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Blaes v. Johnson & Johnson

United States Court of Appeals, Eighth Circuit

May 26, 2017

Michael Blaes Plaintiff- Appellee
v.
Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Imerys Talc America, Inc., formerly known as Luzenac America Defendants-Appellants

          Submitted: March 9, 2017

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before RILEY, [1] Chief Judge, GRUENDER, Circuit Judge, and SCHREIER, [2] District Judge.

          SCHREIER, District Judge.

         Defendants appeal from the district court's order dismissing without prejudice Michael Blaes's products liability action. Defendants claim that the court should not have granted the dismissal because Blaes was forum shopping. In the alternative, defendants contend that dismissal should have been conditioned on the payment by Blaes of defendants' costs and fees. We find that the district court did not abuse its discretion when it dismissed the complaint without prejudice, but the district court should have analyzed whether costs and fees should have been awarded. We affirm in part, reverse in part, and remand with instructions.

         I. Background

         Shawn Blaes passed away from ovarian cancer on January 12, 2011. Her husband, Michael Blaes, contends that Shawn's death was caused by her regular and prolonged use of talcum-based products known as JOHNSON'S Baby Powder® and Shower-to-Shower®. On January 10, 2014, Blaes filed a complaint in Missouri state court in St. Louis County against Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc. (Johnson & Johnson); Imerys Talc America, Inc. (Imerys); Personal Care Products Council; Schnucks, Inc.; Schnucks Supermarkets, Inc.; Schnucks Food & Drugs, Inc.; Schnucks Super Centers, Inc.; and Walgreen Co.

         Defendants timely removed the case to the United States District Court, Eastern District of Missouri. Blaes later voluntarily dismissed the Schnuck defendants, Walgreen Co., and Personal Care Products Council. On October 24, 2014, the district court scheduled the case for a two-week jury trial to start on March 7, 2016. On February 12, 2016, the district court held a status conference during which Blaes orally requested a continuance of the March 7, 2016, trial date. Blaes advised the court that a case with similar facts (Fox trial[3]) was currently in progress in the Circuit Court of the City of St. Louis and would take longer than two weeks to complete. Thus, Blaes believed that his trial would take longer than two weeks and would need to be moved to a new date to accommodate a longer trial. The court denied the oral request for a continuance, but stated that it would monitor the progress of the ongoing Fox trial. On February 18, 2016, the district court entered an order resetting the trial date to July 6, 2016, to accommodate a longer trial. On February 22, 2016, the jury in the Fox trial awarded Fox $10 million in compensatory damages and $62 million in punitive damages.

         On March 9, 2016, defendants moved to reset the July 6, 2016, trial date because it conflicted with another talcum powder case that had previously been scheduled for trial in New Jersey. Defendants explained that, in total, counsel were scheduled for six talcum powder trials starting in April 2016 and running through February 2017, so they would be unavailable for trial in this case until after February 2017. One of the trials defendants listed was Swann v. Johnson & Johnson that was scheduled for trial in January 2017 in the Circuit Court of the City of St. Louis. On March 11, 2016, Blaes filed a Motion to Voluntarily Dismiss this action. Defendants opposed the motion asserting that Blaes was improperly forum shopping. Defendants argued that Blaes was seeking to refile in the Circuit Court of the City of St. Louis because a St. Louis jury had just awarded a large plaintiff's verdict and the district court in this case had made several unfavorable Daubert rulings against Blaes. On March 25, 2016, Blaes filed a Reply in Support of his Motion to Voluntarily Dismiss in which he explained that he planned to refile the case in the Circuit Court of the City of St. Louis and stated that the case could be tried "starting January 9, 2017, as one of multiple consolidated trial plaintiffs in Swann v. Johnson & Johnson." On March 29, 2016, the district court granted Blaes's motion to dismiss finding that dismissal was proper "because this case will likely be refiled and consolidated with Swann v. Johnson & Johnson, et al."

         II. Discussion

         "We review a district court's decision to allow a plaintiff to voluntarily dismiss an action for an abuse of discretion." Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013). The district court "has a range of choice, and [] its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law." Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984). When deciding whether to grant a motion for voluntary dismissal, the "district court should consider . . . 'whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.'" Donner, 709 F.3d at 697 (quoting Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213-14 (8th Cir. 2011)). A plaintiff cannot use a motion to voluntarily dismiss to seek a more favorable forum. Id.

         Defendants contend the district court abused its discretion in granting the voluntary dismissal because the dismissal wasted judicial time and effort and prejudiced the defendants, did not address whether the motion was improper forum shopping or whether Blaes's basis for dismissal had a reasonable basis in fact and law, and should have included an award of costs in favor of defendants. Defendants also argue that the court abused its discretion when it considered Blaes's arguments for voluntary dismissal because they were raised for the first time in his reply brief.

         First, this court must analyze whether the district court abused its discretion in concluding that dismissal would not waste judicial time and effort and would not prejudice defendants. This court has previously held that when a court dismisses an action to be refiled in state court, judicial time and effort are not wasted where much of the evidence may be used in state court. See Kern, 738 F.2d at 971(dismissing a case after the trial began so it could be refiled in state court). Legal prejudice is more than the fact that a defendant might have to defend another action. Id. at 970. Neither "the expense and effort of drafting and responding to discovery" nor the loss of a tactical advantage constitute legal prejudice. Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 728 (8th Cir. 2014).

         Defendants argue that the dismissal was a waste of judicial time and effort because the parties had prepared for trial for over two years, and the court had already overseen discovery and considered some pretrial motions. Defendants also argue that they were substantially prejudiced by the dismissal because they were deprived of benefitting from the work they had already completed, the favorable rulings the district court had already issued, and access to a federal forum. In Kern, the plaintiff filed a motion to voluntarily dismiss prior to trial, and the district court informed counsel that it would grant the motion, but "only upon the express condition that, if the case is refiled in any court, the defendant will be awarded all costs." Kern, 738 F.2d at 969. Plaintiff then withdrew her motion. Id. At trial, the court and counsel conferred with each other prior to calling plaintiff's final witness, and the court "informally indicated the view that plaintiff would be unable to make out a submissible fact question for the jury." Id. at 970. The plaintiff then renewed her motion to dismiss without prejudice, and the court granted the motion without any conditions as to costs and expenses. Id. We upheld the district court's dismissal because plaintiff had not rested, the defendant had not moved for a directed verdict, and the dismissal allowed for a state-law issue to be decided by a state court. Id. at 971.

         In Mullen, after the plaintiffs failed to meet the expert disclosure deadline and the court ruled that the deadline would not be extended, plaintiffs filed a motion to dismiss without prejudice stating that they intended to add defendants who would "more than likely" destroy diversity. Mullen, 770 F.3d at 726-27. The judge granted the motion to dismiss without stating a reason for the dismissal but indicated that the case was plagued with discovery disputes. Id. at 727. The court did not award any fees to the defendants and ordered the parties to bear their own costs. Id. We upheld the district court's decision because the parties had completed very little discovery, and after the dismissal, the plaintiffs did refile the suit in state court adding a diversity destroying defendant. Id.

         Here, the district court reasoned that it would be more efficient to add this case to the multi-plaintiff Swann case with the same issues. The district court did not abuse its discretion in reaching that conclusion. The trial in this case had not commenced, the district court had not ruled on several Daubert and other pre-trial motions, much of the discovery and evidence could be used in state court, and the Swann case apparently dealt with the same type of ovarian cancer as this case and involved much of the same evidence.

         Also, the district court observed that defendants had moved to reset the July 2016 trial date, but defendants were unavailable for the remainder of 2016. Thus, the trial would have to be rescheduled for sometime in early 2017. In their motion, defendants indicated that "no party will be prejudiced by moving the trial date." Docket 261. And defendants identified the Swann trial as one of the previously scheduled trials that created a conflict for defendants. Thus, the district court reasonably concluded that the case would likely be tried at an earlier date in state court, and the dismissal would not prejudice defendants because Blaes's case would ...


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