Glater v. Eli Lilly & Co., 82-1864

• Decision Date: 12 July 1984
• Docket Number: No. 82-1864,82-1864
• Citation: 744 F.2d 213
• Court: U.S. Court of Appeals — First Circuit
• Parties: Cathy Ann GLATER, Plaintiff, Appellant, v. ELI LILLY & CO., Defendant, Appellee.

Page 213

744 F.2d 213

Cathy Ann GLATER, Plaintiff, Appellant, v. ELI LILLY & CO., Defendant, Appellee.

No. 82-1864.

United States Court of Appeals First Circuit.

Argued April 4, 1983.

Decided July 12, 1984.

Stanley M. Brown, Manchester, N.H., with whom Brown & Nixon P.A., Manchester, N.H., Thomas R. Watson, and Tybursky & Watson, Portsmouth, N.H., were on brief, for plaintiff, appellant.

Don M. Kennedy, Boston, Mass., with whom Marshall Simonds, P.C., Frank Dennis Saylor, IV, Goodwin, Procter & Hoar, Boston, Mass., John A. Graf, Richard S. Snierson, and McLane, Graf, Raulerson & Middleton, P.A., Manchester, N.H., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Cathy Ann Glater brought this diversity action in the United States District Court for the District of New Hampshire against Eli Lilly & Co. (Lilly) in January 1981. She sought damages for personal injuries allegedly caused by exposure in utero to diethylstilbestrol (DES), a drug manufactured and distributed by Lilly. By order dated October 13, 1982, the district court granted Lilly's motion to dismiss for lack of personal jurisdiction; Glater appealed.

In a previous published opinion we addressed two preliminary questions, ¹ leaving open the ultimate issue of whether dismissal for lack of personal jurisdiction was proper. Glater v. Eli Lilly & Co., 712 F.2d 735, 739-40 (1st Cir.1983). We deferred final decision until the Supreme Court announced its decision in Keeton v. Hustler Magazine, Inc., --- U.S. ----, 104 S.Ct. 1473, 79 L.Ed.2d 790 (U.S. Mar. 20, 1984), rev'g Keeton v. Hustler Magazine, Inc., 682 F.2d 33 (1st Cir.1982). We now affirm.

The facts may be briefly summarized. At the time of Glater's exposure in utero to DES, Glater's mother lived in Massachusetts. Glater was born in Massachusetts and lived there until 1975, when she moved to New Hampshire. She was employed at the New Hampshire office of an insurance company, and was transferred to a Massachusetts office in 1980. In August 1980 Glater returned to live in Massachusetts, but continued thereafter to maintain certain contacts with New Hampshire. She was a Massachusetts resident in January 1981, when she commenced this action. Lilly is an Indiana corporation which has marketed DES nationwide since 1947. Lilly engages in limited advertising of its pharmaceutical products in professional trade journals which circulate in New Hampshire, and employs eight sales representatives whose duties consist in part of providing information concerning Lilly products to certain New Hampshire physicians, pharmacies and hospitals. Three of the sales representatives live in New Hampshire. Neither the sales representatives nor Lilly directly sells products in New Hampshire; rather, sales are made to individual wholesale distributors, some of whom are located in New Hampshire. Apparently, Lilly has appointed no agent to receive service of process in New Hampshire.

Lilly concedes in its answer to Glater's complaint that it does business in New Hampshire. This appears to bring Lilly within the terms of New Hampshire's long-arm statute for foreign corporations, which has been construed to extend to the constitutional limits of due process. ² The issue before us, therefore, is whether the exercise of personal jurisdiction in these circumstances would be consistent with the due process standard articulated in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and further elaborated in subsequent cases.

As a threshold requirement for subjecting a defendant foreign corporation to personal jurisdiction under a state statute, there must exist "certain minimum contacts [between the defendant and the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 343, 85 L.Ed. 278]." International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. Whether a defendant's activities in the forum state are sufficient to support personal jurisdiction in a particular case depends on

the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.

Id. at 319, 66 S.Ct. at 160. Thus, the Court has held that due process does not permit the exercise of personal jurisdiction based on a fortuitous automobile accident where the defendants (auto distributor and retailer) carry on no activity whatsoever in the forum state, close no sales, perform no services, avail themselves of no privileges or benefits of state law, solicit no business, and do not seek to serve the market of the forum state directly or indirectly. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 & 299, 100 S.Ct. 559, 566 & 568, 62 L.Ed.2d 490 (1980); see also Rush v. Savchuk, 444 U.S. 320, 332-33, 100 S.Ct. 571, 579-80, 62 L.Ed.2d 516 (1980). In the present case, Lilly has conceded that it transacts business in New Hampshire; there is not the "total absence" of contacts which would require automatic dismissal. World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 566.

Where a defendant has certain judicially cognizable ties to the forum state, "a variety of factors relating to the particular cause of action may be relevant" to the issue of jurisdiction. Rush, 444 U.S. at 332, 100 S.Ct. at 579. A consideration of fundamental importance is whether the cause of action arises out of or is related to the defendant's contacts with the forum state. If so, then "specific jurisdiction" may be found based on the relationship among the defendant, the forum, and the litigation. Helicopteros Nacionales de Colombia, S.A. v. Hall, --- U.S. ----, ---- & n. 8, 104 S.Ct. 1868, 1872 & n. 8, 80 L.Ed.2d 404 (U.S. April 24, 1984), citing Shaffer v Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977). If, on the other hand, the cause of action is unrelated to the defendant's instate activities, the issue becomes one of "general" rather than "specific" jurisdiction. Helicopteros, --- U.S. ---- n. 9, 104 S.Ct. at 1872 n. 9. Although minimum contacts suffice in and of themselves for specific jurisdiction under International Shoe, ³ the standard for general jurisdiction is considerably more stringent. See Keeton, --- U.S. at ----, 104 S.Ct. at 1480; Seymour v. Parke, Davis & Co., 423 F.2d 584, 587 (1st Cir.1970). The importance of the distinction is illustrated in the present case.

We are guided in our inquiry by the Supreme Court's recent discussion of specific jurisdiction in Keeton, where it was held that the defendant's regular circulation of magazines in New Hampshire was "sufficient to support jurisdiction when the cause of action arises out of the very activity being conducted, in part, in New Hampshire," even though the same contacts "may not be so substantial as to support jurisdiction over a cause of action unrelated to those activities." --- U.S. at ----, 104 S.Ct. at 1479. The Court focused on the special context of libel in finding jurisdiction; the circulation of libellous magazines was viewed as causing injury to both the subject of the falsehood and the readers of the magazine whenever and wherever the magazines were circulated. Thus, the defendant's "regular circulation of magazines in the forum State [was held] sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine." Id. at ----, 104 S.Ct. at 1478. By contrast, the present case involves a claim for personal injuries allegedly suffered as a result of exposure to a dangerous drug. Glater's cause of action is much more localized than libel, for it arises with respect to only a single victim in a particular location at a given time. Although Lilly sold DES in New Hampshire, Glater's cause of action did not arise from Lilly's New Hampshire activities; rather, her injuries were caused in Massachusetts by exposure in utero to DES which her mother purchased and consumed in Massachusetts. Glater's residence in New Hampshire at a time before suit was commenced did not enhance Lilly's contacts with the forum, for the injury occurred long before her move to New Hampshire and there were no effects in New Hampshire at the time of suit. We do not think that Lilly's sales of DES in New Hampshire can be said to be related to Glater's injury in the sense that the circulation of magazines in New Hampshire was related to the injury in Keeton. ⁴ Finding that the Keeton standard for specific jurisdiction is inapplicable in this case, w...