Philadelphia City Hall, home to the city's Complex Litigation Center
WASHINGTON (Legal Newsline) – Since last year’s U.S. Supreme Court ruling that dealt a blow to forum-shopping personal injury attorneys, companies threatened with sprawling, 50-state litigation have not been forced into defending cases all over the country.
Instead, the trial bar is continuing to try to force its way into preferred jurisdictions like California and Pennsylvania that are known for high-dollar verdicts, says one of the attorneys who helped Bristol-Myers Squibb win one in the high court’s recent series of jurisdictional decisions.
Anand Agneshwar said he was told to be careful what he wished for when he fought cases filed in California by out-of-state plaintiffs over the blood-thinner Plavix.
A victory could fracture the grouping of claims, leaving companies to defend themselves all over the country, he says he was warned.
“That’s not how the plaintiffs lawyers operate,” Agneshwar said at an event hosted Monday by the U.S. Chamber Institute for Legal Reform at the National Press Club. The ILR owns Legal Newsline.
“The way plaintiffs lawyers get leverage against the defendant is by aggregating claims in jurisdictions that are threatening to those defendants.
“And it’s the aggregation and the numbers that often push the defendants toward settling because all of a sudden, you have 500 cases pending in this (multi-district litigation) or that state court.”
Supreme Court justices ruled 8-1 last year in favor of Bristol-Myers Squibb after the company argued plaintiffs living outside California who alleged injury from BMS’s blood thinner Plavix should not be able to sue the company in that state.
The Supreme Court delivered an opinion that took on the issue of personal jurisdiction. Plavix was not designed or made in California, and the company is headquartered in New York, so it was inappropriate to join out-of-state plaintiffs with California plaintiffs for the purpose of filing the claims in California, the court ruled.
Two of the jurisdictions that have taken the ruling as gospel are Missouri and Chicago’s federal court, but panelists pointed at a recent Pennsylvania decision as a sign that some judges are still reluctant to shift their thinking.
Philadelphia’s court of common pleas has long been known as a haven for out-of-state plaintiffs. In 2016, more than 90 percent of filings in the city’s Complex Litigation Center came from out-of-state plaintiffs, boosted by thousands of Risperdal claims.
On May 18, Philadelphia judge Arnold New found that more than 100 lawsuits against pelvic mesh maker Ethicon would stay in his court because Ethicon had used Bucks County-based Secant to help with the manufacture of the product.
New said that portion of the process gave the court specific personal jurisdiction over the claims, even though part of the BMS decision said jurisdiction couldn’t be established by tying in a California company with which BMS contracted to distribute Plavix.
“Bristol-Myers did not invite courts into fishing expeditions to look for companies related to the manufacturing process,” Agneshwar said.
Agneshwar says the Supreme Court wants lower courts to rule on jurisdictional issues early on, not after years of discovery that seeks to find a local defendant to establish jurisdiction.
But, he said, the old “paradigm” is engrained in a lot of the players in these types of cases, and the arguments can sway judges.
In California, where BMS fought the Plavix forum-shopping, plaintiffs attorneys continue their effort to land their cases there. The state’s courts have long been deemed unfair to defendants by business and legal reform groups.
Nineteen cases from the state’s Northern District federal court and eight from the Southern District have analyzed the BMS decision, according to ILR research announced at the event.
A Northern District judge ruled in cases against BMS that the allegation the company once held a clinical study in the state was enough to establish jurisdiction.
It’s part of a strategy that has plaintiffs lawyers trying to plug the holes in the BMS decision, Agneshwar said.
Justice Samuel Alito’s majority opinion, which reversed the California Supreme Court’s earlier decision, did not specifically mention such in-state trials and their effect on jurisdiction.
Agneshwar says the decision was if the case was open-and-shut – a “no-brainer” – and not necessarily a paradigm shift. But plaintiffs can now focus on what was missing from the decision, he said.
“It’s ironic that the state that got slammed down for its expanded use of jurisdiction is now the state seeing resistance to embracing the Supreme Court’s decision,” he said.
At a conference in May, members of the trial bar agreed that the decision hasn’t shut the doors to their favorite courtrooms.
“I don’t think it’s been some kind of bar on these kinds of mass torts,” Neblett, Beard & Arsenault attorney Dustin Carter said at a HarrisMartin conference.
“Everyone initially thought it would be this large precedent. But non-resident plaintiffs can still bring cases.”
A San Diego lawyer also taking part in the HarrisMartin conference agreed. Nicholas Drakulich says the ruling is simply forcing plaintiffs attorneys to work harder.
“As the saying goes: There’s the law, and it’s all shaped by facts,” he said. “And facts can be tough things. So our job is to go find those tough things, and then prove those tough things.”