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Introduction

The landscape for the litigation of mass tort claims in Mississippi has undergone a substantial shift. Nowhere is this shift better illustrated than in the removal of all Mississippi venues from the infamous “Judicial Hellholes” annual list compiled by the American Tort Reform Association. Although tort reform by the state legislature has gotten most of the attention, action by the Mississippi Supreme Court has had a much greater effect. 

The shift began with a major tremor, Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004), and amendments to Rule 20 of the Mississippi Rules of Civil Procedure, Mississippi’s rule on joinder of parties in one lawsuit. The Armond decision and the amendments to Rule 20 were the first actions by the Mississippi Supreme Court to limit “mass actions” that were seen by some to be a threat to products liability litigation.

The Mississippi Supreme Court clarified that its recent line of decisions on joinder that began with Armond also applied to asbestos products liability cases in Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493 (Miss. 2004). The Mississippi Supreme Court there sent its strongest signal to date that it intends to continue to limit “mass tort” actions. In addition to its holding that the joinder requirements of Armond applied in asbestos products liability cases, the court repudiated the manner in which “mass tort” complaints in Mississippi had been commonly pleaded.

In a recent “mass tort” ruling, the Mississippi Supreme Court reversed the $150 million verdict awarded by a Holmes County, Mississippi jury to six plaintiffs in an asbestos products liability case. See 3M Company v. Johnson, No. 2002- CA-01651-SCT (Miss. Jan. 20, 2005). The court reversed the verdict and rendered judgment for the sole remaining solvent defendant, 3M, which plaintiffs alleged had manufactured defective respiratory protection masks. With the decision in 3M Company v. Johnson, the court required plaintiffs to not only plead their case in accordance with procedures, but also to prove injury caused by a defective product. The court found the six plaintiffs had proven neither defect nor causation. From Armond to 3M Company, the judicial landscape of Mississippi has been significantly altered.

Background

One of the first asbestos products liability cases with connections to Mississippi appears to have been Jackson v. Johns-Manville, filed in 1978, and eventually considered on appeal by the United States Court of Appeals for the Fifth Circuit. See Jackson v. Johns-Manville, 727 F.2d 506 (5th Cir. 1984). Because the Fifth Circuit reversed the jury’s award of punitive damages, plaintiffs’ attorneys decided to bring future claims in state court. However, they needed some vehicle to aggregate the claims of the thousands of plaintiffs. Mississippi lacks an analog to Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions, though there was limited authority for class representation in chancery court, Mississippi’s equity court. See generally Barrett v. Coullett, 263 So. 2d 764 (Miss. 1972) (recognizing a class representation concept, but declining to allow a class action on behalf of dissatisfied viewers of closed-circuit television coverage of the first Frazier-Ali fight). What evolved as a substitute for class actions rapidly grew in size and scope, joining hundreds and even thousands of plaintiffs in one lawsuit against hundreds of defendants. These “mass actions,” as they became known, developed first in Jackson County, the home of Ingalls Shipyard, in the mid-1980s. However, the use of “mass actions” spread to other Mississippi venues such as Holmes County and Jefferson County. The Manhattan Institute’s Civil Justice Report, No. 7 from 2003, documents this evolution in Jefferson County, which developed a reputation for alleged lawsuit abuse.

The other component that allowed for mass actions was the combination of Mississippi’s venue rules with its routine acceptance of the claims of non-resident plaintiffs having no relationship to Mississippi. Rule 82 of the Mississippi Rules of Civil Procedure provided that, where venue was proper as to at least one of the parties and one of the claims, venue was proper for all additional parties and claims properly joined under the Mississippi Rules of Civil Procedure. See also Gillard v. Great Southern Mtg. & Loan Corp., 354 So.2d 794 (Miss. 1978) (venue proper for one defendant is proper for all other properly joined defendants); Wofford v. Cities Service Oil Company, 236 So.2d 743 (Miss. 1970) (same). 

Shewbrooks v. A.C. and S., Inc., 529 So. 2d 557 (Miss. 1988) established the open door policy of Mississippi courts toward non-resident defendants. In Shewbrooks, the Mississippi Supreme Court faced a lawsuit brought by residents of Delaware for injuries from exposure to asbestos in Delaware, New Jersey, and Pennsylvania against defendants engaged in business in Mississippi. Shewbrooks, 529 So. 2d at 559. Though faced with these plaintiffs who had no discernible relationship to Mississippi, the Mississippi Supreme Court felt bound to follow its precedent, which held that, where the courts of this state had personal jurisdiction over the defendant and subject matter jurisdiction over the claims, there was no basis to reject lawsuits by non-resident plaintiffs. The courts of Mississippi were equally open to all residents and non-residents alike. Shewbrooks, 529 So. 2d at 560-61. The court did leave open the issue of a dismissal under the doctrine of forum non conveniens. But the court also stated that, in the interest of assuring that a plaintiff would have an alternative forum for its claim, dismissal must be conditioned upon a waiver of any statute of limitations bar. Id. at 561-63. For a time, Shewbrooks allowed plaintiffs to use Mississippi’s 6-year statute of limitations that applied to products liability actions to revive claims that would be barred in most other jurisdictions.

It took 14 years after Shewbrooks before the legitimacy of “mass actions” was finally reviewed by two decisions of the Mississippi Supreme Court, Illinois Central Railroad Co. v. Travis, 808 So. 2d 928 (Miss. 2002), and American Bankers Insurance Co. v. Alexander, 818 So. 2d 1073 (Miss. 2001). Both of these cases found in Rule 20 of the Mississippi Rules of Civil Procedure the legal basis for the mass actions that had already become a fixture of mass tort litigation in the state.

In American Bankers Insurance Co,. the court allowed the joinder of as many as 387 individual claims relating to collateral protection insurance. In authorizing the joinder, the court noted Mississippi’s lack of any class action procedural rule, and the official comment to Rule 20 of the Mississippi Rules of Civil Procedure indicated an intent that the Rule 20 joinder provision allow liberal joinder of parties:

The general philosophy of the joinder provisions of these Rules is to allow virtually unlimited joinder at the pleading stage but to give the Court discretion to shape the trial to the necessities of the particular case.

Travis involved the asbestos exposure claims of 99 railroad workers against Illinois Central Railroad. Mr. Travis, the lead plaintiff, had been a resident of Tennessee at the time of his death and his wife remained a Tennessee resident. Mr. Travis worked in Tennessee and Kentucky, but did not appear to have ever worked in Mississippi. Illinois Central Railroad sought to have Mr. Travis’ claims dismissed based on improper venue, improper joinder and forum non conveniens. The court reviewed its own cases and a number of federal cases applying the analogous Rule 20(a) of the Federal Rules of Civil Procedure in denying the defendants’ objection to joinder. Once again, the court looked to the comments to Rule 20 of the Mississippi Rules of Civil Procedure and its recent decision in American Bankers to sanction the joinder of the railroad workers’ claims.

The mass action phenomenon, finally approved by the Mississippi Supreme Court, had particular consequences for asbestos litigation. Two large jury verdicts fueled the filing of mass actions in two Mississippi counties in particular: Jefferson County and Holmes County. First was the verdict in Cosey v. Bullard, No. 95-0069, Cir. Ct., Jefferson County, Mississippi, where twelve plaintiffs were awarded a total of $48.5 million in compensatory damages; the case settled without an appeal when the court threatened to let the same jury consider punitive damages. In 2001 came the surprising verdict from a Holmes County jury that awarded six plaintiffs the identical amount of $25 million each in compensatory damages. See 3M Company v. Johnson, supra. This verdict in 3M Company raised concerns in both the business and legal communities.

The reaction of the legal system was not immediate, but through the prodding of the medical and business communities, the Mississippi legislature enacted some reforms during contentious special sessions in 2002 and 2004. The real reform, however, came from the Mississippi Supreme Court.

Back from the Brink

On February 19, 2004, the Mississippi Supreme Court began what was to become a series of opinions which redefined joinder under Rule 20 and signaled the beginning of the end of mass actions in Mississippi. See Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004) (Janssen I); Janssen Pharmaceutica v. Inc. v. Bailey, 878 So. 2d 31 (Miss. 2004) (Janssen II); Janssen Pharmaceutica, Inc. v. Grant, 873 So. 2d 100 (Miss. 2004) (Janssen III); and Janssen Pharmaceutica, Inc. v. Keys, 879 So. 2d 446 (Miss. 2004) (Janssen IV). 

In the Janssen cases, the Supreme Court analyzed the joinder of multiple plaintiffs and defendants in the context of claims for injuries allegedly caused by the drug Propulsid. The Janssen decisions make clear that severance is mandated in cases in which multiple plaintiffs attempt to assert individualized personal injury claims against multiple, unrelated defendants:

Each plaintiff has a unique medical history, and during the time frame involved in the 56 claims, there were five different warning inserts. . . .. The present case requires there to be a judgment of liability with respect to each of the 42 defendants, and this determination of liability will turn on, among other things, each plaintiff’s own distinct medical history, injuries and damages, the adequacy of the warning labels. . . as well as . . . the question of whether each prescribing physician would have prescribed Propulsid even with an adequate warning. No jury can be expected to reach a fair result under these circumstances.

Janssen I, 866 So. 2d at 1101. Based on the individual characteristics of the plaintiffs* claims, the Janssen I court concluded that joinder was improper because “no single transaction or occurrence or series of transactions or occurrences connect[ed] all 56 plaintiffs and 42 physician defendants.” Id. at 1102. The day following the decision in Janssen I, the Mississippi Supreme Court published its amendments to Rule 20 of the Mississippi Rules of Civil Procedure. The amendments removed from the comments the language cited by the court in its opinions in Travis and American Bankers Insurance Co. as authorizing mass actions. In its place the comment to Rule 20 stressed that there must be a “distinct litigable event linking the parties” as one of the prerequisites for joinder of parties in a single civil action.

The Janssen cases left it unclear whether the new limitations on joinder would also apply to asbestos products liability litigation. In August 2004, the Mississippi Supreme Court handed down its opinion in Harold’s Auto Parts v. Mangialardi,889 So. 2d 493 (Miss. 2004), which not only demonstrated that the Jannsen decisions applied in asbestos cases, but also strengthened the requirements for notice pleadings. Before Mangialardi, mass tort complaints filed in Mississippi were not required, in practice, at least, to include any specific allegations as to how, when, and where a plaintiff alleged exposure, much less to identify the specific products to which plaintiffs claimed exposure. Plaintiffs were not even required to identify which of the hundreds of defendants they had claims against, until individual claims were set for trial. Because of these “relaxed” pleading requirements, plaintiffs’ lawyers were able to join hundreds, and often thousands, of plaintiffs in a single action, and were able to use the discovery process as a means to determine whether a plaintiff had a claim against a specific defendant.

Mangialardi reversed that trend. As the court stated, “[c]omplaints should not be filed in matters where plaintiffs intend to find out in discovery whether or not, and against whom, they have a cause of action. . . . To do so otherwise is an abuse of the system, and is sanctionable.” The court, noting that the subject complaint “provide[d] virtually no helpful information with respect to the claims asserted by the individual plaintiffs,” ordered that the plaintiffs, individually, provide information including the defendants against whom each plaintiff was making a claim, and the time period and location of exposure, lest their claims be subject to dismissal.

Under Mangialardi, Mississippi law now appears to require, at a minimum, that plaintiffs allege the following facts in their complaints: (1) specific defendants against which each plaintiff claims a cause of action, and the nature of the claim(s); (2) the time period(s) of each plaintiff’s alleged exposure to asbestos; (3) the time period(s) of each plaintiff’s alleged use of each subject product; (4) each employer and location of each plaintiff’s alleged exposure to asbestos; (5) which of the allegedly defective products were used at each location or employer; (6) the specific physical injury or medical condition alleged by each plaintiff; and (7) information sufficient to establish whether joinder is appropriate under Rule 20.

On February 3, 2005, the supreme court extended its decisions in the Janssen and Mangialardi cases when it rendered its decision in Crossfield Products Corp. v. Charles W. Irby, et al., No. 2003-IA-02378-SCT (Miss., Feb. 3, 2005), by holding that the existence of a common worksite in an asbestos action is insufficient to establish joinder under Rule 20. In Irby, nine plaintiffs filed suit against 258 defendants and 200 “John Doe” defendants. Irby at ¶ 2. Each plaintiff alleged exposure to asbestos while employed at Ingalls Shipyard from 1930 - present. Finding the existence of a common worksite insufficient to establish joinder under Rule 20, the court reasoned:

All plaintiffs allege that they suffer from asbestosis in varying degrees. They claim exposure while working at a common employment, Ingalls Shipyard. During the span of 24 years where the plaintiffs claim a common worksite. . . they were all employed at different times and dates. In addition . . . the plaintiffs had different job descriptions, different work-stations and different duties at each work site. Some plaintiffs may have worked on the same ships but they all had different job descriptions and the dates of employment differ as to each plaintiff. . . . Each plaintiff allegedly worked around different products made by numerous manufacturers for varying lengths of time. . . Some plaintiffs could have been exposed to asbestos at other jobs they held prior to or after working at Ingalls Shipyard. . . In addition to this each plaintiff has a different medical history, which may or may not have an affect on their medical condition. Only one out of the nine plaintiffs has cancer. Five out of the nine has had some type of heart attack/stroke or heart surgery. All nine plaintiffs have smoked at some time in their lives for varying lengths, which could be very important to the causation issue.

Id. at ¶ 4. The Mississippi Supreme Court held that, under these circumstances, the plaintiffs’ right to relief does not relate to or arise out of the same transaction or occurrence [and that]. . . “[t]here is no single transaction or occurrence connecting all of [the] plaintiffs to justify joinder...” . Id. at ¶ 10.

Finally, the Mississippi Supreme Court further limited mass actions in its opinion in 3M Company. It was the $150 million verdict for compensatory damages in this case in 2001 that raised public awareness of the problems allegedly created by mass actions. This asbestos products liability action was brought by over 150 plaintiffs against approximately 62 defendants. The trial court allowed plaintiffs’ counsel to hand-pick a trial group of ten plaintiffs whose claims would be tried together. When the trial began, seven defendants remained against whom the claims were to be tried. Following three weeks of trial, the jury returned identical $25 million compensatory damages verdicts for each of the six remaining trial group plaintiffs.

3M Company, one of the seven trial defendants, appealed from the jury verdicts. In an opinion supported by five members of the court, each of the six verdicts against 3M was reversed and rendered. The opinion highlights the numerous issues with the litigation and trial of the case. The court first held that, consistent with Mangialardi and the Janssen cases, the claims of all the plaintiffs in the case, including those not a part of the trial group, should have been severed. The court likewise suggested that the joinder of the defendants may have been improper as well. Based on the joinder issue alone, the court reversed the verdicts. However, the court then reviewed the record, first noting problems with the impartiality of the jury venire because of a “widespread asbestos campaign” in Holmes County. The venire members disclosed meetings held throughout the county including meetings held in the courtroom where the trial was being conducted and in which attendees were encouraged to bring asbestos claims and become “educated” about the dangers of asbestos.

Ultimately, the court rendered a verdict for 3M “due to the lack of evidence presented by the plaintiffs to support recoverable damages,” finding that the plaintiffs failed to meet their burden of proof that the 3M product was defective when manufactured or that there was a feasible alternative design available that would have prevented the harm without impairing the usefulness of the product.

What’s Next for Mass Tort Litigation?

The effects of the recent amendments to Rule 20 and Mississippi Supreme Court decisions are already being seen throughout the state. With few exceptions, pending mass tort actions are being severed into individual actions and transferred to a proper venue, when appropriate. Plaintiffs are also being required to comply with the notice pleading provisions contained in the Mississippi Rules of Civil Procedure. Courts, even in what were traditionally seen as plaintiff-friendly venues such as Jefferson and Holmes counties, are “encouraging” the prompt dismissal of defendants against whom the plaintiff has no cause of action and have strongly suggested that any new mass tort actions be filed in accordance with Mangialardi, Janssen, and Rules 8, 9, 10, and 11 of the Mississippi Rules of Civil Procedure. Due to the supreme court’s strong language in Johnson, there is every reason to believe that plaintiffs now will be required to prove not only product usage, but also defect, proximate causation, and injury. These changes alone significantly alter the playing field, and the Mississippi Supreme Court has given every indication that it will continue to strictly enforce the provisions of the Mississippi Rules of Civil Procedure in the future. 

All of these developments dovetail with the Class Action Fairness Act of 2005 enacted on February 18, 2005. Though not applicable to pending litigation, its “mass action” provisions should prevent plaintiffs from litigating cases like Cosey and Johnson in Mississippi’s state courts. While the mass action phenomenon has not disappeared in Mississippi, it has been substantially limited.

* Paige Jones and Terry Williamson are associates at Phelps Dunbar, LLP, in Jackson, MS.

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