IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-IA-01287-SCT

PURDUE PHARMA, L. P., PURDUE

PHARMA INC., THE PURDUE

FREDERICK COMPANY AND WINSTON

T. CAPEL, M.D.

v.

ESTATE OF JOCELYN HEFFNER,

JENNIFER BURROUGH AND EDWARD

SOFFRA

DATE OF JUDGMENT: 6/2/2003

TRIAL JUDGE: HON. JANNIE M. LEWIS

COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: STEVE J. ALLEN

CHRISTOPHER A. SHAPLEY

ROBERT L. GIBBS

LAWRENCE ELVIN ALLISON, SR.

CHRIS J. WALKER

JOHN LEWIS HINKLE, IV

ATTORNEYS FOR APPELLEES: WILLIAM ROGER SMITH, III

JAMES MICHAEL TERRELL

ROBERT GORDON METHVIN

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND REMANDED - 10/07/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

COBB, PRESIDING JUSTICE, FOR THE COURT:
1 Heffner died after the commencement of the litigation, and her estate was later substituted. The

Estate of Heffner will hereafter be referred to as “Heffner.”

2

 Purdue Pharma L.P., Purdue Pharma Inc., and The Purdue Frederick Co.

3

 Abbott Laboratories and Abbott Laboratories, Inc.

2

¶1. Three plaintiffs filed suit in the Circuit Court of Holmes County for injuries allegedly sustained after

using the prescription drug OxyContin. Jocelyn Heffner was a resident of Holmes County,1 Jennifer

Burrough is a resident of Yazoo County, and Edward Soffra is a resident of Hancock County. They filed

suit against non-resident defendants Purdue Pharma2 and Abbott3, the makers and marketers of

OxyContin. Plaintiffs’ claims against Purdue Pharma and Abbott include strict liability in tort (defectively

designed, marketed and manufactured, unsafe for intended purpose, and unaccompanied by proper

warnings); negligence (negligent design, manufacture, testing, inspecting, packaging, labeling, distributing,

marketing and failure to warn); breach of express and implied warranty; fraudulent misrepresentation;

negligent misrepresentation; suppression and concealment; and conspiracy. Plaintiffs also named as a

defendant Dr. Winston T. Capel, a resident of Madison County, who treated Jennifer Burrough in Hinds

County. Malpractice claims against Dr. Capel included negligence or wantonness in his prescribing

OxyContin for Burrough, and in his alleged failure to warn her of the addictive nature of the drug. The

other two plaintiffs stated in the complaint that each was prescribed OxyContin by an unnamed licensed

physician.

¶2. Purdue Pharma removed the case to federal district court, arguing that Dr. Capel was fraudulently

joined. Ruling that a Mississippi state court might find Dr. Capel properly joined, the federal court

remanded the case back to circuit court. Back in state court, Purdue Pharma filed a Motion to Sever

and/or Transfer Venue, which was denied by the Holmes County Circuit Court. Purdue Pharma petitioned
4

 Colantha Armond was the only plaintiff that was a resident of the county in which the suit was

brought.

3

this Court for interlocutory appeal, which we granted. See M.R.A.P. 5. Purdue Pharma’s issues have

been combined and restated for conciseness:

(1) Whether plaintiffs were improperly joined under M.R.C.P. 20(a) and the trial court erred in not severing

and transferring each plaintiff’s case to a proper venue.

(2) Whether M.R.C.P. 82(c) unconstitutionally alters a defendant’s statutory venue rights.

¶3. Our recent case of Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss. 2004),

controls the disposition of this case based on improper joinder of parties. Because of this, we do not

address issue two. Armond was the first in a line of cases similar to the present case in which diverse

plaintiffs have brought product liability claims, generally coupled with malpractice and other claims, in a

single suit against diverse defendants. In Armond, we held that claims against defendants with no

connection to the named plaintiff Armond4 must be severed, and the improperly joined plaintiffs’ cases were

to be transferred to a venue in which each could have been brought without reliance on M.R.C.P. 82(c).

¶4. Based on Armond, we hold in the present case that plaintiff Heffner’s suit may proceed against

Purdue Pharma and Abbott in Holmes County. However, plaintiffs Burrough and Soffra are improperly

joined with Heffner as to claims against any physician defendants, including Dr. Capel and any yet to be

named physicians. Thus, Burrough’s and Soffra’s claims must be severed and their cases transferred to

a venue in which the action could have been independently brought pursuant to M.R.C.P. 82(d).

DISCUSSION

¶5. 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 Stubbs v. Miss. Farm Bureau Cas. Ins. Co.,
4

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).

¶6. Purdue Pharma argues that the three plaintiffs cannot be permissively joined under Mississippi Rule

of Civil Procedure 20 because their claims do not arise from the “same transaction, occurrence or series

of transactions or occurrences.” M.R.C.P. 20(a). In keeping with our decision in Armond, we agree.

In Armond, we stated:

In the present case, each plaintiff/doctor combination has its own set of facts and

evidence surrounding the prescribing of Propulsid, the transaction or occurrence which is

the basis for each claim. Thus, there is no single transaction or occurrence or series of

transactions or occurrences connecting all 56 plaintiffs and 42 physician defendants. We

reverse the trial court’s order, and we 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.

Armond, 866 So.2d at 1102 (¶ 34). We specifically held that Rule 20 does not allow diverse plaintiffs

to bring claims against diverse defendants where there is no transaction or occurrence common to them all.

Rule 20(a) imposes two specific requisites to the joinder of parties: “(1) a right to relief must be asserted

by or against each plaintiff or defendant relating to or arising out of the same transaction or occurrence;
5

 We note that a majority of the en banc Fifth Circuit has recently expressed its preference for

the term improper joinder, instead of fraudulent joinder. Smallwood v. Ill. Cent. R.R., 2004 WL

2047314, at *1 n.1 (5th Cir. Sept. 10, 2004)(en banc).

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and, (2) some question of law or fact common to all the parties will arise in the action. Both of these

requirements must be satisfied in order to sustain party joinder under Rule 20(a). . . .” M.R.C.P. 20 cmt.

(emphasis added). The mere taking of the same prescription drug does not supply plaintiffs with the same

transaction or occurrence, or same series of transactions or occurrences, as required by Rule 20. As

noted in Armond, the prescribing by a physician of a drug to a patient is a separate and individual

transaction or occurrence from the prescribing of the same drug by another doctor to another patient.

¶7. The analysis in Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31 (Miss. 2004), balances

judicial efficiency with fairness to each party. “Considerations of convenience and economy must yield to

a paramount concern for a fair and impartial trial.... The benefits of efficiency can never be purchased at

the cost of fairness.” Armond, 866 So.2d at 1100 (¶ 29) (quoting Malcolm v. Nat’l Gypsum Co., 995

F.2d 346, 354 (2d Cir. 1993)). A court must consider the amount of evidence a jury must assimilate and

how much of this evidence would be individualized rather than common. If damages for personal injury

are requested, then individualized evidence would necessarily have to be presented when proving causation

and extent of injury. Depending on the complexity of the case, individualized evidence pertaining to as few

as two plaintiffs against a single defendant or a single plaintiff against two defendants may be prejudicial to

a party.

¶8. Plaintiffs argue that the federal district court’s determination that Dr. Capel was not fraudulently

joined5 is determinative of proper joinder under M.R.C.P. 20. We disagree. A finding against fraudulent

joinder is not the same as a finding for proper joinder. See Griggs v. State Farm Lloyds, 181 F.3d
6

694, 699 (5th Cir. 1999) ("To establish that a non-diverse defendant has been fraudulently joined to defeat

diversity jurisdiction, the removing party must prove that there has been outright fraud in plaintiff's pleading

of the jurisdictional facts, or that there is absolutely no possibility that the plaintiff will be able to establish

a cause of action against the non-diverse defendant in state court"); Cavallini v. State Farm Mut. Auto

Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995) ("The burden of proving a fraudulent joinder is a heavy one.

The removing party must prove that there is absolutely no possibility that the plaintiff will be able to establish

a cause of action against the in-state defendant in state court") (citations omitted). We note the district

court for the Southern District of Mississippi applied our holding in Armond, finding that joinder of a

physician with the pharmaceutical defendants as to the claims of plaintiffs not treated by the physician is

improper. See Jones v. Nastech Pharmaceutical, 319 F. Supp. 2d 720, 728 (S.D. Miss. 2004)

(“The Court finds that Dr. Tanious was egregiously misjoined with the pharmaceutical company as to all

Plaintiffs who were not treated by Dr. Tanious. This is in accord with the plain language of [M.R.C.P.]

Rule 20.”).

¶9. We also note that district courts have relied on the Comment to M.R.C.P. 20 in saying that

M.R.C.P. 20 might allow joinder of the plaintiffs and defendants, where F.R.C.P. 20 would not, because

“Mississippi’s Rule 20 has been given an extraordinarily broad interpretation that allows ‘virtually unlimited

joinder at the pleadings stage.’” Jamison v. Purdue Pharma Co., 251 F. Supp. 2d 1315, 1320 (S.D.

Miss. 2003) (quoting from M.R.C.P. 20 cmt.). This language was subsequently deleted from the

Mississippi Rule 20 Comment in February, 2004, at the same time that Armond was decided.

¶10. We hold that the trial court erred in denying Purdue Pharma’s motion to sever and transfer. Claims

against Dr. Capel must be severed and plaintiff Burrough’s case must be transferred to a venue in which

it could have independently been brought. Additionally, any claim by Soffra against any named or
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unnamed defendant not sharing a common transaction or occurrence with plaintiff Heffner must also be

severed and transferred.

CONCLUSION

¶11. As in the previous pharmaceutical cases, diverse plaintiffs may not bring a single suit against diverse

defendants. Therefore, we reverse the order denying petitioners’ motion to sever and transfer the

improperly joined plaintiffs’ cases. Additionally, we remand this case to the circuit court (1) for transfer

of Burrough’s and Soffra’s cases, consistent with M.R.C.P. 82 (d), to a venue in which each could have

been independently brought without reliance on M.R.C.P. 82(c) and (2) for further proceedings on

Heffner’s case.

¶12. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR.

EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, GRAVES

AND RANDOLPH, JJ., NOT PARTICIPATING.