On June 19, the Supreme Court handed down an opinion about specific personal jurisdiction that purported to be a “nothingburger”: in the 8-1 decision, the Court explained that “settled principles . . . control this case.” But although only time will tell how juicy Bristol-Myers Squibb v. Superior Court of California will turn out to be, it is already threatening to end a number of pending pharmaceutical product liability cases and it may have farther reaching effects throughout the litigation system. Many lawyers are hailing it as a “game changer.”
In the case, hundreds of plaintiffs sued Bristol-Myers Squibb in California state court, alleging that Plavix, a blood-thinner Bristol-Myers manufactured and marketed, had caused them injuries. Eighty-six of the plaintiffs had bought the drug or were injured in California; the rest had claims identical to the California plaintiffs’, but had bought the drug and were injured elsewhere. A California court had originally asserted general (or “all-purpose”) personal jurisdiction over Bristol-Myers because of the company’s extensive contacts doing business in the state. But after the Supreme Court narrowed the scope of general jurisdiction to states where the defendant was “at home” (for a corporation, its principal place of business or place of incorporation), the California courts held that there was only specific (or “case-linked”) personal jurisdiction over Bristol-Myers.
The Supreme Court disagreed. A court may exercise specific personal jurisdiction where the suit “arises out of or relates to the defendant’s contacts with the forum.” This case raised the question: What does “arises out of or relates to” mean? Bristol-Myers urged that a causal connection is required between the defendant’s forum contacts and the plaintiff’s claim. Under that theory, Bristol-Myers’ Plavix marketing in California may have “caused” the California plaintiffs to buy (and then be injured by) Plavix, giving the California court specific jurisdiction over Bristol-Myers for those claims, but those California marketing efforts did not similarly cause the harm to plaintiffs who bought Plavix in Texas, and therefore there should be no personal jurisdiction with respect to them. As other civil procedure professors and I argued in an amicus brief before the Court, that novel interpretation would have had disruptive, inefficient, and unfair effects on both straightforward and complex litigation in both state and federal courts.
The Court did not go so far as to adopt Bristol-Myers’ “causation” rule. Instead, it held simply that the requisite “connection between the forum and the [non-residents’] specific claims at issue” was lacking, even if some California plaintiffs could assert claims similar to the non-residents’. To aggregate claims that arise out of a nationwide course of conduct, like the sale of Plavix, plaintiffs would have to sue either in the defendant’s home state (where there is general “all-purpose” jurisdiction) or somewhere that has a stronger connection to all the plaintiffs’ claims (like where Plavix is manufactured).
This holding leaves open many questions about what kind of connection between a forum and a claim would support specific jurisdiction. (If two factories manufacture Plavix, can all the Plavix-injured plaintiffs sue in one factory’s home state? Do they have to determine which factory manufactured the Plavix they took?) For now, Bristol-Myers is most directly affecting pharmaceutical product liability cases, such as the Johnson & Johnson talcum powder product liability litigation and the Sanofi Taxotere litigation, leading to immediate dismissals of large numbers of claims and plaintiffs scrambling for additional jurisdictional discovery to keep out-of-state plaintiffs’ claims alive. The similarity between in-state and out-of-state plaintiffs’ claims alone does not provide the requisite connection, but the connection can probably be based on something less than causation.
How much will Bristol-Myers curb other kinds of litigation? Personal jurisdiction purports to be substance-neutral in its application—there is certainly no reason its impact would be limited to pharmaceutical cases. And while Bristol-Myers involved state court litigation that was not brought as a class action, it has the potential to limit both state and federal court litigation in a range of complex postures, especially class actions and multidistrict litigation.
The impact that may be most difficult to measure, and most sought after by corporate defendants, is the reduction in lawsuits brought altogether due to potential plaintiffs’ inability to aggregate claims outside of the defendant’s home state (where the defendant would be subject to general jurisdiction). This effect will be most pronounced (even if silent) when the defendant is a foreign corporation, which is not “at home”—and therefore not subject to general jurisdiction—in any US state. US courts must have specific “case-linked” jurisdiction to hear claims against foreign defendants, and specific jurisdiction just got narrower.