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Missouri Personal Jurisdiction Update

The multi-million dollar jury verdicts which have been rendered against talcum powder makers throughout the country, particularly in cases filed in the City of St. Louis, have been well publicized. Those verdicts remain on appeal and no appellate court has yet to issue an opinion on the merits of those cases. However, a Missouri Court of Appeals opinion from October 2017 has raised new questions about the jurisdictional underpinning of those verdicts which have occurred in Missouri., particularly for non-Missouri resident plaintiffs.

In Estate of Jacqueline Fox v. Johnson & Johnson, et al., -- S.W.3d --, 2017 WL 4629383 (Mo. Ct. App. Oct. 17, 2017), the Missouri Court of Appeals overturned a $72 million damage award against Johnson & Johnson, finding that the trial court did not have personal jurisdiction over Johnson & Johnson. The plaintiff in the case, Jacqueline Fox, was a non-Missouri resident who had purchased and used Johnson & Johnson talcum powder in another state and later developed ovarian cancer. Fox had no ties to Missouri other than the fact she had joined in a lawsuit filed by two Missouri residents (and 62 other non-Missouri residents) who were making the same claims against Johnson & Johnson.

The appellate court determined that the St. Louis trial court lacked jurisdiction as to Fox because she had not established an independent basis for specific personal jurisdiction with respect to her own claims against Johnson & Johnson. All she had shown in the trial court was that Johnson & Johnson conducted some business activities in Missouri. While the trial court had rejected the same argument made by Johnson & Johnson prior to trial, a United States Supreme Court decision issued after the Fox verdict was on appeal required the issue of personal jurisdiction over Johnson & Johnson in Missouri to be re-examined by the appellate court.

In Bristol-Meyer Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 198 L.Ed.2d 395 (2017), handed down sixteen months after the verdict in Fox, the U.S. Supreme Court held "when there is no [specific] connection [between the forum state and the specific claims at issue], specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the state." 137 S.Ct. at 1781. As a result, the verdict against Johnson & Johnson was vacated. The attorneys for Fox are appealing that decision to the Missouri Supreme Court.

This result probably should not have come as a surprise to Fox's attorneys. In August 2017, the Eastern District of Missouri had dismissed a talc action filed by several non-Missouri residents. That Court found not only had the non-Missouri plaintiffs failed to establish specific personal jurisdiction under the Squibb standard, they had also failed to establish general jurisdiction over Johnson & Johnson in Missouri under the standard set by the U.S. Supreme Court in 2014 in Daimler AG v. Bauman, 134 S.Ct. 746, 187 L. Ed. 2d 624 (2014).

The Missouri Court of Appeals in Fox also denied a request by her attorneys to remand the case to the trial court in an attempt to establish facts that would satisfy the jurisdictional requirement imposed by Squibb. In doing so, the Court stated it could find no precedent in Missouri that would allow a plaintiff to re-argue a personal jurisdiction issue in the trial court after a verdict had been rendered.

But that is not the end of the story for out-of-state Missouri talc plaintiffs. In November 2017, the same trial court judge who had presided over the Fox trial (and four other similar cases) held that one of the other 62 non-Missouri plaintiffs had met the jurisdictional requirements set out in the Squibb case. Lois Slemp, a Virginia resident, was awarded $110.5 million in compensatory damages by a St. Louis jury in May 2017. The trial court judge subsequently affirmed that verdict on November 29, 2017, despite the Court of Appeals decision in the Fox case. The judge found that Slemp had established specific personal jurisdiction over Johnson & Johnson - and he apparently did so based on the same evidence the Missouri Court of Appeals had rejected as insufficient in Fox.

Not surprisingly, Johnson & Johnson has appealed that verdict to the same appellate court that overturned the Fox verdict. Ultimately, it will be up to the Missouri Court of Appeals, or more likely the Missouri Supreme Court, to determine whether Slemp and other non-Missouri talc plaintiffs can meet their burden under Squibb to establish their jurisdiction and retain their verdicts against Johnson & Johnson in Missouri.

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