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,

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. Travi s , 808 So.2d 928 (Miss. 2002), and heavily rely on

Travis for

their argument that joinder under M.R.C.P. 20 1 is proper for them. They assert thatoccurrence, 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 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 overr ule Travis , and “sap A rmond of its

vital ity” 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 A rmond

, 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 procee dings consistent

with this opinion.

FACTS

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

Railroad (ICRR), wh

o filed suit against ICRR in the Tunica County Circuit Court. The

plaintiffs (herea fter “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), 4 5 U.S.C. §§ 51 et seq.3

Specifically, the em

ployees claim that they suffered occupational lung disease due to exposure

to toxic substances including asbestos, asbestos-containing prod ucts, diesel exhaust, silica

rock dust an

d 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

Locations Craft Alleged

Dates of

Employment

with ICRR Claims

Exposure

in Tunica

County

Boshers Hernando,

MS Memphis Laborer/

carman 1966 - 1989 yes

Christopher Millington,

TN Ill. to Memphis trackman 1948 - 1989 no

Crawford Memphis,

TN Memphis laborer/

carman/

material

handler 1967 - 1981 no

Finley Memphis,

TN Memphis carman/

yardman/

airman 1974 - 1981;

1995 -

present no

Gregory Tunica, MS Fulton, KY to

New Orleans trackman/

switch

oiler 1971 - 2000 yes

Lewis Terry, MS Jackson carman 1963 -

present no

Steinhauer Jackson,

MS Jackson carman 1973 -

present no3 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 Stevison Memphis,

TN “all over” Miss. trackman/

welder

helper/

section

foreman 1946 - 1987 yes

Wilson Memphis,

TN Memphis -

Mobile trackman 1973 - 1988;

1990 -

present yes

¶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 bee n ruled on through an

interlocutory appeal in the case of Illinois Ce ntral Railroad v. Travis , 808

So.2d 928 (Miss. 2002). . . .

The Court finds that the Defenda nt has admitted that venue is proper for one (1)

Plaintiff, Leon Gregory, who resides in Tunica County, Mississippi a n d 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) Pla i ntiff lives in Desoto County, Mississippi and alleges common

exposures as the other Plaintiff in Tunica Coun ty. 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) Plaintif f s live

in Memphis, Tennessee that allege common expos ure 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 similar 3 tr ansactions 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: . . . 45 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 Based on the above, the Court finds that Plaintiff s 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 allegation s 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. J anssen

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

¶6. Empl

oyees argue that based on T ravis and affirmed by this Court’s recent decision in

Armond

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

abused its discret

ion in denying ICRR’s motion to transfer and/or dismiss. A review of T ravis

and Armond will help in understanding the employees’ position. In T ravis

, 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 resid ent of Tennessee and worked in Kentucky and Tennessee during his

employment with ICRR. The plaintiffs in this case claimed injuries from exposure to asbestos6

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 jo inder. 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 tha t the Official Comments to Rule 20 call for consideration on a case-by-case

basis ‘utilizing a liberal approach toward joinder .’” At the time T ravis 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 v irtually unlimited joinder at the pleading stage but to give the court

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

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

Armond

, 86 6 So.2d at 1102-03 (Graves, J., specially concurring). As noted in A merican

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 A rmond

. 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

tim e 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 philo sophy has produced is seen

in a recent case, in which a massive jury awar d was not supported by the evidence, and which7

showed that the jury was confuse d by the evidence presented. S ee Janssen Pharmaceutica,

Inc. v. Bailey

, 878 So.2d 31 (Miss. 2004) (Jury awarded each plaintiff $10 m illion even

though plaintiffs varied widely in age and alleged injury).

¶10. In Armond

, we stated that "the d iscretion 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 ( qu oting Malcolm v. Nat'l Gypsum Co. , 995 F.2d 346, 354 (2d

Cir. 1993)). Thus, based on experience garnered since T ravis

, we have moder ated the

“virtually unlimited joinder.” As stated in A rmond

, the issue is “w here to draw the line with

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

occurrences.’” A rmond

, 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

‘transact ion 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 un der 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 presentati

on of the evidence relating to facts common to more than

one demand for relief would entail.

M.R.C.P. 20 cmt. (emphas is 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.8

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

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

pla intiffs 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 sever al 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 fro m Demboski v. CSX Transp., Inc. , 157 F.R.D. 28 (S.D. Miss.

1994), which was cited with appr oval in A rmond

. The example is that there are four

automobi les, 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 h

ave 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 invol ving E. The first collision

caused by A is an entirely d ifferent 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 pa ss 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 prove9

similar injuries in th

e same span of time may be joinable under the same litigable event test

for this series of occurrences, although complex issues of cau sation 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 d istinct litigable event.

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

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

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

different substances at different times, an d have different injuries. Thus, the alleged injuries

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

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

of d efendants being prejudiced by the “perfect plaintiff” problem. S ee Broussard v. Meineke

Discount Muffler Shops, Inc.

, 155 F.3d 331, 343-45 (4th Cir. 1998) (improp er aggregation

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

aspects of unrelated claims).

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

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

immune from joinder analysis. This is not the case. In A rmond

, 866 So.2d at 1099, we

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

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

factors that bear on the permissibility of aggregation in asbestos cases:10

These are known as the Maryland factors. They were first articulated in an

unreported federal district court decis ion, I n 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, d uring the same time, were still alive, and had the

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

plaintiffs who worked at several di fferent 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 H

arold’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 procee d here, to exempt asbestos cases from the requirements

of Rule 20, of the Mississippi Rules of Civil Procedure.” H arold's Auto Parts, Inc. v.

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

¶16. Another issue, also discussed in Mangialar di , and again in 3 M Co. v. Hinton

, 2005 WL

374460 (Miss. 2005), is that plaintiffs must pro vide 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 M angialardi

, 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 H inton

, the

Court added that the plaintiff must indicate the specific injury sustained, and we now add to this11

that the plaintiff must

specify the distinct litigable event common to all plaintiffs. This

information by no means guarantees that plaintiffs may be joined i n 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 la w or fact. Rule 20(a)

imposes two specific requisites to the joinder of partie s: (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-s tate plaintiffs with causes of action accrued out-of-state, these claims

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

unnecessary burd ens 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 inconvenien t forum in Mississippi

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

the suit; and (6) the local interest in deciding localized controver sies at home. M etro. Life

Ins. Co. v. Aetna Cas. & Sur. Co. , 728 So.2d 573, 575-76 (Miss. 1999). Based on these6 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 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 Coun ty 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 a nd 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

plaintif fs 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.13

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.