Trial lawyer panel: Plaintiffs' lawyers adapting strategies to fit post-BristolMyersSquibb legal landscape

By Jonathan Bilyk | May 30, 2018

In the wake of a recent landmark ruling from the U.S. Supreme Court restricting the ability of out-of-state plaintiffs to sue large manufacturers and other corporations, plaintiffs’ lawyers across the country have watched with trepidation as they waited to see just how much the cases and business models they had spent years building could be sliced.

However, while the ruling has resulted in some significant wins for corporate defendants, thwarting some potentially large cases, the gut punch many feared may have proven easier to sidestep than had been originally believed, said a panel of plaintiffs’ trial lawyers during a presentation at a recent litigation conference in Chicago.

On May 30, HarrisMartin Publishing hosted its “MDL Conference: ‘Bet-the-Company’ Mass Tort Litigation” at the Peninsula Hotel in Chicago’s River North district, assembling panels of some of the country’s most prominent trial lawyers to discuss and share insights on many of the biggest litigation topics pending in courts across the U.S.

Among other topics, panelists – mostly culled from many of the firms representing plaintiffs in a number of huge legal actions – discussed a range of product liability and negligence-related claims now pending against pharmaceutical makers and distributors, social media companies, app developers and other companies and organizations.

Nicholas Drakulich  

However, no matter the topic, all needed to first address what in recent months has become a new routine hurdle to allowing so-called “mass tort” lawsuits to proceed:

A motion to dismiss from defendants questioning whether a court can actually hear a lawsuit brought by plaintiffs who either don’t live in a jurisdiction, or brought against corporate targets who may not have enough of a connection to a jurisdiction to keep a lawsuit in the court desired by plaintiffs.

In 2017, those kind of efforts got a boost from the U.S. Supreme Court’s decision in Bristol Myers Squibb v Superior Court of California. In that ruling, the Supreme Court struck down a California Supreme Court ruling finding out-of-state plaintiffs could join with in-state plaintiffs to sue pharmaceutical company Bristol Myers Squibb over the alleged effects of its drug Plavix in California state court - even though BMS was based in New York and had no real business connection to California, beyond selling its medications to Golden State residents.

Across the country, attorneys and legal observers expected the decision to result in massive changes to the class action and “mass tort” legal landscape.

However, the actual impact of the decision may be significantly less than what many defendants may have hoped or anticipated, said panelists at the HarrisMartin conference.

“I don’t think it’s been some kind of bar on these kinds of mass torts,” said Dustin Carter, an attorney who works with the mass tort and complex litigation team at the firm of Neblett, Beard & Arsenault in Alexandria, La.

“Everyone initially thought it would be this large precedent. But non-resident plaintiffs can still bring cases,” he said.

Fellow panelist Nicholas Drakulich, of The Drakulich Firm, of San Diego, agreed, while noting the post-BMS landscape may require plaintiffs’ lawyers to simply work harder.

Drakulich pointed to a recent decision from Philadelphia, where a judge in that city’s Court of Common Pleas had rejected the motion from Johnson & Johnson subsidiary Ethicon Inc. to dismiss more than 120 lawsuits brought against the company by plaintiffs alleging they had been injured by Ethicon’s transvaginal mesh products.

All of the lawsuits had been filed by plaintiffs from outside Pennsylvania, and Ethicon had argued the Supreme Court’s holding in the Bristol Myers Squibb decision required such cases to be dismissed.

Plaintiffs, however, had responded by arguing a company in Pennsylvania had been part of Ethicon’s manufacturing process for its mesh product, and therefore, the case belonged in the Pennsylvania court.

And Philadelphia Judge Arnold New sided with the plaintiffs, finding all of them should be allowed to bring their cases in Philadelphia court.

“As the saying goes: ‘There’s the law, and it’s all shaped by the facts,’” said Drakulich. “And facts can be tough things. So our job is to go find those tough things, and then prove those tough things.”

Drakulich conceded Bristol Myers Squibb has delivered some changes sought by businesses and employers.

In Missouri in March, for instance, U.S. District Judge Stephen Limbaugh cited the BMS decision in carving out 92 out-of-state plaintiffs from a mass action lawsuit against drugmaker Bayer over the company’s implantable birth control device, Essure.

And, while the panelists did not cite Illinois cases, the Illinois state Supreme Court and various appellate justices have cited BMS in restricting the ability of out-of-state plaintiffs to use Illinois courts – which are generally considered more favorable to plaintiffs – to sue defendants based in other states.

Despite the success of some defendants to use BMS to thwart plaintiffs’ legal gambits, panelists said plaintiffs’ lawyers are beginning to adapt to the new environment, and develop strategies to defeat BMS-inspired motions.

In later presentations focused on other topics, other panelists also described strategies and efforts to defeat BMS-centered motions to dismiss.

Attorney Lance Unglesby, of New Orleans, for instance, noted the legal team suing J&J over Essure kept more than 1,000 cases in court in St. Louis by noting the product had been tested in St. Louis.

And attorney Kevin Durkin, of the Clifford Law Offices, of Chicago, in also discussing strategies to prevent corporate defendants from consolidating a lawsuit with perhaps hundreds or thousands of others in federal court, advised plaintiffs’ lawyers to find ways to add “viable” local defendants to litigation “in good faith.”

Overall, however, Drakulich said the basic rules of mass tort lawsuits remain the same.

“You pick your fights, you pick your forums, you develop your case,” Drakulich said.

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Organizations in this Story

Bristol-Myers Squibb Clifford Law Drakulich Law Firm Ethicon US, LLC Neblett Beard & Arsenault

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