That part of this title is borrowed from a fellow blogger’s post does not at all detract from its fundamental truth. Attention to personal jurisdiction wins cases – particularly in MDLs in which lawyers are out there recruiting clients, rather than the other way around. The latest example is In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2019 WL 121199 (E.D. Pa. Jan. 7, 2019). Zostavax also underscores why a case we recently discussed, In re Biomet M2A Magnum Hip Implant Products Liability Litigation, ___ F. Supp.3d ___, 2018 WL 6426830 (JPML Dec. 6, 2018), is significant.
Zostavax is not one of your typical litigation tourist MDL cases. Both of the two plaintiffs, whose cases were ultimately dismissed, were residents of the forum in which they initially brought suit – Florida. However, indicative of how lawyer solicitation scrapes the bottom of the barrel in MDLs, both plaintiffs had used the product quite a few years earlier before they (probably retired and) moved to Florida. One plaintiff used the product in July, 2011, and the other a year later in July 2012. Zostavax, 2019 WL 121199, at *1. Suit was not filed until 2018, according to the docket numbers.
No basis existed to subject the defendant to general jurisdiction in Florida, id. at *3, and since the plaintiffs both took the product and were diagnosed with their alleged injuries before they moved to Florida, neither did the facts support specific, case-linked jurisdiction in the state. “For purposes of personal jurisdiction, we must look to the place where the injury occurred, not to the place where it was diagnosed.” Zostavax, 2019 WL 121199, at *4. Rather:
The relevant activity or occurrence with respect to [the first plaintiff] took place in Edgartown, Massachusetts when she received the [product]. The relevant activity or occurrence with respect to [the second plaintiff] took place in Connecticut where she was injected with [the product]. The torts which allegedly caused their injuries happened in places other than Florida. While plaintiffs were long-time residents of Florida, [defendant] did nothing to and had no interaction with either of them in that state. [Defendant] was not at home in Florida, and plaintiffs’ injuries did not arise out of and were not related to any contact it had with Florida, regardless of what [defendant’s] other activities in the state may have been.
Id.. That’s straight out of BMS – where the product did not injure the plaintiff in the forum state, no matter how extensive the defendant’s non-case-related in-state activities are, they cannot establish specific jurisdiction. You’ll have to go somewhere else.
Nor does personal Jurisdiction turn on how “convenient” the forum might be:
Florida’s power does not extend to [defendant] in these actions even if Florida would be a convenient place for plaintiffs to sue and would not be inconvenient or burdensome to large corporations such as defendants.
Zostavax underscores a jurisdictional point defendants need to keep in mind. Personal jurisdiction motions are not limited to litigation tourists. Once Bauman took out the old notion of general jurisdiction everywhere a major corporation did business, plaintiffs either have to sue corporate defendants where they are “at home” or where they can obtain specific jurisdiction. Specific jurisdiction is necessarily quite commonly where the plaintiff resides – but not always. Plaintiffs who change their states of residence in between injury and filing suit can create, as in Zostavax, jurisdictional problems for themselves. In these non-litigation-tourism cases, defendants might choose to waive the jurisdictional defect. However, in prescription medical product cases, where the “learned intermediary” prescriber is often the most important witness, such a waiver can create discovery problems for defendants (can’t subpoena the prescriber), so there is good reason to stand on a valid jurisdictional defense.
Equally interesting is the discussion about what happens once the absence of personal jurisdiction is established. In Zostavax, plaintiffs alternatively sought a transfer.
Denied. Cases dismissed.
Why? That involves the issue decided in the Biomet M2A Magnum case we discussed previously. That case established that an MDL judge can only remand cases to the courts from which they were originally filed. Zostavax, 2019 WL 121199, at *5. MDL courts are “preclude[d] . . . from transferring a case to any other district, whether under §1404(a), §1406(a) or §1631.” Id. (citing various statutes allowing transfer in various circumstances). This means that if an MDL plaintiff’s initial filing is in a court without personal jurisdiction, it’s curtains. The action must be dismissed, because it cannot be remanded to the transferor court – because cases can’t be sent to a court that was just determined to lack jurisdiction – nor can they be transferred anywhere else, given the terms of the MDL statute.
If the case (as in Zostavax) has to be dismissed, then see our post here about savings statutes. In some states the MDL dismissal may bar the claim from being refiled under the applicable statute of limitations.
Finally, the transfer discussion points out another consequence of Bauman/BMS personal jurisdiction: in some cases, plaintiffs simply might not be able to join all the defendants they want to in the same lawsuit:
[T]here does not appear to be any one forum where general jurisdiction could be exercised over all defendants. As to specific jurisdiction, there is nothing in the record pointing to any ties between causation of plaintiffs’ injuries in Massachusetts and Connecticut and any activity of [the non-moving defendant] in those states. In sum, the court is not able to determine . . . in what district or districts, if any, either of these actions could have been brought at the time they were filed.
Zostavax, 2019 WL 121199, at *5.
If you’ve ever wondered why so many of the post-Bauman personal jurisdiction cases have involved asbestos plaintiffs, this is why. The Bauman/BMS personal jurisdiction regime is fatal to asbestos litigation tourists (or plaintiffs who, like the plaintiffs in Zostavax, just didn’t sue where they were injured) because without “case-linked” personal jurisdiction tied to the place of injury it’s impossible to obtain jurisdiction over scores of unrelated corporations. Because we (at least Bexis) also dabble in asbestos litigation, we’re careful to specify in our cheat sheet which cases involve asbestos.
Zostavax demonstrates that blanket personal jurisdiction can also be impossible for litigation tourists in prescription medical product MDLs. Multiple defendants – be they physicians, hospitals, distributors, affiliates, whatever – may well not be amenable to personal jurisdiction in the same forum, unless the plaintiff sues where s/he allegedly was injured. There’s now a real downside to litigation tourism, in that cases can be dismissed without ability to refile. To us, that’s the most interesting aspect of Zostavax: judicial recognition that in multi-defendant cases, litigation tourism itself may not be possible.