In re Kone, Inc.

Citation216 S.W.3d 68
Decision Date26 October 2005
Docket NumberNo. 05-0738.,05-0738.
PartiesIn re KONE, INC.
CourtTexas Judicial Panel on Multidistrict Litigation

Justice LANG delivered the opinion of the Multidistrict Litigation Panel, in which Justice PEEPLES, Justice CASTILLIO, Justice HANKS, and Justice SMITH joined.


On September 9, 2005, Kone, Inc. filed its motion before this panel.1 Tracking the language of Texas Rule of Judicial Administration 13.3(a)(2), Kone alleges that four cases pending against it in four different counties2 involve common issues of fact and the transfer of those cases for consolidated or coordinated pretrial proceedings would be for the convenience of the parties and witnesses, and would promote the just and efficient conduct of the cases. See TEX. R. JUD. ADMIN. 13.3(a)(2).

In each of the four cases, the operators of a hospital sued Kone for breach of an elevator/escalator maintenance contract. CHRISTUS Health (CHRISTUS), is joined by a different affiliate as a co-plaintiff in each lawsuit. Kone advises the disputes between it and CHRISTUS began when a physician was killed in a tragic accident while he was using an elevator maintained by Kone at one of CHRISTUS's hospitals located in Houston, Texas. According to Kone, after litigation was brought by the physician's family, CHRISTUS alleged it found defects in the maintenance program for the elevators. Hence, the four pending lawsuits were filed.

Kone describes five common issues of fact and law which are involved in all of the lawsuits:

(1) Was there a material breach of the maintenance contract?

(2) Did Kone's conduct harm the business reputation of the Plaintiffs Hospitals?

(3) Did Kone's breach proximately cause a decrease in hospital census?

(4) Can the Plaintiffs recover damages for loss of business reputation?

(5) Can the Plaintiffs recover damages for loss of census?

Premised on these "common issues," Kone asserts that without transfer of the cases for pre-trial coordination: (1) both its witnesses and those of CHRISTUS's will be subjected to four sets of depositions; and (2) "the parties" will bear the risk of inconsistent discovery rulings and decisions on motions for summary judgment.

CHRISTUS opposes transfer contending Kone has not met its burden under Rule 13 and there will be no benefit in consolidating the lawsuits. It agrees the issues listed by Kone will generally exist in each case. However, CHRISTUS tells us the facts are "local" in each case because each hospital is a separate facility with its own elevators. Accordingly, a deposition must be taken of each fact witness to address that person's knowledge of the maintenance of the different facilities. Further, expert witness depositions must inquire into the opinions about the contractual performance at each facility and any alleged harm caused by the claimed failure of Kone to perform its maintenance obligations.


With these contentions in mind, we turn to the authorities and their application. Texas Rule of Judicial Administration 13 provides a framework for a pretrial process that will allow cases to proceed efficiently toward trial. See TEX. R. JUD. ADMIN. 13; In re Vanderbilt Mortgage and Fin., Inc., 166 S.W.3d 12, 14 (Tex.M.D.L. Panel March 2, 2005). We have noted before that "[Rule 13] does not require proof that witnesses have already been inconvenienced; it looks ahead and focuses on whether transferring cases to a pretrial judge would serve the convenience of parties and witnesses by preventing inconvenience in the future." In re Silica Prod. Liab. Litig., 166 S.W.3d 3, 5 (Tex.M.D.L. Panel Nov. 10, 2004). Additionally, we have observed:

One virtue of transferring related cases to a single pretrial judge is that issues, once raised, will be decided the same way. 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 then can 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.

Id. at 6.

The benefits of a Rule 13 transfer cannot be attained in this case because the record before us shows no common fact issues, much less, recurring issues to be decided. Kone demonstrated only common ultimate issues. However, CHRISTUS shed light upon the "local" nature of these issues. The facts are substantially individual as they relate to each hospital facility. Kone has not given us any information to the...

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