Barron v. Abbott Labs., Inc., SC 96151.

• Decision Date: 12 September 2017
• Docket Number: No. SC 96151.,SC 96151.
• Citation: 529 S.W.3d 795
• Parties: Miasia BARRON, et al., Plaintiffs, and Maddison Schmidt, by next friends, Garry Schmidt and Tammy Schmidt, Respondents, v. ABBOTT LABORATORIES, INC., Appellant.
• Court: Missouri Supreme Court

529 S.W.3d 795

Miasia BARRON, et al., Plaintiffs,andMaddison Schmidt, by next friends, Garry Schmidt and Tammy Schmidt, Respondents,

v.ABBOTT LABORATORIES, INC., Appellant.

No. SC 96151.

Supreme Court of Missouri, en banc.

Opinion issued September 12, 2017

Rehearing Denied October 31, 2017

Abbott was represented by William Ray Price Jr. of Armstrong Teasdale LLP in St. Louis, (314) 621-5070; Paul F. Strain and Stephen E. Marshall of Venable LLP in Baltimore, Maryland, (410) 244-7400; and Dan H. Ball, K. Lee Marshall, Stefan A. Mallen and Stefanie Rothermel of Bryan Cave in St. Louis, (314) 259-2000.

Schmidt was represented by Edward D. Robertson Jr., Anthony L. DeWitt and Mary D. Winter of Bartimus, Frickleton and Robertson PC in Jefferson City, (573) 659-4454; John T. Boudas, Sejal Brahmbhatt and Margot G. Trevino of Williams Kherkher Hart Boundas LLP in Houston, Texas, (713) 230-2200; Douglas Dowd and William T. Dowd of Dowd & Dowd PC in St. Louis, (314) 621-2500; and John Driscoll and Christopher J. Quinn of The Driscoll Firm PC in St. Louis, (314) 932-3232.

Several organizations filed briefs as friends of the Court. The Pharmaceutical Research and Manufacturers of America was represented by Michael X. Imbroscio and Paul W. Schmidt of Covington & Burling LLP in Washington, D.C., (202) 662-6000; and Bart C. Sullivan of Fox Galvin LLC in St. Louis, (314) 588-7000. The St. Louis Regional Chamber, The Chamber of Commerce of the United States of America and the National Association of Manufacturers were represented by Robert J. Wagner of Thompson Coburn LLP in St. Louis, (314) 552-6000.

W. Brent Powell, Judge

Abbott Laboratories, Inc., appeals the circuit court's judgment awarding Maddison Schmidt $15 million in compensatory damages and $23 million in punitive damages for her personal injury claim. Abbott argues the circuit court erred in overruling: (1) its pretrial motion to transfer venue; (2) its pretrial motion to sever Schmidt's claim from other plaintiffs' claims; (3) its motions for directed verdict and judgment notwithstanding the verdict on Schmidt's failure-to-warn claim; and (4) its motions for directed verdict and judgment notwithstanding the verdict on Schmidt's demand for punitive damages. Because Abbott received a fair trial, the circuit court's judgment is affirmed.

I. Factual and Procedural History

Schmidt was born with spina bifida

and other birth defects. She was born and resides in Minnesota. Her mother ingested Depakote, an antiepileptic drug manufactured and marketed by Abbott, while Schmidt was in utero. Her mother ingested the Depakote in Minnesota. Abbott's company headquarters are in Illinois. Despite this lack of connection to Missouri, Schmidt joined with four Missouri plaintiffs and 19 other non-Missouri plaintiffs to file a single action against Abbott in the circuit court of the city of St. Louis. Each plaintiff alleged birth defects from in utero exposure to Depakote and sought both compensatory and punitive damages.¹ Abbott moved to sever the plaintiffs' individual claims, arguing they should not have been joined together in a single action. Abbott also moved to transfer the non-Missouri plaintiffs' claims to the circuit court of St. Louis County, which Abbott argued was the proper venue for these plaintiffs.² After the circuit court overruled Abbott's motions, Abbott raised its venue and joinder arguments in a petition for a writ of mandamus or, alternatively, a writ of prohibition. Both the court of appeals and this Court denied Abbott's writ petition without opinion.

The circuit court then ordered each side to nominate plaintiffs for separate, individual trials, though all the plaintiffs' claims remained joined in one action. Schmidt was nominated by the plaintiffs' counsel, and a jury trial was held solely on Schmidt's claims without severing the other plaintiffs' claim. Schmidt advanced a failure-to-warn theory contending Depakote

's label did not adequately warn of the risk of birth defects posed by the drug. At the close of Schmidt's evidence and at the close of all evidence, Abbott moved for a directed verdict on both Schmidt's failure-to-warn claim and her demand for punitive damages. The circuit court overruled Abbott's motions. The jury found in Schmidt's favor and awarded her $15 million in compensatory damages and $23 million in punitive damages. Abbott then moved for judgment notwithstanding the verdict or, alternatively, a new trial, and renewed the arguments it made for a directed verdict, as well as its venue and joinder arguments. The circuit court overruled Abbott's motion and entered judgment in accordance with the jury's verdict.³ Abbott appealed and, after opinion, the court of appeals transferred the case to this Court pursuant to article V, § 10 of the Missouri Constitution.

II. Venue and Joinder

In Point I, Abbott argues the circuit court erred in overruling its pretrial motion to transfer venue of the non-Missouri plaintiffs' claims, which included Schmidt's claim. Abbott argues, pursuant to § 508.010.5, RSMo Supp. 2013, the proper venue for Schmidt's claim is St. Louis County and the joinder of Missouri plaintiffs with Schmidt's claim could not be used to make venue proper in the city of St. Louis. In Point II, Abbott argues the circuit court erred in overruling its pretrial motion to sever all individual plaintiffs' claims because joinder of the claims was improper pursuant to Rule 52.05. Abbott claims this errant ruling resulted in improper venue in the city of St. Louis. Abbott's first two points on appeal, therefore, contend the circuit court's errors resulted in Schmidt's claim being tried in the city of St. Louis, rather than St. Louis County.

Even assuming the circuit court erred by either failing to transfer venue or failing to sever the claims, an error does not warrant reversal on appeal unless the error results in prejudice. Dieser v. St. Anthony's Med. Ctr., 498 S.W.3d 419, 435-36 (Mo. banc 2016) ; Lewis v. Wahl, 842 S.W.2d 82, 84-85 (Mo. banc 1992). Rule 84.13(b) provides: "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Despite this clear mandate of Rule 84.13(b), Abbott insists it is not required to show prejudice, relying on this Court's decision in Igoe v. Department of Labor and Industrial Relations , 152 S.W.3d 284 (Mo. banc 2005).

In Igoe , this Court reversed a judgment based on the circuit court's error in failing to transfer venue, but it did not discuss whether the error resulted in prejudice. See id. at 288–89. This silence should not be inferred as an implicit holding that no prejudice is required when error results in improper venue. Such a holding would be contrary to Rule 84.13(b), and would be akin to treating improper venue as a jurisdictional defect—which it certainly is not.⁴ See State ex rel. DePaul Health Ctr. v. Mummert , 870 S.W.2d 820, 822 (Mo. banc 1994) (differentiating between venue and personal jurisdiction); see also J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249, 253-54 (Mo. banc 2009) (explaining that errors in complying with a statute are not jurisdictional in nature). The circuit court of the city of St. Louis—even if it were the improper venue—had jurisdiction to enter a judgment against Abbott, and its failure to transfer venue or sever the claims is like any other alleged non-jurisdictional error and is subject to Rule 84.13(b). See In re Marriage of Hendrix , 183 S.W.3d 582, 590 (Mo. banc 2006).

While maintaining its position that prejudice is not required, Abbott also argues it was prejudiced by the circuit court's failure to transfer venue or sever the claims because the city of St. Louis is a more favorable venue to plaintiffs than St. Louis County. Essentially, Abbott argues the city of St. Louis is biased in general but fails to point to any specific event or action in the case or trial to support this generality. Abbott fails to identify any particular ruling by the circuit court suggesting bias or any particular juror who should have been disqualified for bias. This claim of prejudice will not suffice.

While Abbott may have preferred a trial in St. Louis County, it cannot establish the trial in the city of St. Louis was unfair. This Court declines to hold Abbott was prejudiced simply because a fair judge and jury in the city of St. Louis rendered the judgment and verdict rather than a fair judge and jury in St. Louis County.⁵ Because Abbott fails to satisfy the prejudice requirement, this Court need not decide whether the circuit court erred in either failing to transfer venue or failing to sever the claims. Points I and II are denied.⁶

III. Failure to Warn

In Point III, Abbott argues the circuit court erred in overruling its motions for directed verdict and judgment notwithstanding the verdict on Schmidt's failure-to-warn claim because the Depakote

label provided adequate warning as a matter of Minnesota law.⁷ "The standard of review for failures to sustain motions for directed verdict and for JNOV is essentially the same." Fleshner v. Pepose Vision Inst., P.C. , 304 S.W.3d 81, 95 (Mo. banc 2010). "This Court must determine whether the plaintiff presented a submissible case by offering evidence to support every element necessary for liability." Id. "Evidence is viewed in the light most favorable to the jury's verdict, giving the plaintiff all reasonable inferences and disregarding all conflicting evidence and inferences." Id.

"In general, a supplier has a duty to warn end users of a dangerous product if it is reasonably foreseeable that an injury could occur in its use." Gray v. Badger Mining Corp. , 676 N.W.2d 268, 274 (Minn. 2004). "The duty to warn includes the duty to give adequate instructions for the safe use of the product." Id. "To be legally adequate, the warning should (1) attract the attention of those that the product could harm; (2) explain the mechanism and...