Simple Question; Not So Simple Answer

We were reading the appallingly bad personal jurisdiction (and other things, but those aren't what we're interested in today) decision in Hammons v. Ethicon, Inc., ___ A.3d ___, 2018 WL 3030754 (Pa. Super. June 19, 2018). While many of the jurisdictional issues in Hammons are factually limited to the particular defendant and the particular product, one holding made us drop what we were doing and turn to research.

That question is very simple - who has the burden of proof where the issue is whether a plaintiff's assertion of personal jurisdiction violates Due Process.

Hammons held:

A defendant making a challenge to the court's personal jurisdiction has, as the moving party, the burden of supporting its objection to jurisdiction.

2018 WL 3030754, at *6 (quoting De Lage Landen Services, Inc. v. Urban Partnership, LLC, 903 A.2d 586, 589 (Pa. Super. 2006)) (emphasis added).

This holding − that the defendant, not the plaintiff who asserted jurisdiction in the first place, has the burden of proof when a constitutional challenge to personal jurisdiction is raised - is virtually unprecedented and contrary to practically all the cases we have seen addressing this issue. It also seems intuitively wrong, since analogous issues, such as subject matter jurisdiction, standing, and the admissibility of evidence, impose the ultimate burden of proof on the party advocating jurisdiction or admissibility of evidence, even though the opposing party usually makes the motion to have the issue decided.

Moreover, in Hammons we think that the burden of proof question matters. Much of Hammons revolves around the same third-party contractor issue that we recently discussed in this post about another adverse jurisdictional decision from the same Philadelphia mass tort. Although Hammons tries harder to disguise the lack of causal relationship between what the third party did (knitting the mesh together) and any design or manufacturing claim actually asserted by the plaintiff (see 2018 WL 3030754, at *9 (defendant "worked together" with the third-party "in Pennsylvania to design, test and manufacture the" product), the problem we identified in the prior post still exists - Hammons never states how this third-party's activities contributed to the particular defect/injuries alleged by this plaintiff. None of the "specifications" for the knitting originated with the Pennsylvania entity, but rather with the defendant. Id. ("knitted . . ., and tested samples for, compliance with [defendant's] specifications").

Ultimately, we don't think that the Superior Court's proposition - that any allegation of "design" or "manufacturing" defect allows jurisdiction to rest on any arguably in-state "design" or "manufacturing"-related activities where those activities don't have anything to do with what allegedly injured the plaintiff - flies under Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) ("BMS").

But there's a second set of allegations in Hammons, that the defendant "relied heavily on an Allentown, Pennsylvania gynecologist . . . for the development, study, and marketing of [the product]." Id.

Those facts, whether significant or wildly overblown, were nonetheless "trial evidence," id. − meaning that plaintiff did not assert them in opposition to the defendant's previous jurisdictional motion. The court's excuse for considering them was:

We may affirm on any ground. Thus, we need not confine our reasons for affirming to evidence adduced during proceedings on [defendant's] preliminary objections to jurisdiction.

Id. at 9 n.6 (citation and quotation marks omitted).

That's fine if the defendant bears the burden of proof, and is thus responsible for ensuring a complete jurisdictional record. But if the plaintiff bore the burden of proof in Hammons, then the plaintiff had the obligation to complete the jurisdictional record in a timely fashion, and it would not be proper for an appellate court to decide the jurisdictional issue on facts that the trial court did not have before it because the plaintiff failed to present them. Reliance on such after-the-fact facts is called "sandbagging," and is generally frowned upon. E.g., Com. v. Johnson, 456 A.2d 988, 996...