Preview Newsletter
Cosmetic Talc Litigation Media Coverage September 29, 2016
-
Plaintiffs Chalk Up Jurisdictional Win in Pa. Talc Case
Sep 28, 2016 | The Legal Intelligencer
By Max Mitchell
Jurisdictional challenges by defendants have been on the uptick in the wake of the U.S. Supreme Court's 2014 decision in Daimler AG v. Bauman, but defendants in Pennsylvania might have one less jurisdictional argument they can raise following a recent decision from the Eastern District of Pennsylvania.
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
US Coverage
-
Plaintiffs Chalk Up Jurisdictional Win in Pa. Talc Case
Sep 28, 2016 | The Legal Intelligencer
By Max Mitchell
Jurisdictional challenges by defendants have been on the uptick in the wake of the U.S. Supreme Court's 2014 decision in Daimler AG v. Bauman, but defendants in Pennsylvania might have one less jurisdictional argument they can raise following a recent decision from the Eastern District of Pennsylvania.
U.S. District Judge Mark Kearney recently determined that a company with no business ties to Pennsylvania, other than being registered as a corporation in the state, can be sued here. The defendant, Imerys Talc America, had argued that under the Daimler decision, which said a company could only be subject to general jurisdiction in its home state, it could not be sued in Pennsylvania.
Kearney, however, said precedent from the U.S. Court of Appeals for the Third Circuit was clear, and the Pennsylvania statute specifically advises about the jurisdictional effect for those seeking to register in the state.
"As our court of appeals confirmed over 25 years ago, companies with no business ties or contacts in Pennsylvania but who choose to register as a foreign corporation in Pennsylvania consent to this court's exercise of personal jurisdiction over them," Kearney said. The Supreme Court's holdings inDaimler "do not depart from the well-established principles of personal jurisdiction by consent evidenced by registering to do business in Pennsylvania."
Ross Feller Casey attorney Brian McCormick, who handled the case for the plaintiff, said Daimler's ruling was more narrow than many defendants have argued, and Kearney's decision should provide some guidance for plaintiffs looking to challenge those arguments.
"I think the Pennsylvania statute is very clear that if a foreign corporation registered in the commonwealth it is subject to jurisdiction in Pennsylvania courts. Other states where the statute may not be as clear, they would have to do an examination of how the statute and consent applies in those states," McCormick said. "If I were a defendant now, trying to argue there was no personal jurisdiction, but I'm registered in the commonwealth, I wouldn't have a lot of confidence in that argument."
Kearney's ruling came down Sept. 20 in Bors v. Johnson & Johnson—a suit over talcum powder's alleged link to ovarian cancer. The decedent, Maureen Milliken, had bought and used the baby powder in Pennsylvania, but Imerys is a Delaware corporation, with its principal place of business in California. Aside from registering to do business in Pennsylvania, the company had no connection with Pennsylvania, such as a phone number, bank account, address or distribution point within the state.
Imerys challenged the decision to sue in Pennsylvania, arguing that simply registering in the state is not enough for personal jurisdiction after Daimler.
Kearney, however, pointed to the Third Circuit's 1991 decision Bane v. Netlink, and said the crux of that holding withstood the considerations outlined in Daimler.
He further noted that, although courts within the circuit have seen different outcomes regarding whether "jurisdiction by consent" violates due process concerns raised in Daimler and the Third Circuit has not yet addressed the question, the Pennsylvania statute clearly notifies defendants about the possibility of being subjected to suits in the jurisdiction.
"Consent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler," Kearney said. "The Supreme Court did not eliminate consent."
According to both plaintiffs and defense attorneys, defendants have ramped up jurisdictional challenges in the wake of Daimler, but attorney Thomas R. Kline, who often represents plaintiffs in mass tort cases, said Kearney's decision shows that courts are still willing to examine the minutia of the issues.
"It goes back to the basic proposition that the courts must look at the underlying facts of each of these individual cases and not have a knee-jerk reaction to defense motions," Kline said. "The initial overreach to Daimler was that it will be a presumptive pre-emption of plaintiff's choice of jurisdiction, and what we have found is that trial courts are willing to look at the granulate level of the factual basis for jurisdiction, and that is encouraging."
Gordon & Rees attorney James E. Robinson handled the case for Imerys and did not return a call seeking comment. April Byrd of Shook, Hardy & Bacon is handling the case for J&J. A spokeswoman with J&J did not return a message seeking comment.
Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.
http://www.thelegalintelligencer.com/id=1202768714870/Plaintiffs-Chalk-Up-Jurisdictional-Win-in-Pa-Talc-Case?mcode=1202615465415&curindex=2&curpage=ALL
Client Attorney Privileged/Attorney Work Product/At Request of Counsel
US Coverage
Add recipients
Suggested