In re Silica Products Liability Litigation, No. MDL 1553.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtJack
Citation398 F.Supp.2d 563
Decision Date30 June 2005
Docket NumberNo. MDL 1553.
PartiesIn re SILICA PRODUCTS LIABILITY LITIGATION.
398 F.Supp.2d 563
In re SILICA PRODUCTS LIABILITY LITIGATION.
No. MDL 1553.
United States District Court, S.D. Texas, Corpus Christi Division.
June 30, 2005.

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John R. Fabry, Liaison Counsel, for all plaintiffs.

Darrell Lee Barger, Liaison Counsel, for all defendants.

ORDER NO. 29: ADDRESSING SUBJECT-MATTER JURISDICTION, EXPERT TESTIMONY AND SANCTIONS

JACK, District Judge.


Twenty months of pre-trial proceedings and coordinated discovery in the above-styled multidistrict litigation ("MDL")

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have culminated in three issues becoming ripe for decision: (1) whether federal subject-matter jurisdiction exists in this MDL's 111 cases (totaling over 10,000 individual Plaintiffs); (2) whether the doctors who diagnosed Plaintiffs with silicosis employed a sufficiently reliable methodology for their testimony to be admissible; and, (3) whether Plaintiffs' counsel should be sanctioned for submitting unreliable diagnoses and failing to fully comply with discovery orders.

The rulings contained herein are summarized as follows.

The claims of every Plaintiff in each of the 90 cases listed in "Appendix A" (attached hereto) will be REMANDED for lack of subject-matter jurisdiction. In order to allow the parties an opportunity to petition the Mississippi Supreme Court for consideration of how Mississippi's judicial system can best absorb the return of these cases, the Motion to Stay the effective date of remand will be GRANTED. The Court will STAY the effective date of the remand of the cases listed in "Appendix A" for a period of 30 days from the date of this Order, after which time remand will issue.

Kirkland v. 3M Co., S.D. Tex. Cause No. 04-639, will be sent to the Judicial Panel on Multidistrict Litigation ("Panel") with a recommendation that, for the convenience of the parties and to promote the just and efficient conduct of the case, Kirkland be remanded to the United States District Court for the Northern District of Georgia.

After the implementation of the above-stated rulings, only the 19 recently-transferred cases listed in "Appendix B," as well as Alexander v. Air Liquide America Corp., S.D. Tex. Cause No. 03-533 (originally filed in this Court), will remain in this MDL. An in-person status conference will be conducted on August 22, 2005 at 9:00 a.m., concerning the appropriate procedure for expediting jurisdictional discovery in the case listed in "Appendix B," as well as in any later-transferred cases. As to the "Appendix B" cases, the stay of discovery entered on February 22, 2005 (see Order No. 26) will be lifted. As set out in Order No. 4, all Plaintiffs in recently-transferred actions must submit sworn Fact Sheets within 60 days from the date of transfer by the Panel (excluding the period during which discovery was stayed). (Order No. 4, ¶ 20.)

In Alexander, Plaintiffs have 30 days from the date of this Order to cure the jurisdictional allegation concerning American Optical's principal place of business. Should Plaintiffs fail to cure the allegation within 30 days, American Optical will be dismissed without prejudice.

As to Alexander, Defendants' Motion to Exclude will be GRANTED: the testimony of Dr. Harron and the testimony of Dr. Levy (as well as their accompanying diagnoses) are inadmissible. Immediately following the August 22, 2005 status conference addressing the "Appendix B" cases, the Court will conduct an in-person status conference in Alexander, to address whether (and, if so, under what conditions) the Plaintiffs' claims may proceed.

Defendants' Motions for Sanctions will be GRANTED as to Alexander. The law firm of O'Quinn, Laminack & Pirtle ("O'Quinn") has multiplied the proceedings unreasonably and vexatiously, and will be required to satisfy personally Alexander's proportionate share (i.e., one percent) of Defendants' reasonably incurred costs, expenses and attorneys' fees for the Daubert hearings conducted on February 16-18, 2005. The Court does not yet fix the amount of this sanction. Instead, within seven days from the date of this Order, O'Quinn must file a statement with the

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Court either admitting or denying the Court's estimate of $825,000 as the total amount of fees, costs and expenses Defendants reasonably incurred due to the three-day Daubert hearings. Should O'Quinn deny the $825,000 figure, the Court first will allow Defendants to prove their actual fees, expenses and costs for the Daubert hearings, and then will allow O'Quinn to challenge those amounts and their reasonableness; finally, the Court will sanction O'Quinn for Alexander's proportionate share of the actual fees, expenses and costs Defendants reasonably incurred. Regardless of whether O'Quinn admits or denies the $825,000 figure, the amount of the sanction will be set in a later order.

As to all MDL cases transferred by the Panel before December 5, 2004 (i.e., the "Appendix A" cases, over which the Court has no subject-matter jurisdiction), the Motion to Exclude Expert Testimony, the Motions for Sanctions, and all other pending motions not otherwise addressed in this Order are reserved for consideration by the appropriate state court after remand.

As to those MDL cases transferred by the Panel after December 5, 2004 (i.e., the "Appendix B" cases), the Motion to Exclude Expert Testimony, the Motions for Sanctions, and all other pending motions not otherwise addressed in this Order are STAYED pending this Court's ruling on subject-matter jurisdiction.

 Table of Contents
                 I. Background .............................................................569
                 A. Silica and Silicosis ...............................................569
                 B. MDL 1553 ...........................................................573
                 II. Daubert Hearings/Court Depositions .....................................580
                 A. Need for the Daubert Hearings ......................................580
                 1. Dr. Martindale's Deposition ....................................581
                 2. December Hearings ..............................................584
                 a. December 2 Telephonic Conference ...........................584
                 b. December 17 Status Conference ..............................584
                 3. Dr. Hilbun's & Dr. Cooper's Depositions ........................587
                 B. Medically-Accepted Method for Diagnosing Silicosis .................589
                 C. Comparison to Asbestosis ...........................................594
                 D. Screening Companies ................................................596
                 E. Dr. Ray Harron .....................................................603
                 F. Dr. Andrew Harron ..................................................608
                 G. Dr. Ballard ........................................................609
                 H. Dr. Levy ...........................................................611
                 I. Dr. Coulter ........................................................616
                 J. Dr. Oaks ...........................................................618
                 K. Daubert Analysis ...................................................620
                 1. Legal Standard .................................................620
                 2. Criterion 1: Sufficient Exposure ...............................622
                 3. Criterion 2: Radiographic Findings .............................625
                 4. Criterion 3: Differential Diagnosis ............................629
                 5. Lawyers Practicing Medicine and Doctors Practicing Law .........632
                 6. Effects of Mass Over-Diagnosing ................................636
                 7. Alexander Ruling ...............................................637
                 L. Independent Medical Advisors/Technical Advisory Panel ..............640
                 M. Kirkland Deposition ................................................642
                III. Subject-Matter Jurisdiction ............................................644
                

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 A. Priority of Subject-Matter Jurisdiction ............................644
                 B. Removal ............................................................645
                 C. Diversity Jurisdiction .............................................645
                 1. Amount in Controversy ..........................................646
                 2. Complete Diversity .............................................647
                 a. Improper Joinder ...........................................648
                 i. Joinder of Plaintiffs .................................651
                 ii. Joinder of Defendants by Each Individual Plaintiff.....655
                 b. Procedural Issues ..........................................657
                 c. Analysis ...................................................658
                 D. Motion to Stay the Effective Date of Remand ........................666
                 E. Cases Transferred After December 5, 2004 ...........................666
                 F. Kirkland ...........................................................667
                 G. Alexander ..........................................................668
                 IV. Sanctions ..............................................................670
                 A. In the Absence of Subject-Matter Jurisdiction ......................671
                 B. Alexander ..........................................................673
                 V. Conclusion .............................................................679
                

I. Background

A. Silica and Silicosis1

The mineral that lies at the heart of this litigation — silica — appears benign at first glance. Silica, also known as silicon dioxide, is the second most common mineral in the earth's crust and is the primary ingredient of sand and 95 percent of the earth's rocks. But if sand or rocks are chipped, cut, drilled or ground, respirable-sized particles of silica may be produced, and the mineral becomes potentially dangerous. Inhaled silica particles may be trapped in the lungs, causing areas of swelling and scarring. Over time, these swollen areas can grow larger, breathing can become increasingly difficult, and eventually, the lungs may fail completely, resulting in death. This disease is called "silicosis."

Silicosis is classified into three types: chronic/classic, accelerated and acute. Chronic or...

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69 practice notes
  • In re Enron Corporation Securities, Derivative, No. MDL-1446.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 24, 2007
    ...questions of federal law, ... should apply the law of the law of the circuit in which it is located." In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563, 644 n. 128 (S.D.Tex.2005), citing In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C.Cir.1987), aff'd sub nom Chan v. Korean Air ......
  • Kan. City S. Ry. Co. v. Oney, No. 14–11–00815–CV.
    • United States
    • Court of Appeals of Texas
    • September 20, 2012
    ...docket. See In re Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. 151, 156 & n. 12 (E.D.Pa.2009); In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563, 575–75 & n. 18 (S.D.Tex.2005) (citing Administrative Order No. 4, which required each plaintiff to create a specific fact sheet). 14.See, ......
  • In re Global Indus. Technologies Inc., No. 08–3650.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 4, 2011
    ...diagnostic methods, which the Court described as “rang[ing] from questionable to abysmal.” In re Silica Products Liability Litig., 398 F.Supp.2d 563, 622 (S.D.Tex.2005). In particular, the Silica Products Court disparaged silica claims brought by people who had earlier been diagnosed with a......
  • Rutherford v. Merck & Co., Inc., Civil. No. 06-159-GPM.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • April 21, 2006
    ...about whether egregious misjoinder is tested using federal or state procedural rules. See, e.g., In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563, 651 n. 141 (S.D.Tex.2005) (applying federal rules); Brooks v. Faulk & Cope, Inc., 176 F.Supp.2d 1270, 1274 (M.D.Ala.2001) (same); Koch, 1997 ......
  • Request a trial to view additional results
69 cases
  • In re Enron Corporation Securities, Derivative, No. MDL-1446.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 24, 2007
    ...of federal law, ... should apply the law of the law of the circuit in which it is located." In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563, 644 n. 128 (S.D.Tex.2005), citing In re Korean Air Lines Disaster, 829 F.2d 1171, 1176 (D.C.Cir.1987), aff'd sub nom Chan v. Korean Air Lines......
  • Kan. City S. Ry. Co. v. Oney, No. 14–11–00815–CV.
    • United States
    • Court of Appeals of Texas
    • September 20, 2012
    ...See In re Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. 151, 156 & n. 12 (E.D.Pa.2009); In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563, 575–75 & n. 18 (S.D.Tex.2005) (citing Administrative Order No. 4, which required each plaintiff to create a specific fact sheet). 14.See, ......
  • In re Global Indus. Technologies Inc., No. 08–3650.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 4, 2011
    ...diagnostic methods, which the Court described as “rang[ing] from questionable to abysmal.” In re Silica Products Liability Litig., 398 F.Supp.2d 563, 622 (S.D.Tex.2005). In particular, the Silica Products Court disparaged silica claims brought by people who had earlier been diagnosed with a......
  • Rutherford v. Merck & Co., Inc., Civil. No. 06-159-GPM.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • April 21, 2006
    ...about whether egregious misjoinder is tested using federal or state procedural rules. See, e.g., In re Silica Prods. Liab. Litig., 398 F.Supp.2d 563, 651 n. 141 (S.D.Tex.2005) (applying federal rules); Brooks v. Faulk & Cope, Inc., 176 F.Supp.2d 1270, 1274 (M.D.Ala.2001) (same); Koch, 1......
  • Request a trial to view additional results

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