The Missouri Supreme Court, by a razor-thin majority, dealt an unexpected and major blow to the legal rights of the citizens of Missouri on Feb. 13, 2019, turning its back on individual rights in favor of protecting corporate wrongdoers, including Big Pharma.
In State ex rel. Johnson & Johnson v. Burlison, No. SC 96704, 2019 WL 581175 (Mo. banc Feb. 13, 2019), the Court effectively eliminated the joinder rules that have for decades allowed litigants to join their similar claims–those sharing the same “nucleus of operative facts”—to litigate them all in one lawsuit in a single Missouri court with jurisdiction over the matter. In its -4-3 decision, the Supreme Court agreed with Defendants Johnson & Johnson and Imerys Talc America that plaintiff Michael Blaes’ claims were improperly joined with other cases pending in the Circuit Court of the City of St. Louis. Blaes alleged his wife’s death from ovarian cancer was caused by Defendants’ talcum powder, which Blaes’ wife purchased and used in St. Louis County.
The impact of this decision will dramatically hamper the litigation rights of Missouri citizens wronged by large corporations. Now anyone seeking to join a common legal claim against common defendant(s) with another case must show that, if his case were filed individually, it would be properly venued in the same county as the suit he seeks to join. This means that in the future only those litigants whose cases, if brought individually, would be venued in the same county, can join their cases. The ruling will drastically increase the litigation load upon Missouri’s circuit (state) courts, and rob many Missourians of the ability to take on large corporate defendants. Under it, a multitude of separate cases will have to be maintained against product liability defendants, instead of one single case. And, it will drastically reduce the number of plaintiffs that will be able to join any one suit, due to the fact that there will be significantly fewer plaintiffs in each case, and thus fewer plaintiffs who can share expenses, thereby driving each plaintiff’s share of expenses of their litigation to unreasonable levels.
This makes NO SENSE whatsoever.
This ruling will require that, for example, plaintiffs in talcum powder cases against Johnson & Johnson bring suits in their local county court, and Missourians living just down the road, but just over the county line, will not be able to join that same suit–instead they must file their own case, or try to join one in their particular county. This will result in many additional lawsuits, and dramatically higher expenses for the plaintiffs.
Indeed, the primary advantage to joinder is the abiliity for multiple plaintiffs (61 in Mr. Blaes’ case) to share the cost of acquiring, preparing and presenting the many very expensive expert witnesses which are required to bring such cases. Joinder also prevents plaintiffs from having to present duplicative testimony and taking duplicative depositions — all of which is expensive and risky. Thanks to this ruling, these problems will occur frequently.
Further the ruling will eliminate the prior ability of plantiff’s counsel to choose their venue in complex litigation cases, a right that was crucial in such cases because of the vast difference in the abilities and experience of trial judges sitting on the bench in major metropolitan venues as opposed to those in rural jurisdictions where politics and local appeal have often placed judges on the bench who have little or no experience at all with such complex litigation–either as judges or previously, as lawyers.
Now, instead of trying their cases in St. Louis or Kansas City, where there are many judges capable of handling complex litigation, plaintiffs in large numbers will be forced to try their cases to court presided over by judges with no experience at all in handling the issues to be presented. The result: increased numbers of appeals and unusual and inconsistent results, driving all litigants’ costs up, causing lengthy delays in resolution of cases, and putting dramatically increased burdens on our state courts.
Criticism of the Ruling: The majority’s decision has been criticized by legal scholars far and wide, including judges sitting on the Supreme Court. In his dissent, Judge George Draper accused the majority of doing Johnson & Johnson’s bidding: “(The majority) “essentially becomes an advocate for J&J by reframing its argument in a vastly more favorable light to ensure the outcome it wished to reach.”
And Judge Paul Wilson, joined by Chief Judge Zel Fischer, wrote
“Today, the Court announces a second sudden, unexpected, and—in my view—unjustified detour in venue law… “This is no small change.”
The implications: This decision will cripple the ability of Missourians, hurt by products mass marketed by huge corporations and Big Pharma, to have their day in court. As Judge Wilson stated, “this is no small change.” Worse, the Republican-dominated Missouri House and Senate have raced, since the decision was released, to codify it into Missouri statutes so that it cannot be undone by the Supreme Court in a later case.
Indeed, the importance of reasonable joinder in allowing the “little guy” to have his day in court cannot be understated. The effect of this departure by the Court is devastating to individuals who have been injured by huge, out of state corporations, which today, more so than at any other time in our history, pose a threat to consumers. The Trump Administrations deregulation and this devastation of plaintiffs’ ability to take on the “big guys” have combined to leave Missourians uniquely exposed–holding the bag without a remedy against the biggest, baddest tortfeasors in the world.
Now Missourians will be unable to bring many of their cases because of the massive increase in expenses and risks caused by this decision. Examples of joinder’s successes abound. Without it, there could have been no cases on 1) The Dalkon Shield IUD (causing pelvic inflammatory disease) made and marketed by A.H. Robins & Co. in the 1980s; 2) the Ford Pinto (exploding gas tanks upon rear impact) also in the 1980s; the General Motors ignition switch failure cases of recent years; and the Owens Corning asbestos cases which have resulted in the compensation of thousands of industrial workers who were forced to endure the ravages of asbestos-related lung diseases.
In the vast majority of these types of cases, the corporate wrongdoer was aware of the risks its product posed, but just did not want to warn the public because it would cost it too much money. Profits were more important. It is no wonder that these cases have generated such large verdicts.
Over many years, the practice of joinder protected Missouri courts from a flood of litigation of individual suits, and allowed plaintiffs to even the playing field against wealthy corporate defendants in product liability cases (and other types of suits) by enabling plaintiffs to “team up” to share the staggering expenses typically incurred in complex litigation against huge corporate defendants. Without joinder, the big defendants would be able to litigate individual or small groups of plaintiffs into the ground because they could afford to pay the large expenses of numerous expert witnesses incurred in such cases–where the plaintiffs will not. Joinder effectively allowed plaintiffs’ product liability cases to proceed because of the economies it created, which made the cases attractive to plaintiff’s counsel, who typically front all of the expenses of such litigation in hopes of ultimate recovery and repayment. Thus, without joinder, plaintiffs will now find it much more difficult to find attorneys willing to shoulder the increased expenses and risks this decision will cause to be incurred.
The final result: Most Missouri litigants will be deprived of a fair hearing of their cases in some of the most important and devastating personal injury cases ever brought in Missouri Courts.
The only way to undo this terrible decision is to elect a Democratic majority in the Missouri House and Senate, and to also elect a Democratic governor, who presumably would pass and sign into law amended statutes allowing joinder to again fulfill its purpose–to join multiple claims regardless of individual venue, so as to achieve judicial economy, and thus allow the doors of Missouri’s courthouses to remain open for individual Missourians injured by the tortious acts of large, impersonal and wealthy out of state corporations which are capable of flexing extreme economic muscle in litigation. Missourians deserve to have their cases be played out on level playing fields. The Supreme Court must reexamine its decision and be reminded of its responsibility to the State’s citizens.