HARRISBURG – A landmark U.S. Supreme Court ruling on the concept of specific jurisdiction in 2017 did not guide the Supreme Court of Pennsylvania, when it affirmed a $12.85 million damages award in a pelvic mesh injury matter against a Johnson & Johnson subsidiary.
In Hammons v. Ethicon, Inc., state Supreme Court justices ruled 6-1 that the Commonwealth of Pennsylvania could exercise jurisdiction over the case brought by Indiana plaintiff Patricia Hammons, which has the potential to affect countless injury cases brought against out-of-state companies.
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.
In its first time analyzing the matter with regards to jurisdiction, the six-justice majority did not think the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court of California governed the instant injury case.
In Bristol-Myers-Squibb, a ruling lauded by companies facing injury claims, it was decreed that out-of-state plaintiffs are not permitted to sue companies where the defendants are not “at home” or haven’t done business.
But according to the majority here, the Court’s focus should be on the defendant’s conduct and how it was connected to the present jurisdiction – as Ethicon had partnered with a company based in Bucks County, Secant Medical, to create the allegedly-defective mesh at issue.
State Supreme Court Justice Max Baer spoke for the majority.
“We conclude that the court in Bristol-Myers Squibb did not reject its prior phrasings of specific personal jurisdiction, but rather incorporated the broader terminology emphasizing the connections between the controversy, litigation, or suit and the defendant’s actions in the forum state,” Baer said.
“Accordingly, absent further clarification from the high court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs. Instead, we look more broadly to determine whether the case as a whole establishes ties between the defendant’s actions in the forum state and the litigation.”
Baer added that Ethicon’s connection to Secant Medical was enough to apply jurisdiction.
“As has been noted, Ethicon contracted for Secant to produce the mesh, which involved Ethicon shipping its proprietary filament to Secant’s Bucks County facilities to be knit according to Ethicon’s detailed specifications and later certified as having met those specifications, before being shipped back to Ethicon,” Baer stated.
“The process also necessitated site visits by Ethicon employees and multiple communications between those employees and representatives of Secant to ensure that the production process, and ultimately the mesh, met Ethicon’s requirements.”
Justices Debra Todd, Christine Donohue, Kevin Dougherty, David Wecht and Sallie Updyke Mundy concurred with Baer in the majority. Donohue authored a separate, concurring opinion in which she was joined by Wecht.
Supreme Court of Pennsylvania Chief Justice Thomas G. Saylor offered a dissenting opinion, arguing that the Bristol-Myers Squibb decision should in fact have governed the Hammons case.
“I believe that controlling precedent is to be discerned from developmental accretions in the decisional law, attributing due and substantial weight to pronouncements made in the most recent decision. The fact that a single justice has found the majority’s rationale to be flawed does not seem to me to be a proper basis to support a dilution of its precedential holding,” Saylor said.
“Here, the latest, controlling decision of the Supreme Court of the United States on the issue of specific jurisdiction indicates that an ‘adequate link’ between a defendant’s in-state conduct and a plaintiff’s injury is needed to support specific jurisdiction. ‘What is needed,’ the Supreme Court has plainly specified, ‘is a connection between the forum and the specific claims at issue.”
An Ethicon spokesperson agreed with Saylor.
“As mentioned in the dissenting opinion of Chief Justice Saylor, under United States Supreme Court precedent an ‘adequate link’ between a defendant’s in-state conduct and a plaintiff’s injury is needed to support specific jurisdiction, and there was no such linkage in this case. We’re disappointed with the decision and are considering our options,” Mindy Tinsley said.
The American Tort Reform Association also took the state Supreme Court to task for its ruling.
“The U.S. Supreme Court held in BMS that the 'bare' decision to contract with a California company to distribute a drug nationally did not provide sufficient basis for jurisdiction in California. Similarly, Ethicon’s link to a Pennsylvania company should not have provided sufficient basis for a Pennsylvania court to decide the case,” ATRA's Bailey Aragon said.
More than 100 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