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Mississippi’s state court system has served as a magnet for mass tort litigation. Mississippi has never promulgated as part of its Rules of Civil Procedure a rule which, like Federal Rule 23, permits class actions, but its state courts have construed the permissive joinder provisions of Rule 201 so expansively as virtually to create a de facto mode of class action litigation, but without the safeguards built into the de jure mode. It has not been uncommon for scores or even hundreds of plaintiffs to be joined in a forum to which few if any have any nexus, asserting multiple alternative claims against multiple defendants. The results have been some very high verdicts for plaintiffs and a willingness on the part of defendants to settle.

Earlier this year, a newly constituted Mississippi Supreme Court signaled an end to these practices. The Mississippi Supreme Court in Jannsen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004) held that the scope of permissive joinder countenanced by Rule 20 is much narrower than previous Mississippi jurisprudence had appeared to indicate. In Janssen, 56 plaintiffs sued a pharmaceutical manufacturer and 42 physicians who had allegedly prescribed Propulsid to one or more of the plaintiffs. Only one of the plaintiffs resided in the county where venue was set. None of the doctors resided there. According to the supreme court’s summary of the record, the 56 plaintiffs had different medical histories, alleged different injuries occurring at different times, ingested different amounts of Propulsid over different periods of time, and received different advice from different doctors. The doctors in turn received different information regarding the drug embodied in six different warning labels utilized over the course of the time relevant to the claims in the case. Id. at 1096. Confronted with the substantial disparities among the factual grounds for the plaintiffs’ various claims, the Mississippi Supreme Court held that the plaintiffs’ claims did not arise out of the same transaction or occurrence and that, accordingly, the requirements for permissive joinder under Rule 20 had not been satisfied. The supreme court thus reversed the trial court and remanded the case with instructions to sever and transfer to appropriate jurisdictions those plaintiffs who had been improperly joined. Id. at 1101-02.

In August 2004, the Mississippi Supreme Court delivered a second blow to joinder. In Harold’s Auto Parts, Inc. v. Magialardi (2004 Miss. Lexis 1099), the court ruled that Rule 20’s requirements for permissive joinder must be satisfied by the averments in the complaint.

Harold’s Auto involved various claims by 264 plaintiffs against 137 defendants who had in turn identified approximately 600 different employers on whose worksites one or more plaintiffs may have been exposed to asbestos-containing products manufactured by one or more of the defendants. Approximately 220 of the plaintiffs were unable to identify any employment within the State of Mississippi. Id. at 2. The court observed, “The complaint provides virtually no helpful information with respect to the claims asserted by the individual plaintiffs.” Id. In summarizing the relevant averments of the complaint, the court noted, “In essence we are told that 264 plaintiffs were exposed over a 75-year period of time to asbestos products associated with 137 manufacturers and approximately 600 workplaces. We are not told which plaintiff was exposed to which product manufactured by which defendant in which workplace at any particular time.” Id. Rejecting the notion that the requirements of Rule 20 or, significantly, of Rule 11, can be deferred until discovery permits the trial court to winnow out the properly joined plaintiffs from those who have been improperly joined, the court held that this “core information” must be known to plaintiffs’ counsel “prior to filing the complaint, not information to be developed in discovery or disclosure. The information should have been included in the complaint.” Id. at 35 (emphasis added) Specifically addressing the issue of permissive joinder under Rule 20, the court held that such joinder is permissible “only where the plaintiffs make certain assertions which demonstrate the matters set out in the rule.” Id. at 4. For plaintiffs to proceed on the assumption that they will demonstrate the propriety of joinder on the basis of information to be developed after the filing of the complaint was characterized by the Mississippi Supreme Court as “a perversion of the judicial system . . . ” Id. Finding that the plaintiffs had “wholly failed in their obligation to assert sufficient information to justify joinder”, the supreme court remanded the case with instructions to sever and transfer each plaintiff to a court of appropriate venue and jurisdiction “where known”. Id. at 5. The trial court was further directed to dismiss, albeit without prejudice, the claims of each plaintiff who failed to provide sufficient information to permit such a determination. Id.

It may, to persons unfamiliar with the history of joinder in Mississippi, seem unremarkable that a state supreme court should hold that a complaint which seeks permissive joinder pursuant to Rule 20 must allege sufficient information to permit the trial court to make at least some preliminary determination as to whether permissive joinder is proper. For state court practitioners in the State of Mississippi, however, the holding in Harold’s Auto constitutes a dramatic change. Instead of requiring defendants to undergo a number of procedures including open-ended discovery, the legal sufficiency of joinder may now be meaningfully tested at the pleading stage. Where, as appears to have been the case in Harold’s Auto, the prerequisite grounds for joinder are not sufficiently plead in the complaint, improperly joined plaintiffs can be summarily dismissed or severed and transferred to appropriate jurisdictions. Moreover, Rule 11 sanctions may be available where plaintiff’s counsel is found to have had no good faith basis for joinder. 

Plaintiffs’ counsel will continue to have the right to seek leave to amend the complaint in the face of a challenge based on the holding in Harold’s Auto. Yet as the Harold’s Auto opinion makes clear, there are limits even to the liberal amendment policy of Rule 15(a). The reduced litigation costs from early resolution of joinder issues may be substantial and there is the strong possibility of a consequent dimminution of settlements.

 

Endnotes

1 The language of Mississippi Rule of Civil Procedure 20 is substantially identical to the corresponding federal rule.

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