Multiparty Joinder and Venue: How Missouri is Acting Against Historic Procedural Law Principles in an Effort to Curb Forum Shopping: State ex rel. Johnson & Johnson v. Burlison.

• Author: Gilkey, Jackson

1. INTRODUCTION

   Missouri has a problem. St. Louis City has become such a haven for plaintiffs to achieve easy victories with large awards that Missouri courts are now considered the second-worst forum by businesses for litigation. (1) State ex rel. Johnson & Johnson v. Burlison attempted to fix this problem by requiring stricter application of joinder and venue statutes. But, in doing so, the Missouri Supreme Court and Legislature are acting against the historical and philosophical underpinnings of procedural law. Rather than trying to fix the substantive issues for why plaintiffs would rather bring their cases in this state, this decision instead makes it harder for any and all plaintiffs to join in a lawsuit, even if it is most efficient to do so. Missouri is treating its symptoms, not curing its disease. By choosing the easy way out and abandoning the historical development of procedural law, Missouri residents may find it highly difficult or impossible to resolve their disputes arising in a modern world.

   In 2014, dozens of plaintiffs joined in a single suit against Johnson & Johnson, alleging that its talc powder caused them to develop ovarian cancer. (2) Although the lawsuit was filed in St. Louis City, only some of the plaintiffs were residents or were first injured there. (3) Both the Circuit Court of the City of St. Louis and the Missouri Court of Appeals, Eastern District, refused to sever a party for improper venue. (4) However, the Missouri Supreme Court ultimately reversed and held that permissive joinder rules do not extend to allow joinder of plaintiffs that cannot independently establish venue. (5) The majority emphasized that venue must be considered independently as a prerequisite to joinder. (6) Two dissenting judges focused on the statutory language of the Missouri venue and joinder statutes and concluded that the permissive joinder statute is broad enough to allow a case to proceed in a particular court so long as one of the parties meet the venue requirements and the other claims arise out of the same transaction or occurrence. (7) After the case was decided, the Missouri Legislature explicitly adopted the case into the permissive joinder statute, enshrining the holding of the majority. (8)

   This Note highlights the danger in Missouri's approach to procedural reform and offers an alternative method for thinking through the undeniable problems the state faces. It begins by discussing the underlying facts and holding of Burlison in Part II. Then, Part III summarizes the development of modern joinder and venue law, including the philosophical shifts from early common law to the enactment of the Federal Rules of Civil Procedure and their implementation by Missouri statute. Part IV examines the reasoning behind the majority and two dissenting opinions in Burlison. Finally, Part V compares the net result of current procedural jurisprudence with the underlying principles evident in the development of procedural law and offer some examples of substantive solutions to the problem.

   This Note discusses how this holding matches the nation-wide trend toward limiting the ability of multiple parties to bring their claims in a single action, cutting against the purposes behind the historical development of joinder and venue rules. Though the resources of the court system would arguably be most efficiently utilized by liberal joinder rules, modern legislative bodies have adopted much legislation aiming to reduce the ability of plaintiffs' attorneys to participate in forum shopping and create quasi-class actions. (9) Further, this decision will almost certainly achieve a similar effect of other tort reform measures in making it more difficult for individual plaintiffs to bring suit if their individual damages are not high enough and curbing the disparity of where multiparty lawsuits occur.

   On the other hand, the holding cuts against the rationale behind modern party joinder rules and will likely have unintended consequences such as straining smaller courts not used to handling these sorts of claims. Further, by reverting to geographic requirements for venue rather than focusing on dispute resolution efficiency, the ability of courts to resolve ever-evolving disputes with less and less ties to geography in an efficient manner will be greatly inhibited. This Note ultimately concludes that, while there are genuine concerns regarding issues of forum shopping, the solution should not and cannot be merely closing the courthouse doors.

2. FACTS AND HOLDING

   Johnson & Johnson manufactures and sells, among other things, body powder that contains talc. (10) In 2014, multiple plaintiffs brought suit in the Circuit Court of the City of St. Louis against Johnson & Johnson, alleging that the company's talc-based powder caused the users to develop ovarian cancer. (11) The plaintiffs sought relief under various state law tort theories, including strict liability for failure to warn, breach of warranty, negligent misrepresentation, and others. (12)

   In Missouri, procedural law is found within both rules promulgated by the Missouri Supreme Court and statutes enacted by the legislature. At issue in this case are: (1) the permissive joinder statute, (2) the court rule, and (3) the relevant venue statute. The statute and the rule regarding permissive joinder are essentially identical, allowing for claims to be joined if they arise "out of the same transaction or occurrence." (13) Importantly, both are written broadly, with little mention of venue. (14) By contrast, the venue statute is written very narrowly, providing exact requirements to establish venue for different categories of cases. (15)

   Johnson & Johnson moved to sever the parties and transfer venue as only one plaintiff, Valerie Swann, was a resident of St. Louis City. (16) The company argued that the parties were improperly joined under Missouri Rule of Civil Procedure ("MRCP") 52.05(a). (17) The circuit court rejected this argument, finding that severance was not required because the only requirement for permissive joinder of parties is that similar issues of law and fact arose out of the "same transaction or occurrence." (18)

   However, things became muddled once another plaintiff, Michael Blaes, attempted to join the lawsuit in 2016. (19) Blaes claimed that his deceased wife had contracted ovarian cancer from using the talc powder. (20) They resided in St. Louis County when they bought the talc powder, she used the talc powder in St. Louis County, and they bought the talc powder from a business in St. Louis County. (21) In response, Johnson & Johnson filed a motion for severance and transfer for lack of jurisdiction and venue once the court designated Blaes's claim for a separate trial. (22) This motion was denied. (23) Then, the defendants sought a writ of prohibition from the circuit court to prevent the joint case from moving forward, (24) which was denied by the Eastern District of Missouri. (25) The defendants then sought a writ of prohibition from the Missouri Supreme Court, which granted a preliminary writ before issuing its order. (26)

   The Missouri Supreme Court held a writ of prohibition was proper because the venue statutes require that plaintiffs bring tort claims in the county where they were first injured and any joinder rule that would allow Blaes to be joined with the other plaintiffs absent venue being proper for Blaes himself would be an improper application of the rules of civil procedure. (27) The majority opinion emphasized that principles of venue must be considered independently from considerations of permissive joinder. (28) No longer may parties join so long as they satisfy permissive joinder's "same transaction or occurrence" test regardless of whether each plaintiff satisfies, or does not satisfy, the requirements of the venue statute. (29) If any plaintiff does not satisfy the venue requirements, his or her claim should be severed. (30)

3. LEGAL BACKGROUND

   Burlison is part of a trend across the country making it more difficult for multiple plaintiffs to join in a single lawsuit arising from the same alleged misconduct of a single defendant. This Section outlines the concepts of joinder and venue as they have existed traditionally, as well as the developments that led to the modern framework.

   1. Historical Development of Joinder from Common Law to the Modern Rules

      Early common-law procedure was grounded in a rights-centered view. (31) This view focused on identifying substantive rights and obligations. For plaintiffs, joinder was allowed when multiple parties had at least some dominion over a substantive right. (32) Conversely, defendants could be joined only when they shared a duty over that plaintiffs or plaintiffs' substantive right(s). (33) If two parties were viewed as "joint" owners of a substantive right, they were required to bring suit together. (34) But, if the rights were "several" rather than "joint," each individual owner of the right would have to bring his or her claim in a separate proceeding because each of their interests could be viewed as separate from the other. (35) A similar exercise would be conducted to determine the "joint" or "several" status of an obligation. (36) If the obligation was joint, the defendants were required to be joined. (37) If the obligation was several, the defendants could be joined, but it was not required. (38) These concepts led to the distinction between permissive and compulsory joinder. (39)

      Unlike the rigid rights and obligations analysis of the courts of law, common-law courts of equity employed a much more liberal concept of joinder. (40) Instead of focusing the analysis on whether something was held severally or jointly, equity's aim was "to have in court all persons whose rights or property are involved in any particular litigation and to render a complete decree adjusting all the rights and protecting all the parties against future litigations. (41) This liberal approach...