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"Missouri Supreme Court to Limit Venue in Johnson & Johnson Case"
February 26, 2019
By Tad Juilfs
On 02/13/2019, the Missouri Supreme Court handed down a striking blow to plaintiffs in mass tort litigation.
The matter State ex rel. Johnson & Johnson and Imerys Talc America, Inc., 2019 WL 581175 (Mo. 2019) is a matter originally pending in St. Louis city circuit court involving talc and talcum powder exposure. Plaintiff Michael Blaes alleged his wife died of ovarian cancer after using talc-based products of Johnson & Johnson which were manufactured and sold with talc provided by Imerys. Blaes’ wife bought and applied the talcum powder in St. Louis County rather than St. Louis city. In 2016, Blaes’ claims were joined with those of St. Louis city resident Valerie Swann, along with dozens of other non-Missouri Plaintiffs. A dispute as to venue ensued.
The venue statute in Missouri, RSMo § 508.010 states that tort suits “in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligence conduct alleged in the action.” Tort suits “in which the plaintiff was first injured outside the state of Missouri, venue shall be . . . in any county where a defendant corporation’s registered agent is located or, if the plaintiff’s principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county of the plaintiff’s principal place of residence on the date the plaintiff was first injured.” Furthermore, Missouri Rule of Civil Procedure 51.01 states the rules of civil procedure “shall not be construed to extend or limit the jurisdiction of the Courts of Missouri or the venue of civil actions therein.”
The Defendants argued the venue statute, RSMo § 508.010, did not allow the individual case from Blaes to be heard in St. Louis city because venue was not proper. In effect, Blaes’ claims followed an erroneous joinder loophole that was being exploited. Plaintiffs who could not otherwise satisfy venue in St. Louis city would join their claims with a party who could satisfy the venue provision. While the cases arguably had similar questions of fact and law for joinder, only some of the in-state and out-of-state plaintiffs could properly bring their case in St. Louis city. In effect, proper venue was being surmised after joinder had occurred, rather than analyzed beforehand or as a stand-alone requirement for suit. Multiple requests for severance and transfer of the Blaes’ claim were denied by the St. Louis city circuit court and the appeals court.
On request for writ, the Missouri Supreme Court issued a writ of prohibition against St. Louis city circuit court taking further action other than severing and transferring Blaes’ claim to St. Louis County. The Court found the joinder loophole was not founded in the statute or case law. The Court opined “the only way to justify venue in the city for Blaes’ independent, separate claims is to allege proper joinder with Swann’s claims in each of these counts. Just as the cart cannot lead the horse, joinder cannot control venue.” In a key statement which may prove to prevent additional trips to the Missouri Supreme Court on similar cases, the Court added, “Whether joinder is justified by Rule 52.05 (parties), Rule 55.06 (claims), or any other court rule, Rule 51.01 prohibits extending venue, beyond statutory venue constraints, pursuant to any of the Missouri Rules of Civil Procedure, and it does not matter if the separate claims were brought by multiple plaintiffs against a single defendant, a single plaintiff against multiple defendants, or even a single plaintiff against a single defendant.”
Of note, the Court distinguished this case from its holding in Barron v. Abbott Laboratories, Inc. 529 S.W.3d 795, 797 (Mo. banc 2017). That case involved multiple plaintiffs alleging injuries for exposure to a drug manufactured and marketed by Abbott Laboratories. Similar to Johnson & Johnson, Abbot Laboratories asked for severance and transfer of individual claims for improper venue. However, the Missouri Supreme Court reviewed the request in the context of whether it was unduly prejudicial to go forward with the trial in the current venue rather than sever and transfer. The Court ruled prejudice was not shown for the denial of severance and transfer, but the Court did not determine whether venue was proper in the first place.
The holding in Johnson & Johnson could greatly change the landscape of where plaintiff’s mass tort claims are filed in Missouri. As noted above, when a plaintiff was first injured in the state of Missouri, venue will be proper in the county where the plaintiff was first injured by the wrongful acts or negligence alleged. When a plaintiff was first injured outside the state of Missouri, venue will be proper in the county of the corporations registered agent or the county of the plaintiff’s principal place of residence if the plaintiff was living in Missouri when he/she was first injured outside the state of Missouri. Of course, both scenarios are also subject personal jurisdiction challenges.
Here are some common scenarios and how they would seem to work out with regard to venue now that the joinder loophole has been closed. Please note these scenarios assume personal jurisdiction (general or specific) is proper in Missouri.
Ex. 1 – Plaintiff is currently a resident of Green County, Missouri. Defendants A, B, and C previously operated or did business in Missouri. Defendant A operated in St. Louis city and has its registered agent in Cole County, Missouri. Defendant B operated in Jackson County, Missouri and has its registered agent in Boone County, Missouri. Defendant C operated in St. Louis County, Missouri and has its registered agent in Jefferson County, Missouri. Plaintiff alleges to have been first injured by exposure to asbestos by A, B, and C in Missouri at the respective locations in which the defendants operated.
Solution Ex. 1 – Plaintiff was first injured in the state of Missouri. Venue should be proper in the county where plaintiff was first injured by each respective defendant. However, Plaintiff will not be able to bring claims against all defendants in the same action in one county. For instance, Plaintiff will be able to bring claims against A in St. Louis city, but it will not be able to do so against B or C in St. Louis city because the venue via joinder was struck down in Johnson & Johnson.
Ex. 2 – Same facts as 1 except Plaintiff lives in Wisconsin and was first injured in Wisconsin rather than Missouri.
Solution Ex. 1 – Plaintiff was first injured outside the state of Missouri. Venue should be proper in the county of each corporations respective registered agent. However, Plaintiff will not be able to bring claims against all defendants in the same action in one county based on joinder due to the holding in Johnson & Johnson.
Ex. 3 – Same facts 2 except Plaintiff used to live in St. Louis city before moving to Wisconsin, and he was first injured in Florida while his principal place of residence was still in St. Louis city.
Solution Ex. 3 – Plaintiff was first injured outside the state of Missouri, but Plaintiff’s principal place of residence was in St. Louis city at that time. Venue should be proper in St. Louis city against all defendants. However, there are significant personal jurisdiction questions that could arise under this scenario.
Ex. 4 – Same facts as 1 except Plaintiff moved to St. Louis city after living in Green County during first injury and Plaintiff is filing a wrongful death suit for take-home exposure on behalf of his decedent spouse.
Solution Ex. 4 – Plaintiff’s decedent was first injured inside the state of Missouri. However, decedent was first injured in Greene County from alleged take-home exposure. Venue should be proper in Greene County rather than the original exposure locations of the defendants. Further, Plaintiff will not be able to bring claims against all defendants in the same action in Greene County based on joinder due to the holding in Johnson & Johnson.
For more information regarding how venue could affect your case, please contact a Maron Marvel Bradley Anderson & Tardy LLC attorney.