The short opinion in Stirling v. Novartis Pharm. Corp., 2020 WL 4259035 (Idaho Dist. Ct., July 13, 2020), comes at the intersection of personal jurisdiction rules and innovator liability claims. As readers will recall, plaintiffs who allege injury from ingestion of a generic version of a prescription drug cannot prevail on a failure to warn claim against the manufacturer of the drug they took, pursuant to the Supreme Court’s holding in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011). To try to evade this ruling, plaintiffs have attempted to sue the manufacturer of the branded version of the drug, the innovator of the drug, even though the plaintiff did not use nor was injured by the product that manufacturer made and sold. The theory comes from California; ’nuff’ said?
Most courts and most jurisdictions have utterly rejected this “innovator” liability theory, as inconsistent with fundamental tenets of tort law, and the notion of causation in fact. E.g., Trower v. Janssen Pharmaceuticals, Inc., 2019 WL 1571834 (D. Del. April 11, 2019).
But what about in those few states that have adopted this “plaintiff has to have a way to win” notion, or haven’t ruled yet? Or the court has punted the innovator issue to later in the case? Other defenses can be key. In particular, personal jurisdiction should be a potent defense to claims against innovators; think about it- both issues rely on the defendant’s contacts with plaintiffs and their claims. If an innovator did not make or sell the product used, the product that injured the plaintiff, of course that should be the end of the inquiry. But if not, in the same vein, if the innovator is not “at home” in the forum jurisdiction, there are also likely no contacts with the plaintiff’s claims and forum that would support specific personal jurisdiction. Per the reasoning of Bristol-Myers Squibb Co. v. Superior Court, a defendant’s contacts with other individuals are not sufficient.
In Stirling, the court had previously rejected the product liability claims based on innovator liability. In this second round, the court considered a fraud claim. But it remained fundamental that plaintiff took a generic version of the drug; indeed, the defendant had stopped selling it years before. Thus there were no claim-specific contacts upon which specific jurisdiction could be based.
As the defendant argued: “[W]hat is needed —and what is missing here— is a connection between the forum and the specific claims at issue.” Marketing from years before the plaintiff’s prescription did not pass muster, nor did the defendant’s alleged agency relationship with a distributor which may or may not have had activities in the forum. Keep this challenge in mind.