The Mississippi Supreme Court handed down a decision last week that addressed loopholes in joinder laws that are often exploited in mass tort cases.

The state Supreme Court reversed a decision by a Jones County judge that allowed 56 plaintiffs to join under a single lawsuit against the makers of Propulsid, 42 physicians and South Central Regional Medical Center.

Justice Kay Cobb wrote the majority decision for the court, in which she outlined key flaws in logic concerning Rule 20 of Mississippi’s judicial code. Rule 20 addresses plaintiffs’ ability to join together under a common lawsuit when the plaintiffs’ complaints &8220;aris[e] out of the same transaction, occurrence, or series of transactions or occurrences.&8221;

In the case of 56 different complaints against Janssen Pharmaceutica, the makers of Propulsid, and their parent company, Johnson and Johnson, the court ruled &8220;that the prescribing of the drug Propulsid by 42 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,&8221; Cobb wrote.

Attorneys for Janssen in an appeals brief called the joinder case &8220;bald forum shopping&8221; and said that &8220;Mississippi courts are in dire need of guidance on the issues of venue and joinder.&8221;

In short, Janssen Pharmaceutica used a commonsense approach to their appeal. Janssen told the court what they already knew, that the plaintiff lawyers were heaping together as many plaintiffs as possible to help push the drug company into an enormous financial settlement. It’s sort of the strength in numbers approach to legal extortion that trial lawyers have been using for years in Mississippi because our courts have allowed it.

In the opinion, Cobb wrote, &8220;In the relatively few joinder cases decided by this Court to date, we have given broad discretion to the trial court to allow joinder of claims … However, we have not heretofore been faced with facts as compelling as those in the current case, which are in stark contrast to those in prior cases decided by this Court.&8221;

That is in essence true. The state Supreme Court has indeed given broad discretion to trial courts where joinder and venue issues are concerned. But there is more to the story than just the compelling facts of the Janssen case.

Chief Justice Edwin Lloyd Pittman, Presiding Justice James W. Smith Jr., and Associate Justices George C. Carlson and Jess H. Dickinson all concurred with the decision. The five concurring justices make up the majority of the court, and all five are considered friends of the pro-business lobbies.

Presiding Justice William Waller Jr. and Associate Justice Oliver Diaz were not involved in the decision, but both are known as friends of the trial lawyer lobby.

Associate Justices Charles Easley and James E. Graves Jr. only concurred in part, with Graves writing in addition to Cobb in order to address his concerns with a precedent the decision could set.

&8220;… While there may be 56 plaintiffs in the case … with a concurrent number of medical histories, facts and eccentricities, there is one massive fact common to all: the drug Propulsid. The hazard we create today is that a defendant may not rely upon the courts of Mississippi for fear of inconsistent judgments,&8221; Graves writes.

What Graves has done is set the battle over class action lawsuits during the upcoming state Supreme Court elections. Graves notes in his statement that ours is the only state that does not allow class action suits, and the result of this has been the abuse of joinder laws.

With Pittman retiring, the balance of power on the court is up for grabs. When Dickinson replaced former Justice Charles McRae, the shift from a trial lawyer-friendly court to a business-friendly court took place, thus the ruling in the Janssen case and the following rules changes by the state Supreme Court to address loopholes in joinder and venue rules.

Legislative tort reform proponents are thrilled with the changes, but they are not letting it rest with the court. Senate Judiciary A Chairman Charlie Ross, R-Brandon, has introduced a comprehensive tort reform bill. Lawmakers will seek a legislative solution. But the real fight will be back on the campaign trail, as trial lawyers seek to regain the balance of power on the state Supreme Court.

Sam R. Hall

can be reached by e-mail to

shall@sctonline.net

.