12. Jurisdiction and Venue

• Pages: 233-262
• Author: Richard C. Beaulieu,Brian D. Schmalzbach,M. Laughlin Allen,Gagan Gupta

12

Jurisdiction and Venue

Richard C. Beaulieu, Brian D. Schmalzbach,

M. Laughlin Allen, and Gagan Gupta1

Almost by their very nature, infectious outbreaks can spread

geographically. Similarly, the variety of parties that may be

responsible for the outbreak can range from local to interna-

tional. Practitioners must determine the proper location for the

ensuing litigation, and the current state of personal jurisdic-

tion jurisprudence does not make that easy. This chapter both

explains the current status of the law and offers strategic consid-

erations for how and when to advocate on that law.

The foundation of any lawsuit is the court’s ability to exercise

power over the parties and the subject matter of the dispute.2

By ling a lawsuit in a given court, a plaintiff inherently consents to

the court’s jurisdiction over itself. For the court to exercise personal

1. Richard Beaulieu is a litigation partner at McGuireWoods LLP. Brian Schmalz-

bach is an appellate partner at McGuireWoods LLP. M. Laughlin Allen is a litiga-

tor at McGuireWoods LLP. Gagan Gupta is a litigator at Paynter Law PLLC.

2. Although the existence of subject matter jurisdiction is a preliminary question for

the court, that test is comparatively straightforward and is discussed only briey in

this chapter. For a broader treatment of subject matter jurisdiction, see Bradley Scott

Shannon, Reconciling Subject- Matter Jurisdiction, 46 H L. R. 913 (2018).

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jurisdiction over a defendant, however, the court must be seated in

a forum with which the defendant has “certain minimum contacts”

such that “the suit does not offend traditional notions of fair play

and substantial justice.”3 In the seventy- ve years since International

Shoe, the Supreme Court and lower courts alike have struggled to

apply this principle in the context of both specic and general juris-

diction. How this is applied in outbreak litigation can be even more

difcult because there are a variety of potential defendants in any

given case.

Personal jurisdiction is especially nuanced in the context of tort

lawsuits against foreign product manufacturers or business owners.

Courts often analyze a company’s minimum contacts by consider-

ing whether it purposefully placed the products or services in the

stream of commerce. Although product manufacturers presumably

want their products to be purchased by as many people and in as

many places as possible, there are inherent questions of fundamental

fairness and due process that arise out of the proposition that a man-

ufacturer may be subject to suit in any jurisdiction where its product

is found and/or where its product allegedly injures the plaintiff. This

is particularly important in outbreak litigation given the potential for

product manufacturers, distributors, and sellers—who often are very

geographically diverse—to all be implicated in the same litigation,

and given that outbreak plaintiffs often are located throughout the

country.

But even if personal jurisdiction can be established in a given state,

there is a further question as to whether that state is the best forum

to host the litigation. There can be great strategy in outbreak liti-

gation—both offensive and defensive—by plaintiffs and defendants

alike to secure a favorable forum for litigation.

To best view personal jurisdiction and venue in the context of

outbreak litigation, this chapter examines the foundations of the

concepts: (1) overview of the personal jurisdiction doctrine, (2) the

Supreme Court’s decisions and confusion related to the stream of

commerce theory (namely, Asahi Metal Indus. Co., Ltd. v. Superior

3. Int’l Shoe Co. v. State of Wash., Ofce of Unemployment Comp. & Placement,

326 U.S. 310, 316 (1945) (internal quotations omitted) [hereinafter International

Shoe].

234 Infectious Disease Litigation

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