Tort Reform

On June 16, 2004, Mississippi governor Haley Barbour signed House Bill No. 13 into law, bringing significant reform to Mississippi’s civil justice system. Prior to the reform, Mississippi’s civil justice system had been ranked as the worst litigation environment in the United States by the United States Chamber of Commerce. Newsweek magazine described Holmes and Jefferson counties in Mississippi as two of the worst litigation venues in the country for businesses. Another national tort reform group referred to Jefferson County as a “judicial hell-hole.” Many of these criticisms sprung from Mississippi’s liberal joinder and venue requirements.

Joinder, Venue, and Damage Caps

Under prior Mississippi practice, venue could be established against a non-resident defendant in tort actions in any county in which the any part of the tort occurred – including even the most insignificant components of the plaintiff’s damages. Thus, a plaintiff suing a non-resident defendant needed merely to demonstrate that he experienced pain in a certain county in order to bring suit there. Even more importantly, if any one plaintiff satisfied the venue requirements, venue was proper for all defendants properly joined in the action.

Additionally, Mississippi case-law had established a very liberal regime for joinder of plaintiffs under Miss. R. Civ. P. 20. The Mississippi Supreme Court had even gone so far as to hold that any common question of fact or law would be sufficient to establish proper joinder. Under this regime, plaintiff’s lawyers could join hundreds, or even thousands of plaintiffs together in one lawsuit, based on the most minimal similarity between their claims. Needing only one out of this group of plaintiffs to properly establish venue, plaintiffs’ lawyers were free to bring such mass lawsuits in one of the handful of Mississippi counties most hostile to business interests.

Adding to the anti-business litigation climate was the lack of caps on both punitive damages and non-economic actual damages. Another factor made the litigation climate still worse for business. A defendant who contributed to the commission of a tort could be held jointly liable for up to 50% of the damage award, even if that defendant were only 1% negligent. Plaintiffs’ lawyers took advantage of this system when faced with torts committed largely by insolvent or statutorily-immune tortfeasors. Any far-flung legal theory that could establish an insignificant percentage of negligence against a solvent defendant would put that defendant on the hook for 50% of the damages.

Legislative Reform

Reforms enacted in the 2003 legislative session, and more significant reforms enacted in the 2004 legislative session, have created a more pro-business litigation climate.

The most significant reform is an amendment of the venue statute, which now provides that each plaintiff must satisfy venue independently. The newly amended venue statute further provides that venue for civil actions is proper where the defendant resides, or for corporations, in the county of the corporation's principal place of business; where a substantial act, omission or event occurred; or where the defendant obtained a defective product. If none of the above apply to a nonresident defendant, venue is proper where the plaintiff resides or is domiciled. Venue for malpractice actions against a medical provider is proper where the act or omission occurred. Lastly, the amendment codified the doctrine of forum non conveniens, which had been available, but largely ignored by the trial bench, under Mississippi case-law. Moreover, the common law doctrine of forum non conveniens previously recognized in Mississippi case-law did not provide for intra-state transfers between counties, but the amendment to the statute does.

Prior to the legislative amendments made in the 2003 legislative session, there had been no caps on non-economic actual damages, nor had there been a cap on punitive damages.

In the 2003 legislative session, the legislature amended the Mississippi code to provide a $500,000.00 cap on non-economic actual damages in medical malpractice actions. However, the amendments carried an escalation provision which increased the cap to one million dollars for cases filed after July 1, 2017. Moreover, the 2003 amendments specifically stated that damages for “disfigurement” were not considered to be “non-economic” damages.

The 2004 amendments removed the escalation provision, and specifically included disfigurement as a type of non-economic damage. More importantly, the 2004 amendments, for the first time, established a cap on non-economic actual damages in non-medical-malpractice cases, of $1,000,000.00.

As to punitive damages, the 2003 amendments established punitive damages caps, which were lowered even further by the 2004 amendments as follows:

The 2003 amendment, which was retained by the 2004 amendment, provided that the punitive damages caps do not apply to acts occurring while the defendant was committing a felony or under the influence of drugs or alcohol.
The 2004 amendments also abolished joint and several liability, and established that each defendant will only be liable for his percentage of fault. The 2004 amendments further provided that percentages of negligence attributable to an immune tortfeasor could not be reallocated to other tortfeasors.

The 2004 amendments immunized innocent sellers, who are not negligent, but who are merely conduits of products, from being liable in a products liability action. The 2004 amendments changed premises liability law to provide immunity to premises owners for death or injury to a contractor or the contractor's employees on the subject premises if the contractor knew or should have known of the danger which caused the death or injury.

The 2004 amendments related above take effect as to lawsuits filed on or after September 1, 2004. Therefore, practitioners and businesspeople should expect a spike in lawsuit filings between the current date and the effective date of the amendments (One consumer advocate law firm in Mississippi is currently running a television add – featuring a loudly ticking metronome – warning consumers to get their cases filed before September 1, 2004.).
In other miscellaneous provisions, the 2004 amendments provide a patient the right to be present at the disciplinary hearing of a physician who has caused bodily harm to the patient; provide that in medical malpractice actions with multiple defendants, the medical privilege shall be considered waived by and between all defendants; and lastly, allows parties to agree to a bench trial, in return for which they will be guaranteed a trial date within 270 days after the action is filed. These miscellaneous provisions take effect as to all causes of action on September 1, 2004.

The 2004 amendments also included amendments to the requirements for jury service, in a package of reforms dubbed the "Jury Patriotism Act." The act allows those called to jury duty to schedule their service within a six-month window. The idea is to create a more balanced jury pool. This is not possible when so many people are excused from jury duty because they do not have enough time to rearrange their schedules with respect to work and family. The act makes it much more difficult for citizens to avoid jury duty, but allows a prospective juror a one-time postponement, under rules to be established by the Administrative Office of Courts. The provisions of the Jury Patriotism Act do not take effect, however, until January 1, 2007.

Shifting State Supreme Court

In addition to legislative civil justice reform, recent elections, along with the indictment of a sitting justice for alleged campaign contribution irregularities, have produced important changes in the complexion of the Mississippi Supreme Court. The Supreme Court is now effectively a court with eight justices. Most analysts would say that there is now a six vote majority that is pro-business. This majority will quickly be challenged, however, inasmuch as the 2004 judicial races will include re-election campaigns for Justices Randolph, Waller, Graves and Carlson. At this point there hasn’t been much interest in challenging Waller or Carlson, with both being considered strong favorites for re-election. Graves will face some serious opposition and may have difficulty maintaining his seat. A defeat for Graves would likely strengthen the Court’s developing pro-business majority.

The open Pittman seat and the Graves seat will be the keys to determining the direction of the Supreme Court of Mississippi. The likely possibilities range from a seven vote majority for the Court’s conservative coalition (were the Randolph, Waller and Carlson seats to be held) to a five vote majority for the consumer advocate jurists (should the Randolph seat be gained, the Graves seat held and Diaz return to active status).

This new conservative majority on the Supreme Court of Mississippi has begun to flex its judicial muscles and to make progress reigning in some of the judicial excesses for which Mississippi has become known. For example, the court has taken a more stringent view of the admission of expert testimony, and has adopted federal Daubert standard for the admission of such testimony. Their more consequential reform, however, has been an amendment to the comment for Miss. R. Civ. P. 20, followed by some recent decisions, which together provide that joinder of plaintiffs will only be allowed when each plaintiff is connected by a distinct litigable event -- a much more narrow standard than the one applied in previous Mississippi jurisprudence and, arguably, an even more rigorous joinder standard than applied in federal courts. When coupled with the legislative enactments providing that each plaintiff must separately satisfy the venue requirements, the new joinder standard is likely to radically alter the nature of mass tort lawsuits in Mississippi.

Although the recent civil justice reforms are quite sweeping, a word of caution is in order. Persistent demographic factors suggest that the Mississippi trial bench is likely to be of the consumer-protectionist bent for the foreseeable future. Of Mississippi’s eighty-two Mississippi counties, only five counties have a population of over 100,000 persons. There is only one county, Hinds County – where the state capitol, Jackson, is located – with a population of over 200,000 persons. Most of the eighty-two Mississippi counties are rural communities with few or no indigenous large corporate interests. Most of the lawyers practicing in these small communities are general practitioners, and practice in either the solo practitioner or small-firm mode. Additionally, most corporate and insurance interests are represented by large or medium-size firms located in the Jackson or Gulf Coast metropolitan areas. As a result of this, the pool from which Mississippi's trial judges is drawn is largely a pool of lawyers accustomed to representing consumers, not businesses.

Additionally, most all Mississippi trial judges are elected, rather than appointed. The Mississippi trial bench will view the new legislation and rule-changes through the lens of these political realities. Past experience has suggested that those Mississippi trial judges sitting in particularly anti-business venues will likely prefer reversal by the Supreme Court to rendering a decision that may be perceived by the electorate, and their local peers in the bar, as anti-consumer. Given these intractable political and demographic realities, the actual impact of the recent civil justice reform on the litigation and business climate may not be as dramatic as one might initially suspect. Consequently, the prospect of defending a civil lawsuit in Mississippi will continue to be a daunting one – one which will continue to require the expert knowledge and sound advice of aggressive lawyers experienced in Mississippi litigation.