HARRISBURG – In the lead-up to the Supreme Court of Pennsylvania hearing arguments on Hammons v. Ethicon, Inc. next week, an amicus brief attached to six organizations representing tort reform and business interests in the state says recent U.S. Supreme Court rulings governing personal jurisdiction are being ignored.
Specifically, it says that the Superior Court of Pennsylvania erred a year-and-a-half ago when it conferred specific personal jurisdiction upon Ethicon, a New Jersey-based company, for injuries which occurred in Indiana to a plaintiff also based there, in Patricia Hammons. Doing so allowed Ethicon to be sued in Philadelphia by an out-of-state plaintiff - a controversial ruling in civil justice circles.
The groups might not have high hopes for their arguments, though. The state Supreme Court has sided with personal injury lawyers in two recent decisions that struck down parts of civil justice reforms.
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. That court said businesses consent to be sued in Pennsylvania when they register to do business here - even if they are headquartered somewhere else and even if the plaintiff lives somewhere else.
Another factor that may play a role in the jurisdictional argument is a June 2019 ruling in Sullivan v. A.W. Chesterton, Inc. Et.Al from Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania, which 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”.
Brief Says U.S. Supreme Court Rulings Govern Jurisdiction Argument
Attached to the aforementioned brief are the Pennsylvania Manufacturers Association, Pennsylvania Coalition for Civil Justice Reform, the National Association of Manufacturers, the Pharmaceutical Research and Manufacturers of America, the American Tort Reform Association and the Coalition for Litigation Justice, Inc.
ATRA has already labeled the Philadelphia County Court of Common Pleas as the No. 1 on its list of “Judicial Hellholes”, or legal jurisdictions considered unfriendly to businesses and where they are perceived not to be given a fair shake in court.
The organizations presented an argument that U.S. Supreme Court decisions like Bristol Myers-Squibb Co v. Superior Court of California, Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman, each of which represented change in the due process test to establish personal jurisdiction, were ignored when the Superior Court of Pennsylvania connected Ethicon to its co-defendants, Secant Medical, Inc. and Secant Medical, LLC, a Pennsylvania-based medical device supplier and manufacturer, respectively – and thereby conferred personal jurisdiction to Ethicon in this case.
“A Pennsylvania court’s exercise of specific personal jurisdiction over New Jersey defendants in a claim brought by an Indiana plaintiff for an injury that occurred in Indiana runs directly contrary to recent U.S. Supreme Court rulings that redefined the constitutional boundaries of personal jurisdiction,” the brief argued.
“In a series of unanimous or nearly unanimous decisions, the Court established new standards for personal jurisdiction that significantly limit the states where civil litigation can be filed against businesses with operations and sales in multiple states. Proper application of these principles here is critical to avoiding unconstitutional burdens on litigants, and improperly encumbering Pennsylvania businesses and courts.”
The groups caution that the Superior Court’s “broad theory of jurisdiction” would theoretically cover not only Hammons’s personal injury claim, but “presumably extend to all Prolift product liability cases wherever they arise.”
The organizations on the brief added that keeping personal jurisdiction limited to groups with actual, specific ties to Pennsylvania will “prevent the unfairness that can result from unchecked mass tort litigation and avoid Pennsylvania courts and juries from being inundated with out-of-state lawsuits.”
“If the Court adopts this theory for personal jurisdiction it will harm Pennsylvanians. In today’s interconnected economy, businesses regularly operate, use suppliers, and sell products in multiple states. National manufacturers will have a disincentive to use Pennsylvania businesses if they do not want to be subject to liability here for entire product lines,” according to the brief.
“Further, Pennsylvania courts, juries, and taxpayers will continually be burdened with cases having nothing to do with anyone or anything in their communities. Instead, plaintiffs should pursue their claims in the courts empowered and properly suited to hear them – Indiana or New Jersey in this case. [We] respectfully urge the Court to adhere to the U.S. Supreme Court’s jurisdiction jurisprudence and dismiss these claims.”
Nicholas Vari of K&L Gates in Pittsburgh, co-author of a different amicus brief issued on behalf of the Washington Legal Foundation in Hammons, also 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.”
Now, Pennsylvania’s highest court will consider the question of jurisdiction in the Hammons case.
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