- The Washington Times - Sunday, June 30, 2002

JACKSON, Miss. — This state of flowing sweet tea, majestic antebellum homes and fried catfish is also known as the Lawsuit Capital of the World.Huge jury verdicts are common, as are massive cases involving hundreds of plaintiffs suing drug companies and the makers of tobacco and asbestos. The average Mississippian pays $264 a year to fund litigation here, the state where most businesses fear to tread and where getting malpractice insurance has become almost impossible for many doctors.
"There is a great need for civil-justice reform in this state, period," said David Allen, chief executive of Mississippi Blood Services and head of Mississippians for Economic Progress. "There is a crisis in Mississippi with our civil-justice system as a whole."A Harris Interactive survey in January of corporate lawyers across the country ranked Mississippi's civil-justice system last overall and last in a variety of categories including punitive damages and jury predictability.
One unique aspect of the Mississippi civil-justice system, and the biggest thorn in the side of many business leaders, is a measure called joinder, officially known as Rule 20. Under this rule, which has been upheld by the state Supreme Court, cases with similar circumstances, including those from out of state, can be pooled. The result has been many cases tried in the state, with almost 1,000 plaintiffs, many of whom reside in states other than Mississippi.
Trial lawyers and many judges who support the rule say it is an efficient way of quickly finding verdicts or settlements in many cases that otherwise would clog the court systems.
"It's good because more cases get resolved quickly," said Shane Langston, head of the Mississippi Trial Lawyers Association. "Plaintiffs don't have to wait for case number 9,999."
But business leaders say the rule has been abused, because many doctors and small businesses are pulled into a case simply to ensure that it is litigated in the state, which is known for large verdicts and which has no cap on noneconomic damages.
Businesses and the medical industry say placing a cap on noneconomic damages is crucial to ensuring that insurance rates remain affordable.
"Right now they're excessively high because the actuaries of insurance companies don't have a clue how to set rates," said state Sen. Dean Kirby, a Republican and head of the Senate's Insurance Committee.
Opponents of tort reform say there is no crisis and point to a list of the top 100 verdicts handed out by juries in civil trials last year. Of those, just three were in Mississippi.
"It's a problem of perception," Mr. Langston said. "The fact is, defendants come here all the time and prevail."
Nevertheless, business leaders and the insurance and medical industries are pushing for reform, particularly for establishing caps and eliminating the joinder rule.
"I am totally in favor of changing the laws on venue," Mr. Kirby said. "I think you should sue in the county in which you reside or where the incident or accident happened, period."

Medical community in crisis
Tomorrow is doomsday for the doctors of Woodville, a tiny community in the southwestern part of the state.
Four doctors work in the Catchings Clinic, a century-old medical facility serving about 30,000 patients a year. All of them will be without malpractice insurance tomorrow, and the clinic will not open.
"I've been here all my life," said Robert Lewis, a doctor of internal medicine and 18-year veteran of the clinic. "A lot of the people I treat are my friends. It's going to be terrible. It's going to hurt to just up and leave them."
The trouble began in December, when the doctors' malpractice-insurance carrier, St. Paul Cos., announced it would stop offering malpractice business nationwide and terminate the doctors' coverage July 1.
Since then, the doctors have been scrambling to find replacement coverage, with little success. The Doctors' Co. of Napa, Calif., said it would cover them but requested a $250,000 combined premium for the four doctors more than four times what they pay now. Professional Underwriters Liability Insurance Co. of Los Angeles gave a quote of $364,000 for the four doctors combined. None of the doctors can afford the premiums, and the situation has forced some to consider seeking employment in another state.
By comparison, the average premium for an internist working in a state with no liability caps last year was $7,715. For surgeons, it was $26,144.
Physicians, particularly surgeons and obstetrican-gynecologists, have been leaving the state or struggling to find malpractice insurance.
The problem is a civil-justice system that, insurance companies say, has caused doctors with clean records to be dragged into massive lawsuits against drug companies.
Throughout the state, doctors have been named in suits against the makers of Propulsid, Reslin, Fen-Phen and other drugs.
Mississippi, largely because it is one of only a few states that does not cap verdicts on noneconomic damages, has become a hotbed for such litigation because jury verdicts have been unusually high, and drug and insurance companies fearful of paying tens of millions of dollars are quick to settle.
"I'm uninsurable because of where I practice, not what I practice," said Dr. Lewis, who until this year had been sued once. He won the case. This year, he has been pulled into four cases. Colleague David McGraw, a general-practice physician, had gone 23 years without a lawsuit filed against him, until this year, when he was named in three.
"It's constantly in the back of your mind: 'How can I keep from getting sued?'" Dr. McGraw said.
Medical Assurance Co. of Mississippi, the only remaining malpractice carrier in the state, said it has been forced to raise malpractice insurance rates a minimum of 10 percent for all doctors, with surgeons and ob-gyns seeing 20 percent to 30 percent increases. Last year the company received 370 requests for insurance, the most in more than a decade. Through March the company had received 450 requests.
"These are the same doctors that have been here for 20 years," said Chief Executive Mike Houpt. "We've had to be much more selective because of the litigious environment we're operating in right now."
About 30 miles east of Woodville is Field Memorial Community Hospital, the only full-fledged hospital servicing Wilkinson and Amite counties. There, three doctors will be without malpractice insurance at the end of the month. The policy of an additional doctor runs out Sept. 1.
"We're still out on a limb. We still have no coverage at this point," said Ricardo Nimo, a doctor of internal medicine at Field Memorial. "I never thought I'd find myself in this situation."
The situation has become so dire that administrators of the state-owned hospital are on the verge of making drastic changes to keep the doctors there and the facility open.
Their plan is to take advantage of a Mississippi law that caps liability for state employees at $500,000. By restructuring the doctors' contracts to make them employees of the state, rather than independent contractors, the doctors would be allowed to stay and practice medicine. The hospital also plans to bring in the doctors of the Catchings Clinic and hopes to have them admitted as temporary employees in time to keep the hospital open.
"To say that we don't have a problem in Mississippi, I think the evidence would beg to differ with that opinion," says Brock Slabach, Field Memorial's administrator.

Businesses speak out
Business leaders are also advocating reform.
The U.S. Chamber of Commerce earlier this year cautioned its members against doing business in the state, citing the lack of tort-reform laws, and has been campaigning on behalf of pro-reform candidates for the state Supreme Court.
Although Mississippi has little industry, it does have some big business. Nissan Corp. announced last week that it would expand its manufacturing operations there, and WorldCom Inc.'s headquarters are in Clinton. Last week, WorldCom announced it had improperly accounted for $3.9 billion in expenses.
Small businesses have suffered the most from the court system, business leaders say. The most publicized case is of the Bankston Drug Store, the only pharmacy in the town of Fayette, in Jefferson County. Both Hilda Bankston, who owned the store until 1999, and Traci Swilley, the owner now, have been named in dozens of suits against drug companies.
The drugstore has been named in suits only to bring the cases into Jefferson County, which has become notorious because of some large verdicts and numerous settlements. Neither Ms. Bankston nor Ms. Swilley has paid anything in verdicts or settlements, and they have never been held liable by the court. But they have faced the stress of hiring lawyers and have found it increasingly difficult to find affordable insurance. Ms. Swilley declined to talk to reporters.
"When they're getting dragged into court time and time and time again, who suffers? Well there's no doubt that little, small business suffers tremendously from the cost in time and stress," says Ron Aldridge, head of the Mississippi chapter of the National Federation of Independent Businesses.
Jefferson County is often noted as a dumping ground for large lawsuits, and tort reform advocates point to the county as an example of the problems with the state's civil-justice system.
There are more plaintiffs named in suits in Jefferson County and more lawyers registered in the county than there are residents. In the county's courthouse in Fayette, just one block from the Bankston Drug Store, 11 books are filled with notes on civil cases filed in the county, dating to 1965. The first five books comprise the period ending in 1998. Since 1998, the other six books have been filled.
Observers say trial lawyers have speeded to try cases in the county because of a few notoriously large verdicts, beginning with a $150 million payout to five Fen-Phen patients in 1999.
Many say Jefferson County has become a hotbed because trial lawyers think they will get large verdicts out of a predominantly poor, uneducated and thus impressionable jury pool.
The median household income in Jefferson County is just more than $15,000 per year, about half the state average and one-third the national average. Of the nearly 5,000 people older than 25, just more than half have earned a high school diploma, and more than 1,000 have not completed the ninth grade.
Trial lawyers acknowledge the large number of cases tried there but insist the trend has slowed recently and take exception to criticism of the county's population.
"There's a lot of misconceptions about Jefferson County," said Jim Shannon, a lawyer from Hazlehurst, Miss., who in March filed a lawsuit against Pfizer Inc. in Jefferson County. "Alcorn State University is there. A lot of people are educated there; they teach there and live in Jefferson County. The people are not uneducated or poverty stricken."
Mr. Shannon, whose work primarily involves tort lawsuits against drug companies, says he tries cases in Jefferson County because of the notoriously large verdicts handed out there. But the lawyer, who is also an attorney for Philip Morris and is defending the tobacco company there, says a victory would prove that jurors are capable of ruling on the merits of the case.
In recent months, litigation in Jefferson County has decreased, largely because of Circuit Court Judge Lamar Pickard's decree that any plaintiffs trying a case in Jefferson County must live there. But countless cases remain on the books, and many observers say the change came only because of the practical challenge of having so much litigation tried in a tiny town and in picking unbiased juries.
Observers say litigation in the state has not decreased but simply shifted to nearby counties. Mr. Shannon recently won a $100 million verdict in Claiborne County, to the north, against Johnson & Johnson, the maker of heartburn drug Propulsid. The case was moved from Jefferson County because of problems finding a jury there.

The legislature
The Mississippi legislature's efforts to reform the system in the last session were essentially fruitless. Of 72 bills proposed by the House and Senate, all but two died in committee or on the calendar.
Mr. Kirby, Republican from Pearl County and chairman of the Senate's Insurance Committee, proposed eight bills, including ones that would require caps on noneconomic damages and civil lawsuits to be filed in the county where a plaintiff lives or was hurt. None of the bills passed.
In a recent interview inside the Capitol in Jackson, Mr. Kirby tried to place a positive spin on the legislature's efforts to reform the system but indicated it would be a long road.
"On really complicated, complex legislation it takes three years," he said. "So I think a lot of progress was made for the first year."
Many reform advocates said the legislature's not passing laws is a product of too many trial lawyers serving in key positions. The chairmen of both judiciary committees in the House, Democratic Reps. Edward Blackmon Jr. and Percy W. Watson, are trial lawyers, as is the Senate judiciary committee chairman, Democrat Bennie L. Turner.
Legislative etiquette in Mississippi gives great power to the committee chairmen. Discussion of any bill usually requires the consent of the chairman, regardless of committee members' opinions.
"You can bypass the chairman, but no one ever does it," Mr. Kirby said. "When you start bypassing one chairman, what's to stop you from bypassing every chairman, and then why do you even need a committee? That just throws away the committee process."
Many observers say that without these trial lawyers as committee chairmen, Mississippi would have passed some reform legislation in the last session.
"I'd be willing to bet just about any amount of money that if we got them on the floor of either [branch of the legislature], these things would pass. There's little doubt in my mind," said Mr. Allen, of Mississippians for Economic Progress. "You need lawyers in there to interpret the laws and so forth, but it's a conflict of interest when you have personal-injury lawyers in there making laws that literally put money in their pocket."

The road ahead
The Mississippi legislature began special meetings earlier this month on the issue. A 13-member committee has met three times, but passing legislation is unlikely. And to make matters worse, reform advocates point out, 2003 is an election year.
"It's going to be very difficult," Mr. Kirby said. "But I think it will be a main campaign issue and because of that, we may see some form of tort reform passed."
Campaign contributions could play a large role. Last year Mr. Watson received $19,500 of his $28,750 in contributions from trial lawyers, including $5,000 from Mr. Langston. Lt. Governor Amy Tuck received $7,900 from trial lawyers. Insurance companies and businesses weren't nearly as active. Mr. Kirby, head of the Senate's insurance committee, received just $500 from one insurance company last year.
But even if reform is passed in the next legislative session, it won't be in time to ensure available medical care for the people of Amite and Wilkinson counties, an ominous fact not lost on Rich Field, a surgeon at Field Memorial.
"Somebody's got to die from this deal before they wake up. I hate to put it that way, but it's the truth."

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