Blogs

Year in Review: A Midwest-Focused Review of 2021 Product Liability Cases

January 5, 2022 | Kara Stubbs, Megan Sterchi Lammert and Madeline Nagel

With the world resuming much of its activity post-COVID-19 legal shutdowns, 2021 was an active one on the legal docket. Below, we highlight some key national product liability cases, along with top product liability Midwest cases (with a focus on Missouri, Illinois, and Kansas) decided in 2021. While not an exhaustive list, the aim is to provide you an overview of what the year held.

Supreme Court and Other Major Cases

1.  Specific Personal Jurisdiction is Expanded.

Courts around the country have held that a defendant is not subject to specific personal jurisdiction unless the claims arose out of contact with the forum state. However, the United States Supreme Court recently ruled that the law does not require solely a causal link but allows jurisdiction when the claims relate to the defendant’s contacts within the forum. In Ford Motor Co. v. Montana Eighth Judicial District Court, et al. and Ford Motor Co. v. Bandemer, the plaintiffs brought product liability claims against Ford in the states where the auto accidents occurred and the plaintiffs resided - Montana and Minnesota respectively. However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota. The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota. The cars arrived in the forum states through the actions of third-parties. The Court noted the significant advertisements used by Ford to urge residents of Montana and Minnesota to buy its products, including the same type of vehicles involved in the accidents. Similarly, the number of authorized Ford dealers in the states, and Ford sending replacement parts to those dealerships and independent repair shops throughout the forums demonstrated Ford had purposefully availed itself of benefits of doing business there.  Link to Product Liability Law Blog post (March 31, 2021).

2.  Oklahoma Supreme Court Overturns J&J’s $465 Million Opioid Judgment.

In November, the Oklahoma Supreme Court overturned a $465 million opioid verdict against Johnson & Johnson, entered by Judge Thad Balkman in the District Court of Cleveland County of the State of Oklahoma (Oklahoma ex rel. Hunter v. Purdue Pharma LP et al.). Specifically, the Court found that the trial court’s decision rested on an improper expansion of state law concerning what a “public nuisance” is under Oklahoma law. The Court noted that it was deferring the policy-making to the legislative and executive branches and that the district court engaged in an unprecedented expansion of public nuisance law; thus, the district court erred in finding J&J's conduct created a public nuisance. This opinion may foreshadow the outcome of cases pending across the nation in which companies have been accused of causing and/or contributing to the opioid crisis.

3.  State Governments Win In Ohio As Other Opioid Litigation Losses Continue.

An Ohio jury returned a verdict against pharmacy chains CVS, Walgreens and Walmart, finding them liable for creating a public nuisance in two counties by filling massive numbers of opioid prescriptions and contributing to the national opioid addiction crisis. This was the first win against only pharmacies, not including any drugmakers or distributors. The verdict came after back-to-back losses for local governments suing drug manufacturers over their involvement in the crisis. As discussed, above, in November, the Oklahoma Supreme Court overturned a $465 million judgment against Johnson & Johnson. In California, Orange County Superior Court Judge Peter J. Wilson opined there was not sufficient evidence to tie a rise in opioid prescriptions to misleading marketing, therefore finding drugmakers had not created a public nuisance. The impact of the use of the public nuisance suit against drug manufacturers and distributors has yet to play out entirely.

4.  GlaxoSmithKline Released from Zofran MDL.

A Massachusetts U.S. District Judge ruled that over 400 state law claims consolidated in a federal Multi District Litigation proceeding, alleging GlaxoSmithKline failed to warn consumers that its anti-nausea drug Zofran causes birth defects, were preempted by federal law, because the FDA has authority over warnings to consumers, and the agency declined to add a warning for pregnant women. Indeed, the FDA rejected adding the requested warning label for pregnant women, even though it was aware that Zofran had been prescribed off-label to pregnant women for years. This was the first bellwether case in the MDL. This ruling by the Judge was consistent with the U.S. Supreme Court’s ruling in Merck v. Albrecht, which held that the judge and not juries should analyze and apply the FDA’s regulations on warning labels; thus, opening the door for this Judge to make the call on preemption. The Judge ruled that the FDA clearly had all information to make a decision as to whether to require an additional warning to pregnant women, and determined that a label change was not warranted.  Thus, the FDA rejected the pregnancy-warning label that the plaintiffs insisted was required by state law at the time of the alleged injuries. The case is In re: Zofran (Ondansetron) Products Liability Litigation.

5.  Roundup Delivered Multiple Setbacks.

In May, the Ninth Circuit upheld a $25 million judgment against Bayer AG, making this Bayer’s second unsuccessful Roundup appeal. This judgment was obtained by plaintiffs in the first bellwether trial (Edwin Hardeman v. Monsanto Co.) in multidistrict litigation over claims the company's weedkiller causes cancer. The Court held that plaintiff's failure-to-warn claims are not blocked or preempted by federal law under the Federal Insecticide, Fungicide and Rodenticide Act because the laws have parallel requirements. In order to avoid misbranding violations, federal law requires that a pesticide label must include a warning "adequate to protect health and environment.” California common law holds that manufacturers must warn about known risks or risks about which a "reasonably prudent" manufacturer would know. Also in May, in In re: Roundup Products Liability Litigation, a California federal judge rejected a proposed $2 billion settlement meant to cover claims brought in the future over Roundup, finding that it was "clearly unreasonable" for a group of Roundup users who have not yet developed non-Hodgkin's lymphoma to be bound by the same. In November, the California Supreme Court denied Monsanto’s request to overturn an $87 million verdict awarded to the Pilliods who claim the Bayer AG subsidiaries weedkiller, Roundup, caused their cancer. In 2019, jurors originally awarded $2 billion in damages after determining that Roundup was more likely than not a contributing factor that caused the couple to develop Non-Hodgkin’s lymphoma. The award was later reduced and Bayer AG appealed the decision, but was shot down by a California appellate court for making arguments that carried little resemblance to the trial record. This denial by the California high court let stand what was the third loss Bayer saw in trial over the Roundup product.

6.  Flint Water Settlement Approved.

In November, a Michigan federal judge gave final approval to the proposed settlement for the In Re: Flint Water Cases. The settlement, which was approved at $626 million, will be paid to over 100,000 people affected by the contaminated water in Flint, Michigan. The Sixth Circuit recently affirmed a lower Court’s decision not to allow state court plaintiffs to intervene in the federal court settlement.

7.  Boeing Pays Up to Settle Conspiracy Claims Over The Max 8.

In January, Boeing agreed to pay more than $2.5 billion to settle a conspiracy claim brought by the Department of Justice accusing them of hiding information from the FAA about the safety of the 737 Max 8 airplanes. The planes were involved in two separate crashes, which claimed the lives of 346 people. In November, Boeing agreed to a settlement of the claims asserted in the In re: Ethiopian Airlines Flight ET 302 Crash matter, pending in the Northern District of Illinois.

8.  Southern District of Texas Delivers One-Two-Three Punch.

In Johnson v. Novartis, the plaintiff asserted claims of strict liability, negligence, fraud and warranty as well as violation of the Texas Deceptive Practices Act after claiming he contracted Peyronie’s disease from the ingestion of a combination of two generic drugs. The Johnson court disposed of the multiple actions, ultimately treating the entire case as an alleged failure to warn products case. First, the two brand name defendants moved to dismiss the plaintiff’s claims, which relied on innovator liability. In other words, this is when a plaintiff brings a claim against a brand name manufacturer for injuries caused by a generic drug. The Fifth Circuit upheld the district court’s dismissal of the brand name manufacturers, agreeing that Texas law does not support the contention that brand name manufacturers owe a duty to consumers of generic drugs. Second, the court held that the plaintiff’s state law claims against the generic manufacturers were preempted by federal law based on the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) The district court followed both Supreme Court and Fifth Circuit precedent in holding that plaintiff’s claims against the generic manufacturers based on failure to warn of the possible risk were preempted. Third, the Court rejected plaintiff’s argument that the generic manufacturers had frauded the FDA. Texas law presumes no liability for FDA approved labels unless the plaintiff is able to show one of five rebuttals, including “Fraud on the FDA”. In Johnson, the plaintiff alleged the defendant’s withheld information from the FDA related to the connection between the drugs and his disease. Finally, the Court refused to allow the plaintiff leave to amend his complaint, reasoning justice did not require leave to amend. All of plaintiff’s claims were dismissed with prejudice.

9.  Florida Jury Returns $43M Tobacco verdict against Philip Morris.

In Lipp v. R.J. Reynolds et. al, Philip Morris was found responsible for 85% of the harm caused to Norma Lipp who died of lung cancer in November 1993. The jury found that the legal cause of Lipp’s death was addiction to nicotine cigarettes caused by her reliance on statements made by Philip Morris and concealment of information during its promotion of tobacco.

Missouri, Kansas, and Illinois:

10.  Eighth Circuit Breathes New Life into Bair Hugger MDL.

The 8th Circuit Court of Appeals reversed a decision by the district court that had excluded the testimony of plaintiff’s expert witnesses and granted summary judgment to 3M. Plaintiffs in the MDL (In re Bair Hugger Forced Air Warming Devices Products Liability Litigation) claimed that 3M’s surgical warming device is defective and caused bacteria to contaminate the sterile operating room, leading to infection. The MDL Court had excluded plaintiff’s experts, opining their opinions to be unreliable because there was too great of an analytical gap between the literature presented and the experts general causation opinion. Link to Product Liability Law Blog post (September 28, 2021). There is another 3M MDL (In re: 3M Combat Arms Earplug Products Liability Litigation) being tried in other jurisdictions that, as of the middle of December, has delivered ten trials in the 3M litigation, with tied results: five defense wins and five multimillion-dollar plaintiff verdicts. Those claims involve veterans alleging their hearing was damages by CAEv2 earplugs made by Aearo Technologies LLC, a company acquired by 3M.

11.  Pre-Judgment Interest in Illinois.

Illinois governor J.B. Pritzker signed into law SB0072, which amends the Civil Code of Procedure to allow plaintiffs to collect pre-judgment interest on certain damages awarded in Illinois personal injury and wrongful death cases. Prejudgment interest will accrue at a rate of 6% annually, and it will begin to accrue when the lawsuit is filed, not when the company receives notice of the injury. The act excludes the running of interest on punitive damages, sanctions, statutory attorney’s fees, and statutory costs. The act removed a provision that had been included in the earlier bill that allowed judges to divert a section of the funds to any state agency or department. The act also allows defendants potentially facing prejudgment interest an option to mitigate the size of a potential interest award by receiving a credit for certain settlement offers. See 735 ILCS 5/2-1303(c).

12.  The Supreme Court Refuses to Hear J&J’s Talc Appeal from Missouri Case.

In June of 2021, the Supreme Court refused to hear Johnson & Johnson’s appeal in a talc case decided in Missouri state court (Johnson et al. v. Gail L. Ingham et al.) $2.1 billion was awarded to about two dozen women who claimed there was asbestos in J&J’s talcum powder, which caused their ovarian cancer. The Missouri Supreme Court had previously also refused to review the matter after a Missouri appeals court took off about $2.6 billion from the verdict (the jurors originally awarded a combined $550 million and $4.14 billion in compensatory and punitive damages). J&J had argued that consolidating the claims from the women was highly prejudicial and violated its due process rights, and that the Missouri trial court lacked personal jurisdiction over the plaintiffs, who did not live in Missouri and had not shown that they purchased or used the products in Missouri.

13.  Inadequate Voluntary Dismissal Results in Dismissal with Prejudice.

In Graham v. Mentor Worldwide LLC, 998 F.3d 800 (8th Cir. 2021), plaintiff sued the manufacturer of breast implants, a Class III PMA medical device, in state court, due to the rupture of one of her implants following a car accident. The plaintiff also joined as defendants the vehicle driver and the hospital in which the implantation surgery occurred. The manufacturer defendant removed the case to federal court on diversity grounds, claiming fraudulent joinder and fraudulent misjoinder – i.e., that there were no colorable claims that could be asserted against the latter two defendants, and that as residents of the same state as Plaintiff, they were added to the case solely in an attempt to defeat removal to federal court on diversity grounds. The 8th Circuit held that the hospital was fraudulently joined because there was no possible basis for strict liability against the hospital in Missouri. The Court also ruled that the auto accident claim had nothing to do with the products liability claim so the accident claim was severed and remanded to state court. Here, however, the case took an unusual turn. The Court had denied a dismissal of Plaintiff’s claims based on an allegation by Plaintiff that she had the breast implants done as part of a clinical trial approved by the FDA. The defendant countered this by introducing records that the plaintiff was lying and immediately threatened Rule 11 sanctions. Plaintiff responded by moving to dismiss her action voluntarily without prejudice under Fed. R. Civ. P. 41(a). The Court denied this motion and dismissed the action with prejudice, ruling that Plaintiff failed to provide justification for wanting to dismiss without prejudice. The Court stated that the failure to provide an adequate purpose for dismissal without prejudice reflected an inappropriate purpose of finding a more favorable forum or to escape an undesirable outcome.

14.  EpiPen Settlement Produces $115M for Consumer Counsel.

In November, a Kansas federal judge gave final approval to the $345 million settlement of class action litigation claims against pharmaceutical company Pfizer, in In re: EpiPen Marketing, Sales Practices and Antitrust Litigation.  $115 million of that settlement was designated for the plaintiff class counsel, with seven law firms splitting the $115 million. The class claims against Pfizer included claims of racketeering and state antitrust violations against EpiPen manufacturer Pfizer and EpiPen seller Mylan, after the price point of the EpiPen increased to $600 in 2016 from the $100 it had been in years prior. Mylan still faces certain claims by the class to be tried in front of a jury soon.

15.  Illinois Officer Awarded $7.5M for Failure to Warn by Ammo Makers.

In Hakim v. Safariland LLC et al., an Illinois SWAT officer was awarded $7.5 in damages, based on a finding that defense gear manufacturer Safariland LLC failed to warn consumers their TKO breaching rounds must be shot at metal to operate safely. The SWAT officer David Hakim was injured during a training accident when another officer shot a round of exploding ammunition at a piece of wood and the bullet traveled through the door and became lodged in Hakim’s spine. Hakim still serves as a SWAT officer but deals with back pain from the incident. However, that judgment is now being challenged by the Ammo Makers, who are seeking to void or reduce the judgment.

16.  Illinois State Court Jury Sides With J&J In Talc Powder Jury Trial.

The jury, in Cadagin v. Johnson & Johnson et al., determined that the death of Elizabeth Driscoll from ovarian cancer was not caused by her use of Johnson & Johnson’s (“J&J”) baby powder. Colleen Cadagin, who brought the claim on behalf of her aunt, claimed her aunt had used the powder regularly and habitually throughout her adolescence and that J&J was aware that its baby powder was defective and dangerous for perineal use. Cadagin claimed J&J knew the powder contained carcinogenic components such as asbestos, chromium, nickel, cobalt, and arsenic. However, the jury sided with J&J.

17.  Seventh Circuit Grants Paint Makers Reversal of $6M Verdict.

The 7th Circuit reversed a $6M verdict against The Sherwin Williams Co. and two other paint makers, undoing a decision finding them liable for brain damage caused by their lead-based paint. The three-judge panel found that the trial court erroneously went beyond the scope of a previous Wisconsin Supreme Court case, Thomas v. Mallett, which held the makers of lead paint could only be held liable in cases in their capacity as makers of the pigment containing lead, not as makers of the paint. Of the three companies, only one of them was both a pigment and paint manufacturer at all relevant times. The district court further erred in ruling the plaintiffs had to prove their injuries were caused by the companies’ failure to warn, but then ruling post-trial that they did not have to provide such proof.

18.  Actavis Drug Did Not Cause Man’s Heart Attack.

An Illinois federal jury (Martin v. Actavis et al.) sided with Actavis Inc. on all counts of a lawsuit brought by a man who claimed the company’s testosterone replacement drug caused his heart attack and sought nearly $80M in damages. The claims included strict liability for failure to warn, negligence, and fraudulent misrepresentation. The Court determined that the man failed to prove the drug Androderm directly caused his heart attack. Plaintiff and his attorneys asked the jury to require Actavis to reimbursed Martin for nearly $80,000 in medical bills and additional $1.5 million for past and future medical expenses and $2 million for past and future emotional distress. Plaintiff’s trial was set to be the first bellwether trial against Actavis over cardiovascular problems allegedly caused by its TRT drug, before the company reached a settlement in the multi-defendant MDL in 2018. Plaintiff opted out of that deal.

As you can see, the legal docket was a busy one in 2021 – delivering a mixed bag of results for plaintiffs and defendants in various product liability settings. 2022 is sure to deliver even more interesting and impactful results. We will be watching. 

Eighth Circuit breathes new life into In Re Bair Hugger Products Liability MDL

September 28, 2021 | Gregorio Silva and Richard Woolf

On August 16, 2021, the Eighth Circuit Court of Appeals reversed a District Court decision striking class action plaintiffs’ experts and granting summary judgment to 3M Company in the In re Bair Hugger Forced Air Warming Devices Products Liability Litigation. This case is part of Multi-district Litigation (MDL) proceedings, consisting of nearly 6,000 lawsuits, pending in the District of Minnesota. The MDL court, following similar rulings by the trial court in the first bellwether case, excluded Plaintiffs’ general-causation medical experts as well as one of their engineering experts, and granted 3M summary judgment as to all of plaintiffs’ claims.

Plaintiffs in the MDL have brought claims against 3M asserting that they contracted periprosthetic joint infections due to the use of 3M’s Bair Hugger. The Bair Hugger is a convective, or forced-air, patient-warming device intended to stave off hypothermia related complications that can arise during or after surgery. The device consists of a central heating unit, a hose, and a disposable perforated blanket that is placed over the patient. The central unit draws in air through a filter, warms the air, and blows it out through the hose into the perforated blanket.  

MDL plaintiffs proffer two theories of causation: first, waste heat from the device creates currents that carry bacteria from nonsterile areas of the operating room to the surgical site (“the airflow theory”); or second, the device is internally contaminated and projects bacteria through the blanket into the operating room (“the contaminated product theory”). 

The MDL court excluded plaintiffs’ engineering expert on the grounds his opinion relied upon modeling developed for litigation and was unproven and untested in real-world operating rooms.

Plaintiffs’ engineering expert created a computational-fluid-dynamics (“CFD”) model to support the airflow theory that was eventually published in a peer-reviewed journal, and which the MDL court found to be reliable based upon the underlying physics.  Nonetheless, the MDL court excluded plaintiffs’ engineer because his conclusion “relies on an unproven and untested premise” in actual practice, and the CFD model was developed for litigation, raising “concerns about its reliability and objectivity.” The Eighth Circuit disagreed, ruling that when a “hired gun” expert’s work has been peer reviewed and published, and the developed-for-litigation concern is the only basis for excluding an expert, lingering questions of reliability and objectivity go to the weight of the evidence, rather than its admissibility. DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000). The Eighth Circuit found it was an abuse of discretion to wholly exclude the engineer’s testimony.

Plaintiffs’ medical causation experts asserted causation based upon the CFD model and an observational epidemiological study, which disclaimed establishing a causal connection, finding that patients warmed by the Bair Hugger were four times more likely to contract an infection.

The MDL court excluded plaintiffs’ medical experts, finding their opinions unreliable because there was “too great an analytical gap between the literature and the experts’ general causation opinion.”   The MDL court deemed it unreliable for the medical experts to draw an inference of causation from a study that disclaimed proving causation. The Eighth Circuit rejected that it is per se unreliable for an expert to draw an inference of causation from a study disclaiming having proved causation, if the expert does the work to bridge the gap between association and causation. The Eighth Circuit found that plaintiffs’ experts also relied on studies and reports showing plausible mechanisms for forced-air warming to cause infections. As such, the District Court should not have wholly excluded the experts as the disclaimer of causation from the epidemiological study went to the weight of the opinions rather than render them unreliable and inadmissible.

The MDL court’s grant of summary judgment to 3M was derivative of its order excluding Plaintiffs’ experts, and thus was reversed by the Eighth Circuit.

What does this mean for your company?

While the Eighth Circuit’s decision seems to be a boon to plaintiffs, who have the burden of proving their case, companies defending products liability cases can create a strategic advantage by retaining the right counsel and experts. If you, like 3M, are defending products liability litigation, you want to retain experts who can effectively bridge the gap between theory and the real world. 

Jurisdictional Expansion: Specific Personal Jurisdiction Just Got Broader

March 31, 2021 | John McLeod

Courts around the country have held a defendant is not subject to specific personal jurisdiction in a forum unless the claims asserted arose out of the defendant’s contacts with the forum. In product liability cases, typically unless the product arrived in the forum through the defendant’s actions, the courts found no specific personal jurisdiction existed.  However, the United States Supreme Court has broadened the scope of contacts sufficient for a court to exercise personal jurisdiction over a defendant.  In doing so, it has weakened a powerful defense. 

There are two types of personal jurisdiction—general and specific.  Where general personal jurisdiction applies, a court may hear any claims against a defendant, even those unrelated to the forum.  Barring an exceptional case, corporations are subject to general personal jurisdiction in any state in which they are incorporated or their principal place of business is located.  Specific personal jurisdiction is more limited.  A court may only exercise specific personal jurisdiction if the claims brought arise out of or relate to a defendant’s contacts with the forum.  The new decision focuses on specific personal jurisdiction. 

In two related cases - Ford Motor Co. v. Montana Eighth Judicial District Court, et al. and Ford Motor Co. v. Bandemer -the plaintiffs brought product liability claims against Ford arising from auto accidents that occurred in Montana and Minnesota respectively.  The plaintiffs were residents of those states.  However, the vehicles at issue were not originally sold by Ford in Montana or Minnesota.  The cars were designed in Michigan, manufactured in Kentucky and Canada, and first sold in Washington and North Dakota.  The cars arrived in the forum states through the actions of third-parties.

Ford argued the states lacked personal jurisdiction over it because Ford did not first sell the vehicles in the forums.  Ford claimed there must be a causal link between the contacts and the claims. The plaintiffs asserted that Ford’s vast connections with the states, including dealerships, advertising and repair shops, provided a sufficient connection to the forums establishing that Ford purposefully availed itself of the privilege of conducting business there.

In a majority opinion authored by Justice Kagan, the Supreme Court rejected Ford’s causal link argument.  The Court held the case law did not require solely a causal link but also allowed jurisdiction when the claims “relate to the defendant’s contacts with the forum.” The Court noted the significant advertisements used by Ford to urge residents of Montana and Minnesota to buy its products, including the same type of vehicles at issue.  Similarly, the number of authorized dealers in the states along with Ford sending replacement parts to those dealerships and independent repair shops throughout the forums demonstrated Ford had purposefully availed itself of benefits of doing business there. 

Justices Alito, Gorsuch and Thomas concurred in the judgment with Justice Barrett taking no part in the consideration or decision of the case.  Justice Gorsuch, joined by Justice Thomas, lamented the majority opinion’s failure to provide adequate guidance to lower courts regarding what amount of contacts would support a forum exercising personal jurisdiction over a defendant, and a lack of clarity as to whether any causal link is necessary. 

Justice Gorsuch further questions why national corporations would not be subject to personal jurisdiction in every state in which they do business.  He notes “the Constitution has always allowed suits against individuals on any issues in any State where they set foot.”  Id. n.5.  He posits, why should corporations receive more jurisdictional protections than individuals?

So, how will this decision impact cases?  First, the decision reaffirms that a nonresident plaintiff may only file suit in a forum in which there is a connection to the claims asserted.  The majority suggests that had plaintiffs tried to file suit in some other state unrelated to the incident or the vehicles in question, personal jurisdiction would be improper.  This reaffirmation should continue to help limit forum shopping by plaintiffs.  However, nonresident plaintiffs may still file suit in a corporation’s home states where it is subject to general personal jurisdiction.

Second, regional companies would still be protected from suits in other jurisdictions in which they do not conduct their businesses.  However, the decision will likely expand the scope of permissible jurisdictional discovery allowed by trial courts particularly in those states where plaintiff bears the burden of proving personal jurisdiction exists.

Third, national companies may essentially be subject to personal jurisdiction in any state in which a resident plaintiff is injured.  However, it is unclear from the opinions what limitations, if any, exist.  For example, if a manufacturer sells its products through a national retailer, does this fact mean the manufacturer is subject to personal jurisdiction everywhere the national retailer is?  Would the exercise of personal jurisdiction depend on how the product gets to the retailer—i.e. does the manufacturer send the product to a third-party distributor who then sends it to the individual stores or does the manufacturer deliver the products to the stores directly? 

Similarly, how much advertisement is sufficient? Will it matter if the advertisement is directed to the state or nation as a whole—such as television commercials or billboards—or if it is narrowly tailored to a specific type of audience such as sponsorship signs on team uniforms, at a ballpark, or in a trade magazine?  What if the advertising is purchased in a national magazine rather than a local newspaper? 

Finally, there was no guidance issued for e-commerce sales.  Will a single sale to a forum be sufficient? Is it a number of sales or the percentage of the overall business’s sales that are relevant? Will a critical factor be whether the website accessed was the manufacturer’s or a third-party’s?

Unfortunately, the opinion leaves these questions to be sorted out in future cases with little guidance to the lower courts.  As a result, this will not be the last time we hear from the Supreme Court on personal jurisdiction.