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Civil Justice Report
No. 7 April 2003


One Small Step for a County Court . . . One Giant Calamity for the National Legal System, continued

John H. Beisner, Jessica Davidson Miller, and Matthew M. Shors

NOTES

  1. See J.H. Beisner and J.D. Miller, They’re Making A Federal Case Out Of It . . . In State Court, 25 Harv. J. L. Pub. Pol’y 143 (2001) (“Federal Case”) (previously published as Civil Justice Report No. 3, September 2001); J.H. Beisner and J.D. Miller, Class Action Magnet Courts: The Allure Intensifies, 4 BNA Class Action Litig. R. 58 (Jan. 24, 2003)  (previously published as Civil Justice Report No. 5, July 2002).
  2. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979) (reiterating the “usual rule that litigation is conducted by and on behalf of the individual named plaintiffs only”).
  3. See, e.g., In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 288 F.3d 1012 (7th Cir. 2002) (“Efficiency is a vital goal in any legal system—but the vision of ‘efficiency’ underlying this class certification is the model of the central planner. . . . One suit is an all-or-none affair, with high risk even if the parties supply all the information at their disposal.”). See generally Becherer v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 193 F.3d 415, 425 (6th Cir. 1999) (“the minimum requirements of due process inform . . . [the] class action doctrine[]”).
  4. See Class Action Fairness Act of 2000, S. Rep. No. 106-420, 106th Cong., at 8-9 (2000) (“the vast majority of Federal and State courts have adopted (sometimes with minor modifications) the 1966 version of Federal Rule 23. . . . [E]ven the courts that [have not adopted Rule 23] tend to look to the Federal rule and Federal court precedents for guidance on the circumstances in which cases should be certified for class treatment.”)
  5. See, e.g., Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (“[C]lass certification turns a $200,000 dispute . . . into a $200 million dispute. Such a claim puts a bet-your-company decision to Bridgeport’s managers and may induce a substantial settlement even if the customers’ position is weak. This is a prime occasion for the use of [Fed. R. Civ. P.] 23(f), not only because of the pressure that class certification places on the defendant but also because the ensuing settlement prevents resolution of the underlying issues.”); Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999) (“Many corporate executives are unwilling to bet their company that they are in the right in big-stakes litigation, and a grant of class status can propel the stakes of a case into the stratosphere . . . . some plaintiffs or even some district judges may be tempted to use the class device to wring settlements from whose legal positions are justified but unpopular.”); In re Rhone Poulenc Inc., 51 F.3d 1293, 1298-1300 (7th Cir. 1995) (directing the lower court to decertify a plaintiff class because defendants might be “forced by fear of the risk of bankruptcy to settle even if they have no legal liability”).
  6. For example, in Avery v. State Farm Mut. Auto Ins. Co., 746 N.E.2d 1242 (Ill. Ct. App. 2001), the Illinois judiciary upheld the certification of a nationwide class and held permissible the application of Illinois consumer fraud law to all claims accruing throughout the nation—despite the fact that the challenged practice (the use of non-original equipment manufactured parts) was not only permitted but actually required by other states to reduce insurance costs. See Matthew J. Wald, Suit Against Auto Insurer Could Affect Nearly All Drivers, N.Y. Times, Sept. 27, 1998, § 8, at 29.
  7. See id. “Call it jackpot justice . . . . Trial lawyers do . . . the Madison County phenomenon [] provides a dramatic illustration of the potential for poor public policy when things get carried away. In effect circuit judges end up [with] authority over large corporations doing business and serving customers nationwide.” Editorial, The Judges of Madison County, Chic. Trib., Sept. 6, 2002.
  8. See 7 Charles Alan Wright, et al., Federal Practice and Procedure § 1651 (3d ed. 2001).
  9. Id.
  10. Id. Notes of Decisions 21.
  11. Id. (emphasis added).
  12. Id. (emphasis added).
  13. Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001).
  14. See, e.g., Fed. R. Civ. P. 23(b)(3).
  15. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 624 (1997); see also Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).
  16. See Fed. R. Civ. P. 23(a)(1).
  17. Fed. R. Civ. P. 42.
  18. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933).
  19. See, e.g., Joan Steinnman, Reverse Removal, 78 Iowa L. Rev. 1029, 1042 (1993) (noting concern that mass consolidations lack the “procedural safeguards that due process and codified rules demand in class actions of similar magnitude”).
  20. See, e.g., Glussi v. Fortune Brands, Inc., 714 N.Y.S.2d 516, 518 (N.Y. App. 2000) (“[W]here prejudice to a substantial right is shown . . . a joint trial should not be granted even if common issues of law or fact exist.”).
  21. See, e.g., 28 U.S.C. § 1407(a) (allowing transfer of actions for pretrial proceedings, but requiring actions to be remanded to the federal districts from which they were transferred “at or before the conclusions of pretrial proceedings”).
  22. Garber v. Randell, 477 F.2d 711, 716 (2d Cir. 1973).
  23. See, e.g., Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495-96 (11th Cir. 1985); Cain v. Armstrong World Indus. 785 F. Supp. 1448, 1451 (S.D. Ala. 1992).
  24. Malcolm v. Nat’l Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993).
  25. Garber v. Randell, 477 F.2d 711, 716 (2d Cir. 1973).
  26. Gwathmey v. United States, 215 F.2d at 148, 156 (5th Cir. 1994); see also In re Chevron U.S.A., Inc., 109 F.3d 1016, 1020 (5th Cir. 1997) (invalidated pretrial, proposed trial plan in mass consolidation under Due Process Clause).
  27. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933).
  28. See Resp. of J. MacQueen, Caldwell Pet. for Writ of Prohibition Before W. Va. S. Ct. of App., May 25, 2001, at 5.
  29. See State ex rel. Appalachian Power Co. v. MacQueen, 479 S.E.2d 300, 302 (W. Va. 1996).
  30. Id. at 304.
  31. In re Asbestos Litig., Civ. Action No. 00-Misc.-222 (Cir. Ct. Kanawha Cty., W. Va. Nov. 8, 2000) (statement of J. A. Andrew MacQueen III).
  32. W. Va. T.C.R. 26.01(b)1.
  33. See Trial Scheduling Order, In re: West Virginia Asbestos Personal Injury Litig., Civ. Action No. 01-C-9000 (Sept. 6, 2001).
  34. State of West Virginia ex rel. Mobil Corp. v. Gaughan, No. 30314 (W.Va. S.Ct. App., Apr. 25, 2002).
  35. Id. (Maynard, J., concurring).
  36. See Tr. of Hr’g at 172-73, In re West Virginia Asbestos Personal Injury Litig., Civ. Action No. 02-C-9004 (Cir. Ct. Kanawha Cty., W. Va., Aug. 12, 2002) (“We understand the argument made regarding choice of law. We understand that there may be plaintiffs that absolutely have no nexus whatsoever. I don’t know. But we do know that in order to get some order out of this asbestos chaos we are going to apply West Virginia law in all aspects of the first phase of the trial . . . . and only West Virginia law.”).
  37. As the Supreme Court has explained, although states possess some flexibility in creating their rules of civil procedure, that flexibility is constrained by the Due Process Clause of the Fourteenth Amendment. See Hansberry v. Lee, 311 U.S. 32, 40-42 (1940); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (holding that “because minimum requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate”).
  38. See, e.g., Amchem, 521 U.S. at 629; Castano v. Am. Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996); In re Rhone-Poulenc Rourer, 51 F.3d at 1299 (7th Cir. 1995).
  39. See Miss. R. Civ. P. 82.
  40. See Bradford v. John A. Coleman Catholic High Sch., 488 N.Y.S.2d 105, 106 (N.Y. App. Div. 1985) (“Plaintiffs were injured in two separate incidents, and each alleges that his or her injury was caused by similar acts of negligence by defendants’ employees. Presentation of both claims to the same jury would tend to bolster each claim, to defendants’ disadvantage.”); see also Baker v. Watermann S.S. Corp., 11 F.R.D. 440, 441 (S.D.N.Y. 1951).
  41. See, e.g., Broussard v. Meineke Dis. Muffler Shops, Inc., 155 F.3d 331, 343-45 (4th Cir. 1998).
  42. See, e.g., Gwathmey v. United States, 215 F.2d 148, 154 (5th Cir. 1954) (cumulative effect of evidence against some defendants prejudices jury against all defendants in consolidated case); Cain v. Armstrong World Ind., 785 F. Supp. 1448, 1457 (S.D. Ala. 1992).
  43. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 815 (1985); Allstate Ins. Co. v. Hague, 449 U.S. 302, 310-11 (1981) (plurality opinion) (“if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional”).
  44. See M.A. Behrens & B.M. Parsons, Responsible Public Policy Demands an End to the Hemorrhaging Effect of Punitive Damages in Asbestos Cases, 6 Tex. Rev. L. & Pol. 137, 142-43 (2001). Indeed, in the few cases that proceed to trial in magnet courts, a defendant may face a multi-million dollar verdict, much of which may be composed by punitive damages. See, e.g., Terry Hillig, Former County Judge Wins Record Asbestos-Injury Verdict From Shell, St. Louis Post-Dispatch, May 29, 2000, at A1 (noting that $25 million of a $34.1 million verdict awarded to a single plaintiff consisted of punitive damages).
  45. See, e.g., The Fairness in Asbestos Compensation Act of 1999: Hearing on H.R. 1283 Before the House Comm. on the Judiciary, 106th Cong. (1999) (“Especially in state courts, defendants in the typical jumbo consolidation now face an Armageddon scenario if they do not settle on terms favorable to plaintiffs.”) (Prof. William Eskridge, Yale Law School).
  46. See, e.g., Griffin Bell, Asbestos Litigation and Judicial Leadership: The Courts’ Duty to Help Solve the Asbestos Litigation Crisis, at 23 (Nat’l Legal Ctr. for the Public Interest, June 2002).
  47. See Fed. R. Civ. P. 23(f). The advisory committee notes indicate that class certification “may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability.” This risk may be even greater in a mass action, where each of the underlying complaints asserts potentially serious personal injury claims. See, e.g., Richard O. Faulk et al., Building a Better Mousetrap? A New Approach to Trying Mass Tort Cases, 29 Tex. Tech L. Rev. 779, 790 (1998).
  48. Federal courts have sometimes granted pre-trial mandamus review of decisions to aggregate cases and recognized that, in mass actions, postponing review is effectively denying review, because the pressure to settle, see infra, is too great to withstand. See, e.g., In re Chevron U.S.A., Inc., 109 F.3d 1016, 1022 (5th Cir. 1997) (Jones, J., concurring); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1297 (7th Cir. 1995).
  49. See, e.g, Castano, 84 F.3d at 746 (“The risk of facing an all-or-nothing verdict presents too high a risk, even when the probability of an adverse judgment is low.”). The Supreme Court has expressed concern, for example, about the possibility that class actions could be used to extort settlements which are “out of any proportion to [the class’s] prospect of success at trial.” Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 740 (1975).
  50. See, e.g., The Fairness in Asbestos Compensation Act of 1999: Legislative Hearing on H.R. 1283 Before the House Com. on the Jud., 106th Cong., at 99 (July 1, 1999) (statement of Professor William Eskridge) (noting that presence of many defendants will lead to a “classic prisoners’ dilemma: Although defendants realize that they should bargain as a group with plaintiffs’ counsel, each defendant also understands that it can gain an advantage by setting early, and that it will be disadvantaged if others settle first (the sucker’s payoff)”).
  51. See id.
  52. Lester Brickman, Lawyers’ Ethics and Fiduciary Obligations in the Brace New World of Aggregative Litigation, 26 Wm. & Mary Envtl. L. & Pol’y Rev. 243, 252 (2001).
  53. See, e.g, In re Ethyl Corp., 975 S.W.2d 606, 610-11 (Tex. 1998) (noting that “paucity of appeals challenging trial settings of multiple claims”); Deborah R. Hensler, Revisiting the Monster: New Myths and Realities of Class Action and Other Large Scale Litigation, 11 Duke J. Comp. & Int’l L. 179, 190 (2001) (“If the [consolidated] cases are tried, the potential for large verdicts against corporate defendants may drive stock prices lower.”) (emphasis added). Indeed, recently amended rules of civil procedure recognize that interlocutory appeals of class certification orders, for example, “provide[] a mechanism through which appellate courts, in the interests of fairness, can restore equilibrium when a doubtful class certification ruling would virtually compel a party to abandon a potentially meritorious claim or defense before trial.” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000).
  54. See MeadWestvaco Stock Drops 20% on Fears of Asbestos Liability, Wall St. J., Aug. 19, 2002, at C11.
  55. See Tr. of Hr’g at 109, In re Asbestos, Civ. Action No. 02-C-9004 (Cir. Ct. Kanawha Cty., W. Va. Aug. 12, 2002).
  56. See Susan Warren, Jury Finds Dow Chemical Responsible in Asbestos Cases, Wall St. J., Oct. 25, 2002.
  57. See id. (“The second phase of the trial will consider whether [Dow] caused the injuries against individual workers who have filed claims.”).
  58. See, e.g., Tr. of Hr’g at 59, In re Asbestos, Civ. Action No 01-C-900, 99-C-183REW (Cir. Ct. Kanawha Cty. Mar. 16, 2001).
  59. See Hansberry, 311 U.S. at 32; Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).
  60. See Cain v. Armstrong World Industr., 785 F. Supp. 1448, 1457 (S.D. Ala. 1992).
  61. See Amchem, 521 U.S. at 625; Ortiz, 527 U.S. at 856.
  62. In re Fibreboard Corp., 893 F.2d 706, 711 (5th Cir. 1990).
  63. Richard L. Marcus, Confronting the Consolidation Conundrum, 1995 B.Y.U. L. Rev. 879, 892 (1995).
  64. See, e.g., Steinnman, supra, 78 Iowa L. Rev. at 1042.
  65. See Shutts, 472 U.S. at 809-10 (holding that defendants have standing to assert deficiencies in notice and adequacy of representation); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
  66. See generally Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 482 (1915).
  67. See Honda Motor Co. v. Oberg, 512 U.S. 415, 430 (1994) (“As this Court has stated from its first due process cases, traditional practice provides a touchstone for constitutional analysis.”); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 30 (1991) (state civil procedure must operate “according to the settled course of judicial proceedings”).
  68. See Honda Motor Co., 512 U.S. at 430 (“abrogation of a well-established common-law protection against arbitrary deprivations of property raises a presumption that its procedures violate the Due Process Clause”).
  69. See Western Elec. Co. v. Stern, 544 F.2d 1196, 1199 (3d Cir. 1976) (holding that denial of discovery prior to Phase One class action trial would “deny [the defendant] the right to present a full defense on the issues [and would thus] violate due process”).
  70. See Lusardi v. Xerox Corp., 118 F.R.D. 351, 371 (D.N.J. 1987) (holding that statutorily created defenses constitute “protected property interests” under the Due Process Clause).
  71. See In re Fibreboard Corp., 893 F.2d at 710-11.
  72. Francis E. McGovern, The Defensive Use of Federal Class Actions in Mass Torts, 39 Ariz. L. Rev. 595, 606 (1997).
  73. See Evans v. Progressive Cas. Ins. Co., 300 So. 2d 149, 153 (Miss. 1974) (“Defendants faced with the awesome threat of such expensive, unwieldy, and multi-faceted litigation would logically tend to buckle under and negotiate settlements they would not otherwise consider.”).
  74. See, e.g., Hansberry, 311 U.S. at 40-42; Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (“because minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate”) (alterations in original) (internal quotations omitted).
  75. See Honda Motor Co., 512 U.S. at 430 (“traditional practice provides a touchstone for constitutional analysis”).
  76. See Fed. R. Civ. P. 23(a)(1) (class must be so “numerous that joinder of all members is impracticable”) (emphasis added).
  77. Statement of J. Lamar Pickard, Tr. of Mot. Hearing at 9-10, Conway v. Hopeman Bros. (Cir. Ct., Jefferson County, Miss. July 25, 2001).
  78. See Barrow S. S. Co. v. Kane, 170 U.S. 100, 111 (1898) (“The object of the [diversity jurisdiction] provisions . . . conferring upon the [federal] courts . . . jurisdiction [over] controversies between citizens of different States of the Union . . . was to secure a tribunal presumed to be more impartial than a court of the state in which one litigant[ ] resides.”); Pease v. Peck, 59 U.S. (18 How.) 595, 599 (1855); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 307 (1816). See also The Federalist No. 80, at 537-38 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“[I]n order to [ensure] the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles [u]pun which it is founded.”).
  79. Jurisdictional questions concerning class actions, as well as mass actions, are still hotly disputed. To take one example, in Zahn v. International Paper Co., 414 U.S. 291 (1973), the Supreme Court held that the creation of the class action device did not alter the rule that each class member presenting a “separate and distinct” claim must meet the amount-in-controversy requirement. Congress later passed the Supplemental Jurisdiction Statute, codified at 28 U.S.C. § 1367, which confers federal courts with “supplemental” jurisdiction related to actions within the court’s original jurisdiction. Many federal courts of appeal hold that § 1367 overrules Zahn, such that, so long as one plaintiff presents a jurisdictionally sufficient claim, the court may exercise supplemental jurisdiction over the claims of other plaintiffs (including absent class members in the class context). See, e.g., Rosmer v. Pfizer, Inc., 263 F.3d 110 (4th Cir. 2001); Gibson v. Chrysler Corp., 261 F.3d 927 (9th Cir. 2001); Stromberg Metals Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir. 2001); In re Abbott Laboratorires, Inc., 51 F.3d 524 (5th Cir. 1995), aff’d by an equally divided Court, 529 U.S. 333 (2000). On the other hand, other federal courts of appeal hold that Zahn remains good law. See Trimble v. Asarco, Inc., 232 F.3d 946 (8th Cir. 2000); Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214 (3d Cir. 1999); Leonhardt v. Western Sugar Co., 160 F.3d 631 (10th Cir. 1998).
  80. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806).
  81. Testimony by Hilda Bankston, Senate Committee on the Judiciary, July 31, 2002 (emphasis added).
  82. See Notice of Removal ¶¶ 7-8, Ames v. Ford Motor Co., No. 01cv20BN (S.D. Miss. filed Feb. 2, 2001).
  83. Notice of Removal ¶ 8, Rankin v. Janssen Pharm., Inc., No. 00-CV-190 (S.D. Miss. filed Aug. 4, 2000).
  84. Notice of Removal at 3, Johnson v. Glaxo Smith Kline, No. 01-CV-160 (S.D. Miss. filed May 23, 2001).
  85. Mem. Op. and Order, Thomas v. R.J. Reynolds Tobacco Co., No. 5:97cv14BrS (S.D. Miss. Sept. 15, 1997).
  86. 86. United States Bureau of the Census, available at http://quickfacts.census.gov/qfd/states/28/28063.html.
  87. Rezide Demographic Data, 2001.
  88. Tim Lemke, Best Place To Sue? Big Civil Verdicts In Mississippi Attract Major Litigators, Wash. Times, June 30, 2002, at A1.
  89. Mark Ballard, Mississippi Becomes A Mecca For Tort Suits, Nat’l Law J., Apr. 20, 2001.
  90. See Mississippi Burning, Investor’s Bus. Daily, May 13, 2002, at A16.
  91. See Tim Lemke, Best Place To Sue? Big Civil Verdicts In Mississippi Attract Major Litigators, Wash. Times, June 30, 2002, at A1.
  92. Statement of J. Lamar Pickard, Tr. of Mot. Hearing at 9-10, Conway v. Hopeman Bros. (Cir. Ct. Jefferson County, Miss. July 25, 2001).
  93. For purposes of this research project, cases were identified as mass joinder actions if they involved multiple unrelated persons suing at least one out-of-state defendant. Thus, for example, if a family were involved in a car accident, and several members of the family sued the driver or manufacturer of the vehicle, that would not be considered a mass joinder action under this research.
  94. Because of an anomaly in filings in 2000 (several hundred individual cases were brought separately to enforce a settlement), we cannot calculate a meaningful percentage for that year.
  95. This number is artificially inflated because it includes 480 identical asbestos suits filed by plaintiffs from one case to force payment in an asbestos settlement.
  96. Detailed data about Complaint Nos. 2000-161, 2000-617 and 2000-627 were unavailable.
  97. Detailed data about Complaint Nos. 2001-22, 2001-66, 2001-74, 2001-117 and 2001-154 were unavailable.
  98. See Compl., King v. Ford Motor Co., No. 2001-21 (Cir. Ct. Jefferson County, Miss. filed Jan. 31, 2001). The authors note that they have participated in the defense of this action.
  99. See Compl., Jefferson v. Am. Home Prod. Corp., No. 2000-66 (Cir. Ct Jefferson County, Miss. filed May 9, 2000).
  100. See Compl., McGee v. Philip Morris Inc., No. 2000-596 (Cir. Ct. Jefferson County, Miss. filed Nov. 16, 2000).
  101. See Compl., Barham v. First Family Fin. Servs. Inc., Case No. 2000-166 (Cir. Ct. Jefferson County, Miss. filed Oct. 16, 2000).
  102. Twenty-one cases in the docket (some of which named over 1,000 plaintiffs) did not include address information for the named plaintiffs. However, based on the patterns observed in the cases in which that information was provided, a similar pattern of resident and non-resident participants should logically be assumed.
  103. Testimony by Hilda Bankston, Senate Committee on the Judiciary, July 31, 2002.
  104. See www.fleming-law.com.
  105. See www.frazerdavidson.com/profile.html.
  106. Compl. at 8-9, Carter v. American Gen. Fin. Inc., No. 2001-42 (Cir. Ct. Jefferson County, Miss. filed Mar. 1, 2001).
  107. See Compl., Turner v. Citigroup, Inc., No. 2001-152 (Cir. Ct. Jefferson County, Miss. filed Aug. 30, 2001).
  108. Id. ¶ 19.
  109. See Compl., Humphrey v. R.J. Reynolds Tobacco Co., Case No. 2000-608 (Cir. Ct. Jefferson County, Miss. filed Dec. 1, 2000).
  110. Id. ¶ 1.
  111. See Second Am. Compl. ¶ 1, Eakins v. Illinois Cen. R.R. Co., No. 2001-65 (Cir. Ct. Jefferson County, Miss. filed Aug. 9, 2001).
  112. See Compl., King v. Ford Motor Co., supra note 98.
  113. Compl., Carter v. American Gen. Fin. Inc., No. 2001-42 (Cir. Ct. Jefferson County, Miss. filed Mar. 1, 2001).
  114. Id. ¶ 41.
  115. See Mem. Op. and Order, Carter v. American Gen. Fin., Inc., No 5:01cv152BrS (S.D. Miss. July 31, 2002) (finding that defendants did not “submit any evidence that gave the Court reason to ‘pierce the pleadings’” with regard to their fraudulent joinder allegations).
  116. See Defs.’ Rebuttal Mem. In Supp. Of Their Mot. To Sever, Carter v. American Gen. Fin., Inc., No. 5:01cv152BrS (S.D. Miss. Dec. 2001).
  117. Compl., Cruel v. Am. Gen. Life & Accident Ins. Co., No. 99-116, (Cir. Ct. Jefferson County, Miss. filed Aug. 26, 1999).
  118. Id. ¶¶ 37-40.
  119. Id. ¶ 36.
  120. See Notice of Removal, Cruel v. Am. Gen. Life & Accident Ins. Co., No. 5:00cv221BrS (S.D. Miss. filed Aug. 29, 2000).
  121. Order of Remand, Cruel v. Am. Gen. Life & Accident Ins. Co., No. 5:00cv221BrS (S.D. Miss. filed Dec. 19, 2000).
  122. See Order, Cruel v. Am. Gen. Life & Accident Ins. Co., No. 99-0116 (Cir. Ct. Jefferson County, Miss. filed Sept. 17, 2001).
  123. Compl., Smith v. Union Nat’l Life Ins. Co., No. 2001-35 (Cir. Ct. Jefferson County, Miss. filed Feb. 16, 2001).
  124. Id. ¶ 47.
  125. Id. ¶ 43.
  126. Fifth Am. Compl., Anderson v. Owens-Illinois, Inc., No. 2000-22 (Cir. Ct. Jefferson County, Miss. filed June 5, 2000).
  127. Id. ¶ 10.
  128. Id. ¶ 1.
  129. Id. ¶ 9.
  130. Order Granting Mot. to Dismiss, Anderson v. Owens-Illinois, Inc., No. 01-cv-20 (S.D. Miss. filed Jan. 1, 2001).
  131. Second Am. Compl., Arceneaux v. Garlock, Inc., No. 2000-101 (Cir. Ct. Jefferson County, Miss. filed Oct. 4, 2000).
  132. Id. ¶ 27.
  133. Id. ¶ 1.
  134. Id. ¶ 2.
  135. Order Granting Mot. to Remand, Arceneaux v. Garlock, Inc., No. 1:01CV526GR (S.D. Miss. filed Jan. 28, 2002).
  136. Second Am. Compl. ¶ 3, Arceneaux v. Garlock, Inc., No. 2000-101 (Cir. Ct. Jefferson County, Miss. filed Oct. 4, 2000) (emphasis added).
  137. Second Am. Compl., Ross v. General Elec. Co., No. 99-102 (Cir. Ct. Jefferson County, Miss. filed May 10, 2001).
  138. Id. ¶ 9.
  139. Id. ¶ 1.
  140. Compl., Anderson v. Pittsburgh Corning Corp., No. 99-149 (Cir. Ct. Jefferson County, Miss. filed Nov. 1, 1999).
  141. Id. ¶¶ 4-5.
  142. Id. ¶ 9.
  143. Second Am. Compl., Eakins v. Illinois Cen. R.R. Co., No. 2001-65 (Cir. Ct. Jefferson County, Miss. filed Aug. 9, 2001).
  144. Id. ¶ 1(s).
  145. Id. ¶ 3 (emphasis added).
  146. Class Action Litigation: Hearing Before the Senate Committee on the Judiciary, 107th Cong. (2002) (statement of Hilda Bankston).
  147. Tim Lemke, Best Place to Sue? Big Civil Verdicts in Mississippi Attract Major Litigators, Wash. Times, June 30, 2002 at A1.
  148. Compl., Washington v. Am. Home Prod. Corp., No. 99-35 (Cir. Ct. Jefferson County, Miss. filed April 1, 1999)
  149. First Am. Compl., Jefferson v. Am. Home Prod. Corp., No. 2000-66 (Cir. Ct. Jefferson County, Miss. filed May 9, 2000).
  150. Washington Compl., supra note 148, ¶ 15.
  151. See  id. Defs. Am. Home Prods. Corp. & Wyeth-Ayers Labs. Company’s Mot. For Separate Trials at 2, Sept. 28, 1999.
  152. Id. at 3.
  153. See AHP Settles MS Suit After Jury Awards Plaintiffs $150M In Economic Damages, Consumer Product Litig. R., Jan. 2000.
  154. Jefferson First Am. Compl., supra note 149, ¶ 384.
  155. Id. ¶ 522.
  156. Order Remanding Action to Cir. Ct. of Jefferson County, Jefferson v. Am. Home Prods. Corp., No.00-cv-183 (S.D. Miss. filed Aug. 11, 2000).
  157. Compl., Ryan v. Janssen Pharm., Inc., No. 2001-40 (Cir. Ct. Jefferson County, Miss. filed Sept. 21, 2001).
  158. First Am. Compl., Rankin v. Janssen Pharm., Inc., No. 2000-020 (Cir. Ct. Jefferson County., Miss filed July 6, 2000).
  159. Ryan Compl., supra note 157, ¶ 4.
  160. Rankin Compl., supra note 158, ¶ 36.
  161. Notice of Removal ¶ 8, Rankin v. Janssen Pharm., Inc., No. 00cv190 (S.D. Miss. filed Aug. 7, 2000).
  162. Id. Order Remanding Action to Circuit Court of Jefferson County (Oct. 31, 2000).
  163. Order Denying Mot. to Sever, Rankin v. Janssen Pharm., Inc., No. 2000-020 (Cir. Ct. Jefferson County, Miss filed June 8, 2001); id. Order Denying Mot. for a Change of Venue (June 8, 2001).
  164. See id. Motion for Change of Venue Under Miss. Code Ann. § 11-11-511 and For Alternative Relief (filed May 6, 2002).
  165. See Judge Slashes Jury’s Award Of $100 Million Against Makers Of Propulsid, A. P., Mar. 5, 2002.
  166. See Miss. Judge Lowers Awards To Propulsid Users; Plaintiffs Accept, Mass Tort Litig. R., May 2002.
  167. See Jimmy E. Gates, Special Session Delays 2nd Propulsid Trial, Clarion-Leader, Sept. 4, 2002, at 7A.
  168. Compl., Johnson v. Glaxo Smith Kline, No. 2001-59 (Cir. Ct. Jefferson County, Miss. filed Mar. 27, 2001).
  169. Order Granting Mot. to Remand, Johnson v. Glaxo Smith Kline, No. 01cv160 (S.D. Miss. Mar. 29, 2002).
  170. Compl., McGee v. Philip Morris Inc., No. 2000-596 (Cir. Ct. Jefferson County, Miss. filed Nov. 16, 2000).
  171. Id. ¶ 91.
  172. Id. ¶ 29.
  173. Id. Defs.’ Mot. To Sever The Individual Pls.’ Claims Pursuant To Rule 21 Or, In The Alternative, For Separate Trials Pursuant To Rule 42(b) (Oct. 2001).
  174. Compl., Colenberg v. R.J. Reynolds, No. 2000-169 (Cir. Ct. Jefferson County, Miss. filed Oct. 18, 2000).
  175. Id. ¶ 6.
  176. Id. ¶ 209.
  177. See Colenberg Agreed Order of Dismissal (Aug. 16, 2001).
  178. Compl., Banks v. Illinois Cen. R.R. Co., No. 99-0178 (Cir. Ct. Jefferson County, Miss. filed Dec. 28, 1999).
  179. Id. ¶ 6.
  180. Id. ¶ 23.
  181. Id. ¶ 1(e).
  182. Compl., Ames v. Ford Motor Co., No. 2000-624 (Cir. Ct. Jefferson County, Miss. filed Dec. 28, 2000).
  183. Compl., King v. Ford Motor Co., No. 2001-21 (Cir. Ct. Jefferson County, Miss. filed Jan. 31, 2001).
  184. The authors note that they were involved in this defense of these actions on Ford’s behalf.
  185. See Ames Compl., Ex. A.
  186. Id.
  187. Id. ¶ 1, Exhibit C.
  188. See King Compl., Attach. A.
  189. King Compl., supra note 183, ¶ 12.
  190. Id. ¶ 10.
  191. These cases were removed to federal court and transferred to a multi-district litigation proceeding in Indiana, where plaintiffs’ remand motions are still pending. The authors of this article have served as counsel for Ford in these cases.
  192. See Miss. Jury Awards $150M to Workers Exposed to Asbestos, Asbestos Litig. R., Dec. 13, 2001.
  193. See Gregg Mayer, Massive Jury Awards Decline, Clarion-Leader, Feb. 9, 2003, at 1A (noting that, between 1995 and 2003, there were 20 multi-million dollar verdicts awarding plaintiffs a combined total of $82 billion); Jimmie Gates, Hitting the Jackpot in Mississippi Courtrooms, Clarion-Leader, June 19, 2001, at 1A.
  194. See 2002 MS H.B. 19, § 6 (enacted on Dec. 3, 2002).
  195. See id at § 1.
  196. See id. at § 3.
  197. See id. at § 4.
  198. Mississippi did eliminate this provision for medical malpractice cases. Reform legislation passed late in 2002 requires malpractice actions to be brought in the county in which the alleged negligent act occurred. 2002 MS H.B. 2, § 1(2) (enacted on Oct. 8, 2002 ).
  199. Adam Litpak, Court Has Dubious Record as a Class-Action Leader, N.Y. Times, Aug, 15, 2002, at A14.
  200. See Federal Case, supra, 25 Harv. J.L. & Pub Pol’y at 168-70.
  201. First, the Illinois Supreme Court eliminated the provision that the appeal would be a matter of right. Instead, the revised rule (Ill. S. Ct. Rule 306) allows a party merely to seek leave for an interlocutory appeal, allowing the court of appeals discretion whether to hear that appeal. This change is particularly significant in the district governing Madison County, which is, in the eyes of many observers, decidedly receptive to class action certifications. Second, the Court provided that the rule only applied to cases filed on or after January 1, 2003, whereas previously the proposed rule could plausibly have been read to allow appeals of any class certification order issued on or after January 1, 2003.
  202. See 2003 Bill Text WV S.B. 213 (Feb. 13. 2003).
  203. Id.
  204. See Class Action Fairness Act of 2000, S. Rep. No. 106-420, 106th Cong. (2000), at 14.
  205. See generally Barry F. McNeil & Beth L. Fanscal, Mass Torts and Class Actions: Facing Increased Scrutiny, 167 F.R.D. 483, 503-04 (Jud. Conf. 1996).
  206. See Miss. R. Civ. P. 82(c) (authorizing courts to “transfer the action to the court in which it might properly have been filed”).

 


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CJR 7 PDF (173 kb)

SUMMARY:
This report examines the “mass action” tort, which is being used by some local courts to join hundreds or even thousands of unrelated plaintiffs and defendants into a single massive proceeding, without the safeguards of class action litigation. Mass actions enable plaintiffs’ counsel to overwhelm a jury with evidence in a manner that makes it impossible to reach a fair verdict. To examine some mass action activity in detail, this study reports on mass action activity in Jefferson County, Mississippi from 1999 through 2001.

 

EXECUTIVE SUMMARY

ABOUT THE AUTHORS

ACKNOWLEDGMENTS

I. THE CONTOURS AND DANGERS OF THE MASS ACTION PHENOMENON

A. Available Mass Action Devices

1. Two Old Vehicles Used In New Ways

a. Joinder

b. Consolidation

2. A New Vehicle: Special State Court Mass Litigation Rules

B. Unregulated Mass Action Vehicles Pose Serious Due Process Concerns

1. Tainted Jury Pools, Loose Venue Rules, And Unimpaired Plaintiffs

2. The Illusion of the “Perfect” Plaintiff

3. Mass Actions Against Numerous Defendants Pose Even More Serious Due Process Concerns

4. Mass Actions As De Facto Class Actions—But Without The Procedural Protections Of The Class Action Rule

a. Mass Actions Typically Present Myriad Disparate, Serious Personal Injury Claims

b. Defendants Lack Adequate Notice Concerning The Unprecedented Application of Aggregation Rules in Mass Actions

c. Interlocutory Appellate Review is Less Likely to Be Permitted In Mass Actions Than in Class Actions

d. The Class Action Doctrine’s Concerns Over Unnamed Plaintiffs Also Apply To Mass Actions, Which Increasingly Pose Risks Of “Virtual” Representation

e. Special Litigation Rules: Unmoored to Traditional Practice

f. The Self-Fulfilling Magnet Court Effect

C. Why Most Mass Actions Cannot Be Heard In Federal Court

II. CASE STUDY: THE MASS ACTION PHENOMENON IN JEFFERSON COUNTY, MISSISSIPPI

A. Research Study Findings

1. During The Survey Period, Mass Actions Were Filed In Jefferson County At Rates That Were Disproportionate To The County’s Population And The Remainder Of The Docket

2. The Vast Majority Of The Plaintiffs In These Cases Reside Outside Of Jefferson County

3. The Mass Action Business In Jefferson County Is Dominated By Out-Of-County And Out-Of-State Plaintiffs’ Lawyers

4. In Every Case, Plaintiffs Named At Least One Non-Diverse Defendant To Defeat Federal Diversity Jurisdiction

B. A Sampling Of Mass Action Cases Filed In Jefferson County During The Survey Period

1. Insurance

2. Asbestos

3. Prescription Drugs

4. Tobacco

5. Other Cases

CONCLUSION

NOTES

 


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