United States: Another Missouri Talc Verdict Is Wiped Out On Personal Jurisdiction

Last Updated: July 17 2018
Article by Eric Alexander

Even if Bexis and McConnell like to sport overalls and tool around in souped-up tractors, we are not farmers. We have grown enough heirloom tomatoes, ghost peppers, rainbow chard, purple basil, and other suburban garden staples, however, to know that "you reap what you sow" is usually true, assuming the levels of hydration, sunshine, and soil pH are appropriate. (There are pleasant exceptions, like asparagus from prior owners or berries spread by critters, and undesired interlopers, like Japanese hops and any number of leafy weeds.) It is often true in litigation too. When the Bauman and Walden decisions came down in early 2014, it should have been apparent that the sort of litigation tourism that had driven so many verdicts and settlements based on fear of verdicts in plaintiff-friendly places was going to be a risky proposition going forward. While we and many others touted these rulings and proclaimed what should happen with personal jurisdiction in such cases, the plaintiffs' bar did not give up on what had been such a lucrative approach. Instead, they continued filing multi-plaintiff cases in their desired jurisdictions, even though almost all of the plaintiffs had no ties to the jurisdiction and the defendants were not "at home" there. They also fought against motions and appeals with sometimes creative arguments that generally flew in the face of what the Supreme Court had already ruled. While these packaged tour cases remained in these dubious jurisdictions, they sometimes progressed to trial and, aided by lenient views of the admissibility of junky causation evidence or other rulings that tend to drive up verdicts, scored some really big verdicts. While some defendants surely settled along the way, others stuck it out to get to appellate rulings that would undo everything with a pronouncement that "this plaintiff's case never belonged here in the first place."

If you are reading this and thinking about the talc litigation in Missouri, then you would be right. It is not the only litigation to follow this pattern, but it has been one of the most visible. The timeline implicated by Ristesund v. Johnson & Johnson, — S.W.3d –, 2018 WL 3193652 (Mo. Ct. App. June 29, 2018), is where we will start, because it shows the sowing to which we alluded so awkwardly above. Bauman and Walden come out in February 2014, signaling a tightening of the general personal jurisdiction standard and a refusal to expand the specific personal jurisdiction standard. In September 2014, plaintiff, a South Dakota resident, filed a lawsuit in Missouri state court about alleged ovarian cancer from talc in cosmetic products along with a Missouri resident and seventy-three other non-Missouri residents. Plaintiffs pushed forward through discovery and motions to a series of trials. Motions to dismiss for lack of personal jurisdiction for the claims of the non-Missouri residents were denied based on the conclusion that the court's jurisdictions over the claims of the sole Missouri resident was enough. In February 2016, the estate of a non-Missouri plaintiff named Fox won a large verdict and then defendants appealed. In May 2016, Ristesund won her own large verdict and then defendants appealed. In June 2017, the Supreme Court issued the BMS decision, essentially rejecting reliance on the ties of (misjoined) plaintiffs to establish specific personal jurisdiction over the claims of a plaintiff who would not otherwise be able to establish general or specific personal jurisdiction. In October 2017, the Missouri Court of Appeals ruled in Fox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. Ct. App. 2017), that plaintiff did not establish personal jurisdiction consistent with constitutional requirements and should not get a chance to do so on remand. (We detailed the decision here.) The same court considered almost the same issues in Ristesund about two weeks ago.

Pretty straightforward, one would think. Plaintiff, to her credit, even conceded that BMS controlled and the trial court lacked personal jurisdiction over defendants as to her claims. Ristesund, — S.W.3d –, 2018 WL 3193652, *2. That meant the verdict could not stand. The only issue left was plaintiff's argument that "fairness requires" that she have an opportunity on remand to develop arguments and evidence support personal jurisdiction. This is where that timeline mattered. As in Fox, the plaintiff "had a full and ample opportunity to discovery and introduce any and all evidence that she believed would establish personal jurisdiction over the Defendants." Id. at *3. While not all plaintiffs try to gather and introduce evidence of personal jurisdiction, recall that this case was filed after Bauman was decided. It went to trial after a personal jurisdiction motion was denied, an appeal on a companion case focused on personal jurisdiction, and scores of cases (see our cheat sheet) had been decided around the country on applications of Bauman that anyone would have realized undercut personal jurisdiction in this case. The plaintiff lawyers pursuing all of these cases took a calculated gamble to work up these cases and win big verdicts in a court where personal jurisdiction was tenuous at best, as long as the defendants were willing to sustain the trial losses and get to appeals. Ristesund could have sued in South Dakota—where she lived—or in New Jersey—where the defendants were based—but she chose the litigation tourist route.

Her last gasp was to claim that BMS being decided after her trial verdict somehow entitled her to another chance to prove personal jurisdiction. The court's rejection of this contention can stand on its own.

Principles of fairness do not dictate or warrant remand. The pronouncement in BMS neither introduced new concepts in the law nor relied upon new principles of law. BMS was not a decision that "came out of nowhere." To the contrary, the parties in BMS, as in Daimler, argued long standing principles of personal jurisdiction in our jurisprudence. The parties before us were well aware of the legal principles being argued before the Supreme Court, as evidenced by their pleadings and argument before the trial court. Ristesund was not precluded from broadening the scope of her claims for personal jurisdiction while her case was before the trial court . . . . Similar to our reasoning in Fox, we are not persuaded that the law either warrants or permits us to now return this matter to the trial court for a "do-over."

Id. at *5. That sounds pretty fair to us.

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

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