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The Shield and the Sword

States’ COVID-19 Immunity Statutes and Product Liability Claims Related to COVID-19

By Christopher R. Cashen, Anne K. Guillory, Christopher L. Jackson, and Kyle R. Bunnell


After more than a year, the United States is emerging from the grips of the COVID-19 pandemic. Mask mandates and capacity restrictions on businesses are being lifted in most states as the vaccination rate rises. While COVID-19 case rates decrease, new variants present a possibly ongoing threat. With this continued uncertainty, premises owners, health care providers, and product manufacturers continue to face the real possibility of COVID-19-related litigation. As a result, the federal government and numerous states have sought to protect entities in various sectors from COVID-19-related claims.

On the federal level, the Defense Production Act (DPA) and Public Readiness and Emergency Preparedness (PREP) Act[1] offer protections for manufacturers. However, they are limited in scope. The DPA does not apply to tort claims,[2] while the PREP Act limits its reach to “covered persons” related to medical countermeasures taken for COVID-19.[3] Additionally, numerous states have enacted statutory provisions to protect businesses, health care providers, premise owners, and product manufacturers against COVID-19-related litigation. While these legislative efforts appear prophylactic, how strong of a shield do they really provide?

This article will examine states’ COVID-19 immunity statutes for product designers, manufacturers, and distributors concerning COVID-19-related lawsuits. Part I of this article will examine which states have enacted legislation to provide immunity, and whether that legislation applies to products and product manufacturers. Part II of the article will analyze how – and to what extent – product manufacturers can rely on state immunity statutes to defend COVID-19 claims brought against them.

The Shield: Examining States with COVID-19 Immunity Statutes for Products Manufacturers

Over the past year, numerous state legislatures passed bills conferring immunity for individuals and entities related to COVID-19 claims. As of June 1, 2021, 15 states[1] passed legislation targeting COVID-19 claims against product designers, manufacturers, and distributors. While no state statute is the same, common trends become apparent when comparing the statutes. For example, some states, like Indiana, provide immunity for “COVID-19 protective products”:

“‘COVID-19 protective product’” means one (1) or more of the following:

  • Personal protective equipment.
  • Medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, or supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19.
  • Medical devices, equipment, and supplies used outside of their normal use to treat COVID-19 or to prevent the spread of COVID-19.
  • Medications used to treat COVID-19, including medications prescribed or dispensed for off label use to attempt to treat COVID-19.
  • Tests, as approved by the federal Food and Drug Administration, to diagnose or determine immunity or exposure to COVID-19.
  • A product designed to clean or disinfect to prevent the spread of COVID-19.
  • Any component of an item described in this subdivision.”[2]

Similarly, Oklahoma’s statute provides immunity for “qualified products”:

 “‘Qualified product’” means personal protective equipment used to protect the wearer from COVID-19 or the spread of COVID-19; medical devices, equipment, or supplies used to treat COVID-19 including products that are used or modified for an unapproved use to treat COVID-19 or prevent the spread of COVID-19; medical devices, equipment, or supplies utilized outside of such product’s normal use to treat COVID-19 or to prevent the spread of COVID-19; medications used to treat COVID-19 patients including medications prescribed or dispensed for off-label use to attempt to combat COVID-19; tests to diagnose or determine immunity to COVID-19; and components of qualified products.”[3]

Whether they used terms like “COVID-19 Protective Products” or “qualified products,” many state statutes contain similar definitions concerning the scope of products eligible for immunity from COVID-19 product liability claims.

Meanwhile, some states, like Michigan, provide immunity from tort liability from COVID-19 claims to a “person,” which is defined broadly as individuals, businesses, government entities, education institutions, and non-profit organizations.[4] Other states have adopted a narrower approach – only providing protections for product liability claims related to personal protective equipment (PPE)[5] and/or hand sanitizer.[6] Kentucky is even more limited in its protection for product liability claims related to COVID-19, as its applies only to “[m]anufacturers located in the Commonwealth of Kentucky that produced or are producing, or that distributed or are distributing medical, medicinal, hygienic items such as face masks and hand sanitizer, or other personal protective equipment.”[7]

When faced with a COVID-19 product liability claim, a manufacturer, distributor, or supplier should first assess whether they are shielded by the relevant state’s COVID-19 immunity statute. The logical starting point for any manufacturer is to ask whether it produces a “qualified product.” Then the product manufacturer and their legal counsel must embark on a careful statutory analysis to craft a winning defense.

The Sword: How COVID-19 Immunity Statutes Protect Product Manufacturers from COVID-19-Related Claims

After analyzing whether product liability claims are shielded by a particular state’s COVID-19 immunity statute, a manufacturer must assess what defenses are available under those statutes. At the outset, it is important to note that many states’ COVID-19 immunity statutes apply retroactively or are effective after certain dates. For example, Mississippi’s statute was effective beginning March 14, 2020, and Oklahoma’s statute was effective on May 21, 2020, while South Dakota’s statute does not go into effect until July 1, 2021. Additionally, many state statutes expire or will be repealed on pre-determined dates. Tennessee’s COVID-19 immunity statute will be repealed on July 1, 2022 (absent amendment), while Indiana’s statute is effective until December 31, 2024. Montana’s statute is effective until January 2, 2031. Some states restrict the statute of limitations for a COVID-19 claim. West Virginia’s statute requires that a COVID-19 products claim “be brought no later than one year after the date of personal injury, death, or property damage.”[8] Many important details necessary to defend COVID-19 product liability claims can be found by constructing a chronology of the case, with close attention on the facts as pled by a plaintiff.

Another common theme throughout COVID-19 immunity statutes is heightened standards of proof for claims against covered manufacturers. These statutes require a plaintiff to meet a high threshold to establish a COVID-19 claim against a product manufacturer.[9] While details vary, the majority provide immunity for product manufacturers absent a showing of at least gross negligence.

For example, South Dakota’s statute provides, “[t]his section does not relieve any person of liability for civil damages for any act or omission that constitutes gross negligence, recklessness, or willful misconduct.” [10]

Other states require heightened proof beyond gross negligence. Mississippi’s statute requires that:

“(1) Notwithstanding any other provision of this chapter, the immunities provided in this chapter shall not apply where the plaintiff shows, by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional misconduct.”[11]

In addition to heightened pleading standards, many state statutes include safe-harbor provisions. These safe harbors create a rebuttable presumption that a product manufacturer is not liable if it complied with the then-applicable federal, state, and local guidance. Here is an example from Iowa’s statute:

“A person in this state shall not be held liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.”[12]

To gain the benefit of this presumption, the business must provide evidence of compliance with federal guidance from the Center for Disease Control (CDC) and the Food and Drug Administration (FDA), as well as state executive orders and local guidance. Thus, product manufacturers should maintain proof of compliance with the applicable requirements at the time the alleged injury occurred.

Although states’ immunity statutes will not prevent the potential onslaught of litigation, the heightened proof standards and requirements offer protection against frivolous claims. As with any legislation, the contours of these statutes will be subject to challenge and interpretation. Product manufacturers must be prepared to document safe-harbor compliance and advocate for broad application of the statutory language.


While COVID-19 cases continue to decline, product liability claims related to the COVID-19 pandemic could infect court dockets. State COVID-19 immunity statutes will provide some protections to product manufacturers, but they will not prevent these lawsuits from being filed. Product manufacturers must be ready to show they complied with federal, state, and local directives to be entitled to protection under many of the statutes’ frameworks. Even with heightened proof standards, some cases may not be subject to early dismissal due to the fact-dependent nature of the claims.

It is clear that states are continuing to introduce and pass legislation intended to protect product manufacturers and other individuals and entities from COVID-19-related claims. Product manufacturers must remain up to date with the changing landscape of state and federal laws, and the protections offered in the event that they face a COVID-19-related lawsuit.

A photo of Christopher ChashenChristopher R. Cashen is a partner in Dinsmore & Shohl LLP’s Lexington office. He is the co-chair of the product liability practice group. He serves as national counsel for an international medical products manufacturer, regional counsel for an international industrial equipment manufacturer, and as coordinating expert and discovery counsel in a series of motor vehicle cases. He has handled a variety of automotive, aviation, industrial equipment, medical equipment, pharmaceutical, and recreational product matters in Kentucky and more than 30 other states.

Guillory, AnneAnne K. Guillory is a partner in Dinsmore & Shohl LLP’s Louisville office. Anne’s practice varies widely from products liability and personal injury defense to insurance coverage analysis to equine-related planning and risk management. For more than a year, she has served on an in-house team tracking COVID-related restrictions and civil immunity statutes in all 50 states. She has written and spoken about the challenges facing business owners during the pandemic.

christopher L. JacksonChristopher L. Jackson is a partner in the Lexington office of Dinsmore & Shohl LLP. Chris’ passion for finding creative solutions to clients’ needs makes him a valued member of Dinsmore. He focuses his practice on defending clients in product liability litigation in a wide variety of industries, including medical devices, recreational products, industrial equipment, power tool equipment, and automotive products. He is the Chair of the DRI Product Liability Recreational Products Special Litigation Group.

Kyle BunnellKyle R. Bunnell is an associate in the Lexington office of Dinsmore & Shohl LLP. Kyle focuses his practice on defending complex tort and commercial litigation including product and premises liability, and bad-faith insurance.  He is active in the state and local bar, having twice been elected district representative on the Kentucky Bar Association Young Lawyers’ Division. He also serves on the Board of Directors for the UK Law Alumni Association, Children’s Law Center, Inc., as well as Seedleaf, Inc.

[1] See e.g. Georgia (Ga. Code 51-16-1 (3)(C)), Indiana (Burns Ind. Code Ann. § 34-30-33-2; Burns Ind. Code Ann. § 34-30-33-5), Iowa (Iowa Code § 686D.2 (9); Iowa Code § 686D.7(1)-(3)), Kansas (K.S.A. § 60-5502(h), (i), (k); K.S.A. § 60-5505(a)-(b)), Kentucky (KRS § 39A.275(8)(a); KRS § 39A.275(9)(h)), Louisiana (La. R.S. § 29:775), Michigan (MCLS §§ 691.1451 — 691.1460), Mississippi (Miss. Code Ann. § 11-71-9), Montana (27-__-__, MCA (Added to Title 27), see Definitions, § § (5)(8); 27-__-__ MCA), North Dakota (2021 N.D. HB 1175, § 1 (6), (8)), Oklahoma (76 Okl. St. § 112 (8)-(9)), South Dakota (S.D. Codified Laws § 21-68-1(9), (12); S.D. Codified Laws § 21-68-5), Tennessee (Tenn. Code Ann. §29-34-802 (a)(1)(D)), West Virginia (W. Va. Code § 55-19-3 (12), (15); W. Va. Code § 55-19-5 (a)-(d)), and Wyoming (Wyo. Stat. § 1-1-141 (a)(iii)-(iv)).

[2] See Burns Ind. Code Ann. § 34-30-33-2(2)(a)-(f).

[3] See 76 Okl. St. § 112(B)(9).

[4] See MCLS § 691.1452(e).

[5] See La. R.S. § 29:775(B): “During the COVID-19 public health emergency, no natural or juridical person who uses, employs, dispenses, or administers personal protective equipment shall be liable for civil damages for injury or death resulting from or related to such personal protective equipment…”

[6] See e.g. Ga. Code 51-16-1 (3)(C): “Manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing such personal protective equipment or sanitizer to claimant by any entity during a public health state of emergency for COVID-19, which departs from the normal manufacturing, labeling, donating, or distributing personal protective equipment of such entity that proximately results in injury to or death of a claimant.”; Wyo. Stat. § 1-1-141 (a)(iii)-(iv).

[7] See KRS § 39A.275(9)(h).

[8] See W. Va. Code § 55-19-5(d); but see W. Va. Code § 55-2-12. West Virginia’s COVID-19 statute actually shortens the time in which a COVID-19 product liability claim can be brought, as product liability actions in West Virginia normally have a two-year statute of limitations.

[9] Courts have not had occasion to apply these statutes, so it is unclear whether courts will require plaintiffs to prove a manufacturer is not entitled to protection under the statute or whether it is an affirmative defense for which a product manufacturer must establish proof.

[10] See S.D. Codified Laws § 21-68-5.

[11] See Miss. Code Ann. § 11-71-11(1) (emphases added); see also Burns Ind. Code Ann. § 34-30-33-5.; Tenn. Code Ann. § 29-34-802 (b).

[12] See Iowa Code § 686D.5; see also See 27-__-__, MCA (Added to Title 27, Affirmative defense — reasonable measures consistent with regulations, orders, and public health guidance, § (5)); Wyo. Stat. § 35-4-114(1)(a).

Lawyers Turned Cartographers

Navigating a Foggy Future Post-Ford Motor Co. v. Montana Eighth Judicial District Court

By Xan Ingram Flowers and Trent Mansfield

On March 25, 2021, the United States Supreme Court issued its opinion in Ford Motor Company v. Montana Eighth Judicial District Court,[1] attempting to further elucidate what forum contacts would be sufficient to subject a defendant to specific personal jurisdiction. Whether the Court was successful is certainly up for debate, as the decision has left many with more questions about specific jurisdiction than they had before.[2] Under Ford, manufacturers may be subject to personal jurisdiction regardless of whether a plaintiff’s alleged injuries are causally connected to the manufacturer’s forum activity, so long as there is an “affiliation” between the claim and the forum.

Ford is both concerning to manufacturers and defense attorneys, and confusing for courts and litigants who are now charged with determining how Ford will affect personal jurisdiction law. As Justice Gorsuch explained in his concurring opinion, “[l]oosed from any causation standard, we are left to guess.”

Courts and litigants have already begun tackling these issues, and new trends and strategic concerns, discussed in depth below, are becoming apparent:

  1. Strict “but-for” causation tests have been abrogated.
  2. Defendants should be aware of some of the more extreme applications of Ford.
  3. Many pre-Ford principles and cases remain good starting points for analyzing the sufficiency of forum contacts.
  4. Ford notwithstanding, passionate advocacy and a thorough understanding of other jurisdictional law can help define the path forward.

The goal of this article is to highlight the most notable developments and efforts in applying the law in light of Ford, in hopes to assist practitioners faced with personal jurisdiction issues.

Ford Motor Company v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021)

The starting point for any specific jurisdiction analysis post-Ford is knowing exactly what the Court ruled in Ford. In Ford, the Court rejected Ford Motor Company’s “demand for an exclusively causal test of connection.”[1] The Court underlined the “or” in “arise out of or relate to,”[2] finding that the Supreme Courts of Minnesota and Montana properly held that they could maintain personal jurisdiction over Ford, regardless of whether “but-for” causation tests had been satisfied.[3]

Using principles of fairness and interstate federalism as a guide, the Court found Ford’s position “inconsistent with our caselaw,” and held that Ford’s contacts with the forum States were substantial enough to subject Ford to personal jurisdiction.[4] The Court explained that Ford’s business in both states was “substantial,” and that it “actively seeks to serve the market for automobiles and related products in those States.”[5] Therefore, although the exact vehicles in question were not purchased, designed, or manufactured in either state, Ford’s contacts with those states were extensive enough to “support jurisdiction without a causal showing.”[6] What exactly the phrase “relates to” means is unclear, but we do know that if an “affiliation,” “relationship,” or “connection” exists between the defendant and the forum state, maintaining personal jurisdiction over that defendant may be proper.[7]

This is a troubling development for manufacturers and their attorneys, but understanding how courts and litigants have already been handling personal jurisdiction will help practitioners to advocate effectively for their clients in this new climate.

Exclusively “But-For” Causation Tests Abrogated

Predictably, Ford seems to have abrogated a strict causation standard that many courts interpreted “arises out of or relates to” to require. For example, the Ninth Circuit’s previous test “exclusively ‘rel[ied] on a but-for test to determine whether a particular claim arises out of forum-related activities.”[8] This was also true in the Eleventh Circuit, where the United States District Court for the Southern District of Florida explained that the Eleventh Circuit’s previous “but-for” test was abrogated by Ford.[9]

In Lewis v. Mercedes-Benz USA, LLC, various plaintiffs brought a putative class action against Mercedes-Benz USA, LLC; its German parent company, Daimler; and headrest manufacturer Grammer AG, alleging 16 claims premised on alleged headrest defects.[10] Daimler moved to dismiss for lack of personal jurisdiction, and the Supreme Court issued Ford during the motion’s pendency.[11] The Southern District of Florida held that (1) Daimler was subject to personal jurisdiction under Ford, and (2) Ford abrogated the Eleventh Circuit’s previous “but-for” interpretation of “arises out of or relates to.”[12] The court explained that, similar to Ford’s forum activities, Daimler directed sales of vehicles to Florida, maintained (through a subsidiary) a parts distribution center in Florida, and “specifically targeted Floridian consumers” with advertising which gave rise to the plaintiffs’ state-law deceptive trade practices claim.[13]

In the Third Circuit, the United States District Courts for the District of New Jersey and the Western District of Pennsylvania vary on their Ford impact analyses. The District of New Jersey explained that the Third Circuit “requires causation, with the level of causation depending on the claim.”[14] That court therefore held that the Third Circuit’s causation requirement could not be reconciled with Ford.[15]

In contrast, the Western District of Pennsylvania held that Ford neither expressly nor impliedly overruled the Third Circuit’s “causation-focused” test, but rather “highlighted that there are two methods of showing a sufficient connection between a plaintiff’s claims and the defendant’s contacts with the forum.”[16] This is because, unlike the Ninth and Eleventh Circuits’ tests, the Third Circuit’s “but-for” test was only directed towards the “arises out of” analysis, and did not apply to the “relates to” analysis.[17]

So, how should practitioners respond? If your circuit previously had an exclusively “but-for” test for whether a claim “arises out of or relates to” a defendant’s forum contacts, assume that test has been or will be abrogated, and do not rely solely on the lack of a causal connection. Proactively incorporate arguments for how the claim does not relate to your clients’ forum activities, and do not wait for a Lewis-type decision in your jurisdiction to do so.

Some Courts Have Taken a More Extreme Approach to Ford

In the wake of Ford, defendants should be aware of the more extreme application approaches some courts have taken. For example, defendants should take note of the effect their pre-suit settlement-related conduct could have on specific jurisdiction analyses. In Trimble, Inc. v. PerDiemCo LLC,[18] the United States Court of Appeals for the Federal Circuit ruled that Ford supported exercising personal jurisdiction in a noninfringement declaratory judgment action over a defendant who engaged in substantial pre-suit settlement negotiations.[19]

Plaintiff Trimble, Inc. and its subsidiary, both California residents, brought a declaratory judgment noninfringement action against Texas corporation PerDiemCo LLC in the Northern District of California.[20] PerDiemCo argued that its only California-directed activities were 22 pre-suit communications between the parties in which (1) PerDiemCo informed Trimble and its subsidiary of alleged infringement, and (2) attempted to negotiate a nonexclusive license for the patents at issue as a means of settlement.[21] PerDiemCo argued that these contacts were insufficient to establish specific jurisdiction under the 1998 Federal Circuit decision Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc.,[22] where the court held that “[a] patentee should not subject itself to personal jurisdiction in a forum solely by informing a party who happens to be located there of suspected infringement” because “[g]rounding personal jurisdiction on such contacts alone would not comport with principles of fairness[.]”[23], [24] The District Court agreed with PerDiemCo and dismissed the action for lack of specific personal jurisdiction.

The Federal Circuit reversed, explaining that three developments clarified Red Wing’s scope: (1) later Supreme Court cases explaining that personal jurisdiction in patent cases does not rest solely on “special patent policies,” (2) later Supreme Court cases holding that certain communications sent into a state may create personal jurisdiction, and (3) Ford “established that a broad set of a defendant’s contacts with a forum are relevant to the minimum contacts analysis.”[25] The Federal Circuit reasoned that the many communications with Trimble and its subsidiary, including negotiating nonexclusive patent licenses, were sufficient to support personal jurisdiction over PerDiemCo in in the same way that selling similar vehicles and having a forum dealership supported personal jurisdiction over Ford.

What can product liability practitioners take from this patent case? While it is unclear whether the Federal Circuit’s decision in Trimble is limited to patent litigation and other similarly situated matters, this case tells us that Ford could have much broader implications than expected. As far as patent litigation is concerned, there is now a potential that pre-suit settlement negotiations could create substantial enough forum contacts to subject a defendant to specific jurisdiction. Though the reasoning in Trimble may not have any net effect for manufacturers in products cases, it may certainly affect our clients in patent cases. A few months in, we are still very much “left to guess” what Ford’s full impact will be. Attorneys would be wise to think critically and creatively about how Ford may be used in unexpected ways in the near future.

Much Pre-Ford Case Law Remain Instructive

Though Ford has certainly changed the legal landscape for specific jurisdiction, pre-Ford case law regarding the sufficiency of a defendants’ forum contacts is still instructive and a helpful starting point. For example, in Dakotah v. General Motors Co.,[26] the United States District Court for the Eastern District of California explained that Ford did not change the analysis for internet-based personal jurisdiction.

In Dakotah, Plaintiffs sued General Motors Co. and software developer Decibel Insight, Inc., asserting various privacy-related claims arising out of GM using Decibel’s software to collect data from Plaintiffs when they visited GM’s website.[27] GM and Decibel moved to dismiss for lack of personal jurisdiction in California.[28] Plaintiffs argued that GM’s marketing in California, using Decibel’s software on its website, was sufficient to subject both to personal jurisdiction under Ford.[29] The court disagreed, pointing out that the Supreme Court specified that Ford “did not bear on the ‘doctrinal questions’ associated with personal jurisdiction in the online context.”[30] As such, the court applied the Ford framework and the Ninth Circuit’s “sliding scale” website analysis for personal jurisdiction and determined that GM contracting with non-resident Decibel for website software used nationwide was not a strong enough contact with California to subject either defendant to personal jurisdiction.[31]

Further, the United States District Court for the Middle District of Florida demonstrated in Israel v. Alfa Laval, Inc.,[32],[33] that the usual suspects for a personal jurisdiction analysis (i.e. Walden v. Fiore,[34] Bristol-Myers Squibb Co. v. Superior Court of California,[35] and Goodyear Dunlop Tires Operations, S.A. v. Brown,[36]) are still the baseline for analyzing the sufficiency of minimum contacts. In Israel, an Idaho-resident plaintiff with lung cancer alleged his cancer was due to asbestos exposure during his 22-year Navy career.[37] Plaintiff sued dozens of defendants whom he alleged manufactured products which contained asbestos that caused his cancer.[38] Two defendants moved to dismiss, and the court found that neither defendant had contacts with Florida that were sufficient to trigger specific jurisdiction.[39]

  • The court analyzed the following factors, which it determined were insufficiently related to the forum and litigation to support specific jurisdiction:
  • The location of the plaintiff’s injury (which was uncertain at best, considering only 1 of the 9 shipyards he worked in was in Florida, and he only spent 2 out of 22 years working in Florida);
  • The fact that the two defendants were registered to do business in Florida, when there was no connection between the defendants’ forum activities and the litigation;
  • Documents showing that one defendant did business with the State of Florida in 1903 and 1919 (there was no indication what kind of business this involved);
  • The first defendant oil purifier engineer had business dealings in Florida related to pumps and engine cooling products which the plaintiff did not allege he was exposed to or which contained asbestos; and
  • The second defendant distiller manufacturer had business dealings in Florida related to fuel tank lines, oil spill litigation, being the parent company of a cruise line, and having an event-organizing business.[40]

The court, using pre-Ford Supreme Court cases[41] to aid its analysis, determined that none of the above factors created the requisite “strong relationship among the defendant, the forum, and the litigation.”[42]

Though litigants and courts were “left to guess”[43] after Ford, pre-Ford law is still good law and still the baseline for analyzing minimum contacts. The bounds of personal jurisdiction have certainly been broadened, but practitioners still have many of the same tools available to argue that facially deficient and unrelated contacts should still be analyzed under the same standards and should not subject a defendant to specific jurisdiction. Similarly, although litigants should anticipate their jurisdictions’ exclusive “but-for” causation requirements to be abrogated, Ford made clear that the principles of fairness and interstate federalism are still paramount considerations.[44] Even if the “arises out of or relates to” element is satisfied, a court that would hold a defendant subject to personal jurisdiction must first find that (1) the defendant will be treated fairly, and (2) the principle of interstate federalism will be protected.

Passionate and Thorough Advocacy Can Help Define the Path Forward

There is no getting around the fact that Ford was not a favorable decision for manufacturers. Many manufacturers will now be subject to personal jurisdiction when they would not have been before. Take for example the Godfried v. Ford Motor Co.[45] case out of Maine, and the Garlough v. FCA US LLC[46] case out of California—in each case, manufacturers who previously would not have been subject to personal jurisdiction were, by virtue of Ford. In the former, the court found personal jurisdiction proper where Ford advertised, sold, and serviced the class of lawn mowers at issue, despite no definitive indication that it sold the exact model at issue in Maine.[47] In the latter, an out of state car manufacturer that had previously served the California market for the type of car at issue was subject to personal jurisdiction in California despite the car being purchased in Texas.[48]

This was similar to the result in Lewis, where Daimler was subject to specific jurisdiction in Florida where it would not have been one year earlier. However, Lewis serves as a reminder to attorneys of the power of strategic and thorough advocacy. Despite Ford’s rendering Daimler subject to personal jurisdiction, many of the plaintiffs’ claims were dismissed, and the motion to dismiss was a substantial value-add because it significantly narrowed the scope of the litigation and limited Daimler’s potential exposure.[49] What Plaintiffs intended as a sixteen-claim nationwide class action against three defendants is now proceeding with two plaintiffs, one state-law claim, and two defendants.[50]

So, what is the takeaway from this case, which shows the impact Ford has had on manufacturers? Look into every possible argument. Know all of your jurisdictional arguments and assert them as soon as possible. Know what is required for each claim plaintiffs assert—and investigate whether they meet the requirements. As manufacturers and defenders of manufacturers, Ford has prevented us from asserting what used to be a relatively easy and effective argument in many cases. But creative, dedicated, and passionate defense attorneys are still a force to be reckoned with. Do not let Ford discourage you—let it strengthen your resolve to fight even harder for your client.

As Justice Gorsuch stated in his concurring opinion in Ford, “[h]opefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution’s text and lessons of history.”[51] Although Ford has, in many ways, left us guessing, we are presented with an opportunity to pave the way forward. The boundaries of personal jurisdiction, though widened, are not without limits. As the Ford majority opinion explicitly stated, the added emphasis on “or relates to” does not mean “anything goes.”[52] It is our opportunity now as defense counsel to assist courts as they work to uphold the principles of fairness, due process, and interstate federalism required for personal jurisdiction.

Xan Ingram FlowersXan Ingram Flowers is an associate with Butler Snow LLP in Birmingham, Alabama. As a member of Butler Snow’s Products, Catastrophic, and Industrial Litigation and Appellate practice group, Xan focuses her practice on defending manufacturers in complex litigation and mass tort cases, and advocating for clients on appellate issues ranging from farming legislation to bankruptcy. Xan also practices in commercial litigation and consumer arbitration, and has experience in state and federal appellate courts, immigration court, and as amicus counsel and special appellate counsel. Xan is a 2018 graduate of Cumberland School of Law and a 2015 graduate of the University of Texas at Austin. Xan has been a member of DRI since 2018 and currently serves as the YL Marketing Liaison for the Young Lawyers Product Liability Committee.

Trent Mansfield Trent Mansfield is a rising second-year law student at Samford University’s Cumberland School of Law. He was a finalist in the Donworth 1L Moot Court Competition at Cumberland, serves as an Abraham Caruthers Teaching Fellow, and was the recipient of the CALI Excellence for the Future Award in Civil Procedure and Torts. Trent has a passion for appellate advocacy and enjoys spending time outside, particularly on a golf course.

[1] Id. at 1029.

[2] Id. at 1026 (emphasis added).

[3] Id. at 1032

[4] Id. at 1025.

[5] Id. at 1022.

[6] Id. at 1026.

[7] Id. at 1034 (Gorsuch, J., concurring).

[8] Clarke v. Dutton Harris & Co., No. 2:20-cv-00160-JAD-BNW, 2021 WL 1225881, *4 (D. Nev. Mar. 31, 2021) (quoting Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995)) (recognizing that Ford

[9] Lewis v. Mercedes-Benz USA, LLC, --- F. Supp. 3d ---, No. 19-cv-81220-RAR, 2021 WL 1216897, *35 (S.D. Fla. Mar. 30, 2021).

[10] Id. at *1–3.

[11] Id. at *35.

[12] Id.

[13] Id.

[14] Rickman v. BMW of N. Am. LLC, No. 18-04363, 2021 WL 1904740, *8 (D.N.J. May 11, 2021) (quoting O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 320 (3d Cir. 2007)).

[15] Id.

[16] Beemac, Inc. v. Republic Steel, No. 2:20-cv-1458, 2021 WL 2018681, *8 (W.D. Penn. May 20, 2021); Deemac, Inc. v. Republic Steel, No. 1:20-cv-1466, 2021 WL 2018716, *8 (W.D. Penn. May 20, 2021).

[17] Beemac, 2021 WL 2018681, at *8; Deemac, 2021 WL 2018716, at *8.

[18] --- F.3d ---, No. 2019-2164, 2021 WL 1898127 (Fed. Cir. May 12, 2021).

[19] Id. at *6.

[20] Id. at *1–2.

[21] Id. at *2, 7.

[22] 148 F.3d 1355 (Fed. Cir. 1998).

[23] Id., at 1361.

[24] Trimble, 2021 WL 1898127, at *2.

[25] Id., at *4–6.

[26] No. 1:20-cv-01560-JLT, 2021 WL 2142728 (E.D. Cal. May 26, 2021).

[27] Dakotah, 2021 WL 2142728, at *1

[28] See id.

[29] Id. at *4–7.

[30] Id. at *6 (quoting Ford, 141 S. Ct. at 1028 n.4).

[31] Id. at *4–7.

[32] No. 8:20-cv-2133-WFJ-AAS, 2021 WL 1662770 (M.D. Fla. Apr. 28, 2020).

[33] This case, acknowledging Lewis, found that the court could not maintain personal jurisdiction over the defendant despite Ford’s impact on the Eleventh Circuit’s “but-for” causation standard. Id. at *4 (citing Lewis, 2021 WL 1216897, at *35).

[34] 671 U.S. 277 (2014).

[35] 137 S. Ct. 1773 (2017).

[36] 564 U.S. 915 (2011).

[37] Israel, 2021 WL 1662770, at *1

[38] Id.

[39] Id. At *4–7.

[40] Id.

[41] The court relied on Walden v. Fiore, 671 U.S. 277 (2014); Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017); and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) in analyzing whether the defendants’ Florida contacts were sufficient to establish personal jurisdiction.

[42] Id. at *7.

[43] Ford, 141 S. Ct. at 1035 (Gorsuch, J., concurring).

[44] See Ford, 141 S. Ct. at 1025.

[45] No. 1:19-cv-000372-NT, 2021 WL 1819696 (D. Me. May 6, 2021).

[46] No. 2:20-cv-01879-JAM-AC, 2021 WL 1534205 (E.D. Cal. Apr. 19, 2021).

[47] Godfried, 2021 WL 1819696, at *5–6.

[48] Garlough, 2021 WL 1534205, at *3–4.

[49] Defense counsel in Lewis was able to shield Daimler from defending against a nationwide class action (Plaintiffs had no standing to represent a nationwide class for state-law claims); had the Magnuson-Moss Warranty Act claim dismissed (no subject matter jurisdiction to hear MMWA claim brought as a class with less than 100 named plaintiffs); removed an avenue for Plaintiffs to collect attorney fees through the MMWA; had the RICO claim dismissed (failure to state a claim); and had the nonresidents’ claims dismissed (lack of jurisdiction because the claims had no relation to Florida). There were so many issues at play that the Ford discussion only merited 1 out of 60 pages.

[50] Lewis, 2021 WL 1216897, at *36–37.

[51] 141 S. Ct. at 1039 (Gorsuch, J., concurring).

[52] Id. at 1026 (emphasis added).

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DRI’s 2021 Product Liability Conference, Aug. 19–21, 2021

By Lindsay Lorimer

DRI’s 2021 Product Liability Conference is scheduled for August 19–21, 2021, at the Renaissance Hotel in Nashville Tennessee. Nashville was previously known as “Athens of the South” before becoming Music City, home of major record labels, country music, hot chicken, and the late Johnny Cash.

After a long hiatus of travelling nowhere, video-conferencing, and feeling isolated, the conference will offer many opportunities to [safely] mingle and network with colleagues and clients. This year, the timing of the conference is slightly different — it starts on Thursday and ends Saturday afternoon, finishing with a networking event in the afternoon.

Jason Wasserman and the Networking Committee have organized amazing events beyond the regular SLG dine arounds and nightly receptions, including tours of the Ryman and Grand Ole Opry, pedal tours of Nashville, and a Friday-night reception at Ole Smokey. There are also Women in the Law and Diversity and Inclusion lunches.

Stellar main-stage presentations include a panel of experts on best practices and strategies for remote depositions, hands-on training on the use of data from wearables, and insights from Commissioner Feldman on innovation and regulation from the CPSC. Other topics include defending warning claims, how to co-opt the plaintiff’s visual techniques and how to avoid the top five mistakes at mediation.

Six in-house lawyers will present on the main stage and many more will speak to smaller audiences at break-out sessions held by our industry-focused specialized litigation groups (SLGs). This year all the SLGs have collaborated to offer outstanding and insightful programs. Jeff Curran has done a great job of organizing Panel Counsel meetings, and Enjolique Aytch Lett has masterfully coordinated a book drive for Book ‘Em, which has the mission to ignite children’s passion for reading through book ownership. Register by July 21, 2021, to receive the early registration rate. We look forward to seeing everyone in Nashville!

For more information, visit the DRI Product Liability Conference.

Lindsay LorimerLindsay Lorimer is a partner, product liability & regulation, for McMillan, in Toronto, Canada. She practices product liability law and regulation with a focus on class actions, jurisdictional issues and insurance. She assists clients with the coordination and management of complex national litigation, including matters relating to consumer products, medical devices and pharmaceutical products.

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Product Liability Committee Update

Get Involved!

By James Weatherholtz

I can’t remember a busier time for the Product Liability Committee! Because of the pandemic, we postponed our Fire Science Seminar from September 2020. We’re combining it with the Strictly Auto Seminar, September 9–11, 2021, in Washington, DC. Both conferences will feature a live burn at the Maryland Fire and Rescue Institute. 

We postponed our 2021 Product Liability Conference to this August, when we’ll meet in person, in Nashville, Tennessee. I can’t wait to see everyone. We have a team working on a joint program for the 2021 DRI Annual Meeting in October as well. Finally, we’re hard at work planning the 2022 Product Liability Conference scheduled for February in Las Vegas. 

In the meantime, our committee has produced or collaborated on three webinars in 2020, and we had a half-day virtual fire science seminar earlier this year. We have more than 100 people active in leadership, and it’s their work that made all of this happen. Despite the difficult circumstances of the past 15 months, our committee has been active, productive, and fully engaged. I’m proud of this group, and I’m so pleased that we’ve grown together as a team through it all. 

If you have any interest in becoming involved, please reach out to me or Gretchen Miller. We’d love to get to know you better! 

James WeatherholtzJames Weatherholtz is a partner with Womble Bond Dickinson LLP in Charleston, South Carolina. He knows the construction industry because he grew up in a family of contractors; he learned the business from the ground up. He has used that experience for more than 20 years to serve clients in the construction and manufacturing industries.