Lawyers handling drug-defect suits say New Jersey courts could see an uptick in volume of pharmaceutical and medical device suits in light of this week’s Supreme Court ruling in a California case that narrowed access to jurisdiction for out-of-state plaintiffs.
The justices’ holding on Monday in Bristol-Myers Squibb v. Superior Court of California, that California courts lacked general jurisdiction over suits by nonresident users of the blood thinner Plavix, will send some plaintiffs scrambling for new venues, lawyers said. And they added that New Jersey’s status as home to numerous major drug companies could prompt more plaintiff lawyers from around the country to file their cases in this state’s courts.
Already the court’s ruling has prompted a St. Louis judge to declare a mistrial Monday in suits by one Missouri resident and two from other states claiming that Johnson & Johnson’s talcum powder caused users to develop cancer.
The Supreme Court case concerns suits by 86 California residents and 592 residents of other states who filed complaints in California Superior Court alleging that Plavix damaged their health. The nonresident plaintiffs did not allege that they obtained Plavix through California physicians or sought treatment in California. Bristol-Myers has some operations in California but its business activities are mainly in New Jersey and New York, the justices said. For a court to exercise specific jurisdiction over a claim, there must be an affiliation between the forum and the underlying controversy, principally an activity or occurrence that takes place in the forum state, the justices said in the 8-1 opinion.
“This is all about preventing the practice of forum-shopping and it’s about preventing a plaintiff from joining a corporate defendant to a state court case where a defendant cannot reasonably be expected to be haled into court,” said Neal Walters of Ballard Spahr in Cherry Hill, who represents defendants in drug-defect suits. “Courts have established a bright-line rule: the only time you can hale a corporate defendant into a particular state court based on general personal jurisdiction is where that state is the home of the corporation,” he said.
Courts in New Jersey and elsewhere see some filings that lack a connection to the forum state, just as in the California case, although it’s difficult to estimate how widespread the practice is, said Walters. By no means is the phenomenon confined to drug cases, and the ruling will impact a variety of cases, he said.
In Missouri, where Johnson & Johnson has tried five cases over allegedly cancer-causing properties of its talcum powder, and in four of those plaintiffs prevailed. In those cases, Bristol-Myers puts those verdicts in jeopardy on appeal, said Wilfred Coronato, a McCarter & English lawyer who represents drug companies in products liability suits. He also forecast that New Jersey is likely to see more drug cases filed as a result of the court’s ruling.
“New Jersey is known as the medicine chest of the world. More than a dozen of the largest pharmaceutical companies are located in New Jersey. So many pharmaceutical companies are, in the words of the Supreme Court, fairly regarded as home in New Jersey, subject to suits by residents and nonresidents alike. Plaintiffs lawyers who are looking to file large inventories of cases in a single state, where their large inventory might be from plaintiffs who hail from various states, can file in New Jersey because they’re subject to general jurisdiction,” Coronato said.
Christopher Placitella, of Cohen, Placitella & Roth in Red Bank, who files drug suits in behalf of plaintiffs, said he does not believe many New Jersey cases will be deemed improperly venued as a result of the Supreme Court ruling. He thinks the ruling’s impact on New Jersey will not be significant but some suits that might have otherwise been filed elsewhere may end up in this state’s courts.
“I don’t see a major sea change in terms of the kinds of cases that are filed here. You may see more out-of-state residents file [in New Jersey courts] if they feel they have nowhere else to go,” Placitella said.
New Jersey could see more filings of drug suits because plaintiffs’ residency doesn’t matter if the defendant is based in this state, said Adam Slater of Mazie, Slater, Katz & Freeman in Roseland. Slater represents plaintiffs in suits over alleged side effects of blood pressure drug Benicar and over alleged defects in pelvic mesh made by Johnson & Johnson subsidiary Ethicon.
“The only impact on New Jersey is there will be more cases filed in New Jersey going forward,” Slater said. “Anyone can sue J&J in New Jersey,” he said.
Filing suits in a state where neither party has a nexus, a practice at the center of the Supreme Court case, is not commonplace in New Jersey, Slater said.
“For me, in New Jersey, I would say this is business as usual. It doesn’t change what we’re doing,” Slater said of the decision.
