American Home Products Corp. v. Sumlin

• Decision Date: 16 November 2006
• Docket Number: No. 2004-IA-02524-SCT.,2004-IA-02524-SCT.
• Citation: 942 So.2d 766
• Parties: AMERICAN HOME PRODUCTS CORPORATION; Wyeth-Ayerst Laboratories Company, a Division of American Home Products Corporation; and A.H. Robins Company, Incorporated v. Myra SUMLIN.
• Court: Mississippi Supreme Court

942 So.2d 766

AMERICAN HOME PRODUCTS CORPORATION; Wyeth-Ayerst Laboratories Company, a Division of American Home Products Corporation; and A.H. Robins Company, Incorporated v. Myra SUMLIN.

No. 2004-IA-02524-SCT.

Supreme Court of Mississippi.

November 16, 2006.

William M. Gage, Kenneth W. Barton, Leann W. Nealey, Jackson, Robert D. Gholson, Laurel, attorneys for appellants.

William R. Couch, Richard Joseph Lajaunie, Hattiesburg, Thomas Q. Brame, Jr., attorneys for appellee.

Before SMITH, C.J., DIAZ and RANDOLPH, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. This case comes to this Court on appeal from the Circuit Court of Smith County, Mississippi, by A.H. Robins Company, Incorporated, American Home Products Corporation, and Wyeth-Ayerst Laboratories Company ("Wyeth").¹ In this pharmaceutical liability case, plaintiff Myra Sumlin asserts a claim of heart valve regurgitation purportedly caused by Redux, a diet drug formerly marketed by Wyeth. Wyeth seeks review of the trial court's analysis of Sumlin's eligibility to opt out of a Nationwide Class Action Settlement ("CAS"). Moreover, Wyeth seeks review of the trial court's order denying Wyeth's motion to transfer venue.

¶ 2. We hold that the trial court erred in not transferring venue to the Circuit Court of Wayne County, and we reverse and remand for transfer of venue to that court. We decline to address Issues II and III.

FACTS AND PROCEDURAL HISTORY

¶ 3. Prior to 1997, approximately six million people ingested the diet drugs Pondimin and/or Redux, which are also known as fen-phen. Brown v. Am. Home Prods. Corp., 434 F.Supp.2d 323, 327 (E.D.Pa. 2006). The same year, these drugs were removed from the market after evidence surfaced that the drugs could cause inter alia, valvular heart disease. Id. The type of valvular heart disease at issue here is valvular regurgitation, which involves the reverse flow of blood through defective heart valves. Id. After a wave of litigation following the removal of the diet drugs from the market, the United States District Court of the Eastern District of Pennsylvania approved a Class Action Settlement Agreement. Id.

¶ 4. Under the CAS, class members could initially opt out or remain in the class. Should members choose to remain in the class, the CAS also provided "downstream" opt-out rights, which would allow class members to sue Wyeth in state or federal court. These opt-out provisions included an intermediate opt-out. However, in order to exercise intermediate opt-out rights, class members had to be medically eligible under specific parameters as set forth in the CAS.

¶ 5. The CAS, among other factors, requires class members who exercise intermediate opt-out rights to have been diagnosed by a "qualified physician as FDA Positive by an Echocardiogram." Echocardiography is ultrasound technology used to produce an image (echocardiogram) of the heart and the flow of blood through it. The CAS defines "FDA Positive" by specifying both the qualitative and quantitative standards for evaluating the echocardiogram used to diagnose regurgitation. Qualitatively, the CAS mandates the echocardiogram must be performed and evaluated by qualified medical personnel following the protocol as outlined by certain texts.² Quantitatively, class members claiming mitral valve regurgitation are eligible to opt-out only if diagnosed with moderate or greater mitral regurgitation based on specified echocardiogram views. Specifically, "moderate or greater regurgitation" is defined as "regurgitant jet area in any apical view equal to or greater than twenty percent (20%) of the left atrial area."

¶ 6. Sumlin filed suit against Wyeth in October of 2002, pursuing a claim against Wyeth as an "Intermediate Opt-Out" from the CAS. Less than a month later, Wyeth filed a motion to dismiss Sumlin's complaint, arguing Sumlin failed to meet the opt-out requirements as delineated by the CAS.

¶ 7. In December of 2004, the trial court held a hearing where both Sumlin and Wyeth presented expert opinions as to whether Sumlin's echocardiogram was performed in compliance with the CAS requirements. The trial court also heard testimony as to whether venue should be transferred from Smith County to Wayne County. The trial court denied Wyeth's motion to dismiss, Wyeth's motion to transfer venue, as well as Wyeth's motion for reconsideration. In his order denying Wyeth's motion to dismiss, the circuit judge based his decision on Mississippi Rule of Civil Procedure 56 summary judgment standard and also found the issue of whether Sumlin's echocardiogram was "FDA Positive" was a fact issue for the jury's determination. Wyeth subsequently filed a petition for interlocutory appeal, which this Court granted. See M.R.A.P. 5. Wyeth's assertions of error are set forth below.

ISSUES

I. WHETHER THE TRIAL COURT ERRED IN DENYING A CHANGE OF VENUE IN LIGHT OF THE CLEAR PRECEDENT OF CAPITAL CITY INS. CO. v. G.B. "BOOTS' SMITH CORP. AND ITS PROGENY.

II. WHETHER THE TRIAL COURT VIOLATED WYETH'S RIGHT UNDER THE CASE TO HAVE SUMLIN'S ELIGIBILITY DETERMINED BY THE COURT AS A THRESHOLD MATTER.

III. WHETHER THE TRIAL COURT IMPROPERLY DELEGATED TO THE JURY ITS GATEKEEPING FUNCTION UNDER DAUBERT AND MISS. R. EVID. 104 AND 702.

STANDARD OF REVIEW

¶ 8. With regard to Wyeth's motion to transfer venue, the abuse of discretion standard applies. Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So.2d 505, 513 (Miss.2004). "This Court will not disturb a trial judge's ruling on appeal `unless it clearly appears that there has been an abuse of discretion' or that the discretion had not been justly and properly exercised under circumstances of the case." Id. (quoting Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss.2003)).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING A CHANGE OF VENUE IN LIGHT OF THE CLEAR PRECEDENT OF CAPITAL CITY INS. CO. v. G.B. "BOOTS' SMITH CORP. AND ITS PROGENY.

¶ 9. Wyeth asserts the trial court erred when it denied its motion to transfer venue. First, Wyeth asserts venue is improper in Smith County because the controlling venue statute is Miss.Code Ann. Section 11-11-3,³ not Miss.Code Ann. Section 11-11-11. As such, section 11-11-11's clause which allows venue where a plaintiff resides or is domiciled, is inapplicable.⁴ Secondly, Wyeth argues venue in Smith County is improper because under section 11-11-3, Sumlin's complaint names a Mississippi resident defendant,⁵ and Sumlin's claim did not occur or accrue in Smith County. "Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no factual basis for the claim of venue." Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss.1997) (quoting Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992) (footnote omitted)).

¶ 10. First, Wyeth argues that under Capital City Ins. Co. v. G.B. "Boots" Smith Corp., 889 So.2d 505 (Miss.2004), proper venue lies in Wayne County. There, this Court addressed the applicability of competing venue statutes, Miss.Code Ann. Sections 11-11-3,⁶ our general venue statute, and 11-11-7,⁷ our venue statute governing suits against insurance companies. Id. at 513. We held that between the mandatory "shall" language in section 11-11-3, and the permissive "may" language in section 11-11-7, section 11-11-3 controlled.⁸ Id. at 516-17. Similarly, Wyeth argues section 11-11-3, as codified in 2002, is controlling over Miss.Code Ann. Section 11-11-11,⁹ Mississippi's venue statute concerning suits against foreign residents, because section 11-11-11 also uses the permissive "may" language. As such, Wyeth argues the clause in section 11-11-11 allowing a civil action to be commenced "where the plaintiff resides or is domiciled" is inapplicable, and thus venue is Smith County is improper.¹⁰

¶ 11. We agree. In Capital City, this Court cited to Senatobia Community Hospital v. Orr, 607 So.2d 1224 (Miss.1992), where this Court decided whether section 11-11-3 or 11-11-11 controlled. 889 So.2d at 515-17. Applying both statutes, we held jurisdiction and venue of a nonresident defendant made the county of the plaintiff's residence the proper venue against all resident defendants, even though they lived in different counties. Id. at 516. This Court overruled Orr, finding the Orr reasoning was flawed and that the Orr Court "incorrectly presumed that there was no ranking of the statutes and thus did not discuss the possibility." Id. at 517. Although this Court handed down the Capital City decision after Sumlin filed her suit, our case law is clear that Capital City applies retroactively, as Sumlin's case was ongoing when Capital City was decided. See Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) (retroactive application of judicially articulated rulings applies to cases awaiting trial); see Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (changes in the law applied retroactively to the case pending review on appeal).

¶ 12. Second, Wyeth also argues venue is improper in Smith County under section 11-11-3 because Sumlin's claim neither occurred nor accrued in Smith County. In Braswell v. T & T Welding, Inc., 883 So.2d 82, 84 (Miss.2004), this Court discussed the meaning of the "occur or accrue" language in section 11-11-3:

"Occur" and "accrue" are not synonymous, legally or otherwise, as the disjunctive connector forthrightly suggests. We read accrual in its formalistic sense. A cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 104, 14 So.2d 344, 346 (1943). This may well mean the moment injury is inflicted, that point in space and time when the last legally significant fact is found. "Occur" is a less formalistic term. It is event oriented to its core. It connotes conduct and phenomena and imports no preference among all of those necessary that a plaintiff may sue. In...