United States: Hot And Not So Hot

Last Updated: June 5 2018
Article by James Beck

Bexis decided to take a long Memorial Day weekend and to visit a part of the country he'd never seen before. So adding a day to either side of the holiday, Bexis and his DDL wife took off for El Paso, and the twin national parks, Guadalupe Mountains and Carlsbad Caverns. Memorial Day was an apt time of year, for another reason, because El Paso is one of the most militarily influenced places around. "Old Ironsides" − the 1st Armored Division − is only one (the largest) of the units that keeps itself in readiness in the Fort Bliss desert vastness north of town. We REALLY respect their service, especially after seeing an impressive array of equipment parked in one of the fort's staging areas while flying out.

Just about all Bexis' vacations involve hiking – and this was no exception. Guadalupe Peak is the highest point in Texas, and to get to the top requires a three-thousand foot climb, over the course of a little over four miles (each way), but neither altitude nor distance was the most serious issue.

No – heat was.

In these days of global warming, it just so happened that west Texas and southern New Mexico were in the midst of an epic heat wave. 101° was the lowest high temperature on any of the four days in the small (permanent 2010 population, 7) town of Whites City while Bexis was there. The surrounding areas were just as hot. So, precautions were necessary: (1) extra water, 130 ounces per person (still not quite enough); (2) early starts (getting up early and hitting the trail at dawn); (3) freezing water bottles solid and packing the Camelbak with ice; and (4) taking a half-hour "reset" break about 2/3 of the way up to get body temperatures back to as normal as possible.

Guadalupe Peak was really hot – especially when the high clouds vanished on the descent (the immediate reason 130 ounces of liquid per person wasn't enough). The other outside trail Bexis hiked, called the Permian Reef, was not quite as bad, due to nearly constant strong winds. The trails that weren't hot were underground – Bexis spent six hours and hiked over four miles inside Carlsbad Caverns, including both entering and leaving via the natural entrance (where the bats come out at night). The line for the elevator was over 1½ hour longs (or so they said), so Bexis hiked out in about half that time. At a constant 56° temperature, the Caverns were a blessed fifty degrees cooler than the surface – not so hot.

Another recent thing Bexis encountered that wasn't so hot was the long-awaited personal injury opinion out of the Philadelphia Court of Common Pleas in the Pennsylvania version of Pelvic Mesh Litigation. See In re Pelvic Mesh Litigation, 021400829, slip op. (Pa. C.P. Phila. Co. May 18, 2018). We knew the result would be adverse, as a one-page order to that effect ( mentioned here) had issued back in December. But the reasoning in the Pelvic Mesh opinion?

We grade it as poor – or maybe dreadful (on the Harry Potter grade scale).

This is Pennsylvania, after all – home of the bizarre corporate registration statute, 42 Pa. C.S.A. §5301, which uniquely imposes "general" jurisdiction on foreign corporations registering to do business in the Commonwealth. That approach, jurisdiction by "consent," is how pro-plaintiff federal courts have been allowing litigation tourism after Daimler AG v. Bauman, 571 U.S. 117 (2014). See, for example, our post here about Bors v. Johnson & Johnson, 208 F. Supp.3d 648 (E.D. Pa. 2016), which permitted that unconstitutional ruse to succeed.

But, no, Pelvic Mesh doesn't go the consent route. See Pelvic Mesh, slip op. at 3 ("plaintiffs conceded that the court lacked general jurisdiction"). Rather, the entire jurisdictional "hook" in Pelvic Mesh is that the target defendant contracted with other entities, and those other entities – not the target defendant – engaged in manufacturing operations in Pennsylvania. Specifically, evidence was developed that:

"[B]etween 2001 and 2015, [a Pennsylvania company] knitted the mesh used in all of the [eight types of mesh devices]. [The Pennsylvania company] was not involved in the manufacturing of [one other mesh device]. . . . [T]his Court granted the Motion to Dismiss in part and denied the Motion to Dismiss in part. This Court sustained personal injury over cases involving non-Pennsylvania plaintiffs implanted with the [eight types of] pelvic mesh devices, but found lack of personal jurisdiction over cases in which the non-Pennsylvania plaintiff was implanted with the [other] pelvic mesh device."



Pelvic Mesh, slip op. at 5 (record citations omitted). The Pennsylvania entity knitted the "mesh according to specifications set forth by the Moving [that is to say, non-Pennsylvania] Defendants. Id. at 4 (record citation omitted).

Under Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ("BMS"), case-linked personal jurisdiction must "arise out of or relate to the defendant's contacts with the forum." Id. at 7 (quoting BMS). Pelvic Mesh held that sufficient contacts existed because:

"Moving Defendants purposefully availed themselves of the privilege of doing business in Pennsylvania by reaching out to a Pennsylvania-based corporation . . . to fulfill its manufacturing needs. . . . [A]n integral portion of the manufacturing process of the [eight types of] pelvic mesh devices occurs in Perkasie, Bucks County, Pennsylvania. . . . Since a portion of the manufacturing process of the [eight types of] pelvic mesh devices occurs in Pennsylvania this Court's exercise of specific personal jurisdiction comports with traditional notions of fair play and substantial justice."



Pelvic Mesh, slip op. at 9. That's essentially it. The "relevant acts" of the non-Pennsylvania defendants consist entirely of "contracting with" a separate Pennsylvania company. Id. Conversely, the non-Pennsylvania plaintiffs "received a medical device that was manufactured, in part, in Bucks County Pennsylvania." Id. at 10. Nothing more.

In particular, there is no causal link at all. Nothing in the Pelvic Mesh opinion suggests that the Pennsylvania entity's knitting process created any particular manufacturing defect, or that the non-Pennsylvania moving defendants knitting-related specifications created some sort of design defect. Nor is there any indication that any plaintiff was actually injured as a result of any manufacturing process that took place in Pennsylvania – however the defect or duty might be described.

Since plaintiffs (the party with the burden of proof) adduced no causation-related evidence during jurisdictional discovery, Pelvic Mesh fell back on the vague manufacturing defect pleadings in the litigation's master complaint:

"A review of the Master . . . Complaint reveals that it contains a manufacturing defect claim. . . . [T]he manufacturing defect claim alleges that the [Pennsylvania entity], along with the other named defendants, "deviated materially from their design and manufacturing specifications . . ." The existence of this manufacturing defect claim grants this Court specific personal jurisdiction because, as detailed above, [the Pennsylvania entity] is involved in the manufacturing process. The fact that other non-Pennsylvania plaintiffs have subsequently abandoned their manufacturing defect claim at the summary judgment state or at trial is irrelevant."



Pelvic Mesh, slip op. at 11-12 (record citations omitted).

Even by Philadelphia CCP standards, that's pretty weak. "'[M]inimum contacts' analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 1123 (2014) (emphasis added). BMS specifically dealt with the "last ditch" argument that the defendant allegedly contracted with separate, in-state entity – and rejected it:

[A]s we have explained, the requirements of International Shoe must be met as to each defendant over whom a state court exercises jurisdiction. In this case, it is not alleged that [defendant] engaged in relevant acts together with [an in-state entity] in California. Nor is it alleged that [defendant] is derivatively liable for [the in-state entity's] conduct in California. And the nonresidents have adduced no evidence to show how or by whom the Plavix they took was distributed to the pharmacies that dispensed it to them. The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State.

BMS, 137 S. Ct. at 1783 (citations and quotation marks omitted).

Without any causation-related evidence, courts are simply looking at "contacts with persons who reside there." Walden, supra, see id. at 1122-23 (distinguishing prior decision on lack of causation evidence). As the record stood in Pelvic Mesh, there's no difference between that case and the last-ditch argument rejected in BMS about the defendant having contracted with an in-state third party. No jointly engaged in "relevant act" exists in this record. The "specifications" that the Pennsylvania entity followed remain unrelated to the plaintiffs' injuries (which have to do with cutting the mesh, not knitting it, Pelvic Mesh, at 11). No derivative liability is asserted – indeed, the Pennsylvania entity in Pelvic Mesh was statutorily immune from suit. Id. at 10-11. The "specifications" in Pelvic Mesh are thus no more relevant than it would have been in BMS to show that the distributor there (presumably) distributed products that carried the manufacturer's purportedly defective labeling.

We have always thought that the "arise out of or relate to" language of the case-linked prong of personal jurisdiction contained enough "give" that in a proper manufacturing or design-related case, evidence of in-state manufacturing or design activities could support personal jurisdiction, where those contacts were relevant to the plaintiff's injuries. Take a pacemaker, for example. If the battery were defective, and the device failed, then manufacture of the battery in the forum state would be a sufficient jurisdictional contact – provided that's why the device failed. If the source of the device's failure, however, was a defect in the pacemaker leads, then where a non-defective, non-causal battery was made becomes irrelevant to the jurisdictional analysis.

That's the legal vice in Pelvic Mesh. No evidence whatever ties the in-state manufacturing of a third party to any injury suffered by the litigation tourist plaintiff (who is not out of court, but can sue in her home state). Parsing the manufacturing (or other process) without regard for causation, leads to the possibility of a defendant being sued just about anywhere, which is precisely what both Bauman and BMS hold is a constitutional no-no. One sentence of conclusory boilerplate in a complaint can't change the analysis, because jurisdictional motions are not limited to the pleadings (why the plaintiffs in Pelvic Mesh were allowed two rounds of jurisdictional discovery).

Nor should Pelvic Mesh's concentration on a boilerplate manufacturing defect claim end the jurisdictional analysis, because – although not even mentioned in the opinion – jurisdiction over one claim does not necessarily confer jurisdiction over other, factually distinct claims. As we discussed earlier this year:

"Assuming there can be personal jurisdiction based on contractual relationships with third parties not named as defendants, there is a more basic flaw in these opinions. Just because there is specific jurisdiction over one claim (e.g., design defect), that is insufficient to find specific jurisdiction over all claims (e.g., warning claims, breach of warranty claims, and the laundry list of other claims that is usually appended to complaints against the pharmaceutical industry)."



So it's unlikely that a manufacturing defect claim – even if supported by the actual evidence – can supported design- or warning-based claims based on other facts unrelated to the moving defendants' contract with a Pennsylvania third party.

But putting all the legalisms aside, there's a larger practical vice to Pelvic Mesh's grasping at any in-state jurisdictional straw it can find. A third-party contractual relationship of the sort relied on by Pelvic Mesh to allow litigation tourists from all over the country to sue in Philadelphia is something that targeted defendants can, and will, change. While decisions like Pelvic Mesh might mean lots of jobs for attorneys in Philadelphia (and lots of annoyance for Philadelphia citizens forced to serve on juries in such cases), in the future there won't be much work for the folks who live in "Perkasie, Bucks County, Pennsylvania," when defendants shift their manufacturing processes to places without Pennsylvania's extreme pro-plaintiff tendencies.

In 1965, when Pennsylvania adopted strict liability, it had 29 electoral votes, to the combined 25 electoral votes of Virginia and North Carolina. Now, the roles are reversed, with Pennsylvania having only 20 electoral votes to the combined 28 of Virginia and North Carolina – which have never adopted strict liability. Over the years, Pennsylvania's pro-plaintiff product liability law, in tandem with Philadelphia's pro-plaintiff court system, have caused the Perkasies of the Commonwealth to lose a lot of manufacturing jobs to places like Virginia and North Carolina. Fortunately for Perkasie, we think that Pelvic Mesh is so weakly reasoned that it should be reversed on appeal, even in Pennsylvania.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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