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In 2000, a group of 155 plaintiffs filed suit against the manufacturers of the prescription drug Propulsid in a Mississippi state court. Just over one year later, a jury returned a one hundred million-dollar award against the manufacturers on the first ten verdicts reached in the cases. Despite the size of these verdicts, the result is increasingly common in the state of Mississippi, which since the mid-1990s has reigned as the leading forum for mass tort litigation. Mark Ballard, Mississippi Becomes a Mecca for Tort Suits, Nat’l L.J., Apr. 20, 2001. Dubbed the “lawsuit capital of the world,” Mississippi has developed a massive civil litigation infrastructure funded by state expenditures averaging roughly $264.00 per resident. Tim Lemke, Best Place to Sue?, Wash. Times., June 30, 2002.

Mississippi’s unlikely ascendancy in the specialized arena of mass tort litigation is partially the result of the State’s procedural rules governing the aggregation of lawsuits. Although Mississippi has become home to massive multiparty actions, the State’s Rules of Civil Procedure, ironically, do not permit class actions.

Mississippi’s Civil Rules do, however, permit the joinder of multiple plaintiffs in a single action where the parties “assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action.” Miss. Code Civ. Proc. 20(a). Rule 20 is identical to the joinder mechanism in virtually every other state, and the joinder provisions of the Federal Rules of Civil Procedure. Under a procedure known as “one and all,” Mississippi trial courts began using Rule 20 to join suits filed in separate counties, creating quasi-class claims for adjudication before a single judge.

In Am. Bankers Ins. Co. v. Alexander, 818 So.2d 1073, 1079-80 (Miss. 2001), the Mississippi Supreme Court affirmed the use of the one and all procedure. In 1998, plaintiffs in four Mississippi counties began filing suits against the American Bankers Insurance Company of Florida and Fidelity Financial Services. Each of the plaintiffs alleged that the defendants orchestrated a generalized scheme to defraud customers by imposing insurance premiums at substantially inflated rates, and “forcing” the plaintiffs to purchase collateral protection insurance offered by the coconspirators. In a series of rulings, the trial judges presiding over these suits began consolidating the actions under Rule 20, resulting in five combined cases involving approximately 1,371 plaintiffs.

In an interlocutory appeal, a sharply divided decision of the Mississippi Supreme Court upheld each of the five consolidated cases. Citing the plaintiffs’ common allegations of fraud, and noting a single master insurance policy issued by American Bankers to Fidelity, the five-member majority concluded that each of the plaintiffs’ claims arose from the “same transaction” within the meaning of Rule 20. In dissent, four Justices argued that the record lacked sufficient facts to evidence a logical relationship between the plaintiffs’ allegations, and the purported damages. Noting the high number of out-of-state plaintiffs included in the consolidated actions, the dissenters reasoned that judicial economy cautioned against joining cases involving disparate evidentiary proofs. Id. at 1086-88 (Waller, J., dissenting). Subsequent decisions have re-affirmed this “liberal approach” to joinder under Rule 20. See Prestage Farms, Inc. v. Norman, 813 So.2d 732 (Miss. 2002); Illinois Central R.R. Co. v. Travis, 808 So.2d 928 (Miss. 2002).

These interpretations of Rule 20 have resulted in a documented increase in class action style claims, despite the fact that Mississippi has never codified class action litigation. In particular, certain Mississippi counties such Copiah, Claiborne, and Jefferson Counties have become a “Mecca” for mass tort suits against a variety of national industries. Ballard, Mississippi Becomes a Mecca for Tort Suits. For instance, in Jefferson County, a rural community of 9,700 residents, more than 21,000 people have been plaintiffs in the county since 1995. Robert Pear, Mississippi Gaining as Lawsuit Mecca, N.Y. Times, Aug. 15, 2001. Analysts have speculated that the explosive increase in suits filed in Jefferson County stems from “trial lawyers think[ing] they will get large verdicts out of a predominately poor, uneducated and thus impressionable jury pool.” Lemke, Best Place to Sue?. According to a recent study, prior to 1995, no Mississippi jury verdict surpassed nine million dollars per plaintiff. However, since 1995 at least nineteen verdicts in Jefferson County over nine million have been reported, six topping $100 million, and together totaling more than two billion dollars in damages. Jimmie E. Gates, Dozens of Tort Reform Bills Filed, Clarion-Ledger, Jan. 22, 2002.

Propulsid is a prescription drug used in the treatment of severe nighttime heartburn caused by gastroesophageal reflux disease. Propulsid, which was manufactured by Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson, had been approved by the Food and Drug Administration (the “FDA”) in tablet form in 1993, and later in suspension form in 1995. Beginning in about 1993, and continuing through 2000, Propulsid’s labeling was modified on six occasions to better inform physicians and patients about the risks that may be associated with the product. On March 23, 2000, the FDA announced that Janssen would withdraw Propulsid from the United States market. The FDA stated that Propulsid had been linked to 341 reports of heart rhythm abnormalities, some eight of which included reports of death. Http://www.fda.gov/bbs/ topics/ANSWERS/ANS01007.html (last visited July 10, 2002).

On July 6, 2000, a group of 155 plaintiffs filed suit against Janssen and J&J in the Jefferson County Circuit Court. In their amended complaint, the Plaintiffs asserted claims based on Propulsid’s alleged defects, including causes of actions in strict liability, breach of warranty, negligence, and negligent misrepresentation.

As the case moved towards trial, numerous problems concerning case management began to emerge. For instance, although the Office of the Circuit Clerk produced a list of 150 prospective jurors, many residents registered conflicts with the plaintiffs. The venire included six Jefferson County residents named as plaintiffs in suits involving Propulsid, five of which were Plaintiffs in the very case they were called to decide. Upon review, the parties discovered that nearly seventy percent of the venire were related by blood or marriage, or shared common surnames with the Plaintiffs or the Plaintiffs’ families. Finally, when even the Circuit Clerk’s sister-in-law was found among the Plaintiffs, the case was moved to neighboring Claiborne County.

The task of seating an impartial and unbiased jury in Claiborne County, however, proved equally problematic. Thirty-eight of the 155 Plaintiffs in the lawsuit lived in Claiborne. A total of 114 Claiborne County residents had pending suits against the Defendants involving Propulsid. Prominent Claiborne County citizens including a police officer, and the wife and daughter of a County Supervisor, were Plaintiffs in the case. Other well-known community members including a former County Supervisor, a deputy sheriff, the brother of the Claiborne County Circuit Clerk, Mississippi--Continued from page 1 7 and the father of a jury commissioner, were plaintiffs in other pending Propulsid cases. From this pool, the Circuit Clerk selected a new venire of 146 residents.

The Claiborne venire composition, however, appeared to retain many of the same problems encountered in Jefferson County. Six of the prospective jurors were plaintiffs in Propulsid suits, with another five planning to file their own actions. Seventy-one relatives of the members had been prescribed Propulsid, with a total of thirty members of the pool related to persons who took the drug, or who had filed suits against the Defendants. Three of the Plaintiffs involved in the case were summoned to jury duty in their own lawsuit, appeared, and mingled with the entire venire for some time. These conflicts were compounded by negative publicity regarding Propulsid and its manufacturers. Plaintiffs’ attorney ran advertisements for new claims in local papers, and sponsored litigation seminars. Nonetheless, the trial judge denied the Defendants’ motion to transfer the case to a new venue.

In American Bankers, the Mississippi Supreme Court’s acceptance of mass consolidation under Rule 20 rested in part on the fact that each of the more than 1,300 plaintiffs “alleged the very same claims involving the very same insurance policies.” In that case, the plaintiffs’ allegations of fraud arose “out of the same pattern of conduct,” and, the Court held, would “involve interpretation of the same master policy.” Am. Bankers, 818 So.2d at 1079. The Supreme Court noted that despite their number, “[a]ll of the plaintiffs’ claims are similar with the exception of the actual dollar amount charged on premiums.” Id. On these facts, the high court saw no likely prejudice or confusion that could not be remedied “by a carefully drafted jury instruction.” Id.

In contrast, the claims of the Propulsid Plaintiffs seemed to lack these unifying similarities. Therefore, the trial court determined that the 155 pending cases would be severed into a series of separate trials consisting of “trial groups” of ten plaintiffs. This solution, however, did not necessarily address the widespread factual and legal differences in the claims of the first trial group assembled.

To begin, the core issue of Propulsid’s alleged “defectiveness” necessarily turned on individualized facts, as the warnings regarding the drug issued by the Defendants changed six times from August 1993 to July 2000. The first ten trial Plaintiffs ingested Propulsid during at least six different warning periods, requiring the jury to rule on at least six distinct fact matters, based on six separate classes of scientific evidence and expert testimony. The jury was also required to make distinct findings on the issue of causation, based largely on the testimony of approximately twenty different treating physicians. The role of each treating physician presented additional complexity given Mississippi’s “learned intermediary” doctrine that makes the decisions of a prescribing physician a focal point of any tort trial. The learned intermediary doctrine, for instance, requires the treating physician to evaluate the propensities of a prescription drug with respect to the individualized needs and sensitivities of the patient. Accordingly, a portion of each plaintiff’s trial burden centers on establishing that a more adequate warning from the drug manufacturer would have convinced the physician not to prescribe the medication. Even more critically, an inadequate warning is insufficient to impose liability where the treating physician was subjectively aware of the particular risk posed by the drug. Consolidated trial of the Propulsid Plaintiffs thus required an abundance of specialized and distinct medical testimony to be digested by a single jury.

The personal histories of the ten trial Plaintiffs were also disparate. One of the Plaintiffs was a seventy-nine year old man disabled since the 1950s with a history of heart attacks. Another was a fifty-year-old woman who had received monthly medical treatments for over thirty years for a variety of stomach disorders. The difficulty of the jury’s task was most clearly complicated by the inclusion of a four-year old girl as one of the ten trial Plaintiffs. The infant Plaintiff was prescribed Propulsid for pediatric use, despite the fact that Propulsid was indicated for use in adults, and only recently approved by the FDA for use in children in the United States. As the regulatory studies and clinical research performed by the Defendants centered on adult consumption, this evidence appeared to have no logical or legal relevance to a pediatric complaint.

After the close of the four-week Propulsid trial, the jury returned ten separate verdicts awarding ten million dollars of compensatory damages to each of the ten plaintiffs, for a total judgment of one hundred million dollars. Surprisingly, the jury took less than two hours to reach the ten verdicts.

The speed of the jury’s verdict, however, may have been achieved by the decision to award each of the ten Plaintiffs the same compensatory amount, despite wide variations in each Plaintiff’s complaints, pre-existing medical conditions, alleged injuries, exposure to Propulsid, and expected life span. For example, the trial group included both a seventy-nine year old Plaintiff on disability for almost two decades, as well as a four-year-old Plaintiff lacking any cardiac damage. Similarly, the expenses alleged by the Plaintiffs at trial ranged from $535.00 to $100,116.80, with one Plaintiff submitting no evidence of medical expenses at all.

Following the jury decision, the trial court declined to allow the jury to consider an award of punitive damages against the Propulsid manufacturers. Jimmie E. Gates, Ruling Favors Propulsid Maker, Clarion-Ledger, Sep. 30, 2002. Several months later, the trial court also granted the Defendants’ motion for remittitur, and reduced the jury award to $48.5 million dollars. An appeal of the revised award is now pending.

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