The pushback by Plaintiffs' lawyers against the Supreme Court's BMS decision continues, and it continues to largely fail.
The lawsuit in Dyson v. Bayer Corp., 2018 WL 534375 (E.D. Mo. Jan. 24, 2018), began in state court in St. Louis, a favorite destination of plaintiffs' lawyers. The complaint made product liability claims about Bayer's implantable birth-control device, Essure, and named 95 individual plaintiffs. Only 3 of those individuals lived in Missouri. The other 92 lived in other states, including states that could destroy complete diversity and prevent removal of the case to federal court. But defendants removed the case to federal court anyway, arguing that Missouri courts could not exercise personal jurisdiction over the claims of those 92 plaintiffs, who were not only non-residents but who also did not receive their Essure implants in Missouri. Plaintiffs responded by filing a motion to remand the case to state court or, in the alternative, to conduct fact discovery on the existence of personal jurisdiction. Id. at *1-2. And, with that, the latest challenge to the breadth of the BMS decision was teed up.
The plaintiffs' lawyers' theory as to why Missouri courts could exercise personal jurisdiction over the claims of these 92 plaintiffs was based on an observation made by the Supreme Court in BMS: "BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in [the forum state of California.]" Id. at 4 (quoting Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1778 (2017). So the complaint in Dyson alleged, in some detail, that the defendants conducted clinical trials for the regulatory approval of Essure in Missouri and started their marketing campaign for Essure in Missouri. As the Dyson court put it, plaintiffs claimed that these allegations, in the least, made a prima facie case for personal jurisdiction:
Plaintiffs seize upon that [BMS] language and suggest the Supreme Court offered those factors as a blueprint for establishing personal jurisdiction. Plaintiffs thus believe they have solved their personal jurisdiction problems because they allege that the defendants worked on regulatory approval for Essure in Missouri and also worked on the Essure marketing campaign in Missouri. Plaintiffs argue that they have at least made a prima facie case for personal jurisdiction and that they should be able to conduct jurisdictional discovery to prove the plaintiffs' claims' connections to Missouri.
Id. at 4.
The Dyson court started its analysis by first addressing personal jurisdiction. This was a significant choice. If the court had instead addressed subject matter jurisdiction, it could have (blindly) declared a lack of complete diversity and remanded the case to state court. But it, properly, started with personal jurisdiction because, as the court put it, the personal jurisdiction inquiry was straight-forward. The deficiencies of the allegations under BMS were just too significant:
This Court agrees that, despite these new allegations made by plaintiffs, personal jurisdiction remains the more straightforward inquiry. To address subject matter jurisdiction at this juncture would involve deciding whether non-Missouri plaintiffs had been fraudulently joined or misjoined, which is a notoriously complex issue. As shown below, the personal jurisdiction inquiry is a much simpler matter. Further, because plaintiffs do not make a prima facie showing for personal jurisdiction, the motion for jurisdictional discovery (#24) will be denied.
Id. at *3 (citations omitted).
Having decided that personal jurisdiction was a threshold issue, the court addressed plaintiffs' claim that defendants started their Essure marketing campaign in Missouri. The court waded through the details of plaintiffs' marketing allegations and found that they did not establish a sufficient connection to claims of plaintiffs who did not live in Missouri, were not prescribed and did not purchase the Essure device in Missouri, were not injured in Missouri, and did not see or rely on marketing in Missouri:
With respect to plaintiffs' arguments that personal jurisdiction may be supported by the alleged Missouri marketing campaign genesis, those arguments are contrary to BMS. In fact, the BMS plaintiffs themselves alleged that BMS marketed, advertised, and actively sought to promote Plavix in California specifically. Id. at 1779, 1783. Plaintiffs here go a step farther, saying defendants used Missouri as "ground zero" for its national campaign — that is, St. Louis was the first city to commercially offer the Essure procedure and was one of eight "test marketing" campaign sites. (Petition ¶ 165.) Plaintiffs also state that defendants cite to data from the Missouri clinical trials on Essure's labels and in marketing materials distributed to plaintiffs and their physicians. (Id.) Plaintiffs add that defendants' success with Essure in St. Louis allowed defendants to achieve profitability and launch a nationwide advertising campaign. (Id.) However, the non-Missouri plaintiffs do not allege they viewed Essure advertising in Missouri. That Missouri happened to be Essure's first marketed area has no bearing on the non-Missouri plaintiffs' claims where those plaintiffs did not see marketing in Missouri, were not prescribed Essure in Missouri, did not purchase Essure in Missouri, and were not injured by Essure in Missouri. Thus the allegations still do not suffice to provide the necessary "connection between the forum and the specific claims at issue." BMS, 137 S. Ct. at 1781.
Id. at *4.
The court next considered—and rejected—plaintiffs' argument that the court had personal jurisdiction over the non-resident claims because defendants sponsored clinical trials in Missouri as part of their effort to secure regulatory approval of Essure. The court, once again, found this to be an inadequate link to establish personal jurisdiction:
As for plaintiffs' allegations about the clinical trials having occurred in Missouri, plaintiffs argue that such activities play directly into BMS's invitation to prove personal jurisdiction by showing the defendant "work[ed] on the regulatory approval of the product" in Missouri. Id. at 1778. But the Missouri clinical trials — the existence of which defendants readily admit — are simply too attenuated to serve as a basis for specific personal jurisdiction for defendants. Indeed, the trials would serve more properly as evidence of general personal jurisdiction. The non-Missouri plaintiffs do not allege they participated in a Missouri clinical study or that they reviewed and relied on Missouri clinical studies in deciding to use Essure. Plaintiffs also seem to suggest that specific jurisdiction exists because Essure could not have been approved without clinical trials, and some of those clinical trials occurred in Missouri. But again, this does not serve as an "adequate link" between Missouri and nonresidents' claims that their individual device injured them in another state. See id. at 1781.
Id. at *5. With that, the court dismissed the claims of all 92 non-Missouri residents and retained jurisdiction over the claims of the remaining 3 plaintiffs.
While this was an excellent opinion, its importance may be greater than the ordinary opinion rejecting efforts to stretch personal jurisdiction under BMS. The District Court Judge was Stephen Limbaugh. He is a former Chief Justice of the Missouri Supreme Court and, as we understand it, well respected. This suggests that the current members of the Missouri Supreme Court will give his opinion a close read. Given how many product liability cases are filed in Missouri, that has to be a good thing.
This article is presented for informational purposes only and is not intended to constitute legal advice.
