
  106. In re Isotretinoin Litigation, No. ATL-L-1321-09, 2013 WL 3483813 (N.J. Super. Law Div. June 28, 2013) (isotretinoin).  All claims dismissed.  The relevant warnings were at all times the same as the warnings required by the FDA for the branded product.   Nothing in the 2007 FDAAA changes the generic preemption analysis.  All state law warning claims, including implied warranty, common law fraud, fraudulent concealment, and negligent misrepresentation, are preempted, and warnings are the crux of all plaintiff’s allegations.  Generic manufacturers cannot change the designs of their products, so design defect claims are preempted.  Where a manufacturer cannot change its design or label, risk/utility-based claim is preempted.  “Dear Doctor” letter claims are preempted.  Requesting a label change from the branded manufacturer would turn in the speculative actions of the branded manufacturer, and is therefore preempted by analogy to Mensing.  Wrongful marketing claims that generic manufacturers had a duty to cease selling their product at all do not exist under state law and are preempted.  Claims of inadequate post-marketing pharmacovigilance are preempted.
  107. Ko v. Mutual Pharmaceutical Co., 2013 WL 3338596 (N.D. Cal. July 1, 2013) (suldinac).  Motion to dismiss granted.  All warning related claims are preempted.  Pro se plaintiff’s complaint is vague as to what is alleged.  Leave to amend granted.
  108. Fullington v. PLIVA, Inc., 720 F.3d 739 (8th Cir. July 15, 2013) (metoclopramide).   Grant of motion to dismiss largely affirmed.   State law claims challenging the adequacy of generic drug labeling are preempted.   These are the vast majority of the claims.  Dismissal of possible non-warning claims vacated and remanded for probable re-dismissal in light of Bartlett.  The only possible distinction is between the risk/utility defect theory in Bartlett and Arkansas’ following of a consumer protection design defect model.  Failure to update generic warning claims fail because the prescriber did not rely on the generic defendants’ warnings, so preemption issues need not be addressed.  Affirming in part and vacating in part 2011 WL 6153608 (E.D. Ark. Dec. 12, 2011), reconsideration denied, 2012 WL 2918711 (E.D. Ark. July 17, 2012).
  109. Hassett v. Dafoe, 74 A.3d 202 (Pa. Super. July 29, 2013) (metoclopramide).  Denial of preliminary objections affirmed in part and reversed in part in over 2000 cases involving claims from through out the country. Blanket preemption of state-law specific claims is premature. Absolute liability claims without regard to whether drugs can be redesigned is not a warning claim, nor are warning claims that subject distributors and retailers of defective products to strict liability even though they have no control over the design of the product. These might have vitality, but might be preempted under Bartlett as stop selling claims. Preemption depends on comparing the federal requirement against the particular state law at issue. Preemption of warning claims does not necessarily extend to marketing, negligent testing, or express and implied warranties. Warranty claims based on advertising and promotion not constituting FDA approved labeling would not be preempted, as only labeling is subject to a sameness requirement. Fraudulent advertising and promotion are not warning claims, but are based on a duty not to deceive. Disgorgement and civil conspiracy are not warning claims, but remedies for tortious business practices. Failure to communicate updated warning claims were not addressed by the Supreme Court and might survive preemption. Failure to update claims may be pursued as negligence per se and do not seek to enforce the FDCA. Without a thorough analysis preempting post-FDAAA warning claims is premature. Pre-FDAAA claims involving compliant generic labeling are preempted. Design claims may be preempted but is premature without a state-by-state analysis
  110. In re Reglan/Metoclopramide Litigation, 81 A.3d 80 (Pa. Super. July 29, 2013) (metoclopramide).   Denial of preliminary objections affirmed in part and reversed in part in over 2000 cases involving claims from through out the country. Blanket preemption of state-law specific claims is premature. Absolute liability claims without regard to whether drugs can be redesigned is not a warning claim, nor are warning claims that subject distributors and retailers of defective products to strict liability even though they have no control over the design of the product. These might have vitality, but might be preempted under Bartlett as stop selling claims. Preemption depends on comparing the federal requirement against the particular state law at issue. Preemption of warning claims does not necessarily extend to marketing, negligent testing, or express and implied warranties. Warranty claims based on advertising and promotion not constituting FDA approved labeling would not be preempted, as only labeling is subject to a sameness requirement.  Fraudulent advertising and promotion are not warning claims, but are based on a duty not to deceive.  Disgorgement and civil conspiracy are not warning claims, but remedies for tortious business practices.   Failure to communicate updated warning claims were not addressed by the Supreme Court and might survive preemption. Failure to update claims may be pursued as negligence per se and do not seek to enforce the FDCA. Without a thorough analysis preempting post-FDAAA warning claims is premature. Pre-FDAAA claims involving compliant generic labeling are preempted.   Design claims may be preempted but is premature without a state-by-state analysis.
  111. In re Reglan/Metoclopramide Litigation, 74 A.3d 221 (Pa. Super. July 29, 2013) (metoclopramide).   Denial of preliminary objections affirmed.  Whether the manufacturer of a generic drug, designated by the FDA as a reference listed drug after the withdrawal of the original innovator RLD from the market, acquires as a result of the FDA’s designation the ability to change its label unilaterally through the CBE process is unclear under FDA administrative pronouncements.  Because the RLD defendant has the burden of proof, it has not established preemption.
  112. Neeley v. Wolters Kluwer Health, Inc., 2013 WL 3929059, slip op. (E.D. Mo. July 29, 2013) (metoclopramide).  Motion to dismiss granted in part and denied in part.  Duty to update claims are not preempted by sameness or Buckman.  It cannot be determined from the pleadings whether Kentucky law design defect claims are preempted.
  113. In re Fosamax Products Liability Litigation, 965 F. Supp.2d 413 (S.D.N.Y. Aug. 15, 2013) (alendronate sodium).  Plaintiffs conceded most warning claims preempted.  Failure to update claims are not preempted.  Failure to communicate claims based on “Dear Doctor” letters are preempted.  Design defect claims are preempted since any change would have required FDA pre-approval.  Changes in design and warning are preempted, as is any claim to that the product should not have been marketed.  There is no other possible method of compliance, so design defect claims are preempted.
  114. Schrock v. Wyeth Inc., 727 F.3d 1273 (10th Cir. Aug. 28, 2013) (metoclopramide).  Denial of leave to amend to add express and implied warranty claims affirmed.  To the extent they are warning claims they are preempted.  To the extent they challenge the composition of the drug they are also preempted because design changes require prior FDA approval.  Stop selling claims are preempted.  Plaintiffs did not plead a misbranding claim.
  115. Parris v. Eli Lilly & Co., 2013 WL 5310167 (E.D. Tenn. Sept. 20, 2013) (fluoxetine).  Judgment on the pleadings granted.   All warning related claims are preempted, and plaintiff alleged nothing else.
  116. Ko v. Mutual Pharmaceutical Co., 2013 WL 5692375 (N.D. Cal. Oct. 18, 2013) (suldinac).  Motion to dismiss granted against all claims brought by pro se plaintiff.  All warning claims, including warranty and unfair competition are preempted.  A claim that preemption is unjust is beyond the power of a lower court to address.
  117. Stephens v. Teva Pharmaceuticals, U.S.A., Inc., 2013 WL 12149265 (N.D. Ala. Oct. 31, 2013) (amiodarone).  Motion to dismiss granted against all claims.  All plaintiff’s claims, including Dear Doctor letters, are preempted.
  118. Tillman v. Woldenberg Village, Inc., 2013 WL 6198864, slip op. (E.D. La. Nov. 27, 2013) (phenytoin).  Motion to dismiss granted against all claims.  Design defect claims are preempted.  A trial court cannot ignore Supreme Court precedent as unfair.
  119. Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d 378 (6th Cir. Dec. 2, 2013) (metoclopramide).   Grant of motion to dismiss against all claims affirmed under Tennessee law.  Warning claims, however styled, are preempted.  Warranty and fraud claims seek changes in labeling, and are preempted.  Express warranty claims also fail under TwIqbal.  Design defect claims are barred by Bartlett.  “Dear Doctor” letters are labeling and different labels are preempted.  Mensing and Bartlett control, not cases applying express preemption.  Failure to update claims fail under TwIqbal.  Conspiracy claims both failed TwIqbal and involved warnings.  Affirming 887 F. Supp.2d 799.
  120. Wilson v. Amneal Pharmaceuticals, L.L.C., 2013 WL 6909930 (D. Idaho Dec. 31, 2013) (generic Bactrim).  Motion for judgment on the pleadings granted against all claims.  Judicial notice of FDA documents and drug labeling allowed.  All warning and design claims preempted.  Plaintiff did not plead a failure to update claim.
  121. Drager v. PLIVA USA, Inc., 741 F.3d 470 (4th Cir. Jan. 28, 2014) (metoclopramide).  Judgment on the pleadings affirmed against all claims under Maryland law.  Plaintiff can’t claim error in the denial of a motion to amend that was never made.  A generic manufacturer cannot be forced to change its label, change its design, stop selling its product or accept tort liability for not doing those things.  Claims based on marketing, testing, or post-market surveillance are all warning-related and preempted.  Whether a design defect claim is based on consumer expectations or risk/utility, it is preempted because it would require a design change without mandatory FDA pre-approval.  All express and implied warranty claims are preempted.  Fraud and negligent misrepresentation claims are preempted even if based on “promotional” materials because such claims are based on product information; it is “frivolous” to argue otherwise.
  122. Lashley & Del Valle v. Pfizer, Inc., 750 F.3d 470 (5th Cir. Feb. 21, 2014) (metoclopramide).  Grant of motions to dismiss against all claims affirmed under Mississippi and Texas law.  Failure to communicate/Dear Doctor letter claims are preempted.  There is no liability under state law for failure to include better warnings that are still inadequate.  Parallel claims analysis is unavailable in an implied preemption case.
  123. Dolin v. SmithKlineBeecham Corp., 2014 WL 804458, slip op. (N.D. Ill. Feb. 28 2014) (paroxetine).  Motion to dismiss granted against all claims.  Where there was no warning of a risk, and plaintiff claims that there should have been, there is no way a “Dear Doctor” letter claim could involve information that is the same as the label.
  124. Fullington v. Pfizer, Inc., 2014 WL 806149, slip op. (E.D. Ark. Feb. 28, 2014) (metoclopramide).  Motion to dismiss remanded claims (see Fullington, 720 F.3d 739, above) granted.   Whether a design defect claim is based on consumer expectations or risk/utility, it is preempted because it would require a design change without mandatory FDA pre-approval.  Plaintiff could not identify anything that defendant could have done to comply with state law that did not violate federal law.  Plaintiff had no explanation how post-market surveillance fit as a recognized cause of action Arkansas law, and no explanation how post-market surveillance would have prevented the defendant from being liable.
  125. Nelson v. Wal-Mart Stores, Inc., 2014 WL 12461056 (N.D. Fla. March 26, 2014) (Equate).  Motion to dismiss granted against all but one claim.  Retailer was entitled to assert generic preemption where its differential pricing of two generic OTC drugs of identical composition mirrored the FDA’s grant of approval to two branded OTC drugs that did the same thing.  While in-store labeling mirrored the branded labeling, certain internet labeling did not, and therefore escaped preemption.
  126. In re Yasmin & Yaz Drospirenone Marketing, Sales Practices & Products Liability Litigation, 2014 WL 1632149 (S.D. Ill. April 24, 2014) (drospirenone; ethinyl estradiol).  Judgment on the pleadings granted against all but one claim against authorized distributor of generic drug.  Distributors cannot unilaterally change FDA-approved labels.  Nothing in the 2007 FDAAA changes anything relevant to generic preemption.  Whether a design defect claim is based on consumer expectations or risk/utility, it is preempted because it would require a design change without mandatory FDA pre-approval.  A claim that the distributor participated in failing to report post-marketing risks that would have resulted in a misbranded product is not preempted outright, and raises factual issues that cannot be decided on the pleadings, and would escape preemption.
  127. In re Fosamax (Alendronate Sodium) Products Liability Litigation (No. II),751 F.3d 150 (3d Cir. April 30, 2014) (alendronate sodium).  Judgment on the pleadings affirmed against design defect claims (all other claims waived).  Any product liability claim that requires a generic drug manufacturer to change its warnings, change its design or remove its product from the market is preempted.  Neither Restatement (Second) §402A, comment k, nor Restatement (Third) §6(c) state unpreempted theories.
  128. Willis v. Hospira, Inc., 2014 WL 2795315 (Mag. E.D. Tex. May 5, 2014), adopted, same citation (E.D. Tex. June 3, 2014) (metoclopramide).  Motion to dismiss granted against all claims.  The only viable theory against a prescription drug in Texas is a warning claim, and all warning claims are preempted.  Fraud on FDA allegations preempted by Buckman.  Failure to communicate/report claims are preempted.
  129. Eckhardt v. Qualitest Pharmaceuticals, Inc.,751 F.3d 674 (5th Cir. May 13, 2004) (metoclopramide).  Granting of motion to dismiss affirmed against all claims.  All claims are product liability claims under the Texas statute.  All warning claims preempted by Mensing.  All design claims preempted by Bartlett.   An alternative design requirement is incompatible with FDA design approval.  Breach of warranty claims and consumer protection claims are warning-based and are preempted.  Affirming 858 F. Supp.2d 792.
  130. Bell v. Pfizer, Inc., 2014 WL 12160739 (E.D. Ark. May 13, 2014) (metoclopramide).  Judgment on the pleadings entered against all remaining claims.  Design, implied warranty, and duty to refrain from selling claims preempted by Bartlett.  Prior proceedings, above, 716 F.3d 1087.
  131. Dietrich v. Actavis, Inc., 138 So.3d 1163 (Fla. App. May 21, 2014) (not stated).  Pleadings based preemption ruling affirmed.  Mensing preempts warning claims and is properly extended to failure to communicate claims based on Dear Doctor letters.  Affirming 2012 WL 12314992.
  132. Hendricks v. Pharmacia Corp., 2014 WL 2515478 (Mag. S.D. Ohio June 4, 2014) (phenytoin).  Motion to dismiss granted against all claims.  Warning claims, including implied warranty, and design claims are all preempted.  Pro se prisoner case.
  133. Moretti v. Wyeth, Inc., 579 F. Appx. 563 (9th Cir. June 17, 2009) (metoclopramide).  Granting of motion to dismiss affirmed against all claims.  Claims based on failure to change a generic drug’s warnings or composition are preempted.  Failure to report adverse events are preempted because any change to warnings remained dependent on the FDA’s discretionary action.  Failure to withdraw claims are preempted.  Failure to update claim was non-causal because plaintiff had stopped taking the drug.
  134. In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917 (6th Cir. June 27, 2014).  Granting of motion to dismiss affirmed against all claims.  “Parallel” misbranding claims, assuming they exist and could be an exception to preemption, are not pleaded without new information available to the generic defendants.  Information that the FDA already had is not sufficient.  Failure to update claims insufficiently pleaded.  “Dear Doctor” letter claims preempted.  Preemption applies equally to generic drugs designated as reference listed drugs by the FDA. All warranty, fraud, misrepresentation, and consumer fraud claims preempted.  Allegations that the defendants were negligent by violating the FDCA were impliedly preempted by Buckman.  All claims against an innovator who had sold its NDAs and thereafter manufactured on a contract basis for a generic ANDA holder are preempted because the innovator could not act without prior approval.
  135. Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa July 11, 2014) (metoclopramide).  Allows failure to update claims – the only claims appealed – to escape preemption.  Such claims can be brought without depending on the FDCA.  Reversing 2013 WL 1749774 and 2012 WL 553492 with respect to failure to update.
  136. Johnson v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605 (5th Cir. July 11, 2014) (metoclopramide).  Granting of motion to for judgment on the pleadings affirmed against all claims. All claims are product liability claims under the Louisiana statute. All warning claims including those based on Dear Doctor” letters, preempted by Mensing. Failure to update claims preempted as FDCA private enforcement.  No cause of action for failing to give a different, inadequate warning.  All design and stop-selling claims preempted by Bartlett.  Express warranty claims are warning-based and are preempted. Affirming 2012 WL 1866839.
  137. Wagner v. Pfizer, Inc., 2014 WL 3447476, slip op. (W.D. Wis. July 11, 2014) (synthetic progestins – hormone therapy).  Judgment on the pleadings granted.  All of plaintiff’s claims, including infliction of emotional distress, would require changing either the generic drug’s warnings or composition, which are preempted.  Failure to update claims are preempted as disguised FDCA enforcement.  There is no duty to give an inadequate warning.  Affirmed see below 840 F.3d 355.
  138. Franzman v. Wyeth, Inc., 451 S.W.3d 676 (Mo. App. Aug. 26, 2014) (metoclopramide).   Granting of motion to dismiss affirmed against all but one claim.  Only failure to update to conform to changes in the FDA labeling survive preemption.  Failure to update is premised on state (Kentucky) warning duties and is not a disguised FDCA cause of action.
  139. Nicely v. Wyeth, Inc., 451 S.W.3d 694 (Mo. App. Aug. 26, 2014) (metoclopramide).  Granting of motion to dismiss affirmed against all but one claim.  Analysis is same as Franzman.
  140. Davis v. Teva Pharmaceuticals, Inc., 2014 WL 4450423, slip op. (E.D. La. Sept. 8, 2014) (aviane).  Motion to dismiss granted against all claims.  Design and warning preempted.  Any claim based on alleged unlawful design deviation is preempted as a private FDCA enforcement action.  Manufacturing claim TwIqballed.
  141. Mitchell v. Sandoz Inc., 2014 WL 4676526 (W.D. Ky. Sept. 18, 2014) (enoxaparin).  Motion to dismiss granted against all claims.  Pro se plaintiff.
  142. In re Accutane Products Liability, 2014 WL 12617750 (M.D. Fla. Sept. 23, 2014) (isotretinoin).  Remaining design defect claim preempted.
  143. Stephens v. Teva Pharmaceuticals, U.S.A., Inc., 70 F. Supp.3d 1246 (N.D. Ala. Oct. 1, 2014).  Off-label promotion allegations do not defeat preemption.
  144. In re Reglan Litigation, 2014 WL 5840281, slip op. (N.J. Super. App. Div. Nov. 12, 2014) (unpublished) (metoclopramide).  Denial of motions to dismiss/for summary judgment against failure to update claims affirmed.  All other claims were dismissed and not appealed.  Failure to update is a can be expressed as a state-law failure to warn action, so it’s not private FDCA enforcement.  Failure to update is compatible with the federal sameness obligation and does not involve fraud on the FDA.  Affirmed 142 A.3d 725 (N.J. Supreme Court), below.
  145. Brinkley v. Pfizer, Inc., 772 F.3d 1133 (8th Cir. Dec. 2, 2014) (metoclopramide).  Granting of judgment on the pleadings affirmed.  All claims, including “Dear Doctor” letter communication, are preempted since plaintiff cannot seek changes in generic warnings or design and cannot assert that the defendant cannot sell the product.  State law variations concerning design defect do not matter.  Failure to update is disguised FDCA enforcement, and in any event the prescriber did not read or rely on the generic warning.  Affirming 2012 WL 1865402.
  146. Connolly v. Sandoz Pharmaceuticals Corp., 2014 WL 12480025 (N.D. Ga. Dec. 23, 2014) (amiodarone).  Motion to dismiss granted against all claims.  Claims involving distribution of medication guides to physicians and off-label promotion are preempted warning claims.  Claims involving distribution of medication guides to patients preempted as private FDCA enforcement.
  147. Garza v. Wyeth LLC, 2015 WL 364286 (S.D. Tex. Jan. 27, 2015) (metoclopramide).   Defendant’s motion for reconsideration granted.  All claims, including duty to update, are preempted.
  148. Trahan v. Novartis Pharmaceuticals Corp., 2015 WL 2365502, slip op. (M.D. Fla. March 26, 2015) (methotrexate).  Motion to dismiss denied.  A packaging claim, not challenging the warnings or the composition of the generic drug’s active ingredients, is not preempted.  No statute or regulation requires generics to have the same packaging as its innovator bioequivalent, and there is no evidence that the defendant used the same quality packaging.  While defendant cannot now change the packaging without FDA approval, it need not have chosen the allegedly defective packaging in the first place.  Manufacturing defect claims, alleging that what the defendant produced was not what was intended, are not preempted because they do not challenge sameness.  Plaintiff is not claiming a separate duty to test, only that testing contributed to defects in unpreempted claims.
  149. Guvenoz v. Target Corp., 30 N.E.3d 404 (Ill. App. March 27, 2015) (propoxyphene), denial of notion to dismiss affirmed.  Negligence, strict liability, fraud, and consumer fraud claims that a generic drug that was later removed from the market by the FDA should never have been sold because its risks outweighed its benefits is not preempted.  Because no improved design or label was possible, there is is no direct and positive conflict with FDA design or labeling requirements.  A stop selling claim is not preempted where plaintiff alleged that withdrawal from the market will result in a net public benefit.
  150. Houston v. United States, 2015 WL 1840685, slip op. (N.D. Ill. April 20, 2015) (allopurinol).  Motion to dismiss granted against all claims.  The FDAAA made no changes to the duty of sameness.  Affirmed slip op. see below.
  151. Rusk v. Wyeth-Ayerherst Labs., 2015 WL 3651434 (Mag. W.D. Tex. June 11, 2015) (aminodarone), motion to dismiss granted in part and denied in part.  All warning and design claims preempted.  Parallel claims alleging false off-label promotion and failure to ensure patient receipt of a medication guide survive preemption, but must be more specifically pleaded.
  152. Bell v. Wyeth, Inc., 117 F. Supp.3d 1355 (M.D. Ala. Aug. 3, 2015) (metoclopramide).   Motion for judgment on the pleadings granted.  Failure to update does not oust impossibility preemption.  Plaintiff does not allege failure to update as a separate claim and only attacks federally approved labeling with claims that could not be satisfied by timely, federally-compliant label changes.
  153. Weeks v. Wyeth, Inc.120 F. Supp.3d 1278 (M.D. Ala. Aug. 3, 2015) (metoclopramide).   Motion to dismiss granted.  It is not necessary, to establish impossibility preemption, for generic defendants to prove that there was no adequate innovator (as opposed to generic) drug warning actually given to the plaintiff.  Plaintiff alleged this in her complaint.  Beyond that argument, plaintiff makes no argument against preemption.
  154. Fulgenzi v. PLIVA, Inc., 140 F. Supp.3d 637 (N.D. Ohio Oct. 23, 2015) (metoclopramide).  Summary judgment granted.  Failure to communicate claims asserting a need for “Dear Doctor” letters are preempted.
  155. In re Testosterone Replacement Therapy Products Liability Litigation, 142 F. Supp.3d 747 (N.D. Ill. Nov. 9, 2015) (testosterone cypionate and testosterone pellet).  Motion to dismiss granted against all claims.  The generic defendants cannot independently redesign their drugs so all design claims are preempted.  Nor can they change their labeling.  Reference listed drugs that are generics are not free to make unilateral label changes.  The Pennsylvania view of RLD regulations, lacking subsequent FDA interpretations, is incorrect.  Reconsideration granted in part, 2016 WL 861213 (N.D. Ill. March 7, 2016) Claims based on promotion of off-label use are not preempted as parallel claims.  Affirmed ___ F.3d ___, 2018 WL 476343, see below
  156. In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2015 WL 7272766 (S.D. Ill. Nov. 18, 2015) (gianvi).  Motion for judgment on the pleadings granted.  If a parallel misbranding claim exists at all after Bartlett, it cannot exist in a state that recognizes comment k, because comment k makes design claims dependent on product warnings.  Fraud, negligent misrepresentation, express warranty, and consumer fraud claims are preempted attacks on warnings.
  157. PLIVA, Inc. v. Dement, 780 S.E.2d 735 (Ga. App. Nov. 20, 2015) (metoclopramide).  Failure to update claims, expressed either as failure to warn or as misbranding theories, are not preempted.  Failure to communicate via “Dear Doctor” letter claims are preempted.  Certiorari granted, No. S16G0685 (Ga. Sept. 6, 2016) (appeal by PLIVA).
  158. Tsavaris v. Pfizer, Inc., 154 F. Supp.3d 1327 (S.D. Fla. Jan. 7, 2016) (estradiol/norethindrone acetate).  Motion for judgment on the pleadings granted.  All claims that would require changes to design or warnings preempted, including negligent misrepresentation and failure to test.  Claims that the defendant could have designed a different drug altogether and submitted that drug to the FDA, rather than the drug the FDA approved are preempted.  If the defendant designed a new drug, it would not be generic and would be subject to a different approval process.  Preapproval defects are a version of the stop selling altogether analysis preempted in Bartlett, since such theories allege that the drug in question should never have been sold.  Affirmed see 2017 WL 5593488, below.
  159. Houston v. United States, 638 F. Appx. 508 (7th Cir. Feb. 3, 2016) (allopurinol).  Grant of motion to dismiss affirmed.  Duty of sameness preempts all claims that would require a generic manufacturer to redesign its product, change its labeling or leave (or never enter) the market to avoid liability.  The FDAAA did not change the duty of sameness.  FDAAA does not require negotiation of label changes.  Affirming 2015 WL 1840685.
  160. Woods v. Wyeth, LLC, 2016 WL 1719550 (N.D. Ala. April 29, 2016) (metoclopramide). Motion for judgment on the pleadings granted. Warning and failure to send Dear Doctor letter claims preempted. Failure to update claims not preempted, but are inadequately pleaded.
  161. Mitchell v. Qualitest Pharmaceuticals, 187 F. Supp.3d 831 (W.D. Ky. May 6, 2016) (generic Norco). Motion to dismiss granted against all claims design and warning. Judicial notice taken of generic and branded FDA drug approval documents.
  162. Mitchell v. Actavis Pharmaceuticals, 185 F. Supp.3d 971 (W.D. Ky. May 6, 2016) (diazepam). Motion to dismiss granted against all claims – design and warning.
  163. Boros v. Pfizer, Inc., 2016 WL 3131403 (Del. Super. May 25, 2016) (azithromycin).  Motion to dismiss denied against duty to update claim.  Claim is not private FDCA enforcement.  Subsequent decision below, 2019 WL 1558576.
  164. Perdue v. Wyeth Pharmaceuticals, 209 F. Supp.3d 847 (E.D.N.C. July 20, 2016) (aminodarone).  Motion to dismiss granted against all claims.   All warning and design claims preempted.  Off-label promotion claims impliedly preempted as private FDCA enforcement, as no equivalent state-law claim exists.
  165. Elliott v. Sandoz, Inc., 2016 WL 4398407 (N.D. Ala. Aug. 18, 2016) (aminodarone).  Motion to dismiss granted against all claims.  Ordinary warning claims preempted.  Warning claims based on inadequate supply of medication guides for others to distribute to patients preempted by Buckman as purely FDCA-enforcement claims.  Given the learned intermediary rule, no similar state-law duty exists.  Off-label promotion claims inadequately pleaded under Rule 9(b).
  166. In re Reglan Litigation, 142 A.3d 725 (N.J. Aug. 22, 2016) (metoclopramide).  Denial of motions to dismiss/for summary judgment against failure to update claims affirmed.  All other claims were dismissed and not appealed.  State law requires adequate warnings, and inadequate, unupdated warnings would be actionable under state law regardless of the FDCA, therefore the claims are not preempted under Buckman.  Since updating is also required by federal law to keep branded and generic labeling the same, state-law liability for unupdated warnings is complementary, and no preemptive conflict exists.  Generic drug manufacturers seeking a preemption safe-harbor must exercise reasonable diligence to effectuate FDA-required updates in a timely fashion.  Any warning claims beyond what the FDA required would be preempted.  Affirming 2012 WL 1613329 and 2014 WL 5840281 above.
  167. Wagner v. Teva Pharmaceuticals USA, Inc., 840 F.3d 355 (7th Cir. Oct. 18, 2016) (synthetic progestins – hormone therapy).  Judgment on the pleadings against all claims affirmed.  All warning-related claims preempted regardless of how they are styled.   The FDAAA did not change the duty of sameness.  Failure to update waived by failure to plead.  Affirming 2014 WL 3447476 above.
  168. Castro v. Pfizer, Inc., 2016 WL 11697281 (N.Y. Sup. Nov. 7, 2016) (phenytoin).  Motion to dismiss granted against all claims, including post-sale duty to warn, duty to test, express and implied warranties, and negligence per se.  Affirmed on other grounds, 124 N.Y.S.3d 357.
  169. Mitchell v. Lupin Pharmaceuticals, 2016 WL 6662713 (W.D. Ky. Nov. 10, 2016) (levetiracetam).  Motion to dismiss granted against all claims.   All warning and design claims preempted.
  170. Laxton v. Teva Pharmaceuticals USA, Inc., 2016 WL 6947487 (E.D. Mo. Nov. 28, 2016) (phentermine, adipex-p).  Motion to dismiss granted against all claims.   All warning and design claims preempted.
  171. Watson v. Mylan Pharmaceuticals, Inc., 2016 WL 6996263 (D. Kans. Nov. 30, 2016) (amnesteem).  Motion to dismiss granted against all claims.   All warning, design, and stop selling claims preempted.  Dear doctor letter claim preempted.
  172. Elmazouni v. Mylan, Inc., 220 F. Supp.3d 736 (N.D. Tex. Dec. 1, 2016) (fentanyl patch).  Motion to dismiss granted against all claims.  Judicial notice taken of FDA approval and label.  All warning, design, misrepresentation, and implied warranty claims preempted.  Manufacturing claims inadequately pleaded.
  173. Kious v. Teva Pharmaceuticals USA, Inc., 2016 WL 9559038 (W.D. Okla. Dec. 8, 2016) (azithromycin).  Motion to dismiss granted against all claims.  2007 FDAAA did not change sameness requirement.  Argument that it did is inconsistent with 2013 FDA proposed final rule.  Design, warning, warranty, and fraud all preempted.
  174. Pramann v. Janssen Pharmaceuticals, 2017 WL 58469 (E.D. La. Jan. 5, 2017)  (generic risperidone).  Motion to dismiss granted against all claims.  All claims except manufacturing defect preempted, and that claim was vaguely pleaded.  Private FDCA enforcement not permitted.  Judicial notice taken of generic labeling.
  175. Priest v. Sandoz, Inc., 2017 WL 11162903 (Mag. W.D. Tex. Dec. 28, 2016) (amiodarone).  Motion to dismiss granted in part and denied in part.  All claims preempted except off-label promotion and failure to provide medication guide.  Off-label promotion inadequately pleaded.  Adopted 2017 U.S. Dist. Lexis 73278 (W.D. Tex. Jan. 31, 2017).
  176. Mitchell v. Wyeth Pharmaceuticals, Inc., 2017 WL 7361751 (Mag. W.D. Tex. Jan. 19, 2017) (amiodarone).  Motion to dismiss granted in part and denied in part.  All claims preempted except off-label promotion and failure to provide medication guide.  Off-label promotion inadequately pleaded.  Adopted 2017 WL 7361750 (W.D. Tex. Feb. 9, 2017).
  177. LeBoeuf v. Janssen Pharmaceuticals, Inc., 2017 WL 175781 (E.D. La. Jan. 17, 2017) (generic risperidone).  Motion to dismiss granted against all claims.  All claims except manufacturing defect preempted, and that claim was vaguely pleaded.  Private FDCA enforcement not permitted.
  178. McDaniel v. Upsher-Smith Pharmaceuticals, Inc., 229 F. Supp.3d 707 (W.D. Tenn. Jan. 26, 2017) (amiodarone). Motion to dismiss granted against all claims.  Failure to warn claims involving:  (1)  alleged failure to supply a medication guide to the plaintiff, and (2) off-label promotion are barred by Buckman as private attempts to enforce the FDCA.  Affirmed, 893 F.3d 941, below..
  179. Tutwiler v. Sandoz, Inc., 2017 WL 11609669 (N.D. Ala. March 9, 2017) (amiodarone).  Motion to dismiss granted against all claims.  Medication guide claim preempted.  Off-label promotion claims insufficiently pleaded.
  180. McLeod v. Sandoz, Inc., 2017 WL 1196801 (D.S.C. March 31, 2017) (amiodarone).   Motion to dismiss granted in part and denied in part.  All claims against warnings or medication guide preempted.  Off-label promotion claims may escape generic preemption, would not exist but for the FDCA, so are preempted under Buckman.  False off-label promotion claims are not preempted at this stage, but will be if they seek different labeling.  Claims fail to plead causation under learned intermediary rule.  Failure to supply medication guide claims are Buckman preempted.
  181. Wells v. Wyeth Pharmaceuticals, Inc., 2017 WL 8182749 (Mag. W.D. Tex. April 12, 2017) (amiodarone).   Motion to dismiss granted in part and denied in part.  All claims preempted except fraudulent off-label promotion and failure to provide a medication guide.  Fraud claim is inadequately pleaded.
  182. Hernandez v. Wyeth-Ayerst Laboratories, Inc., 2017 WL 1386176 (N.D. Ill. April 18, 2017) (amiodarone).  Motion to dismiss denied.  Parallel claims allowed in generic preemption under Bausch.  Off-label promotion and medication guide claims allowed.  Off-label promotion fraud claim fails Rule 9(b).
  183. Polt v. Sandoz, Inc., No. CV 16-2362, 2017 WL 11507637 (E.D. Pa. July 10, 2017) (amiodarone?).  Motion to dismiss granted as to all claims (but not all on preemption).  Negligent off-label marketing impliedly preempted as private FDCA enforcement.
  184. Wydermyer v. Janssen Pharmaceuticals, Inc., 2017 WL 3836143 (Mag. E.D. Tex. July 19, 2017), adopted, 2017 WL 41293191 (E.D. Tex. Sept. 19, 2017) (risperidone).  Motion to dismiss granted in part and denied in part.  A claim for fraudulent off-label promotion may be asserted against a generic drug manufacturer.  All other claims dismissed.
  185. Garner v. Johnson & Johnson, Janssen Research & Development LLC, 2017 WL 6945335 (C.D. Ill. Sept. 6, 2017) (levofloxacin).  Motion to dismiss granted as to all claims.  All plaintiff’s claims concern the information that accompanied the drug, and are therefore preempted.
  186. Moore v. Zydus Pharmaceuticals (USA), Inc., 277 F. Supp.3d 873 (E.D. Ky. Sept. 29, 2017) (amiodarone).  Motion to dismiss granted in part and denied in part.  Strict liability and warranty claims would require label changes.  Off-label promotion claims would require changes to labeling.  Medication guide claim would be private attempt to enforce the FDCA and is Buckman preempted.  Negligence per se fails on state-law grounds.  False off-label promotion claim might survive preemption, but is inadequately pleaded.
  187. Bean v. Upsher-Smith Pharmaceuticals, Inc., 2017 WL 4348330 (D.S.C. Sept. 29, 2017) (amiodarone).  Motion to dismiss granted as to all claims.  Off-label promotion claims would require changes to labeling.  Off-label promotion and medication guide claims are private attempts to enforce the FDCA and are Buckman preempted. Affirmed on non-preemption grounds, 765 F. Appx. 934 (4th Cir. 2019).
  188. Tsavaris v. Pfizer, Inc., 717 Fed. Appx. 874 (11th Cir. Nov. 21, 2017) (estradiol/norethindrone acetate).  Judgment on the pleadings affirmed.  Amending in a failure to report claim would have been futile, as private FDCA enforcement is barred by Buckman.  Affirming 154 F. Supp.3d 1327, above.
  189. Patton v. Forest Laboratories, Inc., 2017 WL 10439658 (C.D. Cal. Nov. 1, 2017) (escitalopram).  Motion to dismiss granted as to all claims.  All claims based on warnings are preempted, however styled.  Manufacturing defect claims, however styled, may not be preempted, but are inadequately pleaded.  Second motion granted 2018 WL 5270476, below.
  190. Allbright v. Teva Pharmaceuticals USA, Inc., 2017 WL 5971720 (S.D. Fla. Dec. 1, 2017) (alendronate).  Motion to dismiss granted as to all claims.  Fosamax “clear evidence” rationale does not apply to generic preemption.  Design and warning preempted.  Failure to test is a preempted warning claim.  Failure to update improperly pleaded.
  191. Owen v. Dr. Reddy’s Laboratories, 2017 WL 6820197 (W.D.N.C. Dec. 13, 2017) (sumatriptan).  Judgment on the pleadings granted as to all claims.
  192. Raskas v. Teva Pharmaceuticals USA, Inc., 2018 WL 351820 (E.D. Mo. Jan. 8, 2018) (metoclopramide).  Motion to dismiss granted in part and denied in part.    Nothing in the 2007 FDAAA changes the generic preemption analysis.  Stop-selling and failure to contact FDA claims preempted.  Duty to update and failure to use conforming labeling claims not preempted.
  193. Guilbeau v. Pfizer, Inc., 880 F.3d 304 (7th Cir. Jan. 19, 2018) (Depo-Testosterone).  Grant of motion to dismiss affirmed.  Reference listed drugs that are generics are not free to make unilateral label changes. The changes-being-effected regulation cannot be used to strengthen warnings for any generic drug, whether it is the reference listed drug or not.  RLD generic drugs are not under a different duty of sameness.  Affirming 142 F. Supp.3d 747, above.
  194. Beswick v. Sun Pharmaceutical Industries, Ltd., 2018 WL 704399 (Mag. W.D.N.Y. Jan. 30, 2018) (phentoyin).  Judgment on the pleadings granted as to all remaining claims.  Warranty claims would have required different warnings.  No obligation to send Dear Doctor letters or to reformulate product.
  195. Collette v. Wyeth Pharmaceuticals, Inc., 2018 WL 1258105 (N.D. Cal. March 12, 2018) (amiodarone).  Motion to dismiss granted as to all claims.  Failure to supply medication guides and false off-label promotion might state claims if properly pleaded. Affirmed on non-preemption grounds, ___ F. Appx. ___, 2021 WL 3126742 (9th Cir. July 23, 2021).
  196. McLeod v. Sandoz, Inc., 2018 WL 1456739 (D.S.C. March 23, 2018) (amiodarone).  Renewed motion to dismiss granted.  Plaintiff failed to plead fraudulent off-label promotion with specificity, and in any event that claim was preempted because it would have required a warning change.  On appeal at No. 18-1479 (4th Cir.)
  197. Coleson v. Qualitest Pharmaceutical Manufacture, 2018 WL 2108238 (S.D.N.Y. May 7, 2018) (risperdone).  Motion to dismiss granted as to all claims, which were limited to design and warning.  Motion to amend denied2018 WL 2947967 (S.D.N.Y. May 31, 2018), affirmed, see 2019 WL 6570721 below.
  198. Patton v. Forest Laboratories, LLC, 2018 WL 5270476 (C.D. Cal. May 10, 2018) (escitalopram).  Motion to dismiss granted as to all claims.  All warning-based claims, however styled, are preempted.  Plaintiff fails to plead any possibly un-preempted manufacturing defect claim.  First motion, granted 2017 WL 10439658, above.
  199. Galloway v. Aurobindo Ltd., 2018 WL 2461986 (D.S.C. May 31, 2018) (sumatriptan).  Motion to dismiss granted as to all claims.  No discovery allowed concerning new, post-marketing safety information.
  200. McDaniel v. Upsher-Smith Laboratories, Inc., 893 F.3d 941 (6th Cir. June 29, 2018) (amiodarone).  Grant of motion to dismiss affirmed.  Warning claim based on medication guide impliedly preempted by Buckman.  Affirming 229 F. Supp.3d 707, above.
  201. Preston v Janssen Pharmaceuticals, Inc., 2018 WL 5017045 (N.Y. Sup. Oct. 12, 2018) (topiramate).  Motion to dismiss granted as to all claims except for several months where no evidence established the identity of the generic labeling to the branded labeling.  Design defect claims preempted.  Failure to update claim fails for lack of causation, as plaintiff did not fill a prescription during the period of the alleged failure to update.
  202. Mitchell v. Wyeth Pharmaceuticals, Inc., 356 F. Supp.3d 634 (W.D. Tex. Dec. 17, 2018) (amiodarone). Summary judgment granted as to all claims.  Defendant complied with FDA regulations concerning supplying medication guides.  That plaintiff claimed no guide was given by the pharmacy is immaterial.
  203. Allen v. Vintage Pharmaceuticals LLC, 2019 WL 542981 (M.D. Ga. Feb. 11, 2019) (morphine & amitriptyline).  Motion to dismiss granted as to all claims.  Manufacturing defect claim not pleaded.  All warning-related claims preempted.
  204. Marroquin v. Pfizer, Inc., 367 F. Supp.3d 1152 (E.D. Cal. Feb. 14, 2019) (amiodarone).  Motion to dismiss granted as to all claims.  Plaintiff gets nowhere by claiming the defendant is a distributor, since preemption extends to drug distributors, whether branded or generic.   A generic mere distributor is no different than a generic manufacturer, having no ability to alter or change an approved FDA warning label.  While a manufacturing defect claim avoids preemption, it was not sufficiently pleaded.  All other claims are warning-related, and thus preempted.
  205. Lempa v. Eon Labs, Inc., 2019 WL 1426011 (S.D. Ill. March 29, 2019) (amiodarone).  Motion to dismiss granted in part and denied in part.  All claims are preempted except parallel violation claims.  Parallel violation claims are not impliedly preempted because they are not “literally” based on the FDCA.
  206. Boros v. Pfizer, Inc., 2019 WL 1558576 (Del. Super. March 25, 2019) (azithromycin).  Summary judgment granted against all remaining claims.  Claim based on failure to send Dear Doctor letter preempted.  Prior decision, above 2016 WL 3131403.
  207. Kettner v. Cadista Holdings, Inc., 2019 WL 11583314 (W.D. Tenn. Aug. 12, 2019) (methylprednisolone).  Motion to dismiss granted as to all claims.  All claims concern warnings and are preempted.
  208. In re National Prescription Opiate Litigation, 2019 WL 4178591 (N.D. Ohio Sept. 3, 2019) (various generic opioids).  Dear Doctor letter claims preempted.  Reverse innovator liability claims based on unbranded promotion, fraudulent marketing, and inadequate anti-diversion claims not preempted.
  209. Preston v Janssen Pharmaceuticals, Inc., 2019 WL 4673903 (N.Y. Sup. Sept. 20, 2019) (topiramate). All claims dismissed except for a few months of alleged failure to update, where the documentary evidence was unclear exactly when updates were made.
  210. Greager v. McNeil-PPC, Inc., 414 F. Supp.3d 1137 (N.D. Ill. Oct. 28, 2019) (ibuprofen).  All claims dismissed.  Broad generic preemption principles apply to generic, OTC drugs.  The OTC savings clause in §379r applies only to the express preemption language of “this section.”  It does not affect the usual operation of implied impossibility preemption based on the statute’s overall “sameness” requirement.
  211. Coleson v. Mylan Pharmaceuticals Inc., 2019 WL 6570721 (2d Cir. Oct. 3, 2019) (risperdone).  Grant of motion to dismiss as to all claims affirmed.  Design and warning claims preempted.  Affirming 2018 WL 2108238, above.
  212. McDaniel v. Mylan, Inc., 2019 WL 11638407 (N.D. Ala. Dec. 16, 2019) (fentanyl patch).  Motion to dismiss granted in part and denied in part.  Warning and design claims preempted, so amendment would be futile.  Manufacturing defect claim not preempted, so amendment not futile.
  213. Haney-Williams v. GlaxoSmithKline LLC, 2019 WL 7284737 (D. Nev. Dec. 27, 2019) (lamotrigine).  Motion to dismiss granted as to all claims.  Where all of plaintiffs’ claims against the defendant are preempted, no basis exists for an indemnity/contribution claim by a co-defendant.
  214. In Re Opioid Litigation, 2020 WL 8011988 (N.Y. Sup. Feb. 3, 2020) (various opioids).  Motion to dismiss fraudulent marketing claim denied.  Promotion inconsistent with labeling is not a labeling claim.
  215. Smith v. Teva Pharmaceuticals United States, 437 F. Supp.3d 1159 (S.D. Fla. Feb. 4, 2020) (camrese).  Motion to dismiss granted as to all claims. Claims against generic manufacturer all preempted by sameness requirement.  A distributor cannot be liable for not changing drug labels.  The defendant did not hold the NDA of the equivalent branded product, another corporate entity that plaintiff failed to sue did.
  216. Frei v. Taro Pharmaceuticals U.S.A., Inc., 443 F. Supp.3d 456 (S.D.N.Y. March 10, 2020) (amiodarone).  Motion to dismiss granted as to all claims.  Allegations of off-label marketing do not defeat preemption of demands for non-identical warnings.  Claims that defendant failed to warn the FDA are preempted as fraud on the FDA.  Medication guide and failure to counteract off-label promotion claims preempted as private FDCA enforcement.  Negligence per se claims are both private FDCA enforcement or preempted attempts to force label changes.  Affirmed, 844 F. Appx. 444, below.
  217. Montero v. Teva Pharmaceuticals USA, Inc., 2020 WL 1862593 (S.D.N.Y. April 14, 2020) (Tri-Lo Sprintec).  Motion to dismiss granted as to all claims.  Design, warning and testing-related claims all preempted.  Warning preemption extends to non-labeling communications, and to fraud claims.
  218. Johnson v. Novartis Pharmaceuticals Corp., slip op., 2020 WL 2300139 (W.D. Tex. May 7, 2020) (minocycline and carbamazepine).  Motion to dismiss granted as to all claims.  Affirmed, 2021 WL 406098, below.
  219. Polt v. Sandoz, Inc., 462 F. Supp.3d 557 (E.D. Pa. May 26, 2020) (amiodarone).  Motion to dismiss granted as to all remaining claims.  Medication guide claims preempted as private FDCA enforcement.  Any claim involving inadequacy of warnings is preempted by Mensing.  No-warning-at-all claim not preempted, but  dismissed on non-preemption grounds.
  220. Lett v. CVS Care Mark Corp., 2020 WL 7974009 (M.D. Ala. Oct. 29, 2020) (erythromycin).  Motion to dismiss granted as to all claims.
  221. In re Fluoroquinolone Products Liability Litigation, 2020 WL 6489186 (D. Minn. Nov. 4, 2020) (ciprofloxacin).  Motion for judgment on the pleadings granted as to all claims.  While failure to update claims are not preempted all other warning related claims are.  Plaintiff’s complaint mixing various warning theories is dismissed with leave to amend to plead a claim based solely on failure to update.
  222. In re Zantac Ranitidine Products Liability Litigation, 510 F. Supp.3d 1141 (S.D. Fla. Dec. 31, 2020) (ranitidine).  Motion to dismiss granted as to all claims involving generic drug manufacturers and repackagers granted.  Preemption bars all claims against generic manufacturers concerning Dear Doctor letters, testing, misrepresentation, fraud, consumer fraud, and warranty.  Misbranding claims preempted because defendants could not change those aspects of the products, because to use misbranding as plaintiffs sought was contrary to Mensing and Bartlett, and because it amounted to a private FDCA cause of action.  The same rationale preempts claims against repackagers.  Transportation claims preempted.  Caution, plaintiffs allowed to replead storage and expiration date claims, under narrow conditions.  On appeal, #21-10306 (11th Cir.).
  223. In re Zantac Ranitidine Products Liability Litigation, ___ F. Supp.3d ___, 2020 WL 7864585 (S.D. Fla. Dec. 31, 2020) (ranitidine).  Motion to dismiss all claims involving generic drug distributors granted.  Preemption bars all claims against generic retailers concerning Dear Doctor letters, testing, misrepresentation, fraud, consumer fraud, and warranty.  Plaintiffs’ claims for general negligence, breach of express and implied warranty, deceptive acts and unjust enrichment are preempted as attacking either the design or warnings of generic drugs.  Misbranding claims preempted because defendants could not change those aspects of the products, because to use misbranding as plaintiffs sought was contrary to Mensing and Bartlett, and because it amounted to a private FDCA cause of action.  Caution, plaintiffs allowed to replead some claims, such as negligent storage, under narrow conditions.  On appeal, #21-10306 (11th Cir.).
  224. Walsh v. Upsher-Smith Laboratories, Inc., 2021 WL 1511283 (Minn. Dist. Jan. 5, 2021) (amiodarone).  Motion to dismiss granted in part and denied in part.  Parallel claim that defendant failed to provide medication guides to pharmacies in violation of federal law is not preempted.  Claim that defendant failed to provide prescribing physicians with the drug’s FDA-approved warnings is not preempted.  Failure to report claims not preempted but inadequately pleaded.  Off-label promotion claims are preempted, but false off-label promotion claims are not.
  225. Camejo v. Angelini Pharma, Inc., 2021 WL 141338 (Del. Super. Jan. 15, 2021) (trazodone).  Motion to dismiss granted as to all claims.  Warning claim dismissed because defendant could not use CBE to change warnings and plaintiff failed to allege that lack of sameness was not approved by FDA.  No duty to send Dear Doctor letters.
  226. Johnson v. Novartis Pharmaceuticals Corp., 845 F. Appx. 305 (5th Cir. Feb. 5, 2021) (minocycline and carbamazepine).  Affirming grant of motion to dismiss as to all claims.  All claims challenging the information on generic labeling, including marketing defect and warranty, are preempted.  Affirming, 2020 WL 2300139, above.
  227. Morris v. Sun Pharma Global, 2021 WL 687247 (C.D. Cal. Feb. 19, 2021) (testosterone cypionate).  Motion to dismiss granted as to all claims.  Warning and design claims preempted, as is implied warranty to the extent based on such claims.  Express warranty claim based on labeling preempted.  Remaining claims improperly pleaded.
  228. Stelly v. Zydus Pharmaceuticals U S A, Inc., 2021 WL 1131512 (W.D. La. Feb. 22, 2021) (amiodarone).  Motion to dismiss granted in part and denied in part.  Misrepresentation and challenges to content of medication guide preempted.  Failure to include any medication guide is a parallel claim and not preempted, however direct-to-patient claim barred by learned intermediary rule.  Off-label promotion claim preempted as private FDCA enforcement.  False off-label promotion claim preempted as an attack on the contents of labeling.  Adopted, 2021 WL 1114268 (W.D. La. March 23, 2021).
  229. Bennett v. Teva Pharmaceuticals USA, Inc., 2021 WL 797834 (D. Del. March 2, 2021) (amiodarone).  Motion to dismiss granted as to all claims.  Medication guide and failure to report claims are purely federal claims barred under Buckman.  Claims about the content of the guides or risks of off-label use would contradict the federal sameness requirement.  Appeal filed, No. 21-1642 (3d Cir.).
  230. Teva Parenteral Medicines, Inc. v. Eighth Judicial District Court, 481 P.3d 1232 (Nev. March 4, 2021).  Mandamus granted.  All warning and consumer fraud claims preempted.  Duty to stop selling to customers known to be misusing the product not preempted because a different version of the drug no capable of misuse is also FDA approved.
  231. City of Chicago v. Purdue Pharma L.P., 2021 WL 1208971 (N.D. Ill. March 31, 2021) (various generic opioids).  Motion to dismiss granted in part and denied in part.  Claims based on generic marketing that would require label changes are preempted, while marketing claims unrelated to labeling are not.
  232. Frei v. Taro Pharmaceutical U.S.A., Inc., 844 F. Appx. 444 (2d Cir. April 20, 2021) (amiodarone).  Grant of motion to dismiss affirmed.  No FDCA violation showed with respect to medication guide claim, since duty was not to ensure each plaintiff received the guide.  Labeling claims preempted.  Failure to report requires actual unreported incidents.  Affirming 443 F.Supp.3d 456, above.
  233. Center for Environmental Health v. Perrigo Co., 2021 WL 1960333, slip op. (Cal. Super. May 7, 2021) (various forms of generic Zantac).  Motion to dismiss granted as to all claims.  Generic preemption bars any attempt to apply California Proposition 65 warnings to generic drugs.  Prop. 65 warnings are “labeling” under the FDCA, and generic labeling must be the same as the FDA-approved labeling on the reference listed branded drug.
  234. Jankowski v. Zydus Pharmaceuticals USA, Inc., 2021 WL 2190913 (D.N.J. May 28, 2021) (amiodarone).  Motion to dismiss granted as to all claims.  Medication guide and failure to report claims are purely federal claims barred under Buckman.  Manufacturing defect claim did not parallel federal adulteration claim and was not really a manufacturing claim.  Negligent marketing, failure to correct, off-label promotion, and fraud claims all concerned labeling and contradicted the federal sameness requirement.
  235. In re Zantac (Ranitidine) Products Liability Litigation,  2021 WL 2865869, slip op. (S.D. Fla. July 8, 2021) (various forms of generic Zantac).  Motion to dismiss granted as to all claims.  All failure to report claims are purely federal claims barred under Buckman.  Separate “sub-duties” do not exist.  All of plaintiffs’ claims concerning expiration dates, smaller bottles, changing to blister packs, storage temperatures and conditions, transportation temperatures and conditions, and failure to test seek liability for with the labeling or design of the product, and are therefore preempted.
  236. In re Fluoroquinolone Products Liability Litigation,  2021 WL 3047172 (D. Minn. July 20, 2021) (ciprofloxacin).  Motion to dismiss granted in part and denied in part.  Failure to update claims not preempted as parallel negligence claims.  Product liability claims dismissed as based solely on FDCA.
  237. Vriner v. Teva Pharmaceuticals USA, Inc., 2021 WL 4942047 (N.D. Ill. Oct. 23, 2021) (methylprednisolone).  Motion to dismiss granted as to all claims.  Design defect claim preempted; no other viable claims pleaded.
  238. Medford v. Eon Labs, Inc.,  2021 WL 5204035 (D.N.J. Nov. 9, 2021) (amiodarone).  Motion to dismiss granted as to all claims.  Medication guide and failure to report claims are purely federal claims barred under Buckman.  There is no state law duty to correct someone else’s off-label promotion and to do so would violate the federal sameness requirement.  Failure to report claims fail to state a claim under state law.