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Missouri Supreme Court May Be Signaling a Change in Analysis of Misjoinder of Claims in Multi-Plaintiff Product Liability Cases

October 19, 2017

On October 13, 2017, the Missouri Supreme Court issued a preliminary writ of prohibition directed to Circuit Judge Rex Burlison of the Circuit Court for the City of St. Louis, temporarily staying the talc case, Valerie Swann, et al. v. Johnson & Johnson, et al.  The Supreme Court case number is SC96704.  The plaintiffs, on behalf of the trial court, are to answer the writ petition by November 13, 2017.

Plaintiff Michael Blaes is one of 47 plaintiffs in the case, who contend that they or their decedents developed ovarian cancer following use of talcum powder.  Johnson & Johnson alleges that Blaes’s decedent did not purchase or use talcum powder in the City of St. Louis.  Blaes’s case was set for separate trial from those of the other plaintiffs, but Judge Burlison declined to formally sever his claim such that it could be reassigned and venue assessed.  That decision is the subject of Johnson & Johnson’s petition for a writ of prohibition.

Missouri has long had a troubled history with venue analysis.  As part of tort reform in 2005, the legislature made significant changes to the venue statute, designed to prevent forum shopping.  The recent explosion in “litigation tourism” focused in the City of St. Louis has not been due to any change in, or deficiency of, the venue statute and the joinder rules, but in changes in the application of long-standing principles of venue and joinder.

Refusal to sever unrelated claims is at the core of the problem.  Litigation tourism in St. Louis depends upon a single, anchor plaintiff who is a Missouri resident with a plausible jurisdictional claim and basis to claim venue in the City of St. Louis, with dozens of unrelated, out-of-state plaintiffs clinging to that anchor plaintiff’s case to justify pursuit of claims in Missouri against non-residents.  The claims are misjoined and should be severed, but to date the Missouri Supreme Court has declined to find that a trial court’s refusal to sever misjoined claims warrants reversal on appeal unless the defendant can establish that the severance decision was prejudicial to the outcome (by establishing that the City of St. Louis is a biased venue).  See Barron v. Abbott Labs., Inc., No. SC96151, 2017 Mo. LEXIS 403, at *6 (Sep. 12, 2017).

Severance has not always been this controversial, but reflects a change in the application of Missouri law and procedure in recent years.  Rule 52.06 of the Missouri Rules of Civil Procedure is titled “Misjoinder and nonjoinder of parties,” and provides that “Any claim against a party may be severed and proceeded with separately.”  Misjoinder of claims or parties requires severance of the claims.  See State ex rel. Gulf Oil Corp. v. Weinstein, 379 S.W.2d 172, 174 (Mo. App. St. L. 1964).

Rule 52.05 identifies the only circumstances under which the claims of multiple plaintiffs may be properly joined in a single action:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.

Mo. R. Civ. P. 52.05(a) (emphasis added).  Both tests must be met for plaintiffs to be joined in a single action.  Id.; State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo. banc 1979).  If those requirements are not met, the claims are misjoined and severance is required.  Even if joinder is permitted, severance is still permissible in the trial court’s discretion, based upon factors related to fairness, economy, and prejudice.  See Wilson v. Bob Wood & Associates, Inc., 633 S.W.2d 738, 743 (Mo. App. W.D. 1981).

Rule 52.05(a) is analogous to Fed. R. Civ. P. 20(a), which provides that parties may be properly joined only where claims by or against them arise out of the same transaction or occurrence or present common questions of law or fact.  In State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo.1979) the Missouri Supreme Court discussed the adoption of Rule 52.05(a), recognized that it was patterned after the federal rule, and applied federal cases to interpret it.  Id.  The federal rule has been extensively construed, and overwhelmingly find that the claims of multiple plaintiffs are misjoined when the only commonality amongst plaintiffs is that they allege damages resulting from using the same product.  See, e.g., In re Orthopedic Bone Screw Prods. Liab. Litig., MDL No. 1341, 1995 WL 428683, at *5-6 (E.D. Pa. July 15, 1995).  In the bone screw litigation, the only plaintiffs who were allowed to remain joined in a single action were those who underwent surgery by the same doctor or group of doctors, at the same hospital, and who received the same or a similar device by the same manufacturer.  Id. at *5.  There is no reason in the rule why Missouri should be applying joinder principles in a manner so inconsistent with the federal courts.

Recent jurisprudence in the City of St. Louis and in the Eastern District Court of Appeals, in fact, is inconsistent with those courts’ own past precedent on misjoinder and severance.  In Gulf Oil, plaintiffs had purchased fuel oil in unrelated transactions at different times.  Id. at 174.  These transactions did not constitute the “same transaction nor a series of transactions.”  Id. at 175.  Moreover, even though the plaintiffs all sustained fires, these occurred on different dates.  Id.  Accordingly, the plaintiffs’ losses did not constitute the same “occurrence.”  Id. 

The Gulf Oil court was keenly focused upon what is the “transaction” and what is the “occurrence” that is common to the plaintiffs.  Because the issue is joinder of plaintiffs, it is a plaintiff-focused, not defendant-focused analysis.  Recent jurisprudence on the eastern side of the state has shifted that focus to the notion that plaintiffs’ claims can arise out of the same transaction or occurrence when they derive from common conduct of the defendant, which has been expanded to include the design, marketing, and sale of the product.  In reaching these decisions, the early trial court orders rely upon cases analyzing the proper joinder of defendants, which is, of course, a defendant-behavior-focused analysis.  

Taken to the illogical extreme, the approach of focusing upon the defendants’ business practices and product design to establish joinder would allow any purchaser of a product to join with any single Missouri plaintiff and to pursue their claims in Missouri.  It is simply untenable, and seems inevitable that, if the Missouri Supreme Court does not curtail this problem, the U.S. Supreme Court will.  Allowing non-residents to sue non-residents for extraterritorial conduct and injuries is not constitutionally defensible.  Personal jurisdiction limitations “are a consequence of territorial limitations on the power of the respective States.”  Hanson v. Denckla, 357 U.S. 235, 251 (1958); see also World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 292 (1980) (minimum contacts requirement serves the dual functions of protecting defendant against the burden of litigation and ensuring states “do not reach out beyond the limits imposed on them by their status as coequal sovereigns in our federal system”).  

There are hopeful signs – the Eastern District Court of Appeals just overturned the first talcum verdict against Johnson & Johnson for lack of personal jurisdiction.  See Estate of Fox v. Johnson & Johnson, No. ED104580, 2017 Mo. App. LEXIS 1043 (Mo. App. E.D. Oct. 17, 2017).  The dust has not yet settled on these issues, however.

Johnson & Johnson’s writ of prohibition takes a subtly different track from the issue argued in Barron.  In its recent writ, Johnson & Johnson does not argue that Judge Burlison erred in denying the original motion to sever based upon misjoinder of the plaintiffs’ claims, but that, when the court ordered separate trial of each of the claims, that the claims of each plaintiff should have been formally severed such that venue (and presumably jurisdiction) would be independently assessed as to each of the severed claims.

Rule 66.02 provides:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

Rule 52.06 provides that “Any claim against a party may be severed and proceeded with separately.”  Missouri law has been somewhat ambiguous as to the relationship between these rules, including whether “proceed[ing] separately” with a claim is the same as severing it.

The 3-judge concurring opinion in Barron, upon which Johnson & Johnson relies for its writ petition, suggested that, when the trial court determines that a plaintiff’s claims should be separately tried, it has effectively “severed” that plaintiff’s claims from the remaining plaintiff(s).  Alternatively, where the trial court has determined that the claims should not be tried together, it would ordinarily have no basis to deny a subsequent motion to sever.  Because Mo. Rev. Stat. § 508.012 (part of the 2005 tort reform) requires reassessment of venue when a plaintiff is either added to or removed from the petition, and mandates transfer if venue is improper, the trial court’s failure to formally sever a separately-tried claim deprives defendants of the benefit of the statute.

When there has been severance, the normal administrative process would involve the assignment of a new case number to the severed case and, normally, random judicial reassignment.  Severance of claims permits the court to render separate judgments which will be deemed final for purposes of appeal.  Engel Sheet Metal Equipment, Inc. v. Shewman, 301 S.W.2d 856, 859 (Mo. App. St. L. 1957).  The claims, being independent, would be subject to independent venue and jurisdictional analysis, having been unchained from the Missouri anchor plaintiff.

It is interesting that the Supreme Court has issued a preliminary writ in the Blaes matter.  Although an order for separate trials is not generally deemed to be equivalent to an order for severance, that general principle must be considered in the context of the venue statute, which does contemplate a reassessment of venue.  A court may be required to order severance based upon misjoinder, and the Johnson & Johnson argument seems targeted squarely at overcoming the “lack of prejudice” finding in Barron – the prejudice is in the denial of the rights afforded under Mo. Rev. Stat. § 508.012.  Additionally, where the court has discretion to sever based upon judicial economy, fairness, and prejudice, it still appears to be an abuse of discretion to order 47 separate trials but refuse to sever them into independent actions. 

Johnson & Johnson’s writ petition may be the hook to pry loose severance orders in these multi-plaintiff cases.  Ideally, however, the impropriety of joinder would be assessed at an earlier stage of the litigation, before decisions on trial management have been made.  We are hopeful that recent developments in the talc cases indicates a shift away from recent practices in these multi-plaintiff cases.

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