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Wilson v. Nouvag GmbH

United States District Court, N.D. Illinois, Eastern Division

March 30, 2018

JEFFREY WILSON, personally and on behalf of the ESTATE OF MARGUERITE WILSON, deceased, and her survivors, Plaintiff,
NOUVAG GmbH, a business organized in Germany; NOUVAG AG, a business organized in Switzerland; RICHARD WOLF MEDICAL INSTRUMENTS CORP., a Delaware Corporation; RICHARD WOLF GmbH, a business organized in Germany, Defendants.



         Jeffrey Wilson (“Wilson”), a Virginia resident, brings this products liability lawsuit on behalf of himself and the estate of his deceased wife, Marguerite Wilson (“Mrs. Wilson”), and her survivors. Mrs. Wilson died of cancer in 2013. Her husband alleges that a medical device used during a surgical procedure spread Mrs. Wilson's previously undiagnosed cancer and caused it to advance from a curable stage to a more serious stage with a low survival rate. Wilson claims that the device manufacturers, Nouvag AG and Nouvag GmbH, and distributors, Richard Wolf GmbH and Richard Wolf Medical Instruments Corporation, are liable for design defects, failure to warn, negligence, and breach of warranties. Defendant Nouvag AG moves to dismiss Wilson's second amended complaint (“SAC”) under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Because Wilson has failed to show that Nouvag AG had sufficient contacts with the State of Illinois related to the clams in this lawsuit, the Court grants the motion to dismiss.


         Wilson resides in York County, Virginia, and is the appointed personal representative of the estate of his deceased wife. Nouvag AG is a privately owned company based in Switzerland that designs and manufactures dental and medical equipment, including a product called the Morce Power Plus Morcellator (“the morcellator”). A morcellator is a medical device used to cut or core tissue into smaller pieces or fragments through a procedure called morcellation. Nouvag AG sells and delivers its morcellators to Richard Wolf GmbH (“Wolf GmbH”), a company based in Germany. Wolf GmbH has a subsidiary based in Vernon Hills, Illinois called Richard Wolf Medical Instruments Corp. (“Wolf USA”). Nouvag AG is the parent company of or direct or indirect owner of substantially all of the stock or other interests of Nouvag GmbH, a company based in Germany. All four defendants were registered with the United States Food and Drug Administration (“FDA”).

         In December 2012, Mrs. Wilson underwent a laparoscopic surgical procedure in Virginia to remove her uterus. During the procedure, her surgeon used a morcellator manufactured by Nouvag AG. When morcellation is used to remove a woman's uterus, it can result in spreading cancerous tissue within the abdominal cavity beyond the uterus. After her surgery, it was discovered that Mrs. Wilson had a form of cancer called leiomyosarcoma in her uterine tissue, which had been previously unknown and undiagnosed. The morcellator used during the hysterectomy spread or upstaged Mrs. Wilson's cancer. She underwent chemotherapy treatment and additional surgery, but died in December 2013, just a year after the hysterectomy.

         Wilson alleges that the defendants were aware of and ignored the risk that the morcellator would cause dissemination of undiagnosed cancerous tissue, and would upstage cancer from a survivable or curable stage to an advanced stage with a low rate of survival. He asserts that the morcellator was defective in design because the foreseeable risks of the product exceeded its benefits and that the defendants failed to adequately warn of the product's increased risk of dissemination of cancerous tissue. Wilson also alleges that the defendants failed to exercise adequate care in the design, formulation, manufacture, distribution, marketing, labeling, and sale of the morcellator. In addition, Wilson claims that the defendants breached express and implied warranties.

         In December 2015, Wilson filed a complaint asserting his claims against the defendants for their roles in manufacturing, distributing, and selling the morcellator used in his wife's surgery. Nouvag AG filed a motion to dismiss the complaint for lack of personal jurisdiction under Rule 12(b)(2) and for failure to state a claim under Rule 12(b)(6) and Wilson responded by filing a first amended complaint (“FAC”). Nouvag AG again moved to dismiss the FAC for lack of personal jurisdiction. Wilson later sought leave to file a second amended complaint, which the Court granted. Nouvag AG then filed a motion to dismiss Wilson's SAC for lack of personal jurisdiction.


         On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating the existence of jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). Generally, the court accepts as true all well-pleaded facts alleged in the complaint and resolves any factual disputes in favor of the plaintiff. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012). If, however, the defendant submits affidavits or other evidence in opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction. Purdue Research Found., 338 F.3d at 782-83. Factual assertions that amount only to “vague generalizations or unsupported allegations, ” are insufficient to support personal jurisdiction. Mohammed v. Uber Techs., Inc., 237 F.Supp.3d 719, 733 (N.D. Ill. 2017). Facts contained in a defendant's affidavit that remain unrefuted by the plaintiff are accepted as true. GCIU-Emp'r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1020 n.1 (7th Cir. 2009); Interlease Aviation Inv'r II v. Vanguard Airlines, Inc., 254 F.Supp.2d 1028, 1031 (N.D. Ill. 2003). When a district court considers a 12(b)(2) motion based on the submission of written materials, without an evidentiary hearing, the plaintiff “need only make out a prima facie case of personal jurisdiction.” Purdue Research Found., 338 F.3d at 782 (citing Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)). An evidentiary hearing is required only where the parties' submissions reveal disputed fact issues the resolution of which is material to whether the plaintiff has made out a prima facie case for personal jurisdiction over the defendant. Cent. States, Se. & Sw. Areas Pension Fund v. B&M Marine Constr., Inc., No. 16-CV-2743, 2018 WL 318483, at *3 (N.D. Ill. Jan. 8, 2018).

         In a diversity case such as this, a federal district court may exercise personal jurisdiction over a defendant if the defendant is subject to the jurisdiction of a state court in the state where the district court is located. N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (2014) (citing Fed.R.Civ.P. 4(k)(1)(A)). In Illinois, a state court may exercise jurisdiction under Illinois's “long-arm” statute to the full extent permitted by the United States Constitution. 735 Ill. Comp. Stat. 5/2-209(c). See also N. Grain Mktg., LLC, 743 F.3d at 492. Accordingly, this Court has personal jurisdiction over defendant Nouvag AG if jurisdiction is permissible under the United States Constitution. See Kipp v. Ski Enter. Corp. of Wisc., Inc., 783 F.3d 695, 697 (7th Cir. 2015).

         The due process clause of the Fourteenth Amendment provides the constitutional limits to a state court's exercise of personal jurisdiction. Bristol-Myers Squibb Co. v. Superior Court of Calif., San Francisco Cty., 137 S.Ct. 1773, 1779 (2017). Due process permits a state court to exercise personal jurisdiction over a defendant if the defendant has “certain minimum contacts with the State such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal quotations and alterations omitted). To be subject to the jurisdiction of a state court, the defendant must “purposefully avail[] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). A defendant's contacts with a State may give rise to general personal jurisdiction or specific personal jurisdiction. Goodyear, 564 U.S. at 919. General jurisdiction exists where a defendant has affiliations with the State that “are so continuous and systematic as to render [the defendant] essentially at home in the [State].” Id. Specific jurisdiction, however, requires “an affiliation between the forum and the underlying controversy” and the plaintiff's claims must “arise out of or relate to” the defendant's contacts with the State. Bristol-Myers Squibb Co., 137 S.Ct. at 1780 (citing Daimler AG v. Bauman, 134 S.Ct. 746, 754 (2014); Goodyear, 564 U.S. at 919).

         In its motion to dismiss, Nouvag AG argues that neither general nor specific personal jurisdiction exists in Illinois. In response, Wilson only argues that the court has specific jurisdiction over Nouvag AG. The Court, therefore, limits its analysis to whether it may exercise specific jurisdiction over Nouvag AG in this case.

         I. Specific Personal Jurisdiction

         To establish specific personal jurisdiction, “the defendant's suit-related conduct must create a substantial connection with the forum State.” Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014). The connection must arise out of contacts that the defendant himself created with the forum State itself. Id. at 1122. The contacts of a third-party or of a plaintiff with the forum State, standing alone, will not suffice. Id. In addition, the defendant's contacts with the State must relate to the litigation. See Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 801 (7th Cir. 2014) (“The relevant contacts are those that center on the relations among the defendant, the forum, and the litigation.”) (citing Walden, 134 S.Ct. at 1121). An affiliation between the forum State and the underlying claims, such as an activity or an occurrence that takes place in the forum State, must exist. B ...

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