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State ex rel. Johnson v. Burlison

Supreme Court of Missouri, En Banc

February 13, 2019

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.

         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 Swarm, 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 Swarm 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 1992) ("Simply joining the two separate causes of action in a single petition does not create venue over both actions.").[5]

         Absent joinder of Blaes' claims to those made by other plaintiffs named in the petition, venue for Blaes' claims is only proper in St. Louis County. Section 508.010.4 provides, "notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action." (Emphasis added). This plain language of § 508.010.4 establishes proper venue for Blaes' claims in St. Louis County, where his wife was first injured.[6] In every count and every claim brought against Relators by Blaes, Blaes alleges his wife was first injured in St. Louis County. Pursuant to § 508.010.4, venue is only proper in St. Louis County for Blaes' independent, separate claims against Relators, and joinder of his claims in the petition with the other plaintiffs' claims as authorized by Rule 52.05(a) cannot establish venue in St. Louis city or any other county in Missouri.[7] To hold otherwise would mean, contrary to the express provisions of Rule 51.01, venue would "be established by means of Rule 52.05(a) when it would not have existed without such joinder." Turnbough, 589 S.W.2d at 292.[8]

         Unconvincingly, Blaes claims Turnbough is no longer valid law, relying on State ex rel. Kinsey v. Wilkins, 394 S.W.3d 446 (Mo. App. 2013). In Kinsey, the plaintiff was involved in two automobile accidents in two different counties, sustaining injuries to the same parts of his body in the separate accidents. Id. at 447-48. The plaintiff brought suit in a single claim against the separate defendants who operated the motor vehicles in the two accidents. Id. at 448. In his petition, the plaintiff sought damages for the "indivisible injuries" that first occurred in Greene County where the first accident occurred. Id. The court of appeals held venue was proper in Greene County because "[s]ection 508.010.4 confers venue for separate, yet successive automobile accidents occurring in different counties, in the county of first injury." Id. at 453.

         The court of appeals in Kinsey determined venue is only proper where the plaintiff is first injured when the plaintiff sustains successive injuries.[9] The ruling in Kinsey, however, does not disturb the central holding in Turnbough that joinder of separate claims cannot establish venue for the joined claims-even assuming joinder of the separate claims are authorized and proper under Rule 52.05(a). Turnbough, 589 S.W.2d at 291-92. Unlike the facts in Turnbough, it was the venue statute, § 508.010.4, and not joinder pursuant to Rule 52.05(a), that established venue for the claims in Kinsey. Kinsey, 394 S.W.3d at 453. Furthermore, the facts in this case are distinguishable from Kinsey. It is undisputed Blaes' wife was first injured in St. Louis County, where § 508.010.4 establishes venue, and the only basis for venue in St. Louis city is joinder of Blaes' claims with Swarm's individual, separate claims pursuant to Rule 52.05(a). This is a clear and direct violation of the express language of Rule 51.01 and the holding in Turnbough and is very different from the facts and circumstances found in Kinsey.

         Blaes also attempts to distinguish Turnbough because the separate claims joined in this case were brought by multiple plaintiffs against a single defendant rather than a single plaintiff against multiple defendants. While Turnbough involved the joinder of separate claims brought by a single plaintiff against multiple defendants, it is the joinder of separate claims, not parties, that cannot extend or create venue. Turnbough, 589 S.W.2d at 292. The holding in Turnbough is premised on Rule 51.01, which states the rules of civil procedure shall not be construed to extend "the venue of civil actions therein." Id. Whether joinder is justified by Rule 52.05 (parties), Rule 55.06 (claims), or any other court rule, Rule 51.01 prohibits extending venue, beyond statutory venue constraints, pursuant to any of the Missouri Rules of Civil Procedure, and it does not matter if the separate claims were brought by multiple plaintiffs against a single defendant, a single plaintiff against multiple defendants, or even a single plaintiff against a single defendant.[10]

         What Rule 51.01 and the holding in Turnbough make clear is joinder of Blaes' claims with the other claims alleged in the petition cannot extend venue to a county where Blaes' claims could not otherwise be brought and pursued.[11] Because Blaes' wife was first injured in St. Louis County, § 508.010.4 dictates the proper venue for Blaes' claims is St. Louis County. The city of St. Louis is an improper venue for Blaes to pursue his claims. "[W]hen venue is improper, the circuit court has a 'ministerial duty' to transfer the case to a county where venue is proper." Heartland, 500 S.W.3d at 243.

         For these reasons, the preliminary writs of prohibition are made permanent and the circuit court shall take no further action other than severing Blaes' claims and transferring them to the proper venue in St. Louis County.

          Russell, Breckenridge and Stith, JJ., concur;

          Fischer, C.J., concurs in opinion of Wilson, J

         DISSENTING OPINION

          Draper, J., dissents

         I respectfully dissent. Rather than resolve the issues presented, I believe the principal opinion wholly circumvents the procedural posture of these cases and disregards the actual arguments Relators presented to issue a venue ruling. Because I believe the designation of Michael Blaes' (hereinafter, "Blaes") claims for a separate trial did not constitute a severance requiring reevaluation of joinder and venue prior to his separate trial, contrary to the concurrence in Barron v. Abbott Laboratories, Inc., 529 S.W.3d 795 (Mo. banc 2017), I would hold the circuit court did not abuse its discretion in overruling Relators' motions to sever Blaes' claims.

         Further, I believe the principal opinion relies on caselaw that is inapposite and predates the 2005 venue amendments to justify its reach to issue a venue holding. Hence, I would hold joinder of Blaes' claims was proper when sought and venue was proper in St. Louis City.

         Application of the Barron Concurrence

         To present venue as the central issue in this case, the principal opinion necessarily disregards the procedural posture and legal premises underlying Relators' writ petitions, which reflected a wholesale reliance on the Barron concurrence. The Barron concurrence highlighted distinctions between motions to sever and transfer venue submitted at the outset of the litigation and motions filed after the circuit court determines each plaintiff's claims are to be tried separately. Barron, 529 S.W.3d at 803. The concurring opinion initially found the plaintiffs' claims were joined properly and venue was proper in St. Louis City because four plaintiffs alleged they were first injured there. Id. at 802. However, the concurring opinion then explained, "Once the trial court has determined that each plaintiff's claims are to be tried separately ... the trial court necessarily has decided there are no further gains in efficiency or expeditiousness to be had from the joinder authorized by Rule 52.05(a)." Id. The concurring opinion stated, once the circuit court sets an individual plaintiff's case for trial, it has "discretion to deny a subsequent or renewed motion to sever only in the rarest of circumstances." Id. The concurring opinion posited, "A decision to sever each plaintiff's claims in a multi-plaintiff case 'removes' a plaintiff for purposes of section 508.012 and, therefore, doing so will require the trial court (on application of a party) to determine the proper venue for the various actions resulting from that severance." Id.

         Following this Court's decision in Barron, the circuit court designated Blaes' claims for a separate trial. Relators filed renewed motions to sever and transfer for improper venue, relying solely on the Barron concurrence to support their arguments.[1] J&J acknowledged at the hearing on its motion to sever it never requested to sever the other plaintiffs whose claims were designated for a separate trial. When the circuit court questioned J&J about this change in approach for Blaes' claims, J&J stated it was following the Barron concurrence.

         In its most recent writ petitions before this Court, Relators argued even if joinder and venue were appropriate when Blaes' claims were included in the first amended petition, the Barron concurrence compels the circuit court to sever Blaes' claims and transfer them to St. Louis County after designating his claims for a separate trial. To that end, Relators argued the circuit court's refusal to sever Blaes' claims and transfer them to St. Louis County constituted an abuse of discretion and violated section 508.010[2] and section 508.012 because venue is proper in St. Louis County, where Blaes' decedent was first injured.

         The principal opinion does not devote a single word to the Barron concurrence and steadfastly ignores Relators' legal arguments. The principal opinion's reach to bypass the Barron concurrence quagmire is understandable. Parsing the errant roadmap provided by the Barron concurrence makes it virtually impossible for the principal opinion to reach its result for several reasons.

         First, by acknowledging Relators' actual legal arguments grounded in the Barron concurrence, the principal opinion would have to determine whether a concurring opinion's analysis should be adopted as a majority view. "Except on matters showing a concurrence of a majority of the members of the court no rule or precedent binding in subsequent cases was thereby established." Canary Taxicab Co. v. Terminal Ry. Ass'n of St. Louis, 294 S.W. 88, 92 (Mo. banc 1927). Second, the principal opinion would have to determine whether the Barron concurrence's analysis is legally sound. I believe the Barron concurrence unnecessarily complicated an already complex and evolving area of the law, as will be discussed below. Relators' claims are before this Court only because they relied on the Barron concurrence as a basis to relitigate severance, joinder, and venue fox the fifth time, hence fomenting these claims. Finally, assuming arguendo, the principal opinion adopted the Barron concurrence analysis and determined the analysis was legally sound, an examination of Relators' motion demonstrates they failed to plead sufficient facts even to be entitled to relief as posited by the Barron concurrence.

         Because all three of these hurdles are insurmountable, one can understand the principal opinion's preference to take no notice of the pleadings as presented and focus instead on venue. However, because this Court should not act as an advocate for the parties and, instead, address the issues as presented, a discussion of the actual arguments Relators raise as they relate to the Barron concurrence is warranted.

         The Barron Concurrence, Designation for Separate Trial, and Severance

         Relators' arguments are based on the premise that, once Blaes' claims were designated for a separate trial, his case was severed for all practical purposes because there are "no further gains in efficiency or expeditiousness to be had" as stated in the Barron concurrence. Barron, 529 S.W.3d at 803. The distinction between ...


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