On February 13, 2019, the Supreme Court of Missouri dealt a significant blow against improper forum shopping by plaintiffs in mass tort litigation. State ex rel. Johnson & Johnson et al. v. The Honorable Rex M. Burlison, No. SC96704, slip op. at 2 (Mo. banc February 13, 2019). The Johnson & Johnson “talc cases” currently venued in St. Louis city involve many plaintiffs whose claimed injuries arose outside that city, but for strategic reasons they prefer that venue. Typically, these cases include a single “local” plaintiff whose injury first occurred in St. Louis city. The remaining plaintiffs (sometimes dozens) are joined pursuant to Rule 52.05 and claim venue solely based on joinder with the “local” plaintiff(s).
In this case, Johnson & Johnson moved to sever a plaintiff’s claims and transfer them to St. Louis County where venue is proper based on the governing venue statute, § 508.010.4. The City of St. Louis circuit court denied severance, finding that all plaintiffs’ claims were joined properly under Rule 52.05(a). Johnson & Johnson appealed.
Citing “nearly 40 years” of precedent, Missouri’s highest court ruled that permissive joinder of separate claims cannot be used to extend venue to a county when, without joinder, venue in that county would not be proper for each claim. In order words, one plaintiff cannot gain access to a preferred venue solely on the basis of another plaintiff’s properly venued claims. Certainly, this decision will impact Missouri’s mass tort litigation moving forward, as lower courts tackle the ruling’s implications for their individual dockets.