Madison - St. Clair Record

Sunday, September 22, 2019

BMS decision impacts more out of state plaintiffs in Just for Men litigation

By Record News | Sep 26, 2017

EAST ST. LOUIS – U.S. District Judge David Herndon carried out a new Supreme Court decision limiting access of plaintiffs to courts in other states. 

He dismissed 23 plaintiffs in six suits against drug makers Bayer and Janssen on Sept. 22, leaving a single Illinois plaintiff in each suit. 

John Driscoll of St. Louis represents plaintiffs, who allege injuries from blood thinner Xarelto. 

He filed the suits in Madison and St. Clair counties, but defendants removed them to federal court. 

Herndon’s orders follow other recent decisions tossing hundreds of out of state plaintiffs in drug litigation at the Eastern District of Missouri. 

A single defendant in Herndon’s court, Combe Inc., has moved to dismiss 3,966 plaintiffs from 21 suits alleging skin injuries from Just for Men hair products. 

If Herndon dismisses them, litigation would continue for 250 Illinois plaintiffs. 

In the case that the Supreme Court decided in June, 86 California plaintiffs and 592 others sued Bristol-Myers Squibb in California over injuries from heart medicine Plavix. 

California’s Supreme Court found the lower court had specific jurisdiction because of the defendant’s extensive contacts with the state.  

Eight Justices of the U.S. Supreme Court overturned the decision on June 19, as a violation of due process. 

Justice Joseph Alito wrote that the Court recognizes two types of personal jurisdiction, general and specific. 

He wrote that for general jurisdiction, the paradigm forum is an individual’s domicile or an equivalent place for corporations.

“Specific jurisdiction, however, requires the suit to arise out of or relate to the defendant’s contacts with the forum,” he wrote.

“The primary concern in assessing personal jurisdiction is the burden on the defendant.

“Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a state that may have little legitimate interest in the claims in question.

“For a court to exercise specific jurisdiction over a claim there must be an affiliation between the forum and the underlying controversy, principally an activity or an occurrence that takes place in the forum state.

“When no such connection exists, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.” 

He wrote that the California court’s definition of specific jurisdiction “resembles a loose and spurious form of general jurisdiction.” 

He wrote that plaintiffs could still sue together, either in states with general jurisdiction over Bristol-Myers Squibb or in their home states. 

Justice Sandra Sotomayor dissented. 

Eight days later, Eastern Missouri District Chief Judge Catherine Perry dismissed 86 plaintiffs suing Boeringer Ingelheim, maker of blood thinner Pradaxa. 

She wrote that just as in the Bristol-Myers Squibb case, defendants marketed and sold the drug in the forum state but the nonresident plaintiffs didn’t ingest the drug there and didn’t claim to have suffered injuries there. 

“The personal injuries of the non-Missouri plaintiffs have no connection with Missouri,” Perry wrote. 

Eight Missouri plaintiffs remain in the suit, with Mark Niemeyer and Michael Kruse of St. Louis representing them. 

In July and August, Eastern Missouri district judges dismissed 242 more plaintiffs in three drug suits. 

Herndon cited their orders when he dismissed Xarelto plaintiffs, finding he lacked both general and specific jurisdiction under Bristol-Myers Squibb. 

Three days earlier, Combe Inc. had moved to dismiss 3,966 plaintiffs. 

Combe counsel Stephen Strauss of St. Louis wrote, “There are no facts suggesting any of the nonresident plaintiffs purchased Just for Men in Illinois, saw Just for Men advertisements in Illinois, or used Just for Men in Illinois.” 

Driscoll, who represents the Xarelto plaintiffs that Herndon dismissed, represents plaintiffs in seven of the 21 suits against Combe. 

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