United States: Post-BMS Winning Streak Continues In Essure Litigation In The Eastern District Of Missouri

Last Updated: August 16 2018
Article by Rachel B. Weil

These days, when the subject turns to victorious Philadelphia sports teams, most people think green, and "fly" and "Philly Special." But we are not most people. We live firmly and fondly in the past, 2008 to be exact. So we relished every moment of our beloved Phillies' Alumni Weekend this past weekend. We cheered ourselves hoarse as a beloved former centerfielder, under a one-day contract, "retired as a Phillie." (Mahalo, "Flyin' Hawaiian.") And we, along with 35,000 of our closest friends, wept as the widow of our 2008 ace spoke to the crowd on the occasion of her late husband's enshrinement on the Phillies' "Wall of Fame." (R.I.P., "Doc.") And finally, as the members of the 2008 World Champion Phillies marched out to be honored, we allowed ourselves to be transported back to the ecstatic aftermath of our closer's final slider in a perfect save season. For sure, victory is sweet.

As it has been, six times now, in post-BMS personal jurisdiction decisions out of the Essure litigation. In Hinton v. Bayer Corp., 2018 WL 3725776 (E.D. Mo. July 27, 2018), ninety-four plaintiffs from thirty different states filed a joint complaint in a Missouri state court, alleging that they were injured by the defendant's birth control device. The defendant removed the case to the Eastern District of Missouri on the basis of diversity jurisdiction. Of the ninety-four plaintiffs, only thirteen were Missouri residents. Some of the non-Missouri residents were not diverse to the defendant; however, the defendant moved to dismiss and sever the claims of the non-Missouri plaintiffs before the court ruled on subject matter jurisdiction (and remanded for lack of complete diversity). The plaintiffs moved to stay determination of the motions to dismiss pending determination of subject matter jurisdiction, but the court declined, explaining that "addressing [the defendant's] challenge to personal jurisdiction over the claims of the non-Missouri plaintiffs presents the more straightforward inquiry" under recent precedent, justifying a decision to deviate from the usual course of deciding subject matter jurisdiction ahead of personal jurisdiction. Hinton, 2018 WL 3725776 at *2. As the court emphasized, "Remanding this case for lack of complete diversity only to have the case removed again later once the non-Missouri plaintiffs are dismissed would be a waste of judicial resources. Ruling [on] personal jurisdiction first is in the interests of judicial economy and expeditiousness." Id. (citation omitted).

And so the court proceeded to address the defendant's motion to dismiss the claims of the non-Missouri plaintiffs for lack of personal jurisdiction. The defendant conceded that the court had specific jurisdiction over it regarding the thirteen Missouri plaintiffs, but argued that the court did not have general jurisdiction over it and did not have specific jurisdiction over it with regard to the non-Missouri plaintiffs. The plaintiffs did not argue that the court had general jurisdiction over the defendant; instead, they argued that the court had specific jurisdiction over the defendant with regard to the claims of all of the plaintiffs because the defendant had conducted "a number of clinical trials" in Missouri and had worked on regulatory approval for the product in Missouri, and because "St. Louis was one of eight cities targeted as part of a broader marketing plan to increase sales and revenue." Id. at *3.

The court explained that, under BMS, specific jurisdiction depends on "an affiliation between the forum and the underlying controversy, principally [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Id. (citation to BMS omitted). In this case, the plaintiffs did not see marketing in Missouri, did not purchase the product in Missouri, were not prescribed the product in Missouri, did not purchase the product in Missouri, and were not injured by the product in Missouri. "Furthermore, none of the plaintiffs alleged that she participated in a Missouri clinical study or reviewed or relied on" such studies in deciding to use the product. Id. at *4. As such, the court held, "Even assuming that discovery would prove exactly what Plaintiffs contend happened in Missouri with respect to . . . marketing and clinical trials, the individual plaintiffs' claims are too attenuated from those activities to provide specific 'case-linked' personal jurisdiction." Id. (citation omitted). With no "connection between the forum and the specific claims at issue," id. (citation to BMS omitted), the court held that it did not have jurisdiction over the claims of the eighty-one non-Missouri plaintiffs and dismissed all of those claims.

And so the defendant hit a figurative home run, expanding its already-prominent role in the elimination of litigation tourism in Missouri. We love this string of decisions, we love BMS, and we will keep you posted as its family of progeny continues to grow.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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