IN TH SUPREME COURT OF TH STATE OF MISSISSIPPINO.2004-IA-02524-SCT

* * *

AMRICAN HOME PRODUCTS CORPORATION;WYTH-A YERST LABORATORISCOl\ AN,a Division of Amercan Home Products Corporation;A. H. ROBINS COMPAN, INCORPORATED APPELLANS-DEFENDANS

VS. FILE:bMAR 3 a 2006 APPELLEE'-PLAITIFFMY..SUMIN

om~e.., th..C'..lcCOUrt ¡ye Qat....OfA,p....'a

REBUTTAL BRIF OFAPPELLANTWYTH

Appeal of InterloçutoryOrders of Honorable Robert G. EvaI, Circuit Judge

Circuit Cour ofSirth County, Mississippi

Kenneth W. Baron(MB #2093)WíllamM. Gage (M #8691)LeAnW.Nealey (M #8497) .BUTLER, SNOW, O'MA

STEVENS &CANADA, PLLC17th Floor, AmSonthPlazaPost Offce Box 22567Jackson, Mississippi 39225-2567(601) 948-5711

Robert D.Gholson (M #4811)BUR & FORM LLPPost Offce Box 6523Laurel, Mississippi . 39441 -6523

(601) 425-0400

ATTORNYS FOR APPELLAN WYTH

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPINO.2004-IA-02524-SCT

* * *

AMERICAN HOME PRODUCTS CORPORATION;WYTH-A YERST LABORATORIS COMPAN,a Division of American Home Products Corporation;A. H. ROBINS COMPAN, INCORPORATED APPELLANTS-DEFENDANTS

VS.

MY. SUMLIN APPELLEE-PLAITIFF

REBUTTAL BRIEF OF APPELLANT WYTH

Appeal of Interlocutory Orders of Honorable Robert G. Evans, Circuit JudgeCircuit Cour of Smith County, Mississippi

Kenneth W. Baron (MB #2093)

Wiliam M. Gage (MB #8691)

LeAn W. Nealey (MB #8497)BUTLER, SNOW, O'MAR,

STEVENS & CANADA, PLLC17th Floor, AmSouth PlazaPost Office Box 22567Jackson, Mississippi 39225-2567(601) 948-5711

Robert D. Gholson (MB #4811)BUR & FOR1\1 LLPPost Office Box 6523Laurel, Mississippi 39441-6523(601) 425-0400

ATTORNEYS FOR APPELLANT WYETH

TABLE OF CONTENTS

TABLE OF CONIENTS.............................. ..................................................................... ........... i

TABLE OF AUTHORITIES ....................................................................................................... ii

PRELIMINARY STATEMENT ......................................... ........................ .............. ...... ............. 1

ARGUMENT A.'\ AUTHORITIES...........................................................................................3

A. This Cour's Review of the Eligibility Issue is De Novo Because the Trial CourApplied the Wrong Legal Standard. .......................................................................... 3

B. The Trial Cour Should Have Dismissed Plaintiffs Case For Lack Of Eligibility ToSue Under the CAS and Mississippi Law. ................................................................. 4

1. Applying Either a Standing or Daubert Analysis, PlaintiffsClaims Must Be Dismissed. ...............................................................................4

2. Plaintiff Bears the Burden of Proving Her Eligibility to SueWyeth, Though In This Case the Allocation of Burdens MakesNo Difference..................................................................................................... 6

C. The Trial Cour Should Have Transferred This Case To Wayne County Because

Venue In Smith County Is Improper. ......................................................................... 8

1. The Facts of Record Demonstrate That Venue Is Proper OnlyIn Wayne County. ..............................................................................................8

2. Plaintiffs Allegation of Continuing Har Does Not EstablishVenue in Smith County...................................................................................... 8

CONCLUSION................ .... ........ ............................................................................................... 11

CERTIFICATE OF SERVICE................................... ................................................................ 1 2

CERTIFICATE OF FILING ................................... .................................. ................... ..... ..... ..... 13

T ABLE OF AUTHORITIES

State Cases

3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005)........................................................................... 3

Capital City Ins. Co. v. G.B. "Boots" Smith Corporation, 889 So. 2d 505 (Miss. 2004) ............ 10

Flight Line, Inc. v. Tanksley, 608 So. 2d 1149 (Miss. 1992)..........................................................8

Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344 (1943).............................. 9

Forrest. County General Hosp. v. Conway, 700 So. 2d 324 (Miss. 1997)................................ 9, 10

Mississippi ex rei. Hood v. Madison County ex reI. Madison County Bd. ofSup'rs.,873 So. 2d 85 (Miss. 2004) ................................................................................................... 10

Quitman County v. State, 910 So. 2d 1032 (Miss. 2005)................................................................ 3

Stubbs v. Mississippi Farm Bureau Cas. Ins. Co., 825 So. 2d 8 (Miss. 2002) ............................... 8

Wal-Mart Stores, Inc. v. Johnson, 807 So. 2d 382 (Miss. 2001).................................................... 9

Wiliams v. Stevens, 390 So. 2d 1012 (Miss. 1980)....................................................................... 7

Federal Cases

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)....................................... 1,2,3,4

Statutes and Rules

Miss Code An § 11-11-11 (repealed Januar 1, 2003) ........................... .................................... 10

Miss. Code. An. § 11-11-3 (effective prior to Januar 1,2003).........................................3,8, 10

Miss. R. Evid. 702................ ....... .............................. .................................................................. 1, 4

11

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPINO. 2004-UA-02524-SCT

* * *

AMRICAN HOME PRODUCTS CORPORATION;WYTH-AYERST LABORATORIS COMPANY,a Division of American Home Products Corporation;A. H. ROBINS COMPAN, INCORPORATED APPELLAt"\TS-DEFENDANS

VS.

MY SUMLIN APPELLEE-PLAINTIFF

PRELIMINARY STATEMENT

Plaintiff-Appellee Myra Sumlin, in her response to Defendant-Appellant Wyeth's brief to

ths Cour, acknowledges that Wyeth has a contractual right under the Nationwide Class Action

Settlement Agreement ("CAS") to challenge substantively her medical eligibility to bring this

diet drug lawsuit. She misapprehends, however, what that right requires. For example, she

neglects even to address the tral cour's failure to make a theshold finding regarding her

medical eligibility to sue in its role as guardian of its own subject matter jursdiction. Although

the tral court previously acknowledged in the James case that this assessment of standing is

precisely what the eligibility provisions of the CAS require (RE. 5491; R 310), it plainly made

no such determination in this case, and plaintiff does not even attempt to contend otherwise.

Instead, plaintiff seizes on Wyeth's additional arguent that the CAS and Mississippi

law required the tral cour, at a mium, to analyze the relevance and reliability of her

proffered FDA Positive diagnosis pursuant to Miss. R Evid. 702 and Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993) -- a form of review more deferential than the CAS-

mandated standing analysis, but rigorous nonetheless. Plaintiff mischaracterizes the tral cour's

1

determination, claiming that the tral cour did, in fact, engage in a Daubert analysis but "chose

not to exclude the testimony of (her) expert" concerning whether she has FDA Positive mitral

hear valve regurgitation after rinding "that (her) echocardiogram was performed in a medically

reasonable maner." (Appellee's Brief at 1, 3). The tral cour made no such finding.

On the contrar, the trial cour applied only "a Rule 56 (sumar judgment) standard,"

and determned that "the issue of the FDA positive echocardiogram is a fact issue for the jur's

determation." (R.E. 0180; R 557). Plaintiffs attempt to divine a Daubert analysis from this

rulig is nothing short of a post hoc revision of the tral cour's reasoning. Nowhere in the tral

cour's letter ruling is there any suggestion that it engaged in that analysis and reached that

holding.

In any event, plaintiff ignores the overrding issue here: By leaving the question of

medical eligibility to the jur without either undertakng the requisite standing analysis or

fulfilling its gatekeeping obligation under Daubert, the tral cour effectively ruled that a diet

drg plaintiff may overcome the contractually-mandated eligibility requirement solely upon

having received an FDA Positive diagnosis from a qualified cardiologist -- regardless of the

methodology used to arrive at that diagnosis or the reliabilty of the evidence on which it is

based. In so holding, the tral cour applied the wrong legal standard and impermissibly nullfied

Wyeth's undisputed and bargained-for right under the CAS to challenge plaintiffs eligibility to

sue. The tral court's error is paricularly apparent here, where the overwhelming evidence

establishes unequivocally that Sumlin canot satisfy the CAS opt-out criteria.

Moreover, plaintiff offers no viable argument or evidence justifyng the tral cour's

denial of Wyeth's motion to transfer venue from Smith County to Wayne County. Plaintiffs

defense of that ruling is contrar to the factual record adduced below and rests entiely on an

2

unsupported and unworkable interpretation of the applicable venue statute, Miss. Code. An. §

11-11-3 (effective prior to Januar 1, 2003).

For these reasons and those given in Wyeth's openig brief, this Cour should reverse

both of these erroneous rulings.

ARGUMENT AND AUTHORITffS

A. This Court's Review of the Eligibilty Issue is De Novo Because the TrialCourt Applied the Wrong Legal Standard.

Wyeth's appeal concerns, in par, the tral cour's failure even to engage in the CAS-

mandated standing inquiry requirng it to find facts regarding the plaintiffs eligibility to sue, let

alone a Daubert inquiry requirng it to assess the relevance and reliability (and thus the

admissibility) of her proffered FDA Positive diagnosis. Instead, the tral cour incorrectly

applied only a sumary judgment standard and delegated the eligibility determination to the

Jur. Because the tral cour applied neither a subject matter jursdiction standard nor an

evidentiary admissibility standard, the error presented to ths Cour is "one of law," 3M Co. v.

Johnson, 895 So. 2d 151, 160 (Miss. 2005), and the applicable standard of review is de novo.

Quitman County v. State, 910 So. 2d 1032, 1035 (Miss. 2005); see Wyeth's Opening Brief at 19.

Plaintiff does not contest that the tral cour failed to consider standing and found no facts

concernng her opt-out eligibility. This concession alone establishes the propriety of de novo

review. Neverteless, plaintiff contends that, because the tral cour never said it was not

assessing the admssibility of her proffered scientific evidence under Daubert -- indeed, never

mentioned the admissibility hurdle at all -- this Cour should assume that it made that assessment

and that this appeal merely concerns whether its conclusions were correct. (Appellee's Brief at

3) (asserting that there is "no evidence that the tral cour misapplied the correct legal standard,"

and concluding as a result that the tral court must have "made a decision not to exclude the

testimony of Sumin's expert and not to exclude Sumlin's echocardiogram")).

3

Plaintiff s reasonig is circular, speculative, and wrong. The tral court's ruling was

hardly silent regarding the legal standard it was applying. To the contrar, it set forth that

standard in no uncertain terms: "I applied a Rule 56 (sumar judgment) standard." Nowhere

did the cour reference Daubert, Miss. R. Evid. 702, or the admission or exclusion of evidence.

B. The Trial Court Should Have Dismissed Plaintifts Case For Lack OfEligibilty To Sue Under the CAS and Mississippi Law.

1. Applying Either a Standing or Daubert Analysis, Plaintifts Claims

Must Be Dismissed.

Under either the contractually required standing analysis or an evidentiar admissibility

analysis, on ths record plaintiff simply canot satisfy the CAS requirements for medical

eligibility. Indeed, even if the tral cour actually had applied a Daubert standard as plaintiff

incorrectly claims, allowing a jury to hear her expert's diagnosis would have been a clear abuse

of discretion.

As explained by Wyeth's expert, Dr. Sanjiv Kaul, plaintiffs echocardiogram was

acquired using an Nyquist limit universally regarded as impermissibly low, thereby exaggerating

the appearance of any valvular regugitation on that study. Moreover, her purorted mitral

regugitant jet did not last thoughout most or all of systole, as a tre regugitant jet must, and in

fact occured durng diastole -- the wrong part of the cardiac cycle. And, plaintiff proffered

wholly unsupportable measurements of regugitant jet area ("RJA") and left atral area ("LAA")

required under the CAS to quantify the degree of regugitation present. Her RJA tracing was

substantially exaggerated because it included large areas of low velocity blood flow and static

blood, rather than high velocity regugitant flow; her LAA tracing was taken inappropriately

early in systole and in a foreshortened echocardiographic view of her left atrum. (See Wyeth's

Openig Brief at 13-15, 28-33).

4

Plaintiff offered no evidence to rebut these substantial, individually and collectively fatal

infirmities. Her own expert, Dr. Jay Libys, offered only a conclusory affidavit that neither

responded to nor attempted to excuse the numerous deficiencies identified by Dr. KauL. Indeed,

in her reply brief, plaintiff barely mentions Dr. Libys' affidavit. Instead, plaintiff wrenches from

context testimony given by Dr. Kaul to erroneously suggest that the cru of Dr. Kaul's opinion

was that her echocardiogram was "sufficient to allow a diagnosis of (her) condition."

(Appellee's Brief at 5). Dr. Kaul, however, said no such thng.

To the contrar, Dr. Kaul made it abundantly clear that the varous deficiencies present

on plaintiffs echocardiogram would so exaggerate or obscure any regugitation as to make it

impossible for any interpreting cardiologist to reliably quantify the degree of regurgitation

present as required by the CAS. Dr. Kaul fuher explained, moreover, that the study showed so

little regugitation that, regardless of any arificial exaggeration of apparent jet size, he stil could

determine conclusively that any regugitation she had was not signficant enough to support an

FDA Positive diagnosis. See Tr. 51 (""(I)f I saw a regurgitant jet, a real regugitation, at that low

Nyquist I couldn't tell you how much it was. But I see none or the closing volume at (an) . . .

artificially low Nyquist limit. . . . So, I can make a diagnosis that this patient has trace mitral

regurgitation.").

Indeed, Dr. Kaul unequivocally stated that, although the amount of regugitation shown

in an echocardiogram might be measured differently by two readers, good faith "interreader

varability" could not possibly account for the difference between his opinion and the

"diagnosis" proffered by plaintiff:

Q. Are you familiar with the phrase "interreader varability," Doctor?

A. Yes, I am.

Q. What does that mean?

5

A. It means that two people who are equally well trained will have - therewil be a varability in the amount of regugitation they may measure. That mayhave to do with where they draw it, the measurement - it's inherent in anymeasurement that it's going to be some varability between two observers.

Q. Now, there's obviously a difference in your assessment of this echo andthe assessment that was made by Dr. Hutchinson and Dr. Libys. Can that beaccounted for by interreader varability?

A. Absolutely not.

Q. Can you explain that?

A. Yeah. This is not where we are trg to decide whether ths is 5 percentor 10 percent. The gentleman or whoever made the measurement made it in thewrong part of the cardiac cycle, and there is no question about that. So, there'snot a matter of opinion that this is 2 percent or 3 percent. It's a matter of doingsomerthingJ totally wrong, and they did something wrong. So, there is notinterreader variabilty. This is something else.

Tr. 51-52 (emphasis added).

Simply put, plaintiffs expert got it "totally wrong." A diagnosis must be supported by a

techncally adequate echocardiogram interpreted in a medically reasonable maner. Plaintiffs

proffered diagnosis is supported by neither. Accordingly, she is not eligible to pursue her

lawsuit against Wyeth, and the tral cour erred in denyig Wyeth's motion to dismiss for lack of

medical eligibility.

2. Plaintiff Bears the Burden of Proving Her Eligibilty to Sue Wyeth,

Though In This Case the Allocation of Burdens Makes No Difference.

Although Plaintiff does not contend that the tral cour undertook the requisite standing

inquiry, she appears to concede the need for that inquiry by arguing that "Wyeth. . . bear(s) the

burden of disproving Sumlin's standing (to sue)." (Appellee's Brief at 4). Plaintiffs insistence

that Wyeth bears the burden of proof is based on language from the April 2004 decision rendered

by the New Jersey state court charged with overseeing diet drg lawsuits filed in that state

(erroneously identified in plaitiffs brief as the federal diet drg MDL cour), in which that

6

cour analyzed eligibility under the rubric of scientific admissibility and placed the burden of

proof on Wyeth.

Wyeth recognzes that the CAS does not explicitly address who has the burden of proof

in an eligibility hearng. But Mississippi law imposes the burden of proof squarely on the

plaintiff. See Willams v. Stevens, 390 So. 2d 1012, 1014 (Miss. 1980) ("one of the fudamental

priciples in invoking a cour's jursdiction is that the plaintif . . must show a right in hiself to

invoke the jursdiction of the cour." (emphasis added)); Wyeth's Opening Brief at 23-24 i

Nevertheless, in this case, the question of the burden of proof is academic. Regardless of

wh!ch pary bears the burden, and under either a standing analysis or a scientific admissibility

analysis akin to that undertaken by the cour in New Jersey, the evidence presented below

requires dismissaL. Thus, the burden issue is less important than the requirement that a

meanngful eligibility hearng be held in the first place and that the cour decide eligibility at an

early stage of the case. Wyeth bargained for an early and meaningful right to challenge

eligibility under the CAS precisely to avoid the burdens of litigating baseless lawsuits such as

this one. The tral court, by applying only a sumar judgment standard and yielding the

threshold eligibility inquiry to the jur, erroneously deprived Wyeth of the benefit of that

bargain.

i For similar reasons, it is Wyeth's view that the cour in New Jersey, by employing only an admssibility

standard and placing the burden on Wyeth, confered on plaintiffs rights above and beyond thoseexpressly granted to them under the CAS and enacted a procedure tht is more deferential to plaintiffsthan the CAS contemplates, thereby effectively lettg through the door many claims that are not trly

FDA Positive. Significantly, even under New Jersey's less rigorous form of eligibility review, roughlynine out of every ten cases in which Wyeth challenged eligibility still were dismissed, either voluntarilyor by cour order, due to medically unsound and methodologically deficient FDA Positive "diagnoses."See Wyeth's Opening Brief at 28-32.

7

C. The Trial Court Should Have Transferred This Case To Wayne CountyBecause Venue In Smith County Is Improper.

With respect to Wyeth's motion to transfer venue to Wayne County, plaintiff now

maintains that venue is proper in Smith County under Miss. Code An. § 11- 11-3 because she

alleged in her Complaint that "her claims accrued in whole or in par" in that county. (Appellee's

Brief at 6). This arguent fails for two reasons.

1. The Facts of Record Demonstrate That Venue Is Proper Only InWayne County.

This Cour consistently has recognized that it may look beyond the complaint's

allegations to ascertain proper venue. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss.

1992) ("In venue disputes, courts begi with the well-pleaded allegations of the complaint

(which) may be supplemented - and contested - by affdavits or other evidence in cognizable

form.") (emphasis added); see Stubbs v. Mississippi Farm Bureau Cas. Ins. Co., 825 So. 2d 8, 14

(Miss. 2002). The record before the tral cour firmly establishes that venue is proper only in

Wayne County. Defendant Dr. Steve Morrs, who purortedly prescribed Redux to plaintiff, is

the only resident defendant in this case. At all relevant times, Dr. Morrs was a resident of

Wayne County, and his medical practice was located in Wayne County. (RE. 191, R. 6; R.E.

151, 153, Tr. 54, 56). Plaintiff received and filled her Redux prescriptions in Wayne County,

lived in Wayne County at that time, and took the drg in Wayne County. (RE. 151; Tr. 54; see

generally Wyeth's Openig Brief at 33-34). On this record, plaintiffs claim unquestionably

"accrued" in Wayne County alone.

2. Plaintifls Alegation of Continuing Harm Does Not Establish Venue

in Smith County.

Plaintiff neverteless contends that her clai "accrued" in Smith County, where she lived

at the time she filed this lawsuit, because, although her alleged physical har purortedly

occured in Wayne County, her alleged physical and emotional damages have continued to

8

mount durg her residency in Smith County. (Appellee's Brief at 6-7). That arguent is both

legally unsupportable and unworkable.

As this Court explained in Wal-Mart Stores, Inc. v. Johnson, 807 So. 2d 382, 387 (Miss.

2001): "A cause of action accrues for venue puroses either where the actual tortious conduct

occurs or where the plaintiff suffers actual injures from the negligence (as opposed to the mere

manifestation of pre-existing injuries)." (Emphasis added). Although plaintiff quotes part of this

same test in her brief (Appellee's Brief at 6), she tellngly omits the key parenthetical phrase

emphasizing the difference between "actual injures" and "the mere manfestation of pre-existing

injures." In this case, any harm plaintiff allegedly has continued to experience while in Smith

County, although arguably relevant to the issue of damages, is the "mere manifestation of pre-

existing injuries" that occured and that caused her claim to accrue (if at all) only .in Wayne

County.

Forrest County General Hosp. v. Conway, 700 So. 2d 324 (Miss. 1997), relied on by the

Cour in Wal-Mart, is ilustrative. See Wal-Mart, 870 So. 2d at 387. In that case, the Conways

sued Forrest County General Hospital for negligently misdiagnosing their child. Conway, 700

So. 2d at 326. The misdiagnosis took place at Forrest County General, and the child was

subsequently moved to University Medical Center in Hinds County where her arms and legs had

to be amputated in the course of her lengthy treatment. Id. at 325. Plaintiffs argued venue was

proper in Hids County (where subsequent treatment and the amputation occured), but this

Cour disagreed:

We find that the intial damage in (ths) case. . . occured and accrued in ForrestCounty when the doctors allegedly failed to properly diagnose the disease. At thatpoint, the initial damages occured. The actions at the University Medical Centersimply manifested the injury which had already occurred in Forrest County.

Id. at 327 (emphasis added). See also Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14

So. 2d 344, 349 (1943) ("causes of action accrue where the effective cause of the damage

9

occurs"; plaintiffs libel claim, therefore, accrued where newspaper was published, not where

plaintiff resided).

Similarly, the only injur alleged by plaintiff that forms the basis for her cause of action

against Wyeth occurred in Wayne County. Consequently, any har she has experienced while

in Smith County is merely a "manfest(ation)" of that "injur which has already occured."

Conway, 700 So. 2d at 327.

Furthermore, plaintiff's interpretation of the applicable venue statute contravenes the

plain language of that statute and would lead to an absurd result. Under plaintiff's view, any

plaintiffwho claims to suffer from "continuous" damages would be permitted sue wherever he or

she travels or temporarily is located. A plaintiff could thereby circumvent the plain language of

Miss. Code An. § 11-11-3 and file suit wherever he or she "resides" or "is domiciled" or "may

be found" -- terms that, with respect to a plaintiff, appear nowhere in that provision.2 See

Mississippi ex reI. Hood v. Madison County ex rei. Madison County Bd. of Sup'rs., 873 So. 2d

85, 90 (Miss. 2004) ("The most fundamental rule of statutory constrction is the plain meanng

rule, which provides that if a statute is not ambiguous, then this Cour must apply the statute

according to its terms. ").

Additionally, as detailed in Wyeth's opening brief, plaintiff's proffered interpretation of

the venue statute, if permitted, would flout this Cour's holding in Capital City Ins. Co. v. G.B.

"Boots" Smith Corporation, 889 So. 2d 505 (Miss. 2004) -- that a resident defendant's right

under Miss. Code. An. § 1 1 -11-3 to be sued in a county where he or she may be found trps a

plaintiff's right under Miss Code An § 11-11-11 to sue "where the plaintiff then resides or is

domiciled." (See Wyeth's Opening Brief at 33-34).

2Miss. Code An. § 11-11-3, which all paries agree controls in this case, permtted venue only (1) "in the

county in which the defendant or any of them may be found," or (2) "in the county where the cause ofaction may occur or accre."

10

CONCLUSION

Plaintiff fails to address or refute the arguments submitted by Wyeth in support of its

appeaL. This Cour should, therefore, reverse the tral court's ruling and dismiss Sumlin's claims

in toto based on her lack of medical eligibility, or remand ths case to the tral cour with

instructions to enter such a dismissaL. Alternatively, the case should be remanded to Smith

County Circuit Cour, with instrctions to transfer to the proper venue, Wayne County Circuit

Cour, and with instrctions to that cour to determne Sumlin's eligibility consistent with the

standards delineated in Wyeth's papers. Wyeth prays for such other general or specific relief as

may be appropriate.

"-wTHIS, th~day of March, 2006.

Respectfully submitted,

WYTH

By: &4,, W.~Kenneth W. Baron MB #2093)William M. Gage (MB #8691)LeAn W. Nealey (MB #8497)

ITS ATTORNYSOF COUNSEL:

BUTLER, SNOW, O'MAR, STEVENS & CAt"\ADA, PLLC17th Floor, AmSouth PlazaPost Office Box 22567Jackson, Mississippi 39225-2567(601) 948-5711

Robert D. Gholson (MB #4811)BUR & FORMAN, LLPPost Office Box 6523Laurel, MS 39441-6523(601) 425-0400

11

CERTIFICATE OF SERVICE

I, LeAn W. Nealey, one of the attorneys for Wyeth, do hereby certify that I have this day

served a tre and correct copy of the above and foregoing document, by mailing same by United

States Mail with postage fully prepaid thereon to the following:

Honorable Robert G. EvansCircuit Cour of Smith CountyPost Office Box 545Raleigh, MS 39153

.SMITH COUNY CIRCUIT COURT JUGE

William R CouchRichard L. LajaunieDEAKE - COUCH LAW FIRPost Office Box 2072Hattiesburg, MS 39403

Subrina L. CooperSUBRIA L. COOPER, P A500 Central Avenue, Suite 300Laurel, MS 39440

Thomas Q. Brame, Jr.Post Office Box 301Bay Springs, MS 39422

ATTORNYS FOR PLAIIFF

Mark S. Howard513 Cour StreetPost Office Box 918Waynesboro, Mississippi 39367

ATTORNY FOR STEVE MORRS, III, M.D.

')llSO CERTIFIED, this th~ day of March 2006.

M1Y h),~LEAt"\ W. :tmALEY

12

CERTIFICATE OF FILING

I, LeAn W. Nealey, certify that I have had hand-delivered the origial and three copies

of the REBUTTAL BRIF OF APPELLANT WYTH and an electronic diskette containg

,?"Jêsame on March i., 2006, addressed to Ms. Betty W. Sephton, Clerk, Supreme Cour of

Mississippi, 450 High Street, Jackson, Mississippi 39201.

lfA~W.~LEANN W. NEALE

13Jackson 13 13290v. 1