Bayer Corporation v. Reed, 2004-IA-01968-SCT.

• Decision Date: 29 June 2006
• Docket Number: No. 2004-IA-01968-SCT.,2004-IA-01968-SCT.
• Citation: 932 So.2d 786
• Parties: BAYER CORPORATION v. Mary REED.
• Court: Mississippi Supreme Court

932 So.2d 786

BAYER CORPORATION v. Mary REED.

No. 2004-IA-01968-SCT.

Supreme Court of Mississippi.

June 29, 2006.

Carolyn Alleen McLain, Gerald H. Jacks, William F. Goodman, III, Jackson, Robert L. Johnson, III, Natchez, attorneys for appellant.

Richard Joseph Plezia, Edward Blackmon, Jr., Canton, Patrick Malouf, Ridgeland, Robert Farley Wilkins, attorneys for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. This interlocutory appeal arises from the Holmes County Circuit Court's denial of Bayer Corporation's motion for a change of venue. Bayer asserts that the circuit court abused its discretion in denying its motion for change of venue because it would experience substantial prejudice by way of citizen bias and pretrial publicity if the jury venire was composed of citizens of Holmes County. We find that the circuit court was correct in denying Bayer Corporation's motion for change of venue, but not for the reasons stated in the order. A review of the merits of the motion for change of venue shows that Bayer did not provide sufficient evidence of bias, prejudice or undue influence to support its allegations.

FACTS

¶ 2. Bayer is the maker of the prescription medication Baycol (cerivastatin), which was prescribed by physicians to help lower the lipid levels of people suffering from high cholesterol. Prior to mass production, Baycol was approved by the United States Food and Drug Administration. Its package insert described possible sideeffects, chemical interactions and dosage warnings for physicians. Specifically, the package insert warned of the possibility of myopathy¹ when Baycol was used in conjunction with another drug, gemfibrozil, or when the user is started at the highest dosage of .8 mg rather than a gradual step-up from a lower starting value. Despite these warnings, Bayer received reports of a severe type of myopathy referred to as rhabdomyolysis.² Thereafter, Bayer voluntarily withdrew Baycol from the market in August 2001.

¶ 3. Mary Reed³ had a history of health problems including a four-year period, from 1996-2000, in which she was largely incapacitated and bedridden due to pain and fatigue in her hands and arms. Unrelated to these problems, Reed began taking Baycol in March 2000 and continued taking it for seven months. Reed gives no reason for the discontinuance of the drug other than "she just ran out of her medicine and . . . didn't have it refilled." She now attributes pain in her arms, hands and shoulders to myopathy related to her use of Baycol. However, at the time she used the medication, she did not complain of any Baycol-related injuries to her doctor, John Downer, M. D., or her nurse practitioner.

¶ 4. Reed filed suit on September 9, 2002, against Bayer after seeing an attorney advertisement on television soliciting for Baycol users. It was not until after her lawsuit was filed that her new physician, Calvin Ramsey, M. D., diagnosed her with a Baycol-related injury.

¶ 5. After the circuit court denied Bayer's motion for change of venue, Bayer filed a petition seeking permission to file an interlocutory appeal, which petition was granted by this Court. See M.R.A.P. 5.

DISCUSSION

¶ 6. The decision to deny or grant a motion for a change of venue lies within the discretion of the trial court. Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997). We will not overturn that decision unless the trial court abuses its discretion. Id. It is the plaintiff's prerogative to decide where, among permissible venues, to sue the defendant. Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss.1997). Therefore, absent weighty reasons, a plaintiff's choice of forum should not be disturbed. Purdue Pharma, L.P. v. Estate of Heffner, 904 So.2d 100, 102 (Miss.2004). That being said, one of the basic tenets in our jurisprudence is "no matter how guilty one may be, no matter how atrocious his crime, nor how certain his doom, when brought to trial anywhere he shall, nevertheless, have the same fair and impartial trial accorded to the most innocent defendant." King v. Kelly, 243 Miss. 160, 173, 137 So.2d 808, 813 (1962) (quoting Tennison v. State, 79 Miss. 708, 31 So. 421, 422 (1902)). Although "the decisions on change of venue deal primarily and predominantly with criminal cases, a person is also entitled to a fair and impartial trial in a civil case." King, 137 So.2d at 813.

I. WHETHER THE CIVIL CHANGE OF VENUE STATUTE REQUIRES AN AFFIDAVIT.

¶ 7. After Bayer presented evidence of numerous legal advertisements and pre-trial publicity (both in newspapers and on television), allegedly producing a litigious environment in Holmes County, the circuit court denied Bayer's motion for change of venue, stating as follows:

Next is [Bayer's] motion for change of venue. [The] Court has read the motion, as well as the response, and that motion is denied. [The] Court does not find sufficient evidence — there is no affidavit from any Holmes County resident that says [Bayer] could not receive a fair and impartial trial in Holmes County. That motion is denied.

Even though the circuit court denied the motion on the general basis of insufficient evidence, the circuit court specifically faulted Bayer for failing to present a Holmes County citizen's affidavit.

¶ 8. Bayer correctly asserts that the circuit court, by requiring an affidavit from a Holmes County resident, has imposed an additional burden not required under Mississippi law. Miss.Code Ann. § 11-11-51 (Rev.2004) does not require such an affidavit. When a statute is unambiguous it is inappropriate for a court to add or take anything away from it. Wallace v. Raleigh, 815 So.2d 1203, 1208 (Miss. 2002). The statute, which has not been amended since 1942, is clear and unambiguous. Our recent decisions regarding change of venue in a civil action do not require such an affidavit. See Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 49 (Miss.2004); Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 450 (Miss.1997) (finding change of venue reasonable because of pretrial publicity and numerous similar claims filed in the same county; but not requiring an affidavit). The circuit court therefore erred when it required Bayer's motion for change of venue to be accompanied by an affidavit from a citizen of the county in which suit is filed stating that a defendant cannot receive a fair trial in that county. However, this error is harmless inasmuch as we affirm the denial of the motion on different grounds.

II. CHANGE OF VENUE BASED ON UNDUE INFLUENCE OR PREJUDICE.

¶ 9. Bayer contends that it would be prejudiced in a Holmes County trial because (1) Calvin Ramsey, M. D., "a prominent physician with an active practice [with over 2000 patients] in Holmes County," would be testifying on behalf of the plaintiff; (2) dozens of plaintiffs reside in Holmes County; (3) more than 135 product liability/pharmaceutical tort cases with more than 2200 plaintiffs have been filed in Holmes County in the past six years; (4) significant publicity including attorney advertisements in the county newspaper regarding lawsuits associated with prescription drugs which has permeated Holmes County; and (5) a local hostility toward business.

¶ 10. Miss.Code Ann. § 11-11-51 (Rev. 2004) provides for a change of venue where a party:

has good reason to believe, and does believe that, from the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and that the application is made as soon as convenient after being advised of such undue influence, prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party. . . .

¶ 11. Bayer's fears of prejudice are merely conclusory allegations at this stage. All of its claims are based on nothing but supposition. Indeed, in Beech v. Leaf River Forest Products, Inc., 691 So.2d 446, 449 (Miss.1997), the Court held:

Since part of the basis of the change of venue motion was the amount of pre-trial publicity, it would have been premature to file such a motion so long before the trial (three months prior to trial) that the effects of the publicity would have been too remote for a determination of resulting prejudice in the community.

Not stated, but implied, this holding is based on the Court's reasoning that the pre-trial publicity on which a motion for change of venue should be based on pre-trial publicity about the case in which the motion for change of venue is filed.

¶ 12. Here, Bayer has presented extensive evidence that there was pre-trial publicity regarding prescription medication in general; however, no evidence has been presented to link the publicity specifically with Bayer, Baycol or this particular lawsuit. Further, there is no evidence presented to indicate to this Court the extent of the effect any pre-trial publicity might have had on the venire. As far as we can discern,⁴ there has been no trial setting in this case. A determination at this point in the proceedings that no unbiased Holmes County jury could ever be seated would be nothing but speculation; thus, the circuit court was correct in denying the motion for change of venue because it was premature. The transcript of the hearing on Bayer's motion for change of venue shows that 150 Holmes County citizens had been selected to constitute the venire for a trial in this case.

¶ 13. We have described a plaintiff's ability to choose a forum as a "right": "Of right, the plaintiff selects among the permissible venues and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue." Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992) (citing Miss. Power Co. v. Luter, 336 So.2d 753, 754 (Miss.1976)). See also Re/Max Real Estate Partners, Inc. v. Lindsley, 840...