Janssen Pharmaceutica, Inc. v. Armond, No. 2003-IA-00398-SCT.

• Decision Date: 19 February 2004
• Docket Number: No. 2003-IA-00398-SCT.
• Parties: JANSSEN PHARMACEUTICA, INC., Johnson & Johnson, Joseph L. Faison, M.D., Edward Quinones, M.D., James Riser, M.D., and Billy Wansley, et al. v. Colantha ARMOND, et al.
• Court: Mississippi Supreme Court

866 So.2d 1092

JANSSEN PHARMACEUTICA, INC., Johnson & Johnson, Joseph L. Faison, M.D., Edward Quinones, M.D., James Riser, M.D., and Billy Wansley, et al. v. Colantha ARMOND, et al.

No. 2003-IA-00398-SCT.

Supreme Court of Mississippi.

February 19, 2004.

Donna Brown Jacobs, Christy D. Jones, John C. Henegan, Michael Bradford Hewes, Anita K. Modak-Truran, Jackson, Kari Louise Foster, Richard B. Goetz, Charles C. Lifland, Walter Estes Dellinger, Robert L. Johnson, III, Natchez, Amanda Clearman Waddell, J. Robert Ramsay, Hattiesburg, John Lewis Hinkle, Al Nuzzo, Ridgeland, Joe R. Colingo, Stephen Walker Burrow, Pascagoula, attorneys for appellants.

Richard Arthur Freese, Merrida Coxwell, Jackson, Richard O. Burson, Laurel, attorneys for appellees.

EN BANC.

COBB, Justice, for the Court.

¶ 1. Colantha Armond and 55 other Mississippi Plaintiffs ("Plaintiffs") filed suit in the Jones County Circuit Court for injuries they claimed were caused by a prescription medication, Propulsid. Named as defendants were the makers of Propulsid, Janssen Pharmaceutica, Inc., a New Jersey corporation, and its New Jersey based parent corporation Johnson and Johnson ("Janssen"); 42 Mississippi physicians ("Physicians") who allegedly prescribed Propulsid to the various plaintiffs; and South Central Regional Medical Center. Armond and the medical center are the only Jones County residents.

¶ 2. The plaintiffs seek recovery on the following theories: strict liability, negligence, breach of warranty, negligent misrepresentation, fraud and deceit/civil conspiracy, agent misrepresentation, products liability, and medical malpractice/negligence. They seek to hold all defendants jointly and severally liable to each plaintiff for compensatory and punitive damages.

¶ 3. The defendants filed a Motion to Sever and Transfer Venue for Separate Trials. The circuit court denied that motion as well as defendants' oral motion for certification of interlocutory appeal.¹ Defendants' Petition for Interlocutory Appeal by Permission Pursuant to M.R.A.P. 5(a), was granted by this Court. They raise a number of issues which have been restated for clarity here.

I. WHETHER PLAINTIFFS SATISFY THE REQUIREMENTS FOR PERMISSIVE JOINDER UNDER MISSISSIPPI RULE OF CIVIL PROCEDURE 20(A)?

II. WHETHER JOINDER OF PLAINTIFFS DEPRIVES DEFENDANTS OF DUE PROCESS UNDER U.S. CONSTITUTION, AMENDMENT XIV, AND MISSISSIPPI RULE OF CIVIL PROCEDURE

42, BECAUSE JOINT TRIAL OF PLAINTIFFS' CLAIMS WILL RESULT IN CONFUSION AND UNFAIR PREJUDICE, DEPRIVING DEFENDANTS OF THE RIGHT TO A FAIR TRIAL?

III. WHETHER MISSISSIPPI RULE OF CIVIL PROCEDURE 82(C) MAY CONSTITUTIONALLY EXPAND STATUTORY VENUE RIGHTS FOR PLAINTIFFS WHO WOULD OTHERWISE HAVE NO STATUTORY BASIS FOR VENUE IN JONES COUNTY UNDER MISSISSIPPI LAW?

¶ 4. This case brings to light important issues of joinder and venue under Mississippi law in complex personal injury suits which involve: multiple diverse plaintiffs suing multiple diverse defendants; combinations of medical malpractice, products liability, and other diverse claims; complex causation issues with voluminous amounts of evidence; and potentially large damage awards. Although the defendants have raised three issues in this appeal, we find the issue of proper application of Rule 20 to be dispositive and, thus, do not reach the remaining issues.

¶ 5. Of the 56 plaintiffs joined in this case, only one resides in Jones County² and none of the 42 physician defendants resides there. Janssen characterizes the action as "bald forum shopping," and asserts that Mississippi courts are in dire need of guidance on the issues of venue and joinder. Because we have not before been presented with a case that tests the limits of Mississippi Rule of Civil Procedure 20(a), it is understandable that courts are unsure what, if any, limits exist. For example, recent interpretations by federal courts have found that M.R.C.P. 20 would allow joinder of plaintiffs in circumstances where F.R.C.P. 20 would not, even though the text of the two rules, in essence, are the same. One federal court has stated:

Given the Mississippi Supreme Court's holdings that joinder of the plaintiffs' claims in Norman and in Travis was not improper, we are unable to say that under Mississippi law it was improper for the plaintiffs in these cases to join their claims as they did. Therefore, even though it seems unlikely to us that joinder in those cases would be appropriate under Federal Rule 20, there is no basis for a finding of fraudulent misjoinder under Mississippi law.

In re Bridgestone/Firestone, Inc., 260 F.Supp.2d 722, 730-31 (S.D.Ind.2003) (referring to Prestage Farms, Inc. v. Norman, 813 So.2d 732, 735 (Miss.2002) and Illinois Central R.R. v. Travis, 808 So.2d 928, 931 (Miss.2002)). In Jamison v. Purdue Pharma Co., 251 F.Supp.2d 1315 (S.D.Miss.2003), the federal court said "[t]his situation presents a dilemma for a district court confronted with a removed case consisting of parties who are properly joined under Mississippi's Rule 20, but misjoined under that rule's federal counterpart." Id. at 1320.

¶ 6. In the relatively few joinder cases decided by this Court to date, we have given broad discretion to the trial court to allow joinder of claims. See Ill. Cent. R.R. v. Travis, 808 So.2d 928, 931 (Miss.2002)

("The general philosophy of the joinder provisions of these Rules is to allow virtually unlimited joinder at the pleading stage, but to give the Court discretion to shape the trial to the necessities of the particular case."). However, we have not heretofore been faced with facts as compelling as those in the current case, which are in stark contrast to those in prior cases decided by this Court. See Am. Bankers Ins. Co. v. Alexander, 818 So.2d 1073 (Miss.2001).

¶ 7. We hold today that the prescribing of the drug Propulsid by 42 different physicians to 56 different patients did not arise out of the same transaction, occurrence, or series of transactions or occurrences, and that joinder in this case unfairly prejudices the defendants. We hold that this joinder was improper and that the trial court abused its discretion in denying the motion to sever and transfer. We reverse the trial court's order and remand the case for severance of all claims against defendants who have no connection with Armond. This would include all physicians who have not prescribed Propulsid to Armond. We also instruct the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.

FACTS

¶ 8. Propulsid is a prescription medication manufactured by Janssen Pharmaceutica, Inc., used to treat gastroesophageal reflux disease (GERD). The Food and Drug Administration (FDA) approved Propulsid for sale in the United States in July 1993, after 12 years of research and clinical testing and more than five years of use in Europe by millions of patients. The 1993 package insert noted that there had been rare reports of tachycardia (rapid heartbeats) in patients taking Propulsid, but no incidents involving serious injury or death. In late 1994, Janssen received two reports of patients who experienced a potentially fatal heart arrhythmia known as "torsade de pointes." These patients were also taking the drug ketoconazole, an antifungal medication. After a drug interaction study was performed, a new package insert was issued in February, 1995, warning against taking Propulsid with this and other medications. During the seven years after FDA approval for sale in the U.S., the package insert for Propulsid was revised five times: in February 1995, October 1995, June 1998, May 1999, and January 2000. Along with the new package inserts, Janssen sent hundreds of thousands of "Dear Doctor" letters to inform physicians and pharmacists of the revised safety information. During the period from 1993 to 2000, there were reports of about 300 cardiac events among the approximately ten million patients given Propulsid in the United States. Due to the potential seriousness of such an event, Janssen decided to make Propulsid available only through an investigational limited access program in May 2000. Janssen claims that this decision to withdraw Propulsid from commercial distribution has sparked thousands of claims across the country that Propulsid has caused all manner of injuries.

STANDARD OF REVIEW

¶ 9. The standard of review regarding joinder and venue is abuse of discretion. Ill. Cent. R.R. v. Travis, 808 So.2d 928, 931 (Miss.2002). See also Am. Bankers Ins. Co. of Florida v. Alexander, 818 So.2d 1073, 1075-76 (Miss.2001)

; Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 12 (Miss.2002); Earwood v. Reeves, 798 So.2d 508, 512 (Miss.2001); Salts v. Gulf Nat'l Life Ins. Co., 743 So.2d 371, 373 (Miss.1999); Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss.1998). "Ultimately, the controlling principle here is that it is the plaintiff's choice to decide where to sue the defendant among the permissible venues." Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss. 1997). See also Clark v. Luvel Dairy Prods., Inc., 731 So.2d 1098, 1106 (Miss. 1998). A plaintiff's choice of a forum should not be disturbed except for weighty reasons. Stubbs, 825 So.2d at 14; Ill. Cent. R.R. v. Samson, 799 So.2d 20, 25 (Miss.2001); Salts, 743 So.2d at 373; Burgess v. Lucky, 674 So.2d 506, 510 (Miss. 1996).

DISCUSSION

¶ 10. Plaintiffs claim that they have been injured in various ways as a result of using Propulsid. They argue that the harm they suffered was caused by Janssen's conduct: specifically, inadequate development, testing, and manufacture of Propulsid, which led to the marketing of an unreasonably dangerous product. Plaintiffs further claim that Janssen misrepresented the results of testing on Propulsid, mislabeled the product, engaged in fraudulent advertising and marketing campaigns for Propulsid, and continued...