We are trying very hard not to bore everyone silly with endless discussion of our puppy-to-be, almost certainly interesting only to us. But we are failing. So, briefly, we comment that we met the whole spectacular litter last week – eight gorgeous butterballs. Five are white, and three are now black but will probably end up blue – a beautiful steel gray color – according to their genetics. Or so we are told. We will know for sure who is coming home with us in about a week. But it looks likely that the choice will be between a dazzling black/blue male and his equally striking white brother. We have pictures – e-mail us!

Sadly, today’s case falls way at the other end of the pleasure spectrum from a litter of standard poodle puppies. Back in July, Bexis about a Southern District of California decision called Whaley v. Merck & Co., 2022 WL 1153151 (S.D. Cal. April 12, 2022). Whaley mucked up personal jurisdiction analysis by conflating it with discussion of California’s execrable innovator liability doctrine. (As readers of this blog are aware, California is one of the few remaining states in which a plaintiff who ingested a generic version of a drug can sue the innovator – the manufacturer of the branded version of the drug – for failure to warn. Even though the plaintiff never took that drug. Innovator liability flies in the face of the foundational concepts underlying product liability, and we abhor it.) Bueno, et al. v. Merck & Co., Inc., 2022 WL 4125231 (S.D. Cal. Sept. 9, 2022), was decided by the same judge who decided Whaley, and it is just as bad. Worse, actually, because it adds a wrinkle: it justifies its holdings by invoking the plaintiffs’ ingestion of the branded version of a drug, while the plaintiffs admit they do not know whether they took that version. But we get ahead of ourselves.

The plaintiffs in Bueno had asthma. They were prescribed Singulair, and, according to the complaint, their prescriptions “were filled with brand and/or generic Singulair.” Bueno. 2022 WL 4125231 at *1 (citation to complaint omitted). In other words, the plaintiffs admitted that they did not know whether they took the branded version, the generic version, or both. But they adopted a shorthand throughout the rest of the complaint, alleging that they were “prescribed Singulair,” “used Singulair” and “ingested Singulair,” without the qualifying language.

The plaintiffs alleged that they“suffered neuropsychiatric injury including depression, anxiety, and suicidality,” id. (citation to complaint omitted), and that their prescribers would not have prescribed the drug for them if they knew it was associated with neuropsychiatric events. They asserted claims for design defect, manufacturing defect, negligence, negligent misrepresentation, and breaches of express and implied warranties. They conceded that the design defect and manufacturing defect claims should be dismissed, so the decision relates to the remaining claims.

The court began by acknowledging that the question of whether the plaintiffs ingested the branded drug or a generic version was “central to Defendant’s motion.” The defendants disputed personal jurisdiction only if the plaintiffs ingested the generic version of the drug, and the plaintiffs conceded that their warranty claims failed if they only ingested the generic drug. The court commented that, under Rule 12(b)(2), the plaintiffs bore the burden of demonstrating personal jurisdiction. But, the court stated, the plaintiffs were required to make only a “prima facie showing of jurisdictional facts” to withstand dismissal. Id. at *2. Easy, right? Because the plaintiffs admitted that they didn’t know which version of the drug they took, so they could not “make a prima facie showing of jurisdictional facts” to demonstrate personal jurisdiction. Right? Not according to Bueno.

Although the court acknowledged that the plaintiffs “express[ed] some uncertainty regarding whether they ingested” the branded version of the drug, it “conclude[d] that Plaintiffs [had] carried their burden to make a prima facie showing of jurisdictional facts” and rejected the defendants’ argument that the court should require the plaintiffs to produce proof of which product(s) they used before it decided the motions. How did the court do this? By (impermissibly) shifting the burden. The court stated that the defendants had not “provide[d] any affidavits, declarations, or any other support for their theory that plaintiffs were prescribed” the generic drug. And since the defendants had not “present[ed] any evidence that contest[ed] Plaintiffs’ allegations that they took” the branded drug,” the court accepted that “allegation” as true for purposes of the motion. Even though the plaintiffs didn’t know which drug they took. And even though it was their burden to make a “prima facie showing.” Completely backwards, right?

It doesn’t get any better. The court stated that the defendants were “essentially asking the court to apply a heightened pleading standard because they [were] skeptical of the Plaintiffs’ allegations.” Id. No, the defendants were asking the court to accept the plaintiffs’ admission that they didn’t know which version of the drug they took. And while the court concluded that the defendants’ arguments “were best suited for a motion for summary judgment when the record [was] more fully developed,” it denied the defendants’ request to conduct limited discovery in aid of their motions. (Here is a post discussing cases in which defendants were granted jurisdictional discovery.) Bottom line: the court ignored the pleadings to hold that the plaintiffs sufficiently alleged that they took the branded drug, and this holding set the stage for the rest of the opinion.

Personal Jurisdiction

The defendants argued that the court lacked personal jurisdiction if the plaintiffs took the generic version of the drug. While the court assumed, for purposes of the motion, that the plaintiffs took the branded drug, it “briefly addressed” the defendants’ argument because “fact discovery may show that the plaintiffs only ingested” the generic version. The defendants’ argument was the same one the judge had (incorrectly) rejected in Whaley, and she refused to “revisit [that] analysis” here. As in Whaley, the court relied on Ford Motor Co. v. Montana Eighth Judicial Dist Ct., 141 S.Ct. 1017 (2021), in which the Supreme Court held that Ford’s forum-state activities related to the same types of vehicles that injured the plaintiffs were relevant even if the allegedly-defective vehicles themselves were not “advertised, sold, and serviced” in the forum state. The Bueno defendants argued that Ford Motor did not apply, because that case concerned an injury resulting from actual use of the defendant’s products while, in Bueno, the claims related to a different product – the generic version – manufactured by the defendant’s competitor. As in Whaley, the court rejected that argument, holding:

. . . Plaintiffs’ warning label claims are about [the branded drug]. Warning label liability is a cause of action against the name-brand manufacturer for the name-brand drug’s warning label that flows by function of law to its generic counterpart. Defendant asserts that this view ‘conflates California’s recognition of warning label liability with personal jurisdiction.’ The Court disagrees. . . . [U]nder the warning label liability claim, [plaintiffs’ jurisdictional allegations] can be about Defendants’ [branded drug] activities.

Id. at *5.

Obviously, the defendants were exactly right. Regardless of California’s irrational recognition of innovator liability, the plaintiffs still needed to establish a basis for personal jurisdiction through allegations that the defendants engaged in activities directed at the forum and related to the product that allegedly injured the plaintiffs. The defendants had no role in the manufacture or sale of the generic drug. If that was the drug that injured the plaintiffs, the defendant’s activities related to the branded drug did not provide a basis for the court to exercise personal jurisdiction over the defendant.

But the court could not separate the two concepts, so plaintiffs were able to take advantage of their own uncertain product identification pleading in both directions at once. Bueno listed facts establishing that the defendant engaged in ongoing forum-based activities related to the branded drug, then concluded that the court “ha[d] personal jurisdiction over Defendants for the purposes of Plaintiffs’ warning label liability claim even if Plaintiffs only ingested” the generic version. Which makes absolutely no sense.

Failure to State a Claim

With similar disregard for precedent, the court also denied the defendants’ 12(b)(6) motion addressed to the warnings claims. The defendants cited cases holding that, under California’s learned intermediary doctrine, a plaintiff must identify his prescribing physician, explain how the warnings were inadequate, and explain how an adequate warning would have changed the physician’s prescribing decisions. Bueno held that it was sufficient that the plaintiffs had pled the second and third elements, and that it “[did] not view the identification of Plaintiffs’ treating physicians as an absolute pleading requirement.” Id. at *6 (citations omitted). And the survival of the warnings claims facilitated denial of the motion to dismiss the warranty and negligent misrepresentation claims.

Bueno represents the court’s refusal to acknowledge that it erred in Whaley and its continued misapplication of several legal principles, bolstered by California’s horrific innovator liability jurisprudence.