Michael E. Crowley¹

In State ex rel. Burns v. Whittington, the Supreme Court of Missouri addressed whether amending a cause of action subjects it to the revised venue provisions of Missouri’s tort reform act, even if the original complaint had been filed before the statute’s effective date. This article analyzes whether the joinder of a party will constitute a new cause of action.

I. Introduction

For many Missouri plaintiff's attorneys, a somewhat distressing flashback might go a little like this: It's just a few days before August 28, 2005. A major Missouri tort reform,[1] stringently limiting a plaintiff's choice in venue, is about to take effect. Knowing this, you spend the better part of the day waiting in a long line to file your clients' cases at the courthouse.

This, of course, follows several weeks of non-stop researching, drafting, and scrambling to make sure you can file the case in time to get the best venue for your clients. As is typical of litigation, particularly in light of the enormous number of cases filed before the statute became effective,[2] those cases sit without progress for some time before finally coming up on the docket.

Now, after the effective date of the tort reform, there are problems. Circumstances have changed since you originally filed suit. One of your clients, seeking damages for a personal injury, died as a result of those same injuries and you need to amend the petition to reflect that fact.[3] In another case, you uncovered evidence that the defendant was acting in the scope and course of employment when he injured your client, so you now wish to join the employer under respondeat superior. Unfortunately, the effective date of Missouri's tort reform law has passed and you are unsure what effect amending your petition will have on your venue selection. Opposing counsel argues that if you amend the petition to include wrongful death or to join a party, the new venue provisions will apply. You think that your cases should not be subject to the new venue provisions; you worked tirelessly to make sure you filed those cases before the statute became effective. If opposing counsel is right, that work goes down the drain and your client will be stuck with a venue determination under the new statutes.

Fortunately for you, the Missouri Supreme Court recently ruled that your first case will not be subject to the new venue statute because the wrongful death claim “is based upon the same operative facts” as was the original personal injury claim .[4] That decision may help you evaluate how the court will decide whether joining a party to the case you filed before the effective date of the statute will subject you to its new venue provisions.

Missouri's tort reform has been called one of the nation's toughest.[5] It was passed in reaction to what was perceived to be rampant venue shopping.[6] H.B. 393 implemented a variety of changes[7] to Missouri tort law, such as a cap on punitive damages, new percentage of fault requirements for joint and several liability, and stringent venue restrictions designed to eliminate – or at least reduce – venue shopping.[8] Plaintiffs' attorneys scrambled to file their cases before the rules went into effect on August 28, 2005.[9] Plaintiffs' attorneys thought juries in the City of St. Louis were far friendlier to their clients than juries in rural areas of the state, seeking even the most tenuous link to the city for venue purposes.[10] The flurry of cases and confusing venue provisions, however, resulted in uncertainty regarding whether and how amendments to cases filed before the effective date could subject the cases to the new venue requirements.[11]

In April 2007, the Supreme Court of Missouri had the opportunity to clear up at least some of the confusion. In State ex rel. Burns v. Whittington, [12] the Court examined the question of what effect the amended venue provisions would have on a personal injury action filed August 28, 2005, that was amended to assert a wrongful death claim after the death of the injured plaintiff.[13] The Court focused on the plain language of the statute that stated the new rules applied to causes of action filed before the effective date.[14] Relying on precedent, the Court held that a cause of action is defined by the “group of operative facts” on which it is based, not the legal or factual theories advocated.[15]

The Burns decision has clarified one issue, but has left others unanswered. For example, what effect does the statute have if the plaintiff amends a complaint filed before the effective date of the statute in order to join a party? As the Supreme Court of Missouri’s first look at the new statute's venue provision, Burns should provide invaluable insight to practitioners with active cases that were filed before the effective date of the statute. The reasoning in Burns may help answer the question raised in the introduction of this article: whether venue should be redetermined under the revised statute when a defendant is joined to an action commenced before the effective date of the statute.

This article argues that such situations should be governed by pre-existing venue rules, at least to the extent that joining the party does not involve different or additional operative facts than those on which the original claim was based. Based on Burns, the determinative issue is whether the operative facts are the same;[16] if they are, then joining a party does not create a new cause of action within the meaning of the statute and is not subject to its provisions.

To examine this argument, it will first be necessary to discuss the history of the statute and its impact on litigation to date. Then, the Supreme Court of Missouri’s decision in Burns will be analyzed to determine whether its holding can be extended. Next, this article will scrutinize the wording of the statute itself in light of the Burns analysis. Finally, the article will examine hypothetical situations under the proposed framework to illustrate the practical effect such an interpretation would have.

This issue has a relatively narrow application due to the passage of time since the statute's enactment. The pool of cases that were filed before the effective date of the statute diminishes with the disposition of those cases.[17] Furthermore, the likelihood that a party needs to be joined (or that a judge will allow such a joinder) decreases with each passing day. As an unresolved question of law, however, the resolution of this issue could prove interesting not only to practitioners whose cases are directly affected, but to policy-makers across the country considering similar tort reform provisions. Such policy-makers should be interested in the effect such provisions may ultimately have on their state's legal system.

II. Venue Before and After Tort Reform

The changes in the law were the result of a comprehensive tort reform initiative undertaken by the Missouri Legislature in 2005, passed as H.B. 393 and was codified as §§ 538.205-538.230, RSMo.[18] While many aspects of the law were changed,[19] the focus of this article is on the revised venue provisions. Before the tort reform act, venue was relatively simple to establish.[20] Venue could be established by what seemed to be, whether rightly or wrongly, extremely tenuous links.[21] Most notably, the former general venue statute stated that venue was proper in any county in which a defendant resided or “in the county where the [plaintiff's] cause of action accrued.”[22] Furthermore, “if all defendants resided outside [Missouri], venue would be proper “in any Missouri county” of the plaintiff's choosing.[23]

By contrast, the venue provisions brought about by H.B. 393 stringently limit venue determination.[24] Venue under the revised statute leads practitioners through a series of determinative gates to establish where it is proper to bring a cause of action.[25] The various possibilities are too numerous to discuss in this article, but the determinative factors for a tort claim include the “place of first injury, principal place of [the defendant's] residence, and [the] location of [a corporation's] registered agent.”[26] For plaintiffs first injured in the state, venue is limited to the county in which they were injured.[27] While this appears to make the venue determination relatively simple, there are potential problems in determining the time and place of the injury, in addition to the complicated issues that arise when multiple defendants, particularly those from out-of-state, are sued.[28]

III. Burns and the New Venue Provisions

With the exception of § 512.099, RSMo, the provisions of this act are effective for all “causes of action filed after August 28, 2005.”[29] Causes of action filed before that date enjoyed the far more lenient venue provisions. The foreboding prospect of filing a cause of action subject to the new law led many practitioners to file cases before the effective date.[30] Those practitioners could rest assured that their choice of venue was safe – as long as they did not need to later amend their complaints.

In State ex rel. Burns v. Whittington, a husband and wife filed suit, alleging that the husband developed leukemia after exposure to harmful chemicals by the defendants' negligence.[31] The husband's claim sought damages for his personal injuries, while the wife's claim sought damages based on loss of consortium.[32] The lawsuit was filed on August 22, 2005 in the City of St. Louis, where venue was proper because a defendant resided there.[33] In January 2006, the husband died; a short time later, the petition was amended to reflect this change by stating a claim for wrongful death.[34] No new defendants were added.[35] The defendants moved to have the case transferred to St. Louis County, where venue was proper under the amended venue provisions because the plaintiff was first injured there.[36] The defendants argued that venue should be determined under the new statute because the wrongful death cause of action did not accrue until the husband's death in January 2006.[37] Venue would have only been proper in St. Louis County because that was where the plaintiff was originally injured.[38] The defendants' argument was that the amended petition stated a new cause of action.[39] The trial court agreed, but the Supreme Court of Missouri held that amending the petition did not state a new cause of action within the meaning of the statute.[40]

The Court relied on precedent defining a ‘“cause of action’ as ‘a group of operative facts giving rise to one or more bases for suing.’”[41] “A cause of action remains the same even though additional or different theories of evidence or law might be advanced to support it.”[42] Despite the fact that the death of the plaintiff was a unique element required to prove the claim of wrongful death, the claim was “derivative of the underlying tortious acts that caused the fatal injury.”[43] The Court found that the wrongful death claim was “based upon the same operative facts” as the original personal injury claim and therefore “did not constitute a new cause of action” that would trigger the new venue provisions.[44] The Court based its conclusion on its prior decision in Chesterfield Village, Inc. v. City of Chesterfield.[45]

The Chesterfield case discussed claim preclusion and defined a cause of action using the exact language relied upon by the Burns Court.[46] In that case, property owners sued the city regarding desired zoning which the city had denied.[47] Following the initial suit, the property owners again sued, seeking damages resulting from the city's failure to permit their initial zoning request.[48] The Court found that the second claim arose out of the same operative facts, despite the different legal theories being advanced.[49] In addition to the Burns decision, the Supreme Court of Missouri adopted the Chesterfield language in another 2007 case, and has cited the decision on several other occasions.[50]

One of those cases analyzed the “sameness” of causes of action in the context of claim preclusion. The plaintiff in Kesterson v. State Farm Fire & Casualty Co.[51] asserted a claim against her uninsured motorist carrier after being injured in a car accident caused by the alleged negligence of the driver of the vehicle in which she was riding or alternatively caused by a phantom driver.[52] Following a voluntary dismissal of the phantom driver claim in an unsuccessful attempt to appeal a grant of summary judgment on the other claim, the plaintiff sought to re-file the phantom driver claim.[53] She argued that the claims were different causes of action, which would allow them to be brought separately, because establishing the negligence of the phantom driver would have required proof of different facts than the claim against the driver of her vehicle.[54] The Missouri Supreme Court disagreed: “In order for a subsequent claim on the same transaction to be considered separate . . . there must be new ultimate facts, as opposed to evidentiary details, that form a new claim for relief.”[55]

The court determined that the phantom vehicle claim and the negligence of Kesterson's supervisor were based on the same ultimate facts.[56] The distinction between evidentiary details and ultimate facts is particularly important in that it bears a striking resemblance to the operative facts test from Burns. This underscores the court’s rule that causes of action are defined by their operative facts. In the Burns case, even the death of the party was an “evidentiary detail” that was insufficient to establish a separate cause of action.

Burns creates a framework for analyzing how the Supreme Court of Missouri will decide future cases involving the application of H.B. 393 to suits filed before the statute became effective. The situation analyzed in this article is the joinder of a defendant to a cause of action filed before August 28, 2005. The Court could determine that joining the party constitutes filing a new a cause of action within the meaning of the effective date provision, or it could decide that such a joinder merely constitutes an additional or different theory of fact or law which does not trigger the statute. This article argues that joinder of a defendant will only trigger the statute when the joinder is based on different operative facts than the original claim.

IV. Language of the Statute

Because the Court's analysis started with the statute's language,[57] this article's analysis will do the same. The statute provides that its provisions are effective for “all causes of action filed after August 28, 2005.”[58] The two potentially ambiguous phrases are “cause of action” and “filed.” One might suppose that the meaning of the word “filed” is simple. Supreme Court of Missouri Rules state “filing of pleadings and other papers . . . shall be made by filing them with the clerk of the court.”[59] This suggests a common sense interpretation: The statute only affects causes of action[60] actually filed with the court. It is important to note, however, that pre-tort reform precedent focused on the distinction between bringing and filing a suit.[61] State ex rel. Calvin v. Linthicum established that a suit was brought not only when the initial complaint was filed with the court, but also when a defendant was later joined.[62] In light of the Linthicum holding, which would have been well known to the legislature, it seems worth noting that the language of the act states that it applies to causes of action “filed” instead of causes of action “brought” or “accrued.”[63] It seems unlikely that the legislature adopted the “filed” language without purpose or without considering the possible alternatives. Specifically, the legislature likely would have retained “brought” as the operative word if they wanted to maintain the status quo. It is doubtful that there will be much controversy over determining whether a cause of action was “filed.” Instead, the focus of the litigation will probably revolve around whether the filing states a cause of action.[64]

Ideally, Burns has fully answered the question of how to determine whether a filing states a cause of action. If it is true that a pleading states a cause of action only if it states a claim based on a unique set of operative facts, then there appears to be a relatively straightforward rule. There is, however, a fact-specific inquiry to each case. It seems that, in many cases, amending a petition to join a party will not constitute a new cause of action because the claim against the new party will be based on the same operative facts underlying the original claim. That is, joinder will likely not be appropriate in situations where a party wishes to join someone based on facts that are completely unrelated to the original claim.

The Burns decision shows us that the Supreme Court of Missouri will look at the underlying facts of the original claim and compare them to the facts of the “new” claim.[65] Furthermore, that inquiry is not limited to the elements that the plaintiff must prove to succeed in their claim.[66] After all, in Burns it did not matter that the elements necessary to prove the wrongful death claim were different from the elements of the original personal injury claim.[67] It also was not significant that the death occurred well after the effective date of the statute.[68] Instead, the tortious wrongdoing[69] on which each claim was based had been asserted in the original petition.[70] The Court essentially held that filing a claim based on a certain set of operative facts before August 28, 2005 saves the venue determination for claims based on those same operative facts.[71]

This sounds rather similar to the concept of “relation back.”[72] Although the Court did not phrase it in such terms, the Burns Court essentially held that a claim amended after the effective date of the statute would relate back to the date of the original complaint for venue purposes, as long as the amended claim was based on the same underlying facts.[73] This analysis is just as appropriate for the joinder of parties. Joining a party to a claim filed before the effective date of the statute should, essentially, relate back to the original filing date for purposes of determining venue, as long as the claim involving the joined party is based on the same operative facts as the original claim. Instead of the strict venue requirements of the new statute, the determination will be based on the prior rules.

In Missouri’s relation back jurisprudence, adding a defendant does not relate back for purposes of the statute of limitations.[74] Instead, relation back can only occur when the defendant is changed, i.e., the plaintiff mistakenly named the wrong party, and replaces the incorrect party with the correct one.[75] This article asserts that, in a case filed before August 28, 2005, the relation back concept should operate in the same way as it would for statute of limitations purposes. In other words, amending the petition to reflect the correct defendant should not trigger the revised venue provisions but should instead trigger a redetermination of venue as if it were being determined on the date the petition was originally filed.[76] The relation back rule supports such a conclusion, in that case law discussing it uses the same cause of action language used in Burns.[77] Correcting the petition to properly identify a defendant, however, presents a different situation than adding a new defendant.[78]

Adding a new defendant does not relate back for statute of limitation purposes because of policy reasons that do not necessarily apply in the context of this venue issue.[79] The general policy justification for allowing amendments “is to allow a party to assert a matter [that was] unknown” or inadvertently neglected when the litigation was commenced.[80] Relation back is similarly permitted to prevent a plaintiff from being unduly burdened by a technical pleading error.[81] In light of that policy, a plaintiff should not be forced to sacrifice his or her chosen venue to join a defendant that was left out inadvertently. The competing policy interest limits the application of the relation back doctrine in statute of limitation situations. Relation back is restricted so as to not “offend the policies of the statute of limitations.”[82] Plaintiffs are not permitted to add a new defendant and have that amendment relate back to the date of their original filing.[83] Allowing the plaintiff to add a defendant after the statute of limitations has passed wholly defeats the purpose of a limitations period.[84] In the context of venue, however, this policy rationale is less convincing. Allowing the joinder to relate back to the date of the original filing does not deprive the defendant of notice within the statute of limitations. The defendant is still able to defend the merits of the claim and is notified of the claim within the statutory period. Although deprived of what is probably a more favorable venue, the defendant was exactly in a position to choose where to be sued.

The fact that the plaintiff neglected to name the additional defendant in the original petition essentially means the defendant got lucky in the venue determination. The question is not one of notice, but one of whether the legislature intended that, in such a situation, the defendant be allowed to reap the benefits or that the plaintiff suffer the consequences. The legislature did codify the Linthicum requirement that venue be redetermined each time a party is added or removed.[85] The problem, however, is that the portion of the statute codifying Linthicum is subject to the same effective date provision as the rest of the act;[86] if the statute does not apply, because no new cause of action has been asserted, then this provision does not control. While this may shed some light on the legislature's intent, it seems to merely acknowledge that the legislature was aware of Linthicum and the strategically delayed joined that plaintiffs sometimes utilized before it was decided.[87] It might be a stretch to say that this codification of a case law principle indicates that the legislature considered situations such as the one examined in this article. On the other hand, it could clearly demonstrate the legislature's intent that venue should be redetermined each time a party is joined, regardless of whether the suit was filed before the statute became effective.

A final issue that could influence the Supreme Court of Missouri is the constitutionality of the tort reform legislation if it adopts an interpretation that joining a defendant constitutes a new cause of action. Such a decision would increase the retroactive impact of the law. Because the statute's wording prescribes retroactive application,[88] there is the possibility for a constitutional challenge to the statute as a whole.[89] Because the portion of the statute controlling venue appears to affect procedural rights rather than substantive ones, the Supreme Court of Missouri may not be receptive to a challenge on that basis. Once a lawsuit has been filed, however, one might argue that the plaintiff’s interest in the lawsuit vests into a substantive right. That is, once a plaintiff has actually initiated a lawsuit, there may be in some sense a vested right in the outcome of the suit.[90] If this is true, allowing the new venue statute to nullify a plaintiff's chosen venue may be seen to be an unconstitutional retroactive application. Such a possibility may cause the Supreme Court of Missouri to pause before rendering their decision on this issue.

V. Hypotheticals

The question for the Court will be whether joining a party in any individual case actually constitutes a new cause of action, provided the Court adopts the same reasoning as in Burns. It is clear from Burns that an additional theory of fact or law does not constitute a new cause of action.[91] Joining a party seems to be, in many situations, a case of an additional or different theory of fact or law instead of a new set of operative facts. For example, where a plaintiff desires to join an employer under a theory of respondeat superior, the operative facts on which the original claim was based have not changed. Instead, the plaintiff has merely discovered that an additional party should be held responsible as a result of the party’s legal relationship to the tortfeasor. Although the plaintiff needs to prove additional facts to succeed on the respondeat superior theory, the operative facts are the same. In this type of situation, joining a party is much the same as amending the petition to wrongful death in Burns: The underlying claim is defined by the tortious act, not the theories pursued. The tortious act in this sort of situation is the wrongful conduct by the employee. The additional facts that make the employer liable under a theory of respondeat superior are just that: additional. Pursuant to the Court's analysis in Burns, the statute should not apply. Under this analysis, the party would be joined and venue would be analyzed in light of the venue provisions existing before the tort reform.

For a similar example, assume that an employee commits a battery against a plaintiff. The plaintiff files suit against the employee and against the company for negligent hiring and supervision. On its face, the situation might well appear to be one in which the operative facts are different. To succeed on the negligent hiring claim, the plaintiff must prove that “the employer knew or should have known” that the employee was “dangerous” and that the “negligence was the proximate cause of the plaintiff's injuries.”[92] The claim against the employer is a separate theory of both law and fact – similar to the wrongful death claim in Burns and to the example discussed above. A successful claim against the employee requires proving different elements and facts.[93] Nonetheless, the operative facts are the same. The defendant battered the plaintiff. While the employer's liability is for its own negligence, the underlying operative fact that gives rise to that liability is that the employee battered the plaintiff.

Contrast those examples, however, with a case involving a car accident followed by medical malpractice.[94] Here, the claim against the driver of the other car is predicated on entirely different operative facts than the claim against the surgeon.[95] The claim against the surgeon arose out of the claim against the driver because the plaintiff would not have needed emergency care but for that accident. Under Missouri law, the other driver and the surgeon would be “jointly and severally” liable.[96] This is not only a situation in which at least some different evidence and theories will be advanced in each cause of action, but a situation involving separate tortious acts. The operative facts of the claim against the surgeon are for malpractice; the operative facts of the claim against the other driver are for failure to operate a vehicle as would a reasonably prudent driver. While Missouri law would allow the two claims to be permissively joined,[97] it is doubtful that the Burns Court would find that they arose out of the same operative facts.

VI. Conclusion

The Burns decision has created an interesting prospect for future interpretations of Missouri tort reform. The Supreme Court of Missouri could depart from its decision and justify a rule that any joinder after the effective date of the statute triggers its provisions. Alternatively, the Court could take a middle-of-the-road approach, setting up some sort of case-by-case analysis. This sort of approach would be pragmatic and perhaps most consistent with the various competing policy considerations, particularly in light of the relatively few cases that would be impacted. Such an approach suffers from a lack of the predictability that is so desired in procedural law. The other possibility is that the court could establish a rule such as the cause of action one from Burns. This possibility allows for some degree of consistency in its tort reform jurisprudence but favors plaintiffs. This may conflict with the legislative intent of protecting defendants from venue-shopping plaintiffs.[98] One might argue that this is no longer a concern because the venue-shopping has already occurred, which is true to an extent. Allowing plaintiffs to join other parties under the more lenient pre-reform venue provisions, however, allows them to cherry-pick the venue a second time, in spite of the legislature's clear intent to stop such behavior.

Other legislatures around the country that are considering tort reform either now or in the future would be wise to anticipate this sort of situation and provide for it in their statute. This takes off the courts the burden off of trying to create some sort of rule that may ultimately conflict with either established precedent or legislative intent. Fortunately, the current problem in Missouri is one that affects a limited number of cases that will soon be resolved in spite of the confusion. In the meantime, however, those cases are in a state of flux until the Supreme Court of Missouri decides which solution to adopt. Although the plaintiff can always choose to proceed with the case by joining the new defendant subject to the revised venue provisions, it seems likely that many practitioners will wait as long as possible to address this issue in the hopes that the courts arrive at a more favorable solution.