There’s No Place Like Home: United States Supreme Court Reaffirms Daimler, Sends Out-of-State Plaintiffs Packing In Two Highly Anticipated Cases

The United States Supreme Court has issued two highly-anticipated personal jurisdiction decisions limiting suits against defendants who are not “at home” in a state, or alternatively, did not commit a wrongful act in that state.

Specific Jurisdiction

“General jurisdiction” exists over a defendant only where it is “at home,” generally where it is incorporated or has its principal place of business.  “Specific jurisdiction” exists only when the claims in a lawsuit arises out of a defendant’s connection to the jurisdiction, such as selling products. The Supreme Court reaffirmed these limits on jurisdiction in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, No. 16-466 (June 19, 2017).

Some 678 plaintiffs (592 of whom were out-of-state residents) filed suit in California state court against Bristol-Myers Squibb Company (“BMS”), asserting various state-law claims based on injuries allegedly caused by a BMS drug called Plavix. BMS moved to quash the non-residents’ suits for lack of jurisdiction. BMS was headquartered and incorporated outside California, so there was no general jurisdiction. Despite the fact that the nonresidents had not taken the drug in California, the California Supreme Court held that California courts had “specific jurisdiction to entertain the nonresidents’ claims.”  The United States Supreme Court reversed.

The California Supreme Court had applied a “sliding scale approach to specific jurisdiction,” finding that BMS’s “extensive contacts with California” permitted a “less direct connection between BMS’s forum activities and plaintiffs’ claims than might otherwise be required.” Because the claims of both the resident plaintiffs and non-resident plaintiffs were similar and “based on the same allegedly defective product and the . . . misleading marketing and promotion of that product,” the “less direct connection” requirement as met. Thus, the court reasoned, it had personal jurisdiction over all the claims of all the plaintiffs, even in the absence of any California conduct as to the out-of-state plaintiffs.

The Supreme Court rejected this in no uncertain terms:

“Under the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction. For specific jurisdiction, a defendant’s general connections with the forum are not enough….What is needed—and what is missing here—is a connection between the forum and the specific claims at issue.”

This is true even if the defendant would suffer minimal or no inconvenience, even if the defendant has extensive contacts with the state, even if the forum had a strong interest in the application of its laws, and even if the forum state were the most convenient location for the litigation. Bristol-Myers should serve to help defendants limit the jurisdictions in which suit may properly be brought, and reduce forum-shopping in mass tort and perhaps other cases.

General Jurisdiction

On the issue of general jurisdiction, BNSF Railway Co. v. Tyrrell, No. 16-405 (May 30, 2017), the Supreme Court made clear that its 2014 ruling in Daimler AG v. Bauman precludes the exercise of general jurisdiction over a non-resident defendant unless that defendant has contacts which are so “continuous and systematic” so as to render that defendant essentially at home in the forum state. Thus, the Court rejected multiple theories on which plaintiff attempted to justify jurisdiction over BNSF in Montana.

First, it ruled that the Federal Employers’ Liability Act (“FELA”), a federal law that allows railroad workers to sue their employers for injuries that occur on the job, does not itself create a special rule authorizing jurisdiction over railroads just because they happen to do business in a particular place. Second, and most notably, the Court held that a Montana law that allows courts in the state to exercise jurisdiction over “persons found” was in violation of the Constitution. That is, even if BNSF conceded that it is “found” in Montana, the Court held that exercising jurisdiction over BNSF must still be consistent with the Due Process clause. Under its earlier decision, the Court explained, BNSF Railway can only be sued in Montana if it is “at home” there – something which normally means that the company is either incorporated in the state or has its principal place of business there.

With neither of those criteria met, the railroad was not so “heavily engaged in activity” in Montana as to present the kind of “exceptional” case in which jurisdiction could exist even outside the company’s state of incorporation and principal place of business. Thus, although BNSF could be sued in Montana for claims that are related to its business in Montana, it could not be sued there for claims that aren’t related to anything it did within the state.

Analysis

The Court’s two defense-friendly decisions on jurisdiction should bode well for defendants challenging jurisdiction, even in cases outside these specific factual contexts. General jurisdiction can only exist where a defendant is actually “at home,” and creative efforts – such as California’s “sliding scale” – will not pass constitutional muster to establish specific jurisdiction without a clear connection, such as a wrongful act, actually occurring in the forum state.

California Court Concludes Sarcastic Comment Sufficient For Punitive Damages

Earlier this month, a California appellate court ruled that an offhand remark by a corporate employee may be sufficient to award punitive damages. The court also addressed issues related to the “every-exposure” theory, without wading directly into the every-exposure debate.

In Phillips v. Honeywell International Inc. (March 17, 2017. Case F070761) — Cal.App.5th –, the court held that the trial court properly admitted a 1966 letter from an employee who was not an officer, director, or managing agent. The letter is well known (described in the opinion as “infamous”) in asbestos litigation as “the E.A. Martin letter,” and is the frequent subject of in limine motions. Martin was a purchasing director, and he was writing to one of his asbestos suppliers, sarcastically addressing an article in Chemical Week magazine: “[I]f you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause.”

The court held that the letter served as circumstantial evidence that the company was aware that asbestos could be a potential health hazard years before it ceased using asbestos, and was sufficient to support an award of $3.5 million in punitive damages (of a total $5.8 million award).

The admittance of the letter has broad implications, suggesting that any stray remark – even a sarcastic expression of confidence in a product ingredient by a corporate employee who was not in the upper echelon – can serve to support a finding of massive punitive damages.

As the California court noted, the same letter has been both admitted and rejected by multiple other courts. For example, an Illinois appellate court pronounced the letter “a revealing historical anecdote that may give us insight into the thinking within the asbestos industry in 1966, but it was irrelevant. A persuasive argument can also be made that even if it had some modest relevance, it was inflammatory, and whatever probative value it had was outweighed by its prejudicial effect.” (Dukes v. Pneumo Abex Corp. (2008) 386 Ill.App.3d 425, 439.)

In an unpublished portion of the decision (meaning it may not be cited as precedent in California, though it may be citable elsewhere), Phillips also addressed the split in authority regarding the “every-exposure” (a.k.a. “no safe dose”) theory versus the “every-identified-exposure” theory in asbestos litigation. Under the every-exposure theory of causation, “every exposure to asbestos fibers is a substantial factor in causing disease, regardless of fiber type or dose, so long as the fibers are traceable to a product and are not merely ‘background’ fibers found in the ambient air.” The same defendant lost a challenge to that theory in Davis v. Honeywell International Inc. (2016) 245 Cal.App.4th 477, and sought to have the Phillips court part ways with Davis. Instead, the Phillips court found that the expert had espoused the subtly different “every-identified-exposure” theory.

In reaching this conclusion, the Phillips court quoted an Ohio decision approvingly: “Although some courts have rejected the ‘each and every exposure’ theory, others have distinguished testimony suggesting a de minimis exposure to asbestos could cause mesothelioma from testimony that each significant exposure to asbestos could be a cause.” The California court found that this theory was “consistent with California law addressing proof of causation in asbestos-related cancer cases,” in that it considered only significant and identifiable exposures in determining the risk of the disease.