STATE ex rel. JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER INC., Relators,
THE HONORABLE REX M. BURLISON, Respondent. and STATE ex rel. IMERYS TALC AMERICA, INC., Relator,
THE HONORABLE REX M. BURLISON, Respondent.
PROCEEDING IN PROHIBITION
BRENT POWELL, JUDGE.
& 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.
and Procedural History
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.
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.
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.
joined the Swann action in May 2016, when he was named as a
plaintiff in the first amended petition. 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.
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.
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.
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
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
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.
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
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.
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. 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,  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.
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." 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
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. 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. 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.
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.
court of appeals in Kinsey determined venue is only
proper where the plaintiff is first injured when the
plaintiff sustains successive injuries. 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.
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
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. 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.
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
Draper, J., dissents
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.
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.
of the Barron Concurrence
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."
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. 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.
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 and section 508.012 because venue is
proper in St. Louis County, where Blaes' decedent was
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
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.
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
Barron Concurrence, Designation for Separate Trial, and
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