Mass Tort Actions Will Not Be Deterred by U.S. Supreme Court Ruling

The U.S. Supreme Court ruled this month on a California court case concerning lawsuits against Bristol-Myers Squibb’s (BMS) Plavix blood thinner that could impact how drug and device litigation moves forward in state courts. Voting 8-1, the Justices said that the California Supreme Court was wrong to allow close to 600 non-residents to join the 86 Californians who claimed that BMS misrepresented dangerous health risks associated with taking the drug.

Previously, the California Supreme Court had ruled 4-3 that all cases could move forward in state court even if the Plaintiff’s claim had no particular connection to California, because Bristol-Myers did other business in the state that included research as well as the marketing and sale of Plavix. But on June 19th, The U.S. Supreme Court ruled that the state court did not have jurisdiction to hear the claims of nonresidents if the individuals did not buy the drug, take the drug, or sustain injury by the drug within the state of California. U.S. Supreme Court Justice Samuel Alito wrote on behalf of the court, adding that the state court’s decision violated the due process clause of the Constitution. He continued by offering that plaintiffs residing in other states could sue Bristol-Myers together in those states; in New York where the company is headquartered; or in Delaware where the company is incorporated.

The one dissenting opinion was written by Justice Sotomayor, who said the ruling “may make it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different states… it will result in piecemeal litigation and the bifurcation of claims.”

Indeed, the decision is a landmark one, as it threatens the notion of personal jurisdiction—the idea that any injured claimant can sue a big company that has caused them harm, regardless of where they are located, especially where the company does business in all 50 states and profits from that business. Could this decision set the stage to affect mass tort cases pending or to be filed in state courts? The effects on mass tort venues in certain states are already being seen; it directly brought about a mistrial in a Missouri court concerning a talcum powder lawsuit against Johnson & Johnson (J&J) within hours of the Supreme Court ruling. While the particular case was unique in that it was the first multi-plaintiff trial in a string of talc litigation, it now serves as a potential harbinger of bad news—as most of the 1,700 pending lawsuits that allege the 130-year-old American producer of consumer packaged goods failed to warn of an increased risk of ovarian cancer are centralized in state court in Missouri. J&J is also threatening to use the BMS decision to attempt to reverse more than $300 million in previous awards to plaintiffs, as a Missouri state appeals court is still withholding a ruling on a request to throw out a $72 million verdict in 2016 to the family of a woman who claimed that talc-based products from J&J caused her ovarian cancer.

The recent Supreme Court decision is not simply about the burden of bringing suit now being greater (often beyond the means of most individuals). If expanded by other lower courts, the BMS opinion could significantly hinder the process that has enabled plaintiffs to pool resources into a single action when they suffer similar injuries. Justice Sotomayor summed it up best by saying in her recent dissent that, “The effect of today’s opinion will be to curtail—and in some cases eliminate—plaintiff’s ability to hold corporations fully accountable for their nationwide conduct.” This is about perpetuating roadblocks in the path of plaintiffs seeking justice. And, most importantly, this is about allowing defendants in such cases to operate unchecked.

Nevertheless, mass tort actions will not be deterred altogether. Companies that put profits over safety will still be held accountable, despite whatever new jurisdictional roadblocks are presented. While state court options may narrow, negligent corporations who failure to test or improperly market drugs for unapproved conditions will continue to have to face justice in our courts.