IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-01255-SCT
WYETH LABORATORIES, A. KEITH LAY, JR., M.D., A. KEITH LAY, SR., M.D., ET AL.
v.
LONELLE JAMES, ET AL.
DATE OF JUDGMENT: 06/06/2003 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: FRED L. BANKS, JR. KENNETH W. BARTON LUTHER T. MUNFORD J. ROBERT RAMSAY WILLIAM M. GAGE JAMES W. SHELSON AMANDA CLEARMAN WADDELL ATTORNEYS FOR APPELLEES: FENTON B. DEWEESE, II EDWARD A. WILLIAMSON MERRIDA COXWELL EUGENE COURSEY TULLOS CHARLES RICHARD MULLINS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND REMANDED - 06/30/2005 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This appeal arises from a products liability suit brought by forty-two plaintiffs in Smith
County Circuit Court against the manufacturer of two diet drugs, fifteen doctors who
prescribed the drugs, and eight pharmacies who filled prescriptions for the drugs. Lonelle James, whose case was severed, and Alma Jones are the only Smith County plaintiffs remaining
in this litigation. None of the pharmacy defendants or the four remaining doctor defendants
in the case are residents of Smith County. The trial court granted a motion to sever the claims
of the lead plaintiff in the case and ordered a separate trial for her. Though the trial court
stayed the discovery and trial of the other plaintiffs’ claims, it denied defendants’ motion to
sever their claims and transfer venue. We granted Wyeth Laboratories and other defendants
permission to appeal the denial of their motion. See M.R.A.P. 5. They allege that the trial
court abused its discretion in failing to sever claims and transfer venue to a proper court for
each plaintiff. Finding that the trial court abused its discretion in denying defendants’ motion,
we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶2. Lonelle James, a resident of Smith County, Mississippi, and forty-one other plaintiffs
brought suit in Smith County against Wyeth Laboratories (hereinafter Wyeth), prescribing
doctors, and pharmacies who filled prescriptions for plaintiffs. Plaintiffs alleged that the
defendants were responsible for injuries they sustained from the ingestion of Wyeth’s drugs,
Pondimin and/or Redux.1 Wyeth filed a motion to sever and transfer the claims of plaintiffs
who were not residents of Smith County, which was joined by a number of the other
defendants. The trial court entered an order dated June 6, 2003, in which it severed the claims
of Lonelle James and set her case for trial, stayed the discovery and trial of the other plaintiffs’
claims, and denied defendants’ motion to sever and transfer venue and defendants’ motion for
1 This is a “Fen-Phen” case. Pondimin is the trade name for fenfluramine, and Redux is the trade name for dexfenfluramine.
2 certification of interlocutory appeal. This Court granted defendants’ petition for interlocutory
appeal on August 28, 2003. Plaintiffs sought voluntary dismissal of fourteen plaintiffs and
eleven of the fifteen defendant doctors, which this Court granted on March 24, 2004.
DISCUSSION
¶3. We review a trial court’s decision regarding joinder and venue for abuse of discretion.
Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092, 1095 (Miss. 2004).
I. Did the Trial Court Abuse its Discretion by Failing to Sever Plaintiffs’ Claims and Transfer Their Cases to an Appropriate Venue?
¶4. Defendants argue that the trial court erred in denying their motion to sever and transfer
venue because the claims of these plaintiffs do not comply with the requirements for
permissive joinder set forth in this Court’s recent Janssen line of cases.2 Plaintiffs claim that
the instant case is distinguishable from the Janssen cases and that their claims are properly
joined under Miss. R. Civ. P. 20(a).
¶5. Joinder of parties is proper under Rule 20(a) if “(1) the claims arise from the same
series of transactions or occurrences and (2) the claims share a common issue of law or fact.”
Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 33 (Miss. 2004). Both of these
prongs must be established before joinder is proper, and the 2004 amendment to the comments
to Rule 20 interprets the “transaction or occurrence” prong to require “a distinct litigable event
2 Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Grant, 873 So. 2d 100 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Scott, 876 So. 2d 306 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Keys, 879 So. 2d 446 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Jackson, 883 So. 2d 91 (Miss. 2004).
3 linking the parties.” Bailey, 878 So. 2d at 33-34 (citing Miss. R. Civ. P. 20 cmt.). In Armond,
this Court found that the prescribing of Propulsid by 42 different doctors 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.” Armond, 866 So.
2d at 1095. The Court further stated that there was “no litigable event common to all the
parties” because “each doctor-patient pair presents a different set of factual issues. Id. at
1099.
¶6. In addition to the Janssen cases, which provide ample support for granting defendants’
motion to sever and transfer venue, we recently decided Wyeth-Ayerst Laboratories v.
Caldwell, 2005 WL 171387 (Miss. Jan. 27, 2005), which we find controlling in the instant
case. Caldwell involved the same defendant (Wyeth), the same drugs (Pondimin and Redux),
the same alleged injury (valvular heart disease), and the same issues being litigated in this
matter. Only one of the seven plaintiffs and none of the defendants in Caldwell resided in
Jones County, where the suit was brought. Caldwell, 2005 WL 171387 at *2-3. Plaintiffs in
Caldwell alleged “valvular heart disease,” the same injury alleged by the plaintiffs in the case
at bar. Id. at 2.
¶7. The plaintiffs in Caldwell argued that their claims against the multiple defendants met
the same transaction or occurrence test because of:
ingestion of the same drugs, prescription in the same state, production by the same manufacturer, the plaintiffs’ trust in the seven different doctors who relied on false warning labels when prescribing the drug, and the same false and misleading warning labels resulting in the ingestion of the drugs.
4 Id. at *2. The plaintiffs here have failed to set out any facts or circumstances that are any
different from those in Caldwell or any of our other precedence that would satisfy the required
“same transaction or occurrences” prong of the permissive joinder test. The claims and facts
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-01255-SCT
WYETH LABORATORIES, A. KEITH LAY, JR., M.D., A. KEITH LAY, SR., M.D., ET AL.
v.
LONELLE JAMES, ET AL.
DATE OF JUDGMENT: 06/06/2003 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SMITH COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: FRED L. BANKS, JR. KENNETH W. BARTON LUTHER T. MUNFORD J. ROBERT RAMSAY WILLIAM M. GAGE JAMES W. SHELSON AMANDA CLEARMAN WADDELL ATTORNEYS FOR APPELLEES: FENTON B. DEWEESE, II EDWARD A. WILLIAMSON MERRIDA COXWELL EUGENE COURSEY TULLOS CHARLES RICHARD MULLINS NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND REMANDED - 06/30/2005 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. This appeal arises from a products liability suit brought by forty-two plaintiffs in Smith
County Circuit Court against the manufacturer of two diet drugs, fifteen doctors who
prescribed the drugs, and eight pharmacies who filled prescriptions for the drugs. Lonelle James, whose case was severed, and Alma Jones are the only Smith County plaintiffs remaining
in this litigation. None of the pharmacy defendants or the four remaining doctor defendants
in the case are residents of Smith County. The trial court granted a motion to sever the claims
of the lead plaintiff in the case and ordered a separate trial for her. Though the trial court
stayed the discovery and trial of the other plaintiffs’ claims, it denied defendants’ motion to
sever their claims and transfer venue. We granted Wyeth Laboratories and other defendants
permission to appeal the denial of their motion. See M.R.A.P. 5. They allege that the trial
court abused its discretion in failing to sever claims and transfer venue to a proper court for
each plaintiff. Finding that the trial court abused its discretion in denying defendants’ motion,
we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶2. Lonelle James, a resident of Smith County, Mississippi, and forty-one other plaintiffs
brought suit in Smith County against Wyeth Laboratories (hereinafter Wyeth), prescribing
doctors, and pharmacies who filled prescriptions for plaintiffs. Plaintiffs alleged that the
defendants were responsible for injuries they sustained from the ingestion of Wyeth’s drugs,
Pondimin and/or Redux.1 Wyeth filed a motion to sever and transfer the claims of plaintiffs
who were not residents of Smith County, which was joined by a number of the other
defendants. The trial court entered an order dated June 6, 2003, in which it severed the claims
of Lonelle James and set her case for trial, stayed the discovery and trial of the other plaintiffs’
claims, and denied defendants’ motion to sever and transfer venue and defendants’ motion for
1 This is a “Fen-Phen” case. Pondimin is the trade name for fenfluramine, and Redux is the trade name for dexfenfluramine.
2 certification of interlocutory appeal. This Court granted defendants’ petition for interlocutory
appeal on August 28, 2003. Plaintiffs sought voluntary dismissal of fourteen plaintiffs and
eleven of the fifteen defendant doctors, which this Court granted on March 24, 2004.
DISCUSSION
¶3. We review a trial court’s decision regarding joinder and venue for abuse of discretion.
Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092, 1095 (Miss. 2004).
I. Did the Trial Court Abuse its Discretion by Failing to Sever Plaintiffs’ Claims and Transfer Their Cases to an Appropriate Venue?
¶4. Defendants argue that the trial court erred in denying their motion to sever and transfer
venue because the claims of these plaintiffs do not comply with the requirements for
permissive joinder set forth in this Court’s recent Janssen line of cases.2 Plaintiffs claim that
the instant case is distinguishable from the Janssen cases and that their claims are properly
joined under Miss. R. Civ. P. 20(a).
¶5. Joinder of parties is proper under Rule 20(a) if “(1) the claims arise from the same
series of transactions or occurrences and (2) the claims share a common issue of law or fact.”
Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 33 (Miss. 2004). Both of these
prongs must be established before joinder is proper, and the 2004 amendment to the comments
to Rule 20 interprets the “transaction or occurrence” prong to require “a distinct litigable event
2 Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Grant, 873 So. 2d 100 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Scott, 876 So. 2d 306 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Keys, 879 So. 2d 446 (Miss. 2004); Janssen Pharmaceutica, Inc. v. Jackson, 883 So. 2d 91 (Miss. 2004).
3 linking the parties.” Bailey, 878 So. 2d at 33-34 (citing Miss. R. Civ. P. 20 cmt.). In Armond,
this Court found that the prescribing of Propulsid by 42 different doctors 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.” Armond, 866 So.
2d at 1095. The Court further stated that there was “no litigable event common to all the
parties” because “each doctor-patient pair presents a different set of factual issues. Id. at
1099.
¶6. In addition to the Janssen cases, which provide ample support for granting defendants’
motion to sever and transfer venue, we recently decided Wyeth-Ayerst Laboratories v.
Caldwell, 2005 WL 171387 (Miss. Jan. 27, 2005), which we find controlling in the instant
case. Caldwell involved the same defendant (Wyeth), the same drugs (Pondimin and Redux),
the same alleged injury (valvular heart disease), and the same issues being litigated in this
matter. Only one of the seven plaintiffs and none of the defendants in Caldwell resided in
Jones County, where the suit was brought. Caldwell, 2005 WL 171387 at *2-3. Plaintiffs in
Caldwell alleged “valvular heart disease,” the same injury alleged by the plaintiffs in the case
at bar. Id. at 2.
¶7. The plaintiffs in Caldwell argued that their claims against the multiple defendants met
the same transaction or occurrence test because of:
ingestion of the same drugs, prescription in the same state, production by the same manufacturer, the plaintiffs’ trust in the seven different doctors who relied on false warning labels when prescribing the drug, and the same false and misleading warning labels resulting in the ingestion of the drugs.
4 Id. at *2. The plaintiffs here have failed to set out any facts or circumstances that are any
different from those in Caldwell or any of our other precedence that would satisfy the required
“same transaction or occurrences” prong of the permissive joinder test. The claims and facts
asserted in Caldwell are virtually mirror images of the claims advanced by the plaintiffs in the
case at bar. This Court found that joinder was improper in Caldwell and that the plaintiffs’
claims should be severed and transferred to an appropriate venue. This decision was based, in
part, on the fact that plaintiffs would be required to show “how they were exposed to those
drugs” which would necessitate “introducing evidence of their unrelated interactions with
various doctors.” Id. at *3. We determined that introducing such evidence where there are
multiple plaintiff’s claims against multiple defendants would “inevitably result in the same
confusing presentation of evidence which we sought to avoid in reversing the trial court in
Armond.” Id. The same is true here.
¶8. Plaintiffs attempt to distinguish their case from this Court’s prior decisions on joinder.
We fail to see any distinguishing facts or circumstances. None of the plaintiffs’ arguments
have merit in light of our Janssen line of decisions and especially in view of Caldwell. We
found plaintiff’s joinder improper in Caldwell, where the same products, same pharmaceutical
company, same alleged injury, and same theories of liability (including fraud) were involved.
Therefore, based upon our well-documented precedents and particularly Caldwell, we find
joinder improper in the instant case.
5 CONCLUSION
¶9. We hold that the trial court abused its discretion in denying defendants’ motion to sever
and transfer venue. We reverse the circuit courts order and remand this case to the circuit
court which shall sever each plaintiff’s case and transfer it to the appropriate venue.
¶10. REVERSED AND REMANDED.
WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
GRAVES, JUSTICE, CONCURRING IN RESULT ONLY:
¶11. I agree with the result reached by the majority but not its opinion. My agreement is
based on the reasons previously stated in my specially concurring opinion in Janssen
Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092, 1102-04 (Miss. 2004). Here, the
majority’s reasoning is flawed to the extent it relies on the new comment to Rule 20 of the
Mississippi Rules of Civil Procedure (M.R.C.P.). Once again this Court is faced with the issue
of whether the claims of multiple plaintiffs were properly joined under M.R.C.P. 20. This
Court sought to address a perceived abuse of Mississippi’s liberal joinder rules in the area of
mass tort litigation first by fashioning a judicial remedy in Armond and then with an
amendment to the comments of M.R.C.P. 20. In attempting to clarify the joinder
requirements, this Court has coined the phrase “distinct litigable event;” however, in
subsequent cases, those members of the Court who have embraced this term have provided no
guidance or instruction as to what is necessary for finding “a distinct litigable event,” such that
joinder may be maintained.
6 ¶12. This Court should either acknowledge an equitable class action or amend the
Mississippi Rules of Civil Procedure to include a class action rule mirroring Federal Rule of
Civil Procedure 23, which forty-nine other states have done. Until then, we will continually
be faced with having to dispose of these matters on a case-by-case basis. This will also require
repeated attempts to provide structure for the now-amorphous term “distinct litigable event”
with each new decision. In the meantime, both the bench and bar are left to try and discern the
vague, fluid and indefinite meaning of the phrase “distinct litigable event.” This flies in the
face of judicial economy and common sense, so I do not join the majority opinion.