Pot vs Kettle

Remember "Runaway Jury"? The novel, set in Mississippi, conjured up a tale of tobacco litigation so predacious and wild that its author, John Grisham won praise the world over for his imaginative gifts.

Nowadays, though, it's becoming clear that it doesn't take the powers of a Grisham to produce outrageous yarns about Big Tobacco's courtroom life. All you have to do is report the news.

Consider a current case in the courtroom of Lamar Pickard, a county judge in Fayette, Mississippi. Judge Pickard will be reviewing charges brought by Owens Corning against the tobacco industry, deciding in coming weeks whether the case ought to be allowed to proceed to trial, and, if so, whether the trial will take place in his own Jefferson County.

The case of Owens Corning vs RJ Reynolds, et al. qualifies as fantastic - or absurd - for at least two reasons.

The first is that it is Owens Corning, and not a former smoker, that is chasing those nasty old tobacco firms. The firm, you see, was itself sued to death - it sought bankruptcy protection this past winter -because it used asbestos in the manufacture of building insulation before 1972. Workers who breathed in the hazardous substance over a period of years later contracted lung cancer and asbestosis, a lung-scarring disease.

Now officers of Owens Corning, or its remains, hope to unload some of the multi-billion dollar obligation onto someone else. And that someone is the tobacco companies, whose product also could have had a role in generating in at least some of the illness of the construction workers. In legalese, these are known as "synergistic claims".

The Owens Corning suit seeks therefore to recover "tobacco's share" of the liability, which the firm's expert reckons to be around $2.2bn. In addition Owens Corning also would like more - ten times more - as "restitution" for the costs the tobacco companies allegedly avoided by staying out of the asbestos litigation in the first place. In other words, this pot isn't just calling the kettle black. It is also suing the kettle.

The second fabulous aspect of the case though is its venue, humble Jefferson County. This poor section of a poor state (half the people live below the poverty line, fewer than half of jurors are secondary school graduates) has become such a popular spot for trial actions that the National Law Journal recently dubbed it a "Mecca for Tort Suits".

This strange claim to fame stems from a peculiarity of the local law. Mississippi legislation allows the tort wolves to assemble plaintiffs all over the country under the nation's most plaintiff-friendly roof, which happens to be Mississippi. It also offers another advantage. Recently federal courts have made it virtually impossible to bring a class action lawsuit for personal injury claims, the theory being that the claims differ too much from one another.

But in Mississippi, again due to local law, it's still possible to aggregate large groups in single cases, thereby upping the potential scale of the attorney's fees geometrically. So tort lawyers will do just about anything - even work through a hot Mississippi summer - to sue in Mississippi. The second reason for Jefferson County's popularity will be familiar to "Runaway Jury" readers: juries across America may be generous in their awards, but few are so generous as Mississippi's. And Mississippi juries are reputed to be particularly hostile to out-of-state defendants.

As a result, as the National Law Journal reports, not only this tobacco case but also numerous drug case against drugs well-known as Fen-phen, Rezulin and Propulsid- have also been filed in Fayette. Because Mississippi law also says that a local vendor must be named in these suits, the poor proprietor of the Bankston Drugstore on Fayette's Main Street has been forced to defend herself in not one but any number of giant pharma actions.

No wonder Mr Grisham turned to the Korean War, the St Louis Cardinals, and farm life when looking for a setting for his new bestseller, "The Painted House". With places like Jefferson County around, there's no room left over for legal fiction.

© Copyright 2001 Financial Times

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