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Lynch v. Olympus America, Inc.

United States District Court, D. Colorado

June 5, 2019

KATHLEEN LYNCH, an individual, Plaintiff,
v.
OLYMPUS AMERICA, INC., OLYMPUS CORPORATION OF THE AMERICAS, OLYMPUS MEDICAL SYSTEMS CORP., and Does 1 through 20 inclusive, Defendants.

          MEMORANDUM OPINION AND ORDER

          NINA Y. WANG MAGISTRATE JUDGE

         This case comes before the court on four renewed Motions to Dismiss filed by the three named Defendants in this action, Olympus America, Inc. ("Olympus America"), Olympus Corporation of the Americas ("OCA"), and Olympus Medical Systems Corporation ("Olympus Medical"; collectively, "Defendants") following the court's prior grant of the initial Motions to Dismiss in the Order dated October 30, 2018 [#48] and Plaintiffs subsequent filing of a First Amended Complaint [#49]. The undersigned Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c), the Parties' consent, and the Order of Reference dated May 2, 2018. [#ll; #14]. In the renewed Motions to Dismiss, Defendants argue for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) ("the Renewed 12(b)(6) Motions"), alleging that Plaintiff Kathleen Lynch ("Plaintiff or "Ms. Lynch") has failed to state a claim upon which relief can be granted [#55; #56; #57, filed December 4, 2019]. On that same day, Olympus Medical filed a Rule 12(b)(2) motion ("the Renewed 12(b)(2) Motion" and collectively with the Renewed 12(b)(6) Motions, the "Renewed Defense Motions"), arguing that it should be dismissed as a defendant for want of personal jurisdiction. [#54]. Plaintiff responded to the Renewed 12(b)(6) Motions on January 2, 2019 [#69; #70; #71] and, after a period for jurisdictional discovery, the Renewed 12(b)(2) Motion on March 18, 2019 [#80]; the Defendants replied to the responses to the Renewed 12(b)(6) motions on January 16 [#72; #73; #74] and to the Renewed 12(b)(2) argument on April 1 [#81]. Oral argument was held before this court on April 16, 2019. [#85]. The Renewed Defense Motions are now ripe for decision. For the reasons set forth in this Memorandum Opinion and Order, the Renewed Rule 12(b)(2) Motion is DENIED, and the Renewed 12(b)(6) Motions are DENIED.

         BACKGROUND

         The court has already provided a comprehensive background for this case in the Order ruling on the original Defense Motions. [#48]. The court will therefore focus its attention for this section to the developments following that Order. All substantive assertions of fact are taken from the First Amended Complaint and assumed as true for purposes of this analysis. The discussion on personal jurisdiction will contain a separate statement of facts adduced in briefing Olympus Medical's 12(b)(2) Motion as the court cannot properly consider those facts in ruling on a 12(b)(6) motion.

         This is a case about an allegedly defective medical device, the TJF-Ql8OVDuodenoscope ("Q180V Scope" or "the Scope"), which is manufactured, sold, and supported by Defendants for use by medical professionals in performing numerous medical procedures including, as relevant here, an endoscopy, which is a medical procedure that involves the insertion of an endoscope into a patient's body for therapeutic and/or diagnostic purposes. See generally [#49]. In this case, Plaintiff alleges that she underwent an endoscopy at UCH Hospital ("UCH" or "the Hospital") in January 2016[1]and subsequently contracted a drug-resistant bacterial infection because her Doctor used a Q180V scope that retained biological contaminates from prior use that were not eliminated due to the defective design and cleaning (or "reprocessing") protocol provided with the Scope. [Id. at ¶ 1]. The Scope was contaminated primarily due to the defective design of the Scope's distal-end cap which sealed the elevator wire channel from effective cleaning but did not protect against the ingress of microscopic contaminates. [Id. at ¶¶ 1, 18, 31, 38, 59, 60]. The gravamen of Plaintiff s claim is that Olympus Medical designed the Scope with the defective end seal as opposed to a more effective open-channel design, allowing contaminates but also easy cleaning, or a fully removable end cap, permitting easier end-user verification of effective reprocessing, which rendered the device unsafe. [Id. at¶¶ 35, 60]. Plaintiff alleges that she fell ill due to the contaminated Q180V Scope used in her January 2016 procedure, and she filed this action on March 1, 2018. [Id.].

         In May 2018, the Defendants filed an initial set of Motions to Dismiss targeted at the original Complaint, based on Rule 12(b)(2) and Rule 12(b)(6) just as the present Renewed Motions are. [#17; #18; #19; #20]. In the Order dated October 30, 2018 [#48], the court found that the Complaint suffered from numerous fatal deficiencies and dismissed it in its entirety. Specifically, the court found the following issues: (1) the court lacked personal jurisdiction over Olympus Medical, a Japanese corporation, without some evidence that Olympus Medical intentionally targeted Colorado for the Scopes which harmed Plaintiff [#48 at 16]; (2) Plaintiffs claim for a design defect in the Scope failed as it did not address the relevant factors under Colorado law [id. at 21]; (3) Plaintiff s cursory assertion of an unspecified injury contracted an indeterminate time after her procedure was insufficient to plausibly establish causation [id.]; (4) Plaintiff s failure to warn claim failed because it was premised on a failure to warn the patient and not the doctor per the learned intermediary doctrine, which the court found applies [id. at 24]; (5) Plaintiffs failure to warn claim was conclusory and did not adequately set forth a plausible claim that an effective warning would have prevented her harm [id. at 26]; (6) the claims for intentional and negligent misrepresentation did not meet the heightened pleadings standards of Federal Rule of Civil Procedure 9(b) as it did not distinguish between the Defendants or identify the misrepresentations at issue [id. at 28-32]. The court granted Plaintiff leave to file an amended complaint to address these deficiencies, which she did on November 20, 2018. [#48].

         The Defendants filed the Defense Motions shortly thereafter, arguing that Plaintiff has not adequately remedied the deficiencies identified by the court in the October 30 Order. [#54; #55; #56; #57]. Briefing on the renewed 12(b)(6) motions completed in the usual course, but the court permitted jurisdictional discovery as to Olympus Medical, and therefore the briefing on that motion only completed on April 1, 2019. [#81]. The court held Oral Argument on April 16, 2019 on the Defense Motions. For the reasons stated in this Order, the court finds that Plaintiff has sufficiently remedied these deficiencies, and therefore all Renewed Defense Motions are DENIED

         LEGAL STANDARDS

         I. Personal Jurisdiction under Rule 12(b)(2)

         Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to challenge the court's exercise of personal jurisdiction. Fed. R Civ. P. 12(b)(2). Plaintiff bears the burden of demonstrating that the court has personal jurisdiction over the Defendants. See Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1069 (10th Cir. 2008). When, as here, the court decides a Rule 12(b)(2) motion to dismiss without holding an evidentiary hearing, "the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion." AST Sports Sci, Inc. v. CLF Distrib. Ltd., 5l4F.3d 1054, 1057 (10th Cir. 2008). "The plaintiff[s] may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). In considering this question, the court must accept all well pleaded facts as true and must resolve any factual disputes in favor of the plaintiff. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).

         To establish jurisdiction over a non-resident defendant, a plaintiff must show that the exercise of jurisdiction is authorized under the relevant state long-arm statute, and does not offend due process. Wenz, 55 F.3d at 1506. Because the Colorado Supreme Court has determined that Colorado's long-arm statute, Colo. Rev. Stat. § 13-1-124(2018), is coextensive with due process requirements, Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo. 2002), the inquiry is thus simplified into one basic question: whether the exercise of personal jurisdiction comports with the requirements of due process under the Fourteenth Amendment to the United States Constitution. AST Sports, 514 F.3d at 1057.

         However, even if this test is met, a court must still consider whether "the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice." OMI Holdings, 149 F.3d at 1091. In this inquiry the court considers: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental social policies. Id. at 1095.

         Plaintiff does not assert general jurisdiction over Olympus Medical, nor does it appear she could. This analysis, therefore, is confined to the assertion of specific jurisdiction over Olympus Medical. To determine whether this court may exercise specific jurisdiction over Olympus Medical, this court looks to whether its contacts with this forum associated with the action at hand is sufficient for it to be haled into court in this District: "(a) whether the plaintiff has shown that the defendant has minimum contacts with the forum state; and, if so, (b) whether the defendant has presented a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Old Republic Ins. Co. v. Cont'l Motors, Inc., 877 F.3d 895, 904 (10th Cir. 2017).

         II. Failure to State a Claim under Rule 12(b)(6)

         Under Rule 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding amotion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations" and "view these allegations in the light most favorable to the plaintiff" Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers "to the scope of the allegations in a complaint," and that the allegations must be sufficient to nudge a plaintiffs claim(s) "across the line from conceivable to plausible."). To state a claim that is plausible on its face, a complaint must "sufficiently allege[] facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         The court has subject matter jurisdiction over this case because the parties are completely diverse and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a). Therefore, the court applies Colorado law when evaluating whether Plaintiffs state law claims state a claim under Rule 12(b)(6). Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195, 1200 (10th Cir. 2002). Absent clear guidance from the Colorado Supreme Court, a federal court exercising diversity jurisdiction must make an Erie guess as to how that court would rule. Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 901 (10th Cir. 2005) ("Because Wyoming has not directly addressed this issue, this court must make an Erz'e-guess as to how the Wyoming Supreme Court would rule."). In making an Erie guess, courts look to decisions of the state court of appeals as strongly persuasive, if not governing, authority as to how the state supreme court would rule. Koch v. Koch Indus., Inc., 203 F.3d 1202, 1230 (10th Cir. 2000) ("Furthermore, this court must follow any intermediate state court decision unless other authority convinces us that the state supreme court would decide otherwise." (formatting altered) (quoting Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir. 1984)); see also, e.g., U.S. ex rel. Sun Constr. Co. v. Torix Gen. Contractors, LLC, No. 07-CV-01355-LTB-MJW, 2011 WL 841277, at *l (D. Colo. Mar. 8, 2011).

         III. Pleading Special Matters Under Rule 9(b)

         When a plaintiff alleges fraud or mistake, Federal Rule of Civil Procedure 9(b) requires that the plaintiff "state with particularity the circumstances constituting fraud or mistake." The Rule's purpose is to "to afford [a] defendant fair notice" of a plaintiffs claims and the factual grounds supporting those claims, George v. Urban Settlement Svcs., 833 F.3d 1242, 1255 (10th Cir. 2016) (quoting Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir. 1997)), such that the defendant is provided the "minimum degree of detail necessary to begin a competent defense." Fulghum v. Embarq Corp., 785 F.3d 395, 416 (10th Cir. 2015). Rule 9(b) does not require any particularity in connection with an averment of intent, knowledge or condition of mind, rather it simply refers to only the requirement that a plaintiff identify the circumstances constituting fraud with sufficient specificity. Schwartz, 124 F.3d at 1252.

         Put simply, Rule 9(b) requires that a complaint "set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof" Id. (quoting In re Edmonds, 924 F.2d 176, 180 (10th Cir. 1991)). When plaintiff brings a claim against multiple defendants, Rule 9(b) obliges a plaintiff to specify the manner in which each defendant participated. Brooks v. Bank of Boulder, 891 F.Supp. 1469, 1477 (D. Colo. 1995); see also Lillard v. Stockton, 267 F.Supp.2d 1081, 1094 (D. Kan. 2003) ("[W]here fraud is alleged against multiple defendants, blanket allegations of fraud couched in language such as 'by the defendants' are insufficient. Instead, the specifics of the alleged fraudulent activity of each defendant must be set forth.").

         Rule 9(b) clearly applies to intentional misrepresentation and fraud, but the law is unsettled on whether it applies to a claim of negligent misrepresentation. Compare Conrad v. The Educ. Res. Inst., 652 F.Supp.2d 1172, 1183 (D. Colo. 2009) ("Thus, a claim for negligent misrepresentation should not be governed by the pleading standard set forth in Rule 9(b).") and Denver Health & Hosp. Auth. v. Beverage Distributors Co., LLC, 843 F.Supp.2d 1171, 1177 (D. Colo. 2012) ("Rule 9(b) does not apply to the negligent misrepresentation claim before me. The crux of the claim .... rings not of fraud but negligence."), with Cunningham v. Standard Fire Ins. Co., No. 07-cv-02538-REB-KLM, 2008 WL 4377451, at *2 (D. Colo. 2008) ("I conclude that the particularity requirement is applicable to the negligent misrepresentation claim. In this context, negligence is a type of mistake and Rule 9(b) concerns allegations of fraud or mistake."). In the October 30 Order dismissing Plaintiffs original Complaint, the court found that Rule 9(b) applied to the negligent misrepresentation claim because it was "rife with allegations of willful misconduct." [#48 at 13]. In the First Amended Complaint, Plaintiffs claim of negligent misrepresentation again contains allegations of willful misconduct, [#49 at ¶¶ 108-126], and now Plaintiff concedes the applicability of Rule 9(b). [#70 at 4].

         ANALYSIS

         As noted above, the court identified six substantive deficiencies in the original Complaint. Plaintiffs First Amended Complaint brings the same claims and seeks to address these errors, and the Renewed Defense Motions are premised on the Defendants' arguments that the First Amended Complaint has not adequately remedied the deficiencies. Given this overlap, the court will proceed in an abbreviated fashion, analyzing by deficiency as opposed to by claim in determining whether the First Amended Complaint has cured the deficiencies noted above before considering any secondary issues raised in the pleadings or at oral argument. A federal court "generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007). Therefore, this court will begin by analyzing the exercise of personal jurisdiction over Olympus Medical.[2]

         I. Does the Court Have a Basis to Assert Personal Jurisdiction over Olympus Medical?

         A. Supplemental & Relevant Facts

         Plaintiff, afforded jurisdictional discovery, has submitted additional facts in Response to Olympus Medical's Rule 12(b)(2) Motion. [#80]. Plaintiff presents the following facts to support its argument of specific personal jurisdiction as to Olympus Medical, drawn from both the operative Amended Complaint and additional facts adduced through discovery:

         Olympus Medical maintains contact and business relations with UCH Hospital Doctor Steven Edmundowicz, M.D., where is utilized as an evaluator of Olympus Medical's prototype devices. [#49at¶ 17]. Relevant here, Dr. Edmundowicz evaluated a prototype Q180V Scope for Olympus Medical in 2009, before the introduction of the Scope to the U.S. market in 2010, and again later in 2013 [id], one year after UCH Hospital purchased the Scope in June 2012 [#80-12], and approximately three years before Plaintiffs procedure in January 2016. [#49 at¶36]. Dr. Raj Shah, Plaintiffs treating physician who performed her ERCP on January 20, 2016, also has ties with Olympus Medical. [#80 at 7]. Specifically, in 2009, Dr. Shah travelled to Tokyo, Japan on Olympus Medical's invitation several months prior to the release of the Q180V Scope to the United States market to give feedback to Olympus Medical's R&D team at the "Olympus Endoscopy New Millennium Program." [Id; #80-4]. The Minutes from the 2009 trip indicate that Dr. Shah was participating in his capacity as an Associate Professor of Medicine at the University of Colorado. [Id.]. Dr. Shah toured the Olympus Medical manufacturing plants in Aomori and Aizu with members of its marketing department, and heard a presentation from Mr. Kitano-presumably an Olympus Medical employee-on the TJF-180V.[3] [#80-4at3-4, 5]. Dr. Shah provided comments on the future scopes exhibited at the presentation and made comments praising Olympus Medical. [Id. at 4, 6, 7, 10-11].

         Olympus Medical's employees also travelled to Colorado to build their relationships with Dr. Shah and UCH Hospital. In 2010, Olympus Medical "Senior Supervisor" for the "Americas Group," Koya Tsubaki, travelled to Denver for a meeting with Dr. Shah and others at the University of Colorado. [#80 at 7; #80-5]. The stated aim of the trip was to "enhance the doctors' loyalty to Olympus [Medical]" and to boost sales of existing scope lines, which by that time included the Q180V Scope. [Id. at 5]. Mr. Tsubaki visited again in February 2011 to attend the "16th Rocky Mountain Interventional Endoscopy Course" where many Olympus Medical products were displayed and demonstrated. [#80 at 7; #80-6; #80-7]. After the trip, Mr. Tsubaki and Olympus Medical Product Manager Charles Lavin were effusive in their mutual praise for the success of the trip and the sales dividends it would provide. [#8O-6 at 5-6]. In June 2012, UCH Hospital purchased Q180V Scopes. [#80-12].

         B. Parties' Arguments

         Relevant here, Plaintiff's original assertion of personal jurisdiction over Olympus Medical was predicated on a nationwide marketing plan and the company's shipment of Scopes to a warehouse/distribution point in Pennsylvania, which the court found insufficient as these contacts were not tethered to any Colorado-specific nexus. [Id. at 16]. Plaintiff now sets forth additional factual allegations regarding Olympus Medical's agents' travel to Colorado and marketing to Colorado doctors. Olympus Medical maintains Plaintiffs showing remains insufficient because (1) Dr. Edmundowicz's 2009 and 2013 evaluation of Q180V prototypes is not alleged to be connected to Plaintiffs procedure which occurred years later [#54 at 9]; (2) Plaintiff has failed to prove that Olympus Medical ever had more than a general awareness that its Scopes were sold in Colorado [#81 at 2-3]; (3) Dr. Shah's trip to Japan is unrelated to Olympus Medical's targeting of Colorado, citing Walden v. Fiore, 571 U.S. 277 (2014) [id. at 4]; (4) the two brief visits by Olympus Medical Employee Koya Tsubaki are not related to the conduct forming the basis for this litigation as "both visits appear to be unrelated to any particularized effort to sell the Q180V Scope to UCH or anyone else in Colorado," [id. at 5], and finally (6) notions of fair play and substantial justice weigh against the exercise of jurisdiction in this case [id. at 7].[4] In doing so, Olympus Medical relies heavily on another court's decision on the same matter, Quashie v. Olympus Am., Inc., 315 F.Supp.3d 1329 (N.D.Ga. 2018), which found no personal jurisdiction over Olympus Medical.

         C. Legal Standard

         Because Colorado's long-arm statute is coextensive to that of the Due Process Clause of the Fourteenth Amendment, this court's analysis collapses into a single inquiry whether the exercise of personal jurisdiction comports with due process. Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 16 Fed.Appx. 959, 962 (10th Cir. 2001). The Due Process Clause operates to limit the power of a State to assert personal jurisdiction over a non-resident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984). Due Process protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985). The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard set forth in International Shoe Co. v. Washington, 326 U.S. 310 (1945). Shaffer v. Heitner, 433 U.S. 186, 207(1977). International Shoe requires that a defendant "have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe, 326 U.S. at 316.

         D. Minimum Contacts

         In the exercise of specific personal jurisdiction, the minimum contacts requirement encompasses two distinct requirements: (1) the defendant must have purposefully directed its activities at residents of the forum state, and (2) that the plaintiffs injuries must arise out of the defendant's forum-related activities. Old Republic, 877 F.3d at 895. The purposeful direction requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts or of the unilateral activity of another party or a third person. Burger King, 471 U.S. at 475 (quotation marks and citations omitted); Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008). While not necessarily dispositive, forum-specific solicitation of business relationships and regular correspondence with forum residents is strong evidence of purposeful direction. See Pro Axess, Inc. v. Orlux Distribution, Inc., 428 F.3d 1270, 1277-78 (10th Cir. 2005). In general, when considering a foreign defendant's contractual obligations, "parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities." Id. at 1277 (citing Burger King, 471 U.S. at 473).

         In the October 30 Order, the court surveyed the unsettled landscape in the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") regarding the appropriate test to apply for minimum contacts when jurisdiction arises by placing an item into the "stream of commerce." [#48 at 4-9]. In 2008, the Tenth Circuit decided Dudnikov, which addressed the "welter of confusion" over the applicable framework for analyzing whether a plaintiffs injuries arise out of a defendant's contact with the forum when considering the exercise of specific personal jurisdiction. The Dudnikov court rejected one test, the substantial connection test, but did not affirmatively select between the remaining tests, the but-for test and the proximate cause test. See Id. at 1078 ("[W]e agree . . . that the 'substantial connection' test inappropriately blurs the distinction between specific and general personal jurisdiction[.]"); see also Id. at 1079 ("As between the remaining but-for and proximate causation tests, we have no need to pick sides today").

         The proximate cause test"look[s] to whether the plaintiff has established cause in fact (i.e., the injury would not have occurred 'but for' the defendant's forum-state activity) and legal cause (i.e., the defendant's in-state conduct gave birth to the cause of action)." Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n,142 F.3d 26, 35 (1st Cir. 1998) (cited as the representative proximate cause test in Dudnikov, 514 F.3d at 1078). By contrast, the but-for test inquires whether, but for defendant's contacts with the forum, plaintiff would have suffered the injury at issue. Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 864 (9th Cir. 2003) (cited as the representative but-for test in Dudnikov, 514 F.3d at 1078). The Tenth Circuit has characterized the proximate cause test as the more demanding of the two. Dudnikov, 514 F.3d at 1078 ("Under the former approach, any event in the causal chain leading to the plaintiffs injury is sufficiently related to the claim to support the exercise of specific jurisdiction. The latter approach, by contrast, is considerably more restrictive and calls for courts to examines whether any of the defendant's contacts with the forum are relevant to the merits of the plaintiffs claim." (formatting altered, quotations omitted)); see also Newsome v. Gallacher,722 F.3d 1257, 1270 (10th Cir. 2013) (referring to "the more restrictive proximate cause test"); Bartile Roofs, 618 F.3d at 1161 ("Proximate cause is the most restrictive approach and requires courts to analyze whether any of the defendant's contacts with the forum are relevant to the merits of the plaintiffs claim." (quotation omitted)). The Tenth Circuit has repeatedly declined to definitively adopt one of the two tests outside of the contract context. See Newsome, 722 F.3d at 1270 ("We have so far ...


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