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Posts by Robert Stephens

Recent Personal Jurisdiction Decision in St. Louis City, Missouri Limits the Use of a Registered Agent to Establish Personal Jurisdiction

On October 28, 2016, Judge Robert Dierker issued an order in the case of Bristol v. Ford Motor Co., et al., 1522-CC10413, denying Ford’s Motion to Dismiss Based upon Lack of Personal Jurisdiction. Ford argued that there was no personal jurisdiction in the matter pursuant to Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which states, “A court may assert jurisdiction over a foreign corporation to hear any and all claims against [it] only when the corporation’s affiliations with the State in which suit is brought are so constant and persuasive as to render [it] essentially ‘at home’ in the forum State.” Diamler, 134 S. Ct. at 751.

Plaintiff alleges decedent was exposed to Ford brake products in Utah when he was an employee of a Ford dealership. Based on discovery in this case, it was determined Ford brake products contained asbestos, during the time decedent was working on its products. The Court found Ford had and continues to have extensive manufacturing operations in Missouri and is licensed to do business in Missouri but is not incorporated in Missouri, nor does it have its principal place of business in Missouri. Ford products that contained asbestos brake linings were manufactured in Missouri and shipped to the dealership in Utah.

Based on the foregoing, Judge Dierker found that, although it is unclear that plaintiff’s decedent worked directly on vehicles made in Missouri, it is reasonable to infer that he did so. Judge Dierker also inferred that decedent was exposed to asbestos-containing brake linings on vehicles made in Missouri.

In his Order, Judge Dierker specifically rejected the finding that maintaining a registered agent is Missouri is sufficient to establish jurisdiction, stating “The Court also rejects the contention (albeit adopted by other rulings in this Circuit) that being registered to do business in Missouri constitutes consent to the general jurisdiction of the Missouri courts.”

Though Judge Dierker found the existence of a registered agent insufficient to establish jurisdiction, he concluded that plaintiff adequately established specific personal jurisdiction in this case, based upon the evidence presented that allegedly dangerous Ford products were shipped to the decedent’s employer in Utah from Ford plants in Missouri, thereby creating a clear risk of asbestos exposure to plaintiff’s decedent in Utah. Judge Dierker stated the plaintiff has shown that, for the purposes of due process and the Missouri “long-arm” statute, RSMo. § 506.500, it reasonable that Ford be sued in Missouri on account of its conduct in Missouri.

This is the second time Judge Dierker has specifically made the contention that the existence of a registered agent in Missouri will not establish personal jurisdiction. In Smith v. Union Carbide, et al. (1422-CC00457), DuPont filed a Motion to Dismiss Based on Lack of Personal Jurisdiction. Judge Dierker rejected Plaintiff’s arguments that service upon DuPont’s registered agent in Missouri was sufficient to confer general personal jurisdiction against DuPont. In reaching this opinion, Judge Dierker applied the due process analysis set forth in Daimler and found that DuPont is neither incorporated in, nor has its principal place of business in, Missouri and that Plaintiff failed to present evidence “indicating that this is an ‘exceptional case’ under Daimler, such that general personal jurisdiction should be extended beyond these paradigmatic forums.”

Though Judge Dierker denied Ford’s Motion to Dismiss Based upon Lack of Personal Jurisdiction, his finding that the existence of registered agent is not enough to establish jurisdiction in Missouri bolsters Defendants’ arguments when contesting personal jurisdiction in St. Louis City Circuit Court.

On September 29, 2016, the Missouri Supreme Court heard oral arguments in the case of State ex rel. Norfolk Southern Railway Company v. The Honorable Colleen Dolan, SC95514, in which an Indiana resident, Russell Parker, sued Norfolk Southern Railway Company under the federal employer’s liability act in a Missouri state circuit court, seeking damages for cumulative trauma injuries he alleges he sustained during the course of his employment with Norfolk Southern. Although it operates railroad lines in Missouri, the railway company is incorporated in and has its principal place of business in Virginia. Norfolk Southern moved to dismiss Parker’s lawsuit for lack of jurisdiction. The circuit court denied Norfolk Southern’s motion in December 2015. Norfolk Southern has appealed this issue to the Missouri Supreme Court.

Norfolk Southern’s point on appeal is whether the circuit court may exercise personal jurisdiction (legal authority) over Norfolk Southern. Related to this are issues of whether the allegations in Parker’s Petition arise from or relate to Norfolk Southern’s activities in Missouri are sufficient to give rise to specific jurisdiction, and whether the circuit court has general jurisdiction over Norfolk Southern through its operations in Missouri, even though it is not incorporated in Missouri and does not have a principal place of business in Missouri. The Missouri Supreme Court must also decide whether Norfolk Southern consented to jurisdiction and whether, under the due process clause, an out-of-state corporation’s compliance with mandatory business registration requirements can lead to a finding that the corporation has consented to jurisdiction.

Will Cancers From “Vaping” Be the Next Toxic Tort?

The new trend among smokers, those trying to quit, and even non-smokers, are electronic cigarettes, or e-cigarettes. These e-cigarettes are marketed as a same alternative to cigarettes, but are they really safe? If they are not safe, will diseases caused by e-cigarettes be the next wave of toxic tort litigation in the United States? This post explores the possible dangers and potential liabilities which may be related to these e-cigarettes, but unfortunately, it is too soon to tell whether e-cigarettes are a safe alternative to smoking, or just another carcinogen. Read more

Genetic Mutation Defense in Asbestos Cases

Over the last few years, asbestos defense attorneys have slowly begun to introduce a defense to the causation of mesothelioma related to a specific genetic mutation. In a recent study, scientists have found that individuals who carry a mutation in a gene called BAP1 are susceptible to developing mesothelioma.  See Testa JR, Cheung M, Pei J, Below JE, Tan Y, Sementino E, Cox NJ, Dogan AU, Pass H, Trusa S, Hesdorffer M, Nasu M, Powers A, Rivera Z, Comertpay S, Tanji M, Gaudino G, Yang, H and Carbone M. Germline BAP1 mutations predispose to malignant Mesothelioma. Nature Genetics. Online August 28, 2011. DOI: 10.1038/ng.912. Additionally, when these individuals are exposed to asbestos or similar mineral fibers, their risk of developing mesothelioma may be markedly increased. Read more

Illinois Supreme Court Upholds the Exclusive Remedy Provisions of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act in Asbestos Related Diseases

On November 4, 2015, the Illinois Supreme Court filed the attached opinion in the matter of Folta v. Ferro Engineering, 2015 L 118070. In a 4-2 decision, the Court held that when the employee’s injury or disease first manifests after the expiration of certain time limitations under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2010)) and the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq. (West 2010)), the employee’s action is barred by the exclusive remedy provisions of those acts. Read more

Personal Jurisdiction Considerations in Missouri & Illinois after Daimler AG v. Bauman, 134 S. Ct. 746 (2014)

On January 14, 2014, the United States Supreme Court decided the case of Daimler AG v. Bauman, 134 S. Ct. 746 (2014). The background of this case is as follows: Daimler is a German corporation which was sued in California by Argentinian plaintiffs for human rights violations in Argentina.  The United States Court of Appeals for the Ninth Circuit upheld jurisdiction, reasoning that Mercedes-Benz USA, an indirect subsidiary of Daimler, was indeed an agent of Daimler and that the exercise of personal jurisdiction over Daimler was reasonable “under the circumstances of this case”. The circuits have disagreed over when such conduct may be attributed to a parent corporation, and Daimler argued that the Ninth Circuit made it too easy to attribute one corporation’s behavior to another. Read more

Updates To Illinois Personal Jurisdiction Law After In re Plavix Related Cases and its Applicability to Illinois Asbestos Cases

In the recent case of In re Plavix Related Cases, 2014 WL 3928240 (2014), the Court narrowed the scope of personal jurisdiction in Illinois for out-of-state residents attempting to file a claim in Illinois courts. Specifically, In re Plavix Related Cases deals with the situation of several non-Illinois residents suing non-Illinois corporations in Illinois courts.

The In re Plavix Related Cases court began with a review of general jurisdiction. “Personal jurisdiction is a court’s power to bring a person into its adjudicative process.” In re M. W., 232 Ill. 2d 408, 415 (2009). To be valid, the exercise of personal jurisdiction must be authorized by state law and consistent with state and federal due process. Illinois law authorizes courts to exercise jurisdiction over non-resident defendants to the full extent permitted by the Illinois and federal Constitutions, 735 ILCS 5/2-209(c), and Illinois due process is satisfied when federal due process requirements are met. See Russell v. SNFA, 987 N.E.2d 778, 785 (2013). Therefore, the only issue the Court need decide is whether the exercise of jurisdiction in this case comports with due process under the Fourteenth Amendment to the United States Constitution. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011). Read more

New Amendments to the Missouri Workers’ Compensation Act Impact Asbestos Litigation

Beginning on January 1, 2014, the Missouri Workers’ Compensation Act applies to mesothelioma and other toxic exposure. On July 11, 2013, Missouri Governor Jay Nixon signed Senate Bill 1, which amended the Missouri Workers’ Compensation Act, modifying the Act’s language regarding the Second Injury Fund and occupational diseases. For the purposes of this article, we will focus on the changes to the Act made to occupational diseases under Senate Bill 1. Read more