April 24, 2019 Articles

A Post-BMS Test for Avoiding “Loose and Spurious” Forms of General Personal Jurisdiction

If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff resides, then it cannot be the kind of contact that causes a claim to “arise from” or “relate to” the forum state.

By James M. Beck

In Bristol-Myers Squibb Co. v. Superior Court (BMS), 137 S. Ct. 1773 (2017), the U.S. Supreme Court rejected the California Supreme Court’s expansive view of specific (“case-linked”) personal jurisdiction in mass tort cases. The specific jurisdiction standard that BMS applied—that “the suit must arise out of or relate to the defendant’s contacts with the forum”—has existed for decades. Id. at 1780. BMS cited cases from the mid-1980s, but its antecedents go back to the seminal decision in International Shoe v. Washington, 326 U.S. 310 (1945). While some lower courts (and some defense amici in BMS) have interpreted that requirement as requiring “causation,” the Supreme Court did not have to reach that question.

Instead, BMS criticized the California “sliding scale” approach—that “the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims”—as “a loose and spurious form of general jurisdiction.” BMS, 137 S. Ct. at 1781. “For specific jurisdiction, a defendant’s general connections with the forum are not enough.” Id. In the following paragraph, the BMS Court listed what was missing—and what didn’t matter:

The present case illustrates the danger of the California approach. The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. As noted, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. . . . Nor is it sufficient—or even relevant—that BMS conducted research in California on matters unrelated to Plavix. What is needed—and what is missing here—is a connection between the forum and the specific claims at issue.

Id. (emphasis added).

The Court’s discussion holds the key to separating those forum contacts that meet the “arising from”/“relating to” standard from others that would, as in BMS, result in improper “loose and spurious form[s] of general jurisdiction.” Jurisdictionally appropriate facts are similar to those BMS described as “adequate” or “case-linked”—meaning plaintiff-specific contacts with the forum. BMS listed several: a plaintiff being prescribed, buying, taking, and/or being injured by a product in the state where the plaintiff sued. There are undoubtedly others. Plaintiffs who can assert such case-linked facts can obtain jurisdiction over a defendant, even if they are not domiciled in the forum state.

Claimed forum contacts that are insufficient, indeed not “even relevant,” are in-state activities that would result in “specific” jurisdiction becoming indistinguishable from “general” jurisdiction—the characteristic that prompted the Supreme Court’s “loose and spurious” description of what California had created. BMS named one such improper contact, “conducting research.” Id. at 1781. “[C]onducting research” cannot be “case-linked” because any plaintiff from any jurisdiction could assert it as a contact. It would allow plaintiffs, particularly mass tort plaintiffs, to use “specific” jurisdiction in the same way as “general” jurisdiction—precisely what BMS condemned.

This insight leads to a simple test for “case-linked” minimum contacts post-BMS—a test that is even easier to apply than a causation-based standard.

If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff resides, then it cannot be the kind of contact that causes a claim to “arise from” or “relate to” the forum state. Rather, that kind of contact is not “sufficient . . . or even relevant” because it would create “loose and spurious” general jurisdiction. Id. at 1781. In prescription medical product litigation, such “loose and spurious”—and thus insufficient—purported contacts include not just in-state clinical trials (unless the particular plaintiff participated), but also a defendant’s

  • collaboration with in-state residents (not involving a particular plaintiff);
  • in-state marketing efforts (unless actually known to the plaintiff’s prescribing physician);
  • obtaining Food and Drug Administration (FDA) approval (and other FDA interactions);
  • in-state distribution of materials to persons unaffiliated with the plaintiff;
  • contracts with in-state businesses; and
  • transshipment of the product through the state.

Nonresident plaintiffs from Maine, Florida, Alaska, or California could equally assert these sorts of purported “contacts” and are thus actually seeking to apply a “continuous and substantial” standard, concerning only the product or products at issue, but unaccompanied by the critical “at home” limitation that the Supreme Court has mandated. This attempt is simply another version of “loose and spurious” general jurisdiction masquerading as specific jurisdiction, as condemned by BMS.

A corollary to how BMS should be applied is that most “jurisdictional discovery” sought by plaintiffs is (to quote BMS) an “irrelevant” exercise. Id. at 1781. Plaintiffs—not defendants—have access to the types of evidence that BMS listed as “adequate links” to the forum state. A plaintiff would know where he or she was prescribed the product, bought the product, used the product, and was injured by the product. If the plaintiff participated in a clinical trial, he or she would know that. If the plaintiff’s prescribing physician was exposed to advertising in the jurisdiction, that plaintiff as the physician’s patient is in a better position to find that out than the defendant.

Thus, ultimately, the BMS “arising from”/“relating to” test need not be difficult to apply. The Court in BMS informed litigants everywhere what type of evidence is “adequate” to support specific “case-linked” jurisdiction and, conversely, what is “irrelevant.” If use of a particular asserted “contact” would cause specific jurisdiction to behave like general jurisdiction—by letting any plaintiff from anywhere to sue without regard to his or her individual facts—then it is improper under BMS as another attempt at “loose and spurious” general jurisdiction.

James M. Beck is a senior life sciences policy analyst at Reed Smith LLP in Philadelphia, Pennsylvania.

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