United States: Putting The "Specific" Back In Specific Jurisdiction: The Importance Of Claim-By-Claim Jurisdictional Analysis In A Post-BMS Landscape

Last Updated: January 11 2018
Article by James Beck

Today's guest post comes to us courtesy of Dick Dean and Nick Janizeh, both of Tucker Ellis. They've been thinking (as have we all) about the ramifications of the BMS decision on personal jurisdiction, and have come up with some conclusions that we found interesting, and we hope that you do, too. As always, our guest posters are entitled to 100% of the credit (and any blame) for what follows.


In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ("BMS") [ed. note – our post here], the United States Supreme Court concluded that specific jurisdiction must be premised on a defendant's in-state conduct giving rise to a plaintiff's alleged injury. The Court explained that plaintiffs therefore could not pursue their claims in a state in which they did not reside or in which they were not injured if a defendant conducted no activity in that state connected to the injury. That other in-state plaintiffs may be advancing similar claims as part of a coordinated proceeding did nothing to change this analysis.

BMS signaled the end of litigation tourism wherein non-resident plaintiffs could tack their claims onto another state's mass coordinated proceeding. Or so it seemed. Recently, a trio of decisions from state courts have distinguished BMS and permitted out-of-state plaintiffs who were not injured in the forum state to prosecute their claims in that forum. As explained below, the court in each case nevertheless found jurisdiction over non-resident defendants by pointing to a "connection" to the defendants' conduct within the forum state.

In the DePuy ASR Hip" Systems Cases, a California court permitted a Connecticut resident who was implanted with a hip replacement device in Connecticut, had the device removed in Connecticut, and received follow-up care in Connecticut to advance her claims (which included design, warning, and manufacturing defect) in California. DellaCamera v. DePuy Orthopaedics, Inc., No. CGC-11-509600, at 3 (Cal. Super. Ct. Nov. 1, 2017). Even given all these Connecticut connections, the court found specific jurisdiction as to DePuy (a non-California corporation) on the basis that the defendant had "collaborate[d]" with two California-resident doctors on the design of the hip implant. Id. at 5. The court found that this "distinguishe[d] the case from the situation in BMS, where the U.S. Supreme Court found that the nonresident defendant did not develop, manufacture, label, package, or create a marketing strategy for the drug in the forum state, and where it was not alleged that the nonresident defendant engaged in relevant acts together with the California resident defendant." Id. at 6-7.

A Missouri state court issued the second decision as part of the talcum-powder, ovarian-cancer litigation. Even after another talc case involving an out-of-state resident was thrown out of Missouri state court just a month prior for want of personal jurisdiction (Fox v. Johnson & Johnson, No. ED104580, 2017 WL 4629383, at *2-3 (Mo. Ct. App. Oct. 17, 2017) [ed. note – our post here], the court denied the non-resident defendants' motion to dismiss a Virginia plaintiff's claims and instead decided to preserve a $110.5 million jury verdict in favor the out-of-state plaintiff (see Slemp v. Johnson & Johnson, No. 1422-CC09326-02, at 11-12 (Mo. Cir. Ct. Nov. 29, 2017)). The defendants argued that there was no personal jurisdiction because the plaintiff purchased and used the products and developed cancer in Virginia, not Missouri. Id. at 3. But the court nevertheless found jurisdiction, stating that, "by contrast [to BMS], there is evidence [here] that Defendants' conduct giving rise to Plaintiffs' claims occurred in Missouri. Plaintiffs allege that Defendants engaged in relevant acts within the state of Missouri, including enlisting a Missouri company, PTI Union, LLC, to manufacture, mislabel, and package . . . the very products which caused injury to the Plaintiffs." Id. at 6-7. Put differently, the court found jurisdiction over the named defendants because of a contractual relationship they had with an in-state manufacturer who was not a named party in the case. See id.

Finally, the Philadelphia Court of Common Pleas found jurisdiction over all but one of the 71 cases currently pending before it as part of Pennsylvania's pelvic mesh mass tort program. See Order, In re: Pelvic Mesh Litig., No. 829, at 1 (Phila. Ct. Comm. Pleas Dec. 4, 2017); "Pa. Judge Affirms Jurisdiction On Out-Of-State Mesh Cases," Law360 (Dec. 5, 2017). The court issued a one-page order dismissing the lone Prolift +M case from the program because the Prolift +M product did not "touch" Pennsylvania in any way during its manufacturing process. By contrast, a Pennsylvania company had one—albeit small—role in the manufacturing process for the products at issue in the other 70 cases. Specifically, that company wove together filaments of mesh, which had been made in other states, and then sent the woven mesh out of state for further processing. Notably, however, that company had been dismissed from the litigation pursuant to the Biomaterials Access Assurance Act, 21 U.S.C. §§ 1601, et seq. before this jurisdictional challenge was advanced.

These three decisions are examples of state courts finding jurisdiction over non-resident plaintiffs' product liability claims so long as it can be shown that the product was somehow designed or manufactured in state. Moreover, the entity responsible for the design or manufacture—as was the case in the talc and mesh litigations—need not even be a named defendant. But the Supreme Court did not go that far. In BMS, the Supreme Court found that a contractual relationship between a non-resident drug manufacturer and an in-state named co-defendant that distributed the drug was insufficient to find specific jurisdiction over the out-of-state manufacturer. 137 S. Ct. at 1783.

Assuming there can be personal jurisdiction based on contractual relationships with third parties not named as defendants, there is a more basic flaw in these opinions. Just because there is specific jurisdiction over one claim (e.g., design defect), that is insufficient to find specific jurisdiction over all claims (e.g., warning claims, breach of warranty claims, and the laundry list of other claims that is usually appended to complaints against the pharmaceutical industry). Several federal circuits have adopted this claim-by-claim standard. See, e.g., Remick v. Manfredy, 238 F.3d 248, 256-60 (3d Cir. 2001) (conducting specific-jurisdiction analysis as to each individual cause of action); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) ("Personal jurisdiction must exist for each claim asserted against a defendant." (emphasis added)). So too have several state courts. See, e.g., Blume Law Firm PC v. Pierce, 741 N.W.2d 921, 925 (Minn. Ct. App. 2007) ("When multiple claims are raised, personal jurisdiction must be established for each claim."); Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013) ("[S]pecific jurisdiction requires us to analyze jurisdictional contacts on a claim-by-claim basis."). And it has even been applied in the products liability context. See, e.g., Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 (5th Cir. 2006) ("[P]laintiff bringing multiple claims that arise out of different forum contacts must establish specific jurisdiction for each claim." (emphasis added)); see also id. (noting that plaintiff brought four claims—defective design, failure to warn, negligence, and negligence per se—and explaining that only the design claim arose out of defendant's contacts with the forum state, the other three did not); In re Testosterone Replacement Therapy Prods. Liab. Litig., 164 F. Supp. 3d 1040, 1048-49 (N.D. Ill. 2016) (citing Seiferth); Novy v. C.R. Bard, Inc., No. 16-cv-02853, 2016 WL 6393596, at *4-5 (D. Ariz. Oct. 28, 2016) ("Plaintiffs argue that out-of-state Plaintiffs 'do not have to separately establish personal jurisdiction for each claim as though they were in a vacuum.' . . . This Court does not agree.").

Admittedly, the three cases discussed in this post present unique examples and do not permit much wiggle room to evade the thrust of BMS—especially in the drug and device sphere (after all, in how many states is a drug designed or components of a device manufactured?). But they all fail to address well recognized due process considerations that were not in play in BMS. That is, specific jurisdiction must be considered on a claim-by-claim basis. This is well recognized in the pre-BMS case law and should not be forgotten in the post-BMS landscape.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

James Beck
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions