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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

James Beck
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions