On October 17, 2017, the Court of Appeals for the Eastern District of Missouri reversed a $72 million judgment that was previously rendered against Johnson & Johnson, relying on a United States Supreme Court decision that was issued earlier this year. In June, the Supreme Court of the United States narrowed the scope of specific personal jurisdiction in Bristol Myers Squib Co. v. Superior Court of California, San Francisco County, 137 S.Ct. 1773 (2017), holding that that each plaintiff in a multi-plaintiff case must establish personal jurisdiction over the defendant for his or her individual claim. Applying the Supreme Court’s decision, the Court of Appeals to reversed the plaintiff’s verdict that was issued in February 2016 in Estate of Fox v. Johnson & Johnson, No. ED104580. While the Fox case was eventually tried as a single-plaintiff case, the initial filing contained 65 plaintiffs—only two of which lived in Missouri. Plaintiff Fox did not reside in Missouri. Johnson & Johnson filed a motion to dismiss the claims of the non-resident plaintiffs for lack of personal jurisdiction, which the trial court denied, finding that each non-resident does not need to establish an individual basis for jurisdiction so long as a defendant has sufficient minimum contacts with the state. The trial court found that Johnson & Johnson satisfied minimum contacts. After the trial court’s ruling, the Supreme Court issued its decision in BMS.
Johnson & Johnson appealed on several grounds, but the Court found dispositive that Fox’s claims did not arise out of Johnson & Johnson’s activities in Missouri. The Court held that BMS stands for the propositions that a non-resident plaintiff must establish an independent basis for specific personal jurisdiction over the defendant in the state; that specific personal jurisdiction requires a connection between the forum state and the specific claims at issue; and, that if there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state. The Court denied plaintiff’s request to remand the case to the trial court to further develop the facts related to jurisdiction, noting that several other district courts have barred reconsideration after the Supreme Court issued its decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014). Thereafter, the court reversed and vacated the trial court’s judgment.
What’s most interesting about this case is the way the Court of Appeals seems to offer two opposing theories related to BMS in order to support its outcome. On the one hand, the Court states that BMS changed the law, pointing to it as the reason for the change in outcome in the case—the Court of Appeals had previously denied Johnson’s & Johnson’s writ petitioning the court to prohibit the trial court from exercising jurisdiction. The Court writes in footnote that there was a change in the law. On the other hand however, the Court seems to state that BMS did not represent any change in the law as support for its decision to deny plaintiff’s request for remand to supplement the factual record. Judge Odenwald’s concurrence explicitly states that BMS is not a change in law and is grounded in Daimler, which therefore precludes the remand because no new law was issued.
Although the Court never states so, BMS seems to call into question statutes like Missouri Rule 52.05, which allows non-residents to join as plaintiffs in an action by resident plaintiffs when all plaintiffs’ claims arise out of the same transactions or occurrences, historically allowing the exercise of personal jurisdiction over non-residence parties so long as jurisdiction existed as to the residents claims. This would make it more difficult to bring together a large class of plaintiffs in Missouri.