In re Champion Indus. Sales, LLC

Decision Date29 October 2012
Docket NumberNo. 13–12–00505–CV.,13–12–00505–CV.
Citation398 S.W.3d 812
CourtTexas Court of Appeals


Frank E. Weathered, David J. Dunn, Polly Dunn, Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C., Corpus Christi, Polly Dunn, Corpus Christi, Jonathan D. Saikin, Houston, Tanya N. Garrison, Houston, William R. Moye, Houston, Kevin Risley, Thompson, Coe, Cousins & Irons, Houston, James L. Ware, Sheehy, Serpe & Ware, PC, Houston, Konor A. Cormier, Mehaffy Webber, Houston, Gregg R. Brown, Austin, Patrick Wolter, Donnell, Abernethy & Kieschnick, Corpus Christi, Richard W. Crews, Jr., Hartline, Dacus, Barger, Dryer & Kern, Corpus Christi, Lauren E. Braddy, Corpus Christi, Jeffrey Pierce Fultz, Houston, Kendall Kelly Hayden, Dallas, James F. Buchanan, Welder Leshin LLP, Corpus Christi, John T. Groark, Chicago, IL, Robert L. Ramey, Corpus Christi, Raymond Lynn Stevens, Beaumont, Eric I. Barrera, Royston, Rayzor, Vickery & Williams, Corpus Christi, William L. Powers, San Antonio, J.K. Leonard, Waco, L. Hayes Fuller III, Naman, Howell, Smith & Lee LLP, Waco, Stuart Smith, Waco, Cade W. White, Houston, for the Relators.

Blake C. Erskine Jr., Austin, Mark B. Blackburn, Austin, Charlie Garcia, Austin, Michael V. Garcia, Alice, for Real Parties in Interest.

James E. Klager, pro se.

Joseph J. Halbach, Jr., pro se.

Before Chief Justice VALDEZ and Justices GARZA and VELA.


Opinion by Justice VELA.1

On May 29, 2012, the Honorable Joseph J. Halbach Jr., Presiding Judge of the of the 333rd District Court of Harris County, Texas, sitting as an appointed judge presiding over a multidistrict proceeding involving silica-related personal injury and wrongful death cases, entered an order remanding the underlying wrongful death case to the County Court at Law No. 4 of Nueces County, Texas. Relators, Champion Industrial Sales, LLC, Texas Pipe & Supply, Bonney Forge Corporation, Capitol Manufacturing Company, AIV, LP, Carboline Company, Inweld Corporation, Commercial Metals Company d/b/a Construction Service, The ESAB Group, Fein Power Tools, Inc., Gerdau Ameristeel US, Inc., Ipsco Koppel Tubulars, LLC, JM Supply Company, Inc., Oates Metal Deck and Building Products, Inc., Phoenix Forging Company, Serpa Fabrication, Inc., Titan Pipe & Supply, and Unibraze Corp., filed a petition for writ of mandamus on July 24, 2012, contending that the trial court erred in remanding the case. We deny the petition for writ of mandamus.

I. Background

Brandie Trevino–Garcia, individually and on behalf of the estate of Richard Garcia, filed a negligence and gross negligence suit against Bay, Ltd., and Berry Contracting, L.P. in County Court at Law No. 4 of Nueces County, based on the death of her husband, Richard Garcia. According to the petition, the decedent, who was employed by the defendants as a pipefitter, died as a result of exposure to “toxic hard-metal materials” during the course and scope of his employment. By her first amended original petition, Trevino–Garcia included additional claims against numerous other entities identified as Defendant Merchants” who manufactured, sold, or rented materials and machine tools used by the decedent containing toxic hard-metal substances. The first amended original petition identified the “hard-metals” as including, but not limited to, cobalt, tungsten, vanadium, bismuth, titanium, iron, aluminum, magnesium, silica, and combinations thereof. Trevino–Garcia subsequently filed second and third amended original petitions clarifying and expanding her causes of action. Each of these petitions identified silica as one of the hard-metals utilized by the decedent.

In the fall of 2011, the case was transferred to the silica multidistrict litigation pretrial court in the 333rd District Court as a tag-along case. SeeTex. Civ. Prac. & Rem.Code Ann. §§ 90.004, 90.010(b) (West 2011).

In November 2011, Trevino–Garcia filed her fourth amended petition. The fourth amended petition excludes silica as a defined “hard-metal” and specifically states that Plaintiffs do not assert a silicosis or silica related claim or injury,” and “Decedent died of hard-metal lung disease which is a separate and distinct disease from silicosis or any other silica related type diseases.”

In January 2012, Trevino–Garcia filed a motion to remand to the County Court at Law No. 4 of Nueces County on grounds that she did not assert that Decedent died of silicosis or a silica related injury, and accordingly, the cause should not remain in the Silica MDL pretrial court. According to the motion to remand, Trevino–Garcia was required to, and did, file the medical report required by civil practice and remedies code section 90.004, but the report concluded that Garcia did not die from silicosis. In the report, the expert noted as follows:

As indicated in my prior report, Mr. Garcia had desquamative interstitial pneumonia. This pattern has been described in individuals exposed to hard metal dust. Indeed, 42% of the particles [from a biopsy of Garcia's lung] analyzed ... were metal particles, including tungsten containing particles. Another 26% were silica.... Mr. Garcia did not have silicosis. Mr. Garcia had hard metal lung disease, and therefore the questions you asked me to answer in the Civil Practice and Remedies Code § 90.004(3)(A), (A)(i), (A)(ii), (B), (C) and (D) are not applicable to the diagnosis and causation of Mr. Garcia's lung disease.

Following two hearings, the pretrial court remanded the cause. The order of remand states, in relevant part, as follows:

On May 29, 2012, the Court considered Plaintiff's Motion to Remand. This Court is of the opinion that this Motion to Remand should be GRANTED. The Court finds that, under Rule 13 of the Rules of Judicial Administration, the existence of pleadings by a defendant alleging a connection between damages alleged by a plaintiff and silica does not vest jurisdiction in the Multi–District Litigation Court. Chapter 90 of the Texas Civil Practice[ ] and Remedies Code definition of a claimant in a silica case includes (1) an exposed person[,] and (2) any person who is seeking recovery of damages for or arising from the injury or death of an exposed person. Under Chapter 38 of the Texas Rules of Civil Procedure, a third party plaintiff is a defending party who brings suit against another person who may be liable to either him or the plaintiff for all of the plaintiff's claim again[st] him. Because a third party plaintiff is only seeking to mitigate the plaintiff's claim against him, he is not seeking to recover damages, and is not a claimant under Chapter 90. Therefore, a third party plaintiff is unable to invoke the jurisdiction of the silica Multi–District Litigation Court.

In a footnote to the order, the court further explained that because Trevino–Garcia had nonsuited with prejudice “any and all claims or potential claims of any harm due to silica,” any and all such claims were barred.

By two issues, relators contend that Trevino–Garcia's “post-transfer amended petition is not sufficient to divest the MDL pretrial court of subject matter jurisdiction and that the remand order was an abuse of discretion for which they have no legal remedy. The Court requested and received a response to the petition for writ of mandamus from Trevino–Garcia, and further received a reply thereto from relators.

II. Standard of Review

To be entitled to the extraordinary relief of a writ of mandamus, relator must show that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex.2009) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex.2010) (orig. proceeding); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig.proceeding). Relators have the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.2003) (orig. proceeding).

There is no established jurisprudence regarding whether or not relators possess an adequate remedy by appeal for a transfer from a pretrial court to a trial court in multidistrict litigation. Weighing public and private interests, and recognizing that the adequacy of an appeal depends on the facts involved in each case, we conclude that relators lack an adequate remedy by appeal for this ruling. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex.2008) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136–37. Specifically, Rule 13 of the Rules of Judicial Administration and its engendering legislation were enacted to promote “goals of convenience, efficiency, and justice.” In re Tex. Windstorm Ins. Ass'n, 339 S.W.3d 401, 403 (Tex.2009). Denying mandamus relief here would thwart the legislative intent that multidistrict litigation matters be handled expeditiously, and we should not frustrate that purpose “by a too-strict application of our own procedural devices.” In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 313–14 (Tex.2010) (orig. proceeding); see In re McAllen Med. Ctr., 275 S.W.3d at 467;cf.Tex.R. Jud. Admin. 13.9(c) ( “An appellate court must expedite review of an order or judgment in a case pending in a pretrial court.”). Accordingly, we conclude that “extraordinary circumstances” compel the determination that relators lack...

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