STATE ex rel. BAYER CORPORATION, BAYER HEALTHCARE LLC, BAYER ESSURE INC., and BAYER HEALTHCARE PHARMACEUTICALS, INC., Relators,
HONORABLE JOAN L. MORIARTY, Respondent.
ORIGINAL PROCEEDING IN PROHIBITION
DENVIR STITH, JUDGE
Corporation, Bayer Healthcare LLC, Bayer Essure Inc., and
Bayer Healthcare Pharmaceuticals Inc., (collectively,
"Bayer"), seek a writ of prohibition directing the
circuit court to dismiss nonresident Plaintiffs' claims
in a petition alleging personal injuries from Essure, a
female contraceptive device Bayer manufactures and
distributes. Bayer alleges Missouri has no specific personal
jurisdiction over 85 out of 92 Plaintiffs who are
nonresidents of Missouri and who have not alleged their
injury occurred in Missouri. Bayer further alleges Missouri
does not have general jurisdiction as Bayer is neither
incorporated in nor has its principal place of business here,
and Bayer is not "at home" in Missouri. This Court
agrees the petition did not assert any recognized basis for
personal jurisdiction over Bayer with respect to nonresident
Plaintiffs and vacates the circuit court's order
overruling Bayer's motion to dismiss.
assert the claims of nonresident Plaintiffs should not be
dismissed because nonresident Plaintiffs will seek leave to
file an amended petition asserting an additional basis of
specific jurisdiction over Bayer based on its conduct of
clinical trials and marketing of Essure in Missouri.
Plaintiffs allege they also will seek jurisdictional
discovery on these issues. Bayer counters these allegations
are equally without merit to those in the initial petition as
the proposed amended allegations simply will seek to exercise
general jurisdiction under another name and, therefore, ask
the circuit court be directed to grant the motion to dismiss.
Bayer further asserts the proposed discovery is abusive.
Court's preliminary writ extended solely to the circuit
court's overruling of Bayer's motion to dismiss. The
circuit court did not have the proposed amended petition
before it when it made that ruling. The circuit court's
order overruling the motion to dismiss, therefore, could not
have been based on claims made in a petition not yet filed or
on grounds for jurisdiction not yet proposed. It is for the
circuit court in the first instance to consider whether the
amended petition provides a basis for specific jurisdiction
and to evaluate whether the requested discovery is necessary,
as well as whether and what sort of a protective order is
appropriate as to the nature and extent of the discovery.
without addressing the merits of Plaintiffs' proposed
amended petition or proposed discovery or Bayer's
assertions as to the merits of these matters, this Court
makes its preliminary writ permanent and directs the circuit
court to vacate its order overruling the motion to dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
August 13, 2016, Plaintiffs initiated an action against Bayer
in the St. Louis circuit court to recover damages for
personal injuries they allegedly experienced from their use
of Essure, a medical device Bayer manufactures and
distributes. Of the 92 Plaintiffs, only seven are Missouri
residents. The remaining 85 Plaintiffs are not Missouri
residents and do not allege they used Essure in this state or
were injured in Missouri. Moreover, none of the Bayer
defendants is incorporated in or has its principal place of
business in Missouri. Bayer is also not "at home"
moved to dismiss nonresident Plaintiffs' claims or,
alternatively, to sever and transfer those claims to
appropriate venues, contending Bayer is not subject to
personal jurisdiction in Missouri with respect to nonresident
Plaintiffs. Bayer also argued Plaintiffs' claims are
preempted under the Medical Device Amendments of 1976, 21
U.S.C. sections 36Ok(a) and 337(a), to the Federal Food,
Drug, and Cosmetic Act (FDCA), 21 U.S.C. section 301 et seq.
opposition to Bayer's motion to dismiss, nonresident
Plaintiffs argued they had specific and general jurisdiction
over Bayer on the grounds stated in their original petition,
including that Bayer is subject to "both general and
specific personal jurisdiction" in Missouri because
Bayer "consented to jurisdiction in the State by way of
registering to do business therein, " "engaged in
substantial business activities in the State, "
"conducted business in Missouri, " "derived
substantial revenue in Missouri by marketing Essure to
women" in Missouri, and allegedly "committed torts
in whole or in part against Plaintiffs in Missouri."
They further argued in their response to the motion to
dismiss that Bayer is subject to "piggyback"
specific jurisdiction with respect to nonresident
Plaintiffs' claims because "Bayer does not challenge
personal jurisdiction as to the Missouri Plaintiffs'
claims" and "the non-Missouri Plaintiffs alleged
[they] were implanted with the same product the Defendants
marketed and sold in Missouri and were injured by the same
conduct allegedly injuring the Missouri Plaintiffs."
circuit court overruled Bayer's motion to dismiss in
December 2016 on the ground Bayer "is present or has
consented to jurisdiction" in Missouri because "[a]
corporation has long been considered 'present' within
the state when its agent is served with process in the
state." In response to the circuit court's order,
Bayer sought a writ of prohibition in the court of appeals,
which was denied. Bayer then sought a writ of prohibition
from this Court. This Court issued its preliminary writ in
July 2017, ordering the circuit court to show cause "why
a writ of prohibition should not issue prohibiting [it] from
doing anything other than vacat[ing] the December 20, 2016,
order" that had overruled Bayer's motion to dismiss.
STANDARD OF REVIEW
Court has discretion to issue and determine original remedial
writs. Mo. Const, art. V, §4.1.
"Prohibition is an original proceeding brought to
confine a lower court to the proper exercise of its
jurisdiction." State ex rel. Lebanon Sch. Dist.
R-III v. Winfrey, 183 S.W.3d 232, 234 (Mo. banc 2006).
"The extraordinary remedy of a writ of prohibition is
available: (1) to prevent the usurpation of judicial power
when the trial 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. Norfolk S. Ry. Co.
v. Dolan, 512 S.W.3d 41, 45 (Mo. banc 2017),
quoting, State ex rel. Mo. Pub. Def. Comm'n v.
Waters, 370 S.W.3d 592, 603 (Mo. banc 2012).
Therefore, "[prohibition is the proper remedy
to prevent further action of the trial court
where personal jurisdiction of the defendant is
lacking." Id., quoting, State ex
rel. William RanniAssocs., Inc. v. Hartenbach, 742
S.W.2d 134, 137 (Mo. banc 1987). "However,
prohibition is only proper 'when usurpation of
jurisdiction... is clearly
evident.'" Id., quoting, State ex rel.
Tarrasch v. Crow, 622 S.W.2d 928, 937 (Mo. banc 1981).
THE ORIGINAI PETITION DOES NOT STA TE A BASIS FOR PERSONAI
JURISDICTION OVER BAYER WITH RESPECT TO NONRESIDENT
jurisdiction refers quite simply to the power of a court to
require aperson to respond to a legal
proceeding that may affect the person's rights or
interests."J.C.W. ex rel. Webb v.
Wyciskalla,275 S.W.3d 249, 253 (Mo. banc 2009). It
is a due process requirement limiting the
power of courts over litigants. Id. "The basis
of a court's personal jurisdiction over a
corporation can be general-that is, all-purposejurisdiction - or it can be specific - that is,
512 S.W.3d at 46. A "defendant [can also] waive
jurisdictional objections by consenting to personal
jurisdiction." Id. But "[w]hen personal
jurisdiction is contested, it is the plaintiff who
must shoulder the burden of establishing that defendant's