Drug defendant positions on jurisdictional issues in “mass tort” cases were rejected yesterday and late last week in new rulings from appellate courts in California and Illinois in groups of Plavix and Paxil cases. The broader and more notable of the two is the ruling by the California Supreme Court. The Illinois opinion is here, and involves a much narrower set of claims and allegations.
The pharma litigation experts at Drug & Device blog dissected the California ruling in an August 29, 2016 post. The entire article and opinion deserve review. However, key excerpts are pasted below:
“Thus, the California Supreme Court has, for mass torts at least, created the same universal sort jurisdiction that Bauman condemned as “grasping” and “exorbitant” in the context of general jurisdiction – only it calls it “specific jurisdiction.” Under this logic, any plaintiff could sue this defendant (or any other large company) in any state of the union, as long as some in-state plaintiff is making the same claim. This result is broader even than the discredited concept of pendent jurisdiction, through which other plaintiffs failed to obtain the same result.
Indeed, the majority essentially concedes this point, calling it an “invalid assumption” that a defendant’s “forum contacts must bear some substantive legal relevance to the nonresident plaintiffs‘ claims.” Slip op. at 25 (once again relying solely on Vons, which involved only a resident plaintiff). Any “forum contacts” that “are part of the nationwide marketing and distribution of [a product]” are ipso facto “substantially connected to the nonresident plaintiffs‘ claims” also involving that product. Id. Under this rationale, any “nationwide marketer” of a product may be sued by anyone in any state, as long as some in-state plaintiff also makes the same allegations. See Id. at 31 (arguing that given 86 California plaintiffs, addition of another 592 litigation tourists is less of a “burden” than litigating where those other plaintiffs reside); at 32 (“other injuries” anywhere in the country, can be evidence of defect).
Finally, [prior California precedent in] Anderson] seems to be creating a special – and particularly pro-plaintiff – jurisdictional rule specifically for mass torts:
[B]ecause mass tort injuries may involve diverse injuries or harm not amenable to the efficiency and economy of a class action, they present special problems for the proper functioning of the courts and the fair, efficient, and speedy administration of justice. Without coordination, those who win the race to the courthouse and bankrupt a defendant early in the litigation process would recover but effectively shut out other potential plaintiffs from any recovery. Moreover, coordinated mass tort actions also avoid the possible unfairness of punishing a defendant over and over again for the same tortious conduct.
Plainly, the defense will file petitions asking SCOTUS to review the California ruling. One would think the Roberts Court may well grant review. If so, it will be interesting to see how the Court perceives and resolves the thorny issues created by mass tort litigation involving drugs.
One also has to wonder if this is instance in which courts would see differences between the rules for most “non-regulated” products and the rules for cases about drugs sold nationally in a setting that certainly has national regulatory implications – and national uniformity of many marketing materials and practices – due to FDA rules. The former factor is only rarely present in the historic sales of a wide range of very diverse asbestos-containing products sold by entities that ranged from “mom & pop” stores to multi-national entities selling to a wide range of customers. That is, very few of the asbestos-containing products were subject to any kind of national regulatory rules, especially when one looks outside cases involving Navy ships or hospitals built with Hill-Burton funds. However, no doubt asbestos plaintiffs will point to relatively uniform product standards and at least some asbestos defendants used nationally distributed marketing materials.
Overall, one wonders which entities will take up which issues, and one wonders about the applicability of the maxim “be careful what you wish for.”