                         IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2003-IA-00275-SCT

JANSSEN PHARMACEUTICA INC., JOHNSON &
JOHNSON, ET AL.

v.

JOE KEYS, ET AL.


DATE OF JUDGMENT:                                  1/28/2003
TRIAL JUDGE:                                       HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED:                         SMITH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                          DONNA BROWN JACOBS
                                                   CHRISTY D. JONES
                                                   JOHN C. HENEGAN
                                                   ROBERT L. JOHNSON, III
                                                   KARI LOUISE FOSTER
                                                   AL NUZZO
                                                   JOHN LEWIS HINKLE
ATTORNEYS FOR APPELLEES:                           RICHARD CLINTON STRONG
                                                   KEN R. ADCOCK
                                                   EUGENE COURSEY TULLOS
                                                   MARK D. MORRISON
NATURE OF THE CASE:                                CIVIL - PERSONAL INJURY
DISPOSITION:                                       REVERSED AND REMANDED - 07/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        EN BANC.

        GRAVES, JUSTICE, FOR THE COURT:

¶1.     Thirty-seven plaintiffs filed suit in Smith County Circuit Court for injuries allegedly sustained after

usage of the drug Propulsid. Seven of those plaintiffs were from Smith County. The suit was filed against

the makers of Propulsid, Janssen Pharmaceutica, Inc., which is a corporation based in New Jersey;

Janssen’s New Jersey-based parent corporation, Johnson & Johnson (collectively, “Janssen”); eight
pharmacies (Canova’s City Drug, Fred’s Pharmacy, Kroger, Gibson Pharmacy, Market Drugs, Mr.

Discount Drugs, Ridgeland Discount Drugs, and Seale Drug Co.); two Mississippi physicians (Dr. Michelle

Van Norman, of Rankin County, and Dr. Mike Morgan, of Hinds County); and other “John Does”

(“unidentified individuals, corporations, pharmacies, pharmacist[s], physicians or other entities”).

¶2.     The plaintiffs included four causes of action in their suit:1 first, for strict liability; secondly, for

negligence; third, for “breaches of warranties;” and lastly, a claim of “misrepresentation/fraud.”

¶3.     Janssen contended that the plaintiffs and their claims were misjoined. The Smith County Circuit

Court denied Janssen’s motion to sever the plaintiffs and to transfer venue but certified their interlocutory

appeal to this Court on those issues. We granted permission for this interlocutory appeal. See M.R.A.P.

5. We considered this case in context of the other Janssen cases pending before this Court, but declined

to consolidate the cases.

¶4.     Our recent decision in Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.

2004), fully controls the case at hand. Accordingly, we reverse and remand for the trial court to sever the

claims against the physician defendants and the defendant pharmacists and pharmacies from the

proceedings and to transfer the cases to proper venues.




                                              DISCUSSION

¶5.     Our standard of review regarding the joinder of plaintiffs and the correctness of venue is to

determine if the trial court abused its discretion. Armond, 866 So. 2d at 1097. A plaintiff’s choice of


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        Although the plaintiffs’ amended complaint has causes of action numbered “IV” and “V,” there
was no “III.”

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venue should not be disturbed unless there is no credible evidence supporting the factual basis for the claim

of venue. Burgess v. Lucky, 674 So.2d 506, 510 (Miss. 1996); see also Armond, 866 So. 2d at

1098 (“plaintiff’s choice of a forum should not be disturbed except for weighty reasons”). As in Armond,

this case turns on the proper application of M.R.C.P. 20, our permissive joinder rule, and thus the other

issues raised by the parties need not be considered. Id. at 1094.

¶6.     It is imperative we strike a balance in our jurisprudence between the need for fairness to the parties

and judicial economy. In the end, the benefits of efficiency must never be purchased at the cost of fairness.

Id. at 1100 (quoting Malcolm v. Nat’l Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993)). For “it is

possible to go too far in the interests of expediency and to sacrifice basic fairness in the process.”

Malcolm, 995 F.2d at 354. The discretion to consolidate cases is restrained by our paramount concern

for a fair and impartial trial for all parties, plaintiffs and defendants. Armond, 866 So. 2d at 1100. There

is an innate danger in asking jurors to assimilate vast amounts of information against a variety of defendants

and then sort through that information to find what bits of it apply to which defendant.

¶7.     Here, the jury might well be overwhelmed with thirty-seven separate fact patterns that are offered

to prove malpractice. That is why we ordered the claims against the defendant physicians severed in

Armond. Id. at 1102. The two prongs of Rule 20 must always be met. While it does not rise to the

level of a distinct factor in the joinder analysis, an important consideration is if the joinder will result in undue

prejudice to the parties.

                                               CONCLUSION

¶8.     Because this case mirrors Armond, the claims against the physician defendants and pharmacists

must be severed. The order of the trial court is reversed, and this case is remanded for the severance of



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all claims against defendants who have no connection with each individual plaintiff. This includes all

physicians and pharmacists or pharmacies who have not prescribed or furnished Propulsid to the individual

plaintiffs. We also instruct the trial court to transfer the plaintiffs’ cases to those jurisdictions in which each

plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.

¶9.       REVERSED AND REMANDED.

       SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY,
J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., DIAZ AND
RANDOLPH, JJ., NOT PARTICIPATING.




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