Personal jurisdiction in Pennsylvania – a preferred venue for injured mesh patients because of the size of verdicts awarded by Philadelphia juries, is a hotly contested legal issue that is prominently featured in the current legal news headlines.

On October 21, 2020, the Pennsylvania Supreme Court upheld the exercise of jurisdiction over a New Jersey based mesh manufacturer – Johnson & Johnson and Ethicon -- where the mesh was manufactured in Pennsylvania. Ethicon is a wholly owned subsidiary of Johnson & Johnson, and both are headquartered and incorporated in New Jersey.

Hammons was an Indiana resident and the mesh was implanted in Indiana. The trial court conducted a three-week trial on Hammons’ individual claims of “design defect and failure to warn sounding in strict liability and negligence” under Indiana products liability law.

The trial court sustained jurisdiction as to all plaintiffs whose implant utilized mesh knitted by Secant in Pennsylvania but dismissed those involving mesh produced outside of Pennsylvania. Upon review, the Superior Court observed that a Pennsylvania court’s exercise of specific personal jurisdiction over the resident of another state requires compliance with the Commonwealth’s long arm statute, 42 Pa.C.S. § 5322, and, in turn, the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

In regard to Secant, Hammons asserted that Ethicon worked with Secant to develop and produce “virtually all the mesh used in its pelvic mesh products, including the mesh implanted into Ms. Hammons.”

Hammons distinguishes the production process in this case from that of purchasing a product from a vendor. Instead of merely placing an order, Ethicon provided the proprietary material, required that it be knit according to its exact specifications, and demanded certification of those specifications prior to receiving the mesh. She asserts that Ethicon “controlled the project lock, stock, and barrel.”

In determining whether there were sufficient contacts within Pennsylvania to justify imposing personal jurisdiction over Johnson & Johnson and Ethicon, the Pennsylvania Supreme Court held that the focus of the jurisdictional question should be the actions of the defendant in relation to the forum, not the fortuity of which claims a plaintiff’s counsel includes in a complaint.

The Pennsylvania Supreme Court observed that the United States Supreme Court’s discussion of the case before it in Bristol-Myers Squibb (“BMS”) is consistent with a suit- or controversy-based focus rather than a claim-by-claim analysis.

The Pennsylvania Supreme Court concluded that the Supreme Court in BMS did not reject its prior phrasings of specific personal jurisdiction, but rather incorporated the broader terminology emphasizing the connections between the controversy, litigation, or suit and the defendant’s actions in the forum state.

Accordingly, absent further clarification from the United States Supreme Court, the Pennsylvania Supreme Court declined to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs.

While the parties disputed whether Ethicon’s connections to Pennsylvania via Secant’s production of the mesh are sufficient, the Pennsylvania Supreme Court found that there is little controversy that the mesh is causally related to Plaintiffs’ asserted injuries.

The Pennsylvania Supreme Court was also guided by the clear legislative expression in Subsection 5322(b) to apply Pennsylvania’s jurisdiction “to the fullest extent allowed under the Constitution of the United States.” 42 Pa.C.S. § 5322(b).

It would be inconsistent to mandate that Pennsylvania’s long arm statute be read as broadly as possible while in the same breath confining Pennsylvania courts to a more restrictive claim-based jurisdiction using the term “cause of action,” which itself can be read to encompass a suit- or controversy-based application.

The Pennsylvania Supreme Court declined to adopt that analysis absent clear guidance from the United States Supreme Court to apply a claim-by-claim jurisdictional analysis. Moreover, Ethicon failed to cite any Pennsylvania cases that have applied this provision so narrowly.

Applying a suit- or controversy-based analysis of specific personal jurisdiction, the Pennsylvania Supreme Court found jurisdiction proper.

The Court observed that Hammons claimed that she was injured as a result of the implantation of the Prolift Kit, specifically averring that her injuries resulted from characteristics of the mesh, which was the only part of the medical device that remained in her body after the surgery.

Ethicon was substantially and directly involved in the production of the mesh in Pennsylvania, where the mesh was that Hammons asserted caused her injuries and which served as the critical factual component of each of Hammons’ claims.

Ethicon was involved in the production of the mesh by Secant in Pennsylvania, and Ms. Hammons claimed her injuries resulted from that mesh.

Thus, there is a direct connection between Ms. Hammons’ cause of action and Ethicon’s actions in Pennsylvania.

Applying Subsection 5322(c) and the federal due process clause, the Pennsylvania Supreme Court concluded that the suit, specifically Hammons’ claims that she suffered injury resulting from the transvaginal mesh device, arises out of and indisputably relates to the mesh that was manufactured in Bucks County, Pennsylvania, by Secant under the careful supervision of Ethicon.

The Pennsylvania Supreme Court found that the other two prongs of the specific jurisdiction test are met because Ethicon purposefully availed itself of the privilege of conducting business in the Commonwealth and because it would not be unfair to subject Ethicon to jurisdiction here given that it is already litigating the related claims brought by Pennsylvania Plaintiffs across the state line from New Jersey, where it is headquartered and incorporated. Accordingly, the Pennsylvania Supreme Court affirmed the judgment of the Superior Court.

Interestingly, in a footnote, the Pennsylvania Supreme Court noted that since they concluded that jurisdiction is proper based on Ethicon’s involvement in Secant’s weaving of the mesh in Pennsylvania, they did not speak to the relevance or sufficiency of Dr. Lucente’s activities.

Hammons maintained that jurisdiction is also proper based upon Ethicon’s ties to Dr. Lucente’s clinical testing of the mesh and his involvement in the subsequent promotion of the Prolift product.

Hammons cited Ethicon’s medical director as claiming that Dr. Lucente was Ethicon’s “most important advocate in promoting other surgeons using the Prolift procedure across the country and across the world.”

As a result of its interactions with Dr. Lucente, Hammons asserted that “Ethicon actively managed clinical studies and developed marketing plans for its mesh in Pennsylvania.”

Ethicon retained Dr. Lucente as its investigator for important clinical studies that Ethicon funded concerning the outcomes and safety of the Prolift mesh, the Gynemesh PS study of the mesh materials in the Prolift, the U.S. TVM study of the Prolift prototype, and the Lucente IIS study.

Dr. Lucente’s role was so important that Ethicon’s employees traveled to Pennsylvania in February of 2006 to meet him for guidance concerning the marketing and development strategy for the Prolift.

At Ethicon’s behest, Dr. Lucente interceded to persuade the American College of Obstetricians and Gynecologists to remove the “experimental” designation of these mesh procedures. Ethicon paid Dr. Lucente over $1.7 million for his services in Pennsylvania.

Despite the BMS ruling being hailed by many in the defense bar as a “game-changer” the Pennsylvania Supreme Court found that this high profile jurisdictional decision did not represent a major shift in the way courts should analyze specific jurisdiction.

The jury found in favor of Hammons and awarded her $5.5 million in compensatory damages and assessed an additional $7 million in punitive damages.

Following resolution of post-trial motions, the trial court additionally imposed delay damages, calculated with regard to compensatory but not punitive damages resulting in a total judgment against Ethicon of $12,850,945. The Pennsylvania Supreme Court upheld this $12.85 million award.