The Trial Lawyer Winter 2018 - Page 36

non-resident plaintiffs who “were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California,” could not sue in California. Id. at 1781. The Court expressly noted that it was not changing the law; indeed, the Court clarified that the opinion was merely a “straightforward application . . . of settled principles of personal jurisdiction.” Id. at 1783. As such, Bristol-Myers Squibb did not alter the jurisdictional analysis for cases involving an injury occurring in the forum state, or for a case involving a product sold, installed, serviced, maintained, or used within the forum state. 3. The Stream of Commerce Still Confers Jurisdiction Manufacturers have launched a wave of jurisdictional challenges premised on the notion that Goodyear, J. McIntyre, Daimler, Walden, and Bristol-Myers Squibb have radically altered personal jurisdiction in products liability cases. For example, automakers and tire manufacturers have filed motions to dismiss in cases where a vehicle is first sold in one state, but then fails and causes a crash and severe injuries while being used in another state. These kinds of motions will typically argue that the state where the crash happened lacks general jurisdiction because it’s not the manufacturer’s state of incorporation or the state where it maintains its headquarters. They will then often argue that specific jurisdiction is lacking because the “first sale” did not happen within the state. Although a handful of courts have granted such defense motions, the majority of courts have rejected these types of arguments. For instance, the West Virginia Supreme Court explained: We decline to use the place of sale as a per se rule to defeat specific jurisdiction. Such an approach ignores even the plurality in J. McIntyre that indicated that the inquiry 34 x The Trial Lawyer considers both the defendant’s conduct and the economic realities of the market the defendant seeks to serve. It also utterly ignores the ‘targeting’ of a forum for the purpose of developing a market. The focus in a stream of commerce or stream of commerce plus analysis is not the discrete individual sale, but, rather, the development of a market for products in a forum. State ex rel. Ford Motor Co. v. McGraw, 788 S.E.2d 319 (2016) (emphasis added). Likewise, in Michelin N. Am., Inc. v. De Santiago, 2018 Tex. App. LEXIS 6039, at *39 (App. Aug. 2, 2018), the Texas Court of Appeals rejected Michelin’s argument that “jurisdictional ‘liability’ only extends as far as the point of first retail sale.” Id. at p. 28. The Court explained, “Michelin targets Texas and intends for its tires to end up in the hands of Texas consumers,” and “Michelin could have reasonably foreseen that the tire would end up in Texas, and given the company’s extensive targeting of the state, it could hardly be surprised that it would be hauled to court to answer defect charges in Texas.” Id. at p. 37 (emphasis added). The Court then poignantly observed: If a manufacturer takes a shotgun shell approach to marketing and deliberately aims a batch of product at multiple states, it seems odd to let the manufacturer complain that even though its product actually struck a targeted state, the point should not count simply because there was an unexpected ricochet along the way. Id. at p. 39 (emphasis added). Similarly, in Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363, at (W.D. Okla. Dec. 5, 2016), the Western District of Oklahoma rejected the same kind of argument, reasoning: The Court finds unavailing Ford’s argument that personal jurisdiction does not exist because the subject vehicle was assembled in Kansas City, Missouri and later sold to an independent dealership in Indiana. The pivotal inquiry under the stream of commerce theory is whether a defendant has attempted to serve a market and expects its product to be used there. Irrespective of the state of assembly, Ford designs, manufactures, markets, and sells products specifically built for interstate travel, which includes Oklahoma. Ford manufactured and sold the subject vehicle with the reasonable expectation it would be used in Oklahoma and this action arises from the vehicle’s use in Oklahoma. Id. at p. 16 (emphasis added). Ford subsequently filed a motion for reconsideration based on Bristol-Myers Squibb. The Court denied the motion, observing that Bristol-Myers Squibb did not change the law. Tarver v. Ford Motor Co., 2017 U.S. Dist. LEXIS 130517, at *7 (W.D. Okla. Aug. 16, 2017) (“The Court’s decision in Bristol-Meyers makes no mention of the ‘stream of commerce’ doctrine. Rather, the Court made its decision through a ‘straightforward application’ of ‘settled principles of personal jurisdiction.’”); see also Alexander v. Suzuki Motor of Am., Inc., 2018 U.S. Dist. LEXIS 135170, at *18 (E.D. Mo. Aug. 10, 2018) (“Here, although the motorcycle alleged to have caused Mr. Wantuck’s injuries originally was sold in Ohio rather than Missouri, it was of the same type as motorcycles SMC sold into Missouri via its distribution system, and the crash occurred in Missouri. The Court thus finds SMC’s placement of its product into the stream of commerce sufficiently relates to Plaintiff ’s cause of action, and SMC has the requisite minimum contacts with Missouri to satisfy due process standards.”) (emphasis added). These are just examples. Many additional decisions reaching the same or