For the past several years the United States Supreme Court has sought to clarify the proper exercise of specific personal jurisdiction over foreign corporate defendants. This issue is particularly applicable in mass tort litigation where out-of-state plaintiffs are often grouped together with in-state plaintiffs for a consolidated trial setting. The Supreme Court addressed that concern in the groundbreaking decision Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017). In Bristol-Myers, the Supreme Court ultimately held that state courts could not circumvent the constitutional requirements for specific jurisdiction, without the plaintiff(s) (resident or non-resident) proving a connection between their alleged injuries and the corporate defendant’s activities in the forum state. It was anticipated that Bristol-Myers would have immediate and significant impacts nationwide. These impacts are now being seen at the state level, as evidenced by the Missouri Court of Appeals’ decision in Fox, et al. v. Johnson & Johnson et al., No. ED104580 (Mo. Ct. App. Oct. 17, 2017).  

In Fox, Ms. Fox was one of 65 individual plaintiffs who alleged that she developed ovarian cancer as a result of using talcum powder sold by Johnson & Johnson. Two of the 65 individual plaintiffs were Missouri residents while the other 63 individual plaintiffs, including Ms. Fox, bought and used the products in other states. The non-resident plaintiffs joined their claims to the Missouri resident Plaintiffs’ claims pursuant to Missouri Rule 52.05. The defendants filed a motion to dismiss the claims of the non-resident plaintiffs for lack of personal jurisdiction. The trial court denied the motion on the basis that each non-resident need not establish an individual basis for jurisdiction so long as a defendant has sufficient minimum contacts with the state. In this case, the trial court found that the defendants’ commercial activity in Missouri “more than adequately” satisfied minimum contacts. The jury ultimately found Johnson & Johnson liable and awarded $10 million in compensatory damages and $62 million in punitive damages.  

On appeal, both parties agreed that Bristol-Myers was controlling, but disagreed as to the resulting outcome. The plaintiffs sought a remand to the trial court for further factual development on the issue of personal jurisdiction, while the defendants asked the appellate court for an outright dismissal with prejudice. The Missouri Court of Appeals declined to remand the case following the jury verdict, and reversed and vacated the trial court’s judgment for lack of personal jurisdiction. As Judge Odenwald explained in a concurring opinion, the court lacked authority to remand for further factual development because Bristol-Myers did not present new law, but rather clarified the long-established principles of personal jurisdiction established in prior precedent. In fact, Judge Odenwald pointed to the fact that Daimler AG v. Bauman, 134 S. Ct. 746 (2014) clearly established the governing principles and was decided months before the plaintiff filed her case in Missouri state court.  

The Missouri Court of Appeals’ decision in Fox exemplifies the significant impact that a personal jurisdiction analysis can have on mass tort litigation, particularly in jurisdictions where out-of-state plaintiffs routinely join actions with in-state plaintiffs.  The Fox decision will likely have an impact at the trial court level where courts will be more cognizant of the Supreme Court’s rationale underlying the establishment of personal jurisdiction as first described in Int’l Shoe Company v. Washington, 326 U.S. 310 (1945) and more recently clarified in Bristol-Myers and Daimler. 

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