IVC blood filter.

A Philadelphia judge has asked the Pennsylvania Superior Court not to hear a medical device distributor's attempts to prevent the Common Pleas Court from exercising jurisdiction in a mass tort involving allegedly defective blood filters.

Philadelphia Court of Common Pleas Judge Arnold New recently asked the Superior Court to quash the appeal of Angiotech Pharmaceuticals Inc. in In re Option Vena Cava Filter Litigation. The case, litigators say, may wade into novel questions of whether Pennsylvania's business registration law establishes jurisdiction over out-of-state defendants.

Canada-based Angiotech Pharmaceuticals has argued that Pennsylvania courts lack jurisdiction over it. New denied that challenge last month, and the company quickly appealed. But, in an order docketed Monday, the judge said the appeal was improper, and asked the Superior Court not to consider the challenge.

“Generally, an appeal may only be taken from a final order, which is an order disposing of all issues and all parties,” New said in the three-page order initially filed Jan. 10. “In this case, the court's Dec. 5 order does not dispose of all issues and all parties; rather, it sustained personal jurisdiction over a single defendant, Angiotech Pharmaceuticals Inc. Accordingly, this court's Dec. 5 order does not qualify as a final appealable order.”

The appeal stems from arguments that hinge in part on the closely watched issue of whether registering to do business in Pennsylvania subjects a company to being sued in Pennsylvania courts.

Angiotech has contended that, although one of its subsidiaries entered into an agreement to distribute the IVC filters, that subsidiary had not registered to do business in the Keystone State, and its only subsidiary that was registered to do business in Pennsylvania—a company called Surgical Specialties Corp.—had no involvement with the IVC filters.

“The detailed corporate organization of the two entities demonstrates that they are distinct and separate companies, engaged in different businesses, operating in different forums by different executives,” Angiotech contended in a Nov. 28 brief outlining its preliminary objections. “The mere existence of one subsidiary that is registered to do business in Pennsylvania (as well as five other states) is insufficient grounds to impose the exercise of general jurisdiction upon a parent company.”

According to Angiotech, Surgical Specialties is registered to do business in several states, including Delaware, California, Texas and New Jersey, and the subsidiary involved with IVC—referred to in court papers as Angiotech (US)—is incorporated in Washington state and has its principal place of business in Massachusetts.

The plaintiffs, however, contended that the evidence shows that both Angiotech (US) and Surgical Specialties are alter egos of their parent company.

“There is sufficient information available to support a finding that Angiotech has, through its wholly owned subsidiaries, consented to general jurisdiction in the commonwealth of Pennsylvania,” counsel for the plaintiff, Rosemary Pinto of Feldman Pinto, said in their Nov. 30 reply.

The plaintiffs cited the recent Superior Court decision in Webb-Benjamin v. International Rug Group, in which a three-judge panel determined that, despite recent U.S. Supreme Court precedent, language in Pennsylvania's business registration agreement establishes that companies consent to be sued in the state.

However, in the weeks since the IVC plaintiffs issued their reply, an expanded en banc Superior Court panel agreed to take up a case hinging on the same question of whether registering to do business in Pennsylvania establishes jurisdiction.

Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck attorney Stewart Eisenberg, who is also counsel for the plaintiffs, said he agreed with New's decisions.

“A lot of defendants are appealing non-final orders on the basis that it's an unreasonable decision that's been made, but judges have the right to rule on personal jurisdiction,” he said.

Morrison Mahoney attorney Arthur Liederman, who is representing Angiotech, said the defendant is planning to pursue the appeal with the Superior Court, arguing, among other things, that it raises significant issues that have not been clearly addressed by the courts.

“We think it conflicts with the U.S. Supreme Court jurisprudence from Daimler [AG v. Bauman] to [Bristol-Myers Squibb v. Superior Court of California],” he said, adding that the ruling suggests that any distributor doing business with a Pennsylvania manufacturer is subject to jurisdiction in the Keystone State. “The question is whether or not this is an unwarranted expansion of jurisdiction.”