Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Honorable Rex
VAN AMBURG, JUDGE.
& Johnson appeals the trial court's judgment after a
jury verdict in favor of the estate of Jacqueline Fox in this
product liability suit. We reverse and vacate the judgment
for lack of personal jurisdiction.
is one of 65 individual plaintiffs in a lawsuit against the
same defendant companies. Defendant Johnson & Johnson
(J&J) is a holding company for over 250 subsidiaries
worldwide. One such subsidiary is Johnson & Johnson
Consumer Companies Inc. (JJCC), which manufactures and sells
personal care products, including body powders containing
talc. Both J&J defendants (collectively J&J) are New
Jersey corporations headquartered in New Jersey. Imerys Talc
America, Inc. f/k/a Luzenac America, Inc. (Imerys), is a
Delaware corporation that mines and supplies raw talc for use
in JJCC products.
the 65 individual plaintiffs are Missouri residents. Tiffany
Hogans is a St. Louis City resident who bought and used
Defendants' products in St. Louis City and later
developed ovarian cancer. Marianne Westerman is a St. Louis
County resident who bought and used
Defendants' products in St. Louis County and later
developed ovarian cancer. Sixty-three other plaintiffs,
including Jacqueline Fox, bought and used Defendants'
products in other states and later developed ovarian cancer;
these non-resident plaintiffs joined their claims to the
Missouri resident plaintiffs' claims in this action
pursuant to Missouri Rule 52.05.
the 65 plaintiffs filed a petition asserting theories of
strict liability for failure to warn, negligence, breach of
express and implied warranty, civil conspiracy, concert of
action, and negligent representation, alleging that
Defendants marketed and sold their talc products knowing that
the products increased consumers' risk of ovarian cancer.
Defendants filed a motion to dismiss the claims of the
non-resident plaintiffs, including Ms. Fox, for lack of
personal jurisdiction. Specifically, Defendants argued that
their activities in Missouri did not give rise to the claims
of the non-residents who purchased and used Defendants'
products elsewhere. The trial court denied Defendants'
motion, reasoning that each non-resident need not establish
an individual basis for jurisdiction so long as a defendant
has sufficient minimum contacts with the state, and
Defendants' commercial activity in Missouri "more
than adequately" satisfied minimum contacts.
trial court also denied Defendants' motion to sever the
plaintiffs' claims but later ordered Fox's case tried
as a single-plaintiff trial. Fox died four months before
trial, and her estate proceeded on her behalf. Given our
disposition here, we need not recite the evidence adduced at
trial but simply note that the jury found J&J liable and
awarded $10 million in compensatory damages and $62 million
in punitive damages. The jury found Imerys not liable.
appeals and asserts twelve points of error, but the first is
dispositive. Specifically, J&J contends that the trial
court erred in exercising personal jurisdiction over J&J
because Fox's claims did not arise out of J&J's
activities in Missouri. In light of the United States Supreme
Court's recent holding in Bristol-Myers Squibb Co. v.
Superior Court of California, 137 S.Ct. 1773 (2017),
J&J's point must be granted on the present record.
Rule 52.05 allows non-residents to join as plaintiffs in an
action by resident plaintiffs when all plaintiffs' claims
arise out of the same transactions or occurrences. Missouri
courts historically have exercised personal jurisdiction over
defendants as to joined non-residents' claims so long as
jurisdiction exists as to the residents' claims.
Consistent with this practice, the trial court determined
that specific personal jurisdiction existed, reasoning that
J&J's alleged conduct satisfied Missouri's
long-arm statute (§506.500) and minimum contacts. In
response to that ruling, J&J petitioned this court for a
writ to prohibit the trial court's exercise of
jurisdiction, and this court denied that petition without
however, while this appeal was pending, the U.S. Supreme
Court issued its decision in Bristol-Meyers Squibb
(BMS), holding that a non-resident plaintiff must
establish an independent basis for specific personal
jurisdiction over the defendant in the state. In
BMS, a group of over 600 plaintiffs, mostly
non-residents, sued BMS in California for injuries allegedly
caused by the drug Plavix. The California courts had rejected
BMS's challenge to personal jurisdiction on the
non-residents' claims, reasoning, similar to the trial
court here, that BMS's extensive contacts in the state
supported jurisdiction, particularly insofar as
non-residents' claims were similar to residents'
claims. The U.S. Supreme Court reversed, holding that
specific personal jurisdiction requires a connection between
the forum state and the specific claims at issue. "When
there is no such connection, specific jurisdiction is lacking
regardless of the extent of a defendant's unconnected
activities in the state." 137 S.Ct. at 1781. The fact
that resident plaintiffs sustained similar injuries does not
support specific jurisdiction as to non-resident claims.
parties agree that BMS is controlling here, but they
disagree on the resulting outcome. Fox requests that we
remand the case to the trial court for further development of
the factual record supporting jurisdiction under the narrower
standard ofBMS heretofore not required in Missouri.
Specifically, Fox seeks to establish that J&J directed
the production, packaging, and distribution of its products
through a Missouri company, Pharma Tech. J&J counters
that Fox is precluded from supplementing the record at this
stage and urges this court to dismiss the case outright with
the parties neglected to brief the issue of retroactivity,
note that several district courts have examined whether to
permit reconsideration of jurisdiction after the U.S. Supreme
Court issued its decision in Daimler AG v. Bauman,134 S.Ct. 746 (2014). In cases where reconsideration was
barred, courts reasoned that Daimler was not new law
but merely a clarification of Goodyear,  or that
defendants waived the challenge to jurisdiction through their
conduct in litigation. In cases where reconsideration was
allowed, courts reasoned that a party cannot be deemed to
have waived challenges that were not yet available, and no
prejudice would result from reconsideration. However, all
cases involved defendants' motions to dismiss and not
plaintiffs' initial burden of proof. Even accepting that
BMS represents a ...