Breyer’s Cellphone Interrupts Plavix Appeal at High Court

WASHINGTON (CN) – An attorney for drugmaker Bristol-Myers Squibb did not miss a beat in his Supreme Court oral argument Tuesday as a ringing cellphone from the bench interrupted the formal setting.

The high court strictly prohibits electronic devices in the courtroom — even for attorneys — but no one offered a reprimand when an ensuing scramble to quiet the device betrayed Justice Stephen Breyer as the transgressor.

Breyer’s interruption did little to faze an attorney for Bristol-Myers Squibb who claims that the pharmaceutical giant should not have to face claims in California by 575 Plavix users living in 33 other states.

Bristol-Myers is incorporated in Delaware and headquartered in New York, but the California Supreme Court found last year that the company’s substantial contacts in the Golden State give California jurisdiction over claims by nonresidents.

Residency aside, the cardiac patients suing Bristol-Myers Squibb are identical in their claims that the blood-thinner Plavix caused internal bleeding or stroke.

The arguments kicked off Tuesday morning with a testy exchange between Justice Sonia Sotomayor and Neal Katyal, an attorney for the drugmaker at Hogan Lovells.

“What’s efficient about having piecemeal litigation across the country,” Sotomayor asked.

Katyal, a former U.S. solicitor general, pointed to court precedent that requires causality as a prerequisite for specific jurisdiction, which means plaintiffs must show that their injury stems from a company’s specific actions in the state they are suing.

He also that the California Supreme Court ruling’s did nothing to stem the tide of related litigation against his client that remains active in other states.

“Their rule doesn’t create any efficiency at all,” he retorted.

Thomas Goldstein, an attorney for the Plavix users, emphasized that Bristol-Myers created California-specific interests in the litigation by contracting with California-based McKesson to distribute Plavix.

Justice Anthony Kennedy voiced skepticism when Goldstein suggested that a broader view of specific jurisdiction could help centralize and streamline the multistate litigation.

“That’s a very patronizing view of federalism,” Kennedy said. “California will tell Ohio, ‘Oh, don’t worry, Ohio, we’ll take care of you,'” he added. “That’s not the idea of the federal system. The federal system says that states are limited.”

In addition to his point about efficiency, Goldstein, of the firm Goldstein & Russell,  noted that the balance of convenience tips in his favor.

While Bristol-Myers can square off easily with nonresidents in California, he said his clients would be more restricted if the court adopts the causal requirement suggested by the company.

Justice Ruth Bader Ginsburg said that consolidating Plavix plaintiffs would be ideal, but frankly not possible.

“We have no way of doing that because plaintiffs have many choices,” she said. Regardless of the ruling, Plavix litigation could still spread across the country, she added.

The outcome of the case could either expand or limit the ability of mass-injury victims to seek redress. Since the high court’s 2014 ruling in Daimler AG v. Bauman, corporate defendants have increasingly – and often successfully – raised personal jurisdiction as a defense to get injury claims tossed out.

The high court is expected to issue a ruling in the case by June.


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