HARRISBURG – The futures of both pelvic mesh lawsuits and the concept of personal jurisdiction in the Commonwealth of Pennsylvania have the potential to be greatly impacted by arguments and a forthcoming decision in the Hammons v. Ethicon case, set to be argued before the state Supreme Court on March 10.
The state Supreme Court has not been making many friends in the business community, with two recent decisions striking down portions of tort reform laws. On April 10 of last year, the court issued a single page-order to approve an appeal from Ethicon, Inc., a manufacturer of pelvic mesh and a subsidiary of Johnson & Johnson, from a prior decision reached in the Superior Court, though only limited to a single point of consideration:
“Whether the due process clause of the Fourteenth Amendment to the United States Constitution and 42 Pa.C.S. Section 5322(c) precludes Pennsylvania from asserting personal jurisdiction over two New Jersey companies in a case brought by an Indiana resident asserting claims under the Indiana Product Liability Act.”
The ruling ties into the pelvic mesh personal injury litigation brought by Indiana-based plaintiff Patricia Hammons against Ethicon, which is based in New Jersey.
Hammons suffered a prolapsed bladder in 2009 and to treat her condition, she had a Prolift-brand mesh device surgically implanted. According to the plaintiff, the mesh’s density led to the build-up and movement of scar tissue, causing erosion to Hammons’ bladder, terrible pain and numerous other symptoms.
The mesh device ultimately failed. As a result, surgeries were necessary to remove the device. However, Hammons claimed that pieces of the device attached themselves to what remained of her bladder and were unable to be extracted.
A Philadelphia jury first awarded Hammons $5.5 million in compensatory damages, and later, punitive damages of $7 million against Ethicon in December 2015. Delay damages in the case were later approved through judicial order.
Ethicon appealed the verdict to the Superior Court, alleging among other things that Hammons failed to state a claim, failed to do so in a timely fashion and that a punitive damages award should have been disallowed.
In June 2018, the Superior Court shot down Ethicon’s appeal and upheld the $12.85 million jury verdict reached in the trial court in an 82-page ruling.
Stabile referred to the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California when he ruled on behalf of the Superior Court that the connection between Ethicon and Pennsylvania was “considerably stronger” than the one between Bristol-Myers Squibb and the state of California.
In Bristol-Myers Squibb, the U.S. Supreme Court ruled in 2017 that out-of-state plaintiffs are not permitted to bring litigation against companies in venues where the defendants aren’t based or headquartered, or where they have not conducted business relevant to the cause of action.
Furthermore, Stabile spoke of a strong tie between Ethicon and Secant Medical, based in Pennsylvania, to create the pelvic mesh at issue.
“Emails between Ethicon and Secant officials demonstrate that Ethicon repeatedly communicated its requirements for mesh design and development, manufacturing, quality control, testing, and certification to Secant – all issues central to this litigation,” Stabile stated.
“The emails also show that Ethicon employees visited Secant’s plant in Pennsylvania on multiple occasions to observe the mesh production process. This evidence establishes an affiliation between Pennsylvania and Hammons’ cause of action against Ethicon for defective design of the Prolift device.”
Now, Pennsylvania’s highest court will consider how jurisdiction factors into the Hammons case.
Personal Jurisdiction Decisions & Potential Impact On Hammons v. Ethicon
A June 2019 ruling in Sullivan v. A.W. Chesterton, Inc. Et.Al from Judge Eduardo C. Robreno, labeled Pennsylvania’s requirement for out-of-state corporations to both register in and consent to general jurisdiction here as “a statutory scheme” and “unconstitutional”.
The U.S. District Court for the Eastern District of Pennsylvania ruling defied decisions reached in Pennsylvania state and federal courts, and aligned with the landmark U.S. Supreme Court decision in Daimler AG v. Bauman from 2014.
In Daimler, the U.S. Supreme Court decided, barring extraordinary circumstances, conferral of general jurisdiction over an out-of-state defendant would only apply if the corporation in question was “at home,” meaning where it was incorporated or maintained its principal place of business.
But in Pennsylvania, corporations wanting to do in the business in the state are required to register with the Pennsylvania Department of State, as per state law – and that such registration “constitutes a sufficient basis for the exercise of general personal jurisdiction over the foreign corporation.”
Much as in Daimler, it was argued by defendants in the Sullivan case that Pennsylvania’s business registration leading to general jurisdiction-arrangement violated the Fourteenth Amendment’s Due Process Clause.
Robreno agreed, and stated that the U.S. Supreme Court 2014 ruling in Daimler superseded that of the 1991 ruling in Bane v. Netlink, Inc. from the U.S. Court of Appeals for the Third Circuit.
“The Pennsylvania statutory scheme that requires foreign corporations to register to do business and, therefore, to consent to general personal jurisdiction in Pennsylvania, offends the Due Process Clause and is unconstitutional; and (2) The Third Circuit’s pre-Daimler decision in Bane v. Netlink, Inc. finding that, by registering to do business in Pennsylvania, a foreign corporation consents to general personal jurisdiction, is irretrievably irreconcilable with the teachings of Daimler, and can no longer stand.”
Nicholas Vari of K&L Gates in Pittsburgh, co-author of an amicus brief issued on behalf of the Washington Legal Foundation in Hammons, previously offered comment on the matter.
“In many instances, the existence of personal jurisdiction is a fact-intensive inquiry that examines the relationships among the defendant, the jurisdiction, and the claim. The Sullivan opinion makes it clear that, under existing Supreme Court precedents, registration to do business in Pennsylvania, by itself, will not be sufficient to confer personal jurisdiction over an out-of-state resident corporation,” Vari said.
“However, in any particular case, the question of whether personal jurisdiction may still exist will require a further examination into the facts giving rise to the claims at issue, which may qualify for ‘specific’ personal jurisdiction under the Daimler analysis in some circumstances.”
More than 80 cases similar to that of Hammons are currently being contested in the Philadelphia County Court of Common Pleas, and its mass tort program in the Complex Litigation Center.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com