Jurisdiction in Product Liability Cases After 2014

Everything you learned in law school about jurisdiction (unless you just graduated) has been turned on its head. In 2014, two Supreme Court decisions radically changed jurisdictional rules, which were in place since the middle of the 20th century. One of the most important considerations for a firm retained in a product liability case is to determine where to file suit. These two recent cases will have immediate, far-reaching consequences for all product liability litigators, plaintiff or defense.

Daimler AG v. Bauman, 134 S.Ct. 746 (2014) and Walden v. Fiore, 134 S.Ct. 1115 (2014) severely restrict jurisdiction over out-of-state defendants, and will add to plaintiffs' already existing problems in product liability cases caused by Twombly-Iqbal (fact-specific pleading) and Daubert (expert evidence) requirements.

Jurisdiction Refresher

There are two kinds of jurisdiction. General jurisdiction permits a state to exercise its power over a defendant domiciled in the state or that is “doing business” in the state. “Doing business” meant defendant engaged in a substantial, continuous, and systematic course of conduct in the state. One could sue such a defendant for any cause of action arising anywhere, even though the cause of action had no connection to the state. Lawyers often refer to general jurisdiction as “doing business” jurisdiction.

In 1945, the Supreme Court expanded jurisdiction to include non-domiciliary corporations. International Shoe Co. v. Washington, 326 U.S. 310 (1945). International Shoe held that jurisdiction could arise when a non-domiciliary defendant, not “doing business” in a state, had “minimum contacts” with the state so long as the maintenance of the suit did not offend “traditional notions of fair play and substantial justice” and the cause of action arose from the defendant's state-connected activity. The “minimum contacts” could even be “some single or occasional acts.”

This type of jurisdiction, which is more often used in product liability cases, is called “long arm jurisdiction” because out-of-state service of process was contemplated. After 1945, states began to pass “long arm statutes” to comport with the due process considerations of International Shoe. Some states provided that long arm jurisdiction would be allowed to the full extent permitted by due process. Others, such as New York, provided a list of activities that would qualify as a “minimum contact” so as to permit jurisdiction, e.g. , tortious acts without the state that cause injury in New York.

The Supreme Court, from time to time, has reminded lawyers that long-arm jurisdiction may not exceed the limits of due process. Thus, one must show that the defendant has purposely availed itself of the privilege of conducting activities in the forum state ( Hanson v. Deckla, 357 U.S. 235 (1958)); the defendant's conduct must be such that he should reasonably anticipate being hauled into court there ( World Wide Volkswagen Corp. v. Woodson , 444 U.S.286 (1980)); or the defendant has purposefully directed his activities at residents of the forum (Burger King v. Rudzewicz' 471 U.S. 462 (1980)). Mere purchases of products in the forum are not sufficient for jurisdiction over an out-of-state manufacturer ( Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408(1984)) and placing a product into the “stream of commerce” may not be sufficient where the cause of action is unrelated to the purchase (Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987) and Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011)).

Daimler v. Bauman

In 2011, the Supreme Court decided Goodyear Dunlop Tires Operations, S.A. v. Brown, supra., in which it held that in order to sue an out-of-state corporation, one would have to show that the corporation is “at home” in the forum state.The decision, by Justice Ginsberg, did not tell us what “at home” meant. We found out in Bauman.

Bauman dealt with claims arising in Argentina and filed in California by Argentine citizens against Daimler Benz, a German entity, for having collaborated with the Argentine government to cause injury and death to Daimler employees. The plaintiffs argued that Daimler's contacts with California subjected it to general jurisdiction, as did having a subsidiary, Mercedes Benz U.S., whose contacts, likewise, gave rise to general jurisdiction that could be imputed to Daimler. (Mercedes Benz U.S. had an office in California and sold $4.6 billion worth of cars and service there.) The district court dismissed, but the Ninth Circuit reversed and held that the theory of agency between the two defendants was sufficient to give California jurisdiction over Daimler. The Supreme Court reversed and decided that $4.6 billion in car sales and a California office was not sufficient for jurisdiction. The Court held, in a decision by Justice Ginsburg, that in order to obtain general jurisdiction over a foreign corporation, the plaintiff had to show that the corporation was “at home” in the state, which she now defined as having been incorporated in the forum or had its principal place of business in that state. The Court also said, even assuming Mercedes Benz U.S. was “at home” in California, that was not sufficient for jurisdiction over Daimler because the latter was neither incorporated there nor had its principal place of business there. The Court left open the door that there might be an exceptional case where a corporation's operations in the forum were so substantial that it was “at home” even though it was not incorporated or had its principal place of business there; however, it stated that the “doing business” rule to uphold general jurisdiction, was insufficient and “unacceptably grasping.” Evidently, the Court believed that it would be unfair to subject a defendant to suit in every state in which it had a sizable sales because that might discourage foreign investment.

The Bauman decision appears to do away with “doing business” as a grounds for general jurisdiction. Even if it can be argued that there still are some situations where a corporation can be “at home” without being incorporated or having its principal place of business, the decision radically changes the American notion of general jurisdiction from a business contacts test to a domicile-based analysis similar to the citizen definition under diversity jurisdiction. (28 USCA 1331). Instead of comparing a foreign defendant's business contacts with the forum, courts now have to compare the relative magnitude of business in different states to determine where a defendant is “at home.” This approach was criticized by Justice Sotomayor in a concurring opinion, and she would have affirmed on the basis that jurisdiction in the case would have been unreasonable in view of the fact that Argentine plaintiffs were suing a German entity for conduct that took place in Argentina with no connection to the United States.

Walden v. Fiore

The Walden case turned specific jurisdiction on its ear. In Walden, the plaintiffs, who were returning to Nevada with their winnings from a poker tournament in Puerto Rico, evidently raised the suspicions of a DEA agent at the Atlanta airport when their hand luggage was checked while changing planes. A local policeman, Walden, filed an affidavit concerning probable cause so that the DEA could test the cash for drug residue. It tested negative. When the plaintiffs returned to Nevada, they sued officer Walden for filing a false affidavit, as well as the DEA for an illegal search and seizure. The lower court upheld jurisdiction over Walden on the theory that fraudulent execution of the affidavit coupled with Walden knowing his conduct might have consequences in Nevada (inability of plaintiffs to use their winnings) was a sufficient connection to warrant jurisdiction. The Supreme Court dismissed the case, saying that Walden's conduct did not connect him to Nevada; only the plaintiffs' conduct of being in Nevada when they wanted to spend the money was a connection. Because Walden's conduct did not purposefully create a substantial claim-related nexus with Nevada, there was no jurisdiction. Walden thus restricts jurisdiction over out-of-state defendants who cause in-state effects where the defendant did not aim to cause any effects within the forum state.

The decision implies that an out-of-state tortious act, such as negligent design of a product, coupled with the foreseeability of the manufacturer that the product may reach a particular state is now insufficient to establish jurisdiction. No longer will a plaintiff who is merely injured in his home state be able to sue an out-of-state manufacturer. Many states' long arm statutes will be nullified, or at least partially nullified, by this decision.

Effect on Product Liability Litigation

First and foremost, plaintiffs will no longer have the luxury to choose the forum best suited for conven- ience and maximum recovery.This limitation will change the valuation of cases because the new jurisdictional limitations may require greater litigation expense if the forum is far from the plaintiff's home state or the lawyer's office. Also, there may even be no forum available in the U.S. if the defendant is a foreign manufacturer that does business through a distributor.

When foreign products fail, the question will now arise as to where their manufacturers are “at home.” Until Bauman, most defendants with extensive sales in any given state probably would not have even contested jurisdiction. But now, with the new “at home” rules of domicile and principal place of business, we will probably see motions addressed to jurisdiction in such cases. In fact, if the multinational merely sends its products to the U.S. for distribution by, for example, Amazon, the manufacturer may not be available for suit anywhere in the U.S. Does this mean that American plaintiffs will have to seek redress in the multinational's home country? The answer may very well be “Yes.” Will bringing the action against the distributor suffice? What discovery will be available in the U.S. concerning the design and testing by a foreign manufacturer if it is not a defendant? Will a distributor of a foreign manufacturer's product be required to produce that information in discovery? If plaintiffs are compelled to undertake discovery using the Hague Convention on Taking Evidence, (assuming the manufacturer is in a country that is a signatory) that will add years of litigation and tremendous costs to do so on foreign soil. In fact, many countries do not even have discovery as we know it, while others prohibit discovery from taking place on their soil.

Some states permit apportionment of damages against non-parties that should have been sued if amenable to jurisdiction. Will this mean that plaintiffs will have to sue foreign manufacturers, even though the plaintiff believes there is probably no jurisdiction in order to avoid apportionment? Plaintiffs' lawyers may have to file in several “back-up” jurisdictions because they will not know if there is valid jurisdiction until the issue is litigated in the first one. We may see a lot of litigation by losing defendants on the issue of jurisdiction against a foreign manufacturer after a verdict. Defendants will want to show there was jurisdiction so they will only have to pay their pro-rata share of the verdict. Plaintiffs will try to prove the non-sued defendant was not amenable to jurisdiction. Thus, litigation on jurisdiction will increase. Such time and expense on an issue unrelated to the merits of the case is wasteful.

Even where manufacturing defendants are available in the U.S., plaintiffs do not like to sue them in their home state. Picking a jury, for example, in New Jersey, with jurors having no connection with someone who works for a pharmaceutical manufacturer is almost unheard of. If every product liability case had to be filed where the defendant is “at home,” it will be more difficult to select impartial jurors.

The triage required to assess the viability of cases when a firm accepts a mass tort claim will be further complicated; when a case comes into the office, the plaintiff may be running up against an impending statute of limitations, especially in those cases where a long time has passed from the use of the product. The plaintiff will have little time to decide where to file the cases. This makes intake of mass tort cases even more problematical than before. And what if there are multiple defendants in a case, each of which is domiciled in a different state? Will the plaintiffs be able to join them in one courthouse or will plaintiffs have to start multiple actions in different states? Will plaintiffs be relegated to use federal courts more often because district courts can transfer whereas state courts cannot?

What of the usual safe harbor of filing in the plaintiff's own state where the product was purchased, used and caused injury? It would seem that the strongest example of specific jurisdiction occurs when the out-of-state defendant causes injury to a plaintiff in his or her home state and the suit is brought there. Do these two cases change that formula? It appears so, because a foreign manufacturer may have sold his product through a distributor in the state, like in Daimler v. Bauman. Even though the manufacturer may sell over $1 billion worth of its products in that state, it may not have targeted the state. Now, it is not sufficient if a manufacturer reasonably foresees its products ending up in any particular state: it has to target that state. How is a firm supposed to decide if it is safe to file the case in the plaintiff's home state without discovery of the parameters now needed to obtain jurisdiction.

Out-of-State Defendants

Can one sue an out-of-state defendant that has filed to do business in a state where foreign corporations are required to file with the Secretary of State in order to transact business? Or where a state requires an out-of-state corporation to appoint an agent for service of process? These situations are now in jeopardy, whereas before 2014, most courts permitted “consent” jurisdiction over such defendants.

Can a state exercise jurisdiction over out-of-state plaintiffs who join plaintiffs from the forum state in an action brought for the same defect? Just such a case arose recently concerning a pharmaceutical, Plavix.

In Bristol-Myers Squibb Co. v. Superior Court, 228 Cal. App. 4th 605 (Ct. of App. 1st Dist. Calif.), plaintiffs from California and other states sued the defendant for the same alleged defect in its product. The defendant conceded jurisdiction for the California resident claims, but moved to dismiss the non-California claims. The court first held that there was general jurisdiction over the defendant; however, after the decision came down in Daimler v. Bauman , it changed its mind and ruled that the court did not have general jurisdiction over the out-of-state plaintiffs' claims. Despite that ruling, the court went on to hold that it had specific jurisdiction over the non-resident claims because the defendant had engaged in substantial, continuous economic activity in California that included sales in excess of $1 billion in that state. That activity, it said, was sufficiently connected to the non-resident claims to permit the court to exercise jurisdiction over them, especially where there are dozens of non-resident plaintiffs rather than just one or two. Although this decision comports with prior case law, it may no longer be valid after Bauman and is currently on appeal to California's Supreme Court.

Conclusion

All of these questions will need answers; however, it does not look like they will be forthcoming very soon. The Walden and Bauman decisions will greatly increase uncertainty in jurisdictional questions for years until the Court comes up with clear guidance. Meanwhile, practitioners should seek to file cases in those states where the defendant is “at home,” i.e. , is incorporated or has its principal place of business or in the state where the plaintiff is otherwise domiciled, assuming that was his place of injury. Plaintiff attorneys should also consider suing the distributor and/or importer on the theory that anyone in the chain of sale is usually a viable defendant in a product liability case.

The best advice for practitioners at this point is to read all cases that will be decided citing Bauman and Walden. I assure you there will be many of them.

Larry Goldhirsch , a member of this newsletter's Board of Editors, is Trial Counsel to Weitz and Luxenberg's Drug and Medical Device Litigation Department.

Everything you learned in law school about jurisdiction (unless you just graduated) has been turned on its head. In 2014, two Supreme Court decisions radically changed jurisdictional rules, which were in place since the middle of the 20th century. One of the most important considerations for a firm retained in a product liability case is to determine where to file suit. These two recent cases will have immediate, far-reaching consequences for all product liability litigators, plaintiff or defense.

Daimler AG v. Bauman , 134 S.Ct. 746 (2014) and Walden v. Fiore , 134 S.Ct. 1115 (2014) severely restrict jurisdiction over out-of-state defendants, and will add to plaintiffs' already existing problems in product liability cases caused by Twombly-Iqbal (fact-specific pleading) and Daubert (expert evidence) requirements.

Jurisdiction Refresher

There are two kinds of jurisdiction. General jurisdiction permits a state to exercise its power over a defendant domiciled in the state or that is “doing business” in the state. “Doing business” meant defendant engaged in a substantial, continuous, and systematic course of conduct in the state. One could sue such a defendant for any cause of action arising anywhere, even though the cause of action had no connection to the state. Lawyers often refer to general jurisdiction as “doing business” jurisdiction.

In 1945, the Supreme Court expanded jurisdiction to include non-domiciliary corporations. International Shoe Co. v. Washington , 326 U.S. 310 (1945). International Shoe held that jurisdiction could arise when a non-domiciliary defendant, not “doing business” in a state, had “minimum contacts” with the state so long as the maintenance of the suit did not offend “traditional notions of fair play and substantial justice” and the cause of action arose from the defendant's state-connected activity. The “minimum contacts” could even be “some single or occasional acts.”

This type of jurisdiction, which is more often used in product liability cases, is called “long arm jurisdiction” because out-of-state service of process was contemplated. After 1945, states began to pass “long arm statutes” to comport with the due process considerations of International Shoe. Some states provided that long arm jurisdiction would be allowed to the full extent permitted by due process. Others, such as New York, provided a list of activities that would qualify as a “minimum contact” so as to permit jurisdiction, e.g. , tortious acts without the state that cause injury in New York.

The Supreme Court, from time to time, has reminded lawyers that long-arm jurisdiction may not exceed the limits of due process. Thus, one must show that the defendant has purposely availed itself of the privilege of conducting activities in the forum state ( Hanson v. Deckla , 357 U.S. 235 (1958)); the defendant's conduct must be such that he should reasonably anticipate being hauled into court there ( World Wide Volkswagen Corp. v. Woodson , 444 U.S.286 (1980)); or the defendant has purposefully directed his activities at residents of the forum ( Burger King v. Rudzewicz ' 471 U.S. 462 (1980)). Mere purchases of products in the forum are not sufficient for jurisdiction over an out-of-state manufacturer ( Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408(1984)) and placing a product into the “stream of commerce” may not be sufficient where the cause of action is unrelated to the purchase ( Asahi Metal Industry Co. v. Superior Court of California , 480 U.S. 102 (1987) and Goodyear Dunlop Tires Operations, S.A. v. Brown , 131 S. Ct. 2846 (2011)).

Daimler v. Bauman

In 2011, the Supreme Court decided Goodyear Dunlop Tires Operations, S.A. v. Brown, supra., in which it held that in order to sue an out-of-state corporation, one would have to show that the corporation is “at home” in the forum state.The decision, by Justice Ginsberg, did not tell us what “at home” meant. We found out in Bauman.

Bauman dealt with claims arising in Argentina and filed in California by Argentine citizens against Daimler Benz, a German entity, for having collaborated with the Argentine government to cause injury and death to Daimler employees. The plaintiffs argued that Daimler's contacts with California subjected it to general jurisdiction, as did having a subsidiary, Mercedes Benz U.S., whose contacts, likewise, gave rise to general jurisdiction that could be imputed to Daimler. (Mercedes Benz U.S. had an office in California and sold $4.6 billion worth of cars and service there.) The district court dismissed, but the Ninth Circuit reversed and held that the theory of agency between the two defendants was sufficient to give California jurisdiction over Daimler. The Supreme Court reversed and decided that $4.6 billion in car sales and a California office was not sufficient for jurisdiction. The Court held, in a decision by Justice Ginsburg, that in order to obtain general jurisdiction over a foreign corporation, the plaintiff had to show that the corporation was “at home” in the state, which she now defined as having been incorporated in the forum or had its principal place of business in that state. The Court also said, even assuming Mercedes Benz U.S. was “at home” in California, that was not sufficient for jurisdiction over Daimler because the latter was neither incorporated there nor had its principal place of business there. The Court left open the door that there might be an exceptional case where a corporation's operations in the forum were so substantial that it was “at home” even though it was not incorporated or had its principal place of business there; however, it stated that the “doing business” rule to uphold general jurisdiction, was insufficient and “unacceptably grasping.” Evidently, the Court believed that it would be unfair to subject a defendant to suit in every state in which it had a sizable sales because that might discourage foreign investment.

The Bauman decision appears to do away with “doing business” as a grounds for general jurisdiction. Even if it can be argued that there still are some situations where a corporation can be “at home” without being incorporated or having its principal place of business, the decision radically changes the American notion of general jurisdiction from a business contacts test to a domicile-based analysis similar to the citizen definition under diversity jurisdiction. (28 USCA 1331). Instead of comparing a foreign defendant's business contacts with the forum, courts now have to compare the relative magnitude of business in different states to determine where a defendant is “at home.” This approach was criticized by Justice Sotomayor in a concurring opinion, and she would have affirmed on the basis that jurisdiction in the case would have been unreasonable in view of the fact that Argentine plaintiffs were suing a German entity for conduct that took place in Argentina with no connection to the United States.

Walden v. Fiore

The Walden case turned specific jurisdiction on its ear. In Walden, the plaintiffs, who were returning to Nevada with their winnings from a poker tournament in Puerto Rico, evidently raised the suspicions of a DEA agent at the Atlanta airport when their hand luggage was checked while changing planes. A local policeman, Walden, filed an affidavit concerning probable cause so that the DEA could test the cash for drug residue. It tested negative. When the plaintiffs returned to Nevada, they sued officer Walden for filing a false affidavit, as well as the DEA for an illegal search and seizure. The lower court upheld jurisdiction over Walden on the theory that fraudulent execution of the affidavit coupled with Walden knowing his conduct might have consequences in Nevada (inability of plaintiffs to use their winnings) was a sufficient connection to warrant jurisdiction. The Supreme Court dismissed the case, saying that Walden's conduct did not connect him to Nevada; only the plaintiffs' conduct of being in Nevada when they wanted to spend the money was a connection. Because Walden's conduct did not purposefully create a substantial claim-related nexus with Nevada, there was no jurisdiction. Walden thus restricts jurisdiction over out-of-state defendants who cause in-state effects where the defendant did not aim to cause any effects within the forum state.

The decision implies that an out-of-state tortious act, such as negligent design of a product, coupled with the foreseeability of the manufacturer that the product may reach a particular state is now insufficient to establish jurisdiction. No longer will a plaintiff who is merely injured in his home state be able to sue an out-of-state manufacturer. Many states' long arm statutes will be nullified, or at least partially nullified, by this decision.

Effect on Product Liability Litigation

First and foremost, plaintiffs will no longer have the luxury to choose the forum best suited for conven- ience and maximum recovery.This limitation will change the valuation of cases because the new jurisdictional limitations may require greater litigation expense if the forum is far from the plaintiff's home state or the lawyer's office. Also, there may even be no forum available in the U.S. if the defendant is a foreign manufacturer that does business through a distributor.

When foreign products fail, the question will now arise as to where their manufacturers are “at home.” Until Bauman, most defendants with extensive sales in any given state probably would not have even contested jurisdiction. But now, with the new “at home” rules of domicile and principal place of business, we will probably see motions addressed to jurisdiction in such cases. In fact, if the multinational merely sends its products to the U.S. for distribution by, for example, Amazon, the manufacturer may not be available for suit anywhere in the U.S. Does this mean that American plaintiffs will have to seek redress in the multinational's home country? The answer may very well be “Yes.” Will bringing the action against the distributor suffice? What discovery will be available in the U.S. concerning the design and testing by a foreign manufacturer if it is not a defendant? Will a distributor of a foreign manufacturer's product be required to produce that information in discovery? If plaintiffs are compelled to undertake discovery using the Hague Convention on Taking Evidence, (assuming the manufacturer is in a country that is a signatory) that will add years of litigation and tremendous costs to do so on foreign soil. In fact, many countries do not even have discovery as we know it, while others prohibit discovery from taking place on their soil.

Some states permit apportionment of damages against non-parties that should have been sued if amenable to jurisdiction. Will this mean that plaintiffs will have to sue foreign manufacturers, even though the plaintiff believes there is probably no jurisdiction in order to avoid apportionment? Plaintiffs' lawyers may have to file in several “back-up” jurisdictions because they will not know if there is valid jurisdiction until the issue is litigated in the first one. We may see a lot of litigation by losing defendants on the issue of jurisdiction against a foreign manufacturer after a verdict. Defendants will want to show there was jurisdiction so they will only have to pay their pro-rata share of the verdict. Plaintiffs will try to prove the non-sued defendant was not amenable to jurisdiction. Thus, litigation on jurisdiction will increase. Such time and expense on an issue unrelated to the merits of the case is wasteful.

Even where manufacturing defendants are available in the U.S., plaintiffs do not like to sue them in their home state. Picking a jury, for example, in New Jersey, with jurors having no connection with someone who works for a pharmaceutical manufacturer is almost unheard of. If every product liability case had to be filed where the defendant is “at home,” it will be more difficult to select impartial jurors.

The triage required to assess the viability of cases when a firm accepts a mass tort claim will be further complicated; when a case comes into the office, the plaintiff may be running up against an impending statute of limitations, especially in those cases where a long time has passed from the use of the product. The plaintiff will have little time to decide where to file the cases. This makes intake of mass tort cases even more problematical than before. And what if there are multiple defendants in a case, each of which is domiciled in a different state? Will the plaintiffs be able to join them in one courthouse or will plaintiffs have to start multiple actions in different states? Will plaintiffs be relegated to use federal courts more often because district courts can transfer whereas state courts cannot?

What of the usual safe harbor of filing in the plaintiff's own state where the product was purchased, used and caused injury? It would seem that the strongest example of specific jurisdiction occurs when the out-of-state defendant causes injury to a plaintiff in his or her home state and the suit is brought there. Do these two cases change that formula? It appears so, because a foreign manufacturer may have sold his product through a distributor in the state, like in Daimler v. Bauman. Even though the manufacturer may sell over $1 billion worth of its products in that state, it may not have targeted the state. Now, it is not sufficient if a manufacturer reasonably foresees its products ending up in any particular state: it has to target that state. How is a firm supposed to decide if it is safe to file the case in the plaintiff's home state without discovery of the parameters now needed to obtain jurisdiction.

Out-of-State Defendants

Can one sue an out-of-state defendant that has filed to do business in a state where foreign corporations are required to file with the Secretary of State in order to transact business? Or where a state requires an out-of-state corporation to appoint an agent for service of process? These situations are now in jeopardy, whereas before 2014, most courts permitted “consent” jurisdiction over such defendants.

Can a state exercise jurisdiction over out-of-state plaintiffs who join plaintiffs from the forum state in an action brought for the same defect? Just such a case arose recently concerning a pharmaceutical, Plavix.

In Bristol-Myers Squibb Co. v. Superior Court , 228 Cal. App. 4th 605 (Ct. of App. 1st Dist. Calif.), plaintiffs from California and other states sued the defendant for the same alleged defect in its product. The defendant conceded jurisdiction for the California resident claims, but moved to dismiss the non-California claims. The court first held that there was general jurisdiction over the defendant; however, after the decision came down in Daimler v. Bauman , it changed its mind and ruled that the court did not have general jurisdiction over the out-of-state plaintiffs' claims. Despite that ruling, the court went on to hold that it had specific jurisdiction over the non-resident claims because the defendant had engaged in substantial, continuous economic activity in California that included sales in excess of $1 billion in that state. That activity, it said, was sufficiently connected to the non-resident claims to permit the court to exercise jurisdiction over them, especially where there are dozens of non-resident plaintiffs rather than just one or two. Although this decision comports with prior case law, it may no longer be valid after Bauman and is currently on appeal to California's Supreme Court.

Conclusion

All of these questions will need answers; however, it does not look like they will be forthcoming very soon. The Walden and Bauman decisions will greatly increase uncertainty in jurisdictional questions for years until the Court comes up with clear guidance. Meanwhile, practitioners should seek to file cases in those states where the defendant is “at home,” i.e. , is incorporated or has its principal place of business or in the state where the plaintiff is otherwise domiciled, assuming that was his place of injury. Plaintiff attorneys should also consider suing the distributor and/or importer on the theory that anyone in the chain of sale is usually a viable defendant in a product liability case.

The best advice for practitioners at this point is to read all cases that will be decided citing Bauman and Walden. I assure you there will be many of them.

Larry Goldhirsch , a member of this newsletter's Board of Editors, is Trial Counsel to Weitz and Luxenberg's Drug and Medical Device Litigation Department.