The mass marketing and distribution of products on a national scale
The growth of mass tort litigation tracks with industries’ shift to mass marketing and distribution of pharmaceutical and consumer products on a national scale.[
However, the nation’s highest court has repudiated this “relaxed” approach to mass tort jurisdiction.[iii] In BMS, the state court found
In short, the BMS court instructs that when a group of individuals from various states
However, filing mass torts in a defendant manufacturer’s “home” forum does not resolve the problems posed by the interstate character of contemporary product liability litigation. As noted in Justice Sotomayor’s dissent,[viii] when a mass tort is filed in a manufacturer’s home forum, that forum is likely to lack personal jurisdiction over additional important defendants located in other states. For example, in a failure-to-warn case, the prescribing physician is an essential witness, with respect to the learned intermediary doctrine, and many plaintiffs desire to bring claims against the prescribing physician for malpractice or lack of informed consent. The inability to join important
Of course, BMS does not prevent intrastate plaintiffs from filing a consolidated action in their home forum and suing all defendants in a single action. However, this option is only viable for individual plaintiffs located in a state where there
In short, the court in BMS makes clear that state mass torts cannot “relax” jurisdictional requirements to address litigation arising from a defendant’s nationwide course of conduct, but it does not provide a concrete roadmap that permits plaintiffs from various states to band together in a state forum and obtain the equalizing benefits of litigating on an aggregated basis.[ix]
At the same time, the predicted demise of state mass torts post-BMS may be exaggerated. While the BMS court regarded the
It is also unclear whether an in-state defendant can serve as an “anchor defendant,” creating sufficient contacts with a forum state. In BMS, the plaintiffs sued a Californian distributor and relied on the in-state defendant as a jurisdictional hook. But the court held that the “bare fact that [the nonresident manufacturer] contracted with a [resident] distributor is not enough to establish personal jurisdiction in the State.”[xii] The court’s phrasing leaves open for future cases whether a tighter nexus between an out-of-state manufacturer and in-state defendant may provide sufficiently direct contacts to surmount the requirements of BMS. Thus, attorneys contemplating state mass torts with
In sum, while economic borders grow ever more porous in a globalizing economy, our current jurisdictional framework has not kept pace. BMS fits within the court’s line of recent decisions circumscribing state courts’ jurisdiction over nonresident corporations.[xiii] However, the ultimate reach of BMS’ holding is unclear as the court did not impose a rigid rule requiring direct causation from in-state conduct. Consequently, there may yet be space for state forums to respond to the reality on
[i] Bristol-Myers Squibb Co. v. Superior Court of Cali., 137 S. Ct. 1773 (2017).
[ii] 137 S. Ct. at 1789 (Sotomayor, J., dissenting).
[iii] 137 S. Ct. at 1778–79.
[iv] 137 S. Ct. at 1781 (citation omitted).
[v] 137 S. Ct. at 1780–81 (emphasis by Court) (citation and internal quotation marks omitted).
[vi] 137 S. Ct. at 1783; see Daimler AG v. Bauman, et al., 134 S. Ct. 746 (2014).
[vii] See Toutant, NJ, 'World's Medicine Chest,' May See More Pharma Litigation After 'Bristol-Myers', N.J.L.J. (June 22, 2017).
[viii] 137 S. Ct. at 1789 (Sotomayor, J., dissenting).
[ix] The Court left “open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court,” 137 S. Ct. at 1783–84, suggesting that the Court may believe the solution must lie in
[x] 137 S. Ct. at 1789 ((Sotomayor, J., dissenting).
[xi] Cortina v. Bristol-Myers Squibb Co., No. 17-CV-00247, 2017 WL 2793808, at *3-4 (N.D. Cal. June 27, 2017).
[xii] 137 S. Ct. at 1783 (citations omitted).
David Mazie is a trial lawyer specializing in complex torts, commercial litigation, and personal injury. He is a senior partner in Mazie Slater Katz & Freeman in New Jersey, a firm experienced in New Jersey mass tort litigation. Mr. Mazie is the holder of the two highest personal injury verdicts in New Jersey history. Please visit www.mskf.net for a full profile.
David Estes is an associate at the firm, specializing in complex torts, personal injury, and health care law. He has been selected for the “Rising Star” distinction in the 2014-–17 editions of New Jersey’s Super Lawyers.