2002 3rd Extraordinary Session
To: Select Committee on Civil Justice Reform
By: Representative Watson, Blackmon, Eads, Flaggs, Jennings, Masterson, Moak, Pierce, Robinson (63rd), Simpson, Smith (39th), Stevens, Warren
AN ACT TO AMEND SECTIONS 11-11-3, 11-11-5, 11-11-7, 11-11-11 AND 11-11-13, MISSISSIPPI CODE OF 1972, TO REVISE VENUE IN CIVIL ACTIONS; TO AMEND SECTION 11-1-62, MISSISSIPPI CODE OF 1972, TO PROVIDE PROTECTION FOR PHARMACISTS AND LICENSED PHARMACIES IN DRUG SUITS; TO PROVIDE IMMUNITY FOR PROPERTY OWNERS IN PREMISES LIABILITY ACTIONS; TO REQUIRE THAT CERTAIN ACTIONS FOR DAMAGES AND OTHER RELIEF AGAINST FIREARMS OR AMMUNITION MANUFACTURERS, DISTRIBUTORS OR SELLERS THEREOF MAY ONLY BE BROUGHT BY THE STATE OR ITS POLITICAL SUBDIVISIONS; TO PROVIDE AN ASSESSMENT FOR FILING FRIVOLOUS CLAIMS; TO PROHIBIT ATTORNEY ADVERTISING BY ATTORNEYS NOT ADMITTED TO PRACTICE IN MISSISSIPPI; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO REVISE JOINT AND SEVERAL LIABILITY IN CERTAIN CIVIL ACTIONS; TO PROVIDE THAT CERTAIN INFORMATION REGARDING A DEFECTIVE PRODUCT, FINANCIAL FRAUD, UNFAIR INSURANCE CLAIMS PRACTICES OR ENVIRONMENTAL HAZARD SHALL BE PRESUMED TO BE PUBLIC INFORMATION; TO ALLOW SUCH INFORMATION TO BE KEPT CONFIDENTIAL BY COURT ORDER; TO DEFINE CERTAIN TERMS; TO AMEND SECTIONS 75-26-5, 75-26-11 AND 75-26-15, MISSISSIPPI CODE OF 1972, TO CONFORM TO SUCH PROVISION THAT SUCH INFORMATION IS PRESUMED TO BE PUBLIC; TO LIMIT THE LIABILITY OF THE SPONSOR OR ADVERTISER OF AN EVENT IN THE CASE OF A CIVIL ACTION ARISING OUT OF ACTIVITIES OCCURRING ON THE PREMISES OF THE LOCATION WHERE THE EVENT IS HELD OR CONDUCTED, PROVIDED THAT THE SPONSOR OR ADVERTISER DOES NOT EXERCISE CONTROL OVER ANY ASPECT OF THE EVENT OTHER THAN ACTING AS SPONSOR OR ADVERTISER; TO DEFINE THE TERMS "SPONSOR" AND "EVENT"; TO PROVIDE THAT THIS LIMITATION OF LIABILITY SHALL NOT EXTEND TO WILLFUL ACTS OR GROSS NEGLIGENCE ON THE PART OF A SPONSOR; TO CREATE NEW SECTION 11-7-30, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CIVIL ACTIONS IN CIRCUIT COURT SHALL NOT BE ASSIGNED TO A JUDGE UNTIL AT LEAST ONE DEFENDANT HAS FILED A RESPONSIVE PLEADING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-11-3, Mississippi Code of 1972, as amended by House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
11-11-3. (1) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant resides or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue, except where otherwise provided, and except actions of trespass on land, ejectment and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof is situated.
(2) Any action against a licensed physician, osteopath, dentist, nurse, nurse practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought in the county in which the alleged act or omission occurred.
(3) Any cause of action arising from another state which has no legal nexus to the State of Mississippi may not be brought in a state court.
(4) If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.
SECTION 2. Section 11-11-5, Mississippi Code of 1972, is amended as follows:
11-11-5. Actions against any railroad, express, steamboat, power, superpower, telegraph or telephone corporation, or against individuals owning, managing, operating or controlling a railroad, express line or route, steamboat, power, superpower, telephone or telegraph line, or against any corporation or individuals owning, managing, operating or controlling a motor transportation line for the conveyance of passengers, freight or express, for hire, over the highways in the State of Mississippi, may be brought in the county where the cause of action accrued or in the county where the defendant has its principal place of business * * * at the time that the cause of action accrued.
SECTION 3. Section 11-11-7, Mississippi Code of 1972, is amended as follows:
11-11-7. Actions against insurance companies, groups of insurance companies or an insurance association may be brought in any county in which a loss may occur, or, if on a life policy, in the county in which the beneficiary resides, and process may be sent to any county, to be served as directed by law. Such actions may also be brought in the county where the principal place of business of such corporation or company may be. In case of a foreign corporation or company, such actions may be brought in the county where service of process may be had on an agent of such corporation or company or service of process in any suit or action, or any other legal process, may be served upon the Insurance Commissioner of the State of Mississippi, and such notice will confer jurisdiction on any court in any county in the state where the suit is filed, provided the suit is brought in the county where the loss occurred * * *.
SECTION 4. Section 11-11-11, Mississippi Code of 1972, is amended as follows:
11-11-11. Any civil action for the recovery of damages brought against a nonresident or the representative of the nonresident in the State of Mississippi may be commenced in the county in which the action accrued * * *, except as otherwise provided by law.
SECTION 5. Section 11-11-13, Mississippi Code of 1972, is amended as follows:
11-11-13. The venue of an action for damages brought against a nonresident arising from his operation, either in person or by agent or employee, of a motor vehicle upon any public street, road, or highway of this state, or elsewhere in this state, shall be * * * in the county where the cause of action accrued or wherethe plaintiff resides.
SECTION 6. Section 11-1-62, Mississippi Code of 1972, as codified in House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
11-1-62. In any civil action alleging damages caused by a prescription drug that has been approved by the federal Food and Drug Administration, a physician, optometrist, pharmacist, licensed pharmacy, nurse practitioner or physician assistant may not be sued unless the plaintiff pleads specific facts which, if proven, amount to negligence on the part of the medical provider. It is the intent of this section to immunize innocent medical providers listed in this section who are not actively negligent from forum-driven lawsuits.
SECTION 7. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. Notwithstanding the provisions of Section 11-1-62, in any action for damages caused by a product except for commercial damage to the product itself:
(a) The manufacturer, or seller, dispenser or prescriber of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, or seller, dispenser or prescriber:
(i) 1. The product was defective because it deviated in a material way from the manufacturer's specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.
(c) (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a)(i)2 of this section, the manufacturer, or seller, dispenser or prescriber shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, seller, dispenser or prescriber, the manufacturer or seller, dispenser or prescriber knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.
(ii) An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product.
(d) For purposes of this section:
(i) "Seller" means any person or entity that sells products of any kind.
(ii) "Prescriber" means any person licensed by the State of Mississippi to prescribe medicine.
(iii) "Dispenser" means any person or entity licensed as a pharmacist or pharmacy.
(e) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer, seller, dispenser or prescriber shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.
(f) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, seller, dispenser or prescriber shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product.
(g) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) The manufacturer, seller, dispenser or prescriber knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and
(ii) The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.
(h) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller, dispenser or prescriber for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller, dispenser or prescriber exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller, dispenser or prescriber altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller, dispenser or prescriber had actual knowledge of the defective condition of the product at the time he supplied same; or the seller, dispenser or prescriber made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
(ii) Subparagraph (i) shall not apply unless the seller has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller. The provision of this subparagraph shall not conflict with the Mississippi Rules of Civil Procedure.
(i) With respect to manufacturers of drugs or medical devices, an agent or employee of such manufacturer who directly participates in or authorizes the commission of a tort, shall be subject to liability for any individual act of negligence committed by said agent or employee related to said drugs or medical devices within the course and scope of employment.
(j) It is the intent of this section to immunize innocent medical providers including pharmacists and licensed pharmacies who are not actively negligent from forum-driven lawsuits.
(k) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 8. (1) The authority to bring an action against any firearms or ammunition manufacturer, distributor or dealer duly licensed under federal law on behalf of any governmental entity created by or pursuant to an act of the Mississippi Legislature or the Mississippi Constitution of 1890, or any department, agency or authority thereof, for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to the lawful design, manufacture, distribution or sale of firearms, firearm components, silencers, ammunition or ammunition components to the public, shall be exclusively reserved to the state. This section shall not prohibit a political subdivision from bringing an action against a firearm or ammunition manufacturer, distributor or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision, or for injuries resulting from a firearm malfunction due to defects in materials or workmanship.
(2) This section shall apply to any action brought on or after passage of this act.
(3) "Political subdivision" and "governmental entity" shall have the meanings ascribed in Section 11-46-1.
SECTION 9. No owner, occupant, lessee or managing agent of property shall be civilly liable for the criminal acts of a third party, unless such owner, occupant, lessee or managing agent knew or, with the exercise of reasonable diligence, should have known of the risk of criminal conduct on or around such property and the failure to take reasonable measures to deter such foreseeable conduct is a proximate cause of damages to an individual or entity.
SECTION 10. If a party files any pleading in a civil action, which in the opinion of the court is frivolous, the court may impose an assessment of not more than One Thousand Dollars ($1,000.00) against each attorney of record for the party filing the pleading. Such assessment shall be in addition to any other assessments, penalties or sanctions authorized by law or otherwise. The proceeds of any assessment imposed under this section shall be paid to the Mississippi Volunteer Lawyers Project, Inc.
SECTION 11. The Legislature recognizes that attorneys should be licensed by the Mississippi Bar before engaging in any solicitation of clients in this state. Such licensing of attorneys protects the people of Mississippi in that the Mississippi Bar has direct jurisdiction over attorneys licensed by it. The Bar can act against such licensed attorneys in the event that such licensed attorneys commit violations of Mississippi law, court rules and rules of ethics for attorneys. The Legislature finds that this section is necessary for the protection of the people of Mississippi. An attorney who is not admitted to the Mississippi Bar shall not advertise his legal services in this state for the purpose of soliciting prospective clients for the commencing of any civil action in this state, or for the purpose of soliciting clients for any civil action already commenced or pending in this state, unless the attorney who is not a member of the Mississippi Bar has associated an attorney who (a) is a member of the Mississippi Bar; and (b) will be associated and actively working on substantial aspects in any civil action filed on behalf of a client solicited as a result of the advertisement. A law firm composed of both attorneys who are members of the Mississippi Bar and attorneys who are not members of the Mississippi Bar may advertise in this state if a majority of the members of the firm are members of the Mississippi Bar. For purposes of this section, a listing in the residential or business section of the white pages of a telephone book shall not be an advertisement.
SECTION 12. Section 85-5-7, Mississippi Code of 1972, as amended by House Bill No. 2, Third Extraordinary Session 2002, is amended as follows:
85-5-7. (1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. "Fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent.
(2) Except as may be otherwise provided in subsections (6) and (8) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages.
(3) Except as otherwise provided in subsections (2), (6) and (8) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
(4) Any defendant held jointly liable under this section shall have a right of contribution against fellow joint tort-feasors. A defendant shall be held responsible for contribution to other joint tort-feasors only for the percentage of fault assessed to such defendant.
(5) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(6) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
(7) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.
(8) Except as provided in subsection (6) of this section, in any action involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each joint tort-feasor, including named parties and absent tort-feasors, without regard to whether the joint tort-feasor is immune from damages. For noneconomic damages, a defendant's liability shall be several only. For economic damages, for any defendant whose fault is determined to be less than thirty percent (30%), liability shall be several only and for any defendant whose fault is determined to be thirty percent (30%) or more, liability shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.
(9) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
Notwithstanding any other provisions of law to the contrary, the doctrine of joint and several liability shall not be limited as to tortious conduct which injures the health or safety of Mississippi residents by manufacture or distribution of a drug or defective or dangerous substance causing injury to Mississippi residents or which constitutes fraud.
SECTION 13. (1) Notwithstanding any other provision of law, in an action based upon injury, wrongful death, or financial loss allegedly caused by a defective product, financial fraud, unfair insurance claims practice or environmental hazard, other than any action classified by a court as a mass tort action, information concerning the defective product, financial fraud, unfair insurance claims practice or environmental hazard, which is contained in a settlement agreement pertaining to the action and not filed with the court shall be presumed to be public information and may not be kept confidential pursuant to agreement of the parties. This information may be kept confidential for a period that the court deems appropriate only pursuant to a court order.
(2) As used in this section:
(a) "Defective product" means a product that may be defective because of a defect in manufacturing or design or a failure to adequately warn the consumer of a hazard involved in the foreseeable use of the product, where the defect may result in personal injury to one or more persons.
(b) "Financial fraud" means any fraudulent insurance practice or any fraudulent plan or scheme to sell a publicly offered investment product without full disclosure of the risks associated with the purchase if the product, where the plan or scheme may cause or has caused financial loss.
(c) "Environmental hazard" means a release or threatened release of a hazardous substance that poses a threat to public health or safety involving present or future danger of death, bodily injury or health disability to human beings exposed to a hazardous substance release or threatened release.
SECTION 14. Section 75-26-5, Mississippi Code of 1972, is amended as follows:
75-26-5. (1) Except as provided in Section 12 of House Bill No. 11, Third Extraordinary Session 2002, actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
(2) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
(3) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
SECTION 15. Section 75-26-11, Mississippi Code of 1972, is amended as follows:
75-26-11. Except as provided in Section 12 of House
Bill No. 11, Third Extraordinary Session 2002, in an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
SECTION 16. Section 75-26-15, Mississippi Code of 1972, is amended as follows:
75-26-15. (1) Except as provided in subsection (2), this chapter displaces conflicting tort, restitutionary and other law of this state providing civil remedies for misappropriation of a trade secret.
(2) This chapter does not affect:
(a) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(b) Other civil remedies that are not based upon misappropriation of a trade secret; or
(c) Criminal remedies, whether or not based upon misappropriation of a trade secret.
(d) The provisions of Section 12 of House Bill No. 11, Third Extraordinary Session 2002.
SECTION 17. For purposes of Sections 16 and 17 of this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Sponsor or advertiser" means any person, corporation or legal entity which, solely for charitable purposes, (i) sells, rents, manufactures or provides products, equipment or promotional materials, or (ii) donates or contributes money or fees, in order that an event may be held or conducted.
(b) "Event" means a concert, benefit, fund-raiser, auction or other occasion at which entertainment, food and beverages are provided to persons.
SECTION 18. (1) Any sponsor or advertiser of an event, which does not exercise control over any aspect of the event other than acting as a sponsor or advertiser, shall be immune from liability for any civil action arising out of activities occurring on the premises of the location where the event is held or conducted.
(2) No sponsor or advertiser shall be liable to a person who may lawfully consume any intoxicating beverage for any injury suffered by such person, or by any other person, off the premises of the event, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were served or furnished when on the premises of the event.
(3) This section shall not extend immunity to willful acts or gross negligence on the part of a sponsor or advertiser; however, the sponsor or advertiser shall not be considered to be a part of a joint venture or the principal of an agent, with regard to any other person, corporation or legal entity which is participating in the event in any capacity other than that of sponsor or advertiser.
SECTION 19. The following shall be codified as Section 11-7-30, Mississippi Code of 1972:
11-7-30. Civil actions in circuit court shall not be assigned to a judge until at least one (1) defendant has filed a responsive pleading.
SECTION 20. If any provision of this act is held by a court to be invalid, such invalidity shall not affect the remaining provisions of this act, and to this end the provisions of this act are declared severable.
SECTION 21. This act shall take effect and be in force from and after its passage, and shall apply only to causes of action occurring on or after that date.