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Dyson v. Bayer Corporation

United States District Court, E.D. Missouri, Eastern Division

January 24, 2018

NEDRA DYSON, et al. Plaintiffs,
BAYER CORPORATION, et al., Defendants,



         A group of 95 plaintiffs filed this products liability lawsuit against defendants Bayer Corporation, Bayer HealthCare LLC, Bayer Essure Inc., and Bayer HealthCare Pharmaceuticals Inc. (collectively, “Bayer”) alleging that Bayer's Essure product caused them harm. Plaintiffs filed their lawsuit in the City of St. Louis, Missouri on August 31, 2017. Defendants removed the matter to this Court on October 16, 2017. Defendants filed a motion to dismiss and a motion to sever on October 23. Shortly thereafter, plaintiffs filed a motion to remand and a motion to stay ruling and briefing on the defendants' motions until after subject matter jurisdiction is addressed. The motion for remand (#18) and motion to stay (#22) have been thoroughly briefed, but plaintiff has not filed responses to the motion to dismiss. Plaintiff has also filed a motion for leave to conduct jurisdictional discovery (#24), which is fully briefed.

         I. Background

         Plaintiffs claim they were injured by a permanent birth control device that is manufactured and distributed by the Bayer defendants. The device --- Essure --- was approved by the Food and Drug Administration (“FDA”) in 2002. The plaintiffs bring fourteen counts including negligence, strict liability, manufacturing defect, fraud, breach of warranties, violation of consumer protection laws, Missouri products liability, violation of the Missouri Merchandising Practices Act, and punitive damages. Of the 95 plaintiffs, only three allege they are citizens of Missouri or had their implant procedure completed in Missouri. Defendants --- which are not Missouri citizens --- removed the case in part[1] on the basis of diversity jurisdiction. The presence of at least some of the 92 non-Missouri plaintiffs defeats this Court's diversity jurisdiction. But defendants, relying on the recent United States Supreme Court opinion Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S.Ct. 1773 (2017) (hereinafter, “BMS”), argue that this Court lacks personal jurisdiction over the claims of the 92 non-Missouri plaintiffs, and that those claims should thus be dismissed. Because there would be complete diversity between the three remaining Missouri plaintiffs and defendants, and because the amount in controversy exceeds $75, 000, defendants contend this Court has jurisdiction over the remaining claims.

         Plaintiffs argue that this Court should not look to personal jurisdiction. Instead, plaintiffs say this Court should recognize it does not have subject matter jurisdiction over this matter and remand the case to St. Louis County. Subject matter jurisdiction, plaintiffs argue, provides a more straightforward analysis. Personal jurisdiction, on the other hand, poses questions that plaintiffs say entitle them to discovery. Plaintiffs contend that the Bayer defendants conducted marketing and clinical trials in St. Louis, Missouri, and that the marketing and clinical trials provide the facts necessary to make a prima facie case of personal jurisdiction.

         Plaintiffs have not responded to the motion to dismiss or motion to sever because they seek a stay of the consideration of personal jurisdiction in favor of resolving the subject matter jurisdiction questions at hand.

         II. Discussion

         Central to all pending motions are matters regarding this Court's jurisdiction. Thus, jurisdiction and related motions will be discussed first below.

         A. Jurisdiction

         “Jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). Here, plaintiffs contend that this Court lacks subject matter jurisdiction over their claims and thus this Court should remand the matter to state court. Defendants argue that the Court has subject matter jurisdiction but not personal jurisdiction over certain claims and that the non-Missouri plaintiffs' claims should be dismissed --- then, defendants say, this Court will have diversity jurisdiction over the remaining claims.

         The question of which to consider first --- personal jurisdiction or subject matter jurisdiction --- can have important consequences. This Court has discretion to consider personal jurisdiction before subject matter jurisdiction where it has “a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question.” Id. at 588.

         Defendants urge the Court to consider personal jurisdiction first, relying heavily upon BMS and Jordan v. Bayer Corp., No. 4:17cv865(CEJ), 2017 WL 3006993 (E.D. Mo. July 14, 2017). In Jordan, this Court addressed a case nearly identical to this one in which plaintiffs brought claims against Bayer defendants related to use of the Essure device. The Court, relying upon Ruhrgas, addressed defendants' personal jurisdiction arguments first and concluded that BMS was dispositive, holding that “there is no personal jurisdiction as to [the non-Missouri-related plaintiffs'[2] claims because there is no ‘connection between the forum and the specific claims at issue.'” Jordan, 2017 WL 3006993, at *4 (quoting BMS, 137 S.Ct. at 1781). Because the 86 non-Missouri-related plaintiffs alleged no “affiliation between the forum and the underlying controversy, ” BMS, 137 S.Ct. at 1780, those claims were dismissed. The Court denied without prejudice the defendants' motion to dismiss for failure to state a claim or federal preemption and allowed the eight remaining plaintiffs to file an amended complaint.

         Notably, the Court's decision in Jordan occurred shortly after BMS was decided.[3]The plaintiffs here have added allegations they say make a prima facie case of personal jurisdiction. Plaintiffs concede that Essure was not implanted in Missouri for the nonresidents, but they contend Bayer engaged in extensive contacts with Missouri during Essure's development: plaintiffs say Bayer created a marketing strategy, created labeling, and obtained FDA approval of Essure in Missouri. Specifically, Missouri was one of eight principal sites in the United States chosen to conduct pre-market clinical trials. The original manufacturer of Essure used Missouri hospitals and contracted with Missouri physicians to serve as clinical investigators. The results of the ensuing studies were used to support the FDA approval process. Plaintiffs allege that defendants made untrue representations and omitted material information to the FDA, plaintiffs, and plaintiffs' physicians by sponsoring biased medical trials. (Petition ¶ 1044.) St. Louis, Missouri was also the first city in the United States to commercially offer the Essure procedure. Furthermore, plaintiffs believe that Missouri was one of the first cities targeted for an aggressive marketing campaign.

         Defendants respond that those additional allegations do not suffice to either make a case for personal jurisdiction or for jurisdictional discovery. Moreover, defendants argue that the personal jurisdiction question remains more straightforward than the question of subject matter jurisdiction. This Court agrees that, despite these new allegations made by plaintiffs, personal jurisdiction remains the more straightforward inquiry. See BMS, 137 S.Ct. at 1781; Jordan, 2017 WL 3006993, at *2; see also State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41(Mo. banc 2017). To address subject matter jurisdiction at this juncture would involve deciding whether non-Missouri plaintiffs had been fraudulently joined or misjoined, which is a notoriously complex issue. See In re Prempro Prods. Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010) (noting that doctrine of fraudulent misjoinder is “novel” and declining to rule on whether to accept or reject it); Filla v. Norfolk S. Ry., 336 F.3d 806, 809 (8th Cir. 2003) (noting that doctrine of fraudulent joinder is “difficult[]” to apply). As shown below, ...

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