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Weekly UpdatesIn a major victory for corporate defendants, the Mississippi Supreme Court has spelled out strict limits to the state's substitute for class action - its "permissive joinder" rule - and left only one plaintiff in a lawsuit against those who manufactured and prescribed the drug Propulsid.
"We hold that joinder of these claims was improper and that the trial court abused its discretion in denying the motion to sever and transfer," Justice Kay B. Cobb wrote for the court Feb. 24 in Janssen Pharmaceutica, Inc., et al. v. Colantha Armond (2003-1A-00398-SCT).
Propulsid is a prescription medication used to treat gastro-esophageal reflux disease. The U.S. Food and Drug Administration approved it for commercial distribution in 1993 to 2000. But after reports of some 300 cardiac events among the 10 million who took the drug, Janssen restricted the drug to investigational use.
The company says that sparked thousands of claims.
One lawsuit was filed in Jones County Circuit Court by Colantha Arnold and 55 other Mississippi plaintiffs alleging injuries from the drug. Besides Janssen, defendants were Johnson & Johnson, its parent corporation; 42 Mississippi physicians who allegedly prescribed Propulsid; and South Central Regional Medical Center.
Although only Armond and the medical center were Jones County residents, Circuit Judge Billy Joe Landrum allowed the other plaintiffs to be joined under Mississippi Rule of Civil Procedure 20.
"All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action," the rule says.
Janssen argued the rule didn't allow this lawsuit, but Judge Landrum rejected the argument based on the Mississippi Supreme Court's 2002 decision in Illinois Central Railroad v. Travis interpreting the rule liberally.
"The general philosophy . . . 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," the court said in Travis.
The latest ruling limits the applicability of that opinion, however, because "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," Cobb wrote.
"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," he said.
"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."
Because the decision was reached based on Rule 20, Justice Cobb wrote for the Supreme Court, there was no need to reach constitutional challenges raised by Janssen.
Chief Justice Edwin Lloyd Pittman and Justices James W. Smith Jr., George C. Carlson Jr. and Jess H. Dickinson concurred in Cobb's opinion. Justice James E. Graves Jr., joined by Justice Charles Easley, concurred with a separate opinion.
"Mississippi is the only state that permits no class actions of any kind, whether through common or statutory law," Graves wrote.
"It is no wonder that a type of 'super-joinder' arose under our Rule 20," he said.
"For too long our Rule 20 has been stretched and pulled in various directions, and forced to accomplish tasks it was never designed to do. The majority today does not ameliorate that unfortunate situation. It is imperative that we modernize our rules of civil procedure by adopting a class action provision."
Justices William L. Waller Jr. and Oliver E. Diaz Jr. did not take part in the case.
The U.S. Chamber of Commerce, which has recently been critical of Mississippi's legal system, welcomed the ruling as a victory over forum shopping. "This ruling is one step toward restoring some much-needed fairness to a troubled civil justice system," said Lisa Rickard, president of the Chamber's Institute for Legal Reform.
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