In re Polybutylene Plumbing Littagation
| Decision Date | 30 March 2000 |
| Citation | 23 S.W.3d 428 |
| Parties | <!--23 S.W.3d 428 (Tex.App.-Houston 2000) IN RE POLYBUTYLENE PLUMBING LITIGATION WILLIAM and LISA ADKINS, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees GEORGE R. and DONNA G. ANDERSON, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees HECTOR M. and JULIA ARMSTRONG, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees FELTON K. and JENNIFER J. CARPENTER, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees JAMES H. and CHRISTA M. CLARKE, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees JAMES R. and BEVERLY L. COX, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees DAN and PEARL DANIELS, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees JOHNNIE C. and AUDREY C. DOPSON, ET AL., Appellants Page 429 v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees KENNETH W. and PATSY E. DUNN, et al., Appellants v. HOECHST CELENESE CORPORATION and SHELL OIL COMPANY, Appellees GREEN TREE AT THE GARDENS, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees HALLENE F. JOHNSON, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees MARK M. and JULIENNA MCWHORTER, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees JESSE G. and ALMA T. PAULINO, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees RONALD L. and ARAH D. PHILLIPS, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees CARL H. and ALISSA A. RAY, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees MIKE R. and YVETTE J. STRUTZ, ET AL., Appellants v. HOECHST CELANESE CORPORATION and SHELL OIL COMPANY, Appellees NO. 01-96-01528-CV NO. 01-98-00409-CV NO. 01-98-00016-CV NO. 01-98-00413-CV NO. 01-98-00124-CV NO. 01-98-00103-CV NO. 01-97-01321-CV NO. 01-98-00414-CV NO. 01-00-00289-CV formerly NO. 01-96-01528-CV NO. 01-00-00288-CV formerly NO. 01-96-01528-CV NO. 01-98-00018-CV NO. 01-98-00412-CV NO. 01-98-00415-CV NO. 01-98-00410-CV NO. 01-98-00411-CV NO. 01-00-00290-CV formerly NO. 01-96-01528-CV In The Court of Appeals For The First District of Texas |
| Court | Texas Court of Appeals |
On Appeal from 281st District Court Harris County, Texas Trial Court Cause No. 92-24674-D
On Appeal from 75th District Court Liberty County, Texas Trial Court Cause No. 49634-A
On Appeal from 239th District Court Brazoria County, Texas Trial Court Cause No. 93G33042
On Appeal from 347th District Court Nueces County, Texas Trial Court Cause No. 97-5661-H
On Appeal from 129th District Court Harris County, Texas Trial Court Cause No. 93039396-A
On Appeal from 10th District Court Galveston County, Texas Trial Court Cause No. 94CV0047B
On Appeal from 189th District Court Harris County, Texas Trial Court Cause No. 9343662A
On Appeal from 120th District Court El Paso County, Texas Trial Court Cause No. 97-3759
On Appeal from 189th District Court Harris County, Texas Trial Court Cause No. 94-07179-A
On Appeal from 281st District Court Harris County, Texas Trial Court Cause No. 94-019534-A
On Appeal from 240th District Court Fort Bend County, Texas Trial Court Cause No. 84481A
On Appeal from 278th District Court Madison County, Texas Trial Court Cause No. 93739127810A
On Appeal from 293rd District Court Zavala County, Texas Trial Court Cause No. 95-02-08992-CV-A
On Appeal from 9th District Court Montgomery County, Texas Trial Court Cause No. 94-0100001-CV-A
On Appeal from 58th District Court Jefferson County, Texas Trial Court Cause No. A-150905-A
On Appeal from 281st District Court Harris County, Texas Trial Court Cause No. 94-07178-A
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Panel consists of Justices Mirabal, Taft, and Nuchia.
The main issue presented in this case is whether, under Texas law as applied to these facts, a trial judge has the authority to change the terms of attorneys' fee contracts between attorneys and their clients. This is mass tort litigation, but not a class action. Appellants1 complain about the trial court's "Final Order Approving Attorney's Fees and Expenses." We reverse.
We granted a joint motion to decide these 16 appeals together. These appeals arise out of lawsuits filed in district courts in 11 Texas counties.2 They arrived in the First Court of Appeals in the following manner:
By order of October 17, 1995, all cases then pending in the district courts of Harris County, in which claims were made for damages allegedly resulting from the installation and use of polybutylene plumbing systems, were ordered consolidated for discovery and for pretrial purposes only. Judge Russell Lloyd, Judge of the 334th District Court, was appointed as the Coordinating Judge of the cases for pretrial purposes.3 As will be discussed in detail later, a settlement was reached in most of the cases pending in Harris County and the 10 other counties, resulting in orders by Judge Lloyd in connection with the settlement of the Harris County cases. Upon joint motions, trial judges with pending polybutylene plumbing cases in Harris County and other counties adopted the orders of Judge Lloyd in their cases that were part of the settlement, resulting in final judgments. Thus, although this appeal involves 16 different cases from 11 different counties, we are reviewing the correctness of one order, by one judge, the Honorable Russell Lloyd.4 The appeals originally filed in other courts of appeals ended up in the First Court of Appeals by order dated March 24, 1998, from the Texas Supreme Court transferring the cases to the First Court of Appeals.
The law firm of Fleming, Hovenkamp & Grayson is lead counsel with a group of 48 other law firms5 that represented approximately 37,000 plaintiffs who owned in excess of 67,000 property units containing allegedly defective polybutylene plumbing systems.6 Each of the 37,000 plaintiffs had individual fee contracts through either lead counsel Fleming, Hovenkamp & Grayson directly, or through one of the 48 other law firms involved in the litigation. The attorneys' fee contracts were negotiated on an individual basis by the parties before their suits were filed. All of the plaintiffs are adult individuals or business entities.
The lawsuits filed on behalf of the plaintiffs alleged that for many years Shell Oil Company and Hoechst Celanese Corporation provided the defective materials from which polybutylene plumbing systems were manufactured. It was alleged that, due to the defective materials supplied by Shell and Celanese, the plumbing systems failed and leaked. The polybutylene plumbing systems had been installed in many homes and businesses and had experienced massive failures.
The lawsuits sought the cost of replumbing the dwellings and buildings and cash for the water damage, inconvenience, and aggravation caused by the leaks. All of the plaintiffs participated in individual case discovery. The discovery included the completion of nearly 50,000 sets of answers to interrogatories and the taking of more than 8,000 depositions of property owners. Over 30,000 individual home inspections were performed by a plaintiffs' inspector and damage appraiser, with individual damage calculations done for each home. Expenses of over $10 million were incurred by the plaintiffs' attorneys in developing and prosecuting the cases. Three large polybutylene pipe cases, involving approximately 300 plaintiffs, actually went to trial or arbitration.
The polybutylene litigation was the dominant activity of the lead law firm, Fleming, Hovenkamp & Grayson, through nine years, involving the work of eight attorneys, five legal assistants, a number of contract attorneys, investigators, law clerks, and other support personnel with an estimated aggregate of more than 140,000 hours of time expended. George Fleming stated he spent 60% of his time during this period on the polybutylene pipe litigation, with other FH&G attorneys spending up to 90% of their time prosecuting the cases. A large operation for development and maintenance of a computer data base to manage the litigation was required because of the large number of plaintiffs involved. It is undisputed that the lead law firm used the large database and telephone banks to communicate with its clients. The lead law firm stated it had sent more than 800,000 pieces of mail to its clients in the past four years, and it had coordinated their answers to interrogatories and depositions.
The polybutylene pipe cases were undertaken by FH&G on a contingency fee basis, so that if there was no recovery there would be no fee or reimbursement of expenses.
The settlement agreement was finalized December 20, 1995. It was the result of years of intense negotiations culminating in over two months of nearly daily discussions. The settlement agreement was specifically "subject to the approval of" each of the involved plaintiffs, and subject to each plaintiff's "agreement to his/her individual distribution as proposed by FH&G."
Under the settlement, Shell and Celanese agreed, in order to resolve all polybutylene plumbing-related claims of each of approximately 60,000 plaintiffs represented by FH&G,7 to the following:
1. to pay $170 million cash;
2. to replumb or to reimburse replumb costs, for up to 60,000 property units (retail value of replumb: approximately $72 million).
The agreement provided that, in order to be covered, claimants "must be individually represented by FH&G," and they must "have participated in the litigation process in some manner including, but not limited to, providing claim/damage information for answering written interrogatories, having their...
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Shamblin v. Sylvester, No. E2008-01440-COA-R3-CV (Tenn. App. 4/13/2009)
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