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Where Do I File My Mass Tort Case?

Dwan Smith

By Dawn M. Smith

As I reflect on my recent trip to the birthplace of the American Revolution, Boston, Massachusetts, for the annual American Association for Justice Convention, I can’t help but focus on one thing that I heard an amazing trial lawyer, Greg Cusimano, say during his presentation on juror bias– “Do you think jurors trust you? … Really, are you sure about that?” This got me thinking. In the context of what we do, on every level, we must establish trust to win justice for our clients. But how do we do that when jurors walk in the court room suspicious of the entire process, especially our motives for being there? Whether we are trying a soft-tissue case or a mass tort impacting hundreds of clients, we take our jurors as we find them with all they have heard and learned before they step foot into the court room to decide our client’s fate. In the era of President Trump and “fake news” we must embrace these suspicions and not hide from them. Take a look at the website judicialhellholes.org by the American Tort Reform Association (ATRA) to get a sense of certain jurisdictions and the impact they may have on your case. In the realm of mass-tort litigation nothing can be more important than jurisdiction. Thus, if you are involved in mass-tort litigation it is imperative you are knowledgeable about recent changes in the law that impact where to file and how to structure your multi-plaintiff litigation.

The recent U.S. Supreme Court decision in Bristol-Myers Squibb v. Superior Court of California 137 S.Ct. 1773 (June 19, 2017) is consistent with the court’s ruling in May of this year, BNSF Railway Co. v. Tyrell 137 S.Ct. 1549 (May 30, 2017), which reaffirmed certain limitations on state-court jurisdiction.These rulings expanded the jurisdictional limitations set forth in Daimler AG v. Bauman 134 S.Ct. 746 (2014) where the court severely limited state-court jurisdiction under a general jurisdiction analysis.

Bristol-Meyers involved hundreds of individual plaintiffs from 33 states including 86 from California, who filed suit for injuries related to the drug Plavix. The court reversed the Supreme Court of California holding that even though the manufacturer had extensive contacts with California, its contacts had little to do with the individual plaintiffs’ claims. The only way the nonresidents’ claims related to the California plaintiffs was based upon Bristol-Meyers’ national marketing campaign. The court engaged in the standard jurisdictional analysis and made findings as to general and specific jurisdiction. Daimler AG significantly limited the parameters of general jurisdiction so that a corporation’s “pervasive” contacts with a particular state will usually be limited to a corporation’s home state. Based upon Daimler AG, the justices agreed California could not assert general jurisdiction over Bristol- Myers. The Court then went on to its specific jurisdiction analysis. The California Supreme Court found specific jurisdiction based upon Bristol-Meyers’ “substantial contacts” with California, even though the relationship between the nonresidents’ claims and Bristol-Myers’s activities in California was indefinable. The Court ultimately held the California Court’s analysis “resembl[ed] a loose and spurious form of general jurisdiction.” The record supported this finding in that “the nonresident plaintiffs were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California and were not injured by Plavix in California.”

The practical consequences of this further limitation on state-court jurisdiction is far reaching in spite of the court’s reasoning regarding the structure of mass-tort litigation. Yes, as the court announced, there would be nothing to prevent residents and nonresidents from pursuing a consolidated action in the corporation’s home state of Delaware. However, Delaware is certainly not considered a favorable jurisdiction for plaintiffs, as it is a stronghold for corporate America. Uninder the Court’s second scenario, plaintiffs could file separate lawsuits around the country in their state of residency – but at what expense? This would also result in inconsistent rulings, structure and standards for expert testimony. The Court left open the proposition of filing a consolidated action in federal court under a Fifth Amendment analysis for personal jurisdiction analysis. However, federal court is certainly not the preferred jurisdiction of plaintiffs in light of the strict expert standards and procedural hurdles.

In the area of mass torts, a plaintiff may stand toe-to-toe with multibillion-dollar corporations by aligning with other injured plaintiffs in one favorable jurisdiction. With clients all over the country, the ability to anchor our case in the appropriate jurisdiction allows a streamlined more cost-effective process to achieve justice for our clients. Take a look at these recent cases and make sure you are doing everything possible to meet the specific jurisdiction criteria necessary to file your case in the best jurisdiction for your clients.


Dawn Smith is licensed in California and Texas and is the managing partner of Smith Clinesmith in Dallas, Texas. She handles national cases involving toxic exposures, medical negligence and dangerous products. As a child, Dawn’s family inspired her to help others, and a school trip to the Supreme Court directed her to a career in law. Dawn immediately began trying cases after law school in Southern California. After moving home to Texas and managing a docket of 500 asbestos lawsuits, Dawn’s trial team achieved the largest single-plaintiff asbestos verdict in history, $322 million. For more information, contact Dawn at (214) 953-1900 or dawn@smithclinesmith.com.