US Supreme Court to Rule on California State Jurisdiction Over Plavix Litigation

Plavix bleeding side effectsThrowing a lifeline to Bristol-Myers as it tries to wriggle out of mass tort claims against its Plavix blood-thinner in California, the US Supreme Court agreed to review the state supreme court’s ruling taking jurisdiction over out-of-state plaintiffs.

In September the California Supreme Court ruled that its state courts can take “specific jurisdiction” over mass tort claims by out-of-state plaintiffs against Bristol-Myers Squibb (BMS) arising from the company’s national marketing and sales campaigns. Bristol-Myers Squibb Company v. Bracy Anderson, S221038, Super. Ct. JCCP No. 4748 (Sept. 29, 2016).

Bristol-Meyers Squibb (BMS) desperately wants the US Supreme Court to reverse the state court, and to apply a 2014 US Supreme Court ruling Daimler AG v. Bauman, 134 S. Ct. 746, that states may take “general jurisdiction” only over companies that are “at home” in the state. However, that case involved a California product-defect suit involving a German-manufactured vehicle that overturned in Poland and injured a Polish driver and passenger.

In contrast, BMS has 400 employees in California, has a registered agent for service of process and marketed and sold more than 180 million Plavix pills to distributors in California alone, generating sales revenue of $1 billion from 2006-2012.

The Trump factor

“Chief Justice Roberts has leaned left in high-profile rulings and away from his original conservative view the last two years and kept things in line,” said Mark A. York, Senior Consultant for Mass Tort Nexus. “Roberts may continue that path and it will be a 5 -3 ruling for the plaintiffs. But even if he goes right and there’s a 4-4 split, if it’s prior to Trump’s pick for a new Justice, the California court ruling stands, and BMS is out until the next chance comes in another case.”

“This may be a moral compass decision for Roberts at this point and a view down the road of what’s coming even if there is a conservative Trump appointee. If Trump successfully appoints a Justice who pulls the straight conservative line and Roberts goes right, then non-resident Plavix cases are done in California. But there will probably be a clarification of the original Daimler ruling as to how it applies to all parties who are US entities. If Roberts stays left on this, then non-resident cases will be able to proceed in state courts. But if he leans right, then the state court MDLs are up in the air,” York added. “I also noticed that there are several Amici filings supporting Bristol Myers including the US Chamber of Commerce, which shows that BMS is using leverage from outside the pharma-medical industry for support.”

At issue are eight complaints alleging identical facts filed in San Francisco in March 2013 by 86 Californians, and 592 residents of 33 other states. The resident plaintiffs allege the same acts by BMS in the state as the non-residents do, and BMY admits that it is subject to specific personal jurisdiction with respect to the claims of California plaintiffs.

“All the plaintiff’s claims arise out of BMS’s nationwide marketing and distribution of Plavix” that took place in California, says the brief in opposition by Thomas C. Goldstein and Charles H. David of Goldstein & Russell PC in Bethesda, MD.

Mass actions are different

While BMS marketed Plavix as safer than aspirin, it caused the plaintiffs to have heart attacks, strokes, internal bleeding, blood disorders or death.

“Mass actions are fundamentally different from traditional litigation, raising distinct questions about fairness to the litigants and to the states themselves. This is particularly true of mass actions where – as in this case – the non-resident defendant is indisputably subject to the personal jurisdiction of the forum’s courts for some plaintiffs; all the plaintiffs bring essentially identical claims; and the non-resident defendant will inevitably be a party to the litigation of the claims of the non-residents,” the plaintiffs argue.

“In such a case, there is no inherent unfairness to the non-resident defendant, and the nation’s judicial systems operate far more efficiently by adjudicating the indistinguishable claims together.”

The question presented is whether the Constitution immunizes BMS from the personal jurisdiction of the state courts regarding the claims of non-resident plaintiffs arising from the identical factual allegations of resident plaintiffs.

BMS attempts to manufacture a conflict in the courts that must be resolved.

  1. But for Cause. The Fourth, Ninth and Tenth Circuits and the highest courts in Arizona, Massachusetts and Washington arguably conclude that a plaintiff cannot establish personal jurisdiction over a defendant unless he shows that he would not have suffered an injury but for the defendant’s forum-related conduct.
  2. Proximate Cause or Foreseeability. The First, Third, Sixth, Seventh and Eleventh Circuits, as well as the Oregon supreme Court, have not settled on a precise standard, but arguably say that a plaintiff’s injuries must be proximately caused by the defendant’s forum-state contacts.
  3. No Causal Connection. The California, Texas, District of Columbia supreme courts and the Federal District found jurisdiction — paraphrasing here — where there is a substantial nexus or connection between the defendant’s forum activities and the plaintiff’s claim.

Three-part test

But the California court held it did have specific jurisdiction based on a three-part test:

  1. Whether the defendant has purposefully directed its activities at the forum state.
  2. Whether the plaintiffs’ claims arise out of or are related to these forum-directed activities.
  3. Whether the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice.

Satisfying test 1, “BMS purposefully availed itself of the benefits of California” by marketing and advertising Plavix in California, selling 187 million Plavix pills in California from 2006-2012 resulting in sales revenue of $918 million, employing 250 sales representatives in California, contracting with McKesson, based in San Francisco, to be its pharmaceutical distributor, operating research and laboratory facilities in California, and even having an office in the state capital to lobby the state.

Satisfying test 2, BMS had extensive activities in California, including by marketing and promoting Plavix in the state, conducting research and development in California and targeting California as part of a nationwide campaign. “Because of the defendants‘ relationship with the forum, it is not unfair to require that they answer in a California court for an alleged injury that is substantially connected to the defendants’ forum contacts,” the court ruled.

Satisfying test 3, BMS had adequate notice that it was subject to suit in California. “BMS embraced this risk by coordinating a single nationwide marketing and distribution effort and by engaging in research and development in California. In that regard, BMS was on notice that it could be sued in California by nonresident plaintiffs. In fact, our courts have frequently handled nationwide class actions involving numerous nonresident plaintiffs.”

No date has been set for oral argument yet.

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Plaintiffs Resist Move to Oust Non-Residents in California Plavix Cases

Plavix bleeding side effectsPlaintiffs in California litigation over deadly side effects of the anti-clotting drug Plavix called on the US Supreme Court to uphold a ruling that 592 out-of-state residents can remain as plaintiffs.

In September the California Supreme Court ruled that its state courts can take “specific jurisdiction” over mass tort claims by out-of-state plaintiffs against Bristol-Myers Squibb arising from its national marketing sales and marketing campaigns. Bristol-Myers Squibb Company v. Bracy Anderson, S221038, Super. Ct. JCCP No. 4748 (Sept. 29, 2016).

The plaintiffs, including 86 Californians, allege that the drug caused bleeding, bleeding ulcers, gastrointestinal bleeding, cerebral bleeding, rectal bleeding, heart attack, stroke, hemorrhagic stroke, subdural hematoma, thrombotic thrombocytopenic purpura, and 18 deaths. They charge that the Bristol-Myers (BMS) engaged in negligent and wrongful conduct in the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling and sale of Plavix.

Separately, 261 Plavix lawsuits are pending in multidistrict litigation (MDL) before U.S. District Judge Freda L. Wolfson in the District of New Jersey. The United States Judicial Panel on Multidistrict Litigation created the MDL on December 8, 2015.

Not merely similar

“The claims of both the residents and non-resident plaintiffs were not based on merely ‘similar’ conduct, but the exact same singular and coordinated marketing and distribution scheme,” the Plavix Brief in Opposition states in Bristol-Myers Squibb v. Superior Court of California, No. 16-466, US Supreme Court.

From 2006-2012 BMS marketed distributed, and sold over 180 million Plavix pills to distributors and wholesalers in California alone, generating sales revenue of nearly $l billion. Although BMS marketed Plavix as “providing greater cardiovascular benefits, while being safer and easier on a person’s stomach than aspirin,” the reality was that the drug created a substantial risk of “heart attack, stroke, internal bleeding, blood disorders or death.”

The brief argues against “cleaving off one subset liability to one subset of the plaintiffs, who would be required to relitigate all the questions once again in their home states.” It adds, “all the plaintiffs’ arise out of BMS’s nationwide marketing and of Plavix.”

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California Supreme Court Takes Jurisdiction of Plavix Mass Tort Claims

Plavix bleeding side effectsThe California Supreme Court ruled that state courts can take “specific jurisdiction” over mass tort claims by out-of-state plaintiffs against Bristol-Myers Squibb because of the company’s in-state marketing campaigns, sales and research.

It distinguished a 2014 US Supreme Court ruling Daimler AG v. Bauman that states may take “general jurisdiction” only over companies that are “at home” in the state.

The ruling allows claims to proceed in Bristol-Myers Squibb Company v. Bracy Anderson, S221038, Super. Ct. JCCP No. 4748 (Sept. 29, 2016). It clears the way for lawsuits by 86 Californians and 592 plaintiffs from 33 other states against Plavix, a drug used to inhibit blood clotting, to be tried together in California.

The plaintiffs allege that the drug caused bleeding, bleeding ulcers, gastrointestinal bleeding, cerebral bleeding, rectal bleeding, heart attack, stroke, hemorrhagic stroke, subdural hematoma, thrombotic thrombocytopenic purpura, and 18 deaths. They charge that the Bristol-Myers engaged in negligent and wrongful conduct in the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and sale of Plavix.

According to the complaints, the defendants promoted the drug to consumers and physicians by falsely representing that it provided greater cardiovascular benefits, while being safer and easier on a person‘s stomach than aspirin, but defendants knew those claims were untrue.

Separately, 261 Plavix lawsuits are pending in multidistrict litigation (MDL) before U.S. District Judge Freda L. Wolfson in the District of New Jersey. The United States Judicial Panel on Multidistrict Litigation created the MDL on December 8, 2015.

General jurisdiction

The 74-page opinion upheld rulings in two lower courts and focused on the difference between “general jurisdiction” and “specific jurisdiction.”

United States Supreme Court ruled in Daimler AG v. Bauman 571 U.S. ___ (2014), on the limits of general jurisdiction involving out-of-state defendants and plaintiffs. General jurisdiction requires that a defendant must be “at home” in a state — by being incorporated and having its principal place of business in a state. “The corporation‘s activities must be so continuous and systematic as to render [it] essentially at home in the forum State,” the US Supreme Court held.

Daimler held that California courts did not have general jurisdiction over Argentinian plaintiffs suing DaimlerChrsyler, a German company, over a dispute in Argentina.

In the Plavix case, Bristol-Myers (BMS) argued it was incorporated in Delaware, headquartered in New York City, and maintained operations in New Jersey. The California high court agreed that it did not have general jurisdiction over the company, even though it was registered to do business and California and has an agent for service of process.

Specific jurisdiction

But the California court went on saying it did have specific jurisdiction based on a three-part test:

  1. Whether the defendant has purposefully directed its activities at the forum state.
  2. Whether the plaintiffs’ claims arise out of or are related to these forum-directed activities.
  3. Whether the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice.

Satisfying test 1, “BMS purposefully availed itself of the benefits of California” by marketing and advertising Plavix in California, selling 187 million Plavix pills in California from 2006-2012 resulting in sales revenue of $918 million, employing 250 sales representatives in California, contracting with McKesson, based in San Francisco, to be its pharmaceutical distributor, operating research and laboratory facilities in California, and even having an office in the state capital to lobby the state.

Satisfying test 2, BMS had extensive activities in California, including by marketing and promoting Plavix in the state, conducting research and development in California and targeting California as part of a nationwide campaign. “Because of the defendants‘ relationship with the forum, it is not unfair to require that they answer in a California court for an alleged injury that is substantially connected to the defendants’ forum contacts,” the court ruled.

Satisfying test 3, BMS had adequate notice that it was subject to suit in California. “BMS embraced this risk by coordinating a single nationwide marketing and distribution effort and by engaging in research and development in California. In that regard, BMS was on notice that it could be sued in California by nonresident plaintiffs. In fact, our courts have frequently handled nationwide class actions involving numerous nonresident plaintiffs.”

California has a clear interest

BMS argued that the claims of non-resident plaintiffs had no connection to and did not suffer any injury in California. But the court ruled that the proper focus is on the defendant and whether the corporation has created contacts in the forum state.

California has a clear interest in trying the mass tort cases together to promote efficient adjudication of California residents‘ claims. “Because mass tort injuries may involve diverse injuries or harm not amenable to the efficiency and economy of a class action, they present special problems for the proper functioning of the courts and the fair, efficient, and speedy administration of justice. Without coordination, those who win the race to the courthouse [and] bankrupt a defendant early in the litigation process would recover but effectively shut out other potential plaintiffs from any recovery,” the court ruled.

“Balancing the burdens imposed by this mass tort action, and given its complexity and potential impact onthe judicial systems of numerous other jurisdictions, we conclude that the joint litigation of the nonresident plaintiffs‘ claims with the claims of the California plaintiffs is not an unreasonable exercise of specific jurisdiction over defendant BMS.”

 

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New MDLs Consolidate Cases for Abilify, Roundup, Talc and Taxotere

Consolidating thousands of lawsuits involving Abilify schizophrenia drug, Roundup herbicide, Talc powder and Taxotere cancer drug, US Judicial Panel on Multidistrict Litigation (JPML) in Washington, DC, created new multidistrict litigation (MDL) dockets for the mass tort cases.

This is good news for plaintiffs. In due course the assigned courts will create short-form complaints and plaintiff fact sheets, facilitating the filing of new actions. Each litigation will be led by a plaintiff’s steering committee appointed by the judge, who will set a discovery schedule and select representative cases for bellwether trials.

abilifyAbilify (Aripiprazole)

Responding to a motion from all the parties, the JPML created new MDL 2734, In re: Abilify Products Liability Litigation, supervised by US District Judge M. Casey Rodgers in the Northern District of Florida. The ruling consolidates 22 actions filed in 12 district courts against Bristol-Myers Squibb Company, Otsuka Pharmaceutical Co., Ltd. and Otsuka America Pharmaceutical, Inc.

Plaintiffs allege that Abilify, an atypical anti-psychotic medication commonly prescribed to treat schizophrenia, bipolar disorder, depression, and Tourette syndrome, can cause compulsive gambling behaviors. All the actions involve factual questions relating to whether Abilify was defectively designed or manufactured, whether defendants knew or should have known of the alleged propensity of Abilify to cause compulsive gambling behaviors in users, and whether defendants provided adequate instructions and warnings with this product.

For more information read FDA Links Abilify to Compulsive Gambling, Eating, Shopping and Sex

WHO-says-Roundup-probably-causes-cancerRoundup (Glyphosate)

Granting the plaintiffs’ motion, the JPML created the new MDL No. 2741, In Re: Roundup Products Liability Litigation, supervised by Judge US District Vince Chhabria in the Northern District of California. Monsanto opposed consolidation. There are 21 actions pending in 14 districts. Including the potential tag-along actions, there are now 37 actions pending in twenty-one districts. More than ten different law firms represent plaintiffs in these actions, which are spread across the country.

These actions share common factual questions arising out of allegations that Monsanto’s Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin’s lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin’s lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own.

For more information read New Illinois Lawsuit Charges Monsanto’s Roundup Causes Cancer

talc johnson & johnsonTalcum Powder

The JPML created the new MDL 2738, In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, supervised by US District Judge Freda L. Wolfson in the District of New Jersey. There are 10 actions in 8 districts.

The plaintiffs allege that they or their decedents developed ovarian or uterine cancer following perineal application of Johnson & Johnson’s talcum powder products (namely, Johnson’s Baby Powder and Shower to Shower body powder). Two of the actions are consumer class actions brought on behalf of putative classes of women who allege that defendants deceptively marketed the talcum powder products for feminine hygienic use without disclosing talc’s carcinogenic properties. All the actions involve factual questions relating to the risk of cancer posed by talc and talc-based body powders, whether the defendants knew or should have known of this alleged risk, and whether defendants provided adequate instructions and warnings with respect to the products.

For more information read Behind the $55 Million Talc Verdict: J&J Knew About Cancer Risks Since the 1970s

taxotere hair lossTaxotere (Docetaxel)

The JPML created new MDL No. 2740, In Re: Taxotere (Docetaxel) Products Liability Litigation, supervised by Chief US District Judge Chief Judge Kurt Engelhardt in the Eastern District of Louisiana. The litigation consists of 33 actions pending in 16 districts. The panel also has been notified of 56 related actions pending in 25 districts.

Plaintiffs in these actions each allege that they experienced permanent hair loss as a result of using Taxotere. All actions will require discovery regarding the design, testing, manufacturing, marketing, and labeling of Taxotere. The defendant is Sanofi-Aventis U.S. LLC.

All the actions share common factual questions arising out of allegations that Taxotere (docetaxel), a chemotherapy drug, causes permanent hair loss, that defendants were aware of this possible side effect and failed to warn patients, and that defendants marketed Taxotere as more effective than other chemotherapy drugs when other drugs were equally effective without the associated permanent hair loss.

For further information read FDA Releases New Patient Info for Taxotere (Docetaxel) Cancer Drug

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