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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0715%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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,
V

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

i

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

i

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

iv

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.

2

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

3

“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

4

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

5

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

6

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

7

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

8

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

9

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.

10

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’).

1]

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

12

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

13

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 .. .

14

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 ... .”).

15

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

16

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

17

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.,

18

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

19

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

20

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

21

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-

22

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

23

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.

24

CONCLUSION

The petition should be granted.
Respectfully submitted,

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

November 10, 2016 Counsel for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0715%3A06. Public record. Not legal advice.