In re Van Waters & Rogers, Inc.

• Decision Date: 03 September 2004
• Docket Number: No. 03-0777.,03-0777.
• Citation: 145 S.W.3d 203
• Parties: In re VAN WATERS & ROGERS, INC., Relator.
• Court: Texas Supreme Court

145 S.W.3d 203

In re VAN WATERS & ROGERS, INC., Relator.

No. 03-0777.

Supreme Court of Texas.

September 3, 2004.

Appeal from the 370th Judicial District Court, Hidalgo County, Noe Gonzalez, J Lansford O. Ireson, Gina Lucero Miller, Ireson & Weizel, P.C., Karen K. Maston, Baker & Botts, L.L.P., Houston, Eduardo R. Rodriguez, Rodriguez, Colvin, Chaney & Saenz, L.L.P., Brownsville, James L. Moore, Baker & Hostetler, L.L.P., Houston, E. James Rausch, Rausch Law Office, Granbury, James B. Galbraith, McLeod Alexander Powel & Apffel, P.C., Galveston, W. Wendell Hall, Robert G. Newman, Fulbright & Jaworski L.L.P., San Antonio, Bradley A. Jackson, Ben L. Reynolds, Royston Rayzor Vickery & Williams, L.L.P., Houston, William A. Abernethy, Meredith Donnell & Abernethy, P.C., Corpus Christi, Adrian Rafael Martinez, Meredith Donnell & Abernethy, P.C., McAllen, Miller Meredith, Corpus Christi, Arnulfo M. Acosta, Law Office of Arnulfo Acosta Pharr, Arthur R. Almquist, Mehaffy & Weber, P.C., Houston, Kay Andrews, Brown McCarroll, LLP, Austin, Robert Valadez, Shelton & Valadez, P.C., San Antonio, G. Don Schauer, Schauer & Simank, P.C., Corpus Christi, Michael M. Gibson, Bayko Gibson Carnegie Hagan Shoonmaker & Meyer LLP, Houston, TX, for other interested parties.

Joseph A. Garnett, Sheehy Serpe & Ware, P.C., Houston, Marcy H. Greer, Fulbright & Jaworski L.L.P., Norton A. Colvin Jr., Rodriguez Colvin, Chaney & Saenz, L.L.P., Brownsville, and Andrew C. Schirrmeister III, Schirrmeister Ajamie, L.L.P., Kelly Dick Brown, Crain Caton & James, and Robert E. Morse III, Crain Caton & James, P.C., Robert Scott, Abrams Scott & Brickley, L.L.P., Houston, Lisa Ann Shub, Robert G. Newman, Rosemarie Kanusky, Fulbright & Jaworski L.L.P., San Antonio, TX, for Relator.

Francisco J. Rodriguez, Rodriguez Tovar & De Los Santos, LLP, Keith C. Livesay, Livesay Law Office, McAllen, TX, for Respondent.

PER CURIAM.

The issue in this mandamus proceeding is whether the trial court erroneously consolidated for trial the workplace toxic tort claims of twenty plaintiffs against nine defendants. Because we hold that the trial court abused its discretion and the defendants have no adequate remedy by appeal, we conditionally grant mandamus relief.

The underlying litigation was filed in 1994 by 454 plaintiffs against approximately fifty-five defendants. The plaintiffs are former employees of the Parker-Hannifin Corporation who worked at Parker's O-ring seal manufacturing plant in McAllen, Texas. The plaintiffs, all represented by the same counsel, allege injuries caused by workplace exposure to a combination of chemicals and products — to which they refer to as a "toxic soup." Plaintiffs allege that the chemicals were made or supplied to the plant by the defendants. The trial court consolidated the claims of twenty of the plaintiffs and set the claims for trial. Nine defendants seek relief from the consolidation order.

Each of the plaintiffs in the twenty consolidated cases was employed at the McAllen plant when it closed its doors in 1992, but the plaintiffs' start dates at the plant range from 1975 to 1988. The twenty plaintiffs held a combined thirty-five different jobs during their tenures at the plant, and most of the jobs were shared by only a few plaintiffs. No single job was held by all twenty plaintiffs. The Parker-Hannifin facility was also comprised of several buildings, and workers with different jobs worked in different areas of the plant. Employees were often segregated from other areas, and the plant had multiple air conditioning systems and downdraft tables that limited chemical exposure to particular areas. The twenty plaintiffs allege an aggregate of more than fifty-five injuries or symptoms, many of which are not shared, but the most common being headaches, eye irritation, nose irritation, skin irritation, and throat irritation.

This is the third petition for writ of mandamus we have considered in this case. In 1997, the trial court issued three orders: 1)consolidating twenty plaintiffs for trial; 2)limiting the defendants' discovery to those twenty plaintiffs and abating all discovery for the remaining 434 plaintiffs; and 3)denying the defendants' request to compel an answer to an interrogatory that would have revealed all physicians who linked any of the plaintiffs' injuries to exposure to the defendants' products. The defendants sought mandamus relief regarding each of the three orders. We denied all relief without prejudice to give the trial court an opportunity to reconsider the discovery abatement order in light of In re Colonial Pipeline Co.,¹ which was issued while the petition was pending.² We also suggested that the trial court reconsider the interrogatory order should it determine that discovery should not be abated.³ We did not address the consolidation issue at that time.

The defendants asked the trial court to reconsider the previous orders in light of In re Colonial Pipeline Co. After almost a year, the trial court had not ruled on the motion, but had allowed plaintiffs' counsel to submit a different group of plaintiffs for trial. The defendants again sought mandamus relief, alleging insufficient discovery and improper consolidation. The court of appeals granted partial relief as to the defendants' request that plaintiffs supplement their answers to the interrogatory concerning their physicians.⁴ This Court granted further relief by directing the trial court to vacate its orders that abated discovery and allowed the plaintiffs to select the claims to be tried first.⁵ With regard to the consolidation issue, we explained that the trial court should consider the factors established in In re Ethyl Corp.⁶ and In re Bristol-Myers Squibb,⁷ and could do so only after adequate discovery was completed.⁸

Plaintiffs subsequently moved to consolidate for trial the original twenty plaintiffs from the first mandamus. A sixteen-page chart of the plaintiffs and their job histories and symptoms was submitted in support of the motion. The defendants objected to the nominated group of plaintiffs, arguing that only one plaintiff should be tried at a time. The trial court granted the plaintiffs' motion and issued the current consolidation order, stating that the court was "of the opinion the trial Plaintiffs ... [meet] the criteria enunciated by the Supreme Court" and should be consolidated for trial. The defendants requested relief from the court of appeals, which was denied in a short per curiam opinion.

In determining whether various claims are appropriate for consolidation, "the dominant consideration in every case is whether the trial will be fair and impartial to all parties."⁹ Consolidation should be avoided if it would cause "`confusion or prejudice as to render the jury incapable of finding the facts on the basis of the evidence.'"¹⁰ If an injustice will result from consolidated trials, a trial court "has no discretion to deny separate trials."¹¹

To aid in the determination of whether consolidation is appropriate in a mass tort case alleging exposure in a workplace, this Court in Ethyl adopted the "Maryland factors": (1) whether the plaintiffs shared a common work site; (2) whether the plaintiffs shared similar occupations; (3) whether the plaintiffs had similar times of exposure; (4) whether the plaintiffs have a similar type of disease; (5) whether plaintiffs are alive or deceased; (6) the status of discovery; (7) whether all plaintiffs are represented by the same counsel; (8) the type of cancer alleged, if any; and (9) the type of products to which the plaintiffs were exposed.¹² In Ethyl we explained the considerations in applying these factors:

As the number of Maryland factors that different cases have in common increases, the number of those claims that can be tried together may increase. But there is no mathematical formula, and some of the Maryland factors should be given more weight than others. The maximum number of claims that can be aggregated is not an absolute, and the particular circumstances determine the outer limits beyond which trial courts cannot go.¹³

A trial court must also "weigh the risk of prejudice or confusion against economy of scale."¹⁴

Consolidation is not improper merely because some factors indicate that dissimilarities exist within the consolidated claims. Rather, it is vital that a party seeking relief from a consolidation order establish how the differences among the consolidated claims will materially affect the fairness of a trial.¹⁵

A further consideration is the maturity of the alleged tort.¹⁶ In In re Bristol-Myers Squibb, we instructed lower courts to "proceed with extreme caution" when consolidating claims of immature torts.¹⁷ A tort is mature only when "`there has been full and complete discovery, multiple jury verdicts, and a persistent vitality in the plaintiffs' [contentions].'"¹⁸ Because no "toxic soup" case has ever been tried or appealed in Texas, the tort is immature. Hence, the trial court has less discretion to consolidate dissimilar claims and must proceed with extreme caution. With this in mind, we turn to the application of the Maryland factors to this case.

1. Common Work Site

Plaintiffs argue that each of the plaintiffs worked at the same facility and, therefore, shared a common work site. The defendants counter that the plant was large and had several separate work areas — even separate buildings — that constitute separate work sites. Determining what constitutes a common work site does not turn merely on location, but on the similarity of exposures that occurred at a particular location in order to simplify proof of product identification.¹⁹ Treating the Parker-Hannifin facility as a single work site would greatly complicate product identification in this case because the evidence shows that different mixtures of chemicals were used in different areas of the plant. Use of multiple air conditioning and ventilation systems and downdraft tables reduced the...