Bristol-Myers Squibb Co. v. Superior Court of San Francisco County ( 2016 )

Filed 8/29/16
IN THE SUPREME COURT OF CALIFORNIA
BRISTOL-MYERS SQUIBB COMPANY, )
)
Petitioner, )
) S221038
v. )
) Ct.App. 1/2 A140035
THE SUPERIOR COURT )
OF SAN FRANCISCO COUNTY, )
) San Francisco County
Respondent; ) Super. Ct. JCCP No. 4748
)
BRACY ANDERSON et al., )
)
Real Parties in Interest. )
____________________________________)
Bristol-Myers Squibb Company (BMS), a pharmaceutical manufacturer,
conducts significant business and research activities in California but is neither
incorporated nor headquartered here. In March 2012, eight separate amended
complaints were filed in San Francisco Superior Court by or on behalf of 678
individuals, consisting of 86 California residents and 592 nonresidents, all of
whom allegedly were prescribed and ingested Plavix, a drug created and marketed
by BMS, and as a result suffered adverse consequences. BMS contests the
propriety of a California court‘s exercising personal jurisdiction over it for
purposes of adjudicating the nonresident plaintiffs‘ claims.
Under the particular circumstances present here, we conclude personal
jurisdiction is authorized by Code of Civil Procedure section 410.10, which
SEE DISSENTING OPINION
extends jurisdiction to the maximum extent permissible under the United States
Constitution. Although BMS‘s business contacts in California are insufficient to
invoke general jurisdiction, which permits the exercise of jurisdiction over a
defendant regardless of the subject of the litigation, we conclude the company‘s
California activities are sufficiently related to the nonresident plaintiffs‘ suits to
support the invocation of specific jurisdiction, under which personal jurisdiction is
limited to specific litigation related to the defendant‘s state contacts. (See Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446 (Vons).)
Accordingly, we affirm the judgment of the Court of Appeal, which held
that BMS was subject to the personal jurisdiction of the California courts on the
basis of specific jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
BMS manufactures Plavix, a prescription drug used to inhibit blood
clotting. In the eight amended complaints filed in the superior court, 86 California
residents and 592 residents of 33 other states sued BMS and McKesson
Corporation, a pharmaceutical distributor headquartered in California, for injuries
allegedly arising out of their use of Plavix.1 The state in which the largest number
of plaintiffs reside is Texas, with 92 plaintiffs, followed by the 86 California
plaintiffs, followed by Ohio, with 71 plaintiffs.
Each amended complaint contains the same 13 causes of action: strict
products liability (based on both design defect and manufacturing defect);
negligence; breach of implied warranty; breach of express warranty; deceit by
1 A ninth case, filed in Santa Clara Superior Court by the County of Santa
Clara against defendants was also joined with the other eight cases and assigned to
a coordination trial judge of the San Francisco Superior Court. The complaint
filed in that matter is not in the record before us nor is it a subject of dispute
among the parties as to matters of personal jurisdiction.
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concealment (Civ. Code, §§ 1709, 1710); negligent misrepresentation; fraud by
concealment; unfair competition (Bus. & Prof. Code, § 17200); false or misleading
advertising (Bus. & Prof. Code, § 17500); injunctive relief for false or misleading
advertising (Civ. Code, § 1750 et. seq.); wrongful death; and loss of consortium.
The plaintiffs allege that defendants engaged in ―negligent and wrongful
conduct in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, distribution, labeling, and/or sale of Plavix.‖
According to the complaints, defendants allegedly promoted the drug to
consumers and physicians by falsely representing it ―as providing greater
cardiovascular benefits, while being safer and easier on a person‘s stomach than
aspirin,‖ but defendants knew those claims were untrue because ingesting Plavix
allegedly involves ―the risk of suffering a heart attack, stroke, internal bleeding,
blood disorder or death [which] far outweighs any potential benefit.‖
Plaintiffs allege different injuries, and sometimes combinations of injuries,
which they claim were caused from the ingestion of Plavix. These injuries include
bleeding, bleeding ulcers, gastrointestinal bleeding, cerebral bleeding, rectal
bleeding, heart attack, stroke, hemorrhagic stroke, subdural hematoma, thrombotic
thrombocytopenic purpura, and death. The complaints allege that 18 of the 678
individuals whose injuries underlay these actions died as the result of ingesting
Plavix.
The actions were assigned as a coordinated matter to a judge of the San
Francisco Superior Court.
BMS moved to quash service of summons on the ground that the court
lacked personal jurisdiction over it to adjudicate the claims of the 592 nonresident
plaintiffs, who are real parties in interest in this proceeding (hereafter referred to
as ―the nonresident plaintiffs‖). BMS noted that the complaints‘ allegations do not
3
include any factual claims that the nonresident plaintiffs‘ injuries occurred in
California or that they had been treated for their injuries in California.
In declarations supporting the motion, BMS officers stated that the
company is incorporated in Delaware, is headquartered in New York City, and
maintains substantial operations in New Jersey, including major research and
development campuses. BMS has approximately 6,475 employees in the New
York and New Jersey area, comprising 51 percent of its United States workforce.
BMS further asserted that its research and development of Plavix did not
take place in California, nor was any work related to its labeling, packaging,
regulatory approval, or its advertising or marketing strategy performed by any of
its employees in this state. BMS has never manufactured Plavix in California.
These activities were instead performed or directed from the company‘s New
York headquarters and New Jersey operating facilities. According to data
provided by the company, in a 12-month period ending in July 2012, BMS‘s sales
revenue from Plavix sales in California constituted 1.1 percent of the company‘s
total nationwide sales revenue of all of its products.
But the declarations submitted by BMS also disclosed that the company
maintains substantial operations in California, including five offices that are
primarily research and laboratory facilities employing approximately 164 people.
BMS additionally employs approximately 250 sales representatives in the state.
BMS also has a small office in Sacramento to represent and advocate for the
company in state government affairs.
In opposition to the motion to quash, plaintiffs submitted materials showing
that BMS sold almost 187 million Plavix pills to distributors and wholesalers in
California in 2006-2012, with sales revenue of almost $918 million. Furthermore,
plaintiffs noted that BMS maintains a registered agent for service of process in
California.
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The superior court denied BMS‘s motion to quash service of summons,
concluding the company‘s sales and other activities in California were sufficiently
extensive to subject it to the general jurisdiction of the state courts.
BMS petitioned the Court of Appeal for a writ of mandate, naming the
nonresident plaintiffs as real parties in interest. The Court of Appeal first
summarily denied the petition on the same day as the United States Supreme Court
announced its decision in Daimler AG v. Bauman (2014) 571 U.S. ___ [134 S.Ct.
746] (Daimler), which clarified limits on general jurisdiction. We granted review
and transferred the matter back to the Court of Appeal for issuance of an order to
show cause in light of Daimler. After briefing and oral argument, the Court of
Appeal again denied the writ, this time by an opinion holding that BMS‘s
activities in California were insufficient to subject it to general jurisdiction in the
state, but that, given the nature of the action and BMS‘s activities in California,
our courts may properly exercise specific jurisdiction over BMS in this matter.
We granted BMS‘s petition for review, requesting briefing on both types of
personal jurisdiction, general and specific.
II. DISCUSSION
Under Code of Civil Procedure section 410.10, California courts ―may
exercise jurisdiction on any basis not inconsistent with the Constitution of this
state or of the United States.‖ ―The Due Process Clause of the Fourteenth
Amendment constrains a State‘s authority to bind a nonresident defendant to a
judgment of its courts.‖ (Walden v. Fiore (2014) 571 U.S. ___, ___ [134 S.Ct.
1115, 1121].) ―Due process limits on the State‘s adjudicative authority principally
protect the liberty of the nonresident defendant — not the convenience of plaintiffs
or third parties.‖ (Id. at p. ___ [134 S.Ct. at p. 1122].)
Under the federal Constitution, a court exercising jurisdiction over a
nonresident defendant comports with due process as long as the defendant ―has
5
such minimum contacts with the state that the assertion of jurisdiction does not
violate ‗ ―traditional notions of fair play and substantial justice.‖ ‘ ‖ (Vons, supra,
14 Cal.4th at p. 444, quoting International Shoe Co. v. Washington (1945) 326
U.S. 310, 316 (International Shoe).) Plaintiffs bear the initial burden of proving
state contacts sufficient to justify the exercise of jurisdiction. (Vons, supra, 14
Cal.4th at p. 449.) The jurisdiction of courts to render judgment against a person
is historically grounded in the courts‘ power over the person, originally premised
on a person‘s presence within the territorial jurisdiction of the court.
(International Shoe, supra, 326 U.S. at p. 316.) Because ―the corporate
personality is a fiction,‖ however, a corporation‘s ― ‗presence‘ ‖ in a state must be
determined by the activities of its agents (ibid.), and the demands of due process in
this context ―may be met by such contacts of the corporation with the state of the
forum as make it reasonable, in the context of our federal system of government,
to require the corporation to defend the particular suit which is brought there.‖
(Id. at p. 317.)
In some cases, the corporation‘s continuous activities within the state have
been found ―so substantial and of such a nature as to justify suit against it on
causes of action arising from dealings entirely distinct from those activities.‖
(International Shoe, supra, 326 U.S. at p. 318.) This has become known as
―general,‖ or ―all-purpose,‖ jurisdiction. (Daimler, supra, 571 U.S. ___ [134 S.Ct.
746, 751, 754].)
In other circumstances, where the company‘s activities in the forum state are
more limited, general jurisdiction may be lacking but jurisdiction may nonetheless
be proper because the litigation is derived from obligations that ―arise out of or are
connected with the [company‘s] activities within the state.‖ (International Shoe,
supra, 326 U.S. at pp. 319, 320.) This has become known as ―specific,‖ or ―case-
linked,‖ jurisdiction. (Daimler, supra, 571 U.S. at p. ___ [134 S.Ct. at pp. 751,
6
754]; Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. ___, ___
[131 S.Ct. 2846, 2851] (Goodyear).)
―When a defendant moves to quash service of process on jurisdictional
grounds, the plaintiff has the initial burden of demonstrating facts justifying the
exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with
the forum state are established, however, it becomes the defendant‘s burden to
demonstrate that the exercise of jurisdiction would be unreasonable. [Citation.]
When there is conflicting evidence, the trial court‘s factual determinations are not
disturbed on appeal if supported by substantial evidence. [Citation.] When no
conflict in the evidence exists, however, the question of jurisdiction is purely one
of law and the reviewing court engages in an independent review of the record.‖
(Vons, supra, 14 Cal.4th at p. 449.)
Although the briefing and record at the trial court did not have the benefit of
being informed by the high court‘s decision in Daimler, there appears to be no
material factual conflicts nor any dispute over any factual findings in the superior
court. We, therefore, consider the possible exercise of each type of jurisdiction as
a matter of law and on the undisputed facts.
A. General Jurisdiction
1. Case law concerning general jurisdiction
The landmark 1945 decision of the United States Supreme Court in
International Shoe, supra, 326 U.S. 310, serves as the starting point of modern
jurisprudence concerning general jurisdiction. Although the high court resolved
that case under a specific jurisdiction theory, it also described general jurisdiction
as embracing ―instances in which the continuous corporate operations within a
state were thought so substantial and of such a nature as to justify suit against it on
causes of action arising from dealings entirely distinct from those activities.‖
7
(International Shoe, supra, 326 U.S. at p. 318.) Subsequent to International Shoe,
the high court has addressed the concept of general jurisdiction in only a handful
of cases.
In Perkins v. Benguet Mining Co. (1952) 342 U.S. 437 (Perkins), the high
court concluded that a company that had temporarily ceased mining operations
abroad and had relocated its limited corporate activities to Ohio could be sued in
Ohio on a cause of action unrelated to its Ohio corporate activities. (Id. at
pp. 447-448.) In Perkins, because of the wartime Japanese occupation of the
Philippine Islands, a Philippine corporation had ceased mining operations on all its
properties there, but it maintained limited corporate activities through its president
and principal shareholder who had relocated to Ohio. A shareholder then sued the
company in Ohio for unpaid dividends and for its failure to issue her certificates
for her shares of stock. The high court applied the standard set forth in
International Shoe and concluded that the president‘s business activities through
his home in Ohio reflected ―a continuous and systematic supervision of the
necessarily limited wartime activities of the company.‖ (Perkins, supra, 342 U.S.
at p. 448.)
The high court in Perkins explained that after the company‘s mining
operations ceased due to the occupation, the president of the company returned to
his residence in Ohio. He kept a home office there, maintaining the company‘s
files. From that office he ―carried on correspondence relating to the business of
the company and to its employees,‖ drew and distributed salary checks on behalf
of the company, used and maintained two active Ohio bank accounts carrying
substantial balances of the company‘s funds, retained another Ohio bank to act as
transfer agent for the stock of the company, held several directors‘ meetings in his
home or home office, ―supervised policies dealing with the rehabilitation of the
corporation‘s properties in the Philippines‖ from his Ohio home office, and
8
dispatched funds from Ohio to cover purchases of machinery for such
rehabilitation. (Perkins, supra, 342 U.S. at p. 448.)
The high court observed that although ―no mining properties in Ohio were
owned or operated by the company, many of its wartime activities were directed
from Ohio and were being given the personal attention of its president in that State
at the time he was served with summons.‖ (Perkins, supra, 342 U.S. at p. 448.)
Thus, the company‘s wartime operations had been effectively shifted almost
entirely to the president‘s home office in Ohio, which meant that ―under the
circumstances above recited, it would not violate federal due process for Ohio
either to take or decline jurisdiction of the corporation in this proceeding.‖ (Ibid.)
In other words, the requirements for the exercise of general jurisdiction were met.
In Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408(Helicopteros), the high court concluded that general jurisdiction was not
supported in the forum state when the defendant corporation was based abroad,
had no physical presence in the forum state other than limited business purchases
and contract negotiations, and the cause of action arose abroad and was unrelated
to the company‘s contacts with the forum state. In Helicopteros, the survivors of
four United States citizens, who had died in a helicopter crash in Peru, filed
wrongful death actions in Texas against the owner and operator of the helicopter, a
Colombian corporation. (Id. at pp. 409-410.) Prior to the helicopter crash, the
Colombian corporation had conducted contract negotiations in Texas with the
decedents‘ Texas employer to provide helicopter services, bought helicopters in
Texas, and sent employees there for training, but did not conduct other operations
or maintain a place of business in the state. None of the plaintiffs or their
decedents resided in Texas. (Id. at pp. 410-412.) The high court concluded that
neither the negotiation of a single contract and receipt of contractual payment
through a Texas bank, nor the purchase of helicopters and associated employee
9
training sessions in Texas, constituted ―the kind of continuous and systematic
general business contacts‖ that had justified general jurisdiction in Perkins.
(Helicopteros at p. 416; see id. at pp. 416-418.)
More recently, in Goodyear, supra, 564 U.S. ___ [131 S.Ct. 2846], and
Daimler, supra, 571 U.S. ___ [134 S.Ct. 746], the high court significantly
elaborated upon its analysis of general jurisdiction, clarifying that in order to
support the exercise of general jurisdiction over a corporation its contacts with the
forum state must be so extensive as to render the company essentially ― ‗at
home‘ ‖ in the state. (Daimler, supra, 571 U.S. at p. ___ [134 S.Ct. at p. 751; see
Goodyear, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2851].) The United States
Supreme Court‘s description of general jurisdiction for purposes of the federal due
process clause, as set forth in Goodyear and Daimler, is binding upon us and, as
explained below, dictates the conclusion that BMS is not subject to the general
jurisdiction of California courts.
In Goodyear, the high court concluded that the plaintiffs failed to establish
support for the exercise of general jurisdiction where the defendant companies
were based abroad, sold only a limited quantity of their products in the forum
state, and the cause of action — involving the defendants‘ products sold abroad —
also arose abroad. In that case, two young men from North Carolina were killed in
a bus accident outside Paris, France. (Goodyear, supra, 564 U.S. at p. ___ [131
S.Ct. at p. 2851].) Their parents attributed the accident to an allegedly defective
tire manufactured by Goodyear‘s subsidiary in Turkey and filed suit in a North
Carolina state court, naming Goodyear and its subsidiaries in Turkey, France, and
Luxembourg as defendants. (Id. at pp. ___-___ [131 S.Ct. at pp. 2851-2852].)
Although a small percentage of their tires was distributed in North Carolina by
other Goodyear affiliates, the foreign subsidiaries challenged the North Carolina
court‘s exercise of general jurisdiction over them, contending that they did no
10
direct business and employed no workers in North Carolina. (Id. at pp. ___, ___
[131 S.Ct. at pp. 2850, 2852].)
The high court first noted that North Carolina courts lacked specific
jurisdiction to adjudicate the controversy because the accident had occurred
abroad and the allegedly defective tire had been manufactured and sold abroad.
(Goodyear, supra, 564 U.S. at p. ___ [131 S.Ct. at p. 2851].) The court then held
that the defendant corporations‘ contacts with North Carolina were also
insufficient for general jurisdiction: ―Unlike the defendant in Perkins, whose sole
wartime business activity was conducted in Ohio, petitioners are in no sense at
home in North Carolina. Their attenuated connections to the State . . . fall far
short of . . . ‗the continuous and systematic general business contacts‘ necessary to
empower North Carolina to entertain suit against them on claims unrelated to
anything that connects them to the State.‖ (Goodyear, supra, at p. ___ [131 S.Ct.
at p. 2857], quoting Helicopteros, supra, 466 U.S. at p. 416.) The Goodyear court
explained its ―at home‖ rule for corporations as analogous to a natural person‘s
domicile in the forum state: ―For an individual, the paradigm forum for the
exercise of general jurisdiction is the individual‘s domicile; for a corporation, it is
an equivalent place, one in which the corporation is fairly regarded as at home.‖
(Goodyear, supra, at p. ___ [131 S.Ct. at pp. 2853-2854].)
Three years after Goodyear, in Daimler, supra, 571 U.S. ___ [134 S.Ct. 746],
the court further elaborated on its articulation of the ―at home‖ requirement. In
Daimler, Argentinian residents brought an action in California against
DaimlerChrysler AG (DaimlerChrysler), a German public stock company, alleging
that its wholly owned subsidiary, Mercedes-Benz Argentina, had ―collaborated
with state security forces to kidnap, detain, torture, and kill‖ the plaintiffs or their
relatives in Argentina during that nation‘s ― ‗Dirty War.‘ ‖ (Daimler, supra, at
p. ___ [134 S.Ct. at pp. 750-751].) The plaintiffs‘ claim of general jurisdiction
11
over DaimlerChrysler in California was based in significant part on the California
activities of another DaimlerChrysler subsidiary, Mercedes-Benz USA, LLC
(MBUSA). Although incorporated in Delaware and headquartered in New Jersey,
MBUSA had substantial facilities in California, using them to import and
distribute Mercedes-Benz automobiles in the state. (Id. at p. ___ [134 S.Ct. at
pp. 751-752].)
Even attributing to DaimlerChrysler the activities of its subsidiary, MBUSA,
the high court nevertheless found DaimlerChrysler‘s contacts with California
insufficient to justify the exercise of general jurisdiction over it. (Daimler, supra,
571 U.S. at p. ___ [134 S.Ct. at p. 760].) The court reiterated its observation in
Goodyear that a corporation‘s state of incorporation and its principal place of
business are the two ―paradigm all-purpose forums.‖ (Daimler, supra, at p. ___
[134 S.Ct. at p. 760.) Although it did not limit general jurisdiction to those two
circumstances, the Daimler court explained that general jurisdiction may not be
based merely on activities in the forum state that can be characterized as
continuous and systematic; rather, the corporation‘s activities must be ― ‗so
―continuous and systematic‖ as to render [it] essentially at home in the forum
State.‘ ‖ (Id. at p. ___ [134 S.Ct. at p. 761], quoting Goodyear, supra, 564 U.S. at
p. ___ [131 S.Ct. at p. 2851].)
The Daimler court acknowledged that in an exceptional case such as Perkins
―a corporation‘s operations in a forum other than its formal place of incorporation
or principal place of business may be so substantial and of such a nature as to
render the corporation at home in that State.‖ (Daimler, supra, 571 U.S. at p. ___,
fn. 19 [134 S.Ct. at p. 761, fn. 19].) The court, however, emphasized the truly
― ‗exceptional facts‘ ‖ of Perkins, where ―[g]iven the wartime circumstances, Ohio
could be considered ‗a surrogate for the place of incorporation or head office.‘ ‖
(Daimler, supra, at p. ___, fn. 8 [134 S.Ct. at p. 756, fn. 8].) DaimlerChrysler‘s
12
activities in California, the court observed, ―plainly do not approach that level.‖
(Id. at p. ___, fn. 19 [134 S.Ct. at p. 761, fn. 19.)
Furthermore, in responding to a concurring opinion by Justice Sotomayor,
the Daimler majority made clear that the general jurisdiction inquiry ―does not
‗focu[s] solely on the magnitude of the defendant‘s in-state contacts.‘ ‖ (Daimler,
supra, 571 U.S. at p. ___, fn. 20 [134 S.Ct. at p. 762, fn. 20].) Instead, general
jurisdiction ―calls for an appraisal of a corporation‘s activities in their entirety,
nationwide and worldwide.‖ (Ibid.) Otherwise, a corporation with significant
operations in many states would be deemed at home in all of them. (Ibid.) The
majority reasoned that to allow the adjudication in California of a dispute arising
solely in Argentina merely based on MBUSA‘s sales activities in the state would
give the same global adjudicatory reach to every state in which DaimlerChrysler
or its subsidiary had sizeable sales. The court rejected such an ―exorbitant
exercise[] of all-purpose jurisdiction‖ because it would defeat the ability of out-of-
state defendants to structure their conduct so as to have some predictability
regarding the possibility of being subjected to litigation in a given forum state.
(Id. at p. ___ [134 S.Ct. at pp. 761-762].)
The high court also made clear that because the plaintiffs in Daimler had
never attempted to argue that California could assert specific jurisdiction over
DaimlerChrysler, the court had no reason to undertake such an analysis. (Daimler,
supra, 571 U.S. at p. ___ [134 S.Ct. at p. 758].)
2. Plaintiffs have failed to show that BMS is subject to general jurisdiction in
California
The United States Supreme Court‘s at home rule for general jurisdiction over
a corporation, as articulated in Goodyear and Daimler, and, to some extent
Perkins, defeats the nonresident plaintiffs‘ claim that California may assert general
jurisdiction over BMS. BMS may be regarded as being at home in Delaware,
13
where it is incorporated, or perhaps in New York and New Jersey, where it
maintains its principal business centers. Although the company‘s ongoing
activities in California are substantial, they fall far short of establishing that is it at
home in this state for purposes of general jurisdiction.
Similar to the California subsidiary in Daimler, BMS has sold large volumes
of its products in California. Nevertheless, the high court plainly rejected the
theory that a corporation is at home wherever its sales are ―sizeable.‖ (Daimler,
supra, 571 U.S. at p.___ [134 S.Ct. at p. 761].) BMS employed approximately
164 people in California in addition to its 250 sales representatives in this state.
But the company‘s total California operations are much less extensive than its
activities elsewhere in the United States. As noted earlier, in New York and New
Jersey alone, BMS employed approximately 6,475 people, 51 percent of its United
States workforce. In assessing BMS‘s California business activities in comparison
to the company‘s business operations ―in their entirety, nationwide,‖ we find
nothing to warrant a conclusion that BMS is at home in California. (Daimler,
supra, at p. ___, fn. 20 [134 S.Ct. at p. 762, fn. 20].) As the high court warned in
Daimler, to conclude that BMS may be sued in California on any cause of action,
whether or not related to its activities here, under a theory of general jurisdiction,
would be to extend globally the adjudicatory reach of every state in which the
company has significant business operations.
The nonresident plaintiffs stress that in neither Goodyear nor Daimler did the
high court strictly limit general jurisdiction to a company‘s state of incorporation
or its principal place of business. Nevertheless, both decisions make clear that the
suitability of general jurisdiction is rooted in the concept of an individual‘s
domicile and its equivalent place for a corporation. (Daimler, supra, 571 U.S. at
p. ___ [134 S.Ct. at p. 760]; Goodyear, supra, 564 U.S. 437 [131 S.Ct. at
pp. 2853-2854].) Therefore, setting aside the state of a company‘s incorporation
14
or its headquarters, a plaintiff has the burden of showing that a company‘s conduct
in a given forum state may be so substantial and of such a kind as to render it at
home there.
Goodyear and Daimler approved the finding of general jurisdiction in
Perkins, supra, 342 U.S. 437. That case involved the exceptional fact pattern of a
mining company‘s wartime relocation of its overseas operations to Ohio, which
functioned as the equivalent of the corporation‘s headquarters through a home
office in the company president‘s own residence. Quite literally, the mining
company in Perkins was also at home in this unique context. But nothing in the
record of the present matter suggests that California has served as the equivalent
of BMS‘s headquarters, even temporarily.
The nonresident plaintiffs also rely on the fact that BMS has long been
registered to do business in California and has maintained an agent for service of
process here. California law, however, requires a foreign corporation transacting
business here to name an agent in the state for service of process. (Corp. Code,
§ 2105, subd. (a)(5).) As the high court has explained, ―[t]he purpose of state
statutes requiring the appointment by foreign corporations of agents upon whom
process may be served is primarily to subject them to the jurisdiction of local
courts in controversies growing out of transactions within the State.‖ (Morris &
Co. v. Ins. Co. (1929) 279 U.S. 405, 408-409, italics added.) Accordingly, a
corporation‘s appointment of an agent for service of process, when required by
state law, cannot compel its surrender to general jurisdiction for disputes unrelated
to its California transactions. The ―designation of an agent for service of process
and qualification to do business in California alone are insufficient to permit
general jurisdiction.‖ (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 268,
citing DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1095; Gray Line
Tours v. Reynolds Electrical & Engineering Co. (1987) 193 Cal.App.3d 190, 194.)
15
Finally, the nonresident plaintiffs argue BMS is subject to general
jurisdiction in California because it has contracted for distribution of Plavix with
McKesson Corporation, which is headquartered in San Francisco, allowing BMS
―to make a substantial profit within California through McKesson‘s California
contacts.‖ As explained above, however, BMS‘s sizeable sales of its products in
California are insufficient, under Goodyear, supra, 564 U.S. ___ [131 S.Ct. 2846]
and Daimler, supra, 571 U.S. ___ [134 S.Ct. 746], to make it at home in this state
and subject it to the general jurisdiction of our courts. That some of these sales
were made to or through a distributor headquartered here does not change the
analysis.
As a result, we conclude that BMS is not subject to the general jurisdiction of
the California courts.
B. Specific Jurisdiction
1. Case law concerning specific jurisdiction
Although the high court‘s recent cases have narrowed the scope of general
jurisdiction, in Daimler the majority specifically commented on the continued
viability and breadth of the court‘s preexisting specific jurisdiction jurisprudence.
In responding to the concern expressed by Justice Sotomayor in her separate
opinion in Daimler that the court was committing an injustice by limiting the
availability of general jurisdiction, the majority remarked that ―Justice Sotomayor
treats specific jurisdiction as though it were barely there‖ and that ―[g]iven the
many decades in which specific jurisdiction has flourished, it would be hard to
conjure up an example of the ‗deep injustice‘ Justice Sotomayor predicts as a
consequence of our holding that California is not an all-purpose forum for suits
against [DaimlerChrysler].‖ (Daimler, supra, 571 U.S. at p. ___, fn. 10 [134 S.Ct.
at p. 758, fn. 10].)
16
The basic precepts governing specific jurisdiction set forth in pre-Daimler
decisions are well settled. In ascertaining the existence of specific jurisdiction,
courts must analyze the ― ‗relationship among the defendant, the forum, and the
litigation.‘ ‖ (Helicopteros, supra, 466 U.S. at p. 414, quoting Shaffer v. Heitner
(1977) 433 U.S. 186, 204.) The question of whether a court may exercise specific
jurisdiction over a nonresident defendant involves examining (1) whether the
defendant has ― ‗purposefully directed‘ ‖ its activities at the forum state (Keeton v.
Hustler Magazine, Inc. (1984) 465 U.S. 770, 774 (Keeton)); (2) whether the
plaintiff‘s claims arise out of or are related to these forum-directed activities
(Helicopteros, supra, 466 U.S. at p. 414); and (3) whether the exercise of
jurisdiction is reasonable and does not offend ― ‗ ―traditional notions of fair play
and substantial justice.‖ ‘ ‖ 2 (Asahi Metal Industry Co. v. Superior Court (1987)
480 U.S. 102, 113 (Asahi), quoting International Shoe, supra, 326 U.S. at p. 316.)
In our own jurisprudence, we have said that a plaintiff has the initial burden
of demonstrating facts to support the first two factors, which establish the requisite
minimum contacts with the forum state. The burden then shifts to the defendant to
show that the exercise of jurisdiction would be unreasonable under the third factor.
(Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062
(Snowney); see also Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477
(Burger King) [―where a defendant who purposefully has directed his activities at
forum residents seeks to defeat jurisdiction, he must present a compelling case that
2 BMS states it is not contesting the first or third factors and that the
company is contesting only whether the claims of the nonresident plaintiffs are
related to its activities in California. But, as we will explain, BMS‘s arguments
are not as narrow as it contends. Accordingly, we will examine here all three
factors relevant to the specific jurisdiction analysis.
17
the presence of some other considerations would render jurisdiction
unreasonable‖].)
Our courts have also explained that the relatedness requirement for specific
jurisdiction is determined under the ― ‗substantial connection‘ test,‖ which ―is
satisfied if ‗there is a substantial nexus or connection between the defendant‘s
forum activities and the plaintiff‘s claim.‘ [Citation.]‖ (Snowney, supra, 35
Cal.4th at p. 1068.) This test requires courts to evaluate the nature of the
defendant‘s activities in the forum and the relationship of the claim to those
activities in order to answer the ultimate question under the due process clause:
whether the exercise of jurisdiction in the forum is fair. Under the substantial
connection test, ― ‗the intensity of forum contacts and the connection of the claim
to those contacts are inversely related.‘ ‖ (Ibid.) ― ‗[T]he more wide ranging the
defendant‘s forum contacts, the more readily is shown a connection between the
forum contacts and the claim.‘ [Citation.] Thus, ‗[a] claim need not arise directly
from the defendant‘s forum contacts in order to be sufficiently related to the
contact to warrant the exercise of specific jurisdiction.‘ . . . Indeed, ‗ ― ‗[o]nly
when the operative facts of the controversy are not related to the defendant‘s
contact with the state can it be said that the cause of action does not arise from that
[contact].‘ ‖ ‘ [Citation.]‖ (Ibid.) Finally, the defendant‘s activities in the forum
state need not be either the proximate cause or the ―but for‖ cause of the plaintiff‘s
injuries. (Ibid.)
2. Purposeful availment
As the high court has explained, ―[t]he Due Process Clause protects an
individual‘s liberty interest in not being subject to the binding judgments of a
forum with which he has established no meaningful ‗contacts, ties, or relations,‘ ‖
and that ―[b]y requiring that individuals have ‗fair warning that a particular
18
activity may subject [them] to the jurisdiction of a foreign sovereign, ‖‘ the due
process clause affords predictability and allows potential defendants to tailor their
conduct ― ‗with some minimum assurance as to where that conduct will and will
not render them liable to suit.‘ ‖ (Burger King, supra, 471 U.S. at pp. 471-472.)
―Where a forum seeks to assert specific jurisdiction over an out-of-state
defendant who has not consented to suit there, this ‗fair warning‘ requirement is
satisfied if the defendant has ‗purposefully directed‘ his activities at residents of
the forum, [citation], and the litigation results from alleged injuries that ‗arise out
of or relate to‘ those activities.‖ (Burger King, supra, 471 U.S. at p. 472, fn.
omitted.) These activities cannot be the result of the unilateral actions of another
party or a third person, because the ― ‗purposeful availment‘ requirement ensures
that a defendant will not be haled into a jurisdiction solely as a result of ‗random,‘
‗fortuitous,‘ or ‗attenuated‘ contacts.‖ (Id. at p. 475.) ―When a [nonresident
defendant] ‗purposefully avails itself of the privilege of conducting activities
within the forum State,‘ [citation], it has clear notice that it is subject to suit there,
and can act to alleviate the risk of burdensome litigation by procuring insurance,
passing the expected costs on to customers, or, if the risks are too great, severing
its connection with the State.‖ (World-Wide Volkswagen Corp. v. Woodson (1980)
444 U.S. 286, 297 (World-Wide Volkswagen).)
In Snowney, a California resident filed a class action in this state against a
group of Nevada hotels, alleging several causes of action related to their purported
failure to provide notice of an energy surcharge imposed on hotel guests.
(Snowney, supra, 35 Cal.4th at pp. 1059-1060.) The hotels conducted no business
and had no bank accounts or employees in California, but they advertised heavily
in this state using California-based media, including billboards, newspapers, and
ads aired on radio and television stations, as well as a Web site for room quotes
19
and reservations. They also received a significant portion of their business from
California residents who stayed at their hotels. (Id. at p. 1059.)
This court held that the Nevada hotels had purposefully availed themselves of
the privilege of doing business in California because their Web site had touted
―the proximity of their hotels to California‖ and provided ―driving directions from
California to their hotels,‖ thereby ―specifically target[ing] residents of
California.‖ (Snowney, supra, 35 Cal.4th at p. 1064.) Furthermore, ―[a]side from
their Web site specifically targeting California residents, defendants advertised
extensively in California through billboards, newspapers, and radio and television
stations located in California‖ and ―regularly sent mailings advertising their hotels
to selected California residents.‖ (Id. at p. 1065.) ―In doing so, defendants
necessarily availed themselves of the benefits of doing business in California and
could reasonably expect to be subject to the jurisdiction of courts in California.‖
(Ibid.)
In the present matter, there is no question that BMS has purposely availed
itself of the privilege of conducting activities in California, invoking the benefits
and protection of its laws, and BMS does not contend otherwise. Not only did
BMS market and advertise Plavix in this state, it employs sales representatives in
California, contracted with a California-based pharmaceutical distributor, operates
research and laboratory facilities in this state, and even has an office in the state
capital to lobby the state on the company‘s behalf. As in Snowney, supra, 35
Cal.4th 1054, BMS actively and purposefully sought to promote sales of Plavix to
California residents, resulting in California sales of nearly $1 billion over six
years. Moreover, unlike the Nevada hotels in Snowney, BMS maintains a physical
presence in California, employing well over 400 people here.
Accordingly, we conclude that BMS has purposefully availed itself of the
benefits of California such that the first element of the test for specific personal
20
jurisdiction is met concerning matters arising from or related to BMS‘s contacts
with the state. On the basis of these extensive contacts relating to the design,
marketing, and distribution of Plavix, BMS would be on clear notice that it is
subject to suit in California concerning such matters. (World-Wide Volkswagen,
supra, 444 U.S. at p. 19.)
3. Arises from or is related to
As previously described, ―for the purpose of establishing jurisdiction the
intensity of forum contacts and the connection of the claim to those contacts are
inversely related.‖ (Vons, supra, 14 Cal.4th at p. 452.) ―[T]he more wide ranging
the defendant‘s forum contacts, the more readily is shown a connection between
the forum contacts and the claim.‖ (Id. at p. 455.) Thus, ―[a] claim need not arise
directly from the defendant‘s forum contacts in order to be sufficiently related to
the contact to warrant the exercise of specific jurisdiction.‖ (Id. at p. 452.)
In Vons, we assessed, on relatedness grounds, whether California courts
could exercise specific jurisdiction over nonresident companies for causes of
action involving out-of-state injuries that did not arise directly from their
California contacts. (Vons, supra, 14 Cal.4th 434.) The plaintiffs in Vons were
restaurant franchisees who brought an action for loss of business after
contaminated hamburger meat caused illnesses in California and Washington,
resulting in adverse publicity. In California, the franchisees sued two parties: the
franchisor and the hamburger supplier, Vons Companies, Inc. (Vons), which
processed hamburger patties in California and supplied them to the franchisor.
Vons cross-complained against the franchisor and two Washington franchisees,
suing them for negligence and indemnification for failing to properly cook the
hamburger meat at restaurants in Washington, causing the injuries and deaths to
customers there that gave rise to their joint liability with Vons. In Vons, the issue
21
was whether the California court had specific jurisdiction over these two
Washington-based franchisees, Seabest Foods, Inc., and Washington Restaurant
Management, Inc. (WRMI). (Id. at pp. 440-442.)
Seabest‘s and WRMI‘s contacts with California included food purchases
from California suppliers, sending personnel to franchisor training sessions in
California, remitting franchise payments to California, permitting the franchisor‘s
inspection of their restaurants by its California-based inspectors, and the
negotiation of their franchise agreements in California, which agreements stated
that any disputes would be governed by California law. Because Vons was not a
party to the franchise contracts for either Seabest or WRMI, those franchisees‘
contacts with California did not directly give rise to the causes of action asserted
by Vons. (Vons, supra, 14 Cal.4th at p. 452.) Nevertheless, this court found
personal jurisdiction was properly exercised over them in California because the
forum contacts bore a substantial relation to the cause of action. We explained
that requiring the two Washington franchisees to answer to Vons‘s claim ―is not to
allow a third party unilaterally to draw them into a connection with the state;
rather, it was Seabest and WRMI who established the connection.‖ (Id. at p. 451.)
This court further elaborated: ―A claim need not arise directly from the
defendant‘s forum contacts in order to be sufficiently related to the contact to
warrant the exercise of specific jurisdiction. Rather, as long as the claim bears a
substantial connection to the nonresident‘s forum contacts, the exercise of specific
jurisdiction is appropriate. The due process clause is concerned with protecting
nonresident defendants from being brought unfairly into court in the forum, on the
basis of random contacts. That constitutional provision, however, does not
provide defendants with a shield against jurisdiction when the defendant
purposefully has availed himself or herself of benefits in the forum.‖ (Vons,
supra, 14 Cal.4th at p. 452.)
22
In the present matter, plaintiffs allege that BMS negligently designed and
manufactured Plavix, failed to disclose material information in its advertising and
promotion of Plavix and fraudulently and falsely advertised and promoted the
product, and that BMS is liable to those who relied on such representations and
were injured by Plavix. Their complaints also contend that ―Plavix was heavily
marketed directly to consumers through television, magazine and internet
advertising.‖ BMS does not contest that its marketing, promotion, and distribution
of Plavix was nationwide and was associated with California-based sales
representatives and a California distributor, McKesson Corporation, which
plaintiffs allege is jointly liable.
The California plaintiffs‘ claims concerning the alleged misleading
marketing and promotion of Plavix and injuries arising out of its distribution to
and ingestion by California plaintiffs certainly arise from BMS‘s purposeful
contacts with this state, and BMS does not deny that it can be sued for such claims
in California. As to the nonresident plaintiffs‘ claims, the Court of Appeal
understood plaintiffs‘ complaints as alleging that BMS sold Plavix to both the
California plaintiffs and the nonresident plaintiffs as part of a common nationwide
course of distribution. BMS has not taken issue with that characterization, nor has
it asserted that either the product itself or the representations it made about the
product differed from state to state. Both the resident and nonresident plaintiffs‘
claims are based on the same allegedly defective product and the assertedly
misleading marketing and promotion of that product, which allegedly caused
injuries in and outside the state. Thus, the nonresident plaintiffs‘ claims bear a
substantial connection to BMS‘s contacts in California. BMS‘s nationwide
marketing, promotion, and distribution of Plavix created a substantial nexus
between the nonresident plaintiffs‘ claims and the company‘s contacts in
California concerning Plavix.
23
Plaintiffs also allege that BMS negligently developed and designed Plavix,
which serves as the basis of its claims of products liability, negligence, and
breaches of express and implied warranties. BMS maintains research and
laboratory facilities in California, and it presumably enjoys the protection of our
laws related to those activities. Although there is no claim that Plavix itself was
designed and developed in these facilities, the fact that the company engages in
research and product development in these California facilities is related to
plaintiffs‘ claims that BMS engaged in a course of conduct of negligent research
and design that led to their injuries, even if those claims do not arise out of BMS‘s
research conduct in this state. Accordingly, BMS‘s research and development
activity in California provides an additional connection between the nonresident
plaintiffs‘ claims and the company‘s activities in California.
BMS and our dissenting colleagues attempt to characterize the claims of the
California plaintiffs as ―parallel‖ to and failing to ―intersect‖ with the nonresident
plaintiffs‘ claims and argue based on this characterization that BMS‘s conduct in
California is insufficiently related to the nonresident plaintiffs‘ claims. More
specifically, BMS contends that the nonresident plaintiffs‘ claims would be
exactly the same if BMS had no contact whatsoever with California. This
characterization ignores the uncontested fact that all the plaintiffs‘ claims arise out
of BMS‘s nationwide marketing and distribution of Plavix. The claims are based
not on ―similar‖ conduct, as our dissenting colleagues contend, but instead on a
single, coordinated, nationwide course of conduct directed out of BMS‘s New
York headquarters and New Jersey operations center and implemented by
distributors and salespersons across the country. (See Cornelison v. Chaney
(1976) 16 Cal.3d 143, 151 [reasoning that the interstate nature of a defendant‘s
business, while ―not an independent basis of jurisdiction‖ weighs ―in favor of
requiring him to defend here‖].)
24
Moreover, the argument that claims based on a nationwide course of conduct
fail to establish relatedness for purposes of minimum contacts rests on the invalid
assumption that BMS‘s forum contacts must bear some substantive legal relevance
to the nonresident plaintiffs‘ claims, as the dissent explicitly contends. Yet in
Vons, this court carefully considered and ultimately rejected such a substantive
relevance requirement. (Vons, supra, 14 Cal.4th at p. 475 [―we conclude that the
substantive relevance test is inappropriate‖].) Rather, it is sufficient if ―because of
the defendants‘ relationship with the forum, it is not unfair to require that they
answer in a California court for an alleged injury that is substantially connected to
the defendants‘ forum contacts.‖ (Id. at p. 453.) Here, BMS‘s forum contacts,
including its California-based research and development facilities, are
substantially connected to the nonresident plaintiffs‘ claims because those contacts
are part of the nationwide marketing and distribution of Plavix, a drug BMS
researched and developed, that gave rise to all the plaintiffs‘ claims.
BMS relies on two cases to contend that California courts may not exercise
specific jurisdiction over a nonresident defendant sued by a nonresident plaintiff
for injuries occurring outside the state. But in both cases, the defendant company
conducted no business in California and had no employees here. (Fisher
Governor Co. v. Superior Court (1959) 53 Cal.2d 222, 224 [the defendant had ―no
employees or property in California and has not appointed an agent to receive
service of process here‖]; Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 715
(Boaz) [the defendant had ―not been licensed to do business in California, and . . .
had neither salespersons, employees or representatives here, nor any offices, bank
accounts, records or property in this state‖].)
Our dissenting colleagues also rely on Boaz and a pharmaceutical case from
the First Circuit, Glater v. Eli Lilly & Co. (1st Cir. 1984) 744 F.2d 213, which held
that specific jurisdiction had not been established because the plaintiff‘s cause of
25
action did not ―arise from‖ the company‘s forum activities. (Id at p. 216.)
Although the facts of Glater are also involve the sales and marketing of an
allegedly defective drug, the pharmaceutical company‘s contacts with the forum
state, New Hampshire, appear to have been far less substantial than BMS‘s
contacts to California. 3
Moreover, none of these cases had the benefit of our reasoning in Vons,
where we made clear that we had adopted a sliding scale approach to specific
jurisdiction in which we recognized that ―the more wide ranging the defendant‘s
forum contacts, the more readily is shown a connection between the forum
contacts and the claim.‖ (Vons, supra, 14 Cal.4th at p. 455.) As previously
described, BMS‘s contacts with California are substantial and the company has
enjoyed sizeable revenues from the sales of its product here — the very product
that is the subject of the claims of all of the plaintiffs. BMS‘s extensive contacts
with California establish minimum contacts based on a less direct connection
between BMS‘s forum activities and plaintiffs‘ claims than might otherwise be
required.
In sum, taking into account all of BMS‘s activities in this state and their
relation to the causes of action at issue here, we conclude that the second element
of specific jurisdiction is met, and hence, absent a showing to the contrary by
3 In addition, the dissent relies on Hanson v. Denckla (1958) 357 U.S. 235,
where the plaintiffs filed suit in Florida against a Delaware-based trustee who had
no purposeful contacts with Florida, other than those caused by the unilateral
activity of the plaintiffs. The dissent‘s reliance on this case is inapposite because
the high court concluded that the defendant in that matter had not purposefully
availed herself ―of the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.‖ (Id. at p. 253.) Here, the
parties do not contest that BMS has purposefully availed itself of California law.
26
BMS, it would be consistent with due process for it to be subject to litigation in
this state concerning injuries allegedly caused by its product Plavix, including
those injuries occurring out of state. Not only did BMS purposefully avail itself of
the benefits of California by its extensive marketing and distribution of Plavix in
this state and by contracting with a California distributor and employing hundreds
of California-based salespersons, resulting in its substantial sales of that product
here, but the company also maintains significant research and development
facilities in California. All of plaintiffs‘ claims either arose from these activities
or are related to those activities. The circumstance that numerous nonresident
plaintiffs have filed their claims alongside those of resident plaintiffs does not alter
or detract from this substantial nexus.
As previously discussed, the due process protections afforded by the doctrine
of specific jurisdiction are designed to give a potential nonresident defendant
adequate notice that it is subject to suit there, and, accordingly, a prospective
defendant can assess the extent of that risk and take measures to mitigate such risk
or eliminate it entirely by severing its connection with the state. (World-Wide
Volkswagen, supra, 444 U.S. at p. 297.) Indeed, far from taking measures to
mitigate the risk of suit in particular forums, BMS embraced this risk by
coordinating a single nationwide marketing and distribution effort and by
engaging in research and development in California. In that regard, BMS was on
notice that it could be sued in California by nonresident plaintiffs. In fact, our
courts have frequently handled nationwide class actions involving numerous
nonresident plaintiffs. (See Discover Bank v. Superior Court (2005) 36 Cal.4th
148; Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 915;
Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036;
Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164; Canon U.S.A.,
Inc. v. Superior Court (1998) 68 Cal.App.4th 1.)
27
To the extent that BMS‘s arguments imply that a California court lacks
personal jurisdiction over BMS to adjudicate the claims of the nonresident
plaintiffs simply because the nonresident plaintiffs have no connection to and did
not suffer any Plavix-related injuries in the state, the high court has repeatedly
rejected such a focus. The minimum contacts test assesses ―the relationship
among the defendant, the forum, and the litigation.‖ (Shaffer v. Heitner, supra,433 U.S. at p. 204.) As the high court explicitly declared in Keeton, a ―plaintiff‘s
residence in the forum State is not a separate requirement, and lack of residence
will not defeat jurisdiction established on the basis of defendant‘s contacts.‖
(Keeton, supra, 465 U.S. at p. 780; see also Walden v. Fiore, supra, 571 U.S. ___,
___ [134 S.Ct. 1115, 1126] [―it is the defendant, not the plaintiff or third parties,
who must create contacts with the forum State‖]; Helicopteros, supra, 466 U.S. at
p. 412, fn. 5 [the plaintiffs‘ ―lack of residential or other contacts with Texas of
itself does not defeat otherwise proper jurisdiction‖]; Calder v. Jones (1984) 465
U.S. 783, 788 [the ―plaintiff‘s lack of ‗contacts‘ will not defeat otherwise proper
jurisdiction‖]; Rush v. Savchuk (1980) 444 U.S. 320, 332 [―the plaintiff‘s contacts
with the forum‖ cannot be ―decisive in determining whether the defendant‘s due
process rights are violated‖]; see also Epic Communications, Inc. v. Richwave
Technology, Inc. (2009) 179 Cal.App.4th 314, 336 [―We fail to see how the non-
California residency of plaintiff can make a ‗compelling case‘ ‖ with respect to
any of the factors supporting personal jurisdiction].)
Finally, BMS and our dissenting colleagues further allege that permitting the
exercise of specific jurisdiction in California for the claims of nonresidents based
on the company‘s nationwide sales and marketing would effectively subvert the
holding of Daimler, supra, 571 U.S. ___ [134 S.Ct. 746], in which the court
refused to base jurisdiction merely on nationwide sales. But BMS‘s argument
overstates the effect of our conclusion that specific jurisdiction is properly
28
exercised here. Our decision does not render California an all-purpose forum for
filing suit against BMS for any matter, regardless of whether the action is related
to its forum activities. Rather, as with any matter concerning specific jurisdiction,
the minimum contacts test is applied on a case-by-case basis, focusing on the
nature and quality of the defendant‘s activities in the state. (Burger King, supra,
471 U.S. at pp. 474-475.) We simply hold under this specific set of circumstances
that, for purposes of establishing the requisite minimum contacts, plaintiffs‘ claims
concerning the allegedly defective design and marketing of Plavix bear a
substantial nexus with or connection to BMS‘s extensive contacts with California
as part of Plavix‘s nationwide marketing, its sales of Plavix in this state, and its
maintenance of research and development facilities here so as to permit specific
jurisdiction.
4. The reasonableness of specific jurisdiction
As previously described, after a plaintiff meets the burden of showing that a
defendant has purposefully established minimum contacts with the forum state, the
burden then shifts to the defendant to show that the assertion of specific
jurisdiction is unreasonable because it does not comport with ― ‗traditional notions
of fair play and substantial justice.‘ ‖ (International Shoe, supra, 326 U.S. at
p. 316.) BMS does not argue that the assertion of jurisdiction in this case would
be fundamentally unfair, but does advance several arguments it contends defeat
the claim that their causes of action arose from or are related to its contacts with
California. Analytically, these arguments are more pertinent to consideration of
whether the exercise of specific jurisdiction is reasonable, not whether the
contested claims arise from or relate to the company‘s forum activities. The
questions raised by BMS — whether California has an interest in litigating the
claims of nonresidents, whether BMS will unfairly bear a disproportionate burden
29
of defending itself against all nationwide claims in a single venue of relatively few
resident plaintiffs, and whether California should expend its judicial resources on
the claims of nonresident plaintiffs — are all circumstances relevant to the issue of
whether BMS has established that the exercise of jurisdiction is unreasonable.
They do not bear upon the issue of whether the nonresident plaintiffs‘ claims arise
from or are related to BMS‘s activities in the forum state. Accordingly, we will
examine these arguments using the criteria governing reasonableness.
In determining whether the defendant has established that the exercise of
specific jurisdiction is unreasonable, the court ―must consider the burden on the
defendant, the interests of the forum State, and the plaintiff‘s interest in obtaining
relief.‖ (Asahi, supra, 480 U.S. at p. 113.) Although it must also weigh in its
determination ―the interstate judicial system‘s interest in obtaining the most
efficient resolution of controversies[,] and the shared interest of the several States
in furthering fundamental substantive social policies ‖ (World-Wide Volkswagen,
supra, 444 U.S. at p. 292), a requirement that may ―reflect[] an element of
federalism and the character of state sovereignty vis-à-vis other States‖ (Insurance
Corp. v. Compagnie des Bauxites (1982) 456 U.S. 694, 703, fn. 10), the due
process clause ―is the only source of the personal jurisdiction requirement.‖ (Id. at
p. 703, fn. 10.) Accordingly, ―[t]he relationship among the defendant, the forum,
and the litigation, rather than the mutually exclusive sovereignty of the States . . .
[is] the central concern of the inquiry into personal jurisdiction.‖ (Shaffer v.
Heitner, supra, 433 U.S. at p. 204.)
a. The burden on defendant in litigating the claims in California
BMS complains that joining the claims of the nonresident plaintiffs to those
of the comparatively smaller group of California plaintiffs would unfairly
distribute the company‘s burden of defending this mass tort action by requiring it
30
to defend itself against all nationwide claims in a forum where only a minor
portion of its sales occurred. However, as the Court of Appeal noted, regardless of
whether California exercises jurisdiction over nonresident plaintiffs‘ claims, BMS
is already burdened by having to defend against the claims of 86 California
plaintiffs. Certainly, the addition of 592 nonresident plaintiffs is a significant
added burden, but the alternative is to litigate the claims of these other 592
nonresident plaintiffs in a scattershot manner in various other forums, in
potentially up to 34 different states.4 Such an alternative would seem to be a far
more burdensome distribution of BMS‘s resources in defending these cases than
defending them in a single, focused forum.
Pretrial preparation and discovery concerning plaintiffs‘ claims may pose
challenges given the diversity of their states of residence, but, as the Court of
Appeal recognized, our state‘s Civil Discovery Act provides for taking depositions
outside California for use at trial. (Code Civ. Proc., § 2026.010.) Moreover,
information and documents relevant to plaintiffs‘ requests for discovery will likely
be located in New York or New Jersey, as will the individuals whom plaintiffs are
likely to seek to depose, regardless of the venue in which the plaintiffs‘ claims are
filed.
Finally, BMS has provided no evidence to suggest that the cost of litigating
plaintiffs‘ claims in San Francisco is excessive or unduly burdensome for BMS
4 Our dissenting colleagues note that nonresident plaintiffs presumably could
file their claims in Delaware or perhaps New Jersey or New York, or in federal
court, where they could be coordinated as part of multidistrict litigation, but
nothing requires them to choose one of these forums rather than their home states.
31
compared to any other relevant forum or forums.5 BMS, therefore, fails to show
that its defense of plaintiffs‘ claims in California places on it an undue burden.
b. California’s interest in providing a forum for plaintiffs in this
case
BMS further claims that California has no legitimate interest in adjudicating
the claims of nonresidents because they have no connection to the state.
Admittedly, the fact that the nonresident plaintiffs greatly outnumber the
California plaintiffs does give us some pause. But in ascertaining the
reasonableness of exercising specific jurisdiction, no one factor, by itself, is
determinative. More important, there are identifiable interests our state holds in
providing a forum for both the resident and nonresident plaintiffs.
First, evidence of other injuries is ―admissible to prove a defective condition,
knowledge, or the cause of an accident,‖ provided that the circumstances of the
other injuries are similar and not too remote. (Ault v. International Harvester
(1974) 13 Cal.3d 113, 121-122; see also Elsworth v. Beech Aircraft Corp. (1984)
37 Cal.3d 540, 555 [evidence of prior accidents involving similar airplane with
identical single-engine stall-spin characteristics was admissible].) To the extent
that evidence of the injuries allegedly suffered by the nonresident plaintiffs may be
relevant and admissible to prove that Plavix similarly injured the California
plaintiffs, trying their cases together with those of nonresident plaintiffs could
promote efficient adjudication of California residents‘ claims. California,
therefore, has a clear interest in providing a forum for this matter.
5 Of course, BMS is free to make such a showing on a motion asserting
forum non conveniens. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) We
merely hold that, for purposes of defeating specific jurisdiction, BMS fails to meet
its burden.
32
This interest is further underscored by the substantial body of California law
aimed at protecting consumers from the potential dangers posed by prescription
medication, including warnings about serious side effects and prohibiting false and
misleading labeling. (See, e.g., Bus. & Prof. Code, §§ 4070-4078.) As this court
has previously recognized, ―California has a strong interest in protecting its
consumers by ensuring that foreign manufacturers comply with the state‘s safety
standards.‖ (Asahi, supra, 39 Cal.3d at p. 53.) It also bears reemphasis that there
are no fewer than 250 BMS sales representatives in California. Although at this
early stage of the proceedings, the record contains very little evidence concerning
the promotional and distribution activities of these sales representatives, California
has a clear interest in regulating their conduct. 6 (Cf. Bus. & Prof. Code, § 17500
[permitting claims by nonresidents who are deceived by representations
―disseminated from‖ the State of California].)
In addition, California also has an interest in regulating the conduct of
BMS‘s codefendant, McKesson Corporation, which is headquartered in California,
as a joint defendant with BMS. As noted above, in Vons, we held that specific
jurisdiction was proper over cross-defendants who entered into contracts in
California that gave rise to the joint liability and the corresponding right to
6 Our dissenting colleagues contend that the record does not establish that
BMS‘s sales representatives misled nonresident physicians concerning the safety
and efficacy of Plavix or that McKesson was responsible for providing Plavix to
any of the nonresident plaintiffs. (Dis. opn. of Werdegar, J., post, at pp. 11-12.)
Certainly, the existence of such evidence would lend additional support to the
question of whether the claims of the nonresident plaintiffs are not just related to
but actually also arise out of BMS‘s contacts with California. But our discussion
here is merely focused on the reasonableness of asserting specific jurisdiction in
this matter because our state has an interest in regulating conduct in the
pharmaceutical industry that could pose a danger to public welfare, regardless of
residency.
33
indemnification on which the cross-claims against them were based. (See Vons,
supra,14 Cal.4th at pp. 456-457.) California‘s interest in adjudicating claims on
which McKesson Corporation, a California resident, may be jointly liable with
BMS, a nonresident defendant, is readily apparent. Were BMS dismissed from
nonresident plaintiffs‘ cases, California courts would be required to hear their
claims against McKesson Corporation while the same plaintiffs litigated the same
claims arising from the same facts and the same evidence against BMS in a forum
potentially on the opposite side of the country.
c. Plaintiffs’ interest in a convenient and effective forum
Nonresident plaintiffs have obviously purposefully availed themselves of the
jurisdiction of courts in this state by choosing to file all of their claims here —
strong evidence that the forum is convenient to them. Eighty-six of the 678
plaintiffs reside in California; only Texas, with 92 plaintiffs, is home to more.
Moreover, the current forum, San Francisco Superior Court, is equipped with
a complex litigation department that is well suited to expeditiously handle such
large cases. BMS has not shown that this forum is inconvenient for plaintiffs.
d. Judicial economy and the shared interests of the interstate
judicial system
BMS argues that it would be a waste of California‘s judicial resources to
provide a forum for the nonresident plaintiffs. To be sure, a single court hearing
the claims of hundreds of plaintiffs is a significant burden on that court. But the
overall savings of time and effort to the judicial system, both in California and
interstate, far outweigh the burdens placed on the individual forum court. The
alternative that BMS proposes would result in the duplication of suits in in
numerous state or federal jurisdictions at substantial costs to both the judicial
system and to the parties, who would have to deal with disparate rulings on
otherwise similar procedural and substantive issues.
34
For claims of mass injuries stemming from a single product or event,
plaintiffs often resort to the mechanism of the class action, which promotes
―efficiency and economy of litigation.‖ (Crown, Cork & Seal Co. v. Parker (1983)
462 U.S. 345, 349.) But, unlike class actions in which common questions of law,
fact, and proximate cause predominate among members of the plaintiff class,
―mass-tort actions for personal injury most often are not appropriate for class
action certification.‖ (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1123.) As
this court has previously recognized, ―[t]he major elements in tort actions for
personal injury — liability, causation, and damages — may vary widely from
claim to claim, creating a wide disparity in claimants‘ damages and issues of
defendant liability, proximate cause, liability of skilled intermediaries,
comparative fault, informed consent, assumption of the risk and periods of
limitation.‖ (Ibid.)
Yet, because mass tort injuries may involve diverse injuries or harm not
amenable to the efficiency and economy of a class action, they present special
problems for the proper functioning of the courts and the fair, efficient, and speedy
administration of justice. Without coordination, ―those who win the race to the
courthouse [and] bankrupt a defendant early in the litigation process‖ would
recover but effectively shut out other potential plaintiffs from any recovery. (In re
Exxon Valdez (9th Cir. 2000) 229 F.3d 790, 795-796.) Moreover, coordinated
mass tort actions ―also avoid the possible unfairness of punishing a defendant over
and over again for the same tortious conduct.‖ (Id. at p. 796.)
It is also important to note that many of the resident plaintiffs allege that
Plavix caused them to suffer heart attacks, strokes, cerebral bleeding, and
gastrointestinal bleeding. These are obviously severe medical conditions, and
California has an interest in ensuring that litigation brought by its residents is
resolved in a timely fashion. By separating the nonresident plaintiffs from the
35
resident plaintiffs and forcing the nonresidents to sue in other states, it is fair to
anticipate delays in the California proceedings that would be created by the
litigation and appeals of discovery and factual conflicts in the various other
forums. In that event, the California plaintiffs‘ litigation could be stalled for a
significant period without resolution. Likewise, defendants would suffer the costs
created by delay and uncertainty as to their potential liability, if any.
Moreover, the same concerns of delay and efficiency apply equally to the
interstate judicial system. The other forums have an equally strong interest in the
fair, efficient, and speedy administration of justice for both their resident plaintiffs
and resident defendants. The consolidation of plaintiffs‘ claims in a single forum
is a mechanism for promoting those interests.
Of course, the other potential forums also have a sovereign interest in
seeing their laws applied to actions such as this one. But for purposes of
establishing the propriety of personal jurisdiction, the high court has stated, ―we
do not think that such choice-of-law concerns should complicate or distort the
jurisdictional inquiry.‖ (Keeton, supra, 465 U.S. at p. 778.) Choice-of-law
concerns might very well make a mass tort action unmanageable in certain
circumstances, but that issue is not determinative at this stage of the proceedings.
Accordingly, BMS has failed to carry its burden of showing that the
exercise of personal jurisdiction over it in this matter is unreasonable.
III. CONCLUSION
We conclude that BMS, despite its significant business and research activities
in California, is not at home in our state for purposes of asserting general personal
jurisdiction over it. However, we conclude that in light of BMS‘s extensive
contacts with California, encompassing extensive marketing and distribution of
Plavix, hundreds of millions of dollars of revenue from Plavix sales, a relationship
with a California distributor, substantial research and development facilities, and
36
hundreds of California employees, courts may, consistent with the requirements of
due process, exercise specific personal jurisdiction over nonresident plaintiffs‘
claims in this action, which arise from the same course of conduct that gave rise to
California plaintiffs‘ claims: BMS‘s development and nationwide marketing and
distribution of Plavix. BMS cannot establish unfairness: Balancing the burdens
imposed by this mass tort action, and given its complexity and potential impact on
the judicial systems of numerous other jurisdictions, we conclude that the joint
litigation of the nonresident plaintiffs‘ claims with the claims of the California
plaintiffs is not an unreasonable exercise of specific jurisdiction over defendant
BMS.
IV. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
LIU, J.
CUÉLLAR, J.
KRUGER, J.
37
DISSENTING OPINION BY WERDEGAR, J.
The court holds today that 592 plaintiffs residing in states other than
California may sue Bristol-Myers Squibb Company (BMS) in a California
superior court for injuries resulting from these plaintiffs‘ use in their own states of
BMS‘s prescription drug, Plavix. Because BMS is not incorporated or based in
California, its activities in the state are insufficient to establish general personal
jurisdiction—jurisdiction for disputes unrelated to the company‘s California
activities—over it in California courts. (Maj. opn., ante, at p. 2.) The majority,
however, finds BMS‘s California contacts sufficient for specific, case-related
personal jurisdiction, even though Plavix was not developed or manufactured in
California and the nonresident plaintiffs did not obtain the drug through California
physicians or from a California source, and despite the requirement for specific
jurisdiction that there be a substantial connection between the plaintiff‘s claim and
the defendant‘s forum activities. (Id. at pp. 16–28; see Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452 (Vons).)
I respectfully dissent from the court‘s decision on personal jurisdiction. I
agree the extent and type of contacts to support general jurisdiction are lacking.
But I find in the record no evidence of contacts with California that bear a
substantial connection to the claims of these nonresidents. I therefore would hold
specific jurisdiction has also not been established.
On a defendant‘s motion to quash service of process, the plaintiff asserting
jurisdiction bears the burden of proving the extent of the defendant‘s forum
contacts and their relationship to the plaintiff‘s claims. (Vons, supra, 14 Cal.4th at
p. 449; Gilmore Bank v. AsiaTrust New Zealand Ltd. (2014) 223 Cal.App.4th
1558, 1568.) In this case, the nonresident plaintiffs (real parties in interest on
BMS‘s petition for writ of mandate) have failed to show any substantial nexus,
causal or otherwise, between their claims and BMS‘s activities in California.
One can imagine a number of factual circumstances that might justify
specific jurisdiction in a case like this. Unfortunately, none of those circumstances
have been established here:
If real parties in interest had purchased Plavix while in California or from a
California source, their claims could be considered substantially related to BMS‘s
sale of Plavix in this state. But the record contains no evidence connecting the
Plavix taken by any of the nonresident plaintiffs to California.
If real parties had been prescribed Plavix by a California doctor, their
misrepresentation claims might be considered substantially related to BMS‘s
marketing of Plavix to physicians here. But there is no evidence of a California
connection through real parties’ prescribing physicians.
If the Plavix taken by real parties had been manufactured in California, one
might well consider their defective product claims substantially connected to
BMS‘s forum contacts. But the record shows Plavix has never been manufactured
in California.
If the Plavix taken by real parties had been distributed to their respective
states by codefendant McKesson Corporation, which is headquartered in San
Francisco, it could be argued real parties‘ defective product claims were related to
the distribution agreement between BMS and McKesson. But real parties have
2
adduced no evidence to show how or by whom the Plavix they took was distributed
to the pharmacies that dispensed it to them.
If Plavix had been developed in California, real parties‘ defective product
claims could be considered related to that California activity. But the record
shows Plavix was developed not in California but in New York and New Jersey,
where BMS has, respectively, its headquarters and major operating facilities.
If the labeling, packaging, or regulatory approval of Plavix had been
performed in or directed from California, some of real parties‘ misrepresentation
claims would arguably be related to those California activities. But BMS did none
of those things in California.
Finally, if the ―nationwide marketing‖ campaign on which the majority relies
(maj. opn., ante, at p. 27) had been created or directed from California, claims of
misrepresentations in that marketing would have arisen from BMS‘s California
contacts. But according to the record, none of that marketing work was performed
or directed by BMS’s California employees.
In the absence of a concrete factual relationship between their claims and
BMS‘s contacts with the forum state, on what do real parties, and the majority of
this court, base their argument for specific jurisdiction over BMS in California
courts? In brief, their argument rests on similarity of claims and joinder with
California plaintiffs. First, real parties‘ claims arise from activities similar to
those BMS conducted in California, because in marketing and selling Plavix
throughout the United States, BMS sold the same allegedly defective product in
California as in real parties‘ various states of residence and presumably made
some of the same misrepresentations and omissions in those states and in
California. Second, real parties are joined in this action with plaintiffs who are
California residents and who allege similar claims. Neither of these factors,
3
however, creates a connection between real parties‘ claims of injury and BMS‘s
California activities sufficient to satisfy due process.
By statute, the personal jurisdiction of California courts extends to the limits
set by the state and federal Constitutions. (Code Civ. Proc., § 410.10.)
Constitutional due process limits dictate that in the absence of general
jurisdiction—which exists only if a corporation is incorporated in the forum state
or conducts such intensive activities there as to make it ―at home‖ in that state
(Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 919
(Goodyear))—personal jurisdiction over the corporation to adjudicate a particular
claim (specific jurisdiction) is established only if the controversy ―is related to or
‗arises out of‘ ‖ the company‘s activities in the forum state. (Helicopteros
Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414 (Helicopteros).)
The majority‘s decision is not supported by specific jurisdiction decisions
from the United States Supreme Court, this court, or the lower federal and state
courts. (See pt. I, post.) And as I will discuss later (see pt. II, post), today‘s
decision impairs important functions of reciprocity, predictability, and limited
state sovereignty served by the relatedness requirement. By weakening the
relatedness requirement, the majority‘s decision threatens to subject companies to
the jurisdiction of California courts to an extent unpredictable from their business
activities in California, extending jurisdiction over claims of liability well beyond
our state‘s legitimate regulatory interest.
Just as important, minimizing the relatedness requirement undermines an
essential distinction between specific and general jurisdiction. In Daimler AG v.
Bauman (2014) 571 U.S.___, ___ [187 L.Ed.2d 624, ___, 134 S.Ct. 746, 751], the
United States Supreme Court made clear that general jurisdiction—jurisdiction to
adjudicate controversies unrelated to the defendant‘s forum contacts—is not
created merely by commercial contacts that are ―continuous and systematic‖
4
(Helicopteros, supra, 466 U.S. at p. 416) but only by contacts so extensive as to
render the defendant ― ‗at home‘ ‖ in the forum state. (Daimler, supra, 187
L.Ed.2d at p. 761.) The majority applies that holding to conclude, correctly, that
general jurisdiction is lacking here. (Maj. opn., ante, at pp. 13–16.) But by
reducing relatedness to mere similarity and joinder, the majority expands specific
jurisdiction to the point that, for a large category of defendants, it becomes
indistinguishable from general jurisdiction. At least for consumer companies
operating nationwide, with substantial sales in California, the majority creates the
equivalent of general jurisdiction in California courts. What the federal high court
wrought in Daimler—a shift in the general jurisdiction standard from the
―continuous and systematic‖ test of Helicopteros to a much tighter ―at home‖
limit—this court undoes today under the rubric of specific jurisdiction.
I. The Case Law Does Not Support Specific Jurisdiction in These
Circumstances
Specific jurisdiction over a defendant—jurisdiction to adjudicate a dispute
connected to the defendant‘s contacts with the forum state—depends on the
relationship among the defendant, the forum, and the litigation. (Helicopteros,
supra, 466 U.S. at p. 414.) We have summarized the requirements for specific
jurisdiction as threefold: (1) the defendant has purposefully availed itself of forum
benefits; (2) the controversy arises out of or is otherwise related to the defendant‘s
forum contacts; and (3) the assertion of personal jurisdiction in the particular
litigation is reasonable in light of the burdens and benefits of forum litigation.
(Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062
(Snowney).)
BMS contests neither the first prong of this tripartite test, that the company
has purposefully availed itself of forum benefits by its continuous course of
substantial business activities in California, nor the third, that taking jurisdiction
5
would impose unreasonable burdens on the company. (Snowney, supra, 35
Cal.4th at p. 1070.) The key issue here is therefore whether the claims of the real
parties in interest (plaintiffs residing in states other than California) arise out of, or
are otherwise related to, BMS‘s activities in California.
A. The Relatedness Requirement for Specific Jurisdiction
The requirement that the litigation be related to the defendant‘s activities in
or directed to the forum, by which it has purposefully availed itself of the benefits
of doing business in the state, was first stated in the landmark decision of Internat.
Shoe Co. v. Washington (1945) 326 U.S. 310 (International Shoe). The high court
first noted that jurisdiction is well established when a corporation‘s ―continuous
and systematic‖ activities in the state ―give rise to the liabilities sued on.‖ (Id. at
p. 317.) Even when a corporation has engaged in only occasional activities in the
state, due process may still be satisfied if those activities have created the
obligations sued on: ―[T]o the extent that a corporation exercises the privilege of
conducting activities within a state, it enjoys the benefits and protection of the
laws of that state. The exercise of that privilege may give rise to obligations, and,
so far as those obligations arise out of or are connected with the activities within
the state, a procedure which requires the corporation to respond to a suit brought
to enforce them can, in most instances, hardly be said to be undue.‖ (Id. at p.
319.)
In International Shoe itself, the relationship between the forum activities and
the litigation was a straightforward one: The defendant corporation had employed
salesmen in the State of Washington, which required it contribute to the state‘s
unemployment compensation fund; the litigation concerned an assessment for
unpaid contributions. (International Shoe, supra, 326 U.S. at pp. 312–313.) Thus
―the obligation which is here sued upon arose out of those very [forum] activities,‖
6
making it reasonable for Washington ―to enforce the obligations which appellant
has incurred there.‖ (Id. at p. 320.)
The United States Supreme Court has not, since International Shoe, greatly
elaborated on its understanding of the relatedness requirement. The court in
Helicopteros slightly reformulated the requirement: jurisdiction may be
appropriate if the controversy ―arise[s] out of or relate[s] to‖ the company‘s forum
contacts. (Helicopteros, supra, 466 U.S. at p. 414.) But the high court did not
explain or apply that standard in Helicopteros, and in Goodyear, supra, 564 U.S.
at page 919, the court again used a different formulation, suggesting a narrower
vision of relatedness: ―Specific jurisdiction . . . depends on an ‗affiliatio[n]
between the forum and the underlying controversy,‘ principally, activity or an
occurrence that takes place in the forum State and is therefore subject to the
State’s regulation.‖ (Italics added.) The Goodyear court went on, very briefly, to
explain why specific jurisdiction did not exist in the case before it, which involved
the deaths of two North Carolina boys in an overseas bus accident: ―Because the
episode-in-suit, the bus accident, occurred in France, and the tire alleged to have
caused the accident was manufactured and sold abroad, North Carolina courts
lacked specific jurisdiction to adjudicate the controversy.‖ (Ibid.) None of the
injury-causing events having occurred in the forum state, the basis for specific
jurisdiction was lacking.
Of the post- International Shoe decisions in which the high court actually
found a factual basis for specific jurisdiction, each featured a direct link between
forum activities and the litigation. (See Burger King Corp. v. Rudzewicz (1985)
471 U.S. 462, 479–480 [specific jurisdiction in Florida courts proper where
franchise dispute ―grew directly out of‖ contract formed between Florida
franchisor and Michigan franchisee, whose breach ―caused foreseeable injuries to
the corporation in Florida‖]; Calder v. Jones (1984) 465 U.S. 783, 789 [California
7
jurisdiction over writer and editor based in Florida proper for article distributed in
California and defaming California resident, where the defendants‘ ―intentional,
and allegedly tortious, actions were expressly aimed at California‖ and they knew
article ―would have a potentially devastating impact‖ on California resident];
Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 776–777 (Keeton) [specific
jurisdiction in New Hampshire courts proper over Ohio corporation where
corporation‘s sale in New Hampshire of magazine defaming the plaintiff injured
her reputation in that state]; McGee v. International Life Ins. Co. (1957) 355 U.S.
220, 223 [specific jurisdiction in California courts proper where action was based
on a life insurance contract delivered in California and on which the insured, a
California resident at his death, had paid premiums from the state].) Nothing in
the high court‘s specific jurisdiction decisions suggests an abandonment or broad
relaxation of the relatedness requirement.
This court did, in Vons, adopt a relatively broad standard for relatedness.
After canvassing formulations put forward by scholars and lower courts, we held
the relationship between the defendant‘s forum contacts and the plaintiff‘s claims
in litigation need not be one of proximate legal causation or even ―but for‖ factual
causation, nor need the forum contacts be substantively relevant in the plaintiff‘s
action. (Vons, supra, 14 Cal.4th at pp. 460–475.) Rather, the relationship required
for specific jurisdiction exists if the claims bear a ―substantial nexus or
connection‖ to the activities by which the defendant has purposefully availed itself
of forum benefits. (Id. at p. 456; accord, Snowney, supra, 35 Cal.4th at pp. 1067–
1068.) The test is not a mechanical one, but a weighing process in which ―the
greater the intensity of forum activity, the lesser the relationship required between
the contact and the claim.‖ (Vons, supra, at p. 453; accord, Snowney, supra, at
p. 1068.) Specific jurisdiction in California courts is proper if ―because of the
defendants‘ relationship with the forum, it is not unfair to require that they answer
8
in a California court for an alleged injury that is substantially connected to the
defendants‘ forum contacts.‖ (Vons, supra, at p. 453.)
Notwithstanding our relatively broad substantial connection standard, mere
similarity of claims is an insufficient basis for specific jurisdiction. The claims of
real parties in interest, nonresidents injured by their use of Plavix they purchased
and used in other states, in no sense arise from BMS‘s marketing and sales of
Plavix in California, or from any of BMS‘s other activities in this state. Nor is any
other substantial connection apparent.
BMS promoted and sold Plavix in this state, giving rise to the California
plaintiffs‘ claims. BMS also engaged in such promotion and sales in many other
states, giving rise to claims by residents of those states. As all the claims derive
from similar conduct and allege similar injuries, the nonresident plaintiffs‘ claims
closely resemble those made by California residents. But I can perceive no
substantial nexus between the nonresidents‘ claims and BMS‘s California
activities. In each state, the company‘s activities are connected to claims by those
who obtained Plavix or were injured in that state, but no relationship other than
similarity runs between the claims made in different states. As BMS argues, its
California contacts fail to ―intersect‖ with the nonresident plaintiffs‘ claims.
Even a commentator ―sympathetic to an expanded role for specific
jurisdiction‖ found the approach of the Court of Appeal in this case, which the
majority in this court largely replicates, so overly broad as ―to reintroduce general
jurisdiction by another name.‖ (Silberman, The End of Another Era: Reflections
on Daimler and Its Implications for Judicial Jurisdiction in the United States
(2015) 19 Lewis & Clark L.Rev. 675, 687 (hereafter Silberman).) ―A more
plausible specific jurisdiction forum might be the state where the drugs were
manufactured or distributed to both the California and non-California plaintiffs; all
plaintiffs‘ claims might be said to ‗arise from‘ such defective manufacture and
9
thereby provide an alternative single forum in which to have all the plaintiffs
assert their claims. In Bristol-Meyers [sic], no such connection to California can
be established for the non-California plaintiffs. The claims of the California and
nonresident plaintiffs are merely parallel.‖ (Ibid., fn. omitted.)
One form of substantial connection between a defendant‘s forum activities
and the claims against it exists when the forum activities are legally relevant to
establish the claims. (Vons, supra, 14 Cal.4th at p. 469.) In that situation, the
forum state‘s interest in regulating conduct occurring within its borders is
implicated, as the plaintiff is seeking to impose liability, at least in part, for acts
the defendant committed in the forum state. (Id. at p. 472.) But no such legal
relevance connection is apparent here. The nonresident plaintiffs‘ claims rest on
allegations that BMS deceptively marketed and sold Plavix to them or their
prescribing physicians, but, as noted earlier, the record is devoid of any
suggestion, nor do real parties claim, the nonresident plaintiffs bought or were
prescribed Plavix from a California source. BMS‘s marketing and sales activities
in California thus appear irrelevant to real parties‘ claims. To quote BMS‘s brief,
the nonresident plaintiffs‘ claims ―would be exactly the same if BMS had never
set foot in California, had never engaged in any commercial activity in California,
had never sold any product here, and had engaged only non-California
distributors.‖
In addition to its interest in regulating conduct within its borders, each state
has an interest in providing a judicial forum for its injured residents, regardless of
whether the conduct sued on occurred in the state. (Vons, supra, 14 Cal.4th at
pp. 472–473.) ―[T]he state has a legitimate interest as sovereign in providing its
residents with protection from injuries caused by nonresidents and with a forum in
which to seek redress. This assertion of sovereignty with respect to nonresident
defendants is fair when those defendants have availed themselves of certain
10
benefits within the state and the claim is related to those contacts.‖ (Id. at p. 473.)
But reference to the state‘s interest in providing a forum for its residents to seek
legal redress is of no help to real parties in interest here, as they are not California
residents. California has no discernable sovereign interest in providing an Ohio or
South Carolina resident a forum in which to seek redress for injuries in those states
caused by conduct occurring outside California. A mere resemblance between the
nonresident plaintiffs‘ claims and those of California residents creates no
sovereign interest in litigating those claims in a forum to which they have no
substantial connection.
The majority argues that taking jurisdiction over the nonresidents‘ claims
furthers a California interest because evidence of their injuries may be admissible
to help the California plaintiffs prove Plavix was a defective product. (Maj. opn.,
ante, at p. 32.) But admissibility of other injuries does not depend on joinder of
the other injured person, as the cases the majority cites illustrate. In neither Ault v.
International Harvester (1974) 13 Cal.3d 113 nor Elsworth v. Beech Aircraft
Corp. (1984) 37 Cal.3d 540, where evidence of prior similar injuries was held
admissible, were those injured in the prior accidents joined as parties in the action.
The majority also suggests that jurisdiction over the nonresidents‘ claims is
proper because California law attempts to ―protect[] consumers from the potential
dangers posed by prescription medication.‖ (Maj. opn., ante, at p. 33.) The
statutes cited, however, regulate the dispensing of prescription drugs by California
pharmacists (Bus. & Prof. Code, §§ 4070–4078), while the claims at issue in this
case are against BMS, a drug manufacturer. Moreover, real parties in interest have
neither alleged nor proven they were prescribed or furnished Plavix in California.
How the cited California laws might apply to their claims is thus unclear, to say
the least.
11
In the same passage, the majority implies that the activity of BMS‘s
California sales representatives, whose representations California has an interest in
regulating, might somehow be related to real parties‘ claims. (Maj. opn., ante, at
p. 33.) In this instance as well, the majority ignores the complete absence of
evidence showing any such relationship. Real parties in interest, who have the
burden of proving forum contacts related to their claims, have not even attempted
to establish that sales representatives in California misled physicians in other
states about Plavix‘s efficacy and safety. While no doubt correct California has an
interest in regulating dangerous conduct within our state (maj. opn, ante, p. 33, fn.
6), the majority neglects to explain how that interest can be served by taking
jurisdiction to adjudicate the claims of persons unaffected by any such conduct.
Finally, the majority asserts that California‘s interest in regulating the
conduct of codefendant McKesson Corporation (McKesson), a pharmaceutical
distributor headquartered in California, justifies adjudicating real parties‘ claims
against BMS in a California court. (Maj. opn., ante, at pp. 33–34.) Of all the
majority‘s red herrings, this is perhaps the ruddiest. Why plaintiffs sued
McKesson as well as BMS is not obvious—BMS suggests it was merely to avoid
removal to federal court (see 28 U.S.C. § 1441(b)(2))—but at no point have real
parties argued McKesson bore any responsibility in providing them with Plavix.
In their brief on the merits, real parties contended BMS‘s relationship with
McKesson helped BMS make substantial profits ―within California,‖ and at oral
argument their attorney acknowledged he had no evidence tying McKesson to the
Plavix that allegedly injured real parties outside this state. The notion of a
connection between McKesson‘s conduct in California and the claims of real
parties in interest, which arise from their acquisition and use of Plavix in other
states, is purely a product of the majority‘s imagination.
12
Notwithstanding the majority‘s speculative suggestions, as far as the record
shows real parties‘ claims arise solely from conduct in other states and do not
implicate California‘s legitimate interest in regulating conduct within its borders.
B. Jurisdiction Over Liability Claims for Pharmaceutical Drugs
Neither real parties in interest nor the majority cites any decision, state or
federal, finding specific jurisdiction on facts similar to those here. In fact, courts
in both systems have rejected jurisdiction over drug defect claims made by
plaintiffs who neither reside in nor were injured by conduct in the forum state.
In Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700 (Boaz), a group of
plaintiffs, mostly residents of New York and New Jersey, but including one
California resident, sued several manufacturers of the drug DES for injuries
allegedly resulting from their grandmothers‘ ingestion of the drug in New York.
(Id. at p. 704.) The appellate court affirmed the dismissal of the action against
defendant Emons Industries, Inc., which was not subject to California‘s general
jurisdiction, holding the basis for specific jurisdiction was also lacking as the
defendant‘s activities in California were unrelated to the plaintiffs‘ injuries. (Id. at
p. 705.) ―It is conceded that none of appellants‘ grandmothers, who ingested DES,
did so in California. Nor did any of them acquire the product as the result of any
of Emons‘s activities related to California. Indeed, as we have seen, none of them
except [the single California resident] has any connection with this state.‖ (Id. at
p. 718.) Though the defendant had sold DES in California as it had in other states,
that similarity of conduct did not subject it to personal jurisdiction for the purposes
of adjudicating the out-of-state plaintiffs‘ claims, though, as the court noted,
jurisdiction might be appropriate ―in a case arising out of ingestion in California or
13
by purchase or prescription in California of DES.‖ (Id. at p. 721.)1 As in the
present case, none of those facts had been or could be established.
Glater v. Eli Lilly & Co. (1st Cir. 1984) 744 F.2d 213, presented a similar
fact pattern in an individual suit. The plaintiff there sued a DES manufacturer in a
federal court in New Hampshire for injuries she allegedly suffered from in utero
exposure to the drug. The plaintiff‘s mother took the drug in Massachusetts,
where she lived. (Id. at p. 214.) That the manufacturer had marketed DES
nationwide, including in New Hampshire, was insufficient to support specific
jurisdiction: Although Lilly marketed and sold DES nationwide, including in New
Hampshire, ―Glater‘s cause of action did not arise from Lilly‘s New Hampshire
activities; rather, her injuries were caused in Massachusetts by exposure in utero
to DES which her mother purchased and consumed in Massachusetts.‖ (Id. at
p. 216.) Were the defendant‘s New Hampshire contacts deemed sufficiently
related to the cause of action arising in Massachusetts, the court ―would be obliged
to hold that any plaintiff in Glater‘s position—a nonresident injured out of state by
a drug sold and consumed out of state—could bring suit in New Hampshire for
DES injuries.‖ (Id. at p. 216, fn. 4.) Such ―retributive jurisdiction‖ over claims
1 As to the California resident, the Boaz court reasoned jurisdiction was
lacking because her grandmother had not taken DES in California and therefore
―any DES-related affliction she suffers has nothing to do with any of Emons‘s
activities related to California.‖ (Boaz, supra, 40 Cal.App.4th at p. 718.) The
court may have gone too far in this respect; California‘s interest in providing a
forum for its residents to seek redress for actions having injurious effects in the
state arguably justified specific jurisdiction over the California resident‘s claims.
For the same reason, In re DES Cases (E.D.N.Y. 1992) 789 F.Supp. 552 can be
distinguished as involving the claims of New York residents seeking a remedy for
injuries occurring in New York; although the defendants challenging jurisdiction
there did not market DES in New York, they bore legal responsibility for injuries
there under the state‘s rule of market share liability. (See id. at pp. 592–593.)
14
unconnected to the forum ―comports with neither logic nor fairness.‖ (Ibid.;
accord, Seymour v. Parke, Davis & Company (1st Cir. 1970) 423 F.2d 584, 585,
587 [suit in New Hampshire over drug taken and allegedly causing injury in
Massachusetts ―did not arise [in New Hampshire], or as a result of anything which
occurred there‖ and hence was an ―unconnected cause[] of action‖ that could only
be justified by general jurisdiction, the basis for which was also lacking].)
Also similar, though less extensively reasoned as to specific jurisdiction, is
Ratliff v. Cooper Laboratories, Inc. (4th Cir. 1971) 444 F.2d 745. That decision
addressed two consolidated cases brought in a federal court in South Carolina,
both by residents of other states who bought and consumed the allegedly harmful
drugs (not named in the decision), against drug manufacturers that conducted
business in South Carolina but were not incorporated or headquartered there and
had not made the subject drugs there. (Id. at p. 746.) The court observed that the
plaintiffs were not residents of South Carolina and their causes of action ―arose
outside the forum and were unconnected with the defendant‘s activities in South
Carolina.‖ (Id. at p. 747.) Noting ―the lack of a ‗rational nexus‘ between the
forum state and the relevant facts surrounding the claims presented‖ such as would
support specific jurisdiction, the court moved on to general jurisdiction (for which
it also found the forum contacts insufficient). (Id. at p. 748.)
In all these cases, the defendants had sold their pharmaceutical drugs in the
forum state. Indeed, in Boaz, California physicians accounted for 9 percent of the
defendant‘s DES sales. (Boaz, supra, 40 Cal.App.4th at p. 715.)2 Yet these
2 The majority (maj. opn., ante, at p. 25) notes that the defendant in Boaz,
unlike BMS, did not employ salespeople or maintain offices in the state. Yet
through ―advertising in selected professional magazines and professional journals,
and targeted mailings of samples and brochures to obstetricians and
gynecologists,‖ all ―done on a national scale‖ (Boaz, supra, 40 Cal.App.4th at
(footnote continued on next page)
15
courts— correctly, in my view— considered that forum activity to be unconnected
to the plaintiffs‘ claims, which arose from use of the drugs in other states. Not
until today‘s decision has specific jurisdiction over a drug liability claim arising
from the nonresident plaintiff‘s purchase, use, and injury outside the forum state
been premised on the fact that the defendant also sold the drug in the forum state.
C. Specific Jurisdiction Decisions Relied on by Real Parties
Turning from pharmaceutical liability to the broader case law, we see that
none of the decisions real parties cite support specific jurisdiction based, as here,
on the mere resemblance between the disputed claims and distinct claims brought
by other plaintiffs that arose from the defendant‘s forum contacts. Each of these
cited cases involved a substantial connection between the defendant‘s activities in
the forum state and the plaintiff‘s claims, not merely a connection between the
forum activities and similar claims made by other plaintiffs.
In Cornelison v. Chaney (1976) 16 Cal.3d 143 (Cornelison), a California
resident sued for the wrongful death of her husband, who died in an automobile
accident in Nevada. The defendant, a Nebraska resident, was a trucker hauling
goods in interstate commerce. He made approximately 20 trips to California each
year and was en route to this state with a shipment when his truck collided with
the decedent‘s vehicle in Nevada, near the California border. (Id. at pp. 146–147.)
We concluded the plaintiff‘s cause of action did bear a substantial connection
to the defendant‘s business activities in California: ―As we have seen, defendant
(footnote continued from previous page)
p. 715), the company sold a large amount of DES—the same product at issue in
the disputed lawsuits—in California. Like BMS, then, the defendant in Boaz
―enjoyed sizeable revenues from the sales of its product here.‖ (Maj. opn., ante, at
p. 26.) Why the absence of other, dissimilar ties should serve to distinguish the
case is unclear.
16
has been engaged in a continuous course of conduct that has brought him into the
state almost twice a month for seven years as a trucker under a California license.
The accident occurred not far from the California border, while defendant was
bound for this state. He was not only bringing goods into California for a local
manufacturer, but he intended to receive merchandise here for delivery elsewhere.
The accident arose out of the driving of the truck, the very activity which was the
essential basis of defendant‘s contacts with this state. These factors demonstrate,
in our view, a substantial nexus between plaintiff‘s cause of action and
defendant‘s activities in California.‖ (Cornelison, supra, 16 Cal.3d at p. 149.) In
further support, we observed that California had an interest in providing a forum
for the litigation because the plaintiff was a California resident. (Id. at p. 151.)
Cornelison has in common with the present case that the plaintiff‘s injury
arose directly from the defendant‘s conduct outside California. But in Cornelison
the defendant‘s out-of-state conduct, his allegedly negligent driving in Nevada,
was directed (literally) toward California and resulted in injury to a California
resident. The connections to California that justified jurisdiction in Cornelison are
missing from the claims of real parties in interest here.
In Vons, supra, 14 Cal.4th 434, we held specific jurisdiction proper over two
restaurant franchisees based and operating in Washington State. In multiparty
litigation arising out of food poisoning incidents at their and other Jack-in-the-Box
restaurants, the supplier of the allegedly tainted meat (Vons Companies, Inc.
(Vons)) cross-complained against several franchisees, including the Washington
franchisees, alleging their failure to cook the meat properly caused the poisoning.
(Id. at pp. 440–441.) Among other contacts with California, the franchisees had
executed the franchise agreements, which specified methods of preparing Jack-in-
the-Box food products, in California, did regular business with the franchisor at its
17
headquarters in San Diego, and had officers attend training sessions offered by the
franchisor in California. (Id. at pp. 442–443.)
We held Vons‘s claims against the franchisees bore a substantial relationship
to their contacts with California for two reasons: first, the franchise relationship—
formed in California, under which the franchisees bought meat Vons supplied to
the franchisor—had drawn Vons and the franchisees into a relationship as alleged
joint tortfeasors, with certain joint liabilities and rights of indemnification, rights
upon which Vons‘ cross-complaint in part rested; second, the franchise
relationship, by imposing uniform standards for cooking food, buying equipment,
and training employees, was itself an alleged source of Vons‘ injuries, which Vons
traced to the ― ‗systematically deficient‘ ‖ procedures required by the franchisor.
(Vons, supra, 14 Cal.4th at pp. 456–457.)
Real parties in interest rely on Vons for the propositions that for specific
jurisdiction to be justified the defendant‘s forum activities need not be directed at
the plaintiff or directly give rise to the plaintiff‘s claims. (See Vons, supra, 14
Cal.4th at pp. 453, 457.) Both points are well taken. Nonetheless, in Vons the
connection between the forum activities and the claim was far more substantial
than in the present case. By their activities in California, including the formation
of franchise relationships, the franchisees in Vons established the conditions that
would ultimately allow the franchisor‘s meat supplier, Vons, to seek indemnity for
their joint liability and redress for its own injuries. The franchisees‘ forum
activities were not directed at Vons, with which they had no direct relationship,
and may not have proximately given rise to Vons‘s claims, but by establishing a
franchise relationship pursuant to which the franchisees bought Vons‘s meat and
prepared it according to methods set out in the franchise agreement, they set the
stage for those claims, to say the least. No such nexus is apparent here, where
18
BMS‘s marketing and sales of Plavix in California did nothing to establish the
circumstances under which it allegedly injured plaintiffs in other states.
Finally as to California cases, real parties in interest cite Snowney, supra, 35
Cal.4th 1054, in which we held a California resident could sue a group of Nevada
hotels in a California court for the hotels‘ failure to provide notice that they would
impose an energy surcharge on their room prices. (Id. at p. 1059.) In a relatively
brief discussion of the relatedness issue (the bulk of our analysis concerned the
question of purposeful availment), we held the plaintiff‘s claims had a substantial
connection to the defendants‘ California forum activities because the plaintiff‘s
false advertising and unfair competition claims were based on the hotels‘ alleged
omissions in their California advertising and in the reservation process. (Id. at
p. 1068.) ―Because the harm alleged by plaintiff relates directly to the content of
defendants‘ promotional activities in California, an inherent relationship between
plaintiff‘s claims and defendants‘ contacts with California exists.‖ (Id. at p. 1069.)
Real parties rely on Snowney for its adherence to the substantial connection
test articulated in Vons and for its reiteration of Vons‘s statements that the required
intensity of forum contacts and connection of the claim to those contacts are
inversely related (the greater the contacts, the less of a relationship need be shown)
and that the forum contacts need not be directed at the plaintiff or give rise directly
to the plaintiff‘s claim. (See Snowney, supra, 35 Cal.4th at p. 1068.) I find those
principles unavailing in this case. However intense the defendant‘s activities in
California, they must still bear a substantial relationship to the plaintiff‘s claims,
and neither Snowney nor any of the other decisions real parties cite suggests that a
mere resemblance between the plaintiff‘s claims and those made by other
plaintiffs that are based on the defendant‘s California contacts establishes a
substantial connection.
19
Cornelison, Vons and Snowney establish that we do not demand the
relationship between the defendant‘s California contacts and the plaintiff‘s claims
be causal or direct. They do not, however, support specific jurisdiction on the
tenuous basis of a resemblance to other claims by other plaintiffs. (See
Greenwell v. Auto-Owners Ins. Co. (2015) 233 Cal.App.4th 783, 801 [Vons and
Snowney require a substantial connection between the plaintiff‘s claims and the
defendant‘s forum contacts; test is not satisfied whenever there is ―any
relationship at all‖].)
In Keeton, supra, 465 U.S. 770, the United States Supreme Court upheld the
assertion of specific jurisdiction in New Hampshire to adjudicate the libel claims
of a New York resident against an Ohio corporation with its principal place of
business in California. (Id. at pp. 772–774.) The high court found the defendant‘s
regular circulation of magazines in New Hampshire was sufficient to support the
state‘s jurisdiction over a libel claim based on the magazine‘s contents, even
though the plaintiff could, under the ― ‗single publication rule‘ ‖ followed in New
Hampshire, recover damages from publication of the magazine throughout the
United States. (Id. at pp. 773–774.) The court emphasized that the plaintiff was
suing, in part, for damages she suffered in New Hampshire, ―[a]nd it is beyond
dispute that New Hampshire has a significant interest in redressing injuries that
actually occur within the State.‖ (Id. at p. 776.)
Unlike the plaintiff in Keeton, real parties in interest suffered no injury in
California or from BMS‘s conduct in California. They nonetheless argue Keeton
is analogous because the plaintiff there sought recovery, in large part, for injuries
incurred outside the forum state. For two reasons, however, the analogy does not
hold.
First, the single publication rule at work in Keeton was a state law rule
governing the measure of damages for defamation, not one governing the joinder
20
of claims or claimants. The propriety of that state law damages rule was not itself
a jurisdictional issue; rather, the question was whether personal jurisdiction in
New Hampshire violated due process given the state‘s single publication rule (and
its unusually long statute of limitations). (Keeton, supra, 465 U.S. at pp. 773–
774.) In contrast, BMS‘s motion to quash service of summons as to the claims of
the nonresident plaintiffs directly presents the jurisdictional issue as to those
plaintiffs. We ask whether the superior court may take jurisdiction over defendant
to adjudicate those claims, and are not required to decide whether the entire suit,
including the claims of the California residents, would be subject to dismissal for
lack of jurisdiction if the nonresidents‘ claims were included in it.
Second, New Hampshire had an interest in adjudicating the out-of-state
damages that does not translate to the factual context of this case. (See Keeton,
supra, 465 U.S. at p. 777.) To prevent the extraordinary burden on courts and
litigants of having a defamation plaintiff sue separately in 50 states—and to allow
effective application of a statute of limitations for publications that continue or
recur over lengthy periods—most states have adopted the single publication rule,
allowing only a single action per publication, but one in which all damages from
the publication may be recovered. (See Civ. Code, § 3425.3 [Cal. Uniform Single
Publication Act]; Christoff v. Nestlé USA, Inc. (2009) 47 Cal.4th 468, 477–479;
see also Keeton, supra, at p. 778.)
On the facts of this case, there is no analogous state interest of similar force
that would justify California courts adjudicating the nonresident plaintiffs‘ claims.
This is not a case in which the individual California plaintiffs would be stymied by
procedural obstacles or restrictive damages rules were the nonresidents excluded
from the action. Plaintiffs allege they suffered ―severe physical, economic and
emotional injuries‖ from their use of Plavix, including bleeding ulcers,
gastrointestinal bleeding, cerebral bleeding, heart attack and stroke. Even if some
21
of the California plaintiffs might have individual claims too small to justify suit,
the consolidation of scores of such claims from within California would remedy
that insufficiency without the addition of hundreds of nonresidents‘ claims.
California can thus provide an effective forum for its residents to seek redress
without joining those claims to similar claims by nonresidents. Nor does this case
raise the specter of a continually restarting statute of limitations that would subject
defendants like BMS to the harassment of unending suits for the same conduct
(see Christoff v. Nestlé USA, Inc., supra, 47 Cal.4th at p. 478), as was the case
with the defamation suit in Keeton.
The majority argues jurisdiction over nonresidents‘ claims is justified by the
efficiencies of litigating all claims arising from a ―mass tort‖ in a single forum and
by the existence of a complex litigation division in San Francisco Superior Court
―well suited to expeditiously handle such large cases.‖ (Maj. opn., ante, at pp. 35,
34.) If these 678 plaintiffs were all the injured Plavix users in the United States,
and the only options for the nonresident plaintiffs were participation in this action
or individual actions in their home states, then joint proceedings in California
would likely be the most efficient procedure, though the extent of that efficiency
would depend on how choice of law questions are resolved, among other factors.
(See Silberman, supra, 19 Lewis & Clark L.Rev. at p. 687 [―As for the efficiency
arguments relied on by the California appeals court, only the issue of the defective
quality of the drug is common to all the claims.‖].)
But these plaintiffs do not constitute the entire universe of those claiming
injury from Plavix—far from it—and real parties‘ options are not limited to
joining this action or each bringing separate actions in their respective states. In
addition to consolidated multidistrict federal litigation in the District of New
22
Jersey, individual, mass or representative actions have been brought in several
other states.3 Whether or not real parties‘ claims are heard together with those of
the California plaintiffs, inefficiency and the potential for conflicting rulings will
exist so long as actions are simultaneously pending in several state and federal
courts. (See generally Miller, Overlapping Class Actions (1996) 71 N.Y.U.
L.Rev. 514, 520–525.)
No mechanism exists for centralizing nationwide litigation in a state court;
there is no means by which pending actions in Illinois courts, for example, can be
transferred to a California court. The San Francisco Superior Court, no matter
how well equipped for trying complex cases, cannot adjudicate the entire dispute
between injured Plavix users and BMS. If efficiency is the goal, federal litigation
3 See In re Plavix Marketing, Sales Practices and Products Liability
Litigation (No. II) (U.S. Jud. Panel Multidist. Litig. 2013) 923 F.Supp.2d 1376,
1379–1381 (centralizing in District of New Jersey litigation arising in that state
and in Illinois, Iowa, Louisiana, New York, and Pennsylvania, and potentially
centralizing additional actions from California and Mississippi); Mills v. Bristol-
Myers Squibb Co. (D.Ariz., Aug. 12, 2011, No. CV 11-968-PHX-FJM) 2011 WL
3566131, at *1 (individual action); Hawaii ex rel. Louie v. Bristol-Myers Squibb
Co. (D.Hawaii, Aug. 5, 2014, No. CIV. 14-00180 HG-RLP) 2014 WL 3865213, at
*2 (parens patriae action brought by the Attorney General of Hawaii remanded to
state court); Davidson v. Bristol-Myers Squibb Co. (S.D.Ill., Apr. 13, 2012, No.
CIV. 12-58-GPM) 2012 WL 1253165, at *5 (action by 83 plaintiffs remanded to
state court); Boyer v. Bristol-Myers Squibb Co. (S.D.Ill., Apr. 13, 2012, No. CIV.
12-61-GPM) 2012 WL 1253177, at *5 (same, as to action by 71 plaintiffs); Anglin
v. Bristol-Myers Squibb Co. (S.D.Ill., Apr. 13, 2012, No. CIV. 12-60-GPM) 2012
WL 1268143, at *5 (same, as to action by 67 plaintiffs); Tolliver v. Bristol-Myers
Squibb Co. (N.D.Ohio, July 30, 2012, No. 1:12 CV 00754) 2012 WL 3074538, at
*1 (individual action); Employer Teamsters-Local Nos. 175/505 Health and
Welfare Trust Fund v. Bristol-Myers Squibb Co. (S.D.W. Va. 2013) 969
F.Supp.2d 463, 466 (action by third party payors alleging misleading and false
marketing of Plavix).
23
centralized through the multidistrict procedure offers a more promising path than a
series of uncoordinated state and federal court actions.
Keeton, in which jurisdiction was found proper despite a state law rule
allowing damages for out-of-state injuries, thus fails to support real parties‘
contention that jurisdiction over litigation brought by nonresident plaintiffs whose
claims arose in other states may be obtained by joining their cases to similar ones
brought by California plaintiffs. Such jurisdiction by joinder, moreover, would
run counter to the holding of Hanson v. Denckla (1958) 357 U.S. 235 (Hanson).
In Hanson, the high court held a Florida court considering the validity of a
trust created in Delaware did not have personal jurisdiction over the Delaware
trustee, who had performed no relevant acts in Florida (357 U.S. at p. 252),4 even
though other parties to the dispute resided in Florida and could be brought before
the Florida court: ―It is urged that because the settlor and most of the appointees
and beneficiaries were domiciled in Florida the courts of that State should be able
to exercise personal jurisdiction over the nonresident trustees. This is a non
sequitur. With personal jurisdiction over the executor, legatees, and appointees,
there is nothing in federal law to prevent Florida from adjudicating concerning the
respective rights and liabilities of those parties. But Florida has not chosen to do
4 The majority‘s account of Hanson as resting solely on the purposeful
availment prong of the specific jurisdiction test (maj. opn., ante, at p. 26, fn. 3) is
incomplete. The trust settlor in Hanson had moved to Florida after establishing
the trust; the trustee then paid the settlor trust income in that state and received
from her directions for trust administration, including the execution of two powers
of appointment. (Hanson, supra, 357 U.S. at p. 252 & fn. 24.) But because the
litigation concerned the validity of the trust agreement itself (id. at p. 253), the
cause of action was ―not one that arises out of an act done or transaction
consummated in the forum State.‖ (Id. at p. 251.) Hanson‘s holding was thus
based on the lack of a relationship between the litigation and the defendant‘s
forum contacts as well as on the paucity of those contacts.
24
so. As we understand its law, the trustee is an indispensable party over whom the
court must acquire jurisdiction before it is empowered to enter judgment in a
proceeding affecting the validity of a trust. It does not acquire that jurisdiction by
being the ‗center of gravity‘ of the controversy, or the most convenient location
for litigation.‖ (Id. at p. 254, fn. omitted.)
It is likewise a non sequitur to argue that because many Californians have
sued BMS for injuries allegedly caused by their use of Plavix, and the superior
court‘s jurisdiction to address their claims is not disputed, the claims of
nonresidents injured in other states should also be adjudicated here. California
might or might not be an especially convenient and efficient forum for nationwide
Plavix litigation, but joinder of California plaintiffs cannot confer personal
jurisdiction over BMS to adjudicate claims that do not arise out of, and are not
otherwise related to, BMS‘s business activities in California.
The majority posits two bases for deeming BMS‘s California activities
related to the nonresident plaintiffs‘ claims. First, despite a silent factual record
on this point, the majority infers that BMS employed the ―same . . . assertedly
misleading marketing and promotion‖ in California as in the states where real
parties resided and were allegedly injured.5 (Maj. opn., ante, at p. 23.) I have
shown above that neither the case law nor an analysis of forum state interests
supports basing specific jurisdiction on a similarity between activities in the forum
state and those outside the forum. Characterizing BMS‘s multistate marketing
activities as ―coordinated‖ (maj. opn., ante, at p. 24) adds nothing to the
5 Despite relying on BMS‘s nationwide marketing of Plavix as a basis for
jurisdiction, and despite bearing the burden of proof on contacts and relatedness,
real parties in interest introduced no evidence of particular marketing materials or
broadcasts deployed in any state.
25
jurisdictional argument given that, as the majority concedes, the record shows
BMS‘s marketing campaign for Plavix was coordinated from New York and New
Jersey rather than from California. The majority‘s supposition that California
courts have personal jurisdiction over an out-of-state defendant to adjudicate a
claim arising from deceptive advertising in, say, Maryland because the defendant
used a common marketing strategy in California, Maryland and other states is
without rational foundation.
Nor does calling BMS‘s nationwide marketing of Plavix a ―course of
conduct‖ (maj. opn., ante, at pp. 24, 25, 36) advance the majority‘s cause. As
already noted (fn. 5, ante), real parties introduced no evidence of marketing
materials or broadcasts used in any state. Other than that some degree of
commonality existed, which BMS conceded, the extent of marketing overlap
among the states is simply unknown. Certainly, this record provides no basis for
assuming that real parties and the California plaintiffs were all injured by a single
television broadcast made simultaneously in every media market or a single print
advertisement published simultaneous in newspapers and magazines throughout
the nation. This is not a case, that is to say, of a single act injuring plaintiffs in
multiple states at one blow, where the argument for common jurisdiction might be
stronger. All that appears is that Plavix was marketed nationwide and that BMS
may have used many of the same materials—none of them generated in
California—in various states. Such similarity of causes is not sufficient to give
our courts jurisdiction over all claims, wherever they arise, based on
misrepresentations or omissions in a company‘s marketing materials.
Second, the majority notes that BMS maintains some research facilities in
California, although the majority concedes Plavix was not developed in those
26
facilities.6 (Maj. opn., ante, at p. 24.) This second ground of relatedness is both
illogical and startling in its potential breadth. Because BMS has performed
research on other drugs in California, claims of injury from Plavix may, according
to the majority, be adjudicated in this state. Will we in the next case decide that a
company may be sued in California for dismissing an employee in Florida because
on another occasion it fired a different employee in California, or that an Illinois
resident can sue his automobile insurer here for bad faith because the defendant
sells health care policies in the California market? The majority points to no
substantial connection between Plavix claims arising in other states and research
on unspecified other products in this state.
II. The Relatedness Requirement Serves Important Functions and
Should Not Be Minimized
As shown in part I, ante, the case law on specific jurisdiction does not
support a California court taking jurisdiction over nonresident plaintiffs‘ claims,
arising from their use of Plavix in other states. BMS marketed and sold Plavix to
other plaintiffs within California, but those forum activities are not substantially
related to the nonresident plaintiffs‘ claims. In the absence, however, of any
United States Supreme Court decisions closely on point, stare decisis does not
prevent the majority from giving the relatedness requirement scant consideration,
while relying on its theory that the asserted benefits of consolidating multistate
claims in California outweigh the burdens for BMS of defending real parties‘
6 This is not a matter of the absence of evidence. In support of its motion to
quash service, a BMS executive submitted a declaration stating that ―none of the
work to develop Plavix took place in California,‖ and that all development,
manufacture, labeling, and marketing of Plavix was performed or directed from
New York or New Jersey; none was accomplished or directed by California
employees.
27
claims here together with those of the California plaintiffs. (Maj. opn., ante, at
pp. 29–35.) Nevertheless, this approach is, in my view, a serious mistake. By
essentially ignoring relatedness and merely satisfying itself that defendant is not
being haled into an inconvenient forum where it has no significant contacts, the
majority blurs the distinction between general and specific jurisdiction and impairs
the values of reciprocity, predictability, and interstate federalism served by due
process limits on personal jurisdiction.
Reciprocity, in this context, refers to the idea that the litigation to which a
defendant is exposed in a particular forum should bear some relationship to the
benefits the company has sought by doing business in the state. (See Moore, The
Relatedness Problem in Specific Jurisdiction (2001) 37 Idaho L.Rev. 583, 599
[―The party has garnered the benefits offered by the government in which the
court sits. These benefits include the laws, the administrative framework and their
restraining effects. In return, the party concedes to that government a quantum of
power to govern his conduct, a power which he himself holds in a natural
autonomous state.‖].) Such reciprocity is most clearly maintained by the state
taking jurisdiction over disputes arising directly from the defendant‘s activities in
the state. As the high court said in International Shoe, where ―[t]he obligation
which is . . . sued upon arose out of those very activities,‖ it will generally be
―reasonable and just . . . to permit the state to enforce the obligations which
appellant has incurred there.‖ (International Shoe, supra, 326 U.S. at p. 320.)
More broadly, enforcing a meaningful relatedness requirement ensures some
degree of reciprocity; because the forum‘s assertion of jurisdiction cannot
encompass disputes that have no substantial connection with the defendant‘s
forum activities, the liabilities to which the defendant is exposed in the forum will
tend to bear a relationship to the benefits it has sought in doing business there.
―Relationship helps test whether the benefits and burdens are similar. When a suit
28
concerns the activities from which the corporation received in-state benefits, there
is some similarity in the burden imposed by the assertion of jurisdiction. . . .
Relatedness may be a rough measure, but it placed a logical limit on the burdens
arising from in-state activities.‖ (Andrews, The Personal Jurisdiction Problem
Overlooked in the National Debate About “Class Action Fairness” (2005) 58
SMU L.Rev. 1313, 1345–1346 (hereafter Andrews).)
Relatedness bears on predictability in much the same way. ―In order for a
business to properly structure its behavior—set consumer costs, procure insurance,
or sever its relationship with a particular state—it must not only know that a
contact has been made in a particular state (an aim protected through the
purposeful availment standard), but it also must have some minimal appreciation
of the effect of that contact. The relationship standard helps give this knowledge.
If a business entity chooses to enter a state on a minimal level, it knows that under
the relationship standard, its potential for suit will be limited to suits concerning
the activities that it initiates in the state.‖ (Andrews, supra, 58 SMU L.Rev. at
p. 1346; see World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297
(World-Wide Volkswagen) [observing that when a corporation sells its products in
a state, ―it has clear notice that it is subject to suit there,‖ and jurisdiction over a
suit would not be unreasonable ―if its allegedly defective merchandise has there
been the source of injury to its owner or to others.‖].)
Finally, limiting specific jurisdiction to litigation that is substantially
connected to the defendant‘s forum activities prevents states from straying beyond
their legitimate regulatory spheres. Appropriately limited, specific jurisdiction
―acts to ensure that the States, through their courts, do not reach out beyond the
limits imposed on them by their status as coequal sovereigns in a federal system.‖
(World-Wide Volkswagen, supra, 444 U.S. at p. 292.) As the high court explained
in Hanson, the growth in interstate commerce and the easing of communications
29
and transportation may have tempered, but they have not eliminated, the role that
territorial limits on state regulation play under due process. Due process
restrictions on personal jurisdiction ―are more than a guarantee of immunity from
inconvenient or distant litigation. They are a consequence of territorial limitations
on the power of the respective States.‖ (Hanson, supra, 357 U.S. at p. 251.)
Expanding on this point in World-Wide Volkswagen, the court explained that
while the Constitution‘s Framers foresaw a nation of economically interdependent
states, they ―also intended that the States retain many essential attributes of
sovereignty, including, in particular, the sovereign power to try causes in their
courts. The sovereignty of each State, in turn, implied a limitation on the
sovereignty of all of its sister States—a limitation express or implicit in both the
original scheme of the Constitution and the Fourteenth Amendment.‖ (World-
Wide Volkswagen, supra, 444 U.S. at p. 293.) Thus even in the modern era due
process limits on personal jurisdiction retain a territorial aspect: ―Even if the
defendant would suffer minimal or no inconvenience from being forced to litigate
before the tribunals of another State; even if the forum State has a strong interest
in applying its law to the controversy; even if the forum State is the most
convenient location for litigation, the Due Process Clause, acting as an instrument
of interstate federalism, may sometimes act to divest the State of its power to
render a valid judgment.‖ (Id. at p. 294; accord, J. McIntyre Machinery, Ltd. v.
Nicastro (2011) 564 U.S. 873, 879 (plur. opn. of Kennedy, J.) [―The Due Process
Clause protects an individual‘s right to be deprived of life, liberty, or property
only by the exercise of lawful power. . . . This is no less true with respect to the
power of a sovereign to resolve disputes through judicial process than with respect
30
to the power of a sovereign to prescribe rules of conduct for those within its
sphere.‖].)7
The relatedness requirement for specific jurisdiction plays a key role in
implementing these interstate federalism limits. By conducting business within a
state or directing its efforts at the state, a company brings its activities within the
state‘s core regulatory concerns. Litigation that arises from those activities falls
squarely within the state‘s sovereign power to adjudicate. In contrast, litigation
arising outside the state is unlikely to be a fit subject for state court adjudication
except to the extent it involves state residents. ―A state has sovereignty with
regard to activity conducted within its borders, and it thus has power over claims
arising from that activity. . . . A state seemingly has no sovereignty over activity
that neither involves its citizens nor occurs within its borders.‖ (Andrews, supra,
58 SMU L.Rev. at p. 1347.) Relatedness thus ―helps limit the reach of states so
that they do not exceed legitimate state interests.‖ (Id. at p. 1348.) As this court
remarked (in a choice of law discussion, but with equal applicability to
jurisdiction), our state‘s legitimate regulatory interest does not ordinarily extend to
measures aimed at ―alter[ing] a defendant‘s conduct in another state vis-à-vis
another state‘s residents.‖ (Kearney v. Salomon Smith Barney, Inc. (2006) 39
Cal.4th 95, 104, italics omitted.)
7 In Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee
(1982) 456 U.S. 694, 703, footnote 10, the high court noted that concern for
federalism is not ―an independent restriction on the sovereign power of the court,‖
but rather ―a function of the individual liberty interest preserved by the Due
Process Clause,‖ waivable by the party. Though not an independent, unwaivable
restriction on jurisdiction, interstate federalism remains an important consideration
in determining how the due process limits on jurisdiction should be applied. ―The
defendant has a due process right to have states act only within the limits of their
sovereignty.‖ (Andrews, supra, 58 SMU L.Rev. at p. 1347.)
31
Basing specific jurisdiction on mere similarity between a corporation‘s forum
activities and those outside the state, as the majority does in this case, defeats the
relatedness requirement‘s functions of reciprocity, predictability, and interstate
federalism. If BMS must answer in a California court for Plavix claims arising
across the country simply because some Californians have made similar claims,
the link between the benefits BMS has sought by doing that business in the state
and the liabilities to which it is exposed here has been severed. In the same way,
predictability has been severely impaired, as the company‘s potential liabilities
cannot be forecast from its state activities. And interstate federalism is perhaps
most directly impaired; by taking jurisdiction to adjudicate a dispute arising only
from BMS‘s actions in, for example, Texas, and allegedly resulting in injuries
only to a Texan, the California courts infringe directly on Texas‘s sovereign
prerogative to determine what liabilities BMS should bear for actions in its borders
and injuring its residents. ―[T]he forum state arguably exceeds its sovereignty
when it asserts jurisdiction over claims that are merely similar to activities within
its borders, as opposed to causally connected to the forum conduct.‖ (Andrews,
supra, 58 SMU L.Rev. at pp. 1354–1355.)
For decades, commentators have rejected similarity as an adequate criterion
of connection or relatedness, recognizing that its excessive breadth would create
jurisdiction in every state for every breach by a national corporation, wherever it
occurred. ―Thus the similarity test would apparently have to allow jurisdiction in
any State in the country where the defendant has engaged in similar activities.‖
(Brilmayer, How Contacts Count: Due Process Limitations on State Court
Jurisdiction (1980) Sup.Ct.Rev. 77, 84; accord, Rhodes & Robertson, Toward a
New Equilibrium in Personal Jurisdiction (2014) 48 U.C. Davis L.Rev. 207, 242
[allowing specific jurisdiction ―in every forum in which the defendant conducts
continuous and systematic forum activities that are sufficiently similar to the
32
occurrence in dispute . . . would give the plaintiff the choice of essentially every
state for proceeding against a national corporation‖].) Today, the majority, by
holding the presence of California plaintiffs with claims similar to those of real
parties in interest constitutes a substantial connection between real parties‘ claims
and BMS‘s California activities, effectively sanctions California courts taking
jurisdiction over actions by plaintiffs throughout the nation alleging injuries from
any nationwide business activity.
As California holds a substantial portion of the United States population, any
company selling a product or service nationwide, regardless of where it is
incorporated or headquartered, is likely to do a substantial part of its business in
California. Under the majority‘s theory of specific jurisdiction, California
provides a forum for plaintiffs from any number of states to join with California
plaintiffs seeking redress for injuries from virtually any course of business conduct
a defendant has pursued on a nationwide basis, without any showing of a
relationship between the defendant‘s conduct in California and the nonresident
plaintiffs‘ claims. The majority thus sanctions our state to regularly adjudicate
disputes arising purely from conduct in other states, brought by nonresidents who
suffered no injury here, against companies who are not at home here but simply do
business in the state.
Such an aggressive assertion of personal jurisdiction is inconsistent with the
limits set by due process. Although those limits are more flexible and less strictly
territorial than in the past, the high court has explained that they still act to keep
any one state from encroaching on the others: ―[W]e have never accepted the
proposition that state lines are irrelevant for jurisdictional purposes, nor could we,
and remain faithful to the principles of interstate federalism embodied in the
Constitution.‖ (World-Wide Volkswagen, supra, 444 U.S. at p. 293.) That BMS
marketed and sold Plavix throughout the United States, presumably using much of
33
the same advertising in many markets, does not give California authority, under
our federal system, to assert jurisdiction over claims arising throughout the nation.
Speaking of the limits to jurisdiction set by interstate federalism, the court in
Boaz—also involving a pharmaceutical drug marketed throughout the nation—
observed: ―We have no warrant to jettison these principles in favor of an approach
which recognizes no defined limits to the assertion of jurisdiction against any
defendant whose national marketing somehow affects commerce in the forum
state.‖ (Boaz, supra, 40 Cal.App.4th at p. 721.)
Assessing the fairness of specific jurisdiction ― ‗in the context of our federal
system of government‘ ‖ (World-Wide Volkswagen, supra, 444 U.S. at pp. 293–
294), we should be restrained here by the absence of any discernable state interest
in adjudicating the nonresident plaintiffs‘ claims. Where the conduct sued upon
did not occur in California, was not directed at individuals or entities in California,
and caused no injuries in California or to California residents, neither our state‘s
interest in regulating conduct within its borders (Vons, supra, 14 Cal.4th at p. 472)
nor its interest in providing a forum for its residents to seek redress for their
injuries (id. at p. 473) is implicated. On the critical question of why a Texan‘s
claim he was injured in Texas by taking Plavix prescribed and sold to him in
Texas should be adjudicated in California, rather than Texas (or in Delaware or
New York, BMS‘s home states), the majority offers no persuasive answer.
34
CONCLUSION
Like the majority, I conclude BMS, despite its significant business activities
in California, is not at home in our state for purposes of asserting general personal
jurisdiction over it. But neither, in my view, is specific jurisdiction over the
nonresident plaintiffs‘ claims proper. No substantial connection has been shown
between BMS‘s activities in California and the nonresidents‘ claims, which arose
out of BMS‘s marketing and sales of Plavix in other states.
For this reason, I respectfully dissent.
WERDEGAR, J.
WE CONCUR:
CHIN, J.
CORRIGAN, J.
35
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Bristol-Myers Squibb Company v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 228 Cal.App.4th 605Rehearing Granted
__________________________________________________________________________________
Opinion No. S221038
Date Filed: August 29, 2016
__________________________________________________________________________________
Court: Superior
County: San Francisco
Judge: John E. Munter
__________________________________________________________________________________
Counsel:
Lea Brilmayer; Horvitz & Levy, Jon B Eisenberg; Arnold & Porter, Jerome B. Falk, Jr., Sean M. SeLegue,
Sharon D. Mayo, Jeremy McLaughlin, Steven G. Reade, Daniel S. Pariser, Anna K. Thompson, Maurice A.
Letter and Anand Agneshwar for Petitioner.
Mayer Brown and Donald M. Falk for Chamber of Commerce of the United States of America, California
Chamber of Commerce and Pharmaceutical Research and Manufacturers of America as Amici Curiae on
behalf of Petitioner.
Goodwin Proctor, Richard A. Oetheimer, Sarah K. Frederick, David J. Zimmer and Claire C. Jacobson for
Generic Pharmaceutical Association as Amicus Curiae on behalf of Petitioner.
Pepper Hamilton, Nicholas M. Kouletsis, Christopher W. Wasson and Eric S. Wolfish for American Tort
Reform Association, National Association of Manufacturers, National Federation of Independent Business
and Juvenile Products Manufacturers Association as Amici Curiae on behalf of Petitioner.
Utrecht & Lenvin and Paul F. Utrecht for Washington Legal Foundation as Amicus Curiae on behalf of
Petitioner.
No appearance for Respondent.
Napoli Bern Ripka Shkolnik, Kelly McMeekin, Hunter J. Shkolnik, John Lytle, Jessica Y. Lee, Shayna E.
Sacks, Priya Gandhi; Audet & Partners, William M. Audet, Joshua C. Ezrin, Mark E. Burton; Esner, Chang
& Boyer and Stuart B. Esner for Real Parties in Interest.
J. Burton LeBlanc; Andrus Anderson, Lori E. Andrus, Jenny Lee Anderson; Law Offices of Collyn A.
Peddie and Collyn A. Peddie for American Association for Justice as Amicus Curiae on behalf of Real
Parties in Interest.
The Arkin Law Firm, Sharon J. Arkin; Robbins Geller Rudman & Dowd and Kevin K. Green for
Consumer Attorneys of California as Amicus Curiae on behalf of Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Anand Agneshwer
Arnold & Porter
399 Park Avenue
New York, NY 10022-4690
(212) 715-1000
Stuart B. Esner
Esner, Chang & Boyer
234 East Colorado Boulevard, Suite 750
Pasadena, CA 91101
(626) 535-9860