In re Fluor Enterprises, Inc.

Decision Date27 February 2006
Docket NumberNo. 03-06-00113-CV.,03-06-00113-CV.
Citation186 S.W.3d 639
PartiesIn re FLUOR ENTERPRISES, INC.; Fluor Corporation; Fluor Constructors International, Inc.; and Fluor Texas, Inc.
CourtTexas Court of Appeals

Marie R. Yeates, Sandra G. Rodriguez, Vinson & Elkins, L.L.P., Kent M. Adams, Sarah M. Davis, Adams & Boswell, PC, Houston, for relators.

Jeffery Mundy, Michael Singley, Mundy & Singley, L.L.P., Austin, Deborah G. Hankinson, Elana S. Einhorn, Law Offices of Deborah Hankinson, PC, Dallas, for real parties in interest.

Before Justices B.A. SMITH, PURYEAR and WALDROP.



This is an original proceeding seeking a writ of mandamus to direct Respondent, the Honorable Mark Davidson of the 11th Judicial District Court of Harris County, Texas, to vacate his order of February 23, 2006, remanding this case to the 345th Judicial District Court of Travis County, Texas. It was filed in this Court by Relators Fluor Enterprises, Inc., Fluor Corporation, Fluor Constructors International, Inc., and Fluor Texas Inc. (the "Fluor Defendants"). The underlying lawsuit is an asbestos case involving allegations of a death due to mesothelioma filed against a number of defendants, including the Relators. On September 29, 2005, this lawsuit was set for trial in the Travis County District Court for February 27, 2006. The Fluor Defendants transferred the lawsuit to the asbestos multi-district litigation ("MDL") pretrial court in Harris County on February 23, 2006. The same day, Judge Davidson, the MDL pretrial judge, heard the plaintiffs' motion to remand and remanded the case back to Travis County district court. This original proceeding, as well as an Emergency Motion for Temporary Relief staying the trial, were filed in this Court on February 24, 2006, seeking review of Judge Davidson's order remanding the case to the Travis County trial court.

The question before us is whether the MDL pretrial court abused its discretion in remanding this case for trial in light of Texas Civil Practices and Remedies Code section 90.010. Section 90.010 is a portion of the comprehensive statute dealing with asbestos and silica cases effective September 1, 2005. Tex. Civ. Prac. & Rem.Code Ann. §§ 90.001-.012 (West Supp.2005). Relators argue that section 90.010 precludes the MDL pretrial court from remanding this case for trial until the plaintiffs serve a report on the Relators that complies with section 90.003. It is undisputed that the plaintiffs have not served such a report. The plaintiffs, who are the Real Parties in Interest, argue that section 90.010 does not prohibit a remand in this case when the Relators waited until four days before trial to attempt to transfer the case to the MDL proceeding and when the attempted transfer violated the MDL pretrial court's deadlines set out in its case management order. We deny the Motion for Emergency Relief and deny the Petition for Writ of Mandamus.


This asbestos case was originally filed in Travis County district court on January 4, 2004. The plaintiffs seek damages for personal injury and wrongful death relating to the exposure of Sam Wallace, Jr., deceased, to asbestos fibers. Mr. Wallace had been diagnosed with mesothelioma. The Fluor Defendants appeared pursuant to the Travis County Standing Order relating to asbestos cases on February 14, 2005, and formally answered on April 28, 2005.

Because it was filed in January 2004, the lawsuit is subject to the application of MDL rules that were authorized by the Legislature in 2003. Tex. Gov't.Code Ann. § 74.163 (West 2005). Pursuant to these rules, the judicial panel on multi-district litigation appointed the 11th District Court in Harris County to act as the MDL pretrial court for consolidated pretrial proceedings in asbestos cases filed after September 1, 2003. See Union Carbide v. Adams, No. 03-0895 (Tex.M.D.L.Panel, Jan. 13, 2004). As part of its delegated authority to manage the MDL asbestos docket, the MDL pretrial court entered its original case management order on July 29, 2004, setting forth various procedures for the management of the docket, including deadlines for transferring cases to the MDL pretrial court. In re Asbestos Litigation, No.2004-03964 (11th Dist. Ct., Harris County, Tex.). This case management order was later amended by the MDL pretrial court's First Amended Case Management Order entered on December 21, 2004.1 The amended case management order did not alter the procedural deadlines applicable to the transfer of this case to the MDL pretrial court.

The Case Management Order required defendants to transfer their case within thirty days of their answer. See id., par. I.A.1. The Fluor Defendants did not transfer this case to the MDL pretrial court by this deadline. In fact, the Fluor Defendants did not transfer or attempt to transfer the case to the MDL proceeding during 2005 or January 2006.2 The first attempt to transfer the case to the MDL proceeding was on Thursday, February 23, 2006, four days before the scheduled trial setting in Travis County District Court of Monday, February 27, 2006. The MDL pretrial court wasted no time in considering an oral motion to remand, held a telephonic hearing on the motion, and remanded the case the same day it was transferred. The remand was granted by written order signed by Judge Davidson and does not detail the basis for the ruling.

Because this case was pending on the date that chapter 90 of the civil practices and remedies code became law, various portions of that statute apply. Notably, the requirement under section 90.003 for the claimants to serve a report on each defendant by a board-certified physician in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology stating that "to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma." Tex. Civ. Prac. & Rem. Code Ann. § 90.003(a)(1)(B) (West Supp. 2005). The plaintiffs do not contest that the report is required nor do they contest that they failed to serve such a report. Their argument is, in essence, that the Relators waived their right to delay a trial over the failure to serve a report by: (1) waiting several months to raise the issue, (2) foregoing their right to transfer the case to the MDL pretrial court under the provisions of the case management order, (3) failing to seek a continuance in the trial court, and (4) and raising the absence of the report for the first time on the eve of trial.


Under Rule of Judicial Administration 13.9(b), an order of the MDL pretrial court may be reviewed by the appellate court that regularly reviews orders of the court in which the case is pending at the time review is sought, irrespective of whether the court where the case is pending issued the order or judgment to be reviewed. Tex.R. Jud. Admin 13.9(b), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. F app. (West Supp.2005). As a result of the remand order entered by the MDL pretrial court on February 23, 2006, this case is currently pending in the 345th Judicial District Court of Travis County. The Petition for Writ of Mandamus seeks review of the order remanding the case from the MDL pretrial court to Travis County district court. Therefore, because this case is currently pending in Travis County district court, this Court has jurisdiction to review the February 23, 2006, order of the MDL pretrial court remanding the case for trial. See id.

A question arises as to the potential application of Rule of Judicial Administration 13.5(e) and whether the review of Judge Davidson's order lies exclusively with the MDL Panel. Rule 13.5(e) provides:

(e) Transfer of Tag-along Cases. A tag-along case is deemed transferred to the pretrial court when a notice of transfer — in the form described in Rule 13.5(a) — is filed in both the trial court and the pretrial court. Within 30 days after service of the notice, a party to the case or to any of the related cases already transferred to the pretrial court may move the pretrial court to remand the case to the trial court on the ground that it is not a tag-along case. If the motion to remand is granted, the case must be returned to the trial court, and costs including attorney fees may be assessed by the pretrial court in its remand order. The order of the pretrial court may be appealed to the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk.

See id. 13.5(e) (emphasis added).

If this case was remanded on the ground that it is not a tag-along case, then the power to review the order of remand would lie exclusively with the MDL Panel. The MDL pretrial court's order is silent as to the grounds for remand. The motion to remand was made orally and we have no record of the telephonic hearing. Our only indication of what transpired during the telephonic hearing is a statement in Relators' brief that the MDL pretrial court "indicated that it was remanding the case in part because it believed the MDL transfer was untimely under the MDL court's case management order."

The Real Parties in Interest do not contest this Court's jurisdiction to hear this matter pursuant to Rule 13.9(b). Neither party has argued that this case is not a tag-along case under the MDL rules and, therefore, subject to Rule 13.5(e). We have no record that establishes that the MDL pretrial court remanded the case on the ground that it is not a tag-along case. Indeed, the MDL pretrial court's order is titled "Order Denying Transfer Under Rule 13 of Tag-along Case" suggesting that the MDL pretrial court considered the case a tag-along case and was remanding for some other reason. In addition, it is undisputed that this matter is a personal injury case in which the claimants are asserting an asbestos-related injury. It is, therefore, "related to cases" that were transferred in the MDL Panel's initial transfer order to the asbestos MDL pretrial court. See Tex.R. Jud. Admin. 13.2(g...

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    ...orders of the court in which the case is pending at the time review is sought. See Tex.R. Jud. Admin. 13.9(b); see, e.g., In re Fluor Enters., Inc., 186 S.W.3d 639, 642 (Tex.App.-Austin 2006, orig. proceeding [mand. denied]) (concluding that the intermediate appellate court had mandamus jur......
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