A case from Alabama this week got us to thinking about two topics on which we write a lot — innovator liability and personal jurisdiction. We thought the most interesting part of Bexis’ recent post on innovator liability was its suggestion that innovators sued over the use of generic drugs should consider objecting to jurisdiction.
We have written a lot about personal jurisdiction and class actions, and we have particularly questioned how, after BMS, anyone could proceed with a nationwide class action applying state law in a forum where there is no general personal jurisdiction over the defendant. We are not the only ones posing this question, but as
With a little luck on our part, by the time you read this we will be vacationing in a sunnier clime. Our beachfront cottage is an Oddjob’s hat-toss away from where Ian Fleming wrote the James Bond novels. Mind you, we are not pretending to be serving On Her Majesty’s Secret Service. If anything, with
Not all personal jurisdiction cases coming out of Pennsylvania are bad. To be sure, an ED Pa judge’s recent embrace of the consent theory to get around Bauman was bad news – almost as bad as Philadelphia 76ers soon-to-be superstar Ben Simmons’s foot injury. Happily, a much better opinion arrived last week: Baker v. Livanova PLC et al., No. 1:16-cv-00260 (M.D. Pa. Sept. 29, 2016). The author was Judge John E. Jones, the same judge who presided over the intelligent design case a couple of years ago. Judge Jones has a reputation for being smart and trying to get things right, and the Baker decision won’t hurt that reputation one bit.
Baker is a putative class action, seeking medical monitoring based on an allegation that a heater-cooler system for regulating blood temperature during open heart surgeries exposed patients to a nasty bacterium. In addition to suing companies that the court calls “Sorin” and “Sorin USA,” the plaintiffs also sued the parent company, LivaNova PLC, which is incorporated and headquartered in the United Kingdom. The issue was whether there was personal jurisdiction over LivaNova. (Sorin and Sorin USA did not contest personal jurisdiction.) The plaintiffs said there was specific jurisdiction over LivaNova based on: (1) LivaNova’s contacts with Pennsylvania regarding the heater-cooler system, (2) LivaNova functioned as the alter ego of its subsidiaries, and (3) the almost ancient case of Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), placed distributors on the jurisdictional hook. Note that general jurisdiction was not at issue, so the lovely Bauman case does not make even a cameo appearance. Then again, neither does the Walden case, which was decided by SCOTUS around the same time as Bauman and which says very important things about specific jurisdiction. But even without discussing Walden, Judge Jones addresses plaintiffs’ argument correctly and coherently. You might even say that the Baker case has an intelligent design.Continue Reading M.D. Pa. Finds No Specific Personal Jurisdiction over Parent Company