The Trial Lawyer Winter 2018 - Page 38

WHEN YOU CO-COUNSEL WITH BURG SIMPSON YOU PARTNER WITH MORE THAN JUST A LAW FIRM You partner with a law firm that offers unparalleled resources, unmatched expertise, and over 40 years of success. You partner with a team of over 60 experienced attorneys whose bottom line is to help make a difference—both in the lives of the clients we serve and in the success of your business. LET’S MAKE A DIFFERENCE TOGETHER. Burg Simpson brings to every potential co-counsel agreement: More than $1 billion in verdicts and settlements More than $50 million in co-counsel fees Nationwide representation Ranked No. 1 Product liability Law Firm in Martindale-Hubbell Multiple federal court appointments MICHAEL S. BURG PETER W. BURG JANET G. ABARAY SCOTT J. ELDREDGE DAVID P. HERSH KERRY N. JARDINE HOLLY B. KAMMERER MARI K. PERCZAK C U R R E N T LY AC C E P T I N G C O - C O U N S E L O P P O R T U N I T I E S I N : MASS TORT | CATASTROPHIC PERSONAL INJURY | PRODUCT LIABILITY | CONSTRUCTION DEFECTS COMPLEX COMMERCIAL LITIGATION | “BET-THE-COMPANY” LITIGATION | QUI TAM CLASS ACTIONS | MEDICAL MALPRACTICE | INSURANCE BAD FAITH | LAND USE DISPUTES GOOD LAWYERS. CHANGING LIVES. ® FO R M O R E I N FO R M AT I O N, CO N TACT 888.895.2080 | BURGSIMPSON.COM DENVER | CINCINNATI | PHOENIX | CODY | ALBUQUERQUE | STEAMBOAT SPRINGS jurisdiction. Daimler is directed to the former situation and has nothing to say about the latter scenario. Acorda Therapeutics, Inc. v. Mylan Pharm. Inc., 78 F. Supp. 3d 572, 589 (D. Del. 2015); see also Bank v. Lenox Fin. Mortg. Corp., 2017 U.S. Dist. LEXIS 30407, at *7 (D. Minn. Mar. 2, 2017) (“Daimler, however, is inapplicable here. The Daimler court addressed the limits of general jurisdiction over a foreign corporation, not the limits of a defendant’s capacity to consent to personal jurisdiction.”); Perrigo Co. v. Merial Ltd., 2015 U.S. Dist. LEXIS 45214, at *19 (D. Neb. Apr. 7, 2015) (“Daimler circumscribes the extent to which a defendant can be compelled to submit to general jurisdiction, but it does nothing to limit the defendant’s capacity to consent to jurisdiction — and therefore, it does nothing to upset well-settled law regarding what acts may operate to imply consent.”); Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278 (M.D. Pa. 2018) (“Neither Ford nor the telephone defendants persuasively argued that Daimler somehow altered or abdicated general jurisdiction via consent. The issue before the Court in Daimler was whether the defendant-corporation’s relationship with the forum state was significant enough for the defendant-corporation to be considered ‘at home’ in the forum state.”) (citations omitted); Mitchell v. Eli Lilly & Co., 159 F. Supp. 3d 967 (E.D. Mo. 2016) (“In Daimler, the Supreme Court explained the limits of general jurisdiction where a ‘foreign corporation . . . has not consented to suit in the forum.’ That is the sole reference in Daimler to consent, and the defendant in Daimler had not consented to suit in California, which is why it was necessary to determine whether California’s courts could force the company to defend itself there, in the absence of consent.”) (citations and quotations omitted). In short: neither Goodyear nor Daimler expressly overruled consent-to-jurisdiction. Instead, each opinion acknowledges that the Court was addressing a distinct, non-consensual approach to general jurisdiction. Depending on the state’s specific registration statutes and case law construing same, consent-to-jurisdiction via registered agent may still provide a path to jurisdiction over a products liability defendant. 5. Conclusion At the end of the day, the recent SCOTUS cases largely reaffirmed longstanding principles of law and applied those principles to highly unique and jurisdictionally-attenuated circumstances. Factually, most products liability cases are completely distinguishable from Bristol-Myers Squib, et al. This leaves defendants with the argument that these decisions radically changed the law — which, as shown above, is simply not true. Hopefully this article is a good starting point should a defendant attempt to make this type of argument in one of your cases. 36 x The Trial Lawyer