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Reversal of fortune? Court overturns $48-million judgment

On May 13, the Mississippi Supreme Court took a step toward curbing mass tort litigation in the state when it reversed a $48-million judgment against Janssen Pharmaceutica Inc. and Johnson & Johnson (J&J), and separately reaffirmed a previous ruling ordering separate trials for plaintiffs taking a prescription drug.

“The significance of this trilogy for doctors is that they will no longer have to defend cases in jurisdictions far away from their places of business and they will not have to defend actions involving tons of plaintiffs even though the doctor may have treated only one patient,” said Christy D. Jones of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, of Jackson, counsel in all three cases. “For corporate America, it means that the accumulation of cases for trial becomes more difficult, at least in prescription drug cases.”

Lance Stevens, past president of the Mississippi Trial Lawyers Association, pointed out that it is a procedural ruling only.

“I believe this is further evidence that the Mississippi Supreme Court is taking a very restricted view of joinder, but this does not reflect poorly on the merits of these claims whatsoever,” he said.

Improper and unfairly prejudiced?

Three months earlier, on Feb. 19, the court ruled in the case of Janssen Pharmaceutica Inc. v. Armond that the joinder of 56 plaintiffs who allegedly took Propulsid was improper and unfairly prejudiced the rights of Janssen Pharmaceutica Inc., a subsidiary of J&J, and the physicians named as defendants in the lawsuit.

The court wrote: “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” as required by Mississippi’s Rule 20.

The ruling also instructed the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought the claims without relying on another improperly joined plaintiff. In a special concurring opinion, Justice James E. Graves Jr. urged the adoption of “a class action rule that would provide due process to both defendants and plaintiffs.”

“At the same time the court issued the Armond opinion the justices also amended the comments to Rule 20 that govern procedural rules, and imposed upon trial judges the duty to consider whether or not claims of two or more different plaintiffs could be tried together, which ought to ensure a fairer outcome,” said Jones.

On May 13, the court overturned the 2001 $48-million judgment against Janssen and J&J, the first Propulsid case to be completed through trial and a jury verdict. Janssen Pharmaceutica Inc. v. Bailey was filed in Jefferson County Circuit Court in July 2000, but the trial court ordered the trial to be moved to Claiborne County after concluding that the defendants could not receive a fair trial in Jefferson County.

Defendants also challenged Claiborne County as an appropriate venue for trial. The justices ruled that defendants did not receive a fair trial in Claiborne County, and that the damages awarded by the jury were based on passion and prejudice. The court also ordered separate new trials for each plaintiff.

The justices wrote that the verdict was “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice (on) this court” and that the medical testimony provided by plaintiffs “failed to address and account for the innumerable pre-existing conditions and other causative factors, which are more likely than Propulsid to have caused plaintiffs’ symptoms.”

“The two decisions handed down May 13 confirm the limitations on joinder in prescription drug cases expressed in Armond,” said Jones. “The large number of plaintiffs and of physicians involved in Armond had led to speculation that the court might reach a different result in a case involving fewer plaintiffs or physicians. But the court’s reversal of Janssen Pharmaceutica Inc. v. Grant, involving only four plaintiffs and one doctor, ended that speculation.”

‘Swing back to fairness and balance’

Tort reform opponents pointed out that the ruling alleviates the urgency to pass tort reform legislation, saying that the state Supreme Court has already addressed the issue.

“The Mississippi Supreme Court’s decision showed that it is coming around to the idea that our state civil justice courtrooms have been out of control for some time,” said Steve Browning, director for Mississippians for Economic Progress. “Their swing back to the direction of fairness and balance in our legal system is a positive step, but is by no means the last step that needs to be taken.

“I believe it took the defendants in the Propulsid case some five to 10 years before they were able to get a more reasonable verdict in our state’s courtrooms. But there are a lot of small businesses that can’t afford the expense of a legal defense for five to 10 years before they see more reasonable and balanced justice. We need fairness and balance to happen at the trial court level, not just the appellate court level.”

On May 27, plaintiffs in the Bailey case filed a petition for a rehearing, asking the court to reconsider and change its ruling. House Judiciary A Committee Chairman Ed Blackmon (D-Canton) is counsel for the plaintiffs in the Bailey case.

Contact MBJ contributing writer Lynne W. Jeter at mbj@thewritingdesk.com.



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