                     IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2004-IA-00289-SCT

3M COMPANY

v.

SIMEON JOHNSON, et al.


DATE OF JUDGMENT:                           03/24/2004
TRIAL JUDGE:                                HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                  HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    BARRY W. FORD
                                            WALKER (BILL) JONES, III
                                            SCOTT WILLIAM BATES
                                            BARRY CLAYTON CAMPBELL
ATTORNEYS FOR APPELLEES:                    SUZANNE GRIGGINS KEYS
                                            ISAAC K. BYRD, JR.
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                REVERSED AND RENDERED IN PART;
                                            REVERSED AND REMANDED IN PART -
                                            04/13/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       COBB, PRESIDING JUSTICE, FOR THE COURT:


¶1.    This interlocutory appeal comes from the Holmes County Circuit Court’s denial of the

3M Company’s motion to dismiss for forum non conveniens. On appeal, 3M argues the trial

court erred because: (1) it abused its discretion in failing to apply the multi-factor-balancing

test to determine whether the application of forum non conveniens is appropriate, and (2) it

violated 3M’s due process rights under the United States and Mississippi Constitutions. The
19 appellees argue this appeal is moot because, prior to 3M’s filing, they offered to

voluntarily dismiss their claims.

¶2.    We hold that the appeal is not moot and the trial court abused its discretion in failing

to apply the multi-factor-balancing test to the wholly out-of-state appellees.1 Therefore we

reverse and render, granting 3M’s motion to dismiss as to the wholly out-of-state appellees.

As to Willie Kern 2 , we reverse the trial court’s decision and remand with an order to apply

the multi-factor-balancing test to see whether he, too, should be dismissed. Because the first

issue is dispositive of this appeal, we need not address 3M’s violation of constitutional rights

argument.

                                           FACTS

¶3.    3M is one of many defendants in this asbestos action, which initially involved a single

complaint by 185 plaintiffs against 70 defendants seeking damages for injuries from

exposure to asbestos-containing products. Only 36 of the 185 plaintiffs in the initial mass-

tort action had a claim against 3M, and only 17 of those 36 clearly had a connection with

Mississippi.   One plaintiff, Willie Kern, had a connection with Mississippi, but his

       1
         The term “wholly out-of-state appellees” refers to those 18 appellees who neither
live in Mississippi nor claim a cause of action that arose in Mississippi. They are:
Charlie L. Beasley, Sr., Otis Box, Jimmy C. Buchanan, John Cannon, Oreadis Craig,
Nathaniel Harper, Willie Harper, Franklin Hunter, Richard Meadows, Ben Polk, Ernest
Taylor, Willie Williams, Clarence Hewitt, J.C. Davis, Wallace Wubbles, Julius Baker,
James Bills, and Thomas Cabe.
       2
        Kern claims he was exposed to asbestos while working in Attala County,
Mississippi and in Illinois, and thus the term “out-of-state appellees” refers to the 18
named in footnote 1, plus Kern.

                                               2
connection with Illinois was longer in duration. None of the 18 wholly out-of-state appellees

worked, resided or had any connection with Holmes County.

¶4.    This is the second time this case has found its way to this Court. Previously, in 3M

Co. v. Johnson, 895 So.2d 151 (Miss. 2005) (Johnson I), a trial group of ten 3 plaintiffs was

chosen: three settled before or during trial, and one was dismissed. Of the six remaining

plaintiffs in the trial group, only four had a claim against 3M. The other two had claims

against other defendants. At trial the jury awarded $25 million to each plaintiff. On appeal

this Court reversed and rendered in favor of 3M as to the four plaintiffs with claims against

3M. As to the plaintiffs not in the trial group, this Court instructed that their claims be

severed according to this Court’s opinion in Janssen Pharmaceutica, Inc. v. Armond, 866

So. 2d 1092 (Miss. 2004).

¶5.    3M now argues that the 19 out-of-state appellees should be dismissed because 3M

is substantially inconvenienced by having to litigate their claims in Holmes County. Twelve

of the 19 claim exposure to asbestos-containing products at the Greenlee Brothers Foundry

in Rockford, Illinois.4 Six claim similar asbestos exposure in other places including:



       3
       The identity of all ten plaintiffs in the trial group is not known by the Court.
However, the four plaintiffs with claims against 3M who remained parties on appeal in
Johnson I, were Simeon Johnson, James Curry, Bobby Joe Lawrence and Phillip Pate.
From this Court’s opinion, it is not known where they claimed their injuries arose.
However, none of the four from the original trial group are parties to the instant appeal.
       4
        The Rockford, Illinois appellees are: Charlie L. Beasley, Sr., Otis Box, Jimmy C.
Buchanan, John Cannon, Oreadis Craig, Nathaniel Harper, Willie Harper, Franklin
Hunter, Richard Meadows, Ben Polk, Ernest Taylor and Willie Williams.

                                             3
Chicago, Colorado, Minnesota, Louisiana, Missouri and North Carolina.5 Only Kern claims

exposure from more than one place.

¶6.    On October 17, 2003, 3M filed its motion to dismiss for forum non conveniens against

the out-of-state plaintiffs. In response, the out-of-state plaintiffs argued that, while they were

not from Mississippi, they were properly joined with plaintiffs from Mississippi, and

therefore venue was proper in Holmes County. The plaintiffs argued that because of the

variety of parties, there was no perfect forum, and therefore a less-than-perfect, but still

proper forum, was acceptable. After hearing arguments, the trial judge’s bench ruling, in its

entirety, provided that:

       The court finds that the out-of-state plaintiffs have similar claims to the
       plaintiffs in Mississippi and in Holmes County, and therefore, they are
       properly before this Court, and the Motion to Dismiss Forum of [sic] Non
       Conveniens is denied.

3M moved for permission to file an interlocutory appeal which was denied by the trial court,

but its subsequent petition for interlocutory appeal to this Court was granted.

                                          ANALYSIS

¶7.    The appellees argue this appeal is moot, because, prior to the filing of briefs, they had

offered to “dismiss out of state plaintiffs who did not have exposure here in Mississippi or

have a Mississippi defendant”. That offer was made in a July 1, 2005, letter from Byrd,




       5
        Clarence Hewitt, Jr. (Chicago), J.C. Davis (Louisiana), Wallace Wubbles
(Minnesota), Julius Baker (Missouri), James Bills (Colorado) and Thomas Cabe (North
Carolina).

                                                4
Gibbs & Martin, PLLC to 3M’s counsel, Baker Donelson, after 3M filed its petition in the

trial court but prior to the filing of 3M’s petition in this Court. The letter states in its entirety:

              I was calling to see if we could resolve this last interlocutory appeal on
       the Simeon Johnson case. In light of the numerous decisions that have come
       down from the Supreme Court, it appears to me that out of state cases filed
       here for those who did not have exposure here in Mississippi or have a
       Mississippi defendant, need to be dismissed. To me that was the thrust of
       3M’s motion that is on the interlocutory appeal.

              We are prepared to move forward with a Mangialardi Order in the
       Simeon Johnson case that would dismiss out of state plaintiffs who were not
       exposed here in Mississippi, if 3M would voluntarily dismiss the interlocutory
       appeal.

               Please give me a call so we can discuss this further.

The letter did not contain a list of appellees that would be dismissed. No proposed

Mangialardi Order was ever proffered to 3M or the trial court. 3M did not respond to the

letter, citing that it did not offer to unconditionally dismiss the out-of-state appellees. The

letter was at best an offer to begin negotiations and not one that would moot the appeal.

When the appeal was taken, the dispute was seasonable, and the offer was incomplete and

ambiguous in both scope and effect. Therefore, this case is ripe for review.

¶8.    In reviewing the trial court’s decision to grant or deny a motion for forum non

conveniens this Court will uphold the trial court unless it was clearly erroneous. Ill. Cent.

R.R. Co. v. Travis, 808 So. 2d 928, 930 (Miss. 2002). This Court recently held that even

though asbestos litigation is a “mature tort”, the parties must still comply with the traditional

limits imposed by the rules of civil procedure. Harold’s Auto Parts, Inc. v. Mangialardi,



                                                  5
889 So. 2d 493, 493 (Miss. 2004). Expanding on that, this Court has pointed out that

convenience and judicial economy must yield to a paramount concern for a party’s right to

a fair trial. Ill. Cent. R.R., Co. v. Gregory, 912 So. 2d 829, 834 (Miss. 2005) (benefits of

efficiency can never be purchased at the cost of fairness).

¶9.    This Court has held that the courts of this state should not try cases that would be

seriously inconvenient to one or more of the parties, provided that a more appropriate forum

can be found. McWhorter v. Cal-Maine Farms, Inc., 913 So. 2d 193, 196 (Miss. 2005);

Mo. P. R. Co. v. Tircuit, 554 So. 2d 878, 881-82 (Miss. 1989). This Court has also laid out

a multi-factor test which should be considered in any application for forum non conveniens

dismissal. Tircuit, 554 So. 2d at 882. The reviewing court must balance various public and

private interests in order to determine if litigation in the chosen forum would seriously

inconvenience a party. The factors are: (1) relative ease and access to sources of proof; (2)

availability of compulsory process for obtaining attendance of unwilling witnesses; (3)

possibility of a view of the premises (if appropriate); (4) expense or trouble to the defendant

not necessary to the plaintiff’s own right to pursue his remedy; (5) administrative burden on

Mississippi courts in entertaining the suit; (6) whether there are local interests in deciding

the case at home; and (7) the plaintiff’s forum should rarely be disturbed. McWhorter, 913

So. 2d at 196.

¶10.   It has become apparent that our current approach has led to some confusion, and

therefore a brief history of the origin of this multi-factor balancing test is appropriate. In the



                                                6
two most recent cases on this subject, Gregory and McWhorter, this Court announced factors

to be considered. Gregory lists six factors, while McWhorter includes a seventh factor. The

factor found in McWhorter, but missing in Gregory, instructs the court to apply deference

to the plaintiff’s choice of forum. In both of these cases, one can trace the lineage of the test

back to Tircuit which had seven factors. Tircuit pulled these factors from two United States

Supreme Court decisions, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed.

1055 (1947) which was later modified by Piper Aircraft Corp. v. Reyno, 454 U.S. 235, 102

S. Ct. 252, 70 L. Ed. 2d 419 (1981), and the Restatement (Second) of Conflict of Laws

Section 84. These reference the factors but do not enumerate them as this Court did.

¶11.   The United States Supreme Court and the Restatement (Second) of Conflict of Laws

did not create a mathematical equation but intended that these factors be weighed along with

other relevant considerations. See Piper Aircraft, 454 U.S. at 249; Gulf Oil, 330 U.S. at 508;

see also Restatement (Second) Conflict of Laws § 84 cmt. c. In Piper Aircraft the United

States Supreme Court in discussing the doctrine of forum non conveniens opined:

       we would not lay down a rigid rule to govern discretion and that each case
       turns on its facts. If central emphasis were placed on any one factor the forum
       non conveniens doctrine would lose much of the very flexibility that makes it
       so valuable.

Piper Aircraft, 454 U.S. at 249-50. From reviewing the development of the law, it is clear

that the United States Supreme Court intended the forum non conveniens analysis to be a

multi-factor test with six factors comprising the relevant public and private interests,




                                               7
balanced against the deference afforded to the plaintiff’s choice of forum. Id. at 255; Gulf

Oil, 330 U.S. at 508.

¶12.   Comment c of Section 84 of the Restatement which was cited favorably by this Court

in Tircuit, lays out a detailed approach to analysis of a forum non conveniens problem.

Tircuit, 554 So. 2d at 881 (citing Shewbooks v. A.C. & S., Inc., 529 So. 2d 557 (Miss.

1988)). Comment c instructs that one should weigh the relevant public and private interests

(the six factors shared by Gregory and McWhorter) against the plaintiff’s choice of forum;

however, no conclusion on the motion should be made without determining whether there

is a suitable alternative forum. See Restatement (Second) of Conflict of Laws § 84 cmt. c.

It appears from Comment c that the plaintiff’s choice of forum is not a factor to be weighed

but a presumption to be overcome. Thus, the trial court should default to the plaintiff’s

choice of forum unless the public and private interests defeat that presumption. See Piper

Aircraft, 454 U.S. at 255-56; Tircuit, 554 So. 2d at 883.

¶13.   This Court previously applied the multi-factor-balancing test to wholly out-of-state

appellees . In Gregory, nine former and current railroad employees filed suit against Illinois

Central alleging that occupational exposure to asbestos caused their lung cancer. Gregory,

912 So.2d at 831. In that case, seven plaintiffs were either Mississippi residents or alleged

exposure in Mississippi, while the remaining two were neither Mississippi residents nor

exposed while in Mississippi. Id. at 832-33. This Court held that the out-of-state plaintiffs,

whose cause of action accrued elsewhere, should be dismissed. Id. at 836-37. This Court



                                              8
held that the doctrine of forum non conveniens protects litigants from unnecessary burdens

and the courts and taxpayers from incurring the expense of litigating foreign disputes. Id at

836. Because the evidence was out-of-state, the relevant witnesses were out-of-state and the

appellees themselves were out-of-state, this Court opined that Mississippi had no connection

with the lawsuit and therefore it should be dismissed. Id.

¶14.   Following that rationale, the 18 wholly out-of-state appellees in the present case

should be dismissed. 3M is correct in its assertion that to do otherwise would be a serious

inconvenience. For 3M there would be difficulty in obtaining the evidentiary proof needed

to confront the appellees’ claims. See Tircuit, 554 So. 2d at 883 (dismissal is favored when

the majority of the proof is located in another state). In the present case virtually all the

relevant evidence, both witnesses and documents, for the wholly out-of-state appellees is

located outside of Mississippi. This includes the appellees’ medical histories, work sites and

employment information. See generally McWhorter, 913 So. 2d at 196-97 (finding that

Arkansas was a more convenient forum where alleged injuries arose due to exposure to

chicken house waste in Arkansas). This leads directly to an additional difficulty for 3M– any

witnesses and evidence for the wholly out-of-state appellees are beyond the compulsory

subpoena power of the trial court. This would require 3M to travel to multiple locations and

obtain assistance from foreign courts to secure process. See Id.

¶15.   In the present case, a view of the premises by the jury would is unnecessary, because

the appellees do not assert that 3M’s facilities caused their injuries. Rather, the appellees



                                              9
assert that 3M’s products failed to adequately protect them from injury. Therefore, the jury

would gain nothing from being shown the premises.

¶16.   The choice of Holmes County as a forum does not impose unnecessary trouble or

expense on 3M, in the sense that 3M will be required to face these appellees in one forum

or another. That they are consolidated in a single forum is fortuitous for 3M. Having to

defend these claims in one forum means there would be no duplicative costs. 3M would not

be forced to raise the same arguments in different courts. However, judicial economy cannot

be favored at the price of unfairness to the parties. Gregory, 912 So. 2d at 834.

¶17.   There will be serious administrative difficulty if this case is tried in Holmes County.

First, the trial court will have difficulty compelling the production of documents and the

attendance of witnesses from other states. See Poole v. Am. Pub. Life Ins. Co., 878 So. 2d

1102, 1105 (Miss. 2004). Second, the trial court will likely have to apply foreign products

liability statutes and give multiple jury instructions. See State Farm Mut. Auto. Ins. Co. v.

Murriel, 904 So. 2d 112, 116 (Miss. 2004) (affirming trial court’s conclusion that where the

Mississippi court would be forced to apply not only Mississippi law, but also California,

Alabama and Georgia law, the confusion to the jury and the burden on the court are

insurmountable). See also McWhorter, 913 So. 2d at 197. In the present case, if all 18

wholly out-of-state appellees were not dismissed, the trial court would likely have to apply

the laws of Colorado, Illinois, Louisiana, North Carolina, Minnesota, Missouri and

Mississippi. This would require seven different products liability statutes, seven different



                                             10
jury instructions and seven different verdicts. This would confuse the jury and lead to

possible error.

¶18.     Holmes County lacks the required interest in the wholly out-of-state appellees’

claims, and it would be a waste of judicial resources if tried in Mississippi. These appellees

have no connection to Mississippi. They are neither from Mississippi nor did their injuries

arise from conduct in Mississippi. The courts of Mississippi will not become the default

forum for plaintiffs seeking to consolidate mass-tort actions. To allow otherwise would

waste finite judicial resources on claims that have nothing to do with the state. Each trial

requires the empaneling of Mississippians as jurors and the use of Mississippi tax dollars.

These resources should be used for cases in which Mississippi has an interest. Therefore, we

find Mississippi lacks the necessary interest to keep this case here.

¶19.   The above-mentioned public and private interests weigh heavily in favor of granting

3M’s motion to dismiss for forum non conveniens. In addition, less deference should be

given to the wholly out-of-state appellees’ choice of forum. Although a plaintiff’s choice of

forum is rarely disturbed, the choice of a foreign forum is given substantially less deference.

McWhorter, 913 So. 2d at 196. However, this does not mean it is given no deference at all.

Travis, 808 So. 2d at 938. Because of the obvious difficulties presented to the appellees

who would have to come from seven different states, it is likely that the choice of forum here

was made for the convenience of counsel rather than the convenience of the parties. The

wholly out-of-state appellees have not chosen their home forum, and therefore this Court



                                              11
should afford them less deference than traditionally expected. See Piper Aircraft, 454 U.S.

at 255-56.

                                         CONCLUSION

¶20.   The trial court abused its discretion in denying 3M’s motion to dismiss the 18 wholly

out-of-state appellees for forum non conveniens. Compelling 3M to defend against these

appellees creates a substantial inconvenience to 3M. As applied to Kern, the trial court erred

in failing to consider him individually and apply the multi-factor-balancing test. The trial

court denied 3M’s motion on the grounds that all the plaintiffs’ had “similar claims.”

However, similar claims do not, in-and-of themselves, survive a motion to dismiss for forum

non conveniens. The trial court needs to have a detailed factual accounting of the claimed

connections between the individual challenged party and the forum. The trial court failed

to do this and made its decision based on alleged similarities rather than the factual details;

therefore, its findings are erroneous.

¶21.   As to the 18 wholly out-of-state appellees, this Court’s decision acts to dismiss their

claims. As to Kern, we remand to the trial court with the order to conduct further factual

analysis consistent with this opinion to determine whether he should be included. Because

our holding on 3M’s first issue is dispositive of the appeal we do not address the violation

of constitutional rights argument raised in issue two.

¶22. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN
PART.




                                              12
    SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR.
EASLEY, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND
RANDOLPH, JJ., NOT PARTICIPATING.




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