State ex rel. Johnson & Johnson v. Burlison

• Decision Date: 13 February 2019
• Docket Number: No. SC 96710,No. SC 96704,SC 96704
• Citation: 567 S.W.3d 168
• Court: Missouri Supreme Court
• Parties: STATE EX REL. JOHNSON & JOHNSON and Johnson & Johnson Consumer Inc., Relators, v. The Honorable Rex M. BURLISON, Respondent. and State ex rel. Imerys Talc America, Inc., Relator, v. The Honorable Rex M. Burlison, Respondent.

567 S.W.3d 168

STATE EX REL. JOHNSON & JOHNSON and Johnson & Johnson Consumer Inc., Relators,

v.The Honorable Rex M. BURLISON, Respondent.andState ex rel. Imerys Talc America, Inc., Relator,

v.The Honorable Rex M. Burlison, Respondent.

No. SC 96704

No. SC 96710

Supreme Court of Missouri, en banc.

Opinion issued February 13, 2019

ORIGINAL PROCEEDING IN PROHIBITION

W. Brent Powell, Judge

Johnson & Johnson, Johnson & Johnson Consumer Inc. (collectively, "J&J"), and Imerys Talc America, Inc. ("Imerys" or, collectively, "Relators") seek writs of prohibition to prevent the circuit court from taking any further action other than to sever Michael Blaes' claims from the separate claims made by multiple plaintiffs in the underlying case pending in St. Louis City and to transfer Blaes' claims to St. Louis County, where Blaes' wife was first injured. This Court holds the circuit court abused its discretion in overruling Relators' motions to sever Blaes' claims and transfer them to St. Louis County, where venue is proper. The preliminary writs of prohibition are made permanent.

Factual and Procedural History

J&J manufactures and sells personal care products, including body powders containing talc. J&J’s corporate headquarters are in New Jersey, and its registered agent is in St. Louis County. Imerys is a Delaware corporation that mines and supplies raw talc for use in J&J products, and its registered agent is in Cole County.

In July 2014, St. Louis city resident Valerie Swann, along with dozens of non-Missouri plaintiffs, filed suit against Relators in St. Louis city alleging they, or their decedents, developed ovarian cancer

from using talc-based products J&J manufactured and sold with talc provided by Imerys. The plaintiffs' petition asserted theories of strict liability for failure to warn, negligence, breach of express and implied warranty, civil conspiracy, concert of action, negligent misrepresentation, fraud, and wrongful death. The plaintiffs alleged their separate claims were a direct and proximate result of Relators' negligent, willful, and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling and/or sale of the products known as Johnson & Johnson Baby Powder and Shower to Shower.

Relators filed motions to sever and to transfer venue. Relators argued because Swann was the only St. Louis city resident plaintiff, the remaining non-Missouri plaintiffs' claims were joined improperly, and their separate claims should be severed and transferred to St. Louis County, where J&J’s registered agent is located, or to their home states. The circuit court overruled the motions, finding all of the plaintiffs' claims were joined properly pursuant to Rule 52.05(a) and severance was not required. The circuit court further found venue was appropriate in St. Louis city because Swann alleged she was first injured there.

Blaes joined the Swann action in May 2016, when he was named as a plaintiff in the first amended petition.¹ Blaes alleged his wife purchased and applied Relators' products in St. Louis County, developed ovarian cancer

, and subsequently died. Relators renewed their motions to sever and transfer venue and reincorporated their previous arguments. The circuit court overruled these motions.

The Swann petition was amended twice more. Each time the petition was amended, Relators renewed and reincorporated their objections to joinder and venue. The circuit court overruled all of these motions.

In August 2017, the plaintiffs were granted leave to file a fourth amended petition. Shortly thereafter, this Court issued its opinion in Barron v. Abbott Laboratories, Inc. , 529 S.W.3d 795, 797 (Mo. banc 2017). In Barron , multiple plaintiffs, many non-Missourians, filed a single claim against Abbott Laboratories, alleging in utero exposure to Depakote, an antiepileptic drug manufactured and marketed by Abbott, caused birth defects. Abbott challenged joinder and venue, seeking to sever all of the plaintiffs' individual claims, and the circuit court overruled Abbott’s motion. The first non-Missouri plaintiff, whose claim was designated for a separate trial but not severed from the other plaintiffs, received a multi-million-dollar jury verdict. Id. at 797-98.

On appeal, Abbott argued the circuit court erred in overruling its pretrial motion to sever and transfer venue of all the separate, individual claims because joinder and venue of the separate claims was improper for the non-Missouri plaintiffs. Id. at 798. This Court affirmed the circuit court’s judgment. The Court held, even if the circuit court erred in failing to sever or transfer the individual claims, this error did not require reversal because Abbott could not demonstrate prejudice pursuant to Rule 84.13(b). Id. at 798-99. The Court surmised, "Perhaps the difficulty in showing prejudice on appeal is why these types of claims are better raised in the pretrial writ context, which requires no showing of prejudice." Id. at 799 n.6.

Following the Barron decision, the circuit court designated Blaes' claims for a separate trial and Relators renewed their motions to sever and transfer for improper venue. The circuit court overruled Relators' motions. Relators sought writs of prohibition from the court of appeals, which denied relief.

Relators then sought writs of prohibition from this Court arguing venue in St. Louis City is improper and seeking to compel the circuit court to transfer Blaes' separate claims to the proper venue in St. Louis County. On October 13, 2017, this Court issued preliminary writs of prohibition and commanded the circuit court to take no further action in this matter, other than to show cause as to the reasons this writ should not issue, until ordered to do so by this Court.

Standard of Review

This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4. "A writ of prohibition is appropriate: (1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted." State ex rel. Strauser v. Martinez , 416 S.W.3d 798, 801 (Mo. banc 2014). This Court may issue an extraordinary writ to correct improper rulings on motions to sever. State ex rel. Nixon v. Dally , 248 S.W.3d 615, 619 (Mo. banc 2008). "It is well-established that this Court accepts the use of an extraordinary writ to correct improper venue decisions of the circuit court before trial and judgment." State ex rel. Heartland Title Servs., Inc. v. Harrell , 500 S.W.3d 239, 241 (Mo. banc 2016) (quoting State ex rel. Kan. City S. Ry. Co. v. Nixon , 282 S.W.3d 363, 365 (Mo. banc 2009) ). This Court may issue a writ directing the circuit court to "transfer a case to the proper venue, particularly when issuance of the writ is necessary to prevent unnecessary, inconvenient and expensive litigation." Kan. City S. Ry. Co., 282 S.W.3d at 365.

Argument

The central issue in this case is whether permissive joinder of separate claims may extend venue to a county when, absent joinder, venue in that county would not otherwise be proper for each claim. It cannot and does not. This is evidenced not only by our Court’s rules but also nearly 40 years of this Court’s precedent.

Relators contend venue in St. Louis city is improper and seek writs prohibiting the circuit court from taking any further action in this case other than severing Blaes' claims and transferring them to the proper venue.² In response, Blaes contends venue for his separate and independent claims may be pursued in St. Louis city because his claims are properly joined with other plaintiffs who were alleged to be first injured inside and outside Missouri. Blaes concludes the governing venue statute, § 508.010,³ does not dictate one specific venue in circumstances in which multiple joined plaintiffs claim their injuries occurred both inside and outside Missouri, causing venue under the facts of this case to be proper in both St. Louis county and city. Therefore, Blaes contends he and the other plaintiffs are able to choose between the city and the county and control where venue lies. However, this position is contingent on the joinder of Blaes' claims with those of the other plaintiffs and, therefore, conflicts with Rule 51.01 and State ex rel. Turnbough v. Gaertner , 589 S.W.2d 290, 292 (Mo. banc 1979), which held joinder cannot be used to expand venue for separate and discrete claims.

In Turnbough , the plaintiff brought separate personal injury claims against two defendants in St. Louis city. Venue was proper in the city as to the claim against one defendant, but not for the claim against the other defendant. This Court noted, although Rule 52.05(a) allows "two or more separate causes of action" to be joined in a single petition, Rule 51.01 expressly states the rules of civil procedure, including Rule 52.05(a), "shall not be construed to extend or limit the jurisdiction of the Courts of Missouri or the venue of civil actions therein. " Turnbough , 589 S.W.2d at 291-92 (emphasis added). This Court held venue could not "be established by means of Rule 52.05(a) when it would not have existed without such joinder."⁴ Id. This Court has repeatedly reaffirmed the holding in Turnbough and reiterated that joinder cannot be used to extend venue to separate claims. See Heartland , 500 S.W.3d at 242 n.4 ("Each count must pass venue muster."); Dally , 248 S.W.3d at 617 (discussing the bar of permissive joinder as it pertains to venue); State ex rel. BJC Health Sys. v. Neill , 121 S.W.3d 528, 530 (Mo. banc 2003) (describing State ex rel. Allen v. Barker , 581 S.W.2d 818, 827 (Mo. banc 1979), as "incorrectly stating that ‘the question of venue is contingent upon proper joinder’ "); State ex rel. Jinkerson v. Koehr , 826 S.W.2d 346, 348 (Mo. banc ...