With a little luck on our part, by the time you read this we will be vacationing in a sunnier clime. Our beachfront cottage is an Oddjob’s hat-toss away from where Ian Fleming wrote the James Bond novels. Mind you, we are not pretending to be serving On Her Majesty’s Secret Service. If anything, with the secluded location of our holiday, the absurd luxury, and our ever-expanding girth, we are more appropriately cast as a Bond villain. That suits us just fine. More than one plaintiff lawyer has called us Dr. No. And more than once, we have reached under our desk, probing for a trap-door button that would plunge an opponent into the piranha pool.
The judge in today’s case, Livingston v. Hoffman-LaRoche Inc., No. 17C-7650-MEA (N.D. Ill. March 7, 2018), pushed the button, holding that there was no personal jurisdiction. Livingston was yet another Accutane case, with allegations of bowel injury. We have written frequently on the aggregated forms of this litigation in both the federal and New Jersey court systems. The Livingston case is different. To be sure, the Livingston opinion last week was largely an obvious application of the SCOTUS Bauman and BMS cases, but there was a scary threat lurking just off-stage. More on that later. Moreover, anything good on jurisdiction from Illinois is noteworthy.
The history of the Livingston case is more complicated than the plot of The World is Not Enough. The case was originally filed in Cook County, Illinois – a fabulous pro-plaintiff jurisdiction. The case was then removed. Then it was remanded — nine years ago. The case sat in state court with little happening. The generics got out on Pliva v. Mensing in the meantime, but by then the branded defendant could no longer remove the case because of the one-year bar. Then the plaintiff lawyers did the defense a great favor (not the last) by taking their one dismissal in Illinois, which allowed them to refile within a year. The plaintiff eventually did refile in Cook County, and the branded defendant removed. That’s the case in our sights today. The case was initially assigned to a different judge, but then it got reassigned to the same federal judge who remanded a long time ago. The defendant would have been entitled to view that as a bad sign. But it wasn’t.
So much for foreshadowing. Here are the facts, at least the ones that matter for this decision. The plaintiff took Accutane to treat his acne in Wisconsin in 1999 and in Ohio in 2004. In 2005, the plaintiff had a surgical procedure to remove his colon. The gravamen of the plaintiff’s lawsuit is that Accutane made this surgery necessary. More specifically, the plaintiff claimed that the product was defectively designed and was accompanied by inadequate warnings. But we are getting ahead of ourselves. The plaintiff moved to Illinois in 2007. There, he was prescribed a generic version of the drug that allegedly caused him the earlier harm, and the plaintiff asserted that his Illinois doctor committed malpractice. It is because the plaintiff lived in Illinois that he filed his lawsuit there, even though the manufacturer of branded Accutane was not “at home” in Illinois and the branded prescription and the alleged injury occurred outside of Illinois.
It is thus no surprise that the branded defendant moved to dismiss for lack of personal jurisdiction. The plaintiff filed no opposition. The Livingston court references a reply brief filed by the defendant. Presumably, that reply brief was one of those short, triumphal papers pointing out that the plaintiff’s silence amounts to a concession, so a ruling for the defendant should be compulsory and easy. And, in fact, the dismissal for want of personal jurisdiction was compulsory and easy. We’ve seen a report on this case in one of the major online legal publications, and for some reason that report focused on general jurisdiction. That aspect of the decision is certainly the least interesting part. The manufacturer of Accutane was not incorporated in Illinois and did not locate its headquarters there. To our mind, Bauman makes that a no-brainer.
No, for us there are two angles to the decision that are much more interesting. First, the Livingston court followed what seems to be the emerging consensus rule for federal courts faced with simultaneous issues of subject matter jurisdiction (is there diversity? is there fraudulent joinder?) and personal jurisdiction (can this particular defendant be sued by this particular plaintiff here?). Plaintiffs would prefer the district court to handle the subject matter jurisdiction issue first, conclude that the defendant had not met the difficult test for fraudulent joinder, and then remand the case to state court without ever getting to personal jurisdiction. Defendants would prefer the federal court to look at personal jurisdiction, find it does not exist, and then dismiss the case without ever getting to subject matter jurisdiction. It turns out the defendants are right and the plaintiffs are wrong (you’re not exactly surprised to hear us say this, are you?) for a simple reason — literally a simple reason: the personal jurisdiction issue is simple, and the fraudulent joinder issue is not. That is what the Livingston court concluded, alluding to the “enormous judicial confusion” engendered by the fraudulent joinder doctrine, while viewing the personal jurisdiction issue as being “straightforward” and not presenting “a complex issue of law.” As addressed above, the general jurisdiction prong of personal jurisdiction truly was simple here: no incorporation or headquarters means no general jurisdiction.
The specific jurisdiction prong was almost as simple, though we are mindful that some plaintiff lawyers and some courts now seem determined to make it much less simple. (We recently read of a court from one of the very worst jurisdictions deciding to tackle the subject matter jurisdiction issue first, because the plaintiffs had successfully muddied the personal jurisdiction waters. We don’t recall the judge’s name. Perhaps Blofeld?) As SCOTUS set forth in Walden v. Fiore, to support the exercise of specific personal jurisdiction, “the defendant’s suit-related conduct must create a substantial connection with the forum state.” Here, the plaintiff’s Accutane prescription and treatment occurred outside of Illinois. Predictably, the plaintiff alleged that the branded defendant “marketed, distributed, and sold” Accutane all over the United States, including Cook County. The answer to that is: So what? That conduct played no role in the plaintiff’s injury. What about the fact that the plaintiff does currently reside in Illinois? Again, Walden supplies the refutation: “[T]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum state that is the basis for its jurisdiction over him.” Go back and read the facts of the Walden case, and you will understand how the plaintiff’s residence, absent some connection to the defendant’s conduct, cannot unilaterally establish specific personal jurisdiction. End of story. Push the button. Cue the piranhas.
But there is one additional, potentially interesting aspect of this opinion. The physician who prescribed the generic version of the drug was, in fact, a citizen of Illinois. Again, the court regarded this as a big fat So-what: “The claim against the local doctor did not mention the manufacturer of Accutane, involved the generic product only, “comprises different time periods, and entails different injuries.” Swell. But we must admit that as we read the final portion of the Livingston opinion, we were haunted by a spectre. It is very, very nice that the bottom line of Livingston is that the prescription of a generic drug in Illinois did not create personal jurisdiction over the brand defendant. For a moment, though, a terrible dread wormed its way into our brain-pan. We alluded above to the fact that Illinois is the home of some awful personal jurisdiction opinions. Illinois has also been crazy-bad on the issue of innovator liability. One might have feared that an Illinois court might contrive to find a way to merge innovator liability with the “arise out of”/”related to” prong of specific jurisdiction and thereby keep the case in Illinois. If a branded company can be on the hook for injury allegedly caused by a generic, why not require the branded company come to the forum where the generic was consumed. An utterly crazy syllogism is at work there. But Illinois is the one jurisdiction batty enough (well, along with California) to throw out all of tort and jurisdictional law on grounds of foreseeability and misplaced judicial compassion. Such an outrageous opinion would have made the judicial sky fall. Mercifully, that did not happen in the Livingston case. Indeed, now defendants have a precedent to argue that it never should.
We offer a tip of the cyber-cap to the winning lawyers, a defense all-star team including longtime friend-of-the-blog Michael Imbroscio (Covington), as well as Colleen Hennessey (Peabody), and Sherri Arrigo (Donohue Brown).