PHILADELPHIA – A notable 2017 U.S. Supreme Court decision intended to limit the practice of forum-shopping has not deterred thousands of plaintiffs from filing pharmaceutical litigation in Philadelphia courts, recently-released statistics show.
Such litigants continue to battle pharmaceutical companies like Johnson & Johnson, in the wake of the U.S. Supreme Court deciding last year that an out-of-state plaintiff couldn’t file suit in California.
In a landmark ruling reached in June 2017, Supreme Court justices ruled 8-1 in favor of Bristol Myers-Squibb, after the company argued plaintiffs living outside California who alleged injury from BMS’s blood thinner Plavix should not be able to sue the company in that state.
The Supreme Court delivered an opinion that, in effect, could spell the end of the all-inclusive view of personal jurisdiction. In the BMS case, Plavix was not designed or made in California, and the company is headquartered in New York – yet, in Pennsylvania, a sizable number of out-of-state plaintiffs still make Philadelphia their venue of choice.
According to James Beck, Senior Life Sciences Policy Analyst for Reed Smith in Philadelphia, “Non-residents can sue in the Philadelphia County Court of Common Pleas if the defendant is either incorporated in Pennsylvania (not very likely) or has a principal place of business in Pennsylvania (more likely).”
Two of the biggest mass tort programs in Philadelphia’s Complex Litigation Center are lawsuits filed over anti-psychotic drug Risperdal, which is produced by Janssen Pharmaceuticals (a Johnson & Johnson subsidiary) and allegedly causes boys to develop breasts, and Xarelto, a blood-thinner made by both Bayer and Johnson & Johnson that allegedly causes bleeding events.
While Johnson & Johnson is based in New Brunswick, N.J., Bayer maintains an in-state headquarters in Pittsburgh – and thus may encounter a challenge in using the BMS decision to refute pharmaceutical litigation.
Pennsylvania, and specifically, the Complex Litigation Center, is one of several jurisdictions that has some appeal to plaintiffs’ lawyers, judging by the numbers.
For the first half of 2018, there were 9,558 total mass tort lawsuits pending, with a whopping 87 percent of them, or 8,318, being pharmaceutical litigation in the programs against Risperdal and Xarelto.
Furthermore, a federal judge in St. Louis ruled last year to dismiss 53 lawsuits against Johnson & Johnson from out-of-state plaintiffs. In that litigation, U.S. District Court Judge Stephen Limbaugh pointed to the BMS decision in determining the plaintiffs in question did not have jurisdiction to bring their claims in the state of Missouri.
As to the possible effect of the BMS decision on lawsuits concerning Risperdal and Xarelto, Janssen spokesperson Kelsey Buckholtz stated the company did not discuss its litigation strategy publicly.
A representative from Bayer was not able to be reached for comment on the implications of the BMS decision.
The Risperdal program has produced a mixture of multimillion-dollar verdicts and defense victories. As of July 1, there were 6,464 Risperdal cases pending in the Philadelphia County Court of Common Pleas, an increase of 916 lawsuits from the total of 5,548 at close to this same time in 2017 – representing a 14 percent increase.
A gigantic litigation spike last year, which resulted in a 185 percent increase in filings, had previously been attributed to the cancelling of tolling agreements on many cases.
Xarelto also saw an increase since last year.
As of July 1, there were 1,854 Xarelto cases pending in the Philadelphia County Court of Common Pleas, as compared to 1,424 at nearly this same time last year. With an additional 430 cases, that accounts for a 23 percent jump.
Out-of-state plaintiffs in the CLC’s pharmaceutical filings now stand at 84 percent, having decreased from a record-high statistic of 94 percent at this same point last year. The figure of 84 percent so far in 2018 is calculated from 652 out-of-state plaintiffs in a total of 778 cases.
Following Risperdal and Xarelto, asbestos litigation has the third-most number of pending lawsuits in Philadelphia’s CLC with 573.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com