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In 2002 and 2003, Mississippi’s 22nd judicial circuit was dubbed a “judicial hellhole” by the American Tort Reform Association. But in a recent report, not only did ATRA remove Mississippi from its 2004 hellhole list, it did something it hadn’t done before: It praised rather than criticized — lauding that same Mississippi circuit. It’s a little early to make predictions for 2005, but by year’s end ATRA may be giving Mississippi an award. Its courts seem to be on the verge of dismissing thousands of asbestos claims that were filed by plaintiffs from other states. Several actions last year by the Mississippi Supreme Court scaled back its joinder rules, which have attracted mass tort plaintiffs nationwide. As a result, three trial court judges issued orders last month that may lead to the dismissal of thousands of asbestos claims. Similar orders have already led to the severance of claims involving Propulsid, the acid reflux drug. Other mass torts, such as silica, welding rods and pharmaceuticals, will likely be affected, defense lawyers said. “Mississippi has done, in essence, what many states have not had the backbone to do,” asserted defense lawyer James “Larry” Jones. “That is, interpret the law as it was intended to be interpreted and apply the law to mass torts. “The game has changed dramatically,” said Jones, a partner in the Jackson, Miss., office of Baker, Donelson, Bearman, Caldwell & Berkowitz. His firm is defending claims filed by about 30,000 plaintiffs, he said. Its primary client is Monsanto Co., the seed and chemical business. Four plaintiffs lawyers involved in the Mississippi litigation did not return calls seeking comment. The three trial judges ordered plaintiffs to supply details for each claim, including where they live, where and when they were exposed to asbestos and where the defendants reside. One judge granted plaintiffs 20 days to provide the information, another 60 and the third 225 days. All three cited Harold’s Auto Parts Inc. v. Flower Mangialardi, No. 2004-IA-01308-SCT (Miss. 2004). In this asbestos mass tort, the court held last August that plaintiffs had failed to justify joinder, and severed their cases. It directed the trial court to transfer the plaintiffs to appropriate venues or dismiss them without prejudice, if the information warranted. In its order, the court cited its earlier decision in Janssen Pharmaceutica Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004). In that case, which involved a Propulsid mass tort, the court acknowledged: “We have given broad discretion to the trial court to allow joinder of claims. “We hold today,” it said, “that the prescribing of the drug Propulsid by 43 different physicians to 56 different patients did not arise out of the same transaction, occurrence, or series of transactions or occurrences, and that joinder in this case unfairly prejudices the defendants.” The day after this ruling in February 2004, the court amended the comments following its joinder rule. It struck: “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.” It added: “In order to allow the court to make a prompt determination of whether joinder is proper, the factual basis for joinder should be fully disclosed as early as practicable.” All told, about 140,000 plaintiffs filed asbestos claims in the state, according to Marcy Bryan Croft, a partner in the Jackson office of Forman Perry Watkins Krutz & Tardy. About 40,000 are inactive — generally old claims against companies now bankrupt, Croft said. Her firm is involved in defending the claims of the 100,000 active plaintiffs, which include the cases in which it is co-counsel with Jones’ firm. “I would conservatively estimate that half of them are out-of-state residents with no connection to Mississippi,” said Croft, whose firm represents about 75 companies, including General Electric Co. and Union Carbide Corp. She predicts that within a year, out-of-state claims will be dismissed and others will be moved to proper venues within the state. “For many years plaintiffs used Mississippi as a sort of storage bin to put cases they weren’t prosecuting in other states on hold,” said Croft, who believes those days are over. “Plaintiffs attorneys will seek out another dumping ground, another state in which to park these cases.” As for the dismissed plaintiffs, Jones said that many may find their claims time-barred in other states. That’s one reason, he said, many probably filed in Mississippi in the first place. The state has a liberal statute of limitations law that begins not when someone is exposed to asbestos, but when the harm is manifested.

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