Will Mass Tort change because of SCOTUS’ Plavix Decision?


A recent decision reached by the U.S. Supreme Court may change mass tort and class action lawsuits, it would not favor plaintiffs who are injured. The case of Bristol-Myers Squibb (BMS) and Plavix it’s blood thinner. The court reviewed California’s Supreme Court’s decision to grant out of state plaintiffs to file and join the California residents case.

The defendant must have some level of contact with the forum State in order for the court to use specific jurisdiction, which in this case is California. According to Justice Alito, “The non-residents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California — and allegedly sustained the same injuries as did the non-residents — does not allow the state to assert specific jurisdiction over the nonresidents’ claims.”

Justice Sonia Sotomayor had a different opinion and wrote, “The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary.”

According the majority who are supported by those for tort reform the BMS and the SCOTUS say it is necessary. There has always been a long-standing issue for reformers with “forum shopping,” where plaintiffs look for more “plaintiff friendly” venues. For example, Philadelphia is known to have a plaintiff friendly venue and as a result most of their mass tort suits are filed by plaintiffs that are out of the state.

Unless the companies were out of Pennsylvania then the SCOTUS decision in Plavix could be the end of this policy.

Justice Sotomayor, disagrees with the decision with the SCOTUS and they are not the only one.

On the surface, an end to “forum shopping” can seem like a bad decision or an improvement to the system. On the other hand, the limitations that could be placed by BMS’s decision could have those forum shopping instead have no forum.

The BMS decision could “make it very difficult for plaintiffs to band together to pull their resources to bring a single action,” said Robert Peck of the Center for Constitutional Litigation. Also, they could run into an issue in cases with more than one defendant, because plaintiffs would have to file suit in multiple venues.

There are some repercussions such as the multiple venues can become expensive leaving the plaintiff unable to seek justice. The mass torts could be broken into smaller jurisdiction- specific sections and it would make it easier for defendant corporations to blame to each other.

The smaller jurisdictions could cause two negative effects. It could cause contradictions between the courts depending on the jurisdiction. For example, it could mean that a court in Pennsylvania could reach a different decision on liability than a court in the state of Texas. The differences between the states would only be resolved by an appeal and then the appellate court would need to be in the same circuit. The last and not most ideal option would be to seek the involvement of SCOTUS but that would not be a great option given the limited number of cases granted certiorari.

The other theoretically bad effect is injured plaintiffs would have restricted access to justice. Mass tort cases and class actions are usually large, multifaceted and cost a lot to manage. However, the smaller jurisdiction-specific mass torts would not be any less expensive. What it could lead to is less law firms will accept the cases because of a reduction in fees that occurs by the lower amount of plaintiffs involved.

Justice Alito and the SCOTUS majority stood for “greater concern for the burden on corporation[s]” according to Mr. Peck rather than for out-of-state plaintiffs who were injured.

The BMS decision could not answer every question as many precedent setting decisions often ten to do. Supreme Court lawyer, Andrew Pincus, of Mayer Brown state that BMS leaves “two big questions” unresolved.

“How much of a connection does there have to be between the claim and the place the lawsuit is filed? Secondly, will [the BMS] ruling mean that class actions will only be filed in a court that can assert jurisdiction over every single class member?”

The BMS decision brought up a question by Mayer Brown’s Andrew J. PincusArchis A. Parasharami and Matt Waring which was “whether the Fifth Amendment’s due process requirement might apply differently to exercises of jurisdiction by federal courts. But this issue does not arise frequently. For the Fifth Amendment to apply, Congress must provide for expansive personal jurisdiction by authorizing nationwide service of process in a particular statute—and Congress rarely does this, as the Court explained in the BNSF decision last month in rejecting the argument that the federal statute there (the Federal Employers’ Liability Act) expanded federal courts’ power to exercise personal jurisdiction.”

The BMS decision could change the mass tort landscape but only time will tell.


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