United States District Court, N.D. Illinois, Eastern Division
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.
MEMORANDUM OPINION AND ORDER
J. THARP, JR. UNITED STATES DISTRICT JUDGE
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
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”).
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
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
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.
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).
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).
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).
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.
Specific Personal Jurisdiction
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 ...