Toxic Tort Monitor: Venue Statute’s Savings Clause Clarified By St. Louis City Order

Husch Blackwell LLP

St. Louis City Judge Michael K. Mullen recently entered an important order interpreting Missouri’s 2019 legislation governing joinder and venue law. See Order, Johnson v. Bayer Corporation, et al., 1622-CC01049-01 (Mo. Cir. Ct. St. Louis Cty. May 5, 2020) (Johnson). Put simply, St. Louis City’s automatically-generated trial docket dates (the “rolling docket”) do not satisfy the eligibility requirement of a having a “trial date” on or before August 28, 2019 within the savings clause.

The Johnson case concerns the Essure System for Permanent Birth Control by Bayer Healthcare LLC and Bayer Healthcare Pharmaceuticals, Inc. (Defendants). Here, 92 individuals allege first injury either outside Missouri, inside Missouri within St. Louis City, or inside Missouri in counties other than St. Louis City. Defendants moved to sever plaintiffs’ claims and transfer venue as to all non-Missouri Plaintiffs to Cole County, where Defendants’ registered agent is located (pursuant to § 508.010.5(1)) and all Missouri Plaintiffs who were not first injured in the City of St. Louis to the county where those plaintiffs were first injured (pursuant to § 508.010.4).

Plaintiffs did not contest the transfer of venue to Cole County for non-Missouri plaintiffs, but argued the savings clause of Senate Bill 7 prevented the venue transfer of Missouri plaintiffs alleging first injury in counties other than St. Louis City. This clause allows plaintiffs to continue to trial in the venue as filed if: (1) the case was filed prior to February 13, 2019, (2) has proper jurisdiction in this state, and (3) has or had been set any time prior to February 13, 2019, for a trial date beginning on or before August 28, 2019. The parties only disputed the third prong of the savings clause. Plaintiffs argued that the Court had set a qualifying trial date before August 28, 2019, and, thus, fit within the savings clause. Defendants opposed, arguing the “trial dates” were only trial docket dates automatically generated when the case was filed and no trial was close to beginning within that time period.

In granting Defendants’ motion to transfer venue, the Court implicitly rejected Plaintiffs’ theory that the rolling docket dates can be used to meet the savings clause’s third prong. The Court ordered transfer of plaintiffs injured in Missouri, but outside of the City of St. Louis, to the Missouri County where each plaintiff was first injured. Notably, the Court did not raise joinder as a means to extend venue to non-St. Louis City plaintiffs.

In conclusion, Missouri courts’ automatically generated trial docket dates should not satisfy the savings clause’s “trial date” requirement for pending claims.

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Husch Blackwell LLP

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