IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-00237-SCT
AMCHEM PRODUCTS, INC.; CROSSFIELD
PRODUCTS CORPORATION; DANA
CORPORATION; GENERAL ELECTRIC COMPANY;
GEORGIA PACIFIC CORPORATION; GULF COAST
MARINE SUPPLY COMPANY; KOMP EQUIPMENT
COMPANY, INC; LAUREL MACHINE AND
FOUNDRY COMPANY; MARINE SPECIALTY
COMPANY, INC.; NATIONAL SERVICE
INDUSTRIES, INC.; OWENS-ILLINOIS, INC.;
STANDARD EQUIPMENT COMPANY, INC.; UNION
CARBIDE CORPORATION; UNIROYAL HOLDING,
INC.; AND ZURN INDUSTRIES, INC.
v.
THOMAS L. ROGERS, ET AL.
DATE OF JUDGMENT: 08/02/2002
TRIAL JUDGE: HON. LARRY O. LEWIS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS : T. HUNT COLE, JR.
WALTER G. WATKINS, JR.
THOMAS W. TARDY, III
ATTORNEY FOR APPELLEES: WARREN LEON CONWAY
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 03/17/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
¶1. The case before the Court is an interlocutory appeal concerning the joinder of 76
plaintiffs and 136 named defendants in an asbestos mass tort case. Amchem Products, Inc.,
et al., (the Defendants) filed the petition for interlocutory appeal challenging the trial court’s
order denying the motion to sever and transfer or dismiss in the Circuit Court of the Second
Judicial District of Bolivar County, Mississippi. The complaint alleged various tort and
product liability claims related to asbestos exposure at approximately 250 different work
locations in 20 different states. This Court granted the Defendants permission to bring this
interlocutory appeal. Finding error by the trial court, we reverse and remand the case for
severance of all claims with instructions to the trial court to transfer the severed cases to those
jurisdictions in which each plaintiff could have brought his or her claim and dismissing without
prejudice all out-of-state claims with no connection to Mississippi based upon forum non-
conveniens.
PROCEDURAL HISTORY
¶2. On June 19, 2002, a Ninth Amended Complaint was filed in the Circuit Court of the
Second Judicial District of Bolivar County, Mississippi, alleging tort and product liability
claims for alleged asbestos exposure against 136 Defendants. The complaint was filed by 76
plaintiffs (the Plaintiffs), including the named plaintiff, Thomas L. Rogers (Rogers). The
Defendants manufactured, distributed and sold a wide variety of products such as
pharmaceutical, automotive, personal care, home appliance, chemical, and building products.
The Plaintiffs worked in a variety of fields including farming, automotive, textile, railroad,
education and construction industries.
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¶3. The Defendants filed a motion to sever and transfer or dismiss the Plaintiff’s claims.
The Defendants’ argument for the motion was that the Plaintiffs failed to meet the joinder
requirements of M.R.C.P. 20 and should be severed from one another. In addition, the
Defendants argued that once severed, a determination of the proper venue had to be made and
a transfer of all claims that did not relate to Bolivar County, including any transfer to other
Mississippi counties or dismissal of any claims that had no relation to Mississippi. The
Circuit Court of Bolivar County, the Honorable Larry O. Lewis, presiding, denied the
Defendants’ motion on August 5, 2002.
¶4. Of the 76 Plaintiffs, arguably 6 have ties to the State of Mississippi. Thomas Rogers
(Rogers) and Percy Norwood (Norwood) reside in Bolivar County and allege exposure in
Bolivar County. William Griffin (Griffin) is a resident of Jackson County, Mississippi,
although his alleged exposure did not occur in Mississippi. Three Plaintiffs, Jerry Barrington,
Lee Jimmerson and Richard Brown do not reside in Mississippi although they allege exposure
in Mississippi, but not in Bolivar County.
¶5. Of the 136 Defendants, all have done business in the State of Mississippi. Two of the
Defendants have their principal place of business in Bolivar County. The trial court relied
heavily upon Am. Bankers Ins. Co. of Florida v. Alexander, 818 So.2d 1073 (Miss. 2001)
and Prestage Farms, Inc. v. Norman, 813 So.2d 732 (Miss. 2002) in its opinion.
¶6. The trial court denied the motion to sever, transfer or dismiss. However, the trial court
reserved its right to reconsider its ruling on the motion following the trial of the first trial
group. The first trial group known as “Special Trial Group #1" was to consist of three
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Plaintiffs: Rogers, Norwood and Griffin. On January 21, 2003, the circuit court granted
permission and leave to file an interlocutory appeal to this Court for the joinder issue.
Thereafter, this Court granted the Defendants’ petition for interlocutory appeal and stayed all
proceedings in the trial court pending resolution of the interlocutory appeal. See M.R.A.P. 5.
FACTS
¶7. This case was originally filed on February 16, 2001. The 76 Plaintiffs in this case
alleged asbestos exposure in approximately 250 different work locations in 20 different states.
There are 6 Plaintiffs who either live in Mississippi or alleged exposure to asbestos in
Mississippi. The 6 Plaintiffs are (1) Thomas Rogers who resides in Bolivar County and alleged
exposure working on farming and motor vehicles in Bolivar County; (2) Percy Norwood who
resides in Bolivar County and alleged exposure working in various sites in Bolivar County; (3)
William Griffin who resides in Ocean Springs and alleged exposure in Alabama; (4) Jerry
Barrington who resides in Alabama and alleged exposure in Laurel, Natchez and Yazoo City;
(5) Lee Jimmerson who resides in Alabama and alleged exposure in Ocean Springs and (6)
Richard Brown who resides in Utah and alleged exposure in Gulfport. The two Bolivar County
residents, Rogers and Norwood, have no similar connections to asbestos exposure. Each of
these two Plaintiffs worked at different work sites at different time periods with no common
employer. Rogers alleged exposure working as a farmer and maintenance worker of farming
and motor equipment at one farm. Norwood alleged exposure working as a maintenance
laborer in a university, a concrete plant and a hospital. The other 70 Plaintiffs in the action are
not Mississippi residents and did not allege asbestos exposure in Mississippi.
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¶8. The Defendants filed a motion to sever and transfer or dismiss in the Bolivar County
Circuit Court. The trial court denied the motion and set up a trial group of three Plaintiffs to
proceed to trial on August 2, 2002. The trial court’s findings of fact stated in part:
4) Two of the seventy-six Plaintiffs in the case, Thomas Rogers and Percy
Norwood are residents of Bolivar County, Mississippi. Rogers and Norwood
also allege exposure to asbestos in Bolivar County, Mississippi.
5) One Plaintiff, William Griffin, is a resident of Jackson County, Mississippi,
but does not allege exposure to asbestos in Bolivar County or elsewhere in the
State of Mississippi.
6) Three Plaintiffs, Jerry Barrington, Lee Jimmerson, and Richard Brown, are
non-residents of the State of Mississippi who allege exposure to asbestos
related products in the State of Mississippi but not in Bolivar County. The
remaining seventy, out of seventy-six Plaintiffs, are non-residents of the State
of Mississippi and do not allege exposure to asbestos products in the State of
Mississippi.
7) Each of the Plaintiffs were exposed to asbestos at their work place. The
Plaintiffs worked at different job sites in which they may have been exposed.
These job sites are located [in] different States other that the State of Mississippi and several foreign countries.[
8) Each of the Defendants does business in the State of Mississippi. Two
Defendants have their principal places of business in Bolivar County,
Mississippi.
* * * * *
10) The circumstances in which each of the seventy-six Plaintiffs were exposed
to asbestos products are unique. The Plaintiffs worked at different job sites
performing different jobs at different times and under different conditions.
They were exposed to asbestos for different frequencies and periods of time.
They were exposed in different ways to different types and different brands of
asbestos products. Their places of employment [had] different methods of
protecting them from asbestos exposure.
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The trial court is presumably referencing the other 70 Plaintiffs in this case.
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11) Each of the Plaintiffs have unique medical histories and unique health
problems.
Because of the variety of locations involved in the lawsuit the trial court found that different
substantive laws from other states would have to be considered in the action as well.
¶9. Regardless of some of these findings, the trial court held that the Plaintiffs’ claims
arose out of the same transactions or occurrences, relying upon Prestage Farms v. Norman,
813 So.2d 732 (Miss. 2002) and Am. Bankers Ins. Co. of Florida v. Alexander, 818 So.2d
1073 (Miss. 2001). The trial court also held that the Plaintiffs’ claims involved common
issues of fact or law, again citing Prestage Farms. Thus, the trial court concluded that the
Plaintiffs satisfied the requirements of M.R.C.P. 20 and the claims should not be severed. In
addition, the trial court held that the doctrine of forum non conveniens should not be applied
to the case.
DISCUSSION
¶10. The Defendants raise the following issues on appeal:
I. Whether M.R.C.P. Rules 20, 42 and 82 and the Comments, as
amended February 20, 2004, regarding joinder of the parties, and
the Court’s decision in Janssen Pharmaceutica, Inc., v. Armond, 866
So.2d 1092 (Miss. 2004) and similar recent decisions, apply to this
multiple plaintiff/multiple defendants asbestos mass tort case so as
to require a finding of misjoinder, and the dismissal without
prejudice or severance of plaintiffs in this suit in the Circuit Court
of the Second Judicial District of Bolivar County.
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II. Whether, under the foregoing standards and its own findings of
fact, the circuit court erred by refusing to dismiss without
prejudice or the sever all plaintiffs from the claim of core plaintiff
Thomas Rogers.
¶11. “The standard of review regarding joinder and venue is abuse of discretion.” Janssen
Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1095 (Miss. 2004) (citing Ill. Cent. R.R.
v. Travis, 808 So.2d 928, 931 (Miss. 2002). See also Am. Bankers Ins. Co. of Florida v.
Alexander, 818 So.2d at 1075-76. Abuse of discretion is found where joined parties fail to
satisfy the two part requirement of M.R.C.P. 20(a). Armond, 866 So.2d at 1097. Mississippi
Rule of Civil Procedure 20(a) states that “joinder is proper if (1) the claims arise from the
same transactions and occurrences and (2) the claims share a common issue of law or fact.”
Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 46 (Miss. 2004).
¶12. In Armond, 866 So.2d at 1099, the majority opinion distinguished between mature
torts and immature torts. This Court found that asbestos claims were “mature torts” and stated:
Asbestos claims lend themselves more easily to aggregation because they arise
from a “mature tort.” 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.
Armond, 866 So.2d at 1099. In contrast, the majority in Armond found the Propulsid claims
to be “immature torts” because the “scientific, legal and factual issues” were considered to be
“novel and unsettled.” Armond, 866 So.2d at 1099.
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¶13. In Harold’s Auto Parts, Inc. v. Mangialardi , 889 So. 2d 493 (Miss. 2004), this Court
clarified its holding in Armond as it pertained to asbestos litigation. This Court held:
This interlocutory appeal concerns joinder of multiple plaintiffs in an asbestos,
mass tort litigation case. This matter is controlled by Jans[s]en Pharmaceutica,
Inc. v. Armond, 866 So.2d 1092 (Miss. 2004). Even though asbestos litigation
is, indeed, a “mature tort,” as discussed in dicta in Armond, this Court did not
intend in that case, and we shall not proceed here, to exempt asbestos cases from
the requirements of Rule 20[] of the Mississippi Rules of Civil Procedure.
889 So. 2d at 493. Therefore, M.R.C.P. 20 is now clearly considered by this Court to apply to
asbestos claims. Armond and the subsequent clarification provided in Harold’s Auto Parts
demonstrate that M.R.C.P. 20 prohibits joinder of diverse plaintiffs with diverse defendants
unless there is a claim that (1) arises out or the same transaction or occurrence and (2) the
claims share a common issue of law or fact.
¶14. We find that the trial court erred by denying the Defendants’ motion to sever and transfer
or dismiss. Here, the facts show that the 76 Plaintiffs were improperly joined in this case.
While it is true that the trial court did not have the benefit of Armond and its progeny at the
time of its decision, this does not change the outcome of the case before the Court today.
¶15. The only factor that is common to each Plaintiff is alleged exposure to asbestos during
some time period of their career. As the trial court correctly found, the Plaintiffs worked at
different job locations in different states and some foreign countries. The circumstances in
which each Plaintiff experienced alleged asbestos exposure were unique. Each Plaintiff worked
at a different job site at different times, performing different jobs under different working
conditions. In addition, each Plaintiff had different number of alleged exposures and different
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lengths of alleged exposure time. The alleged asbestos exposure occurred in different ways,
with different types of products and differing types of protection. Each Plaintiff also had
unique medical histories and unique health problems. Clearly, this Court’s ruling in Armond
and subsequent ruling pertaining to asbestos cases in Harold’s Auto Parts are controlling in
this case.
¶16. We find that only 6 out of the 76 Plaintiffs in this case have ties to the State of
Mississippi. Thomas Rogers resides in Bolivar County and alleged exposure working on
farming and motor vehicles in Bolivar County. Percy Norwood resides in Bolivar County and
alleged exposure working in various sites in Bolivar County. William Griffin resides in Ocean
Springs and alleged exposure in Alabama. Jerry Barronton resides in Alabama and alleged
exposure in Laurel, Natchez and Yazoo City. Lee Jimmerson resides in Alabama and alleged
exposure in Ocean Springs. Richard Brown resides in Utah and alleged exposure in Gulfport.
The facts indicate that only Rogers and Norwood have claims that should remain in Bolivar
County. Notwithstanding the fact that Rogers and Norwood’s claims occurred in Bolivar
County, their claims have no other connection to one another and, therefore, should be severed
from each other. The other four plaintiffs have claims that should be severed and transferred
to proper counties. The out-of-state Plaintiffs with no connection to the State of Mississippi
and whose causes of action accrued out of state should be dismissed without prejudice based
upon forum non-conveniens.
CONCLUSION
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¶17. This Court finds that Armond and Harold’s Auto Parts are controlling in this case. We
find that the trial court abused its discretion by denying the Defendants’ motion to sever and
transfer or dismiss. Therefore, the circuit court’s order is reversed, and this case is remanded
with the following directions each case is to be transferred to the appropriate jurisdiction where
each Plaintiff could have brought his or her claim without reliance on an improperly joined
plaintiff; the claims of Thomas Rogers and Percy Norwood are to remain in Bolivar County
since the alleged exposure occurred in Bolivar County. However, Rogers’s and Norwood’s
claims are to be severed from one another as their claims and the underlying facts are distinct
and unique for each case. All other Plaintiffs’ claims with a connection to Mississippi are to
be severed and transferred to those jurisdictions in which each plaintiff could have brought his
or her claim; and all of the 70 out-of-state Plaintiffs with no connection to Mississippi and
whose causes of action accrued outside of the State of Mississippi shall be dismissed without
prejudice based upon the doctrine of forum non-conveniens.
¶18. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ
AND RANDOLPH, JJ., NOT PARTICIPATING.
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