Monday, February 27, 2017

Case of the Day: Hedger v. Medline Indus., 2017 Del. Super. LEXIS 49 (Jan. 27, 2017)


Plaintiff decedent, a Delaware resident, had a tracheastomy, i.e. a permanent opening in her windpipe to assist her breathing. Plaintiff died when the plaintiff's husband used a tracheastomy care kit to clean the opening, and the cotton swab applicator came apart, choking her to death. The estate of the plaintiff sued two defendants, the manufacturer and the distributor of the tracheastomy care kit. 

The manufacturer defendant filed a motion to dismiss, claiming it was a Hong Kong corporation with a principal place of business in China. The defendant claimed that it had no significant ties with Delaware, as it delivers its products to the distributor in China and the distributor ships the product (initially) to California.

The court found that the plaintiff did not make sufficient allegation to satisfy the minimum contacts requirement from the Supreme Court's  J. McIntyre Machinery, Ltd. v. Nicastro, The court also found that the plaintiff is "not bar[red] from jurisdictional discovery" because the defendant's submission indicates a plausible basis for specific jurisdiction.


This is a head-scratcher of an opinion, and could be an opening for an enterprising plaintiff who wants to sue foreign defendants.

Delaware's long arm statute adopts a "stream of commerce" theory, whereby a foreign defendant is subject to Delaware jurisdiction if the defendant placed its product into the stream of commerce with a knowledge that the product would ultimately serve Delaware. Because Nicastro essentially invalidated the stream of commerce theory, the court declined to find that plaintiff established personal jurisdiction based on Delaware's long arm statute. 

But rather than dismissing the complaint entirely, the court instead provides a very permissive basis for jurisdictional discovery. The court justified jurisdictional discovery based on the submission by the defendant--a highly unusual move, because usually it is the plaintiff that brings up facts to establish the grounds for jurisdictional discovery.

In the U.S. law, the parameters for jurisdictional discovery are still in the process of being defined. In this case, the court set the hurdle for jurisdictional discovery unusually low.

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