                            IN THE SUPREME COURT OF MISSISSIPPI

                                          NO. 2003-IA-01795-SCT

ILLINOIS CENTRAL RAILROAD COMPANY

v.

LEON GREGORY, M. W. STEINHAUER, ERVIN
LEWIS, CARL F. BOSHERS, NATHANIEL FINLEY,
ROY LEE CHRISTOPHER, HOWARD E.
CRAWFORD, LUTHER STEVISON AND JOHNNY
WILSON, JR.


DATE OF JUDGMENT:                                    07/24/2003
TRIAL JUDGE:                                         HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                           TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              GLENN F. BECKHAM
ATTORNEYS FOR APPELLEES:                             ANDREW M. W. WESTERFIELD
                                                     ALVA A. HOLLON, JR.
NATURE OF THE CASE:                                  CIVIL - PERSONAL INJURY
DISPOSITION:                                         REVERSED AND REMANDED - 03/17/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        EN BANC.

        COBB, PRESIDING JUSTICE, FOR THE COURT:


¶1.     This is a Rule 20 joinder case. Plaintiffs/Appellees in this case state that the case is the

same as Illinois Central R.R. v. Travis, 808 So.2d 928 (Miss. 2002), and heavily rely on

Travis for their argument that joinder under M.R.C.P. 201 is proper for them. They assert that



        1
          Rule 20 reads:“(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert
any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction,
if this Court does not affirm the trial court’s denial of defendant ICRR’s Motion to Transfer

and/or Dismiss, we are left with no alternative but to overrule Travis, and “sap Armond of its

vitality” regarding aggregation in “mature torts.” We agree that due to the recent development

in our Rule 20 jurisprudence, Travis would likely not be decided in the same way today, but

we disagree that our decision today is in derogation of Armond, as explained below. Further,

we hold that the facts of the present case do not pass the test for proper joinder under Miss.

R. Civ. Proc 20, thus we reverse the trial court and remand for further proceedings consistent

with this opinion.

                                                     FACTS

¶2.     The plaintiffs in this case are nine present and/or past employees of Illinois Central

Railroad (ICRR), who filed suit against ICRR in the Tunica County Circuit Court.                               The

plaintiffs (hereafter “Employees”) allege that they suffered injuries during the course and

scope of their employment with ICRR as a result of the negligent acts and omissions 2 by ICRR

in violation of the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51 et seq.



occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these
persons will arise in the action. All persons may be joined in one action as defendants if there is asserted
against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common
to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or
defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs
according to their respective rights to relief, and against one or more defendants according to their
respective liabilities.”
        2
          The employees claim that ICRR negligently failed to provide them with reasonably safe places
to work; negligently failed to furnish them with safe equipment including adequate protective mask and/or
respiratory protective devices; negligently failed to warn them of the hazardous nature of asbestos, diesel
fumes and/or silica rock dust; and negligently failed to provide them with safe and proper ventilation at their
work places.

                                                        2
Specifically, the employees claim that they suffered occupational lung disease due to exposure

to toxic substances including asbestos, asbestos-containing products, diesel exhaust, silica

rock dust and coal. ICRR filed a Motion to Transfer and/or Dismiss, which the circuit court

denied, although the circuit court allowed certification of interlocutory appeal to this Court.

ICRR then petitioned for, and we granted the interlocutory appeal. See M.R.A.P. 5.

¶3.      The following table, taken from ICRR’s brief, and adopted by the employees, gives a

succinct summary of pertinent information for each employee:


Name             Residence        Alleged Work          Craft       Alleged          Claims
                                  Locations                         Dates of         Exposure
                                                                    Employment       in Tunica
                                                                    with ICRR        County
Boshers          Hernando,        Memphis               Laborer/    1966 - 1989      yes
                 MS                                     carman

Christopher      Millington,      Ill. to Memphis       trackman    1948 - 1989      no
                 TN

Crawford         Memphis,         Memphis               laborer/    1967 - 1981      no
                 TN                                     carman/
                                                        material
                                                        handler

Finley           Memphis,         Memphis               carman/     1974 - 1981;     no
                 TN                                     yardman/    1995 -
                                                        airman      present

Gregory          Tunica, MS       Fulton, KY to         trackman/   1971 - 2000      yes
                                  New Orleans           switch
                                                        oiler

Lewis            Terry, MS        Jackson               carman      1963 -           no
                                                                    present
Steinhauer       Jackson,         Jackson               carman      1973 -           no
                 MS                                                 present




                                                    3
Stevison              Memphis,          “all over” Miss.       trackman/      1946 - 1987        yes
                      TN                                       welder
                                                               helper/
                                                               section
                                                               foreman
Wilson                Memphis,          Memphis -              trackman       1973 - 1988;       yes
                      TN                Mobile                                1990 -
                                                                              present



¶4.      In its Order Denying Defendant’s Motion to Transfer and/or Dismiss, the circuit court

stated in pertinent part:

         The Court finds that similar issues have previously been ruled on through an
         interlocutory appeal in the case of Illinois Central Railroad v. Travis, 808
         So.2d 928 (Miss. 2002). . . .

         The Court finds that the Defendant has admitted that venue is proper for one (1)
         Plaintiff, Leon Gregory, who resides in Tunica County, Mississippi and has
         alleged exposure in the Complaint to asbestos and other hazardous materials in
         Tunica County while employed by the Defendant. The Court further finds that
         one(1) Plaintiff lives in Desoto County, Mississippi and alleges common
         exposures as the other Plaintiff in Tunica County. Two(2) Plaintiffs live in
         Memphis, Tennessee that allege common exposure with other Plaintiffs in
         Tunica County.       Two(2) Plaintiffs live in Mississippi and allege exposure
         common to other Plaintiffs in Hinds County.              One(1) Plaintiff lives in
         Millington, Tennessee and alleges exposure common with other Plaintiffs in
         Alcorn and Tushimingo[sic] Counties in Mississippi and two(2) Plaintiffs live
         in Memphis, Tennessee that allege common exposure with other Plaintiffs in
         Memphis, Tennessee.
         ....
         The Court further finds that for joinder to be proper in the case at bar, the cause
         of actions must arise out of similar3 transactions or occurrences. In that
         regard, the Court finds that in the case at bar there are questions of law or fact
         common to all Plaintiffs, which include: . . .4




         3
             The incorrect statement of this requirement by the circuit court is addressed later in this opinion.
         4
             The court reiterated the claims of negligence listed in footnote 2 above.

                                                           4
        Based on the above, the Court finds that Plaintiffs are properly joined in this
        case under Rule 20 MRP . . . . 5

(emphasis added).

                                              ANALYSIS

¶5.     ICRR argues that joinder is improper in this case for these plaintiffs because their

employment consisted of work in different crafts at different work sites during different

periods of time; plaintiffs have made no specific allegations concerning the work history or

exposure of each; and there is no transaction or occurrence or distinct litigable event common

to all plaintiffs.   The standard of review for joinder cases is abuse of discretion.           Janssen

Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1097 (Miss. 2004).

¶6.     Employees argue that based on Travis and affirmed by this Court’s recent decision in

Armond, joinder is proper in this case, and that ICRR has failed to show that the trial court

abused its discretion in denying ICRR’s motion to transfer and/or dismiss. A review of Travis

and Armond will help in understanding the employees’ position. In Travis, Mr. Travis worked

for ICRR for 41 years from 1949 through 1990. Later he was diagnosed with asbestosis and

died from lung cancer within the year. Travis’s wife joined 71 other former ICRR employees

and filed a complaint under FELA.              Twenty-seven additional plaintiffs were joined by

amendment, bringing the total to 98 plaintiffs, including many non-Mississippi residents.

Travis was a resident of Tennessee and worked in Kentucky and Tennessee during his

employment with ICRR.        The plaintiffs in this case claimed injuries from exposure to asbestos


        5
        ICRR additionally objected to venue-by-joinder under Rule 82(c), and the circuit court ruled that
venue-by-joinder was allowed. Because improper joinder under Rule 20 is dispositive in this case, the Rule
82 argument is not addressed here.

                                                    5
because ICRR failed to provide a safe working environment for its employees. The trial court

denied ICRR’s motion to dismiss Travis’s claim for improper joinder. This Court affirmed the

trial court’s decision.

¶7.     This Court began its analysis of the joinder issue in Travis by stating “[t]his Court has

recognized that the Official Comments to Rule 20 call for consideration on a case-by-case

basis ‘utilizing a liberal approach toward joinder.’”      At the time Travis was decided, the

Comment to Rule 20 said, in pertinent part “[t]he general philosophy of the joinder provisions

of these rules is to allow virtually unlimited joinder at the pleading stage but to give the court

discretion to shape the trial to the necessities of the particular case.” (emphasis added). This

liberal philosophy was partially in response to Mississippi’s lack of a class action rule.    See

Armond, 866 So.2d at 1102-03 (Graves, J., specially concurring).           As noted in American

Bankers v. Alexander, 818 So.2d 1073, 1078 (Miss. 2001), "we have fashioned our Rules of

Civil Procedure to handle cases of this type under Rule 20 and 42."

¶8.     The “virtually unlimited” language was deleted from the Rule 20 Comment in February,

2004, just after this Court’s decision in Armond. One reason for the deletion of this language

is that, as the Court attempts to craft rules for fair and efficient court administration during a

time of growing mass tort actions, it must ensure that a liberal joinder policy does not result

in prejudice to the parties involved.    In an effort to provide a reasonably fair forum for all

parties, our     joinder philosophy must necessarily undergo          modification as required by

circumstances.

¶9.     An example of the type of prejudice our liberal joinder philosophy has produced is seen

in a recent case, in which a massive jury award was not supported by the evidence, and which

                                                  6
showed that the jury was confused by the evidence presented.                See Janssen Pharmaceutica,

Inc. v. Bailey, 878 So.2d 31 (Miss. 2004) (Jury awarded each plaintiff $10 million even

though plaintiffs varied widely in age and alleged injury).

¶10.     In Armond,         we stated that "the discretion            to   consolidate   is   not unfettered.

Considerations of convenience and economy must yield to a paramount concern for a fair and

impartial trial....    The benefits of efficiency can never be purchased at the cost of fairness."

Armond, 866 So.2d at 1100 (quoting Malcolm v. Nat'l Gypsum Co., 995 F.2d 346, 354 (2d

Cir. 1993)).          Thus, based on experience garnered since Travis, we have moderated the

“virtually unlimited joinder.” As stated in Armond, the issue is “where to draw the line with

respect to what is considered ‘the same transaction, occurrence, or series of transactions or

occurrences.’” Armond, 866 So.2d at 1097. We revised the Comment to Rule 20 in February,

2004, to explain this requirement. The Comment now includes the statement that “[t]he phrase

‘transaction or occurrence’ requires that there be a distinct litigable event linking the parties.”

This sentence introduces and complements the following language that already existed at the

time Travis was decided:

         Rule 20(a) simply establishes a procedure under which several parties' demands
         arising out of the same litigable event may be tried together, thereby avoiding
         the unnecessary loss of time and money to the court and the parties that the
         duplicate presentation of the evidence relating to facts common to more than
         one demand for relief would entail.

M.R.C.P. 20 cmt. (emphasis added).            The terms “distinct litigable event” and “same litigable

event” are not defined in the Comment.              A court’s determination of whether two or more

plaintiffs' claims arise from a distinct, litigable event is very much fact dependent.



                                                       7
¶11.     This determination includes, among other things, whether a finding of liability for one

plaintiff essentially establishes a finding for all plaintiffs, indicating that proof common to all

plaintiffs is significant.   The appropriateness of joinder decreases as the need for additional

proof increases.    If plaintiffs allege a single, primary wrongful act, the proof will be common

to all plaintiffs; however separate proof will be required where there are several wrongful acts

by several different actors.    The need for separate proof is lessened only where the different

wrongful acts are similar in type and character, and occur close in time and/or place.

¶12.     An example comes from Demboski v. CSX Transp., Inc., 157 F.R.D. 28 (S.D. Miss.

1994), which was cited with approval in Armond.                 The example is that there are four

automobiles, A, B, C, and D. A and B collide, causing B to strike C, which in turn strikes D,

parked at a curb.      Here is a series of events which produce multiple claims.              However, all

possible claims will have stemmed from a common transaction or event, namely the collision

of A and B. Further, assume A was at fault in the example; and further assume that 10 minutes

earlier on the same highway, A negligently caused a collision involving E.               The first collision

caused by A is an entirely different transaction or event from the second collision caused by

A.     In each case the great majority of the proof will evolve around its own separate location,

its own separate sets of witnesses, its own separate set of environmental circumstances, and

the particulars of the plaintiff or plaintiffs in each case. Very little evidence, if any, would be

common to both collisions.

¶13.     An example of separate claims from the same transaction or occurrence which would

probably pass the test would be when a single defendant dumps toxic waste at the same place

into the same body of water daily over an extended period of time.             Those who could prove


                                                    8
similar injuries in the same span of time may be joinable under the same litigable event test

for this series of occurrences, although complex issues of causation and damages may prohibit

joinder depending on whether the volume of evidence expected to be introduced would

overwhelm the jury. A rule of thumb is that when an act or omission of a defendant does not

affect all plaintiffs in much the same way, then there is probably not a distinct litigable event.

¶14.    In the present case, Plaintiffs allege general negligent acts by the company; they have

not alleged any specific wrongful acts or omissions by any specific actor.         Plaintiffs worked

under different supervisors, had different jobs, in different locations, were exposed to several

different substances at different times, and have different injuries.       Thus, the alleged injuries

are not close in time or location. The amount of evidence that would have to be introduced to

prove all these in one trial would certainly overwhelm a jury. Additionally, there is a danger

of defendants being prejudiced by the “perfect plaintiff” problem. See Broussard v. Meineke

Discount Muffler Shops, Inc., 155 F.3d 331, 343-45 (4th Cir. 1998) (improper aggregation

allows plaintiffs to litigate on behalf of a composite "perfect plaintiff" combining the strongest

aspects of unrelated claims).

¶15.    There are other issues that cause concern in the present case. The employees seem to

rely on Armond for the proposition that since asbestos claims are “mature torts,” they are

immune from joinder analysis.       This is not the case.       In Armond, 866 So.2d at 1099, we

indicated that “signature diseases” such as those associated with asbestos exposure would

allow easier aggregation of claims. We also cited In re Ethyl Corp. as an opinion that listed

factors that bear on the permissibility of aggregation in asbestos cases:




                                                     9
       These are known as the Maryland factors. They were first articulated in an
       unreported federal district court decision, In re All Asbestos Cases Pending in
       the United States District Court for the District of Maryland, slip op. at 3
       (D.Md. Dec. 16, 1983) (en banc). The Maryland factors are "(1) common
       worksite; (2) similar occupation; (3) similar time of exposure; (4) type of
       disease; (5) whether plaintiffs were living or deceased; (6) status of discovery
       in each case; (7) whether all plaintiffs were represented by the same counsel;
       and (8) type of cancer alleged."

In re Ethyl Corp., 975 S.W.2d 606, 611 (Tex. 1998). Thus, if all joined plaintiffs worked at

a common work site, at a similar occupation, during the same time, were still alive, and had the

signature disease mesothelioma, then it would be easier to justify aggregation of claims than

plaintiffs who worked at several different work sites, in different jobs, for different periods

of time, were exposed to several different agents, and suffered the very vague “occupational

lung disease.” As stated in Harold’s Auto Parts, Inc., v. Mangialardi, “[e]ven 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.”        Harold's Auto Parts, Inc. v.

Mangialardi, 889 So.2d 493 (Miss. 2004).

¶16.   Another issue, also discussed in Mangialardi , and again in 3M Co. v. Hinton, 2005 WL

374460 (Miss. 2005), is that plaintiffs must provide a minimum showing that supports the

requirements for their joinder of claims.   There must be more than the conclusory allegations

of common exposures found in the present case. In Mangialardi, a negligence case based on

exposure to asbestos, the Court stated that the plaintiffs must state, at a minimum, who each

plaintiff is suing, and specifically when and where each plaintiff was exposed.   In Hinton, the

Court added that the plaintiff must indicate the specific injury sustained, and we now add to this


                                               10
that the plaintiff must specify the distinct litigable event common to all plaintiffs.         This

information by no means guarantees that plaintiffs may be joined in one suit, but it should

supply the trial court with the information necessary to make this determination.

¶17.      As for the circuit court order denying ICRR’s motion to transfer, the court erred in

stating that Rule 20 requires only that cause of actions must arise out of similar transactions

or occurrences, which can be satisfied by common questions of law or fact.              Rule 20(a)

imposes two specific requisites to the joinder of parties: (1) a right to relief must be asserted

by or against each plaintiff or defendant relating to or arising out of the same transaction or

occurrence; and, (2) some question of law or fact common to all the parties will arise in the

action.      Both of these requirements must be satisfied in order to sustain party joinder under

Rule 20(a). M.R.C.P. 20 cmt. (emphasis added).

¶18.      As to the out-of-state plaintiffs with causes of action accrued out-of-state, these claims

should be dismissed.           The doctrine of forum non conveniens protects litigants from

unnecessary burdens and to protect its courts and taxpayers from incurring the expense of

litigating foreign disputes.    To determine if the application of the forum non conveniens

doctrine is appropriate, a reviewing court must balance various public and private factors

including:     (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) whether the plaintiff chose an inconvenient forum in Mississippi

to vex, harass or oppress the defendant; (5) the burden on Mississippi courts in entertaining

the suit; and (6) the local interest in deciding localized controversies at home.      Metro. Life

Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 575-76 (Miss. 1999). Based on these


                                                   11
factors, the out-of-state plaintiffs with no connection to Mississippi should be dismissed.

Out-of-state witnesses are beyond the jurisdiction of the state’s courts and cannot be

compelled to testify.      Additionally, Mississippi has no real interest in trying the out-of-state

plaintiffs' claims against an out-of-state defendant.

¶19.    Finally, ICRR claims and we agree that, if claims were brought separately, individual

venue would be proper in Tunica County for only four of the plaintiffs - those who resided in

Tunica County when the alleged cause of action accrued, or those whose cause of action

accrued in Tunica County.6

                                             CONCLUSION

¶20.    We hold that the trial court erred in denying ICRR’s motion to transfer and/or dismiss.

Therefore, we reverse the order of the Tunica County Circuit Court and remand this case to

that court with the following instructions:       all claims against out-of-state defendants based on

causes of action which accrued out of state shall be dismissed based on forum non-conveniens,

and all other plaintiffs’ claims must be severed from those of Gregory, including claims of

plaintiffs who allege exposure in Tunica County. All cases that cannot be brought individually

in Tunica County should be transferred to a venue in which each plaintiff may have originally

brought his or her claim, as required by Rule 82(d).

¶21.    REVERSED AND REMANDED.




        6
           The controlling venue statute in this case is Miss. Code Ann. § 11-11-5 (repealed 1/1/03) which
states in pertinent part: “Actions against any railroad ... may be brought in the county where the cause of
action accrued, in the county where the defendant has its principal place of business or in the county in
which the plaintiff resided at the time that the cause of action accrued.”

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




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