We’ve already discussed many of the implications of Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), for personal jurisdiction in mass tort cases. We’re not going to repeat any of that here. What we are proposing today is a relatively simple test that cuts the Gordian Knot surrounding the prospective application of the BMS “arising from”/”related to” test for minimum contacts.
Briefly, the specific (“case-linked”) jurisdiction reequirement that “the suit must arise out of or relate to the defendant’s contacts with the forum” has been around for a long time. Id. at 1780. BMS cited cases from the mid-1980s, but its antecedents go back to International Shoe itself. While some courts (and some defense amici in BMS) interpret that requirement as requiring “causation,” the Supreme Court did not address that question.
Instead, BMS lambasted the California “sliding scale” approach – that “the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claim” – as “a loose and spurious form of general jurisdiction.” Id. at 1781. “For specific jurisdiction, a defendant’s general connections with the forum are not enough.” Id. In the next paragraph, the BMS court listed what was missing, and what didn’t matter:
The present case illustrates the danger of the California approach. The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. As noted, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. . . . Nor is it sufficient − or even relevant − that BMS conducted research in California on matters unrelated to Plavix. What is needed − and what is missing here − is a connection between the forum and the specific claims at issue.
Id. (lots of emphasis added).
We think that the above-quoted discussion provides the test for preventing other post-BMS “loose and spurious form[s] of general jurisdiction” from arising in the guise of purported “case-linked” specific jurisdiction. What’s necessary is case-specific – that is, plaintiff-specific – contacts with the forum, like those the Court listed in BMS: things like a plaintiff being prescribed, buying, taking, and/or being injured by a product in the state where the plaintiff sued. Such plaintiffs demonstrate “a connection” to “the specific claims at issue,” even if they don’t happen to live in that state.
Conversely, what’s insufficient, indeed, not “even relevant,” are a defendant’s claimed in-state activities that, if accepted as a basis for jurisdiction, would produce so-called “specific” jurisdiction that is in practice indistinguishable from “general” jurisdiction – the characteristic that prompted the Supreme Court’s disparaging “loose and spurious” description. BMS named one, “conducting research.” That is not a proper “case-linked” activity to consider because any plaintiff hailing from anywhere could assert it as a contact. It would cause “specific” jurisdiction to operate like “general” jurisdiction.
That leads to a simple test for “case-linked” minimum contacts post-BMS – a test that is even easier to apply than “causation” would be.
If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff is from, was injured, etc., then it’s not the kind of contact that makes a claim “arise from” or “relate to” the forum state. Rather, that kind of contact is not “sufficient . . . or even relevant.” Id. at 1781. In prescription medical product litigation, these “loose and spurious” – and thus insufficient – purported contacts include not just in-state clinical trials (unless the particular plaintiff participated), but also a defendant’s: (1) collaboration with in-state residents (not involving a particular plaintiff), (2) in-state marketing efforts (unless actually known to the plaintiff’s prescribing physician), (3) obtaining FDA approval (and other FDA interactions), (4) in-state distribution of materials to persons unaffiliated with the plaintiff, (4) contracts with in-state businesses, and (5) transportation of the product through the state. We have seen all of these “contacts” asserted since BMS. Butl itigation tourists from Maine, Florida, Alaska, or California could equally assert these sorts of purported “contacts,” and thus convert specific jurisdiction into another form of “loose and spurious” general jurisdiction condemned by BMS.
A corollary to how we believe the BMS “arising from”/”related to” test should be applied is that most “jurisdictional discovery” sought by plaintiffs is (to quote BMS) an “irrelevant” smoke screen. Plaintiffs – not defendants – have access to the types of evidence that BMS listed (id.) as “adequate links” to the forum state. The plaintiff would know where s/he was prescribed the product, bought the product, used the product, and was injured by the product. If the plaintiff participated in a clinical trial, s/he would know that. If the plaintiff’s prescribing physician was exposed to advertising in the jurisdiction, that plaintiff is in a better position to find that out from a treater than the defendant.
So, in the end, the BMS “arising from”/”relating to” test shouldn’t be that hard to apply. The Court told everyone what type of evidence is “adequate” to support specific “case-linked” jurisdiction, and conversely what is “irrelevant.” If use of a particular asserted “contact” would cause specific jurisdiction to behave like general jurisdiction – by letting any plaintiff from anywhere sue without regard to his or her individual facts – then it is improper under BMS as another attempt at “loose and spurious” general jurisdiction.
Pass it on.