Amicus Curiae Brief — Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 827 (2017) (No. 16-466)

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Supreme Court, US.

FILED

NOV 10 2016

OFFICE OF THE CLERK

No. 16-466

Supreme Court of the Anited States

BRISTOL-MYERS SQUIBB COMPANY,

PETITIONER,

SUPERIOR COURT OF CALIFORNIA FOR THE

COUNTY OF SAN FRANCISCO, et al.,

RESPONDENTS.

On Petition for a Writ of Certiorari to the

California Supreme Court

BRIEF OF AMICUS CURIAE

GLAXOSMITHKLINE, LLC

IN SUPPORT OF PETITIONER

JEFFREY S. BUCHOLTZ

Counsel of Record

ETHAN P. DAVIS

JOSHUA N. MITCHELL

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Counsel for Amicus Curiae

November 10, 2016

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................:.::0eeeeeeeeeeee0ee il

INTEREST OF AMICUS CURIAE............-.--...00. 1

INTRODUCTION AND SUMMARY OF

BEAR TIIIIIET ..........00ccecccccsescccersccccsscvocccccsccssosccesese 2

PTAA TIBTIOGT ..........0--0.0000csscccceveesccccnscccnessssscscesescercceeeees 6

lL. The Court Should Grant BMS’s Petition............ 6

A. The Question Presented Has Great

Practical Importance. .................0cesseeeeeeeeeeees 6

B. The Decision Below Violates Due

Process and is Contrary to Principles of

ET ns a scintbanesioennnepsacoueconsan 10

C. The Decision Below Imposes Additional

Burdens on Parties and Courts. ................ 15

D. The Petition Presents the Court With an

Opportunity To Resolve a Well-

Developed Split Involving Federal

Courts of Appeals and State High

I sn secnabinsinseboeneesaseecneenacebeenee 17

Il. The BMS Case Is An Ideal Vehicle For

Resolving the Question Presented.................--. 18

A. The Fact Pattern In BMS Is Typical. ........ 18

B. Other Petitions Are Unlikely To Resolve

the Question Presented. ................---:+--++++ 20

COICLIGTIONN .....c..ccccccece-cccceceseesscccccreseresesecssscesennes 24

TABLE OF AUTHORITIES

Cases

American Dredging Co. v. Miller,

ge fhe ER Se eRe eee eer a Oe 14

Avocent Huntsville Corp. v. Aten Int'l Co.,

552 F.3d 1324 (Fed. Cir. 2008)........................2.. 18

Daimler AG v. Bauman,

ee hs a I inci scisinaiiascigsinainitintscbsiieaitas passim

Dudnikov v. Chalk & Vermilion Fine Arts,

514 F.3d 1063 (10th Cir. 2008) .............0............ 17

_ Fitts v. GSK,

Cause No. 1622-CC00539 (Mo. Cir. Ct.).............. 7

Gridley v. State Farm Mut. Ins. Co.,

5 8 &) fT) RD Rpemrrenennenen 11

Gulf Oil Corp. v. Gilbert,

Ce ST IED epeesniccttecsccsinteahscicenenstenie 12, 14, 16

Hansen v. Baxter Healthcare Corp.,

, 7 £ 5 5 | « EERE er ener 10

Harb v. City of Bakersfield,

233 Cal. App. 4th 606 (2015),

review denied (Apr. 29, 2015) ................cccceeeneeees 16

Harlow v. Children’s Hosp.,

gf ( J: 9: } eas 17

Hogans v. Johnson & Johnson et al.,

Cause No. 1422-CC09012-01 (Jan. 7, 2016)...... 17

Johnson v. SmithKline Beecham Corp.,

TOO F.Ba BET GOS Cir. DOUG) .......c0ccsceseseccseccccccseses: 1

ill

Kearney v. Salomon Smith Barney, Inc.,

Be es ee I icc tithaicicnwatuininedcncdmswianiaiedeme 15

McCauley v. Thomas ex rel. Progressive Universal

Ins. Co..,

774 S.E.2d 421 (N.C. Ct. App. 2015).........0000..... 16

Menken v. Emm,

503 F.3d 1060 (9th Cir. 2007) ............................ 17

Meyers v. GlaxoSmithKline, LLC,

2016 IL App (1st) 151909,

petition for leave to appeal

Et ETE eee ree aesIO 8

Muirhead v. Cogan,

158 So. 3d 1259 (Miss. Ct. App. 2015)............... 15

Orrick v. GSK,

Cause No. 1322-CC00079-01 (Mo. Cir. Ct.)......... 7

Perry v. Leeke,

ee nn Lcpunbuielasaboupeuineuise 12

Sprague v. Walter,

656 A.2d 890 (Pa. Super. 1995).......................... 15

Stangvik v. Shiley Inc.,

Gt een Seer enn eneS 14

Sterling Drug, Inc. v. Cornish,

370 F.2a S82 (@th Cir. 1966) ................................ 10

Walden v. Fiore,

ts Cas. We IND 0. ocecnntnciescnesentnceuncoeseus 20, 21

Watkins v. Sowders,

I a rtenalindeoneen 5

Williams v. Lakeview Co.,

ee i ls Sv oecececenvacovceccvcceesese: 17, 18

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ........... ssiacheeteldliceiliieiAcaidlbsetiniain 10, 13

Statutes

TRIS I ic ac cna seineirichaboaiedetininanmaadeceaeieaanias 22

ee ORI niedieesasuaibeiiibanesd 15

Other Authorities

William Cash,

Is It Time to Rethink the MDL for Mass Tort

Cases?

The Trial Lawyer Magazine (Sept. 2015)............ 9

IG Sh, CII vececrnsevcciscdnedeocccsesaseoncccsnneensens 8

Ronald V. Miller, Jr.,

“Average Injury Verdicts in California,”

Accident Injury Lawyer Blog (Dec. 15, 2010),

available at http://www.accidentinjurylawyer

blog.com/2010/12/average_injury_verdicts_in

I esa oR ae ae RE Sie Se Sg oe RS 2 9g

Order Denying Defendant GlaxoSmithKline, LLC's

Motion to Quash for Lack of Personal

Jurisdiction of Non-California Plaintiffs,

Paxil IT Product Liability Cases, JCCP 4786

SR DR Se ROL ta 7

Richard “Dickie” Scruggs,

Asbestos for Lunch, panel discussion at the

Prudential Securities Financial Research and

Regulatory Conference (May 9, 2002),

in INDUSTRY COMMENTARY (Prudential!

Securities, Inc., New York), June 11, 2002......... i)

INTEREST OF AMICUS CURIAE'

Amicus curiae GlaxoSmithKline, LLC (“GSK”) is

a pharmaceutical company that researches and

develops vaccines, medicines, and consumer

healthcare products. GSK is a Delaware limited

liability company. Its sole member is

GlaxoSmithKline Holdings (Americas) Ine., a

Delaware corporation with its principal place of

business in Delaware. See Johnson v. SmithKline

Beecham Corp., 724 F.3d 337, 341 (3d Cir. 2013).

Like petitioner Bristol-Myers Squibb Company,

GSK often faces mass tort lawsuits related to its

products. In those suits, plaintiffs’ attorneys begin

by selecting a forum that they believe will be

favorable, regardless of where their clients reside or

where their clients were prescribed the medication

that forms the basis of the suit. The attorneys then

aggregate dozens or even hundreds of plaintiffs, most

of whom have no connection with the chosen forum,

to bring claims that also are untethered from the

forum. As a result, GSK is forced to defend cases in

states where it has no presence and where key

witnesses are often unavailable to testify in person at

trial.

' Petitioner and respondents have filed blanket consent letters

with the Court. Pursuant to Supreme Court Rule 37.6, amicus

states that no counsel for a party authored this brief in whole or

in part and that no person or entity other than amicus and its

counsel contributed monetarily to the preparation or submission

of this brief. The parties were given timely notice of GSK’s

intent to file this brief.

GSK supports this petition because it presents an

important, recurring question about the Court’s due

process jurisprudence as it relates to personal

jurisdiction. The Court’s precedents recognize that,

absent “constant and pervasive’ tics to a forum that

render the defendant “at home” there, a court may

exercise jurisdiction over the person of a defendant

only when the claim itself is tied to the forum.

California’s “sliding-scale” approach to this

fundamental question of a court's power guts

important due process protections and renders

defendants like GSK vulnerable to the most brazen

and harmful kind of forum shopping.

This case offers a clean vehicle for addressing the

entrenched split among the lower courts regarding

the proper standard for determining whether a court

may exercise specific personal jurisdiction over a

defendant when the selected forum has no connection

to the events underlying a plaintiffs claim.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In the decision below, the California Supreme

Court effectively resurrected the theory of personal

jurisdiction that this Court laid to rest just two years

ago.

In Daimler AG v. Bauman, the Court held that a

corporation is subject to general jurisdiction only

where it is “at home,” which typically means “where

it is incorporated or has its principal place of

business.” 134 S. Ct. 746, 751, 760 (2014). Daimler

reined in the “exorbitant exercises of all-purpose

jurisdiction” — based merely on a corporation's

“continuous and systematic” contacts that some

prior case law had permitted. /d. at 761.

In a concession to reality, the California Supreme

Court acknowledged that BMS is not “at home” in

California and therefore not subject to general

jurisdiction there. But the majority then emptied

that holding of all its significance. Invoking the same

“continuous and _ systematic” contacts that are

concededly not enough for general jurisdiction, the

majority found them sufficient for specific

jurisdiction. It did so by loosening the “arising from”

requirement -—- which is supposed to distinguish

specific from general jurisdiction — until specific

jurisdiction is no longer specific to the plaintiffs

claim at issue and is really general jurisdiction by

another name.

Under the decision below, a company with

nationwide operations is subject to “specific”

jurisdiction on virtually any claim, virtually

anywhere. But there is something obviously wrong

with a theory of “specific” jurisdiction that permits

jurisdiction in any state in the nation even where the

harm only occurs in a state outside the forum. As the

three-justice dissent observed, “|w]hat the federal

high court wrought in Daimler — a shift in the

general jurisdiction standard from the ‘continuous

and systematic’ test of Helicopteros to a much tighter

‘at home’ limit ——- this court undoes today under the

rubric of specific jurisdiction.” Pet. App. 50a—5la

(Werdegar, J., dissenting).

The decision below cries out for review on both

practical and doctrinal grounds. As a _ practical

matter, the decision below will serve as an open

invitation for plaintiffs’ lawyers to concentrate mass

tort actions in the California courts. GSK is already

facing several such suits in Los Angeles Superior

Court, where plaintiffs’ lawyers have used some

California resident plaintiffs as the key to unlock the

courthouse doors for dozens of non-California

plaintiffs. The trial court has already followed the

decision below and denied GSK’s motion to quash for

lack of personal jurisdiction.

Similar mass tort actions involving out-of-state

plaintiffs who claim out-of-state injuries are pending

in other jurisdictions favored by plaintiffs’ lawyers,

such as Missouri and Illinois. These jurisdictions are

attractive to plaintiffs because of perceived favorable

jurisdictional and discovery rulings, because of juries

that plaintiffs’ lawyers believe are more likely to

award large verdicts, and because aggregating large

numbers of plaintiffs makes it difficult if not

impossible for defendants to defend.

Taking such a loose approach to_ specific

jurisdiction in a mass tort action like this one

exacerbates the threat to defendants’ due process

rights. As this Court has explained, “exorbitant”

exercises of personal jurisdiction “are barred by due

process constraints on the assertion of adjudicatory

authority.” Daimler, 134 S. Ct. at 751. When a state

court reaches out to decide a dispute that arose in a

different state, the defendant will have trouble

assembling the witnesses necessary to defend. State

courts generally lack subpoena power outside the

state’s borders, making it difficult for defendants to

obtain live testimony from critical witnesses like the

prescribing physician. Without the ability to compel

these witnesses to testify at trial, the defendant’s

attorneys will often take an out-of-state deposition

that doubles as both a discovery and a cross-

examination deposition, and then try to splice

together a video to present at trial. The result is an

awkward presentation that lacks the force of a live

cross-examination and that bears little resemblance

to “the time-honored process of cross-examination as

the device best suited to determine’ the

trustworthiness of testimonial evidence.” Watkins v.

Sowders, 449 U.S. 341, 349 (1981).

The California Supreme Court’s decision is also

contrary to basic principles of federalism. A state

lacks the constitutional authority to declare itself the

hub of a nationwide multi-district litigation, reaching

out to decide controversies that properly belong in

other states. Nor should a state require its citizens

to serve as jurors — in trials that can last weeks —

to adjudicate disputes that lack any meaningful

connection to the state.

What is more, the decision below complicates

mass tort litigation by making difficult choice-of-law

issues more likely to arise. When the plaintiff, the

defendant, and the injury are all out of state, a court

must decide whether to apply the substantive law of

the state where the claim arose (often but not

necessarily the plaintiffs home state) or the

substantive law of the forum state. These issues

make dispositive-motion practice and_ the

development of jury instructions more convoluted,

creating more opportunities for reversible error.

The decision below is an ideal vehicle for the

Court to put an end to this inappropriate forum

shopping. This fact pattern arises frequently, and

this case would have been decided differently in

jurisdictions that employ a more rigorous “arising

from” requirement. Although other pending petitions

pose other questions about personal jurisdiction,

none is likely to resolve the question presented here.

ARGUMENT

I. The Court Should Grant BMS’s Petition.

A. The Question Presented Has Great

Practical Importance.

BMS is not alone in facing mass tort litigation

brought by out-of-state plaintiffs who ingested the

drug at issue out of state and claim out-of-state

injuries. Such plaintiffs routinely target GSK as

well. GSK is a defendant in mass tort suits around

the country where out-of-state plaintiffs use in-state

plaintiffs as an anchor to select what their attorneys

perceive to be favorable jurisdictions.

Like BMS, GSK is facing many of those suits in

California, where GSK is not “at home” under

Daimler. Over the last three years, plaintiffs’

attorneys filed thirteen lawsuits in California state

courts, which have been assembled in a coordinated

proceeding in Los Angeles County Superior Court.

The plaintiffs in these cases are mother-child pairs

who allege that the unborn children were injured

when their mothers ingested Paxil, a drug that is

effective in treating depression, obsessive-compulsive

disorder, and anxiety.

The thirteen complaints name _ twenty-seven

California residents and thirty-one non-California

residents as plaintiffs. The non-California plaintiffs

live in states all over the country, including Illinois,

Pennsylvania, Kentucky, New Hampshire,

Oklahoma, Michigan, Missouri, Arizona, Wisconsin,

Wyoming, Louisiana, Texas, and Mississippi. They

do not allege that their physicians prescribed Paxil in

California, that the plaintiffs ingested Paxil in

California, or any other facts linking their claims to

California. Like the BMS plaintiffs, the complaints

tether personal jurisdiction solely to the fact that

GSK marketed and sold Paxil in California as a

general matter — in-state sales that potentially give

rise to claims by other plaintiffs, but not the claims of

the out-of-state plaintiffs. The trial court has already

invoked the California Supreme Court’s decision and

denied GSK’s motion to quash for lack of personal

jurisdiction. See Order Denying Defendant

GlaxoSmithKline, LLC’s Motion to Quash for Lack of

Personal Jurisdiction of Non-California Plaintiffs,

Paxil Il Product Liability Cases, JCCP 4786 (Nov. 4,

2016). If left uncorrected, the decision below

approving this tactic will further encourage plaintiffs’

lawyers to concentrate nationwide mass actions in

California.

Similar suits involving Paxil are also proceeding

in Missouri and Illinois, both favored jurisdictions for

plaintiffs’ lawyers. In Missouri, ninety-six plaintiffs

from over thirty different states joined with three

from Missouri to sue GSK in St. Louis. See Fitts et

al. v. GSK, Cause No. 1622-CC00539 (Mo. Cir. Ct.).

In a previous matter in St. Louis, sixty-one non-

Missouri plaintiffs combined their claims with those

of four Missouri residents. See Orrick v. GSK, Cause

No. 1322-CC00079-01 (Mo. Cir. Ct.). The court in

Fitts upheld personal jurisdiction as to the out-of-

state plaintiffs’ claims on the rationale that the

plaintiffs had “consented to personal jurisdiction”

and GSK’s agent had been served in Missouri —

skipping entirely over the question whether the

nexus required by due process existed between the

out-of-state plaintiffs’ claims and GSK’s Missouri

contacts. Fitts, Order at 2-3 (Nov. 9, 2016).

Illinois is another example. There, six mother-

child pairs from Florida, Colorado, Virginia,

Michigan, and Wisconsin used one pair from Illinois

as an anchor to sue GSK in the Circuit Court of Cook

County. See Meyers et al. v. GlaxoSmithKline, LLC,

2016 IL App (1st) 151909, pet. for leave to appeal

filed Sep. 30, 2016. In a twist on the theory endorsed

by the court below, the out-of-state plaintiffs alleged

that their claims arose out of GSK’s clinical trial

program for Paxil. That program had only the

slightest of connections to Illinois: ninety-five

percent of the over 300 trials did not have even a

single study site or investigator in Illinois, and even

the few trials that had a site in Illinois had the vast

majority of their sites elsewhere. Although the

plaintiffs did not allege that their claims had

anything to do with the minuscule portion of the

clinical trial program that occurred in Illinois, the

trial court and the Illinois Appellate Court thought it

was enough that the data from the handful of Illinois

study sites — in the handful of trials that had even

one Illinois site — was “aggregated” with the data

GSK collected nationally and internationally. 2016

IL App (lst) 151909, at Y 52. Under that

inappropriately relaxed approach to the “arising

from” requirement, GSK would be subject to specific

jurisdiction essentially everywhere on essentially any

claim.

Plaintiffs pick what their lawyers refer to as

these “favorable jurisdictions” for a reason. William

Cash, Js It Time to Rethink the MDL for Mass Tort

Cases? The Trial Lawyer Magazine (Sept. 2015).

Plaintiffs’ lawyers believe that they can obtain

favorable discovery and evidentiary rulings in these

courts. And they consider the jury pools to be

optimal. “It is certainly fair to summarize all of this

by saying that juries in California put a higher value

on personal injury cases than the average American

does.” Ronald V. Miller, Jr., “Average Injury Verdicts

in California,” Accident Injury Lawyer Blog (Dec. 15,

2010), available at http://www.accidentinjurylawyer

blog.com/2010/12/average_injury_verdicts_in_cal

-html.

As another plaintiffs’ lawyer explained, “What I

call the ‘magic jurisdiction’ [is] where the judiciary 1s

elected with verdict money. The trial lawyers have

established relationships with the judges . . . and it’s

almost impossible to get a fair trial if you're a

defendant in some of these places. .. . Any lawyer

fresh out of law school can walk in there and win the

case, so it doesn’t matter what the evidence or law

is.” Richard “Dickie” Scruggs, Asbestos for Lunch,

panel discussion at the Prudential Securities

Financial Research and Regulatory Conference (May

9, 2002), in INDUSTRY COMMENTARY (Prudential

Securities, Inc., New York), June 11, 2002, at 5.

B. The Decision Below Violates Due

Process and is Contrary to Principles

of Federalism.

“The Due Process Clause of the Fourteenth

Amendment limits the power of a state court to

render a valid personal judgment against a

nonresident defendant.” World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 291 (1980). These

constitutional limits “protect[] the defendant against

the burdens of litigating in a distant or inconvenient

forum.” 7d. at 292.

The decision below disregards these principles

and imposes constitutionally problematic burdens on

defendants. Most notably, it is difficult for

defendants to obtain live trial testimony from out-of-

state witnesses, such as the plaintiffs doctors,

family, friends, and co-workers. This problem is

particularly acute when it comes to the prescribing

physician, who is typically one of the most important

witnesses. That doctor will testify about why she

prescribed the drug, whether a different warning

would have changed her treatment recommendation,

and what the drug was intended to treat. Under the

learned intermediary doctrine, moreover, a

manufacturer fulfills its duty to warn by advising the

prescribing physician of the risks, meaning that the

physician’s testimony can be crucial. See, e.g.,

Sterling Drug, Inc. v. Cornish, 370 F.2d 82, 85 (8th

Cir. 1966); Hansen v. Baxter Healthcare Corp., 764

N.E.2d 35, 42 (ill 2002) (manufacturers of

prescription drugs need not warn patients directly,

but must “warn prescribing physicians .. . of the

product's known dangerous propensities’).

But getting the doctor’s testimony is a tricky

endeavor. Doctors generally do not jump at the

opportunity to testify, particularly in jurisdictions far

from home. And they cannot be compelled to do so,

because state courts do not have the power to compel

out-of-state witnesses to attend trial. See, e.g.,

Gridley v. State Farm Mut. Ins. Co., 840 N.E.2d 269,

279 (Ill. 2005) (“Illinois courts do not have subpoena

power in Louisiana, so ... State Farm would not be

able to compel the attendance of the Louisiana

witnesses in I|linois.”).

In practice, then, the defendant will depose the

doctor in her home state. To do so, the defendant

often must ask the court in the plaintiffs chosen

forum to authorize the taking of the foreign

deposition. See, e.g., Commission to Take Deposition

Outside California, http://www.courts.ca.gov/docu-

ments/disc030.pdf. Then, the defendant often hires a

local lawyer in the physician’s state and files a

separate lawsuit in a local court in order to obtain

the foreign jurisdiction’s authorization to take the

deposition.

At the deposition, the defendant faces a strategic

dilemma. The defendant cannot compel the doctor to

appear at trial, so the deposition video may be the

only way to present the doctor’s testimony to the

jury. But the defendant’s attorney has not spoken

with the doctor, because most states do not allow ex

parte discussions by defense counsel with a plaintiffs

doctor. As a result, the defendant does not know

what the doctor is going to say.

So the defendant has two unpalatable choices. It

can combine a discovery and a cross-examination

deposition into one, requiring defense counsel to

artfully begin with open-ended questions and to close

them off with cross-examination questions developed

on the spot. Then, the defendant can edit and splice

together the deposition clips, inevitably resulting in a

distointed and awkward presentation. Or the

defendant can try to depose the doctor twice, if the

defendant can persuade the forum state’s court and

the local court to allow it (a difficult thing to do).

In either event, the jury is deprived of the benefit

of live testimony. And the defendant is denied the

opportunity to prepare and deliver an effective cross-

examination — “[t]he age-old tool for ferreting out

truth in the trial process.” Perry v. Leeke, 488 U.S.

272, 283 (1989). Instead, the judge turns down the

lights, the screen comes on, and the jurors begin

nodding off. See Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 511 (1947) (“[T]o fix the place of trial at a point

where litigants cannot compel personal attendance

and may be forced to try their cases on deposition, is

to create a condition not satisfactory to the court,

jury or most hitigants.”). In an effort to liven things

up, two attorneys will sometimes role-play by reading

the deposition transcript aloud. But that artificial

solution does not solve the problem, because the jury

still cannot view the witness’s demeanor. Moreover,

without witnesses actually present, the defendant

cannot ask them questions tailored to what has

occurred at trial.

An example from the Orrick case in Missouri (see

supra at 8) illustrates this problem. As explained,

that case involved a large number of out-of-state

plaintiffs who used a handful of Missouri plaintiffs as

an anchor. The first claim set for trial involved a

plaintiff from West Virginia, and the plaintiffs

mother’s testimony about other drugs she had

ingested, other risk factors, and warnings she had

seen was highly relevant. Shortly before trial,

however, plaintiffs counsel replaced the mother with

the plaintiffs grandmother as the next friend of the

plaintiff and decided not to bring the mother to trial.

As a result, GSK would not have been able to compe!

critically important witnesses in the case — the

mother and the out-of-state prescribing physicians —

to testify in front of the Missouri jury.

The decision below is also contrary to principles

of federalism. Another purpose of personal

jurisdiction is to protect state sovereignty. “The

sovereignty of each State . . . implie[s] a limitation on

the sovereignty of all of its sister States — a

limitation express or implicit in both the original

scheme of the Constitution and the Fourteenth

Amendment.” World-Wide Volkswagen, 444 U.S. at

293. For that reason, a state lacks the constitutional

authority to decide claims that lack the requisite

connection to the state. Id.

The California Supreme Court’s view — that a

defendant with nationwide operations may be forced

to defend virtually any claim in virtually any state —

cannot be reconciled with these principles. The

decision below usurps the authority of other states

that have a stronger interest in adjudicating these

claims. See Daimler, 1345S. Ct. at 762 n.20 (“Nothing

in International Shoe and its progeny suggests that ‘a

particular quantum of local activity’ should give a

State authority over a ‘far larger quantum of .. .

activity having no connection to any in-state

activity.”).

The decision below also imposes inappropriate

burdens on the California courts and the California

citizens who would be called upon to serve as jurors.

The typical pharmaceutical product-liability trial

lasts three weeks or more, and “[jJury duty is a

burden that ought not to be imposed upon the people

of a community which has no relation to the

litigation.” Gulf Oil, 330 U.S. at 508-09. Those

burdens are civic duties that must be borne when the

defendant resides in the forum state or the claim

arises from the defendant’s forum-state contacts.

But where the plaintiff, the defendant, the

defendant's challenged conduct, and the claimed

injury are all out of state, a state court does not have

the constitutional authority to effectively designate

itself the hub of a nationwide wmulti-district

litigation.”

2 The doctrine of forum non conveniens grounds is not an

adequate substitute for the due process protections embodied in

this Court’s personal jurisdiction jurisprudence. Unlike the

decision whether to dismiss for lack of personal jurisdiction, a

forum non conveniens determination “is committed to the sound

discretion of the trial court.” American Dredging Co. v. Miller,

510 U.S. 443, 455 (1994); see also, e.g., Stanguvik v. Shiley Inc.,

54 Cal. 3d 744, 751 (1991) (‘Forum non conveniens is an

equitable doctrine invoking the discretionary power of a court to

decline to exercise . . . jurisdiction ... .”).

C. The Decision Below Imposes

Additional Burdens on Parties and

Courts.

Aside from the due process and federalism

problems discussed above, the decision below creates

difficult choice-of-law issues. When a plaintiff

resides out of state and suffered her alleged injuries

out of state, the forum court must wrestle with what

state’s law to apply. For example, if the plaintiff

lives in Mississippi and her claim arose there, does

the forum court apply Mississippi substantive

product-liability law? In California, if there is a

conflict between state laws, “the court analyzes the

jurisdictions’ respective interests to determine which

jurisdiction’s interests would be more _ severely

impaired if that jurisdiction’s law were not applied in

the particular context presented by the case.”

Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th

95, 100 (2006). In cases with plaintiffs who reside in

dozens of different states, the difficulties multiply

exponentially.

Divergent state laws can make a significant

difference. For example, unlike in California,

Mississippis Product Liability Act expressly

subsumes common-law claims, leaving plaintiffs with

a statutory cause of action only. See Miss. Code.

Ann. 11-1-63. In Pennsylvania, a plaintiff must

prove punitive damages by a preponderance of the

evidence; in Mississippi, clear and convincing

evidence is required. Compare Sprague v. Walter,

656 A.2d 890, 923 (Pa. Super. 1995), with Muirhead

v. Cogan, 158 So. 3d 1259, 1266 (Miss. Ct. App.

2015). In North Carolina, a plaintiffs contributory

negligence (of any degree) deprives the plaintiff of the

right to recover. McCauley v. Thomas ex rel.

Progressive Universal Ins. Co., 774 S.E.2d 421, 426

(N.C. Ct. App. 2015). By contrast, in California, a

negligent plaintiff may still recover. Harb v. City of

Bakersfield, 233 Cal. App. 4th 606, 626 (2015), review

denied (Apr. 29, 2015).

After deciding what law to apply, the parties and

the court must develop jury instructions. This often

happens in the charged and frantic atmosphere of

trial, as attorneys must haggle over and turn a

foreign jurisdiction’s law into a format accessible to a

jury. The foreign jurisdiction sometimes has no

pattern jury instructions to rely on. And even when

it does, the parties and the court often must splice

together the foreign jurisdiction’s substantive law

with the forum state’s procedural law. It is no

surprise that reversible error often occurs. For these

reasons, “[t]here is an appropriateness... in having

the trial. ..in a forum that is at home with the state

law that must govern the case, rather than having a

court in some other forum untangle problems in

conflict of laws, and in law foreign to itself.” Gulf Oil,

330 U.S. at 509.

The choice-of-law problem also makes _ it

necessary to try cases with plaintiffs from multiple

states individually. Because these trials happen one

by one, the few in-state plaintiffs’ claims are

sometimes never litigated — further confirming that

the in-state plaintiffs serve only a forum-shopping

purpose. In similar cases in Missouri involving

Johnson & Johnson, the three cases tried to date

involved plaintiffs from Alabama, South Dakota, and

California. See Hogans et al. v. Johnson & Johnson

et al., Cause No. 1422-CC09012-01 (Jan. 7, 2016). In

the Missouri Paxil cases, the first case set for trial

involved a plaintiff from West Virginia. When a state

court hosts what amounts to a nationwide multi-

district litigation in which in-state plaintiffs barely

participate, that is a sure sign that something is

amiss.

D. The Petition Presents the Court With

an Opportunity To Resolve a Well-

Developed Split Involving Federal

Courts of Appeals and State High

Courts.

As the petition explains, the decision below

further entrenches a well-developed and

acknowledged split on how to interpret the “arising

from” requirement —— or, more to the point, whether

there is an “arising from” requirement — for specific

jurisdiction. Pet. 9-20. Many courts hold that a

defendant’s forum-state contacts must be the “but

for” or “proximate” cause of the plaintiffs injuries.

See, e.g., Dudnikov v. Chalk & Vermilion Fine Arts,

514 F.3d 1063, 1079 (10th Cir. 2008); Menken ov.

Emm, 503 F.3d 1050, 1058 (9th Cir. 2007); Harlow v.

Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005). The

Supreme Court of Arizona also subscribes to this

view. See Williams v. Lakeview Co., 13 P.3d 280,

284-85 (Ariz. 2000).

A minority of courts, by contrast, reject a

causation requirement altogether, reasoning that

some “relationship” between the suit and the

defendant’s forum-state contacts is enough even if

that “relationship” is not a causal one. See, e.g.,

Avocent Huntsville Corp. v. Aten Int'l Co., 552 F.3d

1324, 1336-37 (Fed. Cir. 2008). In the decision below,

the California Supreme Court decisively adopted the

minority view, describing the test as whether “there

is a substantial nexus or connection between the

defendant’s forum activities and the plaintiffs claim.”

Pet. App. 21a.

To be sure, other courts have not addressed the

precise situation where out-of-state plaintiffs use a

handful of in-state plaintiffs as an anchor to sue in

their lawyers’ preferred jurisdiction. But a split on

these exact facts is unlikely ever to arise, given that

plaintiffs’ lawyers pick only favored jurisdictions

whose courts have signaled that they welcome such

filings. Plaintiffs’ lawyers are not likely to bring this

type of case in Arizona, for example, which requires a

“causal nexus between the defendant’s . . . activities

and the plaintiffs claims.” Williams, 13 P.3d at 284-

85. Instead, if the decision below is allowed to stand,

plaintiffs’ lawyers will continue to assemble

nationwide mass tort actions in California.

Il. The BMS Case Is An Ideal Vehicle For

Resolving the Question Presented.

A. The Fact Pattern In BMS Is Typical.

As explained, GSK faces mass tort suits in

various jurisdictions that are materially

indistinguishable from this one. If this Court were to

reverse the decision below, the Court’s decision would

apply to all of GSK’s pending cases. In addition, as

explained in the PhRMA amicus brief, this case

would resolve personal jurisdiction in many other

similar suits against other pharmaceutical

manufacturers.

The BMS case is also an excellent vehicle because

it clearly would have been decided differently in

jurisdictions that use a “but for” or “proximate”

causation standard. The majority below held that

Bristol-Myers’ “nationwide marketing, promotion,

and distribution of Plavix created a substantial nexus

between [respondents’] claims and the company’s

contacts in California concerning Plavix.” Pet. App.

28a. That kind of amorphous “nexus” would not be

enough to satisfy the “but-for’ or “proximate”

causation standards, because the _ cut-of-state

plaintiffs in BMS would have suffered the same

alleged injuries even if Bristol-Myers had never set

foot in California.

If a physician prescribes a medication to a

plaintiff in Florida and the plaintiff ingests the

medication and suffers her alleged injuries in

Florida, the defendant’s marketing or distribution

activities in California did not give rise to the

plaintiffs injuries. The defendant’s California

activities may have given rise to other people’s

claims, in California, and those claims may resemble

the Florida plaintiffs claims. But resemblance is not

causation. In fact, the majority did not dispute that

respondents’ “claims would be exactly the same if

[Bristol-Myers] had no contact whatsoever with

California.” Pet. App. 29a. Under the infinitely

malleable “substantial nexus” standard, it was

possible for the court below to conclude that the

plaintiffs’ claims are related to Bristol-Myers’

activities in California, but not even. an

adventuresome court could declare that Bristol-

Myers’ California contacts are a cause of the out-of-

state plaintiffs’ claims.

B. Other Petitions Are Unlikely To Resolve

the Question Presented.

Other pending petitions pose other personal

jurisdiction questions, but none would resolve the

question presented here. Granting those petitions

would not be a _ substitute for granting BMS’s

petition.

1. TV Azteca et al. v. Gloria de los Angeles

Trevino Ruiz, No. 16-481, is an intentional tort case

that is more about the reach of Walden v. Fiore, 134

S. Ct. 1115 (2014), than Daimler. In Walden, the

plaintiffs alleged that the defendant, a police officer,

improperly seized and refused to return gambling

proceeds. Walden, 1345S. Ct. at 1119. Although the

seizure occurred in Georgia, the plaintiffs sued in

Nevada, arguing that the officer knew that “his

allegedly tortious conduct in Georgia would delay the

return of funds to plaintiffs with connections to

Nevada” and thus cause injury in Nevada. Id. This

Court held that the officer did not have minimum

contacts with Nevada because the “relevant conduct

occurred entirely in Georgia, and the mere fact that

his conduct affected plaintiffs with connections to the

forum State does not suffice to authorize

jurisdiction.” /d. at 1126.

TV Azteca appears to turn on the application of

Walden’s minimum contacts and _ purposeful

availment analysis, not Daimler’s general vs. specific

jurisdiction framework. In TV Azteca, Texas

residents alleged that Mexican citizens defamed

them by “broadcast[ing] television programs on over-

the-air signals that originate in Mexico but travel

into parts of Texas.” T'V Azteca Pet. App. la.

After discussing Walden, the Texas Supreme

Court approved the exercise of specific jurisdiction

over the Mexican citizens. The court reasoned that

the purposeful availment requirement was satisfied

because the Mexican citizens “exploited the Texas

market to capitalize on the broadcasts that traveled

into Texas.” Jd. at 2a. Although the defendants did

not intentionally direct the over-the-air signals to

Texas, the defendants “took specific and substantial

actions to take advantage of the fact that the signals

reach into Texas and to financially benefit from that

fact.” Jd. at 36a. The court also concluded that the

plaintiffs’ claims “arise from and relate to those

broadcasts” because the plaintiffs resided in Texas

and suffered injuries from viewing the broadcasts in

Texas. Id. at 2a.

TV Azteca bears little resemblance to this case.

Although the 7'V Azteca petition invokes the same

circuit split at issue here, the difference is that the

TV Azteca plaintiffs reside in Texas and suffered

their injuries in Texas. In contrast, the BMS

plaintiffs reside outside California and suffered their

alleged injuries outside California. The central

question in 7'V Azteca is whether the defendants’

broadcasting of television programs in Mexico, with

knowledge that they would also be viewed in Texas,

satisfied the purposeful availment requirement for

specific jurisdiction. The question is not whether the

plaintiffs’ claims arise out of the defendants’ forum-

state contacts — they do, as the broadcast reached

into Texas and allegedly injured Texas residents in

Texas — but rather whether the defendants’ forum-

state contacts are too slim to support jurisdiction

even though the claims arise out of those contacts. If

this Court were to resolve that question, it would

have little or no effect on the decision below.

29 In BNSF Railway Company v. Tyrrell, No. 16-

405, the question presented involves general rather

than specific jurisdiction. Although BNSF is not

incorporated in Montana and does not maintain its

principal place of business there, the Montana

Supreme Court held that the Federal Employers’

Liability Act authorizes state courts to exercise

general jurisdiction. The court relied on a provision

of the FELA, rather than general principles of

personal jurisdiction. See 45 U.S.C. § 56 (“Under this

chapter an action may be brought in a district court

of the United States .. . in which the defendant shall

be doing business at the time of commencing such

action. The jurisdiction of the courts of the United

States under this chapter shall be concurrent with

that of the courts of the several States.”). The

question in that case is thus whether the FELA

allows state courts to exercise general jurisdiction

even when the defendant is not “at home” in the

forum state under Daimler. Whatever the answer to

that question of general jurisdiction in FELA cases, it

does not address whether a company is subject to

specific jurisdiction over the claims of out-of-state

plaintiffs who claim out-of-state injuries.

3. Mylan Pharmaceuticals v. Acorda

Therapeutics, Inc., No. 16-360, is about whether

anticipated future conduct can support specific

jurisdiction. The question presented is “[w]hether

the mere filing of an abbreviated new drug

application by a generic pharmaceutical

manufacturer is sufficient to subject the

manufacturer to specific personal jurisdiction in any

state where it might someday market the drug.”

Mylan Pharmaceuticals Pet. 1.

The Federal Circuit determined that the filing of

such an application subjects a defendant to specific

jurisdiction when the filing “reliably indicate[s] plans

to engage in” marketing in the forum state. Mylan

Pharmaceuticals Pet. 1. The issue in Mylan

Pharmaceuticals thus turns on whether predictions

about the future can be enough to support specific

jurisdiction, or whether courts must rely only on the

defendant's “actual suit-related conduct at the time

of the suit.” Jd. at 2. Because BMS does not involve

anticipated future conduct, a grant of certiorari in

Mylan Pharmaceuticals will not resolve the question

here.

GSK takes no position on whether the Court

should grant 7'V Azteca, BNSF Railway Company, or

Mylan Pharmaceuticals. But the Court should not

grant them in place of BMS.

CONCLUSION

The petition should be granted.

Respectfully submitted,