Metropolitan News-Enterprise


Tuesday, August 30, 2016


Page 1


High Court: Nonresidents Can Join Plavix Lawsuit




The doctrine of specific jurisdiction allows non-California residents to sue Bristol-Myers Squibb Co. in this state for injuries allegedly caused by the anticlotting drug Plavix, the state Supreme Court ruled yesterday.

In a 4-3 decision, Chief Justice Tani Cantil-Sakauye agreed with the plaintiffs that the company’s advertising and marketing activities in the state, including its sale of more than $900 million worth of Plavix, subject it to the personal jurisdiction of California courts. The chief justice was joined by the court’s three most recent appointees, Justices Goodwin H. Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger.

The suit was filed in March 2012 in San Francisco Superior Court. The plaintiffs, 86 Californians and 592 out-of-staters, said they or their spouses had taken Plavix.

They alleged that Plavix increased the risk of heart attacks, strokes, internal bleeding and blood disorders, sometimes with fatal consequences, and that Bristol-Myers had falsely marketed the drug as being safer and easier to absorb than aspirin.

They also sued McKesson Corp., the drug’s San Francisco-based distributor. Previous news reports indicated that hundreds of additional out-of-state plaintiffs might join the case if the court ruled as it did yesterday.

Motion to Quash

San Francisco Superior Court Judge John E. Munter denied Bristol-Myers’s motion to quash, finding that the company had the minimum contacts with California requisite to a finding of general jurisdiction. The First District Court of Appeal denied writ relief, but the high court sent the case back to the First District for reconsideration in light of Daimler AG v. Bauman (2014) 134 S.Ct. 746.

The high court held in that case that constitutional due process did not permit suit in California by nonresidents against a business incorporated and headquartered in a foreign country, based on general jurisdiction, solely because the company’s U.S. subsidiary had offices and did business in this state.

The First District panel agreed on remand that the trial court’s finding of general jurisdiction could not survive Daimler, but held that the non-California plaintiffs could sue as a matter of specific jurisdiction. Cantil-Sakauye yesterday said the Court of Appeal was correct.

Bristol-Myers’s business contacts in the state “are insufficient to invoke general jurisdiction, which permits the exercise of jurisdiction over a defendant regardless of the subject of the litigation,” she explained. But Bristol-Meyers did not dispute that it had sufficient contacts with California to permit state residents to sue here, the chief justice noted, saying there was no reason not to extend the same rights to non-California plaintiffs injured as a result of “the assertedly misleading marketing and promotion of that product, which allegedly caused injuries in and outside the state.”

Daimler Cited

The chief justice cited the majority opinion in Daimler, which responded to a dissenting justice’s concerns about potential injustice by noting that the doctrine of specific jurisdiction, which was not an issue in that case, remained viable.

Cantil-Sakauye said the use of a California-based distributor for the drug was an additional factor in favor of finding specific jurisdiction.

Justice Kathryn M. Werdegar, joined by Justices Ming Chin and Carol A. Corrigan, dissented.

“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,” Werdegar wrote.

The case was argued in the Supreme Court by Anand Agneshwer of Arnold & Porter’s New York office for Bristol-Myers and by Stuart B. Esner of Pasadena’s Esner, Chang & Boyer for the plaintiffs.

The case is Bristol‑Myers Squibb Company v. Superior Court (Anderson), 16 S.O.S. 4412.


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