SAN FRANCISCO (Legal Newsline) – Most of the plaintiffs in product-liability cases filed
against pharmaceutical manufacturers in California’s leading courts were
brought by people who live in other states, finds a recent study
by the Civil Justice Association of California.
The study examined cases in both the Los Angeles and the San Francisco superior courts from January 2010 to May 2016. The results showed that the majority of
these cases against pharmaceutical companies were brought by so-called, “litigation
tourists,” or plaintiffs who don’t actually reside in California.
In fact, 90 percent of the 25,503 litigants who were
included in the study lived in other states and in more than 66 percent of the
cases, there weren’t any California residents among the plaintiffs.
In a legal
opinion letter published by the Washington Legal Foundation, attorney Mark Behrens
examined these findings and why California is an attractive state for those
that bring litigation against pharmaceutical companies.
“California’s plaintiff-friendly reputation no doubt
attracts many out-of-state plaintiffs,” Behrens wrote, citing the American Tort
Reform Foundation’s annual labeling of the state as a “Judicial Hellhole.” According to
Behrens, California’s legal system rewards plaintiffs with some of the nation’s
largest verdicts in tort cases, especially pharmaceutical cases.
The CJAC study noted the fact that a relatively small number
of law firms was responsible for bringing the majority of the lawsuits studied,
with more than 90 percent of plaintiffs being represented by only 25 law firms.
“It appears that the law firms bringing most of the
pharmaceutical product-liability cases in California are actively searching for
plaintiffs in other states and funneling those filings to California,” wrote
In fact, the firms that filed most of the pharmaceutical related
liability cases plaintiffs were overwhelmingly from places other than California.
Only one-third of the plaintiffs represented by the top 25 law firms were residents
of the Golden State.
Behrens also points out that California is one of the six
states where the Frye standard still remains
the threshold for determining the validity of expert testimony.
among a shrinking minority of states that has not adopted the federal Daubert standard for the admissibility
of expert evidence,” writes Behrens.
The Daubert standard is used by a trial judge to
assess whether a purported expert’s testimony is based on scientific reasoning
or methodology. The standard stems from Daubert
v. Merrell Dow Pharmaceuticals Inc. from 1993, and replaced the Frye standard.
California law also provides for “so-called innovator
liability theory,” according to Behrens, which allows manufacturers of
brand-name drugs to be held liable for injuries sustained by patients treated
by generic versions of those medications manufactured by third parties. In
addition, Behrens notes that California courts have no cap on punitive damages,
unlike many other states in the nation.
Behrens points to the recent Bristol-Myers Squibb Co. v. Superior Court case that the California
Supreme Court decided last August was appropriately heard in the state even
though the case involved claims from mostly nonresidents and the company was
based on the east coast.
The Delaware corporation with headquarters in New York
argued that the California court lacked the required personal jurisdiction due
to the fact that the product was neither manufactured, developed, labeled,
packaged or approved in California.
Furthermore, the company argued, sales in
the state of California amounted to only 1.1 percent of national sales.
However, the California Supreme Court ruled that the marketing and distributing
of the product within the state did, in fact, establish specific personal
jurisdiction - a move that “effectively cemented California’s position as a
plaintiff-friendly destination for pharmaceutical and other mass-tort
litigation,” wrote Behrens in the legal opinion.
In conclusion, Behrens writes that the study by the CJAC, “exposes
the pervasiveness of nonresident pharmaceutical filings in the Golden State.”
It also, according to Behrens, provides a much-needed starting point for
discussion of the impact that nonresident filings have on the state’s judiciary
budget crisis, and how these cases may be delaying justice for California’s