Was Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct. Actually a Game-Changer for Toxic Tort Defendants?

Written by: Gregory W. Odom, Baker Sterchi Cowden & Rice, LLC, Belleville

Since the United States Supreme Court issued its opinion in Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021), much has been written about the potential impact of the Court’s opinion. For example, some have questioned whether the opinion will “open back up the possibility for significant forum shopping among plaintiffs.” Jessica Hylton, Time for a New Shoe? Making Sense of Specific Jurisdiction, 87 MO. L. REV. 565 (Spring 2022). Others have noted that litigation is “sure to follow,” that the opinion left a “catalogue of questions” unanswered, and that the opinion “invites more litigation, more hard cases.” See Jenny Bagger, Dropping the Other Shoe: Personal Jurisdiction and Remote Technology in the Post-Pandemic World, 73 HASTINGS L.J. 861 (2021/2022); Patrick J. Borchers et al., Ford Motor Company v. Montana Eighth Judicial District Court: Lots of Questions, Some Answers, 71 EMORY L.J. ONLINE 1 (2021); Michael Vitiello, The Supreme Court’s Latest Attempt at “Clarifying” Personal Jurisdiction: More Questions than Answers, 57 Tulsa L. Rev. 395 (Winter 2022). In this edition of the IDC Quarterly, we examine if, and to what extent, Ford has impacted defendants in toxic tort litigation. In doing so, we examine Illinois state and federal court rulings interpreting Ford.

Does Specific Jurisdiction Exists when the Injury and Similar Business Activities Occur in Illinois?

Plaintiffs in toxic tort litigation may argue that specific jurisdiction exists when the defendant’s alleged tortious conduct occurred outside of Illinois, the plaintiff suffered injury in Illinois, and the defendant conducted business within the state similar to the type at issue in the case. For example, a plaintiff may allege that he or she was exposed to a defendant’s product outside of Illinois, but subsequently moved to Illinois and developed an illness or injury due to the exposure. If the defendant sold or distributed the same type of product at issue in Illinois, the plaintiff may attempt to establish specific jurisdiction based upon the defendant’s “related” business activities within the state and because the alleged injury occurred in Illinois.

However, in Morrison v. JSK Transp., Ltd., the Illinois Appellate Court Fourth District rejected an argument based on this theory. In that case, the plaintiff, a citizen of Arkansas, alleged that the defendant performed maintenance on her vehicle in Arkansas immediately before she traveled to Illinois. 2022 IL App (4th) 210542-U, ¶ 7. In Illinois, the plaintiff’s vehicle broke down, causing her to park on the shoulder of a highway. Id. While parked on the shoulder, a vehicle veered off the highway, struck the plaintiff’s vehicle and injured her. Id. The plaintiff filed a negligence suit against the defendant. The defendant was a Delaware corporation, with its registered agent located in Arkansas. Id. The circuit court granted the defendant’s motion to dismiss, finding that the defendant was not subject to specific jurisdiction. Id. ¶ 15.

On appeal, the plaintiff relied on Ford to argue that specific jurisdiction existed because she suffered injury in Illinois and her action arose out of, or related to, the defendant’s contacts with Illinois. Id. ¶ 40. Specifically, the defendant had service centers in Illinois and performed vehicle maintenance at those centers similar to that performed on the plaintiff’s vehicle in Arkansas. The plaintiff, however, did not allege that her vehicle was serviced at or had any contact with those centers. Id. ¶ 41. The Fourth District rejected the plaintiff’s argument, and held that the only thing connecting the defendant to Illinois related to the plaintiff’s action, was that the plaintiff chose to drive to Illinois and was subsequently injured in Illinois. Id. ¶ 42. According to the Fourth District, the plaintiff’s case was distinguishable from Ford because in Morrison, the plaintiff, not the defendant, established a relationship between the forum and the litigation. Id. Thus, the Fourth District affirmed the circuit court’s judgment granting the defendant’s motion to dismiss for lack of jurisdiction. Id. ¶ 51.

The Practical Application

Through its ruling, the court in Morrison reaffirmed that specific jurisdiction cannot be based on the location of the plaintiff’s injury. Id. ¶ 42 (citing Walden v. Fiore, 571 U.S. 277, 285 (2014)). Defense counsel should remember that under state and federal due process principles, a defendant’s out-of-state actions causing “injurious consequence” in Illinois, without the commission of a tort in Illinois or expressly aiming activities at Illinois, is insufficient to establish specific jurisdiction. W. Va. Laborers Pension Trust Fund v. Caspersen, 357 Ill. App. 3d 673, 679 (1st Dist. 2005); Advanced Tactical Ordnance Sys. v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir. 2014); see also, Rogers v. City of Hobart, 996 F.3d 812, 820 n.14 (7th 2021) (noting that Ford did not warrant the exercise of specific jurisdiction where the only connection to the forum state was the plaintiff choosing to travel into the forum state; all of the defendant’s conduct at issue occurred outside of the forum state). Moreover, conducting business in Illinois, even the same type of business conducted in another state that allegedly caused the plaintiff’s injury, should not be sufficient to establish specific jurisdiction when the lawsuit is not connected to that in-state business activity. Caspersen, 357 Ill. App. 3d at 682.

In response, plaintiff’s counsel may argue that Ford stands for the proposition that specific jurisdiction exists when the plaintiff suffers injury in the forum state and the defendant conducts business within the forum state of the same type at issue in the case, regardless of where exposure to the injury-causing product occurs. In Ford, however, the product at issue (i.e., two Ford vehicles) malfunctioned in the forum states. 141 S. Ct. at 1028. That case did not involve a plaintiff alleging exposure to a product outside of the forum state who later developed an illness or injury in the forum state due to that exposure. Rather, Ford may be distinguished because the plaintiffs used the alleged injury-causing vehicles in the forum states, they suffered their injuries in the forum states, and Ford had an extensive history of advertising, selling, and servicing in the forum states the same vehicle models as the types involved in the plaintiffs’ accidents. Id. at 1028-30.

Are Unrelated Business Activities in Illinois Enough to Create Specific Jurisdiction?

A similar argument that defendants may face in toxic tort litigation involves a situation where the plaintiff experiences exposure and injury outside of Illinois, but attempts to establish jurisdiction based upon the defendant’s business activities within Illinois. Prior court rulings involving toxic tort litigation provide guidance. For example, in Lishman v. Air & Liquid Sys. Corp., the plaintiff, a lifelong Illinois resident, claimed exposure to asbestos through lube oil purifiers manufactured by the defendant. No. 21-cv-001570, 2022 U.S. Dist. LEXIS 66120, at *6 (N.D. Ill. April 11, 2022). The plaintiff’s alleged exposure occurred outside of Illinois while he served in the U.S. Navy. Id. The plaintiff argued that specific jurisdiction existed because his injury arose out of the defendant’s forum state conduct. Specifically, the plaintiff noted that the defendant possessed manufacturing facilities in Illinois, and maintained a sales office in Illinois. Id. at *12. However, the defendant did not manufacture the product at issue in the Illinois facilities, nor did the Illinois sales office sell the product at issue. Id.

The District Court for the Northern District of Illinois found that specific jurisdiction did not exist. In doing so, the court distinguished the facts at issue from those present in Ford. According to the District Court, in Ford, jurisdiction existed because the accidents occurred in the forum states where the company extensively marketed, sold, and supported repairs of the same model vehicles involved in the accidents. Id. at *13. The District Court suggested that the plaintiff’s claim in Lishman was instead comparable to the claims at issue in Bristol-Myers Squibb Co. v. Superior Ct. of Ca., San Francisco Cnty., 137 S. Ct. 1773 (2017). Specifically, in Bristol-Myers Squibb, the Supreme Court found no personal jurisdiction because the offending product did not malfunction in the forum state, and the plaintiffs did not suffer injuries from the product in the forum state. Lishman, 2022 U.S. Dist. LEXIS 66120, at *13. Given the similarities to Bristol-Myers Squibb, the District Court determined that the plaintiff failed to show an affiliation between Illinois and the underlying controversy. Id.

Similarly, in Romig v. MW Custom Papers, LLC, the plaintiff, a resident of Ohio, alleged that she was exposed to asbestos through her father’s automotive repair work performed in Ohio and through her and her husband’s work at a factory in Illinois. No. 22-cv-1101-SMY, 2022 U.S. Dist. LEXIS 129915, at *2-*3 (S.D. Ill. July 21, 2022). However, in her complaint, the plaintiff failed to allege that she was exposed to the defendant’s product while she or her husband worked at the Illinois factory, or while she lived in Illinois. Id. at *3. Thus, the court determined that it lacked specific jurisdiction over the defendant. Id.

In Malevitis v. Expedia Grp., Inc., a non-toxic tort case, an Illinois resident, entered into an online rental agreement to rent a property located in Arizona, 2021 IL App (1st) 200820-U, ¶ 4. When the Illinois resident arrived at the property, she discovered numerous defects, prompting her to file suit against the property owner, the booking agency, and the booking agency’s parent company. Id. ¶¶ 5-7. The defendant companies argued they were not subject to specific jurisdiction because the plaintiff’s action arose solely out of an incident involving an Arizona home. Id. ¶ 8. The plaintiff argued that the defendants were subject to specific jurisdiction because their “litigated-related conduct” created a substantial connection with Illinois. Id. ¶ 23.

The Illinois Appellate Court First District determined in Malevitis that the defendants’ only contact with Illinois that related to the plaintiff’s action was a website where individuals advertised properties and travelers found short-term rentals. Id. ¶ 24. The plaintiff relied on Ford to argue specific jurisdiction existed, but the court found no connection between the cases. According to the court, in Ford, the defendant systematically served a market in the forum states for the very vehicles that the plaintiffs alleged malfunctioned and injured them in those same states. Id. ¶ 27. By contrast, in Malvetis, there was no evidence that the defendants purposefully directed any conduct toward Illinois or its residents, and the alleged injury did not occur in Illinois. Id. Further, defendant’s website did not target travelers from Illinois nor did it direct any conduct toward Illinois. Id. ¶ 24.

In Ford, the Supreme Court suggested specific jurisdiction would not exist in instances of unrelated business activities situations. Specifically, the Court discussed its prior opinion in Bristol-Myers Squibb, noting that the plaintiffs in that case were not residents of the forum state, had not been prescribed the injury-causing product in the forum state, had not ingested the product in the forum state, and had not sustained their injuries in the forum state. Ford, 141 S. Ct. at 1031. “In short, the plaintiffs were engaged in forum-shopping—suing in California because it was thought plaintiff-friendly, even though their cases had no tie to the State.” Id.

Similarly, the Illinois Supreme Court previously determined that specific jurisdiction did not exist in a case in which non-resident plaintiffs alleged injury from a medical device despite the defendant conducting clinical trials for that device in Illinois, holding physician training programs for that device in Illinois, and coordinating a marketing strategy for the device in Illinois. Rios v. Bayer Corp., 2020 IL 125020, ¶ 24. The court in Rios found that the plaintiffs identified no jurisdictionally relevant links between their claims and Illinois, as the plaintiffs did not allege that the defendant manufactured the device in Illinois, their devices were not implanted in Illinois, neither they nor their physicians resided in Illinois, and the defendant did not train the plaintiffs’ physicians in Illinois. Id. ¶¶ 25-27.

In Rios, the court also took the opportunity to explain that a prior case, M.M. v. GlaxoSmithKline, 2016 IL App (1st) 151909, “does not reflect the law in Illinois and should no longer be followed.” In M.M., the First District determined that specific jurisdiction existed over claims by non-resident plaintiffs alleging birth defects due to a drug manufactured by the defendant. The First District reached this holding despite the plaintiffs not being prescribed the drug, ingesting the drug, or suffering injury in Illinois. The court in M.M. reasoned that the plaintiffs’ claims related to clinical trials of the drug the defendant performed in Illinois, among other states, because those clinical trials may have impacted the warnings, or lack of warnings, including on the drug’s label. Again, however, the Illinois Supreme Court expressly rejected the theory of jurisdiction adopted in M.M. See also Baity v. Johnson & Johnson, No. 3:20-CV-01367, 2021 U.S. Dist. LEXIS 71617, at *8 (S.D. Ill. April 14, 2021) (noting that in Ford, the Supreme Court affirmed jurisdiction where plaintiffs were residents of the forum states and “brought suit in the most natural State,” and that Bristol-Myers Squibb and its progeny have made clear that non-Illinois plaintiffs should bring their actions in the forums where the activities giving rise to their claims occurred).

Note, however, that in Harding v. Cordis Corp., 2021 IL App (1st) 210032, the court found specific jurisdiction over a product liability action involving allegedly defective component parts used in a medical device. One basis for the court’s position that jurisdiction was appropriate was because the defendant maintained minimum contacts through “a combination” of the sales of the offending product and other sales of similar products. Harding, 2021 IL App (1st) 210032, ¶ 44. The court’s holding in Harding on this issue should not be construed to mean that specific jurisdiction can be based upon the manufacturing or sale of types of products not at issue in a case.

In Harding, as in Ford, the plaintiff allegedly suffered injury in the forum state due to the defendant’s product malfunctioning in the forum state. Additionally, the other products the defendant sold into Illinois were similar to those that allegedly caused the plaintiff’s injury. Specifically, the plaintiff alleged injury through nitinol used in an OptEase filter. The defendant directly sold over $2 million of nitinol components to Illinois customers for use in other medical devices between 2011 and 2017. Id. ¶¶ 37-39. Accordingly, the plaintiff’s claim involved nitinol and the defendant’s other contacts with Illinois involved sales of nitinol. As the Supreme Court cautioned in Ford, the specific jurisdiction “relate to” standard “does not mean anything goes.” Ford, 141 S. Ct. at 1026. Rather, the phrase incorporates “real limits.” Id. In Ford, the majority rejected Justice Gorsuch’s “apparent (if oblique) view” that a state court should have jurisdiction over a nationwide corporation on any claim, no matter how unrelated to the state or the defendant’s activities therein. Id. at 1027 n.3.

The Practical Application

The Lishman, Romig, and Malevitis cases support defendants’ argument in toxic tort litigation that specific jurisdiction cannot be based upon a defendant’s business activities within Illinois when those activities are not linked to the plaintiff’s injury, exposure to the product at issue did not occur in Illinois, and the resulting injury did not occur in Illinois. Defense counsel should be mindful of this principle, as the plaintiffs’ bar attempts to expand the scope of specific jurisdiction in light of Ford.

Plaintiffs may also argue that specific jurisdiction exists when the plaintiff’s exposure and injury occurred outside of Illinois and the product at issue was manufactured outside of Illinois, if the defendant purchased ingredients or component parts from Illinois or had the product at issue tested in Illinois. As to purchases, defense counsel should be aware of all facts pertaining to such purchases, including every location involved in the transactions. If the only aspect of the transactions involving Illinois relates to the location to which payments were made, directing payments into Illinois is not sufficient to establish personal jurisdiction. Commercial Coin Laundry Sys. v. Loon Invs., 375 Ill. App. 3d 26, 33 (1st Dist. 2007); American Funeral Computer Service, Inc. v. Floyd, 165 Ill. App. 3d 309, 312 (4th Dist. 1988).

Does Specific Jurisdiction Exist when the Injury Occurs in Illinois and a Third-Party Directs the Defendant’s Products into Illinois?

After Ford, some courts have found that specific jurisdiction exists despite the defendant’s alleged tortious conduct occurring outside of Illinois. In those cases, however, the plaintiffs suffered injury in Illinois and the defendants knowingly used intermediaries to maintain contacts with Illinois that allegedly caused the plaintiffs’ injuries. See Harding, 2021 IL App (1st) 210032; Crumpton v. Haemonetics Corp., No. 21 C 1402, 2022 U.S. Dist. LEXIS 58354 (N.D. Ill. March 30, 2022); King v. PeopleNet Corp., No. 21 CV 2774, 2021 U.S. Dist. LEXIS 207694 (N.D. Ill. Oct. 28, 2021). The courts determined that the use of third-parties to maintain contacts with Illinois did not sever the relationship between the plaintiffs’ claims and the defendants’ contacts with Illinois. Harding, 2021 IL App (1st) 210032, ¶¶ 44-45; Crompton, 2022 U.S. Dist. LEXIS 58354, at *28; King, 2021 U.S. Dist. LEXIS 207694, at *16.

The Practical Application

Plaintiffs’ counsel may attempt to conflate these holdings to argue for specific jurisdiction where the plaintiff suffers injury in Illinois and the defendant’s product made its way into Illinois through the actions of a third-party. Defense counsel may argue that the Crumpton and King cases are distinguishable, as those cases involved alleged biometric privacy violations, not toxic tort exposure claims. Additionally, the defendants in those cases used intermediaries to knowingly collect the biometric information of Illinois residents. Thus, the defendants could not establish that their contacts with Illinois were the result of unilateral actions by third-parties.

Conversely, the Harding case did involve product liability, namely allegedly defective component parts used in a medical device. While the defendant in that case manufactured and sold the component parts outside of Illinois, the component parts were custom-designed and could only reach customers through the third-party distributor. Harding, 2021 IL App (1st) 210032, ¶ 34. The defendant in that case sold the custom-designed component parts to its distributor for nationwide sales. Id. ¶ 33. According to the court, the only way the defendant’s custom-made component parts could reach the final consumer in Illinois, or anywhere else, was through the distributor. Id.

In response, defense counsel should be prepared to argue that Harding, and the holding on which it was primarily based, Russell v. SNFA, 2013 IL 113909, involved unique facts. Again, the defendants manufactured custom-made products that could only reach Illinois through intermediaries. If counsel represents a defendant that did not design, manufacture, or sell the alleged-injury causing product in Illinois and did not control, directly or through a distributor, the locations to which the product was sold, counsel should consider arguing that the Harding and Russell cases are distinguishable. See Young v. Ford Motor Co., 2017 IL App (4th) 170177, ¶¶ 43-44 (finding that specific jurisdiction did not exist against a manufacturer that had no control over the ultimate destination of its products and reiterating that jurisdiction cannot be based upon the unilateral activity of a third-party). In Ford, the Supreme Court explained that its finding did not mean that “any person using any means to sell any good in a State is subject to jurisdiction there if the product malfunctions after arrival.” Ford, 141 S. Ct. at 1028 n.4.

How Have Circuit Courts Addressed Specific Jurisdiction in Toxic Tort Cases Since Ford?

Finally, defense counsel should be aware of how circuit courts in Illinois have ruled on specific jurisdiction in toxic tort litigation since Ford. In late 2021, the Circuit Court of Madison County dismissed three asbestos lawsuits for lack of specific jurisdiction. In those cases, the plaintiffs, all non-Illinois residents, alleged exposure to asbestos through raw talc that the defendant supplied to a manufacturer of talcum powder. The talcum powder was manufactured in Illinois for only one year between 1968-2002; otherwise, the product was manufactured outside of Illinois.

As non-Illinois residents, the plaintiffs in these three cases did not purchase or use any of the talcum powder containing the defendant’s raw talc in Illinois. According to the court, therefore, any advertising or promotion of the talcum powder seen by the plaintiffs, warnings or lack of warnings, and injuries would have occurred outside of Illinois. Thus, the court found that the defendant was not subject to specific jurisdiction in those cases. Ronald Hall, et al., v. Actuant Corp., et al., No. 20-L-1022 (Cir. Ct. Madison Co. Oct. 4, 2021); Melva Sue Lockenwitz v. Actuant Corp., et al., No. 19-L-949 (Cir. Ct. Madison Co. Nov. 10, 2021); Jennifer Phillippi, et al., v. Actuant Corp., No. 20-L-1193 (Cir. Ct. Madison Co. Nov. 10, 2021).

By contrast, the Circuit Court of Cook County denied a defendant’s motion to dismiss for lack of personal jurisdiction in an asbestos lawsuit involving alleged exposure outside of Illinois. Roger Doane v. A.W. Chesterton Co., et al., No. 20-L-13085 (Cir. Ct. Cook Co. June 16, 2021). In that case, the plaintiff alleged exposure to asbestos while working in Michigan through the use of brake presses manufactured by the defendant. The plaintiff argued that the defendant purchased asbestos-containing friction material for the brake presses from an Illinois company during the time of his alleged exposure. In response, the defendant argued that while it purchased friction material from the Illinois company, the Illinois company was not its exclusive supplier of friction material. Rather, the defendant also purchased friction material for its brake presses from companies located outside of Illinois. Additionally, the defendant argued that the plaintiff did not present any evidence that the friction material in the specific brake presses that he used came from the Illinois company.

Ultimately, the court in Roger Doane determined that there was sufficient circumstantial evidence and logical corollaries to demonstrate that the Illinois company was a supplier of asbestos-containing material to the defendant that related to the plaintiff’s exposure. The court also believed there was evidence showing a significant enough relationship between the defendant and Illinois to establish jurisdiction based on the defendant manufacturing, selling, and servicing asbestos-containing equipment in Illinois during the time period at issue. On July 15, 2021, the Illinois Appellate Court First District granted the defendant’s petition for leave to appeal the circuit court’s ruling. Roger Doane v. Cincinnati Inc., et al., No. 1-21-0721 (1st Dist. July 15, 2021). However, the defendant voluntarily dismissed its appeal before a ruling was issued.

Conclusion

Ultimately, when contesting specific jurisdiction, defense counsel should be mindful that the crux of the Ford holding is that the specific-injury causing product does not need to be purchased in the forum state for specific jurisdiction to exist. However, the Court did not signal that specific jurisdiction should be exercised in cases where the plaintiff does not allege injury in the forum state due to the product at issue malfunctioning in the forum state. Rather, in Ford, the plaintiffs were forum state residents who alleged injuries through vehicles that allegedly malfunctioned in the forum states and were of the same types that Ford regularly sold, advertised, and serviced in the forum states.

After Ford, a strict causal relationship between the defendant’s forum state contacts and the plaintiff’s action may not be required. As the cases discussed above illustrate, however, specific jurisdiction should not be exercised simply because the plaintiff suffers injury in Illinois and the defendant conducts business activities in Illinois similar to those at issue in the plaintiff’s case. Due process principles require that the defendant, not the plaintiff or the unilateral actions of a third-party, establish a suit-related connection to Illinois. Similarly, in cases involving out-of-state exposure and injury, defense counsel should consider arguing that under Bristol-Myers Squibb, Ford, and Bayer Corp., specific jurisdiction should not be exercised because the cases are not tied to Illinois.

About the Author

Gregory W. Odom of Baker Sterchi Cowden & Rice, LLC in Belleville is an experienced trial attorney whose practice is focused on complex business litigation matters in the areas of toxic torts, personal injury, product liability, premises liability, environmental law, and commercial litigation. He represents individuals, local businesses, and Fortune 500
companies in state and federal courts across Illinois and Missouri. He has successfully tried multiple cases to verdict and has successfully argued before the Illinois Court of Appeals. Mr. Odom received his B.A. from Southern Illinois University in Carbondale in 2005 and his J.D. from Southern Illinois University in 2008. He is Chair of the IDC Toxic
Tort Law Committee for the IDC and a member of the IDC Board of Directors. In addition to his membership in the IDC, Mr. Odom is a member of the Madison County and St. Clair County Bar Associations. He also serves as an arbitrator for the Third Judicial Circuit Court-Annexed Mandatory Arbitration Program.