Personal Jurisdiction in Product Liability Actions brought by Out of State Plaintiffs; Application of Bristol-Myers Squibb
Hammons v. Ethicon, Inc., 190 A.3d 1248 (Pa. Super. 2018); In re Pelvic Mesh Litigation, 2019 WL 1486697 (Pa. Super. Apr. 3, 2019) (unreported); Carlino v. Ethicon, — A.3d — (Pa. Super. Apr. 11, 2019), allocatur granted Apr. 10, 2019, appeal docket 7 EAP 2019
This allocatur grant involves three product liability decisions of the Superior Court implicating the U.S. Supreme Court’s high-profile decision in Bristol-Myers Squibb v. Superior Court of California, where the Court held that California courts lacked “jurisdiction to entertain product liability claims by nonresidents against a nonresident drug manufacturer, where the nonresidents were not prescribed the drug in California and did not purchase, ingest or suffer injury from the drug there.” Hammons Slip Op. at 15.
All three actions at issue – Hammons v. Ethicon, Inc, In re: Pelvic Mesh Litigation, and Carlino v. Ethicon, Inc. – were brought by Indiana plaintiffs asserting claims under Indiana law in the Philadelphia court of common pleas against New Jersey-based Ethicon, Inc., for negligent design of and failure to provide adequate warnings for pelvic mesh, which Ethicon caused to be manufactured in Pennsylvania, and which was surgically implanted in the plaintiffs during pelvic floor surgery performed in Indiana.
The Pennsylvania Supreme Court has limited its grant of allocatur to whether Pennsylvania courts may assert personal jurisdiction over New Jersey-based Ethicon and its parent Johnson & Johnson under these facts.
In its reported decision in Hammons, Superior Court affirmed the trial court’s denial of Ethicon’s motions to dismiss the action for lack of personal jurisdiction, reasoning that evidence showed significant connections between Ethicon and Pennsylvania; the device at issue was designed, tested, and manufactured in Pennsylvania, Ethicon employees visited the plant where the device was made on multiple occasions, and Ethicon relied heavily on a Pennsylvania-based gynecologist for development, study, and marketing of the device, for which he was paid $1.7 million. Based on these contacts, Superior Court concluded the businesses had sufficient Pennsylvania-based contacts linked to Plaintiff’s injury as required by Bristol-Myers Squibb v. Superior Court of California such that the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 Pa.C.S. § 5322(c) did not preclude the Philadelphia trial court’s jurisdiction over the action.
In In re: Pelvic Mesh Litigation, which involved eight Philadelphia pelvic mesh mass tort program plaintiffs, Ethicon limited its challenge on appeal to the trial court’s order denying its motion to dismiss for lack of personal jurisdiction. In that case, Superior Court explained in an unreported decision that it was bound to the Hammons decision, explaining:
The pertinent jurisdictional facts in Hammons and the case sub judice are the same. The plaintiffs in both cases are non-Pennsylvania residents, who were implanted with one of the eight pelvic mesh devices manufactured, in part, by Secant in Pennsylvania. Although some additional facts regarding clinical studies conducted in Pennsylvania were developed during the Hammons trial, the non-resident plaintiffs herein cited that evidence in support of their argument in opposition to Ethicon’s motion to dismiss.
Slip Op.at 12.
Finally, in Carlino, another public mesh case raising the same jurisdictional issue involving Ethicon, a unanimous three-judge panel of the Superior Court likewise relied on Hammons’ jurisdictional holding to affirm the jury’s verdict, including $13.5 million in damages, in favor of Plaintiffs.
The Supreme Court limited its grant of allocatur to the following common personal jurisdiction issue:
Whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 Pa.C.S. § 5322(c) precludes Pennsylvania from asserting personal jurisdiction over two New Jersey companies in a case brought by an Indiana resident asserting claims under the Indiana Product Liability Act.