Ristesund v. Johnson & Johnson

• Decision Date: 29 June 2018
• Docket Number: No. ED 104887,ED 104887
• Citation: 558 S.W.3d 77
• Court: Missouri Court of Appeals
• Parties: Gloria RISTESUND, Plaintiff/Respondent, v. JOHNSON & JOHNSON, and Johnson & Johnson Consumer Companies, Inc., Defendants/Appellants, and Imerys Talc America, Inc., Defendant.

558 S.W.3d 77

Gloria RISTESUND, Plaintiff/Respondent,

v. JOHNSON & JOHNSON, and Johnson & Johnson Consumer Companies, Inc., Defendants/Appellants,andImerys Talc America, Inc., Defendant.

No. ED 104887

Missouri Court of Appeals, Eastern District, Division One.

FILED: June 29, 2018

Transfer to Supreme Court Denied August 7, 2018

Application for Transfer Denied October 30, 2018

Thomas B. Weaver, Jeffery McPherson, Beth Ann Bauer, Gerard T. Noce, Mark C. Hegarty, St. Louis, MO, William Ray Price Jr., Clayton, MO, for appellants.

James G. Onder, William Wylie Blair, Stephanie Lynn Rados, St. Louis, MO, Edward D. Robertson, Jr., Mary Doerhoff Winter, Jefferson City, MO, for respondent.

KURT S. ODENWALD, Judge

Introduction

Johnson & Johnson ("J&J") and Johnson & Johnson Consumer Inc. ("JJCI")¹ (collectively, "Defendants") appeal the trial court’s judgment after a jury verdict in favor of Gloria Ristesund ("Ristesund") on her product-liability claims. Ristesund concedes that the trial court lacked personal jurisdiction over Defendants, and requests that we remand this matter to allow her the opportunity to renew the case and present evidence of personal jurisdiction in light of the United States Supreme Court holding in Bristol-Myers Squibb Co. v. Superior Court of California. ––– U.S. ––––, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017) (" BMS"). Consistent with this Court’s opinion and ruling in Estate of Fox v. Johnson & Johnson. 539 S.W.3d 48 (Mo. App. E.D. 2017), we reverse and vacate the trial court’s judgment. Because Ristesund had ample opportunity to fully address the issue of personal jurisdiction in the underlying proceedings, we decline to remand.

Factual and Procedural History

JJCI manufactures and sells products containing talcum powder ("talc"), a mineral used in cosmetics, across the United States. J&J is JJCI’s parent company. Defendants are both incorporated and headquartered in New Jersey.

Ristesund and sixty-four other plaintiffs (collectively, "Plaintiffs") filed an action against J&J, JJCI, and two other defendants.² Plaintiffs' petition alleged claims for strict liability, negligence, and other torts against Defendants. Plaintiffs alleged that they contracted ovarian cancer

from continued perineal use of Defendants' talc products. Sixty-three of the Plaintiffs—including Ristesund—lived, purchased Defendants' products, used Defendants' products, and developed ovarian cancer outside Missouri (collectively, the "Non-Resident Plaintiffs").

Ristesund, a resident of South Dakota, purchased and used Defendants' talc products exclusively in South Dakota and Minnesota. Ristesund alleges that she used Defendants' talc products regularly for over forty years, which caused her to develop ovarian cancer

.

Defendants each moved to dismiss the Non-Resident Plaintiffs' petitions for lack of personal jurisdiction, arguing that Missouri lacked general personal jurisdiction over them. Specifically, JJCI maintained that its only contact with Missouri was selling products in the state, and that none of its Missouri sales were to the Non-Resident Plaintiffs. J&J alleged that it lacked the requisite contacts with Missouri to establish personal jurisdiction with the State because it did not sell, manufacture, or develop talc products in Missouri. Further, Defendants argued that Missouri lacked specific personal jurisdiction because the Non-Resident Plaintiffs' claims did not arise from or relate to Defendants' minimal contacts with Missouri.

The motion court denied Defendants' motions to dismiss, holding that specific personal jurisdiction existed over Defendants because the joinder of the Non-Resident Plaintiffs' claims to the Missouri Plaintiffs' claims provided the required nexus to Defendants' conduct in Missouri. The case then proceeded to a jury trial, with the claims of the individual plaintiffs, including Ristesund’s, proceeding in separate trials.

At trial, the jury found in favor of Ristesund, and awarded her $5,000,000 in compensatory damages. The jury also awarded Ristesund $ 15,000,000 in punitive damages against JJCI and $35,000,000 in punitive damages against J&J. Defendants now appeal.

Points on Appeal

Defendants raise thirteen points on appeal. Point One maintains that Missouri lacks personal jurisdiction over Defendants. Because Point One is dispositive, we need not address Points Two through Thirteen. See Fox, 539 S.W.3d at 50.

Standard of Review

This Court reviews questions of personal jurisdiction de novo.

Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo. banc 2010). The plaintiff has the burden of proving personal jurisdiction once the defendant properly raises the issue. Id. (quoting Angoff v. Marion A. Allen, Inc., 39 S.W.3d 483, 486 (Mo. banc 2001) ). Absent personal jurisdiction, a judgment is void. Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo. App. E.D. 2001) (citing Century Fin. Serv. Group, Ltd. v. First Bank, 996 S.W.2d 92, 93 (Mo. App. E.D. 1999) ).

Discussion

Due process of the law is enshrined in both the United States and Missouri constitutions, U.S. Const. amend. V ; U.S. Const. amend XIV, Sec. 1 ; Mo. Const. art. I, Sec. 10. Due process of the law requires that each court have personal jurisdiction over a defendant before a judgment is valid. See Bueneman, 52 S.W.3d at 58. Personal jurisdiction is a legal concept designating when the court has control over a defendant and the ability to render a valid judgment. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Courts recognize two categories of personal jurisdiction: general and specific. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-4, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). Here, Ristesund abandons any argument premised upon general personal jurisdiction and argues only that Missouri has specific personal jurisdiction over Defendants. Missouri courts may exercise specific personal jurisdiction over a defendant for claims arising out of, or relating to, the defendant’s activities in Missouri covered by the long-arm statute. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ; Section 506.500 RSMo (2016). In addition, Missouri requires plaintiffs to prove that the defendant has sufficient minimum contacts with Missouri as a prerequisite for asserting personal jurisdiction. Mello v. Giliberto, 73 S.W.3d 669, 676 (Mo. App. E.D. 2002) (citing Conway v. Royalite Plastics. Ltd., 12 S.W.3d 314, 318 (Mo. banc. 2000) ).

Although BMS was decided after her trial was concluded and while her appeal was pending, Ristesund concedes that BMS controls our analysis of personal jurisdiction in this appeal. 137 S.Ct. at 1773. In BMS, the U.S. Supreme Court held that a non-resident plaintiff may not establish personal jurisdiction simply by joining his or her claims to a resident’s pleading. Id. at 1781. BMS requires that each plaintiff independently establish a basis for personal jurisdiction. Id. Ristesund agrees that, under BMS, the trial court lacked personal jurisdiction over Defendants. The sole issue remaining is whether we simply vacate the trial court’s judgment, or vacate the judgment and remand for a new trial.

Ristesund alleges that State ex rel. Bayer Corp. v. Moriarty exemplifies a post- BMS case where the Supreme Court of Missouri permitted the plaintiffs to present additional evidence to the circuit court for the purpose of establishing personal jurisdiction over the defendants in accord with the standards announced in BMS. See 536 S.W.3d 227 (Mo. 2017). Bayer involved a multi-plaintiff suit against an out-of-state corporation. Id. at 229, The defendant challenged, via writ, the circuit court’s ruling denying its motion to dismiss alleging that the non-resident plaintiffs could not prove that Missouri had personal jurisdiction over the defendant. Id. The plaintiffs argued that Missouri had general jurisdiction over the defendant because the defendant was registered to conduct business in Missouri. Id. at 230. Additionally, the plaintiffs contended that Missouri had specific jurisdiction over the defendant because the non-resident plaintiffs had joined their claims with the similar claims of resident plaintiffs. Id.

The Supreme Court of Missouri held that Missouri lacked both general and specific personal jurisdiction over the defendant. Id. at 234. Specifically, the Supreme Court noted that "[u]tilizing ‘settled principles regarding specific jurisdiction,’ [ BMS ] reaffirms Norfolk’s holding that [the p]laintiff’s theory here, which relies on other plaintiffs' experiences in Missouri as a predicate for all claims by anyone suffering the same injury, must be rejected." Id. (citing BMS, 137 S.Ct. at 1781 ; State ex rel. Norfolk S. Ry. v. Dolan, 512 S.W.3d 41, 46 (Mo. banc 2017) ). The Bayer plaintiffs conceded that Missouri lacked personal jurisdiction, but requested additional time to pursue a broader jurisdictional argument that they intended to assert in a future amended petition. Id. Because the amended petition was not then before the circuit court, the Supreme Court determined that the plaintiffs' new jurisdictional theories were outside the scope of the writ petition. Id. at 235. The Supreme Court then directed the motion court to vacate its order overruling the motion to dismiss for lack of personal jurisdiction, and consider granting plaintiffs leave to file the amended petition. Id. Ristesund reasons that fairness requires the same remedy be made available to her.

Ristesund’s reliance on Bayer is unavailing. First, although Bayer addressed the effect of BMS on a pending claim, the issue of personal jurisdiction was before the Supreme Court on an interlocutory writ, not a direct appeal. This differing procedural posture is critical because, unlike the circumstances here, the underlying litigation in Bayer remained pending before the trial court at the time of the Supreme Court’s ruling. Id. at 229, 234....