This is called the Drug and Device Law blog, but every once in a while we discuss cases that involve neither drugs nor devices. Usually that is because those cases offer lessons applicable in our subject matter area. Or – and this is a confession – sometimes those cases are simply fun. For example, we will always be suckers for criminal cases due to our stint as a federal prosecutor.
There is no doubt that there is something different about drug and device cases. Despite plaintiff claims about negligence (e.g., failure to test) or fraud or the usual ‘dollars over lives’ canard, the truth is that drug and device companies are careful, conscientious, and heavily regulated. You cannot say that about all tort defendants.
A long time ago (though not as long ago as our AUSA days), we defended a nutraceutical company. The claims in that particular case were utterly bogus. Still, we learned that the FDA regulated nutraceuticals with a somewhat light touch. Compared to the drug and device regulatory environment, nutraceuticals inhabit the Wild West. We heard about a company that hawked an herbal diet supplement via before-and-after pictures. The before picture used a model who was pregnant and the after was taken after she had given birth, so, yes, she looked considerably slimmer in the after.
That is not to say the herbal supplement biz was all hokum. We can recall one particular client who knew some very real things about supplements and their effects on the human body. He had worked up a hearty hatred for the plaintiff lawyer and the deposition process. Before his deposition, he imbibed a supplement concoction with the aim of creating an, er, malodorous event. It worked. He unleashed a double-barreled (mouth and south) crop-dusting gas attack in the conference room. The deposition did not last long. Who says supplements don’t work?
We’ve also worked on some asbestos cases. They are governed by an almost entirely different set of legal practices and procedures. Good luck getting timely dispositive motion rulings. Good luck, also, in dealing with plaintiff lawyers who do even a minimum of homework in selecting defendants. To be sure, there are diligent asbestos plaintiff lawyers out there. We’ve opposed some of the best. But too many plaintiff asbestos lawyers simply sue every defendant in sight, with no effort to identify plausible exposures or specific product usage. The complaints are often sloppy at best. Moreover, we have seen some plaintiff asbestos lawyers who haul 30-40 far-flung defendants into a jurisdiction bearing no real connection to those defendants or the case, save for being the home court of the plaintiff firm. And then those plaintiff lawyers act offended when a defendant raises the issue of personal jurisdiction. The Bauman and BMS cases arrive as unpleasant wake-up calls for those lawyers. Few things have affected tort law more than recent SCOTUS personal jurisdiction doctrine.
That brings us to today’s case, English v. Avon Products, Inc., 2022 WL 1787160 (N.Y. App. June 2, 2022). In English, the plaintiff claimed that she developed peritoneal mesothelioma from her use of talcum powder that allegedly contained asbestos. The plaintiff was a resident of Texas. The defendant was a New Jersey corporation. Despite the fact that the New York Giants and New York Jets play in New Jersey, New York and New Jersey are two different states. The talcum powder was never manufactured in New York. The plaintiff did not purchase the powder in New York. Thus, the defendant seems to have had strong grounds in filing its motion to dismiss the complaint based on lack of personal jurisdiction.
We are sorry to report that the defendant in English lost the motion at both the trial court and appellate levels. We do not agree with that outcome. It seems to us that there was flimsy support for personal jurisdiction in New York over the New Jersey defendant. What was that support? The plaintiff had been a flight attendant from 1966 to 1999. She regularly flew into New York two to four times per month. She packed the talcum powder in her luggage and brought it with her to New York. Meanwhile, the defendant marketed its talcum powder nationally, including in New York. It also maintained a marketing office in New York, as well as its International Division headquarters.
There was obviously no general personal jurisdiction over the defendant in English. The issue was whether there was specific personal jurisdiction. The English court leaned on the SCOTUS (unfortunate) holding in the Ford Motor Co. case that there need not be a causal relationship between the defendant’s in-state activities and the claim asserted. Rather, the English court reasoned that the defendant “engaged in a persistent course of conduct of transacting business in New York” in the years that the plaintiff used the product, including using it in New York. Though the English court cited BMS, almost all of its reasoning rested on pre-BMS precedent. Because much of the language in those precedents was not only out of date but also at odds with BMS, we think the English decision is simply wrong.
But there is one part of the English decision that is not wrong. The title of this post is a spoiler. The English court agreed with the defendant that jurisdiction over it may not be based upon its business dealings to acquire raw material from a company in New York. That is an important ruling, because we have seen several plaintiff lawyers attempt to premise personal jurisdiction in the lawyers’ home court on the foreign defendant’s acquisition of raw materials in that jurisdiction. Despite its bad bit, at least English shuts down that argument. And as for the bad bit of English, it shouldn’t be hard to distinguish it based on the unusual fact scenario of the flight attendant plaintiff regularly using the product in the jurisdiction.
We hope our regular DDL readers are not bothered by our discussion of the slightly broken English case. It is not about drugs or medical devices, but it might be of use to our fellow defense hacks some day.
Otherwise, we have decided that we should be on the pardon list, if that is still in the works.