Bristol-Meyers Squibb Company et al. v. Saline County Circuit Court

BRISTOL-MEYERS SQUIBB COMPANY, et al. v.
SALINE COUNTY CIRCUIT COURT

97-558                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 7, 1997


1.   Venue -- personal-injury action -- requirements -- application of venue
     provision mandatory. -- Under Ark. Code Ann.  16-60-112 (1987),
     which requires that a personal-injury action be brought either
     in the county where the accident occurred or in the county
     where the plaintiff resided at the time of the injury, the
     term "accident" has been defined as the "incident" or
     "wrongful act" that caused the injury complained of, which
     must be corporeal or physical in nature; the application of
     this statutory venue provision to cases involving recovery for
     personal injury is mandatory.

2.   Venue -- controlled by statutory provisions. -- Venue is controlled by
     the provisions of the Arkansas Code rather than the
     characterization of a claim given by a plaintiff.

3.   Venue -- determined by real character of action. -- When two or more
     actions are pled that lie in different venues, venue is
     determined by the real character of the action and the
     principal right being asserted.

4.   Venue -- mandatory provisions of venue statute applied. -- Where the
     supreme court concluded that plaintiffs' primary purpose was
     to recover damages for personal injury suffered due to the use
     of implants during breast-augmentation procedures, the
     mandatory provisions of Ark. Code Ann.  16-60-112(a) were
     applied.

5.   Venue -- improper venue with respect to plaintiffs whose accident occurred
     in other counties -- writ of prohibition issued. -- Viewing the
     complaint as a whole in order to determine the real character
     of the action, the supreme court concluded that plaintiffs
     sought a recovery that would otherwise require each to proceed
     either in the county where the accident occurred or where each
     resided at the time of the injury; the court held that the
     county where the action was filed was an improper venue with
     respect to eighteen plaintiffs whose accident occurred in
     other counties at the time of the injury; the supreme court
     determined that a writ of prohibition should issue to the
     circuit court with instructions to dismiss the claims of those
     plaintiffs other than the one who resided in the county where
     the action was filed.


     Petition for Writ of Prohibition; granted.

     Shook, Hardy & Bacon, by: David Brooks and Deborah Moeller;
Baxter, Wallace & Jensen, by: Ray Baxter; Wright, Lindsey &
Jennings, by: M. Samuel Jones III and Claire Shows Hancock, for
petitioners Bristol-Meyers Squibb Company and Medical Engineering
Corporation.
     Friday, Eldredge & Clark, by: Donald H. Bacon, for petitioner
HCA Health Services of Midwest, Inc.
     Mitchell, Williams, Selig, Gates & Woodyard, by: Mark N.
Nalbert, for petitioner Physician's Surgery Center of Arkansas,
Inc.
     Friday, Eldredge & Clark, by: Tonia P. Jones, for petitioner
Baptist Health Center d/b/a Baptist Medical Center; St. Joseph's
Regional Health Center.
     Clevenger, Angel & Miller, by: Richard L. Angel, for
petitioners James Billie, M.D.; James D. Billie, M.D., P.A.; Norton
Allen Pope, M.D.; John H. Brunner, M.D.; Hot Springs Medical Group,
P.A. d/b/a Burton Eisele Clinic.
     Laser, Wilson, Bufford & Watts, P.A., by: David M. Donovan,
for petitioners John Edward Allen, Jr., M.D., Individually, and
Arkansas Surgery Clinic, P.A.
     Mitchell, Williams, Selig, Gates & Woodyard, by:  R.T. Beard,
for petitioners James S. Beckman, Jr., M.D., Individually, and
Fayetteville Plastic Surgey Clinic; John D. McCracken, M.D.,
Individually; Robert Grandt Vogel, M.D.; Thomas H. Allen, M.D.,
Individually, and Arkansas Plastic Surgery Association, Ltd.
     Huckabay, Munson, Rowlett & Tilley, P.A., by: Mike Huckabay,
for petitioner St. Vincent Infirmary.
     Boswell, Tucker, Brewster & Hicks, by: Robert A. Ginnaven III,
for respondents.

     Per Curiam. 
     This is a petition for writ of prohibition filed by the
defendants in a case that involves what are alleged to be faulty
breast implants.  Complaints have been filed by 19 plaintiffs
against both Bristol-Meyers Squibb Company (Bristol-Meyers) and
Medical Engineering Corporation (MEC) for (1) strict liability in
tort for supplying a defective and unreasonably dangerous product,
(2) negligence in the design and manufacture of the product, and
(3) fraud in the marketing and distribution of the product.  The 19
plaintiffs also assert claims for strict liability in tort based on
supplying a defective product against defendant doctors and medical
facilities residing and located in Washington County, Garland
County, and Pulaski County.  Of the 19 plaintiffs, only one, Brenda
Davis, resides in Saline County, where the action was filed.
     Plaintiffs claim that venue is proper in Saline County because
they have brought an action for fraud, and pursuant to Ark. Code
Ann.  16-60-113(b) (1987), venue is proper in any county where any
one plaintiff resides.  Defendants respond that the real character
of the action is one for personal injury, which, pursuant to Ark.
Code Ann.  16-60-112(a) (1987), requires that the action be
brought either in the county where the accident occurred or in the
county where the plaintiff resided at the time of the injury. 
Defendants petition this court for a writ of prohibition to the
Saline County Circuit Court to dismiss the claims of those 18
plaintiffs, other than Brenda Davis, who did not reside in Saline
County at the time of their alleged injury.  We agree with the
defendants and grant the writ.
     In Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. 235,
150 S.W.2d 193 (1941), this court discussed the applicability of
Act 314 of 1939, now codified at  16-60-112(a):
          This act is--as it professes to be--a venue statute,
     and localizes actions for personal injury by requiring
     that such actions shall be brought (a) in the county
     where the accident occurred which caused the injury or
     death, or (b) in the county where the person injured or
     killed resided at the time of the injury[.]
Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. at 237-38, 150 S.W.2d  at 194.  The term "accident" has been defined as the
"incident" or "wrongful act" that caused the injury.  Coca-Cola
Bottling Co. v. Kincannon, Judge, 202 Ark. at 239, 150 S.W.2d  at
194.  Furthermore, the "injury" complained of must be corporeal or
physical in nature.  See, e.g., Belin v. West, 315 Ark. 61, 864 S.W.2d 838 (1993); Tilmon v. Perkins, 292 Ark. 553, 731 S.W.2d 212
(1987).  The application of this venue provision to cases involving
recovery for personal injury is mandatory.  Forrest City Machine
Works v. Colvin, 257 Ark. 889, 521 S.W.2d 206 (1975).
     In their second amended complaint, plaintiffs asserted claims
against Bristol-Meyers and MEC for fraud and negligence and a claim
against all defendants for strict liability in tort.  Although
numerous causes of action are pled, this court has long held that
venue is controlled by the provisions of the Arkansas Code rather
than the characterization of a claim given by a plaintiff. See,
e.g., Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989)(holding that personal-injury statute applied to a claim
for negligent entrustment that resulted in death); Evans
Laboratories v. Roberts, Judge, 243 Ark. 987, 423 S.W.2d 271
(1968)(holding that personal-injury statute controlled even though
plaintiff asserted a claim for breach of implied warranty that
resulted in physical injury).  Furthermore, when two or more
actions are pled that lie in different venues, venue is determined
by the real character of the action and the principal right being
asserted.  See Fraser Bros. v. Darrah Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Frank A. Rogers & Co. v. Whitmore, Judge, 275 Ark. 324,
629 S.W.2d 293 (1982); Atkins Pickle v. Burrough-Uerling-Brasuell,
275 Ark. 135, 628 S.W.2d 9 (1982).           
     Based on the review mandated by our case law, we conclude that
plaintiffs' primary purpose is to recover damages for personal
injury suffered due to the use of the implants during their breast-
augmentation procedures.  As a result, the mandatory provisions of
 16-60-112(a) must be applied.  See Forrest City Machine Works v.
Colvin, supra.  Undoubtedly, plaintiffs have stated facts
sufficient to support an action for fraud against Bristol-Meyers
and MEC that, under other circumstances, would provide an
appropriate venue for all plaintiffs against Bristol-Meyers and MEC
in Saline County.  See Ark. Code Ann.  16-60-113(b).  See also
Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).  However,
viewing the complaint as a whole in order to determine the real
character of the action, it is clear that plaintiffs seek a
recovery that would otherwise require each to proceed either in the
county where the accident occurred or where each resided at the
time of the injury.  See Ark. Code Ann.  16-60-112(a).  See, e.g.,
Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989).  Saline
County is an improper venue as to the 18 plaintiffs whose accident
occurred in either Washington County, Garland County, or Pulaski
County, and who did not reside in Saline County at the time of the
injury.
     Based on our review of the pleadings, we determine that the
writ should issue to the Saline County Circuit Court with
instructions to dismiss the claims of those plaintiffs other than
Brenda Davis.
     Writ granted.
     Glaze and Thornton, JJ., not participating.