In February of 2016, a Missouri jury in the City of St. Louis delivered a stunning $72 million verdict against Johnson & Johnson for injuries caused by the Plaintiff’s use of talc products. The award garnered national attention and highlighted St. Louis as a plaintiff-friendly venue.  In truth plaintiffs, particularly in the world of asbestos litigation, realized their cases had more value in the jurisdiction long ago, thanks to its reputation for delivering high verdicts. Perhaps coincidentally, the large verdict in the Johnson & Johnson case came at a time when a shift in legal thinking at both the national and state levels significantly curbed the ability of plaintiffs to make their way into the warm embrace of the City of St. Louis.

Since 2014, the United States Supreme Court has reshaped the traditional standards for a court to exercise jurisdiction over a defendant.  The Daimler, Bristol-Myers Squibb, and BNSF cases are as well known as notoriously dry legal process cases can be.  The simple explanation for why they receive so much attention in the legal field is they changed everything about one of the law’s more fundamental questions: What is the proper venue for this lawsuit?

Before the Supreme Court cases listed above,the answer to that question was relatively simple.  A plaintiff could bring a lawsuit in the state where the injury occurred or in any venue where a defendant had sufficient contacts for a court to exercise general “all purpose” jurisdiction over the defendant.  Of course, what that meant had several layers of nuance, but for the most part the general rule limited jurisdictional challenges to only those cases where a given defendant had almost no contact with the chosen forum.  After these decisions, plaintiffs are limited to only those venues where the actual injury occurred, and more importantly, all purpose jurisdiction only exists in a very limited set of circumstances. In theory these decisions should limit the ability of a plaintiff to shop for a jurisdiction like St. Louis, where they have a perceived advantage.

For its part, the Missouri Supreme Court has followed the USSC on jurisdiction decisions.  In early 2017, the Missouri Supreme Court held that a mere license to do business in Missouri was not sufficient to confer general jurisdiction over a nonresident corporation The Court went further to say that having a registered agent in the state will not establish jurisdiction either.  Then in October of 2017, the Missouri Eastern District Court of Appeals overturned the Johnson & Johnson verdict mentioned above, applying the Bristol-Myers Squibb standard.  Recently, the Missouri Supreme Court declined an application for review of that appellate-level decision.  At least at the highest level, Missouri seems to be closing up shop to plaintiffs who cannot conclusively establish jurisdiction.

Still, what any given set of Supreme Court decisions, federal or state, actually means for day-to-day litigation at the local level is somewhat abstract.  Certainly these decisions do not immediately end all questionable litigation, and the ambiguity of the opinions allow for individual trial judges to exercise wide discretion in determining how and when their courts can exercise jurisdiction over a defendant.  

St. Louis City judges have settled into an interesting rhythm in this respect. In the past year, defendants have successfully challenged jurisdiction under the cases mentioned above, but with the caveat that they are subject to discovery first.  What this means in most cases is a plaintiff can bring a lawsuit against a non-resident defendant and subject that defendant to written discovery and depositions before the court will hear a challenge to jurisdiction. Beyond the obvious expenses to such defendants, this approach has the effect of allowing plaintiffs to keep some benefits of a friendly jurisdiction in the hope of an early settlement.  

For defendants, engaging in this discovery presents an additional element of danger—a defendant may unwittingly consent to the jurisdiction of a court by engaging in the litigation.  Given such a scenario, how far should a defendant go to defend the case before consent happens? If a defendant attends a deposition, is that a waiver of an objection to the court’s jurisdiction over the defendant in the first place?  If that defendant discloses experts or otherwise prepares a defense, is that a waiver? The local trial judges have attempted to draw the line between participating in the case in a way that would establish consent to jurisdiction and merely engaging in discovery necessary to rule out jurisdiction.  Where that line is, and how a defendant avoids it, remains unclear. At minimum, a defendant must take the step of securing a protective order from the court specifying that participation in discovery does not constitute a waiver of the objection to personal jurisdiction.

The larger question remains whether St. Louis City will continue as a plaintiff-friendly jurisdiction in the wake of these jurisdictional decisions, and as the Missouri legislature pushes for tort reform. For now non-resident defendants in St. Louis can, and should, press their personal jurisdiction objections, but do so knowing it is far from a sure thing those objections will yield a quick and easy dismissal.