Fight for the Forum.

AuthorLasker, Eric

In the early 2000s, our firm was retained by a target defendant in asbestos litigation who was facing a surge of claims in Texas state court arising from alleged exposure to chrysotile asbestos in its former products. We embarked on an aggressive, science-based defense that within a few years contributed to significant improvements in Texas case law, particularly with respect to plaintiffs' "every fiber" theory. But by the time this battle was won (and a broader tort reform effort in Texas had succeeded as well), plaintiffs had simply moved on and begun filing their cases en masse in California instead.

As this and many similar stories make clear, defendants cannot hope to turn the tide in products liability without winning the fight for the forum. If plaintiffs can simply file any suit in their favored forum, the benefits of jurisdiction-by-jurisdiction tort reform or even seminal legal victories will be limited. With twelve federal circuits and 50 (DC) state forums at their disposal, plaintiffs can always move on to a new forum where defendants will be forced to litigate under procedural and evidentiary rules stacked in plaintiffs' favor and before juries pre-inclined to plaintiffs' arguments.

There have been some notable successes for defendants on this front in recent years, most notable the Supreme Court's Bristol-Myers Squibb ("BMS") ruling in 2017, (1) which significantly narrowed the circumstances in which non-resident plaintiffs may sue out-of-state corporate defendants. But the plaintiffs' bar is fighting back hard, and unless the defense bar meets this challenge, the future for product liability defendants will be grim.

Since BMS was decided, plaintiffs' counsel have redoubled their efforts to file cases only in their preferred forums. They have tried to avoid federal jurisdiction through the creative targeting of tangential, but non-diverse co-defendants, consolidated their serial litigation in a limited number of plaintiff-friendly state courts that have adopted expansive notions of venue and multi-plaintiff trials, and misapplied basic concepts of personal jurisdiction. These tactics have led to a number of runaway plaintiff verdicts following sharply uneven proceedings. The message to the defense bar is clear: As long as the plaintiffs' bar can choose their ground for battle, even the strongest defense in fact and law stands little chance.

Fortunately, as discussed below, there are weapons that defense counsel can employ to...

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