Mississippi Supreme Court cautiously resolving lung injury claims; objections to jurisdiction, bias and fault ignored

By Steve Korris | Dec 20, 2013

JACKSON, Miss. (Legal Newsline) -Without confronting massive matters of jurisdiction, bias and fault, the Mississippi Supreme Court is resolving lung injury claims one by one.

Last year the Court overturned judgments of $15.2 million and $2.6 million, on grounds that let them reject and ignore deeper objections of defendants.

In the bigger case, Justices ruled that Jones County Circuit Judge Billy Joe Landrum allowed irrelevant evidence and prejudicial testimony against Phillips 66.

Thereby they excused themselves from ruling on Phillips 66's claim that Landrum's very words in jury selection showed his bias.

The Court specifically rejected Phillips 66's claim that widespread litigation of asbestos and silica claims in Jones County produced bias in the jury pool.

In the smaller case, the Justices held that Warren County Circuit Judge Isadore Patrick should have repaired a defendant's clumsy jury instruction instead of rejecting it.

Thereby they excused themselves from ruling on three challenges on fault allocation, three on post mortem procedure, and an assignment of cumulative error.

Similarly cautious two years ago, they decided not to decide whether Ruby Kelley could allege wrongful death as beneficiary of David Bozeman.

They ruled that she couldn't sue as personal representative or interested party, but she could sue if Judge Patrick recognized her as common law wife.

Mississippi doesn't recognize common law marriage, but that didn't matter because Alabama recognizes it and they lived in Alabama.

The Justices directed Patrick to hold trial solely on their marital status.

"Our decision should not be read to imply that Kelley is in fact Bozeman's widow," Chief Justice Bill Waller wrote.

These cases, and countless others like it pending in Mississippi courts, trace back to mass X-ray screenings around the turn of the century.

Lawyers filed single complaints for dozens or hundreds of plaintiffs, from Mississippi and elsewhere, against dozens of defendants.

Defendants removed the suits to federal courts and asked the Judicial Panel on Multi District Litigation to consolidate them with cases from other districts.

The panel consolidated the cases and assigned them to District Judge Janis Jack of Corpus Christi, Texas.

In a sensational ruling in 2005, she rebuked radiologists for manufacturing diagnoses.

Radiologists lost licenses and reputations, and the lawyers who paid them carried on without consequences.

Judge Jack sent the cases back to district judges, who remanded many to state courts.

By then, the Justices in Jackson had shifted their position on group litigation.

In 2004, they had directed Landrum to break up a drug defect suit and transfer claims of 56 plaintiffs to appropriate courts.

Yet they endorsed mass litigation of asbestos claims.

"Asbestos claims lend themselves more easily to aggregation because they arrive from a mature tort," Justice Kay Cobb wrote.

"This is because asbestos litigation has been around for decades, and courts have had ample opportunity to evaluate medical, scientific and other factual issues relating to asbestos exposure, and the courts understand better when aggregation of claims is appropriate," Cobb wrote.

Justices James Graves and Charles Easley concurred, arguing separately that Mississippi should allow class actions.

"Mississippi is the only state that permits no class actions of any kind, whether through common or statutory law," Graves wrote.

He wrote that joinder "slowly grew to encompass the massive and unwieldy actions the majority rightfully struggles with today."

In 2006, the Justices dropped the shield of aggregation from lung litigation.

They split up claims of just five former Illinois Central Railroad workers alleging they inhaled asbestos and other toxins.

The Justices ruled that Hinds County Circuit Judge Tomie Green properly severed the cases but improperly retained jurisdiction over all five.

Presiding Justice Jess Dickinson wrote, "We find the amended complaint woefully inadequate in alleging sufficient information to establish venue."

He wrote that the Justices couldn't say whether any of the five was properly before the court in Hinds County.

The Justices held that Green should leave it to the five to sue in appropriate venues.

They ruled that plaintiffs in group actions could file new claims as a matter of form for a year without triggering statutes of limitation.

Lawyers on both sides promptly agreed to dismiss mass actions without prejudice, so plaintiffs could sue in appropriate courts.

The transition went smoothly, though dead plaintiffs occasionally complicated matters.

Bozeman, the potential groom in the grave, originally joined 54 other plaintiffs in a silica suit in Holmes County in 2002.

He died in 2005, and Kelley filed a wrongful death suit in Warren County in 2007.

Clark Sand moved for summary judgment and Judge Patrick denied it, finding Kelley was Bozeman's personal representative or an interested party.

The Supreme Court reversed Patrick in 2011, directing him to decide whether Kelley could sue as common law wife.

The Justices also rejected a wrongful death suit that Diana Kinsey filed as beneficiary of stepfather Ted Watkins.

Watkins and 24 other plaintiffs filed a silica suit in Humphreys County in 2002.

He died in 2003, and no one substituted for him in the suit.

In 2006, when lawyers dismissed the group action, they couldn't renew his claim.

Kinsey renewed it in 2007, as a wrongful death suit in Harrison County.

Defendants argued that the statute of limitations ran out on Kinsey three years after Watkins died, and Circuit Judge Roger Clark agreed in 2010.

The Supreme Court affirmed Clark in 2011, concluding that the statute barred Kinsey's suit because it was a new action independent of Watkins's case.

Last year, in another action that outlived its plaintiff, the Justices rejected Henry Morgan Jr. as beneficiary of Henry Morgan Sr.

Henry Senior and 141 other plaintiffs sued 88 defendants in 2002, in Jones County. He died five days after suing, but no one notified the court.

In 2006, when lawyers dismissed the group action, they couldn't renew his claim.

Henry Junior renewed it in 2007, as a wrongful death suit in Adams County.

Defendants argued that the statute of limitations ran out, and Circuit Judge Forrest Johnson ruled that it did not.

He tolled the statute of limitations from the date of Henry Senior's death because plaintiffs and defendants treated his case as if he had not died.

Johnson wrote that either side could have taken certain actions while the Jones County litigation was pending, "but none were undertaken."

The Supreme Court reversed him last year, finding the case similar to Kinsey's.

Justices James Kitchens, David Chandler, and Leslie King dissented, arguing that court rules don't place the burden of suggesting death on either party.

A month later, the Justices wiped out a $15.2 million judgment that Landrum had entered for former Phillips 66 mud driller Troy Lofton.

Lofton and 22 others had sued Phillips 66 entities in Jones County in 2004, and he had filed an individual complaint there in 2006.

By the time of trial, only Chevron Phillips Chemical remained as defendant.

The jury assigned 100 percent liability to Chevron Phillips Chemical, awarding Lofton $15 million in noneconomic damages and $200,000 in economic damages.

An appeal succeeded, because Landrum let a lawyer read from drilling records not in evidence while cross examining a defense expert.

The expert had not seen the document, and couldn't answer when the lawyer asked if he could dispute it.

The Justices ruled that Landrum abused his discretion because the reports failed to identify any particular well where Lofton worked.

Kitchens wrote, "At one point, the defense objected on the basis that plaintiff's counsel was reading from a document from a time period when Lofton was not even employed by that particular drilling company, yet the trial court continued to overrule the objections."

A month later, the Justices wiped out a $2.6 million judgment that Patrick entered against Mississippi Valley Silica for the estate of sandblaster Robert Eastman.

Six Justices ordered a new trial, finding Patrick should have explained to jurors the sophisticated user defense.

Dickinson wrote that if Patrick felt "sophisticated user" would confuse jurors, his remedy was to provide a definition sufficient to remove confusion.

Waller and Presiding Justice Michael Randolph concurred in ordering a new trial but argued that Patrick should have granted the instruction the defense offered.

Justices David Chandler, Kitchens and King dissented, arguing that the majority rewarded the defendant's failure to discern the applicable law.

Chandler wrote that the defendant's jury instruction omitted the element of reasonable reliance because the defendant didn't want the jury to consider it.

He wrote that the decision would place an enormous burden on a judge in the midst of a lengthy civil trial.

In a case currently before the Justices, former sand supplier Dependable Abrasives seeks to preserve a favorable verdict that Jones County jurors reached in April.

Landrum granted former sandblaster Richard Pierce a new trial in June, finding the verdict ran against the manifest weight of the evidence.

Want to get notified whenever we write about Mississippi Supreme Court ?

Sign-up Next time we write about Mississippi Supreme Court, we'll email you a link to the story. You may edit your settings or unsubscribe at any time.

Organizations in this Story

Mississippi Supreme Court

More News

The Record Network