Happy birthday, Bob Marley. (We mean the transcendent reggae singer, not the Maine comedian.) Now let’s get together and feel alright about another good personal jurisdiction decision, In re Pradaxa, No. CJC-16-004863 (Cal. Super. Ct. Jan. 31, 2019). The case strikes a blow against California litigation tourism. There were some awful decisions out of California on this topic in the past. Call this new decision a redemption song.

A bunch of non-California residents claimed injuries from Pradaxa, and sued a number of corporate defendants associated with the medicine’s manufacture and sale. But none of those corporate defendants was incorporated in California, nor did they own, lease, or maintain any property in the Golden State. The defendants challenged personal jurisdiction. The plaintiffs did not even argue that there was general personal jurisdiction over the defendants. The Bauman case thoroughly foreclosed that notion. Instead, the issue was whether the SCOTUS BMS decision left any room for jammin’ the out of state defendants into a California court via specific personal jurisdiction.

Remember, the plaintiffs took the medicine outside California. So what bases could the plaintiffs lively up themselves to show that their claims related to or arose out of the defendants’ contacts with California? The plaintiffs did what some other plaintiffs have done by exploiting the existence of an in-state clinical trial of the drug. If the mere existence of clinical trials does the trick, then the SCOTUS BMS case is a dead letter for pharma companies, since clinical trials often take place in big (and plaintiff-friendly) states. That would be a crazy baldhead result, given that BMS itself involved a pharma defendant. The Pradaxa court was too smart for that. It looked to the qualitative and quantitative nature of the clinical trial in California, and concluded that, in the grand scheme of things, questions relating to 32 in-state clinical trial sites in one massive clinical trial were “too attenuated to support the exercise of specific jurisdiction.” All non-resident Pradaxa plaintiffs were consequently dismissed from the California mass tort for lack of specific personal jurisdiction under BMS. Their exodus is our freedom time.

Since it is a sure thing that forum-shopping plaintiff lawyers will continue to pursue the clinical trial angle, you should pay heed to the factors the California court considered in finding the clinical trial insufficient to establish specific jurisdiction: (1) the forum state was not overrepresented in the trial, and (2) the alleged problems with the trial did not relate to the claimed inadequacies in the warnings. The plaintiffs made much of the fact that there had to be corrections made to label with respect to the adverse event reports out of the California clinical trial, but the “negligible changes in the data” could not support claims. (E.g., the hazard ratio for a life-threatening bleed went from 0.80 to 0.81.). The court was not impressed by the plaintiffs’ argument.

But we are impressed by the rigor and clarity of the court’s reasoning. If corporate defendants can earn such a good and sensible result in San Francisco, we all have cause for optimism. Hallelujah. Don’t worry about a thing. Could you be loved? Every little thing is gonna be alright. And never give up. We offer congratulations, gratitude, and a tip of the cyber hat to Eric Hudson at Butler Snow, who argued and won the motion.

By the way, speaking of congratulations, and speaking of never giving up, today is the birthday of another pop star. In fact, according to an MTV Europe poll in 2008, he is the “Best Act Ever.” We won’t tell you who he is; you’ll have to click on the link at the end. Of course, since we’re telling you to click on a link, you might have some idea what awaits you. Feeling dread? Don’t. Embrace the wonderful, sheer inanity of the Best Act Ever.

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

Recently, we offered a detailed breaking news post about how the California Supreme Court had messed up its jurisdictional analysis in Bristol-Myers Squibb Co. v. Superior Court, — P.3d — (Ca. 2016), even worse than the California Court of Appeal had two years earlier. We have taken a few whacks at this BMS beast already—with taut arguments and acerbic wit, we think—but it still lives. Our thrusts in prior posts have gone towards the Bauman case, the court’s recognition that Bauman’s general jurisdiction standards were not satisfied, and then its creation of a specific jurisdiction standard that “becomes indistinguishable from general jurisdiction.” Based on plaintiffs’ counsel’s unilateral act of lumping together nonresident plaintiffs with some resident plaintiffs, all of whom allegedly have some commonalities (e.g., took the same drug), personal jurisdiction can be established over a nonresident defendant whose relationship with the nonresident plaintiff has nothing to do with plaintiff’s preferred forum. That sounds an awful lot like general jurisdiction, notwithstanding Bauman and the first half of the BMS decision.

There is a recent Supreme Court authority on specific jurisdiction, Walden v. Fiore, 571 U.S. —, 134 S. Ct. 115 (2014), and we have talked about it before. The BMS court relegated Walden to a single see also cite and largely looked to state court authority in its specific jurisdiction analysis. We thought that was strange, so we decided to drag Walden out and see what guidance the Supreme Court’s latest pronouncement on specific jurisdiction might have had for the BMS court if it looked.

Walden, as you may recall, involved a Nevada federal court Bivens action brought against Georgia police office deputized to work for DEA over a seizure of cash at a Georgia airport from travelers heading to Nevada, where they resided (along with holding some California status) and wanted to use the seized cash. The defendant also swore out an affidavit in Georgia in support of a forfeiture application, but plaintiffs got their cash back a few months later anyway. The Ninth Circuit pointed to the affidavit as an intentional act by the defendant committed “with knowledge that it would affect persons with a ‘significant connection’ to Nevada” and would cause “foreseeable harm” in Nevada.” This was enough for specific jurisdiction in Nevada per the Ninth Circuit. The Supreme Court reversed.

Rather than walk through the BMS specific jurisdiction analysis again, we are going to highlight the Walden analysis (omitting cites) to see if it is consistent with the idea that a purported common course of conduct by the nonresident defendant can bestow specific jurisdiction over nonresident plaintiffs when some resident plaintiffs are also in the mix.

  • Walden: “For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.”
    • As to BMS: “Suit-related conduct” sounds like something that must be related to the particular plaintiff’s allegation about her case, not somebody else’s case. The BMS rejoinder is that common conduct in terms of nationwide marketing is “suit-related conduct” that can connect the case to the forum even if the plaintiff has no connection.
  • Walden: “First, the relationship must arise out of contacts that the ‘defendant himself’ creates with the forum State. Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties. We have consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State.”
    • As to BMS: So much for that rejoinder. The convenience of joining together a bunch of plaintiffs from different states in a single case in a state of their lawyer’s choosing should not alter these principles.
  • Walden: “Second, our ‘minimum contacts’ analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”
    • As to BMS: The defendant’s contacts with the resident plaintiffs is critical to the BMS court’s decision to find specific jurisdiction over nonresident plaintiffs’ claims. While there is a look at contacts with the forum state, these are meaningless if not for the contacts with other plaintiffs.
  • Walden: “But a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction. Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random, fortuitous or attenuated’ contacts he makes by interacting with other persons affiliated with the State.”
    • As to BMS: That does not sound like an endorsement of using specific jurisdiction over a resident plaintiff’s claims as a hook to extend specific jurisdiction over the claims of many more nonresident plaintiffs’ claims.
  • Walden: The analysis of the Calder v. Jones cases, where there was specific jurisdiction for a California resident’s libel claims against a Florida magazine, focused on the California distribution of the article at issue, not just other articles or issues.
    • As to BMS: The suit-related conduct of the Calder defendant was that distribution in California of the libelous article allegedly produced harm to the plaintiff in California. That the magazine allegedly had a practice of writing libelous articles and distributing them around the county was irrelevant to the jurisdictional analysis. Similarly, allegedly producing harm to resident plaintiffs should add nothing to whether the alleged harm to the nonresident plaintiff resulted from the defendant’s actions in the forum.
  • Walden: “In short, when viewed through the proper lens—whether the defendant’s actions connect him to the forum—petitioner formed no jurisdictionally relevant contacts with Nevada. The Court of Appeals reached the contrary conclusion by shifting the analytical focus from petitioner’s contacts with the forum to his contacts with respondents.”
    • As to BMS: As above, it looks to us like the BMS court used the wrong lens.
  • Walden: “Petitioner’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning improperly attributes a plaintiff’s forum connections to the defendant and makes those connections ‘decisive’ in the jurisdictional analysis. It also obscures the reality that none of petitioner’s challenged conduct had anything to do with Nevada itself.”
    • As to BMS: Attributing another plaintiff’s contacts with the forum to defendant when it comes to a nonresident plaintiff should be even more improper.
  • Walden: “Unlike the broad publication of the forum-focused story in Calder, the effects of petitioner’s conduct on respondents are not connected to the forum State in a way that makes those effects a proper basis for jurisdiction.”
    • As to BMS: The alleged effects of the BMS defendant’s conduct on the nonresident plaintiffs were not connected to the forum state at all.
  • Walden: “In this case, the application of [personal jurisdiction] principles is clear: Petitioner’s relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction.”
    • As to BMS: The BMS defendant’s conduct with regard to the nonresident plaintiffs occurred in states other than California and the mere fact that its conduct allegedly affected other plaintiffs in California should not suffice to authorize jurisdiction over the nonresident plaintiffs.

To us, the lack of personal jurisdiction over the nonresident plaintiffs’ claims in BMS was pretty clear. We think Walden, although involving very different facts—just like the facts in the Vons case that BMS purported to follow were also very different—undercuts the result even further. General jurisdiction and specific jurisdiction are supposed to involve different analyses. Those analyses are supposed to be conducted as to each plaintiff, claim, and defendant. That is not what happened in BMS, though. We will look with interest at what happens with the forthcoming cert petition.