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Massachusetts Superior Court Invalidates Forum Selection Clause and Dismisses Employer’s Action To Enforce a Noncompetition Agreement

Posted in California Courts, Commercial Litigation, Employment Litigation, Litigation Trends, Massachusetts Courts

 

Oxford Global Resources, LLC v. Hernandez
Superior Court of Massachusetts
(Suffolk, Business Litigation Session)
Docket No. 1684-CV-03911-BLS-2


 

The Business Litigation Session of the Suffolk Superior Court in Massachusetts invalidated a contractual forum selection clause and dismissed an employer’s action to enforce a noncompetition agreement signed by a former employee, because the employer forced a Massachusetts forum upon a California employee in order to circumvent California public policy against the enforcement of noncompetition agreements.

Plaintiff-employer Oxford Global Resources, LLC (“Oxford”), a recruiting and staffing company specializing in placement of information technology contractors to businesses, hired defendant-employee Hernandez to an entry-level position as an account manager. When hired, Hernandez had to sign an offer letter and a separate “protective covenants agreement” which contained confidentiality, noncompetition, and non-solicitation provisions. The agreement also contained a forum selection clause requiring that any lawsuit arising from the agreement be brought in Massachusetts, and a choice-of-law provision providing for the application of Massachusetts law to the agreement.

Oxford hired Hernandez to work in its Campbell, California, office. Hernandez interviewed for the position in California; signed the offer letter and agreement in California; was trained by Oxford in California; conducted all of his work for Oxford in California; and reported to Oxford supervisors who were located in California. Indeed, the Court found that all relevant events and all of Oxford’s alleged injuries occurred in California. The only connection to Massachusetts, the Court noted, was Oxford’s allegation that its principle place of business was there.

Oxford sued Hernandez in Massachusetts alleging that Hernandez used information regarding the identity of Oxford’s customers to solicit those customers on behalf of a competitor in California. Hernandez moved to dismiss the action under the doctrine of forum non conveniens, which permits dismissal when “the court finds that in the interest of substantial justice the action should be heard in another forum.” Mass. Gen. Laws, ch. 223A, § 5. Despite the forum selection clause, Hernandez prevailed and the Court dismissed the action in order for it to be heard in a California court.

The Court engaged in a three-step analysis leading to dismissal. First, it determined that California law governed the agreement despite the choice-of-law provision favoring Massachusetts law because the agreement was an improper contract of adhesion since Hernandez did not have a meaningful opportunity to negotiate it. Oxford’s offer to Hernandez was a take-it-or-leave-it offer, no negotiation of the agreement’s terms took place, and Hernandez had no bargaining power as an entry-level employee with no previous experience in the industry. The Court discounted the agreement’s boilerplate language that Hernandez had the opportunity to consult a lawyer and that he was not under duress as insufficient to overcome the disparity in bargaining power between the parties.

Significantly, the Court found the choice-of-law provision to be an apparent attempt by Oxford to circumvent California’s public policy against the enforcement of noncompetition agreements. Without the provision, California law would have governed the agreement because California had the most significant relationship to the transaction and the parties, as all relevant events occurred there, and because Oxford “alleged no facts and presented no evidence suggesting that Hernandez’s contract and work for Oxford implicated Massachusetts in any way.” The Court therefore concluded that enforcement of the agreement’s choice-of-law provision “would result in substantial injustice to Hernandez by depriving him of the freedom to compete against Oxford in California that is guaranteed under California law, and it would do so based solely on a contract clause that Hernandez had no meaningful opportunity to negotiate when he was hired.”

In the second step of its analysis, the Court determined that the agreement’s forum selection clause was unenforceable under California law. Although generally enforceable, forum selection clauses in combination with choice-of-law provisions that violate public policy are themselves unenforceable as against public policy.

The final step of the Court’s analysis was to determine the proper venue for Oxford’s action in the absence of an enforceable forum selection clause. The Court exercised its broad discretion in concluding that it would be unfair to compel Hernandez to defend himself in Massachusetts, where all relevant events and witnesses were located in California, and the private and public interests weighed heavily in favor of California as the proper venue. Accordingly, the Court dismissed the action in Massachusetts and determined that California was the appropriate forum for Oxford to litigate its claims against Hernandez.

This case presents several key takeaways for Massachusetts practitioners and businesses dealing with employment agreements. For one, boilerplate language in an employment agreement is not free from scrutiny over the true bargaining power in the employer-employee relationship. Moreover, “remembered information” concerning the identity of customers—the employee’s “own memory of customers’ names, needs, and habits”—is too broad to be protected by the employer as confidential information, although an employer’s compilation of such information in a list or database will likely be protected. Finally, the mere location of a company’s principle place of business may not be enough to ensure that selection of that forum for litigation is adequate; some additional aspect of the work performed or the contract entered into must implicate the forum state.

Petitpas v. Ford Motor Co., et al.: A Look at the Evolving Landscape of Asbestos Litigation in California

Posted in Asbestos Litigation, California Courts, Litigation Trends, Premises Liability, Products Liability, Uncategorized

The Second District Court of Appeal, Division Four in Los Angeles handed down a decision in an asbestos case that involved appellate issues pertaining to causes of action for strict products liability and premises liability, primary and secondary (“take-home”) exposure, liability for replacement component parts, and proper jury instructions to be given in asbestos cases on the issue of substantial factor.  Joseph Petitpas v. Ford Motor Company, et al. (Cal. Ct. App., July 5, 2017, No. B245037), an opinion certified for publication on July 5, 2017, presents several factual scenarios to test a number of the decisions in the past decade that continue to shape asbestos litigation in California.   Motions for summary adjudication and defense jury verdicts were affirmed for Ford Motor Company and Exxon Mobile Corporation, while the trial court’s granting of a nonsuit for defendant Rossmoor Corporation was also affirmed.

Background

Plaintiffs  Marline and Joseph Petitpas filed suit against over 30 defendants, alleging Marline’s mesothelioma was caused by exposure to asbestos from sources including, but not limited to, direct exposure from being in the presence of automotive maintenance work, secondary exposure by coming into contact  with Joseph’s clothes and person after he performed automotive maintenance work, primary exposure by visiting Joseph at construction sites while he was employed as an architectural drafter for Rossmoor, and secondary exposure through contact with Joseph’s clothes and person after he  visited construction sites in the course of his employment with Rossmoor.  Marline passed away during the appeal.

Issue One

Prior to trial, Exxon was granted summary adjudication of Plaintiffs’ strict products liability claim.  Exxon, a premises defendant, demonstrated that in the course of Joseph’s work at a service station for which Exxon assumed liabilities, Joseph used replacement clutches and gaskets that came from a local independent auto parts store.  Exxon also showed that Joseph used brakes obtained from a mobile brake service company that not only provided brakes but also performed brake work at the service station.  Exxon’s evidence was sufficient to support an inference that the service station was not primarily in the business of supplying asbestos-containing vehicle parts.  In distinguishing this case from its decision in Hernandezcueva v. E.F. Brady Company, Inc. (2015) 243 Cal.App.4th 249, the Court found the service station was a provider of services rather than a seller or distributor of asbestos-containing parts.  The Court also found no relationship existed between the service station and parts manufacturers in which the station could exert any influence on product safety on the manufacturers.  Exxon was not in the stream of commerce for asbestos-containing vehicle parts to the extent strict liability was warranted.

Issue Two

Exxon had also been granted summary adjudication relating to Plaintiffs’ claims of secondary exposure to asbestos.  The trial court applied Campbell v. Ford Motor Co.  (2012) 206 Cal.App.4th 15 and found that Exxon was a property owner that had no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the court of the property owner’s business.  During the pendency of the Petitpas appeal, the California Supreme Court disapproved Campbell in Kesner v. Superior Court (2016) 1 Cal.5th 1132.  Kesner holds that “[T]he duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.  Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.”  (Kesner, 1 Cal.5th at p. 1140.)  The Court in Petitpas strictly construed the holding in Kesner with the regard to the requirement that the injured person be a household member.  Marline and Joseph were not married and did not live together at the time Joseph worked at the Exxon station.  Although Joseph argued he still came into contact with Marline, the Court declined to create a new class of secondary exposure plaintiffs.

Issue Three

Rossmoor was granted a nonsuit after Plaintiffs rested.  The trial court granted the nonsuit as to secondary exposures based on a Campbell theory that there is no duty to protect family members of workers on premises, as Plaintiffs contended Marline was exposed to asbestos through laundering Joseph’s clothes, riding in the car they shared, and through physical contact with Joseph at the conclusion of his workday.  As such, Plaintiffs failed to satisfy the requirements under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 to show Marline was actually exposed to asbestos-containing materials by Rossmoor with enough frequency and regularity to show a reasonable medical probability that the exposure was a factor in causing her injury.  Even though Kesner had displaced Campbell, Rossmoor’s nonsuit was affirmed on appeal because of the insufficient evidence of causation.  The Court ruled Plaintiffs were unable to bridge the gap between the possibility Marline was exposed via asbestos dust on Joseph’s person and clothes and the necessary showing of frequency, regularity, and proximity of exposure to rise to a level that would increase one’s risk of the development of an illness.

Additionally, Rossmoor moved for nonsuit as to the claim of primary exposure from Marline’s visits to the Rossmoor constructions sites, on the basis that Marline always visited after work had concluded for the day.  Plaintiffs provided no evidence that dust was present when Marline visited a Rossmoor site.  Citing Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246, 252 for the premise that mere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure, the Court held Plaintiffs presented no evidence there were respirable asbestos fibers present at a site when Marline visited.

Issue Four

Joseph Petitpas claimed error by the trial court with respect to jury instructions.  One alleged error was that the Court gave a special instruction requested by Ford that stated “Ford Motor Company is not liable for Marline Petitpas’ exposure to asbestos that comes from other companies’ brakes, clutches or gasket products installed on Ford vehicles by parties other than Ford.”  The basis for this instruction is the O’Neil v. Crane Co. (2012) 53 Cal.4th 335 case that held “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”  The Court held no design defect existed because the Ford vehicle did not require the use of asbestos-containing components in the brakes and Ford had no control of replacement brakes placed into the stream of commerce by other manufacturers.

Joseph Petitpas also argued the trial court erred in reading CACI jury instruction numbers 430 and 435, as opposed to just 435.  The Court of Appeals held that because 435 states “unless there are other defendants who are not asbestos manufacturers or suppliers, do not give CACI No. 430”, and Exxon as a premises defendant was neither a manufacturer nor a supplier, it was proper to instruct with 430.  The primary difference between 430 and 435 is that 430 focuses on the harm resultant from defendant’s conduct while 435 focuses on the risk of harm from defendants’ conduct.

Issue Five

The Court of Appeals affirmed the verdict in favor of Exxon after Joseph argued the evidence did not support the verdict.  The jury found that Exxon controlled the service station that Marline was exposed to asbestos at, and that Marline’s exposure at the station was a substantial factor in contributing to her risk of developing mesothelioma.  The jury did not find, however, that Exxon knew, or through the exercise of reasonable care should have known, that there was a condition at the station that created unreasonable risk to Marline.  Joseph claimed it was uncontroverted Exxon knew of the risks attendant to such an environment.  The Court of Appeals, however, agreed with Exxon that the evidence presented at trial did not show that Exxon had such knowledge or could have even come to know as such, as in the relevant time period—and even today—there are no studies documenting that performing brake work increases one’s risk for the development of mesothelioma.

Although the Petitpas decision did not create new law, it is a good example of how the courts will interpret, at least for now, increasingly common issues in California asbestos litigation with respect to causation and duty.

 

Rhode Island Superior Court Denies Plaintiff’s Motion to Preclude Expert Testimony in Products Liability Action

Posted in Asbestos Litigation, Litigation Trends, Premises Liability, Products Liability, Rhode Island Courts, Uncategorized

Plaintiff’s attempt to preclude testimony of expert witness in asbestos related products liability litigation meets impasse—court refuses to circumscribe competent experts to narrowly defined fields or specific licensure.

On Friday, June 9, 2017, Presiding Justice Alice Gibney of the Rhode Island Superior Court, Providence County, issued a decision denying a plaintiff’s motion to preclude the expert testimony of Dr. Michael Graham, proffered by the Defendant Crane Co., in an asbestos-related products liability action.

Plaintiff argued that Dr. Graham was not qualified to provide expert testimony regarding causation of asbestos-related diseases and sought to preclude his testimony, pursuant to Rhode Island Rule of Evidence 702, which provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine ac fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.

Defendant objected and maintained that the Court should allow Dr. Graham’s testimony as he was an experienced and qualified pathologist.  In the alternative, Defendant requested that any ruling on Plaintiff’s Motion be reserved until Dr. Graham had the opportunity to present his qualifications to the Court.

Plaintiff argued that Dr. Graham’s background as an expert pathologist, expert medical examiner, and expert at determining cause of death did not render him an expert in causation in connection with asbestos-related diseases.  Plaintiff noted that Dr. Graham’s professional publications were almost completely devoid of reference to asbestos and discussion of mesothelioma.  As a result of this alleged deficiency, Plaintiff contended that the testimony was not relevant and that it would be of no assistance to a jury.  Plaintiff urged the Court to circumscribe that limits of permissible expert testimony in a manner analogous to medical malpractice litigation—narrowing competent experts to those with specialized qualifications in narrowly defined fields.

Defendant countered by asserting that Dr. Graham was a board certified pathologist, had studied asbestos-related diseases for over thirty years and had the opportunity to review over 1000 case of asbestos-related diseases throughout his career.  Defendant also emphasized that Dr. Graham testified in more than 750 cases within the United States and specifically reviewed the Plaintiff’s pathology in forming his opinions in the case.

In reaching its decision, the Superior Court reaffirmed that “before admitting expert testimony, the trial justice must evaluate whether the testimony that a party seeks to present to the jury is relevant, within the witnesses’ expertise, and based on an adequate factual foundation.”  (Internal citation and quotation omitted).   The Court explained that it would evaluate the expert’s qualifications by reviewing his education, training, employment and experiences.  Thereafter, the Court would endeavor to determine whether the expert would present scientific, technical, or other specialized knowledge that would assist the trier of fact.

Justice Gibney quoted to the Rhode Island Supreme Court’s Opinion in Raimbeault v. Takeuchi Mfg. U.S., Ltd., 772 A.2d 1056, 1061 (R.I. 2001) with approval for the proposition that an expert witness “need not have a license in a narrow specialty, nor hold a particular title, as long as his or her knowledge, skill, experience, training, or education can deliver a helpful opinion of the fact-finder.” (Internal quotation omitted).

The Court also distinguished Soares v. Vestal, the case relied upon to bolster her argument that expert testimony should be confined to the expert’s field of expertise as required in medical malpractice cases.  632 A.2d 647, 647-48 (R.I. 1993).  In particular, the Court found that Soares was limited to the facts of that particular case and did not broadly pronounce that experts need be certified in a specific area in order to testify in medical malpractices.  Instead, the Court opined that the gravamen of the analysis is whether the opinion will aid the fact-finder and that decision rests soundly within the discretion of the trial justice.

Finally, the Court delineated Dr. Graham’s credentials as a board certified anatomic and clinical pathologist and serving Chief Medical Examiner, as well as his educational background, research, publications and experience.  Based on those qualifications, the Court found that Dr. Graham was qualified to testify to causation regarding asbestos-related diseases under Rule 702, that the testimony was relevant, and that an adequate factual foundation for the formation of his opinions flowed from his review of the Decedent’s medical records.

Forum-shopping in Illinois? Think again. Cook County trial court erred in denying forum non conveniens motion

Posted in Asbestos Litigation, Products Liability

CCG_Seal_260x2001On June 13, 2017, the Illinois First District Appellate Court issued an unpublished opinion holding that a Cook County judge erred in denying a forum non conveniens motion where essentially the entire case rests not in Plaintiffs’ chosen forum of Cook County, but in Winnebago County.[1]

 

The doctrine of forum non conveniens is premised on “considerations of fundamental fairness and sensible and effective judicial administration.”[2] It assumes that more than one forum possesses the power to hear a case, but permits a court to decline jurisdiction where another forum can “better serve the convenience of the parties and the ends of justice.”[3]  In determining whether to accept or decline jurisdiction, the court must balance private interest factors affecting the convenience of the litigants and public interest factors affecting the administration of the courts.[4]

 

The private interest factors the court considers include the convenience of the parties; the relative ease of access to testimonial and documentary evidence; and other practical matters, which tend to make a trial “easy, expeditious, and inexpensive.”   The public interest factors include the interest in deciding controversies locally; the unfairness of imposing trial expense and the burden of jury duty on residents of a forum with little connection to the litigation; and adding litigation to already congested court dockets.

 

In cases such as Rohl, where the primary issue is one of product liability, Illinois courts have found that the location of the accident is less significant and largely supplanted by a more general interest in resolving a claim concerning an allegedly defective product.[5] Also, because a jury visit to the accident site is generally unnecessary, the significance of this factor is further diminished in product liability claims.[6] On appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard in Illinois.  Therefore, it is somewhat of an understatement to say that it is difficult to overturn a trial court’s decision regarding a forum non conveniens motion in Illinois, particularly in a product liability case.

 

Here, Plaintiffs Irvin and Marlene Rohl sued several defendants in Cook County alleging that asbestos exposure led to Mr. Rohl’s fatal lung cancer.  Certain defendants filed motions to transfer the matter from Cook County to Winnebago County under the doctrine of forum non conveniens.  The Cook County trial judge denied the motions, citing Mr. Rohl’s attendance at a trade school in Cook County in the late 1940s where, according to the Court’s ruling, Mr. Rohl was exposed to asbestos.  The appellate court initially denied the petition for review of the trial court’s denial of the forum non conveniens motion.  However, in December 2016, the Illinois Supreme Court entered a supervisory order directing the appellate court to grant the petition and resolve the forum non conveniens motion on its merits.

 

The complaint, filed in January 2016, alleged that Mr. Rohl was exposed to asbestos through his employment as a laborer, heavy-equipment operator, and mechanic from 1950 until 1999.  Specifically, Plaintiffs alleged that Mr. Rohl worked with asbestos-containing brakes, gaskets, clutches, engines, heavy-duty equipment and vehicles.

 

During discovery related to forum non conveniens motions, Mr. Rohl provided a summary of his various places of employment where he claimed exposure to asbestos. The only exposure relating to Cook County was at an automotive and diesel trade school from 1946 to 1947.  In contrast, Mr. Rohl worked in Winnebago County for over 45 years.  Aside from the trade school, and brief work in the early 1950s in Indiana and in Stephenson County, Illinois, Mr. Rohl worked in Winnebago County from 1953 to 1999.

 

Here, both the private and public interests overwhelmingly favor Winnebago County.  The Rohls lived their entire adult life in Winnebago County. From 1957 until his retirement in 1999, Mr. Rohl worked for the same employer in Winnebago County.  Mr. Rohl’s co-workers at live in Winnebago County. The majority of Mr. Rohl’s medical treatment took place in Winnebago County.  Mr. and Mrs. Rohl’s surviving adult children all live in Winnebago County.

 

In contrast, Cook County has a very tenuous connection to the issues in the case.  It is true that Mr. Rohl attended an automotive trade school in Cook County for a total of six months in 1946 and 1947. However, when asked at his deposition whether he believed he was exposed to asbestos during his attendance at the trade school, Mr. Rohl responded “No. Not sure.”  None of Mr. Rohl’s medical care providers were based in Cook County.  Thus, all of the testimonial or documentary evidence related to Cook County stems from the automotive trade school – about which Mr. Rohl provided testimony prior to his passing.

 

Overall, the private interest factors weigh strongly in favor of transfer to Winnebago County. After analyzing the record, the convenience of the parties did not strongly favor either forum.  Turning to the ease of access to testimonial and other sources of evidence, Winnebago County is strongly favored. All identified potential witnesses, including Mr. Rohl’s family members, co-workers, and most treating physicians (with the exception of physicians who treated Mr. Rohl at the Mayo Clinic in Arizona), reside or work in Winnebago County. Whereas, not a single witness who works or resides in Cook County was identified. Mr. Rohl’s employment records are maintained in Winnebago County, which is also the location of the primary site of Mr. Rohl’s alleged asbestos exposure between 1953 and 1999.  Additionally, Mr. Rohl’s medical records are maintained in Winnebago County.

 

The public interest factors likewise weigh strongly in favor of transfer. The controversy is local to Winnebago County.  Mr. Rohl worked in Winnebago County for 45 years, thus it is the primary site of Mr. Rohl’s alleged occupational exposure to asbestos.  Based on Mr. Rohl’s own testimony it is, at best, uncertain whether any exposure to asbestos occurred in Cook County.

 

On appeal, the Court found Plaintiffs’ argument that hundreds, perhaps thousands, of Cook County residents may have come into contact with defendants’ asbestos-containing products unavailing. Specifically, this speculation is insufficient to establish a “significant factual connection” to Cook County, so as to render this case a local controversy.  The court also performed an analysis of court congestion between the counties, but found it a relatively insignificant factor.  Given the lack of connection to Cook County, the appellate court found that it would be manifestly unfair to burden Cook County residents with jury duty and trial expenses associated with litigating the matter in Cook County.

 

Finding that the circuit court abused its discretion in denying the forum non conveniens motion, the order was reversed and the case was remanded with directions to grant defendants’ forum non conveniens motion.  Although unpublished, Rohl will undoubtedly guide the Illinois courts on the application of forum non conveniens going forward.  Matters as simple as ascertaining where medical care was received and where a plaintiff’s family lives can pay dividends if plaintiff appears to be forum-shopping – at least in Illinois.

 

[1] Irvin Rohl and Marlene Rohl v. Borg Warner Corp., et al., 2017 IL App (1st) 162398-Unpub.

[2] Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158,169 (2005).

[3] Id.

[4] Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 274 (2011); Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443-444 (2006) (citing First American Bank v. Guerine, 198 Ill. 2d 511, 516-17 (2002)).

[5] Taylor v. Lemans Corp., 998 N.E.2d 609, 617 (2013), citing Ammerman v. Raymond Corp., 884 N.E.2d 1221 (2008).

[6] Id., citing Hinshaw v. Coachmen Industries, Inc., 745 N.E.2d 583 (2001).

U.S. Supreme Court Sets the Stage For Jurisdictional Limitations in Product Liability Matters

Posted in California Courts, Litigation Trends, Missouri Courts, Pharmaceutical and Medical Devices, Products Liability

supreme-court-building-1209701_1280In a groundbreaking decision that follows closely on the heels of its jurisdictional decision in BNSF Railway Co. v. Tyrrell, 581 U.S. __ (May 30, 2017) (“Tyrrell”), the United States Supreme Court held that the California Supreme Court was wrong to let approximately 600 non-California residents join 86 state residents in a pharmaceutical claim against Bristol-Myers in which plaintiffs alleged that it misrepresented the risk of heart attacks and strokes associated with the use of its blood thinner, Plavix. In overturning the decision of the California Court, the Supreme Court premised its holding on the fact that the out-of-state plaintiffs had not shown enough of a connection between their alleged injuries and the company’s activities in California.

 

As previously reported, in an effort to find a way around the restrictions imposed on a court’s exercise of specific personal jurisdiction over a foreign corporation by the U.S. Supreme Court’s Daimler decision,  the California Supreme Court used specific personal jurisdiction as a tool to enlarge the Court’s power to exercise personal jurisdiction over a foreign corporation.  In Bristol-Myers Squibb, the California Supreme Court expressly held that Bristol-Myers Squibb was not subject to general personal jurisdiction in California, as its contacts with the state were not substantial enough to render it “at home” in the jurisdiction. It held, however, that specific personal jurisdiction existed over Bristol-Myers Squibb in California—even for plaintiffs who were not injured in California—based on its “purposeful availment” of the benefits and privileges of the laws of the State of California as a result of its “nationwide marketing, promotion and distribution [that] created a substantial nexus between the non-resident plaintiffs’ claims and the company’s contacts in California . . . .” Bristol-Myers Squibb Co. v. Superior Court, No. S221038, 2016 WL 4506107 (Cal. Aug. 29, 2016).

 

In the Supreme Court’s June 19, 2017 opinion, it reversed the California Supreme Court by a vote of 8-1. It made clear that specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” If a state has no “legitimate interest” in particular claims, a defendant should not be forced to submit to the coercive power of the state with respect to those claims. Bristol-Myers Squibb Company v. Superior Court of California, San Francisco County, et al., 582 U.S. ___, ____ (2017) (slip op. at 6). The Supreme Court explicitly held that specific jurisdiction requires a connection between the forum and the specific claims at issue. Id. When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State. Id. at ­­­___ (slip op. at 7).  Applying that requirement, the Court found that California could not exercise specific jurisdiction over Bristol-Myers Squibb with respect to non-residents’ claims because: (1) the non-residents did not claim to have suffered harm in California; and (2) all the conduct giving rise to the non-residents’ claims occurred elsewhere. Further, the fact that other plaintiffs were prescribed, obtained and ingested Plavix in California, and allegedly sustained the same injuries as the non-residents, or that Bristol-Myers Squibb conducted research in California on matters unrelated to Plavix, was irrelevant to specific jurisdiction. Id. at __ (slip op. at 7-9).

 

The Supreme Court’s decision had an immediate impact, as a Missouri state court granted Johnson & Johnson’s motion for a mistrial in a multi-plaintiff talcum powder case based on the Bristol-Myers decision that same day. Johnson & Johnson’s motion focused on the lack of connection between the plaintiffs and the forum state, as well as defendants’ ties to Missouri. This is likely just the beginning when it comes to the impact the Bristol-Myers and BNSF Railway decisions have, particularly in mass tort, multi-plaintiff suits. These decisions certainly limit plaintiffs’ ability to forum shop product liability cases, providing more certainty for corporations as to where a suit may be brought against it, and likely resulting in fewer cases filed in plaintiff-friendly jurisdictions. But, one issue that does appear to be left open by the decision is how much of a connection between a plaintiff’s claim and the forum state is required to permit the assertion of specific jurisdiction. In the instant matter, this issue was not decided because there was no connection at all (Plavix was not manufactured in California, and the non-resident plaintiffs did not purchase, obtain and/or ingest the drug in the state of California). Given the complexities this decision raises for plaintiffs who now may be put in a position to bring separate actions in separate states against separate defendants, this issue is likely to be further litigated, particularly in the mass tort and class action context.