Arguments over whether plaintiffs hailing from outside the Keystone State can sue out-of-state defendants in the wake of the U.S. Supreme Court's high-profile decision in Bristol-Myers Squibb v. Superior Court of California are set to highlight the Pennsylvania Supreme Court's argument session beginning March 10.

The high court is set to hear arguments in 12 cases during its two-day oral argument session in Philadelphia. The justices are scheduled to eye several topics, including employment law, criminal law and insurance litigation, but arguments over the jurisdictional issues raised in Bristol-Myers Squibb are likely to have the broadest impact for litigation in the state.

On March 10, the Supreme Court is set to hear arguments in Hammons v. Ethicon, which is a case out of Philadelphia's pelvic mesh mass tort that came to a $12.5 million award in 2015.

In a one-page order issued in April 2019, the justices granted defendant pelvic mesh maker Ethicon's appeal to consider a single issue: "Whether the due process clause of the Fourteenth Amendment to the United States Constitution and 42 Pa.C.S. Section 5322(c) precludes Pennsylvania from asserting personal jurisdiction over two New Jersey companies in a case brought by an Indiana resident asserting claims under the Indiana Product Liability Act."

The case presents the Supreme Court with its first opportunity to address the Bristol-Myers Squibb ruling, which made clear that out-of-state plaintiffs can't sue companies where the defendants aren't considered to be "at home," or haven't conducted business directly linked to the claimed injury. The ruling was hailed by the defense bar as "game-changing" and led to an immediate wave of venue challenges across the country.

Ethicon, which is a subsidiary of Johnson & Johnson, had contended that plaintiff Patricia Hammons' claims were not sufficiently connected to activities that happened in Pennsylvania to establish specific jurisdiction under Bristol-Myers, and so, since Hammons is an Indiana resident and Ethicon's principal place of business is New Jersey, Philadelphia did not have jurisdiction to handle the case.

However, Superior Court Judge Victor Stabile, who wrote the court's 82-page precedential decision, said, "The connection between Ethicon and Pennsylvania is considerably stronger than the connection between Bristol-Myers and California." Specifically, Stabile noted that Ethicon had worked with an Allentown doctor, as well as Bucks County, Pennsylvania-based Secant Medical, to develop the pelvic mesh that was at issue in Hammons' case.

A ruling by the Supreme Court could provide guidance on how strongly the underlying facts of a case need to be to establish jurisdiction in the state.

Expert Opinions

Later on March 10, the justices are set to hear arguments that delve into the way trial courts are supposed to evaluate expert opinions in personal injury cases.

The last case set to be argued March 10 is Bourgeois v. Snow Time, which involves the appeal by a man who claims injuries he suffered while snow tubing were the result of negligence and recklessness on the part of the tube run operator.

Plaintiff Ray Bourgeois was seriously injured when his tube crossed paths with the rubber kitchen mats placed at the bottom of the tube run. He and his wife subsequently sued Snow Time and Ski Roundtop, alleging that they were reckless and grossly negligent in using rolled-up kitchen mats to help slow down riders at the bottom of the hill.

The plaintiffs submitted expert reports by Mark DiNola, an expert in the field of ski and snow tubing risk management, and Gordon Moskowitz, a mechanical and biomechanical engineering expert. But Judge Alice Beck Dubow, writing for the majority, said neither report specifically established that the defendants breached a standard of care by placing rubber mats at the bottom of the tube run.

The Supreme Court agreed to take up the case to address four separate issues, including whether the Superior Court's decision improperly required a violation of industry standards to sustain the recklessness or gross negligence claims, and whether the ruling conflicted with law "requiring it to review petitioners' expert reports in the light most favorable to the non-moving party by, inter alia, (a) improperly requiring petitioners' experts to establish the legal duty that respondents breached, (b) dismissing their opinions as conclusory, and (c) overlooking numerous opinions throughout their reports which supported petitioners' prima facie case against respondents?"

Restrictive Covenant

On March 11, the justices are set to consider whether a restrictive covenant discussed, but not physically signed, prior to the start of work can be enforceable without an offer of additional consideration.

Arguments in Rullex v. Tel-Stream come after the Superior Court ruled that, under the those circumstances, the covenant cannot be enforced.

Plaintiff Rullex, a Pennsylvania company that provides telecommunications construction services, subcontracted work to defendant Tel-Stream, a company that provides labor crews to businesses that service cellular towers. It is not in dispute that Tel-Stream signed a "subcontractor non-disclosure, non-solicitation, and developments agreement" with Rullex months after it actually began performing work for Rullex. The agreement barred Tel-Stream from competing with Rullex, soliciting Rullex's customers within a nonsolicitation region, and misappropriating Rullex's trade secrets.

In February 2018, Rullex sued Tel-Stream in the Philadelphia Court of Common Pleas alleging Tel-Stream breached the restrictive covenant by contracting with Rullex's main competitor, Invertice.

The trial court ruled in favor of Tel-Stream and its owner, defendant Yuri Karnei, and rejected Rullex's petition for injunctive relief, finding that the noncompete was invalid because it was signed after the first day of employment. The Superior Court agreed with the lower court's ruling and affirmed.