SB2763_H_Cmte_Amend

SECTION 1. Section 11-11-3, Mississippi Code of 1972, is amended as follows:

11-11-3. (1) (a) (i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.

(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may * * * be commenced in the county where the plaintiff resides or is domiciled.

(2) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any of all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(3) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claims, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Section 31 of the Mississippi Constitution of 1890.

SECTION 2. (1) One or more members of a class may sue or be sued as representative parties on behalf of all only if (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law or fact common to the class, (c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (d) the representative parties will fairly and adequately protect the interests of the class.

(2) An action may be maintained as a class action if the prerequisites of subsection (1) are satisfied, and in addition:

(a) The prosecution of separate actions by or against individual members of the class would create a risk of:

(i) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(ii) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(b) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(c) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (i) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (iv) the difficulties likely to be encountered in the management of a class action.

(3) (a) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.

(b) In any class action maintained under subsection (2)(c), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (i) the court will exclude the member from the class if the member so requests by a specified date; (ii) the judgment, whether favorable or not, will include all members who do not request exclusion; and (iii) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.

(c) The judgment in an action maintained as a class action under subsection (2)(a) or (2)(b), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subsection (2)(c), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subsection (3)(b) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(d) When appropriate (i) an action may be brought or maintained as a class action with respect to particular issues, or (ii) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(4) (a) When a person sues or is sued as a representative of a class, the court must, at an early practicable time, determine by order whether to certify the action as a class action.

(b) An order certifying a class action must define the class and the class claims, issues or defenses and must appoint class counsel under subsection (9).

(d) (i) For any class certified under this section or the court may direct appropriate notice to the class.

(ii) For any class certified under this section, the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language:

1. The nature of the action;

2. The definition of the class certified;

3. The class claims, issues or defenses;

4. That a class member may enter an appearance through counsel if the member so desires;

5. That the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and

6. The binding effect of a class judgment on class members under this section.

(e) The judgment in an action maintained as a class action under subsection (3)(a) or (3)(b), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subsection (3)(c), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subsection (4)(b) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(f) When appropriate (i) an action may be brought or maintained as a class action with respect to particular issues, or (ii) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(5) In the conduct of actions to which this rule applies, the court may make appropriate orders:

(a) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(b) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

(d) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;

(e) Dealing with similar procedural matters. The orders may be combined and may be altered or amended as may be desirable from time to time.

(6) A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

(7) (a) (i) The court must approve any settlement, voluntary dismissal or compromise of the claims, issues or defenses of a certified class.

(ii) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal or compromise.

(iii) The court may approve a settlement, voluntary dismissal or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal or compromise is fair, reasonable and adequate.

(b) The parties seeking approval of a settlement, voluntary dismissal or compromise must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal or compromise.

(c) In an action previously certified as a class action, the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

(d) (i) Any class member may object to a proposed settlement, voluntary dismissal or compromise that requires court approval.

(ii) An objection made under this subsection may be withdrawn only with the court's approval.

(8) A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten (10) days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so order.

(9) (a) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.

(b) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.

(i) Must consider:

1. The work counsel has done in identifying or investigating potential claims in the action;

2. Counsel's experience in handling class actions, other complex litigation and claims of the type asserted in the action;

3. Counsel's knowledge of the applicable law; and

4. The resources counsel will commit to representing the class;

(ii) May consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(iii) May direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and

(iv) May make further orders in connection with the appointment.

(d) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action.

(e) The court may appoint one or more individual attorneys or one or more law firms as class counsel which the court determines is best able to represent the interests of the class.

(f) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs.

(10) In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows:

(a) A claim for an award of attorney fees and nontaxable costs must be made by motion, subject to the provisions of this subsection, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(b) A class member, or a party from whom payment is sought, may object to the motion.

(d) The court may refer issues related to the amount of the award to a special master or to a magistrate judge.

SECTION 3. Section 13-5-1, Mississippi Code of 1972, is amended as follows:

13-5-1. Every citizen not under the age of twenty-one (21) years, who is either a qualified elector, or a resident freeholder of the county for more than one (1) year, is able to read and write, and has not been convicted of a felony within the past ten (10) years is a competent juror. * * * The lack of any such qualifications on the part of one or more jurors shall not, however, vitiate an indictment or verdict. Moreover, * * * no juror shall serve on any jury who has served as such for the last preceding two (2) years. No juror * * * who has a case of his own pending in that court * * * shall serve in his own case.

In order to determine that prospective jurors can read and write, the presiding judge shall, with the assistance of the clerk, distribute to the jury panel a form to be completed personally by each juror prior to being empaneled as follows:

"1. Your name ________ Last ________ First ________ Middle initial

2. Your home address ________

3. Your occupation ________

4. Your age ________

5. Your telephone number ________ If none, write 'None'

6. If you live outside the county seat, the number of miles you live from the courthouse ________ miles

__________________

Sign your name"

The judge shall personally examine the answers of each juror prior to empaneling the jury and each juror who cannot complete the above form shall be disqualified as a juror and discharged.

A list of any jurors disqualified for jury duty by reason of inability to complete the form shall be kept by the circuit clerk and their names shall not be placed in the jury box thereafter until such person can qualify as above provided.

SECTION 4. Section 13-5-23, Mississippi Code of 1972, is amended as follows:

13-5-23. (1) All qualified persons shall be liable to serve as jurors, unless excused by the court for one (1) of the following causes:

(a) When the juror is ill and, on account of the illness, is incapable of performing jury service; or * * *

(b) When the juror's attendance would cause undue or extreme physical or financial hardship to the prospective juror or a person under his or her care or supervision.

* * *

(2) An excuse of illness under subsection (1)(a) of this section may be made to the clerk of court outside of open court by providing the clerk with * * * a certificate of a licensed physician * * *, stating that the juror is ill and is unfit for jury service, in which case the clerk may excuse the juror. If the excuse of illness is not supported by a physician's certificate, a judge of the court for which the individual was called to jury service shall decide whether to excuse an individual under subsection (1)(a) of this section.

(3) (a) The test of an excuse under subsection (1)(b) of this section for undue or extreme physical or financial hardship shall be whether the individual would either:

(i) Be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver during the period of participation in the jury pool or on the jury; or

(ii) Incur costs that would have a substantial adverse impact on the payment of the individual's necessary daily living expenses or on those for whom he or she provides the principal means of support; or

(iii) Suffer physical hardship that would result in illness or disease.

(b) "Undue or extreme physical or financial hardship" does not exist solely based on the fact that a prospective juror will be required to be absent from his or her place of employment or business.

(c) A judge of the court for which the individual was called to jury service shall decide whether to excuse an individual under subsection (1)(b) of this section.

(d) A person asking to be excused based on a finding of undue or extreme physical or financial hardship must take all actions necessary to have obtained a ruling on that request by no later than the date on which the individual is scheduled to appear for jury duty.

(e) A person asking a judge to grant an excuse under subsection (1)(b) of this section shall be required to provide the judge with documentation such as, but not limited to, federal and state income tax returns or other information which verifies income, medical statements from licensed physicians, proof of dependency or guardianship and similar documents, which the judge finds to clearly support the request to be excused. Failure to provide satisfactory documentation shall result in a denial of the request to be excused. Any documentation produced under this paragraph shall not be a public record.

(4) After two (2) years, a person excused from jury service shall become eligible once again for qualification as a juror unless the person was excused from service permanently. A person is excused from jury service permanently only when the deciding judge determines that the underlying grounds for being excused are of a permanent nature.

* * *

(5) * * * A tales juror * * * shall not be compelled to serve two (2) days successively unless the case in which the juror is impaneled continues longer than one (1) day. Grand jurors shall serve until discharged by the court.

SECTION 5. The following provision shall be codified as Section 13-5-24, Mississippi Code of 1972:

13-5-24. (1) Notwithstanding any other provisions of this chapter, individuals scheduled to appear for jury service have the right to postpone the date of their initial appearance for jury service one (1) time only. Postponements shall be granted upon request, provided that:

(a) The juror has not been granted a postponement within the past two (2) years;

(b) The prospective juror appears in person or contacts the clerk of the court by telephone, electronic mail or in writing to request a postponement; and

(c) Prior to the grant of a postponement with the concurrence of the clerk of the court, the prospective juror fixes a date certain to appear for jury service that is not more than six (6) months after the date on which the prospective juror originally was called to serve and on which date the court will be in session.

(2) A subsequent request to postpone jury service may be approved by a judicial officer only in the event of an extreme emergency, such as a death in the family, sudden illness, or a natural disaster or a national emergency in which the prospective juror is personally involved, that could not have been anticipated at the time the initial postponement was granted. Prior to the grant of a second postponement, the prospective juror must fix a date certain on which the individual will appear for jury service within six (6) months of the postponement on a date when the court will be in session.

SECTION 6. Section 13-5-25, Mississippi Code of 1972, is amended as follows:

13-5-25. Every citizen over sixty-five (65) years of age, and everyone who has served on the regular panel as a juror in the actual trial of one or more litigated cases within two (2) years, shall be exempt from service if he claims the privilege * * *. No qualified juror shall be excluded because of any such reasons, but the same shall be a personal privilege to be claimed by any person selected for jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.

Provided, however, that no person who has served on the regular panel as a juror in the actual trial of one or more litigated cases in one (1) court may claim the exemption in any other court where he may be called to serve.

SECTION 7. Section 13-5-28, Mississippi Code of 1972, is amended as follows:

13-5-28. If a grand, petit or other jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be served with a summons, either personally or by mail, addressed to him at his usual residence, business or post office address, requiring him to report for jury service at a specified time and place. The summons shall include instructions to the potential jurors that explain, in layman's terms, the provisions of Sections 13-5-23 and 13-5-99.

SECTION 8. Section 13-5-34, Mississippi Code of 1972, is amended as follows:

13-5-34. (1) A person summoned for jury service who fails to appear or to complete jury service as directed, and who has failed to obtain a postponement in compliance with the provisions for requesting a postponement, or who fails to appear on the date set pursuant to Section 13-5-24 shall be ordered by the court to appear forthwith and show cause for his failure to comply with the summons. If he fails to show good cause for noncompliance with the summons he is in civil contempt of court and * * * may be fined not more than Five Hundred Dollars ($500.00) or imprisoned not more than three (3) days, or both. The prospective juror may be excused from paying sanctions for good cause shown or in the interest of justice.

(2) In addition to, or in lieu of, the fine or imprisonment provided in subsection (1) of this section, the court may order that the prospective juror complete a period of community service for a period no less than if the prospective juror would have completed jury service, and provide proof of completion of this community service to the court.

SECTION 9. The following provision shall be codified as Section 13-5-99, Mississippi Code of 1972:

13-5-99. (1) It shall be unlawful for any employer or any other person to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee notifies his or her employer that he or she has been summoned to serve as a juror within a reasonable period of time after receipt of a summons.

(2) It shall be unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process, or time spent actually serving on a jury. Nothing in this provision shall be construed to require an employer to provide annual, vacation or sick leave to employees under the provisions of this statute who otherwise are not entitled to such benefits under company policies.

(3) Any violation of subsection (1) or (2) of this section shall be deemed an interference with the administration of justice and a contempt of court and punishable as such.

(4) A court shall automatically postpone and reschedule the service of a summoned juror employed by an employer with five (5) or fewer full-time employees, or their equivalent, if another employee of that employer has previously been summoned to appear during the same period. Such postponement will not constitute the excused individual's right to one (1) automatic postponement under Section 13-5-24.

SECTION 10. Section 25-7-61, Mississippi Code of 1972, is amended as follows:

25-7-61. (1) Fees of jurors shall be payable as follows:

(a) Grand jurors and petit jurors in the chancery, county, circuit and special eminent domain courts shall be paid an amount to be set by the board of supervisors, not to be less than Twenty-five Dollars ($25.00) per day and not to be greater than Forty Dollars ($40.00) per day, plus mileage authorized in Section 25-3-41. In the trial of all cases where jurors are in charge of bailiffs and are not permitted to separate, the sheriff with the approval of the trial judge may pay for room and board of jurors on panel for actual time of trial.

No grand juror shall receive any compensation except mileage unless he shall have been sworn as provided by Section 13-5-45; and no petit juror except those jurors called on special venires shall receive any compensation authorized under this subsection except mileage unless he shall have been sworn as provided by Section 13-5-71.

(b) Jurors making inquisitions of idiocy, lunacy or of unsound mind and jurors on coroner's inquest shall be paid Five Dollars ($5.00) per day plus mileage authorized in Section 25-3-41 by the county treasurer on order of the board of supervisors on certificate of the clerk of the chancery court in which such inquisition is held.

(c) Jurors in the justice courts shall be paid an amount of not less than Ten Dollars ($10.00) per day and not more than Fifteen Dollars ($15.00) per day, to be established by the board of supervisors. In all criminal cases in the justice court wherein the prosecution fails, the fees of jurors shall be paid by the county treasurer on order of the board of supervisors on certificate of the county attorney in all counties that have county attorneys, otherwise by the justice court judge.

(2) Any juror may return the fees provided as compensation for service as a juror to the county which paid for such person's service as a juror. The fees returned to the county may be earmarked for a particular purpose to be selected by the juror, including:

(a) The local public library;

(b) Local law enforcement;

(d) Any other governmental agency.

(3) The Administrative Office of Courts shall promulgate rules to establish a Lengthy Trial Fund to be used to provide full or partial wage replacement or wage supplementation to jurors who serve as petit jurors in civil cases for more than ten (10) days.

(a) The court rules shall provide for the following:

(i) The selection and appointment of an administrator for the fund.

(ii) Procedures for the administration of the fund, including payments of salaries of the administrator and other necessary personnel.

(iii) Procedures for the accounting, auditing and investment of money in the Lengthy Trial Fund.

(iv) A report by the Administrative Office of Courts on the administration of the Lengthy Trial Fund in its annual report on the judicial branch, setting forth the money collected for and disbursed from the fund.

(b) The administrator shall use any monies deposited in the Lengthy Trial Fund to pay full or partial wage replacement or supplementation to jurors whose employers pay less than full regular wages when the period of jury service lasts more than ten (10) days.

(c) The court may pay replacement or supplemental wages of up to Three Hundred Dollars ($300.00) per day per juror beginning on the eleventh day of jury service. In addition, for any jurors who qualify for payment by virtue of having served on a jury for more than ten (10) days, the court, upon finding that such service posed a significant financial hardship to a juror, even in light of payments made with respect to jury service after the tenth day, may award replacement or supplemental wages of up to One Hundred Dollars ($100.00) per day from the fourth to the tenth day of jury service. All payments shall be made from the Lengthy Trial Fund.

(d) Any juror who is serving or has served on a jury that qualifies for payment from the Lengthy Trial Fund, provided the service commenced on or after the effective date of Senate Bill No. 2763, 2004 Regular Session, may submit a request for payment from the Lengthy Trial Fund on a form that the administrator provides. Payment shall be limited to the difference between the state-paid jury fee and the actual amount of wages a juror earns, up to the maximum level payable, minus any amount the juror actually receives from the employer during the same time period.

(i) The form shall disclose the juror's regular wages, the amount the employer will pay during the term of jury service starting on the eleventh day and thereafter, the amount of replacement or supplemental wages requested, and any other information the administrator deems necessary for proper payment.

(ii) The juror also shall be required to submit verification from the employer as to the wage information provided to the administrator, for example, the employee's most recent earnings statement or similar document, prior to initiation of payment from the fund.

(iii) If an individual is self-employed or receives compensation other than wages, the individual may provide a sworn affidavit attesting to his or her approximate gross weekly income, together with such other information as the administrator may require, in order to verify weekly income.

SECTION 11. Section 33-1-5, Mississippi Code of 1972, is amended as follows:

33-1-5. Any member of the Mississippi National Guard on active duty shall be exempt from jury duty upon presenting a current written statement from his superior officer that such jury service will be likely to interfere with his military duties.

SECTION 12. Section 41-17-7, Mississippi Code of 1972, which provides for the exemption from jury service of state insane hospital personnel, is repealed.

SECTION 13. Section 47-5-55, Mississippi Code of 1972, which provides for the exemption from jury service of state correctional system employees and officers, is repealed.

SECTION 14. Medical review panel.

(1) Claims; statute of limitations.

(a) Definitions. For purposes of this section:

(i) "Board" means the Tort Claims Board established by Section 11-46-18, Mississippi Code of 1972.

(ii) "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, institution for the aged or infirm, community blood center, tissue bank, dentist, registered or licensed practical nurse or certified nurse assistant, ambulance service, certified registered nurse anesthetist, nurse midwife, licensed midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 USC 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the Mississippi Code of 1972, or any partnership, limited liability partnership, limited liability company, or corporation whose business is conducted principally by health care providers, or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.

(iii) "Malpractice" means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

(b) (i) All malpractice claims against health care providers, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel as provided in this section unless all parties specifically waive the use of the medical review panel.

(ii) An action against a health care provider or his insurer commenced in any court shall be presented to a medical review panel and an opinion rendered by the panel pursuant to this section, and the court's request for review shall constitute a stay pending the panel's decision. The request for review may be made before the filing of a lawsuit and such request for review shall toll the statute of limitations regarding the underlying claim while the panel deliberates. The parties shall have ninety (90) days after the panel renders its decision to file suit.

(iii) The request for review of a malpractice claim under this section shall be made by the court on its own motion or on the motion of any party.

(c) (i) The request for review must be in writing, delivered to the board in person or by certified or registered United States mail, and include as an exhibit the complaint filed.

(ii) Each defendant shall file a written answer within thirty (30) days of service of the request. If the defendant fails to file an answer as required, the board shall notify the defendant of the obligation to file and penalty for failure to file; notice shall be by certified or registered United States mail. If the defendant has not filed within thirty (30) days of the receipt of the notice specified in this subparagraph (ii), the request for review shall be dismissed; the panel, if formed, shall be dissolved, and the plaintiff shall be allowed to proceed in court upon the complaint filed.

(2) Dismissal of review; dissolution of panel.

(a) During the pendency of proceedings under this section, a health care provider against whom a claim has been filed may raise any exception or defenses available pursuant to Mississippi law, whether a procedural, statute of limitations or other exception or defense, at any time without need for completion of the review process by the medical review panel.
(b) If the court finds for the party raising the exception or defense, that party shall be dismissed. If there are no defendants remaining, the panel, if established, shall be dissolved.

(3) Composition and selection of panel.

(a) The medical review panel shall consist of three (3) physicians who each hold an unlimited license to practice medicine in Mississippi or licensed optometrists, nurse practitioners or chiropractors and one (1) attorney who shall be the nonvoting chair of the panel. The parties may agree on the attorney member of the medical review panel within thirty (30) days after the filing of the answer; if no agreement can be reached, then the attorney member of the medical review panel shall be selected as follows:

(i) The board shall draw five (5) names at random from the list of attorneys maintained by the board who have medical malpractice experience. The names of judges, magistrates, district attorneys and assistant district attorneys shall be excluded if drawn and new names drawn in their place. After selection of the attorney names, the board shall notify the parties of the attorney names from which the parties, within five (5) days, may choose the attorney member of the panel. If no agreement can be reached within five (5) days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two (2) names alternately, with the plaintiff striking first and so advising the defendant of the name of the attorney so stricken; thereafter, the defendant and the plaintiff shall alternately strike until both sides have stricken two (2) names and the remaining name shall be the attorney member of the panel. If either the plaintiff or defendant fails to strike, the board shall strike for that party within five (5) additional days.

(ii) After the striking, the board shall notify the attorney and all parties of the name of the selected attorney. An attorney who has a conflict of interest shall decline to serve.

(b) The attorney shall act as chairman of the panel and shall have no vote. The chairman shall preside at panel meetings, advise the panel as to questions of law, and shall prepare the opinion of the panel as required in subsection (7) of this section. It is the duty of the chairman to expedite the selection of the other panel members, to convene the panel and expedite the panel's review of the proposed complaint. The attorney chairman shall establish, by order, a reasonable schedule for submission of evidence to the medical review panel, but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities within one hundred twenty (120) days following selection of the panel.

          (c) The qualification and selection of physician members of the medical review panel shall be as follows:
              (i) All physicians who hold a license to practice medicine in the State of Mississippi and who are engaged in the active practice of medicine in this state, whether in the teaching profession or otherwise, and all licensed optometrists, nurse practitioners and chiropractors shall be available for selection and, unless excused for cause, required to serve upon selection.
              (ii) Each party to the action shall have the right to select one (1) physician or other health care provider specified in paragraph (c)(i) and upon selection the health care provider shall be required to serve.
              (iii) When there are multiple plaintiffs or defendants, there shall be only one (1) physician selected per side. The plaintiff, whether single or multiple, shall have the right to select one (1) physician or other health care provider specified in paragraph (c)(i), and the defendant, whether single or multiple, shall have the right to select one (1) physician or other health care provider specified in paragraph (c)(i). The two (2) health care providers so chosen shall jointly select the third physician.

(iv) If any defendant is a physician or other health care provider, the panelists selected must be of the same specialty as at least one (1) physician defendant.

(v) Parties and their attorneys are absolutely prohibited from contact with the panelist whose name is submitted, either before or after submission. No panelist may be informed of the method of any panel member's selection.

(vi) No panelist may be selected to serve on more than four (4) medical review panels in a twelve-month period.

(vii) The panelist selection process shall be completed within thirty (30) days of the selection of the attorney chairman.
(d) Attorneys and panelists selected shall disclose any financial, employment, or personal or family ties to any party or attorney for a party. Any conflict that cannot be resolved shall be decided by the court upon the motion of any party.

(4) Evidence.

(a) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only.

(b) The evidence may consist of:

(i) Medical records;

(ii) Sworn statements;

(iii) Expert reports signed by experts;

(iv) Deposition transcripts;

(v) Any other evidence allowed by the medical review panel or submitted by the parties.
(c) Depositions of the parties only may be taken, and may be taken prior to the convening of the panel.

(d) Upon request of any party or panel member, the board shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection, copying or both.

(e) The plaintiff must sign a valid authorization allowing defendants to obtain the plaintiff's medical records. The defendant shall treat all medical records in a confidential manner and shall not disclose the contents of the records to anyone other than the panel or other experts; all other experts must treat the plaintiff's records as confidential.

(f) The board shall send a copy of the evidence to each member of the panel.

(5) Hearings. (a) After submission of all evidence and upon ten (10) days' notice to the other side, either party or the panel shall have the right to convene the panel at a time and place agreeable to the members of the panel; each party is entitled to request only one (1) hearing. The panel may hold as many hearings as it chooses. The purpose of a hearing is to ask questions as to additional evidence needed and to afford an opportunity to make oral presentation of the facts. The chairman of the panel shall preside at all hearings, which shall be informal.

(b) The following are locations where hearings may be held:

(i) At a courthouse or other available public building in the county where the act or omission is alleged to have occurred.

(ii) The attorney chairman shall decide the location in the event of any dispute.

(iii) Private offices in the county where the act or omission is alleged to have occurred may be used if there is no cost or if the parties pay for the cost.

     (6) Panel deliberations and decision. After receiving all evidence from the parties, the panel shall convene to discuss the evidence presented not less than one (1) time, and, not later than sixty (60) days after receiving all evidence from the parties, shall render a written decision signed by the panelists, together with written reasons for their conclusions, as follows:
          (a) There was a breach of the appropriate standard of care;
          (b) There was not a breach of the appropriate standard of care; or

(7) Form of decision. The decision reached by the medical review panel shall be in writing, shall state the facts upon which it is based, shall be of public record, and shall be admissible as evidence in the civil case filed.

(8) Panelist immunity. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this section.

(9) Panelist compensation.

(a) (i) Each physician or other health care provider member of the medical review panel shall be paid a fee of Five Hundred Dollars ($500.00) for all work performed as a member of the panel, and in addition thereto, per diem as provided in Section 25-3-69, Mississippi Code of 1972, and travel expenses as would be calculated for a state employee pursuant to Section 25-3-41, Mississippi Code of 1972.

(ii) The attorney chairman of the medical review panel shall be paid at the rate of One Hundred Fifty Dollars ($150.00) per hour, not to exceed a total of Three Thousand Dollars ($3,000.00), for all work performed as a member of the panel, and in addition thereto, per diem as provided in Section 25-3-69, Mississippi Code of 1972, and travel expenses as would be calculated for a state employee pursuant to Section 25-3-41, Mississippi Code of 1972.

(b) The costs of the medical review panel shall be split between the parties. The panel members shall by affidavit request the payment due under this subsection (9) from the board, which in turn shall bill the parties for the proportionate share of each party.

(10) Delivery and effect of decision. The chairman shall submit a copy of the panel's report to the board and all parties and attorneys by registered or certified mail within five (5) days after the panel renders its opinion. The panel's report shall be of public record.

* * *

SECTION 15. Section 11-46-19, Mississippi Code of 1972, is amended as follows:

[Until July 1, 2005, this section shall read as follows:]

11-46-19. (1) The board shall have the following powers:

(a) To provide oversight over the Tort Claims Fund;

(b) To approve any award made from the Tort Claims Fund;

(d) To assign litigated claims against governmental entities other than political subdivisions to competent attorneys unless such governmental entity has a staff attorney who is competent to represent the governmental entity and is approved by the board; the board shall give primary consideration to attorneys practicing in the jurisdiction where the claim arose in assigning cases; attorneys hired to represent a governmental entity other than a political subdivision shall be paid according to the department fee schedule;

(e) To approve all claimants' attorney fees in claims against the state;

(f) To employ on a full-time basis a staff attorney who shall possess the minimum qualifications required to be a member of The Mississippi Bar, and such other staff as it may deem necessary to carry out the purposes of this chapter; the employees in the positions approved by the board shall be hired by the director, shall be employees of the department, and shall be compensated from the Tort Claims Fund;

(g) To contract with one or more reputable insurance consulting firms as may be necessary;

(h) To purchase any policies of liability insurance and to administer any plan of self-insurance or policies of liability insurance required for the protection of the state against claims and suits brought under this chapter;

(i) To expend money from the Tort Claims Fund for the purchase of any policies of liability insurance and the payment of any award or settlement of a claim against the state under the provisions of this chapter or of a claim against any school district, junior college or community college district, or state agency, arising from the operation of school buses or other vehicles, under the provisions of Section 37-41-42;

(j) To cancel, modify or replace any policy or policies of liability insurance procured by the board;

(k) To issue certificates of coverage to governmental entities, including any political subdivision participating in any plan of liability protection approved by the board;

(l) To review and approve or reject any plan of liability insurance or self-insurance reserves proposed or provided by political subdivisions if such plan is intended to serve as security for risks of claims and suits against them for which immunity has been waived under this chapter;

(m) To administer disposition of claims against the Tort Claims Fund;

(n) To withhold issuance of any warrants payable from funds of a participating state entity should such entity fail to make required contributions to the Tort Claims Fund in the time and manner prescribed by the board;

(o) To develop a comprehensive statewide list of attorneys who are qualified to represent the state and any employee thereof named as a defendant in a claim brought under this chapter against the state or such employee;

(p) To develop a schedule of fees for paying attorneys defending claims against the state or an employee thereof;

(q) To adopt and promulgate such reasonable rules and regulations and to do and perform all such acts as are necessary to carry out its powers and duties under this chapter;

(r) To establish and assess premiums to be paid by governmental entities required to participate in the Tort Claims Fund;

(s) To contract with a third-party administrator to process claims against the state under this chapter;

(t) To annually submit its budget request to the Legislature as a state agency;

(u) To dispose of salvage obtained in settlement or payment of any claim at fair market value by such means and upon such terms as the board may think best; * * *

(v) To administer the Medical Malpractice Insurance Availability Plan under Section 83-48-5; and

(w) To act as the board as required under Senate Bill No. 2763, 2004 Regular Session, dealing with medical malpractice claims as follows:

(i) To accept filings under the act;

(ii) To coordinate the selection of panels;

(iii) To maintain lists of attorneys eligible for appointment as attorney chairmen;

(iv) To promulgate rules in reference to the qualifications of attorneys serving as panel members;

(v) To promulgate rules and regulations necessary to implement the provisions of Section 19 of Senate Bill No. 2763, 2004 Regular Session; and

(vi) To provide general administrative support.

(2) Policies of liability insurance purchased for the protection of governmental entities against claims and suits brought under this chapter shall be purchased pursuant to the competitive bidding procedures set forth in Section 31-7-13.

(3) The department shall have the following powers and duties:

(a) To annually report to the Legislature concerning each comprehensive plan of liability protection established pursuant to Section 11-46-17(2). Such report shall include a comprehensive analysis of the cost of the plan, a breakdown of the cost to participating state entities, and such other information as the department may deem necessary.

(b) To provide the board with any staff and meeting facilities as may be necessary to carry out the duties of the board as provided in this chapter.

(c) To submit the board's budget request for the initial year of operation of the board in order to authorize expenditures for the 1993-1994 fiscal year and for the appropriation of such general funds as shall be required for the commencement of its activities.

[From and after July 1, 2005, this section shall read as follows:]