United States: Awful Missouri Venue/Joinder Ruling Offers Way Out – Take It!

Last Updated: November 21 2016
Article by James Beck

Even after having read it through twice, we find the result in Barron v. Abbott Laboratories, Inc., ___ S.W.3d ___, 2016 WL 6596091 (Mo. App. Nov. 8, 2016), hard to fathom, and even harder to stomach. For several years after starting the blog, one of our aphorisms was "nothing good ever comes out of Missouri." Then legal developments caused us to retire that slogan. Now we may have to bring it back – maybe.

Barron affirmed a $48 million verdict – concerning birth defects – against the maker of a drug that had a black box warning – about birth defects

[THE DRUG] CAN PRODUCE TERATOGENIC EFFECTS SUCH AS NEURAL TUBE DEFECTS (E.G., SPINA BIFIDA). ACCORDINGLY, THE USE OF [THE DRUG] IN WOMEN OF CHILDBEARING POTENTIAL REQUIRES THAT THE BENEFITS OF ITS USE BE WEIGHED AGAINST THE RISK OF INJURY TO THE FETUS.

Barron, 2016 WL 6596091, at *1.

Astonishingly, this boxed warning, which only the FDA can mandate, was a sufficiently inadequate advisory that the drug could cause birth defects that a St. Louis (City) jury awarded $23 million in punitive damages to the plaintiff, who was from Minnesota.

And those two places – St. Louis City and Minnesota – are as much the problem as the "Show-Me-The-Money State" verdict itself. Barron is a poster child for venue and joinder run amok. First, the underlying action was filed by 24 plaintiffs from all over the country (13 different states), with nothing in common save claiming somewhat similar injuries to different persons from the same drug. Id. at *4. Of course, a couple of plaintiffs were from Missouri (and another presumably from the home state of a defendant), in order to defeat diversity. Id. at *2.

However, Missouri's venue and joinder rules, at least the way that courts like Barron have interpreted them, make no sense and lend themselves to blatant forum shopping and litigation tourism. That is how a Minnesota plaintiff, injured in Minnesota, was able to try a case in St. Louis City, even though neither that plaintiff nor the defendant had anything to do with that venue.

This brew starts with lumping together almost unlimited (except by CAFA's 100-plaintiff "mass action" provision) numbers of plaintiffs who allegedly took the same product and claim the same general category of injury. This sort of polyglot complaint – prohibited in federal court and in almost every other state (we remember the Mississippi Supreme Court doing away with a similar regime) – is allowed under the current construction of Mo. R. Civ. P. 52.05(a), which provides:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.

The first part of this sentence, "the same transaction, occurrence or series of transactions or occurrences," is simply the standard language of Fed. R. Civ. P. 20, which alone does not support joining unrelated plaintiffs simply because they claim similar product-related injuries.

Additional Missouri language, however − beginning with "and" – imposes the requirement that "any question of law or fact common to all of them." As anybody who has ever learned about Venn Diagrams knows, "and" is a limiter, meaning that the resultant universe must share both characteristics. Not in Missouri, however, which seems to treat the "and" clause of Rule 52.05(a) as expansive, requiring only that the "transactions"/"occurrences" "be related by a common question of law or fact." Barron, 2016 WL 6596091, at *3. This is reminiscent of the dumbing down of the commonality requirement in Fed. R. Civ. P. 23, until Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011), put a stop to it. The same "commonalities" that are insufficient to support permissive joinder under other jurisdiction's "transactions"/"occurrences" language are enough in Missouri:

[T]he commonalities among the 24 plaintiffs are, first and foremost, each alleged birth defect injuries from the drug . . ., which their mothers took by prescription during their pregnancies. The plaintiffs alleged Appellant is the only manufacturer, seller, and marketer of [the drug] and, as such, was responsible for proper warnings.

* * * *

Missouri law clearly allows for the joinder of unrelated plaintiffs who allege injury from the same conduct of the same defendant.

2016 WL 6596091, at *3-4 (citations omitted). These "commonalities" permitted joinder notwithstanding the plaintiffs being from different states, taking the drug across an 18-year period, with different exposures, different physicians, "different circumstances," and alleging different birth defects. Id. at *4.

The fact [the drug] was prescribed to the plaintiffs by different physicians is not controlling on the question of joinder. Nor are the claimed differences in the . . . birth defects sustained by the plaintiffs the issue here. The differing ages and home states of the plaintiffs have no bearing on the commonality of their claims or the relevant transaction by Appellant.

Id. (citation omitted). These "differences do nothing to disprove the commonalities, and it is the commonalities that permit joinder." Id. That's the first problem with Missouri procedure that Barron illustrates – and perpetuates − anything goes product liability joinder.

Bad as this is, the second problem may be worse – that's the Missouri venue statute. Free joinder of scores of unrelated plaintiffs has allowed the other side to exploit a flaw in the statute and push any multi-plaintiff action into St. Louis City whenever they want (effectively all of them) simply by including a resident or two from the City. As Barron explains:

Appellant claims the only potentially proper Missouri venue for tort claims in which . . . plaintiff was first injured outside of Missouri is the county in which Appellant's registered agent is located, which is St. Louis County [which is different and much less plaintiff friendly than St. Louis City], citing Section 508.010.5. However, [plaintiff] was joined with 23 other plaintiffs, two of which were first injured in the City of St. Louis, creating proper venue in the City of St. Louis pursuant to Section 508.010.4.

Id. at *2. The drafters of the venue statute, when considering out-of-state defendants, did not anticipate the courts allowing massive multi-plaintiff complaints. Thus, the statute was capable of being stretched by pro-plaintiff courts so that the "place of agent" provision for out-of-state defendants is effectively nullified by what would otherwise be an unexceptional venue provision concerning in-state tort plaintiffs.

By also refusing to require severance, id. at *5 (not an abuse of discretion, given the same reasons that allowed joinder and venue), Barron puts its imprimatur on the other side's perversion of Missouri joinder/venue provisions and gives free reign to plaintiffs to include one St. Louis City resident among scores of plaintiffs and thereby expand that one person's proper venue in his/her county of residence to every other plaintiff and defendant, even though, if brought separately, venue for neither plaintiff nor defendant would lie in St. Louis City.

So there.

But as the concurrence points out, it doesn't have to be this way:

When [the venue statute is] combined with Missouri Supreme Court Rule 52.05, the result is that lawsuits are filed in Missouri with a minimal number of Missouri plaintiffs joined with a much larger number of non-resident plaintiffs. To the extent that this practice is seen as a problem, it is within the power of the Legislature to "fix it."

Id. at *14 (Richter, J. concurring). Of course, the concurrrence does not mention the maxim against reading enactments to avoid "absurd results." E.g., Pestka v. State, 493 S.W.3d 405, 412 (Mo. 2016) (rejecting construction that "leads to an absurd result"). This begs the question, of course, about what is "absurd" within the context of Missouri jurisprudence.

Not being from Missouri that struck us as a bit odd. In Pennsylvania, separation of powers concerns would preclude legislative amendment of a court rule, but thankfully that doesn't seem to be the case in Missouri. See Mo. Const. art. V §5 ("Any rule may be annulled or amended in whole or in part by a law limited to the purpose.").

We sincerely hope that the Missouri legislature does fix this problem. There is no good reason for Missouri to be such a procedural outlier. Few, if any, other states allow massive joinders of product liability complaints by plaintiffs with nothing in common except that they are suing over injuries (not even the same) allegedly caused by the same product. No state that we know of allows venue to be determined for all plaintiffs and all defendants by an outlier plaintiff from a peculiarly pro-plaintiff venue. Given the state-level election results in Missouri, we think now is as good a time as any for everyone – lawyers and clients – on the right side of the "v." to seek the judicial fix mentioned in the Barron concurrence.

Finally, there's a lot more in Barron. All of it adverse. However, because the merits discussion consists largely of a pro-plaintiff Missouri court misconstruing (or making up) Minnesota law, we'll just list those topics here:

  • A failure to warn can exist by reason of a defendant not providing derogatory comparative risk information about its product (unclear whether the claimed factual basis meets the FDA's standards for comparative claims). Barron, 2016 WL 6596091, at *6.
  • An in-force, FDA-approved boxed warning can be "false and misleading." Id. at *7.
  • A manufacturer's "duty to keep informed of scientific knowledge" includes a duty to publish derogatory comparative risk information. Id. at 10.
  • An in-force, FDA-approved black box warning about the type of injury that the plaintiff suffered could nonetheless be a basis for punitive damages. Id. at *11-12.

We hope that, in future cases, Minnesota courts will give these rulings all the consideration that they merit.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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