The Missouri Supreme Court handed down a decision today in Jefferson City favoring multi-national drug and health care company Bayer over 92 plaintiffs.
The Missouri Supreme Court Building in Jefferson City
In a unanimous rendering, the high bench determined a circuit court in Missouri couldn’t claim jurisdiction in a case in which 85 of the 92 plaintiffs are from out of state.
The Supreme Court set aside the lower court’s decision to overrule Bayer’s motion to dismiss the case involving the company’s female sterilization product Essure.
The high bench sent the case back to the lower court, ordering it to consider whether an amended claim of jurisdiction by the plaintiffs has merit.
The plaintiff’s indicated they would next argue that Missouri has jurisdiction over Bayer because of the company’s extensive clinical trials and marketing of the product in the state.
Three major court decisions have significantly weakened the foundation of the plaintiff’s original jurisdictional claims.
In one of them, the U.S. Supreme Court held that courts in California don’t have jurisdiction to hear claims by out-of-state plaintiffs made against an out-of-state defendant. In that instance, more than 500 of 592 plaintiffs were from out of state.
In another case in late February of this year, the Missouri Supreme Court itself determined that plaintiffs cannot use the state’s courts to sue out-of-state companies which conduct significant business in Missouri for unrelated claims.
In that proceeding, an Indiana resident was suing for personal injury that occurred in Indiana, but the litigation was taking place in Missouri under the premise that the defendant, Virginia based Norfolk Southern Railway, had significant operations in the Show-Me State.
In the Bayer case, the state Supreme Court has acknowledged the rapidly changing legal landscape. During arguments in November, Chief Justice Zel Fischer referenced the recent court decisions while addressing the company’s attorney, Sean Jez.
“There are certain doors regarding personal jurisdiction that are being shut, that weren’t shut when these cases were filed,” said Fischer. “And you’re winning those arguments.”
For practical purposes, Attorney Jonathon Cohn argued for the plaintiffs, but technically represented lower bench judge, Joan L. Moriarity of the 22nd Circuit Court in St. Louis, who had decided in their favor.
Before the high court, Cohn told the judges he would be filing an amended brief to the judges. The has now court granted him the opportunity to seek evidence to make a reformulated case for jurisdiction over Bayer in Missouri.
Prior to the recent change in legal climate, Bayer had not been successful in staving off many of the previous lawsuits involving the Essure.
Courts generally were not sympathetic to its claim that the product was immune to such litigation because it had been federally approved for distribution. More than 3,700 women have filed lawsuits against Bayer in the U.S., alleging harm from the device.
In its annual statement earlier this year, the company noted it incurred impairment losses of $413 million in connection with Essure.
The sterilization, or permanent birth control device, is implanted in women. Among the claims from plaintiffs are that it causes cramps, pelvic pain, ovarian and uterine cysts, pregnancy, miscarriage and loss of libido.
Bayer’s claim that the lawsuit is not subject to jurisdiction in Missouri because most of the plaintiffs are from out of state is consistent with legislation Republicans introduced in the state legislature this year.
Bills in the House and Senate were, among other things, intended to reduce the number of cases filed in Missouri courts by plaintiffs with no connection to the state.
The measures were part of an overall focus by the GOP super majority to improve the state’s business climate by doing away with what it called “frivolous lawsuits”. They failed to advance through the General Assembly while other measures designed to limit liability lawsuits did become law.
A ranking often cited by business friendly Republicans and the Missouri Chamber of Commerce is the American Tort Reform Association’s (ATRA) “Judicial Hellholes”.
The annual list dropped the St. Louis Circuit Court from 1st to 3rd worst place for civil litigation in 2017, citing the improvement to the election of GOP Governor Eric Greitens and the U.S. Supreme Court’s decision regarding out of state plaintiffs and defendants.
ATRA itself is often on the receiving end of criticism from the plaintiff’s attorneys lobbying firm American Association for Justice (AAJ).
AAJ President Mary Alice McLarty recently accused ATRA of being a mouthpiece for large corporations. “Year after year this project has been ridiculed, debunked, and exposed as nothing more than propaganda paid for by multinational corporations that want to evade accountability for harming and killing Americans,” said McLarty.