Miss. SC dismisses 57 asbestos claims

John O'Brien Aug. 14, 2007, 2:56pm


JACKSON, Miss. - Several dozen asbestos claims were not filed in the proper jurisdiction, and attorneys failed to promptly file to have them transferred, the Mississippi Supreme Court decided last week in dismissing the claims.

The 6-2 decision drops 57 personal injury claims against asbestos manufacturers charged with causing health problems to those individuals exposed to it while affirming the ruling of Noxubee Circuit Judge Jim Kitchens, who has thrown out 437 claims from individuals who did not live in the state, did not allege asbestos exposure in the state or had no claims against state defendants.

Plaintiffs appealed, arguing that: (1) the circuit court erred in dismissing their claims; (2) it was not the responsibility of the plaintiffs to copy and transfer the cases; and (3) the trial court's dismissal of the claims was contrary to the procedures prescribed for transfer," wrote Justice Ann Lamar, in her third month on the job after being appointed by Republican Gov. Haley Barbour.

"Finding no abuse of discretion, this Court affirms the ruling of the circuit court."

On June 24, 2005, Kitchens ordered an Order of Severance, Transfer and/or Dismissal for each of the 57 claims, advising the plaintiffs attorneys at a hearing in August to have the cases transferred by Sept. 30.

The plaintiffs did not have the copies made by the deadline and blamed the court's Circuit Clerk, Carl Mickens. Mickens said he was overworked and did not have the time.

"I asked -- or I ruled that this was to be done by the 30th, I ruled that. There was no application in there for additional time because of some catastrophic problem," Kitchens said.

"I had begun the process and had ruled in June that they were to be done and I've expanded it to Sept. 30th that it was to be done. And now it's September 30th and they're still not done.

"Finally, I have to do what I say I'm going to do or what I say means nothing. And I'm at that point."

The Supreme Court agreed with Kitchens because of a recent decision in Canadian National/Illinois Central Railroad v. Smith.

"The Circuit Clerk of Noxubee County even testified that he was overwhelmed by the task of getting these cases copied and transferred," Lamar wrote. "It is also apparent from the hearings conducted in this case that there was an issue as to what should be transferred and what the cost of that transfer would be."

In Canadian National, the Court adopted a new rule for trial courts when dealing with the transfer of misjoined plaintiffs and the transfer of their cases:

-Allow a plaintiff whose case is properly before the court, and all properly joined plaintiffs, to proceed in the filed action;

-Allow misjoined plaintiffs who are properly before the trial court to proceed with separate actions in the forum court; and

-Sever and dismiss all misjoined plaintiffs who lack proper venue in the forum court, allowing each severed plaintiff to file a new complaint in an appropriate venue selected by the plaintiff.

Lamar wrote that the trial court abided by those rules, even though the Canadian National decision came after Kitchen's decisions.

Chief Justice James Smith and justices William Waller, George Carlson, Jess Dickinson and Oliver Diaz joined in the majority. Justices Chuck Easley and James Graves dissented without offering an opinion, while Justice Michael Randolph did not participate.

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