These days, when the subject turns to victorious Philadelphia sports teams, most people think green, and “fly” and “Philly Special.” But we are not most people.  We live firmly and fondly in the past, 2008 to be exact.  So we relished every moment of our beloved Phillies’ Alumni Weekend this past weekend.  We cheered ourselves hoarse as a beloved former centerfielder, under a one-day contract, “retired as a Phillie.”  (Mahalo, “Flyin’ Hawaiian.”) And we, along with 35,000 of our closest friends, wept as the widow of our 2008 ace spoke to the crowd on the occasion of her late husband’s enshrinement on the Phillies’ “Wall of Fame.”   (R.I.P., “Doc.”)  And finally, as the members of the 2008 World Champion Phillies marched out to be honored, we allowed ourselves to be transported back to the ecstatic aftermath of our closer’s final slider in a perfect save season.  For sure, victory is sweet.

As it has been, six times now, in post-BMS personal jurisdiction decisions out of the Essure litigation.  In Hinton v. Bayer Corp., 2018 WL 3725776 (E.D. Mo. July 27, 2018), ninety-four plaintiffs from thirty different states filed a joint complaint in a Missouri state court, alleging that they were injured by the defendant’s birth control device.  The defendant removed the case to the Eastern District of Missouri on the basis of diversity jurisdiction.  Of the ninety-four plaintiffs, only thirteen were Missouri residents.  Some of the non-Missouri residents were not diverse to the defendant; however, the defendant moved to dismiss and sever the claims of the non-Missouri plaintiffs before the court ruled on subject matter jurisdiction (and remanded for lack of complete diversity).   The plaintiffs moved to stay determination of the motions to dismiss pending determination of subject matter jurisdiction, but the court declined, explaining that “addressing [the defendant’s] challenge to personal jurisdiction over the claims of the non-Missouri plaintiffs presents the more straightforward inquiry” under recent precedent, justifying a decision to deviate from the usual course of deciding subject matter jurisdiction ahead of personal jurisdiction. Hinton, 2018 WL 3725776 at *2.   As the court emphasized, “Remanding this case for lack of complete diversity only to have the case removed again later once the non-Missouri plaintiffs are dismissed would be a waste of judicial resources.  Ruling [on] personal jurisdiction first is in the interests of judicial economy and expeditiousness.” Id. (citation omitted).

And so the court proceeded to address the defendant’s motion to dismiss the claims of the non-Missouri plaintiffs for lack of personal jurisdiction. The defendant conceded that the court had specific jurisdiction over it regarding the thirteen Missouri plaintiffs, but argued that the court did not have general jurisdiction over it and did not have specific jurisdiction over it with regard to the non-Missouri plaintiffs.  The plaintiffs did not argue that the court had general jurisdiction over the defendant; instead, they argued that the court had specific jurisdiction over the defendant with regard to the claims of all of the plaintiffs because the defendant had conducted “a number of clinical trials” in Missouri and had worked on regulatory approval for the product in Missouri, and because “St. Louis was one of eight cities targeted as part of a broader marketing plan to increase sales and revenue.” Id. at *3.

The court explained that, under BMS, specific jurisdiction depends on “an affiliation between the forum and the underlying controversy, principally [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Id. (citation to BMS omitted).  In this case, the plaintiffs did not see marketing in Missouri, did not purchase the product in Missouri, were not prescribed the product in Missouri, did not purchase the product in Missouri, and were not injured by the product in Missouri.  “Furthermore, none of the plaintiffs alleged that she participated in a Missouri clinical study or reviewed or relied on” such studies in deciding to use the product. Id. at *4.  As such, the court held, “Even assuming that discovery would prove exactly what Plaintiffs contend happened in Missouri with respect to . . . marketing and clinical trials, the individual plaintiffs’ claims are too attenuated from those activities to provide specific ‘case-linked’ personal jurisdiction.” Id. (citation omitted).   With no “connection between the forum and the specific claims at issue,” id. (citation to BMS omitted), the court held that it did not have jurisdiction over the claims of the eighty-one non-Missouri plaintiffs and dismissed all of those claims.

And so the defendant hit a figurative home run, expanding its already-prominent role in the elimination of litigation tourism in Missouri. We love this string of decisions, we love BMS, and we will keep you posted as its family of progeny continues to grow.

Even if Bexis and McConnell like to sport overalls and tool around in souped-up tractors, we are not farmers.  We have grown enough heirloom tomatoes, ghost peppers, rainbow chard, purple basil, and other suburban garden staples, however, to know that “you reap what you sow” is usually true, assuming the levels of hydration, sunshine, and soil pH are appropriate.  (There are pleasant exceptions, like asparagus from prior owners or berries spread by critters, and undesired interlopers, like Japanese hops and any number of leafy weeds.)  It is often true in litigation too.  When the Bauman and Walden decisions came down in early 2014, it should have been apparent that the sort of litigation tourism that had driven so many verdicts and settlements based on fear of verdicts in plaintiff-friendly places was going to be a risky proposition going forward.  While we and many others touted these rulings and proclaimed what should happen with personal jurisdiction in such cases, the plaintiffs’ bar did not give up on what had been such a lucrative approach.  Instead, they continued filing multi-plaintiff cases in their desired jurisdictions, even though almost all of the plaintiffs had no ties to the jurisdiction and the defendants were not “at home” there.  They also fought against motions and appeals with sometimes creative arguments that generally flew in the face of what the Supreme Court had already ruled.  While these packaged tour cases remained in these dubious jurisdictions, they sometimes progressed to trial and, aided by lenient views of the admissibility of junky causation evidence or other rulings that tend to drive up verdicts, scored some really big verdicts.  While some defendants surely settled along the way, others stuck it out to get to appellate rulings that would undo everything with a pronouncement that “this plaintiff’s case never belonged here in the first place.”

If you are reading this and thinking about the talc litigation in Missouri, then you would be right.  It is not the only litigation to follow this pattern, but it has been one of the most visible.  The timeline implicated by Ristesund v. Johnson & Johnson, — S.W.3d –, 2018 WL 3193652 (Mo. Ct. App. June 29, 2018), is where we will start, because it shows the sowing to which we alluded so awkwardly above. Bauman and Walden come out in February 2014, signaling a tightening of the general personal jurisdiction standard and a refusal to expand the specific personal jurisdiction standard.  In September 2014, plaintiff, a South Dakota resident, filed a lawsuit in Missouri state court about alleged ovarian cancer from talc in cosmetic products along with a Missouri resident and seventy-three other non-Missouri residents.  Plaintiffs pushed forward through discovery and motions to a series of trials.  Motions to dismiss for lack of personal jurisdiction for the claims of the non-Missouri residents were denied based on the conclusion that the court’s jurisdictions over the claims of the sole Missouri resident was enough.  In February 2016, the estate of a non-Missouri plaintiff named Fox won a large verdict and then defendants appealed.  In May 2016, Ristesund won her own large verdict and then defendants appealed.  In June 2017, the Supreme Court issued the BMS decision, essentially rejecting reliance on the ties of (misjoined) plaintiffs to establish specific personal jurisdiction over the claims of a plaintiff who would not otherwise be able to establish general or specific personal jurisdiction.  In October 2017, the Missouri Court of Appeals ruled in Fox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. Ct. App. 2017), that plaintiff did not establish personal jurisdiction consistent with constitutional requirements and should not get a chance to do so on remand.  (We detailed the decision here.)  The same court considered almost the same issues in Ristesund about two weeks ago.

Pretty straightforward, one would think.  Plaintiff, to her credit, even conceded that BMS controlled and the trial court lacked personal jurisdiction over defendants as to her claims. Ristesund, — S.W.3d –, 2018 WL 3193652, *2.  That meant the verdict could not stand.  The only issue left was plaintiff’s argument that “fairness requires” that she have an opportunity on remand to develop arguments and evidence support personal jurisdiction.  This is where that timeline mattered.  As in Fox, the plaintiff “had a full and ample opportunity to discovery and introduce any and all evidence that she believed would establish personal jurisdiction over the Defendants.” Id. at *3.  While not all plaintiffs try to gather and introduce evidence of personal jurisdiction, recall that this case was filed after Bauman was decided.  It went to trial after a personal jurisdiction motion was denied, an appeal on a companion case focused on personal jurisdiction, and scores of cases (see our cheat sheet) had been decided around the country on applications of Bauman that anyone would have realized undercut personal jurisdiction in this case.  The plaintiff lawyers pursuing all of these cases took a calculated gamble to work up these cases and win big verdicts in a court where personal jurisdiction was tenuous at best, as long as the defendants were willing to sustain the trial losses and get to appeals. Ristesund could have sued in South Dakota—where she lived—or in New Jersey—where the defendants were based—but she chose the litigation tourist route.

Her last gasp was to claim that BMS being decided after her trial verdict somehow entitled her to another chance to prove personal jurisdiction.  The court’s rejection of this contention can stand on its own.

Principles of fairness do not dictate or warrant remand. The pronouncement in BMS neither introduced new concepts in the law nor relied upon new principles of law. BMS was not a decision that “came out of nowhere.” To the contrary, the parties in BMS, as in Daimler, argued long standing principles of personal jurisdiction in our jurisprudence. The parties before us were well aware of the legal principles being argued before the Supreme Court, as evidenced by their pleadings and argument before the trial court.  Ristesund was not precluded from broadening the scope of her claims for personal jurisdiction while her case was before the trial court . . . . Similar to our reasoning in Fox, we are not persuaded that the law either warrants or permits us to now return this matter to the trial court for a “do-over.”

Id. at *5.  That sounds pretty fair to us.

With one glance at the calendar, regular readers of this blog will have been able to predict the content of these prefatory paragraphs, later to be (tenuously) tied to today’s case. On Monday and Tuesday, as we have for nearly twenty years, we attended the annual Westminster Kennel Club Dog Show, the second-oldest continuous sporting event in the United States (behind only the Kentucky Derby) in Manhattan.  The show draws the best representatives of almost 200 dog breeds, including two breeds eligible to compete this year for the first time: the Nederlandse Kooikerhondje and the Grand Basset Griffon Vendeen.  About 3,000 total entrants are narrowed, during daytime breed judging, to one “best of breed” winner from each breed, then (during the familiar nighttime televised portions) to seven group winners.

The climactic event is the selection of the best-in-show winner from the seven group winners.   (BTW, if you haven’t seen the movie Best in Show, we think it is one of the funniest movies ever made, and, like all good humor, it skates very close to a lot of truths.)  This year, unlike some years, none of the “breeds of our heart” was represented in the final seven, so we watched with excited anticipation but without a favorite.  Not so the sellout crowd.  A pug named Biggie, with a sad human interest backstory (google it), got roars, as did Flynn the Bichon Frise and the Giant Schnauzer that was the top-winning show dog in the country for 2017.  But the crowd favorite was a Sussex Spaniel (a cheerful-looking, low-slung, long-eared spaniel breed with a shiny golden-liver coat) named Bean.  Every time Bean got close to the “bait” – the treats his handler was carrying – he sat up on his haunches and begged.  Needless to say, the crowd swooned.  And we admit that this was insanely cute.  But Bean took it too far, doing his trick right under the judge’s nose, including when was supposed to “free stack” (get himself into a stretched, square stance without his handler placing his feet in the proper positions).

Ultimately, the beautiful little Bichon was Best in Show, and Bean’s begging was for naught, kind of like today’s case (we warned you), a terrific jurisdictional decision out of the consolidated Xarelto litigation in the Superior Court of Los Angeles County, California. In In re Xarelto Cases, 2018 WL 809633 (Cal. Super. Feb, 6, 2018), the plaintiffs sued several manufacturers and a distributor, claiming various injuries and alleging the usual litany of causes of action.  Appearing specially, the (non-resident) manufacturer defendants moved to quash service of the plaintiffs’ summons, arguing that California courts lacked jurisdiction over them.  In response, the plaintiffs served jurisdictional interrogatories and requests for production comprising 113 separate discovery requests, seeking information about marketing and clinical trials allegedly performed by the non-resident defendants in California, including free sample voucher programs, as well as information about the functions the resident distributor defendant performed for the non-resident manufacturers.  The defendants moved for a protective order, alleging that none of the pending jurisdictional discovery was permitted under the United States Supreme Court’s three recent jurisdiction decisions (Bauman, BMS, and BNSF Railway Co. v. Tyrrell, 127 S.Ct. 1549 (2017)), and the plaintiffs countered with a motion to compel responses to the outstanding discovery requests.

The court explained it weighed three factors in deciding whether to permit the jurisdictional discovery: 1) the nature of the jurisdictional facts the plaintiffs sought to discover; 2) whether sufficient methods of investigation were available to the plaintiffs without formal discovery; and 3) the likelihood that the plaintiff could establish the necessary facts. Xarelto, 2018 WL 809633 at *10.  It concluded, “. . . [T]he Court has weighed these factors, and finds that Plaintiff has not made a prima facie case for personal jurisdiction in order to conduct the requested jurisdictional discovery.” Id. (citation omitted).

First, under Bauman, because none of the manufacturer defendants was incorporated or had its principal place of business in California, the courts lacked general jurisdiction.  Second, with respect to specific jurisdiction, noting that the (non-resident) plaintiffs were allegedly injured in their home states, the court held that, under BMS, neither the fact that clinical trials were performed in California nor the fact that the manufacturers hired a resident distributor was sufficient to establish that the plaintiffs’ claims “arose out of” the defendants’ contacts with California.  As such, the court found, “the proposed discovery seeks information on, at best, merely tenuous contact between the Defendants and California.” Id. The court concluded, “Consistent with BMS . . . , the requested discovery will not likely lead to the production of facts establishing jurisdiction over the defendant, based on the allegations of the complaint.  Under these circumstances, the Defendants’ requested protective order is appropriate.” Id. at *11.  That’s right — not a single one of the 113 discovery requests was allowed.

We love this decision. Its correct application of the Supreme Court’s mandates underscores the demise of litigation tourism and emphasizes the futility of plaintiffs’ pervasive and reprehensible joinder of distributors in quest of jurisdiction.  We hope other courts follow suit.  And we’ll keep you posted.