A Supreme Court pharma case deals consumers a big loss

In the war being waged by large corporations against individual rights — and, yes, it is a war — a potentially decisive battle was recently fought. It will come as little surprise to any informed observer of American society that it was not the little guy who won.

The U.S. Supreme Court case of Bristol-Myers Squibb Co. vs. Superior Court of California, which was decided in favor of BMS in June, may seem like an arcane question of legal jurisdiction. It’s anything but.

The case centered on a drug called Plavix that BMS developed. Plavix, also known by its generic name, clopidogrel, is an anti-platelet used to prevent blood from clotting inside blood vessels. Ever since the drug was approved by the FDA in 1997, thousands of people have claimed that it caused them gastrointestinal bleeding, severe bleeding from relatively minor cuts, and even brain damage.

A group of plaintiffs consisting of 86 California residents and 592 residents from 33 other states, all of whom said they had been harmed by Plavix, sued BMS in state court in California. They did this in an effort to consolidate mass actions into one jurisdiction. Cynically, but shrewdly, BMS challenged the case not on the merits of the claims leveled against it but on the basis that it would not be fair to BMS for the state court in California to hear the cases against the company because the nonresidents did not consume the drug in California and the drug was not designed, manufactured, or marketed to them in the state.

Even though the company had significant business activities in California, as well as sales of Plavix and other drugs, a contract with a California distributor to distribute Plavix nationally, and employed hundreds of people in the state, BMS argued that California state courts could not exercise “personal jurisdiction” over the company for claims brought on behalf of people who lived, used Plavix, and were allegedly injured by the drug outside of California.

The Supreme Court’s ruling in favor of BMS is a staggering blow for millions of Americans harmed each year by the reckless and abusive behavior of pharmaceutical companies. The decision raises an almost insurmountably high hurdle between victims and their hopes for obtaining justice in state courts throughout the country.

By foreclosing to plaintiffs’ state court venues other than those where these companies are “at home” — generally meaning where they are headquartered or incorporated — the Supreme Court has placed an almost impossible burden on state court litigants. They will now be forced to sue in far-off courts, convince experts to travel out of state to testify, and shuttle between their home states and wherever the drug company is at home. Their alternative will be pursing claims in federal court — but still also likely in a different state — where they will be subject to different laws, rules, and standards to prove their claims.

Beyond the damage this does to the rights of people seeking redress for wrongs they’ve suffered, the ruling is out of step with the modern, internet-driven, borderless economy where business is conducted fluidly and seamlessly across states, and even across countries. And it creates new complications: What happens in cases involving multiple offenders based in two, three, or more states? Is there one court in which one victim can sue multiple responsible parties, or will she have to bring multiple lawsuits in multiple locations to obtain justice?

You might be tempted to think this is someone else’s problem — that it’s a legal quiddity or a quirk of our system.

But take a step back and you start to see a bigger picture being formed. It’s a picture of a country where individuals are forced to hand over precious rights to sprawling incorporated entities. It’s a picture of a country where massive structural change is occurring one law and one court decision at a time; a country where states’ rights are being stolen by big business and the federal government. It’s not a pretty picture, but it’s one we must all confront.

The court system has traditionally been the last bastion of hope for ordinary people; the place where David can take on Goliath. It’s where they’re given a fair hearing, free from the taint of special interests and the influence of the powers that be. But Americans are losing that stronghold. We must speak up against this damaging trend and demand that people — actual people — count more than, or at least as much as, the lifeless numbers filling America’s corporate accounting books.

Michael S. Burg, J.D., is an attorney; founder of Burg Simpson Eldredge Hersh & Jardine, a Denver-based law firm; and adjunct professor of law at the University of Denver Sturm College of Law.