DRI Amicus Brief Repudiates California’s Open Invitation To Forum Shoppers

March 8, 2017

DRI-The Voice of the Defense Bar has filed an amicus curiae brief in the U.S. Supreme Court to support a brand-name drug manufacturer’s challenge to a California Supreme Court ruling holding that nationwide marketing and distribution activities create enough of a “substantial connection” with California to enable that State’s courts to adjudicate out-of-state plaintiffs’ product liability claims.  The DRI brief, filed  in Bristol-Myers Squibb Co. v. Superior Court¸ No. 16-466, was authored by Lawrence S. Ebner, founder of Capital Appellate Advocacy PLLC and chair of DRI’s Amicus Committee.  The brief argues that the California Supreme Court’s ruling on the scope of “specific jurisdiction” not only violates due process, but also is an open invitation for forum-shopping attorneys to file out-of-plaintiffs’ mass tort suits in California, whose state trial courts are notoriously pro-plaintiff.  According to the brief, the state supreme court’s “sliding scale approach to specific jurisdiction” is “a sliding door that opens automatically for nonresident plaintiffs and forum-shopping attorneys who choose to subject nonresident corporations to the enormous risks and burdens of litigation in one of the nation’s most plaintiff-friendly state court systems.”  To read DRI’s brief, click/press the DOWNLOAD button above.

DRI’s press release explains that in the Bristol-Myers case, filed in San Francisco Superior Court, 575 out-of-state plaintiffs joined 86 California residents in mass product-liability litigation involving Plavix, a brand-name prescription drug manufactured by Bristol-Myers, which is neither incorporated nor headquartered in California.  The nonresident plaintiffs were not prescribed the drug by California doctors, did not have their prescriptions filled by pharmacies in California, and did not suffer their alleged drug-related injuries in California.  Bristol-Myers sought dismissal of the nonresident plaintiffs’ claims on the ground that the state court lacked personal jurisdiction over that company.  The trial court refused to dismiss those claims on the theory that Bristol-Myers’ activities in California (e.g., operation of certain research facilities)—although unrelated to the out-of-state plaintiffs’ claims—created “general” (i.e., all-purpose) jurisdiction over the company.  An intermediate appellate court disagreed about general jurisdiction, but held that there is “specific” jurisdiction to entertain the case.

In a widely publicized 4-3 decision issued in August 2016, the California Supreme Court concluded that the state trial court can exercise case-specific jurisdiction over the nonresident plaintiffs’ claims.  Over a strong dissent, the majority held that despite the lack of a causal connection between the nonresident plaintiffs’ claims and Bristol-Myers’ California-specific activities, the company’s nationwide promotion and distribution of Plavix created enough of a “nexus” with the out-of-state plaintiffs’ claims to allow the California state trial court to exercise specific jurisdiction over the company.  In reaching that conclusion, the majority utilized a  “sliding scale approach to specific jurisdiction” under which a substantial number of unrelated in-state activities by a defendant that is not “at home” in California somehow can make up for the absence of in-state, case-specific activities.