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Estate of Fox v. Johnson & Johnson

Court of Appeals of Missouri, Eastern District, Third Division

October 17, 2017

ESTATE OF JACQUELINE FOX, Plaintiff/Respondent,
JOHNSON & JOHNSON, et al., Defendants/Appellants.

         Appeal from the Circuit Court of the City of St. Louis Honorable Rex M. Burlison.



         Johnson & 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.


         Ms. Fox 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.

         Two of 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[1] 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.

         Together, 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.

         The 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.

         J&J 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.


         Missouri 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 opinion.[2]

         Subsequently, 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. Id.

         The 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.[3] J&J counters that Fox is precluded from supplementing the record at this stage and urges this court to dismiss the case outright with prejudice.

         Although the parties neglected to brief the issue of retroactivity, [4] we 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, [5] or that defendants waived the challenge to jurisdiction through their conduct in litigation.[6] 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.[7] However, all cases involved defendants' motions to dismiss and not plaintiffs' initial burden of proof. Even accepting that BMS represents a ...

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