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Breaking Up [Plaintiffs] Is [Not] Hard To Do

While Neil Sedaka may have convinced many that breaking up is hard to do, Judge Stephen N. Limbaugh, Jr. of the United States District Court for the Eastern District of Missouri (“EDMO”) has made it clear that breaking up non-Missouri related Plaintiffs from a product liability case is certainly not hard to do in the post-Bristol-Myers Squibb Co. era.

On January 24, 2018, the EDMO added to the split in authority between Missouri and California, two forums favored by Plaintiffs, thereby testing the limits of Bristol-Myers Squibb Co. v. Super Ct. of Cal., 137 S. Ct. 1772 (2017) (“BMS”).In Nedra Dyson, et al., v. Bayer Corporation, et al., No. 4:17CV2584- SNLJ, (E.D. MO Jan. 24, 2018) (“Dyson”), Judge Limbaugh of the EDMO granted Defendants’ Motion to Dismiss 92 non-Missouri related Plaintiffs in a product liability lawsuit based on a lack of personal jurisdiction, finding that a Defendant’s clinical trials and marketing of a product in the state of Missouri does not establish personal jurisdiction for purposes of non-Missouri related Plaintiffs’ claims for that product. This is consistent with other recent EDMO decisions:

  • See Siegfried v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 2778107 (E.D. Mo. June 27, 2017);
  • Jordan v. Bayer Corp., No. 4:17cv865(CEJ), 2017 WL 3006993 (E.D. Mo. July 14, 2017);
  • Jinright v. Johnson & Johnson, Inc., 2017 WL 3731317 (E.D. Mo. Aug. 30, 2017);
  • Shaeffer et al., v. Bayer Corp., et al., 4:17-CV-01973 JAR (E.D. Mo. Feb. 21, 2018).

The Dyson Defendants, who were also not citizens of Missouri, relied on BMS to argue that the EDMO lacked personal jurisdiction over the claims of 92 non-Missouri related Plaintiffs, and should be dismissed. The Defendants argued that dismissal of these Plaintiffs would provide complete diversity between the remaining Plaintiffs and Defendants and the amount in controversy would still exceed $75,000. This quickly became a fight between the parties, with one side trying to persuade the court to decide personal jurisdiction before subject matter jurisdiction and the other side arguing vice-versa. Ultimately, the court determined that personal jurisdiction could and should be decided prior to subject matter jurisdiction, because it provided the more straightforward analysis in light of BMS. Deciding subject matter jurisdiction would involve resolution of notoriously complex issues, reasoned the court.

Quick Recap On BMS: As a brief refresher, BMS involved both California and out of state Plaintiffs who sued in California state court based on alleged injuries caused by Defendant BMS’ drug. The United States Supreme Court, who took the case on a writ of certiorari, overturned the state court, applying “settled principles regarding specific jurisdiction,” finding that California state courts fail to retain specific personal jurisdiction over non-resident Defendants for claims asserted by non-resident Plaintiffs that do not arise out of or relate to the Defendant’s contacts with the forum. The Court rejected Plaintiffs arguments for specific personal jurisdiction based on alleged marketing and promotion of the product and clinical trials held in the state of California. The Court would also not allow the resident Plaintiffs’ allegations to confer personal jurisdiction over the non-resident Plaintiffs claims. Therefore, the Supreme Court dismissed the claims of the non-resident Plaintiffs.

In Dyson, the non-Missouri related Plaintiffs conceded that the medical device at issue (Essure) was not implanted in Missouri. However, Plaintiffs argued that their allegations concerning Defendant Bayer’s connections with Missouri should support the court’s exercise of personal jurisdiction. Plaintiffs alleged that Bayer’s marketing strategy was developed in Missouri, Missouri was one of the eight sites chosen to conduct pre-market clinical devices on the product (Essure), the original manufacture of the product’s conduct was in Missouri, the sponsoring of biased medical trials was in Missouri, and St. Louis, Missouri was the first city to commercially offer the Essure implant procedure. 

Those arguments failed to persuade Judge Limbaugh, who ultimately found that the Dyson Plaintiffs failed to make a prima facie showing for personal jurisdiction and, as such, he denied their motion for jurisdictional discovery to support those arguments. Relying on BMS, Judge Limbaugh rejected Plaintiffs’ marketing campaign arguments, pointing out that the non-Missouri Plaintiffs not only failed to allege they viewed Essure advertising in Missouri, but also failed to allege they purchased, were prescribed or were injured by the product in Missouri. Thus, it was not relevant that Defendant first marketed Essure in Missouri. As for Plaintiffs’ argument regarding clinical trials in Missouri, Judge Limbaugh found such alleged conduct too attenuated to serve as a basis for specific personal jurisdiction over Defendants. In fact, the non-Missouri Plaintiffs failed to allege they even participated in a Missouri clinical study or that they reviewed and relied on the Missouri clinical studies in deciding to use the products.

In contrast to Dyson, Plaintiffs have tried to rely on the recent California case Dubose v. Bristol-Myers Squibb Co., No. 17-cv-00244, 2017 U.S. Dist. LEXIS 99504 (N.D. Cal. June 27, 2017) in support of specific personal jurisdiction over non-forum Defendants. Dubose, however, does not appear to employ the same analysis as BMS or its progeny.

In Dubose, a South Carolina resident Plaintiff sued AstraZeneca, Bristol-Myers Squibb, and McKesson in California federal court, alleging a defect in a prescription diabetes drug.  The Dubose court relied upon Walden v. Fiore, 134 S.Ct. 1115 (2014), a 2014 U.S. Supreme Court decision that was in fact a pro-Defendant ruling intended to limit the states’ exercise of personal jurisdiction over non-resident Defendants. The Dubose Court reasoned that because Walden stressed that only the Defendants’ conduct could justify exercise of personal jurisdiction, any jurisdictional analysis should ignore Plaintiff’s residence or place of injury, and focus instead upon conduct that might “tether” the Defendant to the forum state. Ultimately, the Court relied on the Ninth Circuit’s preexisting “but for” test, holding that the pre-approval clinical trials were “part of an unbroken chain of events leading to Plaintiff’s alleged injury” and, therefore, specific jurisdiction existed because Plaintiff’s injuries “would not have occurred but for [Defendants] contacts with California.” Regardless, the Dubose Court ultimately transferred the case to South Carolina, the Plaintiff’s home state.

The judge in Dubose also decided Cortina v. Bristol-Myers Squibb Co., No. 17-cv-00247-JST, 2017 U.S. Dist. LEXIS 100437 (N.D. Cal. June 27, 2017) on the same theories, denying a motion to dismiss but transferring the case to New York, where the Plaintiff was a resident and was prescribed the drug at issue.  However, in a footnote, the Cortina court noted that, “[it] does not mean to suggest that even a de minimis level of clinical trial activity would satisfy the requirements of specific jurisdiction.”   

While the holdings for the Dubose and Cortina case appear to have relied upon attenuated claims of specific personal jurisdiction, in the EDMO, Judge Limbaugh concluded that the Dyson non-Missouri Plaintiffs’ claims were too attenuated from Missouri to prove specific, case linked personal jurisdiction. For example, the Dubose Plaintiff did not allege that she participated in any of the Defendants’ California clinical trials, but the Dubose court relied on others, not a party to the case, who participated in them. If specific personal jurisdiction exists in every state where a clinical trial occurred, then any Plaintiff who used the subject drug conceivably could sue the manufacturer in any of those states—no matter where the manufacturer is based and no matter where the Plaintiff resides or used the drug. It would be illogical for courts to adopt this rationale, calling that “specific” personal jurisdiction, and would be contrary to the United States Supreme Court’s recent pronouncements on personal jurisdiction, including in BMS.

Other recent cases have held similarly to the EDMO in Dyson, dismissing non-resident Plaintiffs due to a lack of both general and personal jurisdiction. For example, the Southern District of Illinois has been granting dismissal of non-Illinois Plaintiffs and denying remand in pharmaceutical drug, product liability cases. Specifically, those cases held that misjoined, multi-Plaintiff complaints no longer preclude removal, that there was no general personal jurisdiction pursuant to Daimler AG v. Bauman, 134 S. Ct. 756 (2014) and no specific personal jurisdiction existed pursuant to BMS, and/or found that conducting in-state clinical trials is not sufficient contact to support specific personal jurisdiction in suits by non-residents. SeeBraun 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).

Bringing this back to Dyson, Judge Limbaugh’s decision reaffirms that it really is not that hard to break up Missouri Plaintiffs from non-Missouri Plaintiffs in a product liability lawsuit where the non-Missouri Plaintiffs cannot truthfully allege that their claims arise out of a connection to the state of Missouri (and cannot solely rely on clinical trials occurring in Missouri). This is not to say that non-Missouri Plaintiffs will never find another forum and/or that their claims are foreclosed; rather, those Plaintiffs have a better chance of avoiding a bad break-up by bringing their claims in the forum out of which their claims allegedly arise.