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Court reverses Propulsid Award

On May 13, 2004, the Mississippi Supreme Court handed down the second and third cases in a trilogy likely to have far reaching effects on litigants throughout the country who find themselves in state courts in Mississippi, and reversed a $48 million judgment against Janssen Pharmaceutica Inc. and Johnson & Johnson. Representing Janssen and Johnson & Johnson as trial and appellate counsel in all three cases were Christy D. Jones and other attorneys of Butler, Snow, O'Mara, Stevens & Cannada, PLLC and Robert L. Johnson of Natchez, Mississippi.

Three months earlier, on February 19, that Court had decided Janssen Pharmaceutica Inc. et al. v. Colantha Armond, et al., 866 So.2d 1092 (Miss. 2004), severing the claims of 56 plaintiffs, only one of whom was from the forum county, who used what had been considered Mississippi's liberal joinder rule to join their claims against Janssen, its parent company J&J, and 42 physicians based on allegations related to Janssen's medication Propulsid¨. The Court held 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" as required by Mississippi's Rule 20 and that allowing joinder "unfairly prejudices the defendants." It also instructed the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought a claim without reliance on another of the improperly joined plaintiffs.

The two decisions handed down May 13 build on and expand the joinder limitations expressed in Armond. Language in Armond focusing on the large number of plaintiffs and of treating physician defendants had led to speculation that the Court might reach a different result in a case involving fewer plaintiffs or physicians. Janssen Pharmaceutica Inc., et al. v. Bertha Grant, et al., No. 2003-IA-00174-SCT, which joined the claims of 4 plaintiffs, only one of whom resided in the forum county, against Janssen, J&J, Janssen's sales representative and one physician, ended that speculation. Finding Armond controlling on all issues, the Court severed the claims of each of the plaintiffs and remanded to the trial court with instructions to transfer their individual cases to those jurisdictions in which they could have been brought without reliance on another of the improperly joined plaintiffs. The Court also relied on Armond to reverse a $100 million jury verdict, remitted by the trial court to $48 million, in favor of 10 Propulsid plaintiffs against Janssen and J&J. Janssen Pharmaceutica Inc. and Johnson & Johnson v. Robert Bailey, et al., No. 2002-CA-00736-SCT. That case was filed in July 2000 in the Circuit Court of Jefferson County, Mississippi by 155 plaintiffs against those companies and two local pharmacies. The verdict appealed resulted from a four-week trial in September 2001 of claims of 10 of the 155, designated as a "trial group" by Plaintiffs' counsel. After two hours of deliberation, the jury awarded each of the ten identical verdicts of $10 million dollar compensatory damages, after which the trial court directed a verdict for Janssen and Johnson & Johnson on their punitive damages claims. Following its holding in Armond, the Court found the trial court had improperly joined the suits of the ten plaintiffs. It also found the identical damage awards "evident of improper joinder," given each Plaintiff's unique medical history and injuries and medical expenses ranging from $0 to in excess of $100,000.

The Court went further, and although it found the joinder issue alone sufficient to reverse the verdict, also addressed issues of venue, sufficiency of causation evidence and propriety of closing arguments, holding that each of those issues by itself merited a new trial.

The case was tried in Claiborne County, immediately north of Jefferson County, after the trial court had granted defendants' motion for change of venue based on arguments of preexisting bias against Janssen. This bias included elected officials as plaintiffs in the larger case, a high volume of similar litigation over the past six years, and negative publicity, including attorney advertising. Without input from counsel for the parties on an appropriate jurisdiction for trial, the trial court transferred venue for trial to Claiborne County and denied defendants' almost immediate motion for another transfer. That motion was based on similar arguments of preexisting bias in the adjacent county. The Supreme Court held the trial judge properly changed venue from Jefferson County, but found that "Claiborne County is not a proper venue in which a fair trial may be conducted."

On sufficiency of the evidence, the Court noted that the medical testimony provided by Plaintiffs failed to account for or address numerous preexisting conditions and other causative factors more likely to have caused Plaintiffs' symptoms than Propulsid¨. It found a "substantial basis to believe the damages awarded by the jury were based entirely on passion and prejudice," and that to allow the verdict to stand would "Ôsanction an unconscionable injustice [on] this Court.'"

The only issue submitted to the jury was that of inadequacy of warnings. The Court noted, though, that in closing argument Plaintiffs continually argued that Janssen's campaign to promote Propulsid¨ was false and misleading, with numerous references to "lying and cheating about promoting" and "promoting their drugs with lies." It also noted that "to further prejudice the jury, Plaintiffs' counsel suggested that the jury should Ôsend a message' to Janssen and Johnson & Johnson." Finding the closing essentially a punitive damages argument for intentional fraud intended to inflame and improperly prejudice the jury, the Court held the closing argument alone merited reversal.

Trial and appellate counsel for the plaintiffs in Bailey were James D. Shannon of Shannon Law Firm, Hazlehurst, Mississippi; James E. Upshaw and Lonnie D. Bailey of Upshaw, Williams, Biggers, Beckham & Riddick, LLP of Greenwood, Mississippi; T. Mark Sledge of Grenfell, Sledge and Stevens, PLLC, Jackson, Mississippi; and Edward Blackmon, Jr. of Blackmon & Blackmon, PLLC, Canton, Mississippi. Additional appellate counsel for Janssen and Johnson & Johnson in all three cases were Richard B. Goetz of O'Melveny & Myers, Los Angeles, California, and Donna Jacobs of Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, Mississippi. Counsel for Plaintiffs in Armond were Stephanie Daughdrill of Capshaw, Goss & Bowers, LLP, Dallas, Texas; Richard A. Freese of Langston, Sweet & Freese, P.A., Jackson, Mississippi; Collier Simpson of Collier Simpson & Associates, Madison, Mississippi; Michael T. Gallagher of Gallagher, Lewis, Downey & Kim, Houston, Texas; and Joe Tatum of Tatum & Wade, Jackson, Mississippi, and in Grant were James W. Nobles, Jr. of Jackson, Mississippi; Eugene C. Tullos of Raleigh, Mississippi; and Angelo J. Dorizas of Jackson, Mississippi.

CONTACT INFORMATION:
Sherry R. Vance, Director of Business Development
Butler, Snow, O'Mara, Stevens & Cannada, PLLC
P. O. Box 22567
Jackson, MS 39225-2567
601-985-4204
sherry.vance@butlersnow.com