In re Silica Products Liability Litigation

Decision Date19 June 2006
Docket NumberNo. 04-0606.,04-0606.
Citation216 S.W.3d 87
PartiesIn re SILICA PRODUCTS LIABILITY LITIGATION.
CourtTexas Judicial Panel on Multidistrict Litigation
OPINION

Justice B.A. SMITH delivered the opinion of the Multidistrict Litigation Panel including Justice PEEPLES, Justice LANG, Justice HANKS, and Judge

ABLES.1

John B. Lopez sued his former employer GlobalSantaFe Corporation under the Jones Act, alleging that he sustained injuries resulting from exposure to asbestos and silica present on the ship where he was employed. See 46 U.S.C. 688 (Supp. 2005). State and federal courts have concurrent jurisdiction over claims brought under the Jones Act. See Stier v. Reading & Bates Corp., 992 S.W.2d 423, 429 (Tex. 1999). Lopez's case was filed on July 22, 2003, in the 55th Judicial District Court in Harris County.

On November 10, 2004, this MDL Panel established a pretrial court to handle silica products litigation. See In re Silica Products Liability Litigation, 166 S.W.3d 3, 8 (Tex. M.D.L. Panel 2004). On December 2, 2005, GlobalSantaFe filed a notice of transfer in the trial court under section 90.010(b) of the civil practices and remedies code, transferring this case to the silica pretrial court. Lopez filed a motion to remand, objecting to the transfer on the ground that the Jones Act preempted the report requirements of Chapter 90 and the MDL transfer provisions for failure to file a section 90.004 report. After a brief hearing, the pretrial court remanded Lopez's claim to the trial court. GlobalSantaFe filed a motion for rehearing of this remand order with the MDL Panel.

The Panel asked the parties to address two issues: (1) whether review of the pretrial court's order of remand properly lies with the MDL Panel under Rule 13.5(e) or with the court of appeals under Rule 13.9, and (2) whether the Jones Act preempts the reports required by Chapter 90 in asbestos- and silica-related cases, affecting the ability to transfer such a case to an MDL pretrial court for failure to timely serve such a report on defendant under section 90.010(b). Because we hold that the MDL Panel lacks jurisdiction to review the pretrial court's remand order, we dismiss GlobalSantaFe's motion for rehearing.

Legal Framework Governing Transfer of Cases to MDL Pretrial Court

The laws governing multidistrict litigation provide a pretrial process that will allow cases with common questions of fact to proceed efficiently toward trial. See In re Vanderbilt Mortgage & Fin., Inc., 166 S.W.3d 12, 14 (Tex. M.D.L. Panel 2005). Under rule of judicial administration 13, related cases may be transferred to a single court that decides all pretrial matters. See Tex.R. Jud. Admin. 13.6(b).2 Rule 13 applies to two separate types of cases:

1) civil actions that involve one or more common questions of fact and that were filed . . . on or after September 1, 2003; and

2) civil actions filed before September 1, 2003, that involve claims for asbestos- or silica-related injuries, to the extent permitted by chapter 90 of the civil practice and remedies code.

Id. 13.1(b). Rule 13.3 establishes a procedure for parties to make a request that related cases filed on or after September 1, 2003, be transferred to a pretrial court. If the MDL Panel determines transfer is appropriate, cases are deemed transferred to the pretrial court when a notice complying with the rules is filed with both the trial court and the pretrial court. Id. 13.5(a).

After the initial transfer order is issued, a party may transfer other related cases as tag-along cases.3 Rule 13.5(e) makes it easy to transfer a tag-along case to the pretrial court by simply filing a notice complying with rule 13.5(a). See id. 13.5(e). The tag-along case is then automatically "deemed" transferred. See id. Once a tag-along case has been transferred to the pretrial court, "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." Id. An order granting or overruling such a motion may be appealed to the MDL Panel. Id.

A separate rule governs the transfer to a pretrial court of claims for asbestos- or silica-related injuries that were filed before September 1, 2003.4 See id. 13.11; In re Fluor Enters., Inc., 186 S.W.3d 639, 644 (Tex.App.Austin 2006, orig. proceeding) (section 90.010 creates a separate mechanism for transferring cases filed before September 1, 2003 to pretrial court). In order to transfer an asbestos- or silica-related case that was filed before September 1, 2003, to an existing pretrial court, a party must file a "notice of transfer under section 90.010(b)." Tex.R. Jud. Admin 13.11. Rule 13.11 specifies the requirements of such a notice and states that a case is deemed transferred when the notice is filed with the trial court. See id. 13.11(c), (e). Although the rule contains no specific procedure for objecting to the transfer, it clearly anticipates a request for remand by stating, "If the pretrial court remands the case to the trial court, the pretrial court may order that costs be allocated between the parties in a way that encourages just and efficient compliance with this rule, and may award appropriate attorney fees." Id. 13.11(i).

Chapter 90 of the civil practice and remedies code works in conjunction with rule 13.11. Section 90.010(a) exempts cases raising asbestos- or silica-related injuries filed before September 1, 2003, from the MDL rules if a detailed medical report is served on the defendant on or before November 30, 2005. See Tex. Civ. Prac. & Rem.Code Ann. 90.010(a)(2) (West Supp. 2005) (MDL rules apply unless claimant serves report complying with section 90.003 or 90.004). If a claimant fails to serve a report complying with sections 90.003 or 90.004 on or before November 30, 2005, the defendant may file a notice of transfer to the pretrial court. See id. 90.010(b); Tex.R. Jud. Admin. 13.11(c). If the pretrial court determines that a proper report was timely served, then the pretrial court shall remand the case to the trial court. See Tex. Civ. Prac. & Rem.Code Ann. 90.010(b).

Jurisdiction of MDL Panel

GlobalSantaFe argues that the MDL Panel has jurisdiction to review the pretrial court's remand order because Lopez's case is a tag-along case transferred and remanded pursuant to rule 13.5(e). See Tex.R. Jud. Admin. 13.5(e) (remand on grounds that it is not a tag-along case may be appealed to MDL Panel). Lopez responds that the pretrial court did not remand his case on the ground that it is not a tag-along case, the only remand order over which this Panel has jurisdiction under 13.5(e). Lopez insists that this claim for asbestos- and silica-related injuries, filed before September 1, 2003, was transferred to the MDL pretrial court under rule 13.11.5 Lopez further notes that rule 13.11, unlike rule 13.5(e), does not authorize the MDL Panel to review any remand order of asbestos- and silica-related claims filed before September 1, 2003.

Two Distinct Mechanisms for Transfer

To determine if we may hear this appeal, we must harmonize the two statutes providing for multidistrict litigation and the various sections of rule 13, as initially drafted and as amended. See Tex. Gov't Code Ann. 311.021(2), .025(b) (West 2005); Lufkin v. City of Galveston, 63 Tex. 437, 439 (1885) ("in the construction of constitutions and statutes . . . the whole instrument must be taken together and the whole scheme had in view by the law-making power must be understood and carried out"); Teacher Ret. Sys. v. Cottrell, 583 S.W.2d 928, 935 (Tex.Civ.App.—Austin 1979, writ ref'd n.r.e.). We hold that the statutes and rule 13's governing procedures create two distinct mechanisms for transferring cases to an existing pretrial court. Rule 13.5(e) provides for the transfer of tag-along cases and states, "The order of the pretrial court may be appealed to the MDL Panel by a motion for rehearing filed with the MDL Panel Clerk." Id. However, this rule applies only to cases filed on or after September 1, 2003.

A second, more specific rule was added in 2005 to permit the transfer of cases involving certain claims for asbestos- or silica-related injuries filed before September 1, 2003. See id. 13.11 (titled "Civil Actions Filed Before September 1, 2003, Involving Claims for Asbestos- and Silica Related Injuries"); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex.2000) (traditional statutory construction principle that specific statute controls over more general). Rule 13.11 addresses asbestos- and silica-related cases that by definition involve common issues of fact and sets forth a procedure for transferring these cases to the pretrial court. See Tex.R. Jud. Admin 13.11. These rule 13.11 referrals to a pretrial court require the resolution of questions of law regarding the timeliness and adequacy of reports mandated by chapter 90 of the civil practice and remedies code, not questions of fact as to whether the cases are sufficiently related to be tag-along referrals under rule 13.5(e). Although the rule clearly allows for a remand of improperly transferred cases, see id. 13.11(i), there is no grant of authority in the rule or chapter 90 for the MDL Panel to review the remand of a rule 13.11 referral.

Thus, Rule 13 clearly creates two distinct mechanisms for transferring cases to an existing MDL pretrial court. Cases filed on or after September 1, 2003, may be transferred as tag-along cases under rule 13.5(e) and the MDL Panel may review the pretrial court's order granting or denying a remand. Cases involving claims for asbestos- or silica-related injuries filed before September 1, 2003, may be transferred pursuant to the separate mechanism set forth in rule 13.11 and chapter 90 of the civil practices and remedies code, but the rule is silent with regard to an appeal.

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