I

n 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.

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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.

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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.

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  • What this article leaves out – purposefully, as the author has to know better if he is a competent legal professional – is that the Supreme Court did NOT say that no cases could be filed in California. What the Supreme Court said is that the California plaintiffs can bring suit in California for conduct (the drug sales) that occurred in California. Likewise, the Missouri plaintiffs can bring suit in Missouri state court (but not California state court) for their injuries suffered due to conduct that occurred in Missouri.

    Additionally, if the California and Missouri (and all other) plaintiffs want to sue as a group they can all bring suit in either Delaware (place of incorporation) or New York (HQ) state courts. Further, all plaintiffs could bring suit in Federal court and try to gain class certification – although question of proper venue may have the transferred to another District.

    This article grossly miss-states what the Supreme Court actually said, and if the author truly believes what he wrote he should maybe audit a basic Civ Pro class at Sturm this upcoming year for a refresher on Personal/Specific verses General Jurisdiction.

    • Wow, I’m not a lawyer nor do I play one on tv; but even I could see this problem with the article right away. I was surprised to see the author is a JD.

  • Yes, this is a huge problem but thankfully the Supreme Court has fixed it.

    Under the rules favored by the “Trial Lawyers” a plaintiff can file suit in any jurisdiction, even if there is no connection between the location and any of the facts in the case. For example, this class of lawyer wants to be able to file suit in Nebraska even though all the events of the case took place in Texas, and the plaintiff lives in Maryland and the defendant lives in California. Simply because they like the laws in Nebraska. This is known as “venue shopping” and is something that should be eliminated.

    The Supreme Court decision emphasizes that there must be SOME connection between the venue chosen and the facts of the case. If there was any connection between the facts of the case and California, the author might have a point. But since not every plaintiff lives in California, there is no connection between the suit and California. The only thing that is in common is the state in which the corporation is incorporated. The author wails about being forced to file suit in a “far off place”, however, this is already the case. The vast, vast majority of those who filed suit in this case DO NOT live or have any connection with California. Therefore, there is absolutely no reason that the suit should have been filed in California in the first place. If all the plaintiffs live in one state, then they should be able to file suit in that state. Otherwise, the cases should be broken up so that plaintiffs are only from one state, or the suit should be filed in the only state that they have in common – the home of the defendant.

    A very reasonable decision and one that is long overdue.

  • Your summary leaves me awestuck as I think of the apparent conflict with the hallmark House of Lords decision in Donoghue v Stevenson 1932.

  • It might be worth noting that the Supreme Court decision was 8-1, with Justice Sotomayor dissenting. As the decision notes, “The Court’s decision will not result in the parade of horribles that respondents conjure up.”

    • Brett —

      Just wanted to make sure that you saw that Michael Burg’s article is part of First Opinion, STAT’s opinion and perspective (aka op-ed) section.

      Pat Skerrett
      STAT

  • This is yet another example of the corporatocracy in which we currently live. Corporations are people and they own the congress. The Supreme Court has a new member who was illigitimately rammed down our throats by congressmen who have no regard for the constitution. When will it end? When (if) enough people in swing states realize that they’ve put a lemon in the White House. But we’ll still be stuck with Gorsuch for a long time.

  • This is a very bad decision. I say this an an attorney who represents consumers and individuals, governments and whistleblowers in False Claims Act cases and many other causes of action, etc…but I think you are overstating a bit. In nationwide mass actions where injured people reside across the nation, many of those injured were ALREADY outside the state where the claims are being pursued, often being on the other side of the country. And the experts are not necessarily based in the forum where counsel chose to sue either. However, it’s still a big blow to litigation of nationwide mass actions in a favorable forum. The decision does not seem to foreclose litigation in the home forum of the company (where manufacturing takes place and many of the relevant decisions are likely made) even for plaintiffs who don’t live there. But that may not be a favorable forum. It’s also a blow to efficiency and defendants will end up regretting it, as it’s likely to inspire numerous statewide mass actions at the state level on the same conduct. Are manufacturers really going to want to defend different mass proceedings in 13 different states rather than one MDL in federal court? Be careful what you wish for.

    • Why should the plaintiff be allowed to chose a favorable forum? It would probably be best that once a plaintiff files notice of a suit the defendant should be able to pick the forum. That is more equitable.

      “Forum shopping” is probably the greatest evil in the civil justice system.

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