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Missouri court decision 'encourages' forum shopping

By Chris Rizo | Sep 3, 2008

Mark Behrens

JEFFERSON CITY, Mo. (Legal Newsline)-Missouri's already mediocre legal and business climates could be further threatened by a recent state Supreme Court decision, a leading court observer told Legal Newsline.

In its controversial decision, the state's high court ruled unanimously last week that Missouri is not an inconvenient forum for a products liability lawsuit even though the court would lack subpoena power and neither the plaintiffs nor the defendants are located there.

"This decision will promote forum shopping by encouraging litigation in Missouri that really has no place being there," said attorney Mark Behrens, counsel for the American Tort Reform Association.

Plaintiffs in the case, none of whom are Missouri residents, are suing several pharmaceutical companies, including Madison, N.J.-based Wyeth Inc. over claims they were injured by the drug companies' hormone replacement therapy drugs.

"Nobody has a basis of being there. The court's hook to keep the case in Missouri was that the companies do other business there," Behrens said in a telephone interview from his office in Washington, D.C. "This creates the image the Missouri Supreme Court is increasingly hostile to civil defendants."

The Wyeth case originally had 186 plaintiffs, including 21 Missouri residents, in July 2004, but the number of plaintiffs was whittled to just 11. The case was filed in the Circuit Court of the City of St. Louis.

Defendants sought to dismiss the case from a Missouri court, citing the doctrine of forum non conveniens because the forum was not convenient for them.

The trial court judge rejected the motion in November 2006, and the defendants appealed to the Supreme Court, which sided with the plaintiffs.

"A corporation may be created under the laws of one state, have its headquarters in another state, and do its primary business in yet one or more other states," the 6-0 Supreme Court decision written by Judge Patricia Breckenridge said.

The court ruled the plaintiffs need not file in their home states so long as the companies do business in the Show Me State.

"The issue to be considered by the trial court is whether each plaintiff would have a forum available, at this time, where he or she could proceed with the lawsuits in the event the current suits are dismissed. Only in this court, in response to plaintiffs' claim that there may be bars to them filing suit in other states, such as statutes of limitation, do the pharmaceutical companies offer to waive assertion of a statute of limitations defense for the period each case was pending in Missouri."

Behrens, co-chair of the Federalist Society's Tort and Product Liability Subcommittee, said the decision follows another controversial Missouri Supreme Court decision last year that upheld medical monitoring, where defendants sue for medical screening costs after being exposed to a potential harm.

He noted that over the past decade, seven of the eight state supreme courts that have heard medical monitoring cases have declined to award damages to plaintiffs for an illness they might never get.

"You put these two cases together and you have the most liberal decision in a decade on medical monitoring and a case that allows people to bring suit in Missouri even though they have no connection to the state," he said. "Those two cases then start to create a perception that this is a court that is losing its balance and is issuing very liberal decisions that don't have any sound basis in the law."

Missouri ranks thirty-first among all fifty states in the fairness of its litigation environment, according to an annual Harris Poll survey of in-house corporate counsels around the nation.

From Legal Newsline: Reach reporter Chris Rizo at

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