You won’t often find the Mississippi Trial Lawyers Association and the Mississippi Manufacturers Association (MMA) agreeing on tort issues, but both groups have concerns about out-of-state lawyers converging on Mississippi.
In April, the National Law Journal published an article titled, “Mississippi becomes mecca for tort suits.” Out-of-state law firms are advertising heavily for clients in state newspapers. And, a Montgomery, Alabama, law firm has sent a letter to Mississippi attorneys soliciting business on large lawsuits. The firm claimed it has had numerous judgments of over $10 million and four judgments in excess of $100 million.
The National Law Journal’s recent article says Jefferson County, which recently saw a large diet drug lawsuit settlement, “has become a mecca for plaintiffs’ lawyers eager to use Mississippi’s unique law to secure jurisdiction over multinational corporations and try a variety of cases before juries who have shown they are willing to render huge compensatory and punitive damage awards.”
That and other Jefferson County cases have also reportedly attracted the attention of the Washington Post and “60 Minutes,” both of which have contacted Mississippi attorneys for comments on stories being prepared on the subject.
Shane Langston, president of the Mississippi Trial Lawyers Association, says the news articles slamming Jefferson County and Mississippi’s tort laws are not telling the whole story. Langston said tort reform, or tort “deform”, as he prefers to call it, passed in states like Alabama and Texas has combined with very conservative elected and appointed judges in those states to create a tort climate that is very favorable to big business.
“Tort deform has limited and constrained victims and consumers rights, and has rendered the playing field very much weighted in favor of big corporate defendants and against individuals and consumers,” Langston said. “The neighboring states’ laws are so screwed up that they are coming over to Mississippi where the laws aren’t screwed up. We have a fair system. It is not fair in Alabama, Texas and Louisiana. So lawyers in those states are coming over to try to litigate in a state with a fair system, and that is Mississippi.”
The trial lawyers fear the influx of out-of-state lawyers filing large numbers of lawsuits and generating bad national publicity could increase the pressure for tort reform in Mississippi.
The MMA agrees the pressure for tort reform will increase. Mark Leggett, MMA director of government affairs, said the influx of outside law firms coming to Mississippi is further proof that the state is becoming a lawsuit mecca.
“If they can get the case in Mississippi, they figure they can hit the jackpot,” Leggett said. “It is not the kind of reputation that we need.”
Leggett agrees tort reform in other states is drawing lawyers from those states to Mississippi. “When they do away with the free reign they have over there, they look elsewhere,” Leggett said. “We are being invaded. If we were to pass some tort reform, we could keep them out of here. We just need to do what Texas and Alabama have done.”
Leggett said the reputation of Mississippi being a mecca for tort suits is bad for economic development efforts, and could prevent industries from considering locating in the state.
“What you will hear from the other side is we have never lost a plant because of our judicial system,” Leggett said. “That may be true. But what happens is you are not even considered because the lawsuit climate is bad. What you may see is insurance companies pulling out of the state because of this kind of climate. It is just not worth writing policies when you can lose so spectacularly.”
Langston said currently out-of-state law firms are taking advantage of a loophole in the law that allows out-of-state lawyers to litigate in Mississippi if they are associated with an attorney who is licensed in Mississippi.
He said in some cases, the entire law firm practices law in Mississippi while only one member of the firm is licensed in Mississippi.
Out-of-state lawyers are supposed to be limited to five cases filed per year. But Langston said there isn’t a good system to monitor or enforce that limit.
“We’re going to try to tighten up on that with cooperation from the Mississippi Bar Association and the Mississippi Supreme Court,” Langston said. “Mississippi lawyers have tight supervision and scrutiny from our bar to make sure they follow ethical guidelines. These out-of-state lawyers don’t have that oversight because they aren’t licensed in Mississippi. That is one of the reasons it is important to the public interest to limit their participation. They take advantage of our laws and venues and don’t have the same interest in protecting the integrity of our judicial system. All that said, there is nothing wrong with neighbors coming into Mississippi to litigate if they want to take the Mississippi bar exam.”
Langston attributes the national interest in Mississippi’s tort climate to the recent Fen-phen verdict in Jefferson County. The $150-million verdict for five Mississippi residents who suffered injury after ingesting the diet drug got a lot of publicity. Langston believes the judge in the case, Lamar Pickard, has been unfairly criticized.
“The interesting part is that there is no question that this is a bad drug that hurt a lot of people and killed some people,” Langston said.
“Juries can get mad when they see a company has acted callously and put profits and dollars over the safety of the consumers.”
But Langston points out that the defendant, American Home Products, could have asked the judge to remit the settlement if the company thought the judgment was out of line. But that request wasn’t made of the judge, nor did the company appeal the decision.
“Instead they used the jury award as an opportunity to settle thousands of cases,” Langston said. “Because of that verdict, we have seen a lot of cases filed in Jefferson County. But a lot have been kicked out of Jefferson County. The system is working.”
Pickard has been criticized as being a plaintiff-oriented judge. Langston disagrees, and gives as evidence Pickard recently throwing out a big nationally publicized case that the asbestos industry filed against the tobacco industry. The judge filed a summary judgment for the tobacco industry.
“He is applying the law fairly, but has been unjustly criticized by large verdicts, large verdicts that were never challenged on appeal and where the judge was not given the opportunity to correct what defendants called runaway jury verdicts.”
One of the out-of-state law firms that has been doing a lot of advertising recently in Mississippi is Tomblin, Carnes, McCormack, LLP, Austin, Texas, which is advertising free medical screening for workers from a large number of professions involving exposure to asbestos or silica.
Mississippi has already seen a large number of settlements for asbestos workers, but partner Jim McCormack said that since the latency period between exposure to asbestos and developing the disease asbestosis can be 20 to 30 years, there will continue to be new victims who need legal representation.
“Every day more people are diagnosed with asbestosis that wouldn’t have been diagnosed 10 or even two years ago,” McCormack said. “Asbestos was used so universally in so many different industries that hundreds of thousands of people were exposed to asbestos. Not all of those will develop asbestosis, but a significant number will.”
McCormack said his firm does this kind of work all over the country, not just in Mississippi.
And he said there are advantages being a national firm tha
reens working people for occupational diseases.
“The question is who is best able to represent any category of clients,” McCormack said. “This has been a national problem.