Nearly two years ago, Susan Ford Robertson and Thomas B. Weaver spent an hour before the Missouri Supreme Court arguing a case with an unwieldy caption on a seemingly dry-as-dust topic: the proper venue for a lawsuit.
The case was anything but boring.
The Supreme Court’s February 2019 ruling in State ex rel. Johnson & Johnson v. Burlison, issued nearly a year after arguments, was a major win for Robertson and Weaver, Missouri Lawyers Media’s 2020 Lawyers of the Year.
The decision’s immediate effect was modest: a single claim had to move from St. Louis Circuit Court to an adjoining county. The wider effect, however, was to knock out the underpinnings of a series of mass tort cases anchored in St. Louis, and to effectively resolve a long-simmering legislative fight regarding what the venue rules should say.
Weaver, the head of the appellate practice area at Armstrong Teasdale in St. Louis, represented Johnson & Johnson; Robertson, namesake of the appellate-focused Robertson Law Group in Kansas City, represented Imerys Talc America. Together, their clients had been sued by thousands of plaintiffs from across the country on claims that Johnson & Johnson-brand talcum powder had caused ovarian cancer.
The suits seemed endless, and the verdicts were astronomical, ranging from $55 million to $110 million during a two-year period. The companies denied that their products were linked to the plaintiffs’ injuries. But Robertson and Weaver also had raised a more basic defense: that many of the plaintiffs — who lived in other states, who had been injured in other states, who were suing companies based in other states and whose claims often were being heard ahead of those that arose in-state — didn’t have the right to bring their suits in Missouri.
The out-of-state plaintiffs had linked their claims with those of a handful of St. Louis residents with similar injuries — a move that St. Louis judges repeatedly found was permissible under existing court rules on joinder of claims.
But the Supreme Court held that a plaintiff cannot establish venue in the wrong place simply by joining with someone who is in the right place.
“Just as the cart cannot lead the horse, joinder cannot control venue,” Judge W. Brent Powell wrote for the 4-3 court.
Sometimes, Weaver said, it is best to leave policy considerations out of legal arguments. This wasn’t one of those cases.
“Here, certainly in the forefront of the case was that this was a — seismic shift is probably too strong a word, but the impact that the opinion would have on these proceedings would be broad,” he said.
Robertson said the case was significant because it reaffirmed a basic premise: “Venue has always mattered.”
“It was not an empty defense that was thrown out just to complicate cases,” she said, “and it wasn’t just something that was made up.”
Despite the concerns regarding out-of-state plaintiffs, the case that addressed the issue involved a plaintiff from just across the county line. Michael Blaes alleged that his wife’s death from ovarian cancer was caused by Johnson & Johnson-brand talcum powder she purchased in St. Louis County.
Blaes’ suit originally was filed in St. Louis County Circuit Court, but the defendants removed it to federal court. In 2016, shortly after a jury in St. Louis awarded $72 million in a similar talc suit, Blaes dropped the federal suit and consolidated his claims with those in an existing suit in St. Louis, which featured approximately 60 plaintiffs, most of whom were from outside Missouri.
After Blaes’ claim was set to be tried individually, the defendants argued that the case should be severed from that of the other plaintiffs and moved back to St. Louis County. The defendants had made similar arguments in other several previous cases, but the appellate courts repeatedly had turned away the discretionary, mid-case writ appeals without comment.
“They couldn’t wrap their head around it,” Robertson said of her client. “If this is wrong, why can’t we get any relief?”
In 2017, a Supreme Court ruling in a similar mass-tort case illustrated the defendants’ dilemma. In Barron v. Abbott Labs Inc., the court affirmed a $38 million jury verdict for a Minnesota girl who suffered birth defects she alleged were caused by her mother’s use of the anti-seizure drug Depakote. Although the injuries occurred out-of-state, her case was joined with similar claims occurring in St. Louis but was tried separately.
Abbott Labs, which Weaver’s firm also represented, argued that venue had been improper from the get-go. But the court held that even if that were true, the defendant had failed to show that it was prejudiced just because the case was tried in the wrong circuit. A separate opinion in the case noted that such prejudice would be almost impossible to prove, and that the case should have been severed and moved to the correct venue once it was set for a separate trial.
Armed with that suggestion, Robertson and Weaver filed such a request in the Blaes case. It had not yet gone to trial, putting the issue of venue squarely before the court.
Weaver said the theme he emphasized was that joinder was being used to create venue — despite the clear language of the court’s joinder rule, which says it “shall not be construed to extend or limit the jurisdiction of the courts of Missouri, or the venue of civil actions therein.”
“That was a hook,” he said. “It became the basis for the majority’s opinion in the case.”
Robertson said the rules allowing similar claims to be joined never were intended to be used in the way they were in cases such as the talc suits.
“I believe it took the size and complexity of the mass tort cases to bring the issue to the other end of the spectrum,” she said.
Of course, the defendants’ reading of the joinder rules wasn’t uncontested. The plaintiffs in the case argued that the joinder rule’s language didn’t specifically prohibit large groups of similar claims from banding together, and that doing so was more efficient than trying each case alone.
The Johnson & Johnson ruling also featured two dissents, including a separate opinion that said the majority ruling had done “unnecessary violence” to the venue and joinder rules. By requiring every plaintiff to independently establish venue, claims that once could have been filed together will now have to be filed in separate counties, Judge Paul C. Wilson wrote.
Those same concerns echoed in the Missouri Capitol. The ruling came amid a bitter legislative fight about a bill that sought to overhaul the venue and joinder laws to prevent multiplaintiff tort cases from landing in St. Louis. Although the bill still took an all-night debate in the Senate to pass into law, the Supreme Court ruling clearly changed the terms of the debate — to the point that the Johnson & Johnson case is referenced by name in the legislative text.
The full implications of both the ruling and the revised law remain to be seen. Johnson & Johnson was one of a series of recent cases that have put significant procedural hurdles in front of mass tort cases. Most notably, the U.S. Supreme Court in 2017 issued Bristol-Myers Squibb Company v. Superior Court of California, holding that a state court didn’t have specific jurisdiction to hear suits by nonresidents involving conduct that didn’t occur in that state. That ruling has prompted appellate courts to throw out most of the earlier St. Louis verdicts for plaintiffs whose claims arose in other states.
In a short period of time, Weaver said, those rulings “really changed the landscape for the multi-plaintiff mass tort cases in the city.”
Still at issue is a whopping $4.69 billion verdict involving talcum powder issued by a St. Louis jury in July 2018, prior to the Supreme Court’s ruling. It’s not clear how the ruling will apply to the case, which featured 22 plaintiffs whose claims were tried together. An appeal remains pending. (Armstrong Teasdale also is representing Johnson & Johnson in that case; Imerys Talc was dismissed from the case prior to trial and isn’t involved in the appeal.)
Of course, the talcum powder cases haven’t gone away for Missouri plaintiffs whose claims remain viable. One such case went to trial in December, featuring a St. Louis resident who began the case as one of 76 individuals from 28 states. The trial resulted in a defense verdict. And even for out-of-state plaintiffs, it’s always possible that they can plead specific facts that would allow a Missouri court to hear the case.
But at the very least, what was once an obscure issue finally got its day in court.
“It was remarkable,” Robertson said. “We had the entire court, the highest court in the state, captive, rapt, listening, engaging in this highly complicated and desperately needed resolution.”