By John W. Scanlan, J.D.
On the beginning day of its October 2017 term, the U.S. Supreme Court has denied certiorari to seven petitioners that had filed product liability claims before the High Court.
GlaxoSmithKline LLC v. M.M. ex rel. Meyers, Dkt. No. 16-1171.
A Delaware-based pharmaceutical manufacturer had challenged an Illinois appellate panel’s decision affirming a trial court’s refusal to dismiss out-of-state product liability claims against it brought by women whose infants had been born with birth defects allegedly resulting from their mothers’ ingestion of the antidepressant prescription drug Paxil while pregnant. Arguing that the question deeply split state high courts and the federal courts of appeal, GlaxoSmithKline LLC had argued that six courts adhere to a proximate causation standard while five—including the Illinois appellate court—have adopted a but-for causation standard. Four other courts apply an even looser standard that does not require any showing of causation. GSK contended that denying certiorari would leave the lower courts without guidance [see Products Liability Law Daily’s April 10, 2017 analysis].
Question presented. The Due Process Clause allows a state court to exercise specific personal jurisdiction over a non-resident defendant only when the plaintiff’s claims "arise out of or relate to" the defendant’s forum activities (Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). For a claim to "arise out of or relate to" a defendant’s forum-state contacts, must there be a meaningful causal link between the defendant’s forum-state contacts and the plaintiff’s claim?
Teva Pharmaceuticals USA, Inc. v. Superior Court of California, Dkt. No. 16-1364.
One of the drug manufacturers in a California Judicial Council Coordination Proceeding (JCCP) asked the Supreme Court to review a denial by the California Court of Appeal of a writ of mandate by the drug maker which contended that it did not consent to personal jurisdiction in the proceeding which concerned Reglan®- and metoclopramide-related lawsuits by patients alleging injuries caused by the brand name and generic drugs. According to Teva Pharmaceuticals USA’s petition, in the cases at issue, "the California courts exercised personal jurisdiction over tort claims not arising in California, brought by plaintiffs not residing in California, against a company not at home in California." Teva noted that the trial court stayed the cases in the proceeding, precluding the drug maker from making personal jurisdiction objections in the cases brought by out-of-state plaintiffs, and that the trial court found that it had consented to personal jurisdiction by briefing the issue of subject matter jurisdiction as directed by the court [see Products Liability Law Daily’s May 17, 2017 analysis].
Questions presented. (1) Does the Due Process Clause prohibit inferring consent to personal jurisdiction for an out-of-state plaintiff's complaint from a defendant's decision to respond to a different complaint that names no plaintiffs; and (2) Does the Due Process Clause prohibit a court from depriving a defendant of any opportunity to challenge personal jurisdiction, by structuring the sequence of a coordinated proceeding to compel consent?
PLIVA, Inc. v. Superior Court of California, Dkt. No. 16-1513.
A pharmaceutical company that was a defendant in multi-district litigation against the brand name and generic manufacturers of Reglan® and metoclopramide had asked for review of the California Supreme Court’s refusal to hear an appeal of a lower court’s ruling denying its motion to quash service of process as being untimely served and to dismiss the action against it for lack of personal jurisdiction. The company argued that its "compulsory, court-directed" participation in coordinated proceedings regarding whether the plaintiffs’ claims were preempted resulted in a waiver of any objections to personal jurisdiction in each lawsuit in the coordinated proceedings in which it was a named defendant, but the lower court had ruled that an appearance qualifies as a general appearance if it seeks relief that is available only when the court had jurisdiction over the defendant.
Question presented. When a state court lacks personal jurisdiction in lawsuits against a defendant, and the state court combines those lawsuits into a coordination proceeding with other lawsuits where personal jurisdiction exists, does a defendant's participation in the state-court coordination proceeding constitute waiver of the defendant's fundamental right not to be subject to the coercive power of a state court that lacks personal jurisdiction over it or consent to that court's exercise of personal jurisdiction over it in every individual lawsuit coordinated under the state-court procedures?
Calloway v. R.J. Reynolds Tobacco Co., Dkt. No. 16-1507.
The widow of a deceased smoker whose $55-million punitive damages verdict was overturned by a Florida appellate court on the ground that her counsel’s arguments that the tobacco companies engaged in "reprehensible" conduct violated their right to a fair trial had asked for review of the decision, asserting that the appeals court’s ruling was inconsistent with the High Court’s jurisprudence on punitive damages. According to the petition, the Supreme Court has held that a plaintiff seeking punitive damages is obligated to establish that a defendant’s conduct is sufficiently reprehensible as to justify punitive damages in addition to compensatory damages, and that the absence of aggravating factors associated with particularly reprehensible conduct makes a punitive damages award constitutionally suspect under the Fourteenth Amendment’s Due Process Clause [see Products Liability Law Daily’s June 21, 2017 analysis].
Question presented. Whether the en banc Florida Court of Appeals’ ruling prohibiting Plaintiff’s attorneys from arguing that the conduct of the Defendant tobacco companies was sufficiently reprehensible to warrant an award of punitive damages violates this Court’s precedents specifically requiring that plaintiffs demonstrate reprehensibility to support an award of punitive damages.
Monje v. Spin Master, Inc., Dkt. No. 16-1380.
The parents of a young child alleged to have suffered permanent brain injuries after eating toy Aqua Dots beads containing a toxic substance sought High Court review of an unpublished Ninth Circuit decision upholding the Arizona federal court’s refusal to permit the jury to consider punitive and other economic damages in the parents’ product liability case against the toy’s designer, distributor, and seller. The Ninth Circuit said that there was no evidence from which a juror could conclude that the companies had acted with an "evil mind," the standard for recovering punitive damages in Arizona; the boy’s father properly was judicially estopped from asserting claims for loss of consortium, emotional distress, and the child’s past and future medical expenses because those claims had been omitted from the asset disclosure schedule in his Chapter 7 bankruptcy proceeding; and the parents’ expert witness properly was prevented from opining that Aqua Dots had caused the child to suffer permanent brain injuries [see Products Liability Law Daily’s May 22, 2017 analysis].
Questions presented. Since the poisoned child's father inadvertently failed to list claims for emotional-distress, loss-of-consortium, and medical-cost damages in a bankruptcy case, the district court presumed he had engaged in manipulation, and judicially estopped the claims. In contravention of the judicial-estoppel principles of New Hampshire v. Maine, 532 U.S. 742 (2001), the Ninth Circuit also applied that presumption. The Second, Third, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits would agree with the Ninth Circuit, although the Fourth and Eighth Circuits would not. The first question is therefore whether that conflict among the circuits, and the failure to follow New Hampshire, require grant of certiorari under Supreme Court Rules 10(a) and 10(c).
Ethicon, Inc. v. Huskey, Dkt. No. 16-1399.
Ethicon, Inc. and its parent company, Johnson & Johnson, had petitioned for review of a Fourth Circuit decision upholding a $3.27 million jury verdict following a bellwether trial in the multidistrict litigation involving the manufacturers’ allegedly defective transvaginal mesh devices. The Fourth Circuit had found that the patient in the case had presented sufficient evidence to support the jury’s determination that the mesh device at issue contained a design defect and that the manufacturers failed to carry their burden of showing that they were protected from liability under the unavoidable unsafe product exception to §402A of the Restatement (Second) of Torts. Also rejected was the manufacturers’ claim that the district court erred in failing to instruct the jury on the unavoidable unsafe product exception and in excluding four pieces of Food and Drug Administration (FDA) evidence. Evidence of the mesh product’s compliance with the FDA’s section 510(k) "clearance" process, which focuses on the equivalence between the product in question and a product that is marketed legally already while only tangentially examining the safety of the product going through the process, would cause a battle of the experts over the robustness of the 510(k) process and, thus, risked confusing the jury, the court ruled [see Products Liability Law Daily’s May 31, 2017 analysis].
Question presented. Whether the Fourth Circuit properly applied Lohr [Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)] to hold that safety is irrelevant to FDA’s 510(k) clearance of a medical device and that the device’s manufacturer therefore may be barred from introducing evidence of 510(k) clearance in defense of a claim that the device is not reasonably safe.
Fernandez v. Daimler, A.G., Dkt. No. 16-1482.
The husband of the driver of a 2003 Jeep Liberty who died nearly two years after being injured in a rollover accident allegedly as the result of defects in the vehicle’s ball joint and front end suspension system had asked the High Court to review the refusal of New York’s highest court to hear his appeal of the dismissal of his wrongful death suit for lack of personal jurisdiction on the ground that it would not be consistent with the state’s Long-Arm Statute or with due process. DaimlerChrysler, AG had not manufactured the vehicle or the allegedly defective parts or sold it to the decedent, the lower court said, and the husband had not established that any activities that Daimler had conducted in New York had an articulable nexus or substantial relationship to the recalls issued on the allegedly defective parts.
Questions presented. (1) Whether the actions of the Respondent, DaimlerChrysler, AG (now "Daimler, AG"), render that corporate entity "at home" in the courts of the State of New York under Daimler, AG v. Bauman’s "exceptional case" measure such that the exercise of personal jurisdiction by a state court comports with the Due Process Clause of the 14th Amendment to the United States Constitution.
(2) Whether this Supreme Court, when recognizing the facts and exceptional circumstances of Petitioner’s instant claims, would determine that under Daimler, AG v. Bauman that the exercise of personal jurisdiction over Daimler, AG in New York Courts would comport with the Due Process Clause of the 14th Amendment to the United States Constitution.
(3) Whether Daimler AG’s regular holding of meetings of its Board of Management (its primary governing board) in New York City over a period of years from 1999 through 2006 when combined with the issuance of $32 Billion in bonds with an accompanying guarantee and consent to the jurisdiction of New York Courts is sufficient enough to establish jurisdiction under the "exceptional case" measure established in Daimler, AG v. Bauman.
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