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The Bankston Drug Store has been on Main Street in Fayette, Miss., since 1902, a block or so from the Jefferson County courthouse. Antique cabinets line the walls, and ice cream is hand-dipped at the fountain where neighbors sit and gossip. It’s quaint. It’s old-fashioned. And it’s ground zero for the largest legal attack on the pharmaceutical industry. Fen-phen, Rezulin, Propulsid — all are on trial here in products liability suits involving tens of thousands of plaintiffs from across the United States. It may seem like a strange battleground — a rural county of 8,345 people, nearly half of them below the poverty level, not far from Vicksburg in the lush, rolling farmland of southwest Mississippi. The litigation doesn’t stop with pills either. Jefferson County has become a mecca for plaintiffs’ lawyers eager to use Mississippi’s unique law to secure jurisdiction over multinational corporations and try a variety of cases before juries who have shown they are willing to render huge compensatory and punitive damages awards. At the center of the effort are tiny, impoverished Fayette — and the Bankston Drug Store. As the only pharmacy in the county, the store has been named in nearly every suit alleging the defective manufacture of consumer drugs. “My lawyers tell me that we’re only sued because they want to stay in Jefferson County because the verdicts are so high,” says pharmacist Traci Swilley, who bought the store five years ago after the previous owner died. She had been working in a big chain and wanted to live in a small town where folks are polite and friendly. But these neighbors are extremely litigious. Their local newspaper is chock full of ads by trial lawyers seeking local plaintiffs. “The people don’t realize they’re suing me,” Swilley says. “They’re told by these big-time trial lawyers, ‘You’re not hurting the pharmacy. This isn’t against Traci.’ They’re told that they are suing the huge pharmaceutical corporations.” She’s invariably dropped from the suits. But each time she must hire a lawyer and file an insurance claim. Two insurers have told her to seek coverage elsewhere, she says. “I can’t operate, by law, without liability insurance.” The drugstore is a perennial defendant because of Mississippi’s unusual laws. Just as a local plaintiff is needed to file a suit here, a local defendant is necessary to keep that suit against a big corporation from being removed to federal court. Mississippi doesn’t have class actions; each plaintiff sues individually. Suits raising similar issues of fact and law can be joined under Rule 20 of the Mississippi Rules of Civil Procedure, no matter where the plaintiff lives. The procedure is called the “one and all” rule. Judges have broad discretion to consolidate cases, a right confirmed by the state supreme court as recently as Feb. 1. By a 5-4 vote, it upheld a “one and all” ruling by Judge Lamar Pickard, whose circuit includes Fayette and who had consolidated the breach-of-good-faith suits of 1,371 plaintiffs. American Bankers Insurance Co. of Florida v. Alexander, No. 98-IA-00046-SCT. Pickard, the county’s only judge who hears major civil cases, is controversial among corporate defendants. They and their counsel say that he allows emotional testimony and strictly adheres to another unique Mississippi rule by which plaintiffs have the right to go to trial 90 days after filing suit, sharply limiting defense discovery. Pickard was out of state at a seminar, according to the message machine in his chambers, and was unavailable when called for comment. The situation hasn’t gone unnoticed by tort reform advocates such as the U.S. Chamber of Commerce and the American Tort Reform Association. “Jefferson County, Miss., is a magnet for highly speculative litigation that wouldn’t get traction in other courtrooms in the U.S.,” says Michael C. Hotra, the tort reform group’s public education director. He says that trial lawyers have exploited a population that largely is poor and uneducated. Only half of the county’s jury pool of 6,571 graduated from high school. But Houston plaintiffs’ lawyer Michael T. Gallagher says of that criticism, “It sounds racist,” since the jury pool is predominantly black. “Jefferson County is to plaintiffs what Dallas County [Texas] is to defendants,” says Gallagher, a name partner at Gallagher, Lewis, Serfin, Downey & Kim. “They want to tell me where I can sue them for the damage they caused? They can kiss my ass.” Gallagher helped win a $150 million compensatory damages verdict for five fen-phen plaintiffs in Jefferson County on Dec. 21, 1999. The jury deliberated for about two hours before delivering the verdict for four plaintiffs who claimed that the diet drug caused pulmonary hypertension and for one who claimed heart valve damage. As the lawyers prepared closing arguments on the punitive damages — for which plaintiffs might have sought up to $1 billion — the defendant American Home Products Corp. settled the suits and the claims of 873 other plaintiffs, 500 of whom were not from Mississippi, for a secret amount reportedly between $350 million and $500 million. The amount was sealed by the court at the request of the defendants. They feared it would cause others to opt out of a $3.75 billion nationwide settlement over the drug, which was pulled from the market in 1997 because it caused heart valve problems. In October 2000, Judge Pickard approved a settlement, reportedly valued at about $200 million, that closed another 3,000 cases. Another settlement is expected to be announced on April 20 to address cases filed in Mississippi since the Jefferson County verdict. “If you look at the movement of cases, they seem to be going there to Jefferson County. Plaintiffs are voting with their feet,” says Geoffrey Jackson, a professor at the Mississippi College School of Law in Jackson and an expert on civil procedure in the state. “I am not at all persuaded that the defendants in these cases would have won on liability had they been in a forum more favorable for them,” he says. “The issue here is the size of the awards.” TOBACCO CASE On June 18, a trial begins before Pickard on the so-called asbestos/tobacco synergy claims. Thomas v. R.J. Reynolds Tobacco Co., No. 96-0065. Thirty individuals and seven asbestos manufacturers allege that the tobacco industry kept it secret that smokers who were occupationally exposed to asbestos had up to 90 times the normal lung cancer risk. Each plaintiff seeks $25 million in compensatory damages and $250 million in punitives, for a total of about $10.2 billion. Defendants counter that the risk was well-known, so the asbestos companies had the duty to warn their workers. Cigarette manufacturers have prevailed with this argument elsewhere, but R.J. Reynolds expects to lose before the jury, says Daniel W. Donahue of Winston Salem, N.C., its deputy general counsel. “We are realistic enough to know that the jurors there have a long history of ruling against defendants,” Donahue says. “We’re prepared to deal with it on an appellate level.” Donahue’s company and the other six tobacco defendants face asbestos manufacturers who, on Nov. 23, 1999, agreed to pay out $160.6 million to settle two lawsuits in Jefferson County. The deal attracted congressional attention when the sealed agreement was leaked to news media. The asbestos defendants agreed to pay $263,000 to each of the plaintiffs who lived in Jefferson and surrounding counties. The amount was 19 times what was received by co-plaintiffs living in Ohio, Indiana and Pennsylvania. In another case, a host of plaintiffs claimed in 1999 that cigarette manufacturers targeted blacks by advertising in magazines predominantly sold in the black community. They seek $5 billion in compensatory damages and unspecified punitive damages. Colenberg v. R.J. Reynolds Tobacco Co., No. 2000-169. “The business community is concerned by some recent decisions and we’re concerned about the judicial climate,” says Jerry McBride, head of the Mississippi Manufacturing Association. At a March 28 business-sponsored seminar in Jackson, Miss., speakers told horror stories about big verdicts for out-of-state plaintiffs against national companies, and described Alabama trial lawyers flooding Mississippi courts since Alabama passed tort reform in 1999. Alabama trial lawyer Jere L. Beasley of Montgomery readily acknowledges that many of the 41 lawyers at his firm have recently taken the Mississippi bar exam. But he insists that is a product of increased business and not a deliberate attempt to invade a neighboring state. “We’ve become pretty much a regional firm,” says Beasley, adding that his lawyers also have taken the bar exams in Georgia, Florida and Texas. “These complaints, this sky-is-falling stuff, that’s part of an overall strategy of tort reformers. It took them several years to achieve what they achieved in Alabama. But they started the same way.” The featured speaker at the lunch was Jim Wooten, director of the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce in Washington, D.C. In the first organized attempt to push tort reform in Mississippi, his organization ran issue ads last fall that supported five candidates for the supreme court. Results were mixed. Some candidates disavowed the chamber’s ads after their opponents asserted that “outsiders” were trying to buy judges. The chamber was sued in federal court for not disclosing who provided the money. Chief Justice Lenore Prather lost her re-election bid and blamed it on her support by the chamber. Many in the business community say the loss of her vote swung the court toward plaintiffs. They point specifically to the crucial 5-4 American Bankers decision in February. Wooten notes that two of the five chamber-backed candidates won. “Our preference would have been to support ads run by a Mississippi organization,” he says, but none has stepped forward. Looking ahead, Wooten says, “I think there will be a significant effort in Mississippi.”

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