In re Globalsantefe Corp.

Decision Date05 December 2008
Docket NumberNo. 07-0040.,07-0040.
Citation275 S.W.3d 477
CourtTexas Supreme Court

John B. Hall, Christopher Benjamin Dove, Locke Lord Bissell & Liddell LLP, David R. Walker, Royster, Rayzor, Vickery & Williams, L.L.P., Houston, TX, for Realtor.

John Milton Black, Ian P. Cloud, Justin Ryan Goodman, Heard, Robins, Cloud & Lubel, L.L.P., Houston, TX, for Real Parties in Interest.

Michael K. Rose, F. William Mahley, Strasburger & Price, L.L.P., Stephen G. Tipps, Baker & Botts, L.L.P., Houston, TX, for Amici.

Justice WILLETT delivered the opinion of the Court.

In this original proceeding, GlobalSantaFe Corp. (GSF) asks this Court to direct the silica MDL pretrial court to vacate its order remanding this case to the trial court where it was originally filed. The pretrial court concluded that Chapter 90 of the Civil Practice and Remedies Code, applicable to certain silica-related cases and under which the case had been transferred to the pretrial court, was inoperative because it was preempted by the Jones Act, a federal maritime statute. We agree with GSF that the general procedural framework set out in Chapter 90 is not preempted, although we also hold that Chapter 90's minimal-impairment provision relating to silica claims is preempted. We conditionally grant mandamus relief.

I. Background

In May 2003, John Lopez sued GSF under the Jones Act, alleging injuries from exposure to asbestos and silica while employed by GSF aboard a vessel.1 Lopez filed his Jones Act suit in state court, as allowed by federal law,2 in the 55th district court of Harris County.

Two years later, Chapter 90 of the Civil Practice and Remedies Code became effective,3 adopting unique procedures for personal-injury actions alleging injuries from silica and asbestos.4 We focus here on the requirements relating to silica claims.5

Section 90.004 requires silica claimants to serve a detailed expert report on each defendant. Among other requirements, the report must be prepared by a physician who has specific qualifications,6 and the physician (or other medical professional "employed by and under the direct supervision and control of the physician") must perform a physical examination of the claimant and take a detailed occupational, exposure, medical, and smoking history.7

The report must verify that the claimant suffers from one or more silica-related diseases based on recognized symptoms.8 It must attach all medical evidence supporting the physician's opinion.9 The report must also verify that the physician has made certain causation findings regarding silica exposure and the claimant's observed ailments.10 The report must make these causation determinations depending on the type of silica-related disease asserted.11

If the claimant is asserting a claim for silicosis, the report must verify a minimal level of impairment under section 90.004(b)(2), requiring "at least Class 2 or higher impairment due to silicosis, according to the American Medical Association Guides to the Evaluation of Permanent Impairment...."

Section 90.010(a) provides that "[t]he MDL rules apply to any action pending on the date this chapter becomes law in which the claimant alleges personal injury or death from exposure to asbestos or silica," subject to certain exceptions. Relevant MDL rules are set out in Rule 13 of the Texas Rules of Judicial Administration, created by this Court pursuant to legislative authority.12 The 295th district court of Harris County is the MDL pretrial court for personal-injury suits alleging silica exposure.13 Generally, the MDL pretrial court decides all pretrial matters and then remands the case to the trial court.14

Section 90.006(a) provides, for actions filed on or after the statute's September 1, 2005 effective date, the expert report must be served not later than thirty days after the defendant answers or otherwise appears. For actions filed after the effective date, the defendant may file a motion to dismiss if the claimant fails to file an expert report or files one that does not comply with section 90.003 (asbestos claims) or 90.004 (silica claims).15

For actions like this one filed before September 1, 2003, the MDL rules are inapplicable if the plaintiff files an expert report complying with the expert report requirements of Chapter 90.16 The report is due within 90 days of Chapter 90's September 1, 2005 effective date.17 If the plaintiff misses this deadline for filing a compliant report, the defendant may file a notice of transfer to the MDL pretrial court.18 Section 90.010(b) provides:

If the claimant fails to serve a report complying with Section 90.003 or 90.004 on or before the 90th day after the date this chapter becomes law under Subsection (a)(2), the defendant may file a notice of transfer to the MDL pretrial court. If the MDL pretrial court determines that the claimant served a report that complies with Section 90.003 or 90.004 on or before the 90th day after the date this chapter becomes law, the MDL pretrial court shall remand the action to the court in which the action was filed. If the MDL pretrial court determines that the report was not served on or before the 90th day after the date this chapter becomes law or that the report served does not comply with Section 90.003 or 90.004, the MDL pretrial court shall retain jurisdiction over the action pursuant to the MDL rules.

The notice of transfer automatically transfers the case without further court order,19 subject to a motion to remand filed in the MDL court and a remand by that court if it determines that the plaintiff had filed a compliant report.20 Absent a successful motion to remand, cases thus transferred to the MDL court remain in that court until the claimant serves a Chapter 90-compliant report.21

Contending that Lopez did not file a report complying with Chapter 90, GSF filed on December 2, 2005, a notice of transfer to the silica MDL pretrial court. Lopez responded, arguing Chapter 90 was preempted by the Jones Act and urging the MDL pretrial court to remand the case to the trial court. The MDL pretrial court agreed. GSF sought mandamus relief in the court of appeals, which also sided with Lopez by holding that "chapter 90 is preempted by federal law."22 GSF now seeks mandamus relief in this Court directing the MDL pretrial court to vacate its remand order.

II. Discussion
A. The "Asbestos Litigation Crisis" Addressed by Chapter 90

The statute enacting Chapter 90 and other codified provisions begins with legislative findings concerning asbestos and silica litigation. The Legislature stressed the existence of an "asbestos litigation crisis,"23 noting that Texas leads the nation in such suits.24 It found that this problem is exacerbated by the filing of suit, sometimes to avoid limitations problems, before the claimant is suffering from any illness affecting his daily life.25 The Legislature made further findings that this litigation has resulted in the bankruptcies of many companies, the loss of thousands of jobs, enormous litigation expenses, overcrowded dockets that hamper the ability of seriously ill claimants to seek redress, and the bleeding of company assets lost to a crush of claims by those "who are not functionally or physically impaired."26 It warned of a similar crisis looming over silica-related actions, evidenced by a recent spike in such claims, and raising some of the same concerns applicable to the asbestos crisis.27 The statute further provides:

It is the purpose of this Act to protect the right of people with impairing asbestos-related and silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system, while at the same time preventing scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to asbestos or silica but have no functional or physical impairment from asbestos-related or silica-related disease.28

To address the Legislature's stated purposes and concerns, Chapter 90 includes three components on which we focus. First, by requiring detailed expert reports early in the litigation process, Chapter 90 endeavors to assure that claims are not brought and pursued unless they are supported by reliable expert evaluations of the claimant.29

Second, Chapter 90 attempts to consolidate silica and asbestos cases in a single MDL court for pretrial proceedings.30 The obvious advantages of such consolidation include (1) the more efficient resolution of recurring issues by a court that acquires expertise in cases with related factual, procedural, and substantive legal issues; and (2) consistent rulings in such cases. The Legislature has authorized MDL transfers where they will serve the convenience of parties and witnesses and "promote the just and efficient conduct of the [consolidated] actions."31 It has empowered the judicial panel on multidistrict litigation to transfer related cases to MDL courts for "consolidated or coordinated pretrial proceedings."32 In creating the silica pretrial MDL action, the panel observed:

One virtue of transferring related cases to a single pretrial judge is that issues, once raised, will be decided the same way in the future. A consistent and steady judicial hand at the helm should in fact promote agreements because lawyers will know where the court stands on recurring issues. As contested issues arise, the pretrial judge will make consistent rulings, which can then be reviewed by the appellate courts as appropriate. This, we think, serves Rule 13's goal that our system give related cases consistent and efficient treatment.33

Third, Chapter 90 requires claimants in some cases to establish a minimal level of impairment before their cases can proceed.34

These procedures serve the stated legislative purpose of conserving judicial and litigant resources and directing those...

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