Kan. City S. Ry. Co. v. Oney

• Decision Date: 20 September 2012
• Docket Number: No. 14–11–00815–CV.,14–11–00815–CV.
• Citation: 380 S.W.3d 795
• Parties: The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Ronald K. ONEY, Individually and as Representative of the Estate of Daniel D. Oney, Appellee.
• Court: Texas Court of Appeals

380 S.W.3d 795

The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant,

v.Ronald K. ONEY, Individually and as Representative of the Estate of Daniel D. Oney, Appellee.

No. 14–11–00815–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 19, 2012.

Concurring and Dissenting Opinions on Denial of Rehearing En Banc Sept. 20, 2012.

Jim Mitchell Smith, Houston, for Appellant.

Mark T. Berry, Houston, for Appellee.

Panel consists of Justices SEYMORE, BOYCE, and MIRABAL.^*

OPINION

CHARLES W. SEYMORE, Justice.

Appellee, Ronald K. Oney, Individually and as Representative of the Estate of Daniel D. Oney, brought a claim under the Federal Employers' Liability Act (“FELA”) against The Kansas City Southern Railway Company (“KCSR”). KCSR filed a motion to dismiss based on appellee's failure to serve medical reports under Chapter 90 of the Texas Civil Practice and Remedies Code. ¹ The multidistrict litigation (“MDL”) court handling pretrial issues in this case denied KCSR's motion, determining appellee is not required to comply with Chapter 90 report requirements. In a single issue, KCSR contends the trial court erred by denying the motion to dismiss. We affirm.

I. Background

On March 14, 2011, appellee filed his original petition, alleging the following facts. From 1971 until 1994, Daniel D. Oney (“the decedent”) was employed by KCSR, a railroad engaged in interstate commerce. During this employment, the decedent “was exposed to harmful and/or hazardous substances, including known human carcinogens, such as asbestos, silica, and diesel exhaust.” As a result of this exposure, the decedent was diagnosed with lung cancer in April 2010 and died approximately one month later. Appellee asserted a claim under FELA because of KCSR's involvement in interstate railroad commerce.²

KCSR answered appellee's suit and filed a motion to transfer the case to the asbestos MDL pretrial court. According to KCSR, its answer triggered a thirty-day deadline for the claimant to furnish medical reports under Chapter 90. Succinctly, sections 90.003 and 90.004, respectively, require a claimant alleging asbestos-related and silica-related injuries to serve reportsin which a qualified physician verifies that the person alleged to have been exposed to asbestos or silica has been diagnosed with an injury caused by that exposure. SeeTex. Civ. Prac. & Rem.Code Ann. §§ 90.003, 90.004. It is undisputed appellee did not timely serve reports to KCSR. Pursuant to section 90.007, KCSR filed a motion to dismiss appellee's asbestos-related and silica-related claims based on appellee's failure to serve the reports required under Chapter 90. See id.§ 90.007 (providing procedure for motion to dismiss). As discussed in more detail below, the filing of a section 90.007 motion to dismiss stays all proceedings until the motion is resolved by the court. Id.§ 90.007(d). Appellee responded to the motion by contending Chapter 90 report requirements and dismissal provision are preempted by FELA.

On August 15, 2011, appellee filed an agreed motion to compel discovery from the hospital maintaining the decedent's pathology. On August 17, 2011, appellee filed a supplemental response to KCSR's motion to dismiss, arguing that “discovery in this case is in its infancy” and his experts needed an opportunity to review pathology evidence before providing reports. On August 26, 2011, the MDL court signed an order compelling the hospital to provide the requested pathology evidence. On the same date, the trial court also signed an order denying KCSR's motion to dismiss, expressly concluding that appellee is not required to comply with Chapter 90 report requirements.

II. Jurisdiction

As an initial matter, appellee contends we lack jurisdiction to consider this interlocutory appeal. Generally, a party may appeal only a final judgment. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001). However, a party may appeal an interlocutory order in which the trial court denies a motion to dismiss filed under section 90.007. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(11) (West Supp. 2011).

Apparently, appellee argues section 51.014(a)(11) does not apply because Chapter 90 is preempted by FELA. Thus, according to appellee, KCSR's motion to dismiss was, in actuality, a motion to dismiss under FELA, not section 90.007. We disagree. In its motion to dismiss, KCSR specifically requested dismissal pursuant to section 90.007. Because the Texas Legislature has authorized interlocutory appeals from a trial court's denial of a section 90.007 motion to dismiss, we have jurisdiction to consider this appeal.³

III. Federal Preemption

In a single issue, KCSR contends the trial court erred by denying KCSR's motion to dismiss and concluding that appellee is not required to comply with Chapter 90 report requirements because they are preempted by FELA.

A. Conflict Preemption

Federal preemption of state law is grounded in the Supremacy Clause of the United States Constitution, which provides that “the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2; MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 481 (Tex.2010). Although there are several species of preemption, we are concerned with that type of “conflictpreemption” under which state law is preempted when it stands as an obstacle to the accomplishment and execution of congressional objectives. See Hinton, 329 S.W.3d at 482. Whether substantive or procedural, state law is preempted when it interferes with or restricts remedies under a federal statute. See Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). “[W]here state courts entertain a federally created cause of action, the ‘federal right cannot be defeated by the forms of local practice.’ ” Id. (quoting Brown v. W. Ry. of Ala., 338 U.S. 294, 296, 70 S.Ct. 105, 94 L.Ed. 100 (1949)). The relative importance to the state of its own law is immaterial when there is a conflict with a valid federal law because any state law, however clearly within a state's acknowledged power, which interferes with or is contrary to federal law must yield. Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). State procedural rules may not be used to impose unnecessary burdens upon rights of recovery authorized by federal law. See Brown, 338 U.S. at 298, 70 S.Ct. 105.

B. Federal Employers' Liability Act (FELA)

“Before FELA was enacted, the harsh and technical rules of state common law had made recovery difficult or even impossible for injured railroad workers.” CSX Transp., Inc. v. McBride, ––– U.S. ––––, 131 S.Ct. 2630, 2638, 180 L.Ed.2d 637 (2011) (citation omitted). “[D]issatisfied with the [railroad's] common-law duty, Congress sought to supplan[t] that duty with [FELA's] far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence.” Id. (citations omitted). FELA was enacted to “shif[t] part of the human overhead of doing business from employees to their employers.” Id. at 2636 (citations omitted).

Under FELA,

Every common carrier by railroad while engaging in [interstate] commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

45 U.S.C.A. § 51. FELA affords claimants the right to have causation of their injuries determined by the simple test of whether the injuries resulted “in whole or in part” from the carrier's negligence, which is far less burdensome than the usual proximate-cause test applied in common-law negligence cases. Dutton v. S. Pac. Transp., 576 S.W.2d 782, 784 (Tex.1978). Additionally, “In order to further FELA's humanitarian purposes, Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers,” such as the fellow-servant rule, contributory negligence, and assumption-of-the-risk doctrine. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542–43, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.” 45 U.S.C.A. § 55. Federal and state courts have concurrent jurisdiction under FELA. 45 U.S.C.A. § 56.

“It is now well-settled that Congress explicitly directed that FELA wholly preempt state-law remedies for railway employees injured in the course of employment when any part of that employment furthers interstate commerce.” Rogers v. Consol. Rail Corp., 948 F.2d 858, 860 (2d Cir.1991). “As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985); see also Houghton v. Port Terminal R.R. Ass'n, 999 S.W.2d 39, 43 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Substantive rights governed by FELA cannot be interfered with, lessened, or destroyed by a state rule of practice or procedure. Scott v. Atchison, T. & S.F.R. Co., 572 S.W.2d 273, 281 (Tex.1978) (op. on rehearing) (citing Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 360–61, 77 S.Ct. 840, 1 L.Ed.2d 889 (1957) (per curiam)).

C. Texas Civil Practice and Remedies Code Chapter 90: Claims Involving Asbestos and Silica

In 2005, Chapter 90 was signed into law, establishing the method for handling a pretrial docket for asbestos-related and silica-related claims and prescribing reporting requirements and medical criteria by which impaired and unimpaired cl...