Union Carbide Corp. v. Synatzske

• Decision Date: 28 June 2012
• Docket Number: No. 01–09–01141–CV.,01–09–01141–CV.
• Citation: 386 S.W.3d 278
• Parties: UNION CARBIDE CORPORATION, Appellant v. Daisy E. SYNATZSKE and Grace Annette Webb, Individually and as Representatives and Co–Executrixes of the Estate of Joseph Emmite, Sr., Joseph Emmite, Jr., Dorothy A. Day, Vera J. Gialmalva and James R. Emmite, Appellees.
• Court: Texas Court of Appeals

386 S.W.3d 278

UNION CARBIDE CORPORATION, Appellant

v.Daisy E. SYNATZSKE and Grace Annette Webb, Individually and as Representatives and Co–Executrixes of the Estate of Joseph Emmite, Sr., Joseph Emmite, Jr., Dorothy A. Day, Vera J. Gialmalva and James R. Emmite, Appellees.

No. 01–09–01141–CV.

Court of Appeals of Texas, Houston (1st Dist.).

June 28, 2012.

Recognized as Unconstitutional

V.T.C.A., Civil Practice & Remedies Code §§ 149.001, 149.002, 149.003, 149.004, 149.005, 149.006

Validity Called into Doubt

V.T.C.A., Civil Practice & Remedies Code § 90.010(f)(1)(B)(ii)Sharla J. Frost, James H. Powers, Powers & Frost, L.L.P., Stephen G. Tipps, Baker Botts, L.L.P., Houston, TX, for Appellant.

Sean Higgins, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Troy D. Chandler, Williams Kherkher Hart Boundas, LLP, Richard P. Hogan Jr., Hogan & Hogan, L.L.P., Houston, TX, Audra Merritt Dean, Tori Smith Levine, Dallas, TX, for Appellees.

Panel consists of Justices JENNINGS and SHARP.

EN BANC OPINION ¹

TERRY JENNINGS, Justice.

Appellant, Union Carbide Corporation (“Union Carbide”), has filed a motion for rehearing and for en banc reconsideration of this Court's June 30, 2011 opinion.² A majority of the Court has voted to grant en banc consideration. We withdraw our opinion and judgment of June 30, 2011, and we substitute this opinion and judgment in their place.

In this interlocutory appeal,³ Union Carbide challenges the multi-district litigation (“MDL”) pretrial court's order denying its motion and renewed motion to dismiss ⁴ the claims made against it by appellees, Daisy E. Synatzske and Grace Annette Webb, individually and as representatives and co-executrixes of the estate of Joseph Emmite, Sr., Joseph Emmite, Jr., Dorothy A. Day, Vera J. Gialmalva, and James R. Emmite (collectively, the “Emmites”), for the wrongful death ⁵ of Joseph Emmite Sr. (“Joseph”). Joseph's death, the Emmites allege, was caused by his exposure to asbestos when he worked for Union Carbide at its Texas City facility. In five issues, Union Carbide contends that the MDL pretrial court erred in denying its motion and renewed motion to dismiss the Emmites' asbestos-related injury claims on the grounds that the Emmites, without a motion or a showing of good cause, did not timely serve Union Carbide with a physician report, which is required to bring such claims pursuant to Chapter 90 of the Texas Civil Practice and Remedies Code,⁶ and none of the physician reports that the Emmites served upon Union Carbide satisfy various requirements of Chapter 90, including the requirement that such a report “verify” that “pulmonary function testing” had been performed on Joseph and the physician making the report had interpreted the pulmonary function testing.⁷ The Emmites contend that the requirement of such a verification of pulmonary function testing to pursue their asbestos-related injury claims under Chapter 90, which became effective after Joseph had been exposed to asbestos and died, violates the Texas Constitution's prohibition against retroactive laws.⁸

We affirm the order of the MDL pretrial court.

I. Background

In their original petition, filed on June 7, 2007, the Emmites allege that Joseph, while employed by Union Carbide from 1940 to 1975, was exposed to asbestos and, as a result of this exposure, he contracted asbestosis and died on June 15, 2005. The Emmites attached to their original petition a physician report authored by Dr. R. Kradin.⁹

Union Carbide moved to dismiss the Emmites' claims, asserting that they had failed to serve it with an adequate physician report.¹⁰ In response, the Emmites served upon Union Carbide a second physician report, dated August 9, 2007, authored by Dr. J.D. Britton. On September 14, 2007, during the MDL pretrial court's hearing on Union Carbide's motion, the Emmites asked the court to compel Union Carbide to produce from its personnel files Joseph's medical records. The Emmites sought to obtain the results of any pulmonary function testing that Union Carbide had performed on Joseph at the time that he had been employed by Union Carbide. At the end of the hearing, the court, stating that it considered this case to be “exceptional,” orally denied Union Carbide's motion to dismiss “for good cause.” The court instructed the Emmites to prepare an order denying Union Carbide's motion and setting forth its finding that their case involved an “exceptional circumstance.” ¹¹ After denying Union Carbide's motion to dismiss, the court did not address the Emmites' request to compel Union Carbide to produce Joseph's medical records.

On October 1, 2007, Union Carbide moved for reconsideration of the MDL pretrial court's oral ruling, and, at the beginning of the November 30, 2007 hearing on the motion, the court stated that it would not sign a written order denying Union Carbide's motion to dismiss. In fact, the court made it clear to the parties that it did not intend to sign an appealable interlocutory order. ¹² After Union Carbide stated that this was “fine,” the parties then discussed the Emmites' pending efforts to apply for an amended certificate of Joseph's death. The Emmites represented that Dr. S. McClure, on the day before the hearing, had signed an application for an amended death certificate that would support a finding that asbestosis was at least one cause of Joseph's death. Union Carbide complained that the affidavit that the Emmites proffered to substantiate this claim contained hearsay and it had not had the opportunity to depose McClure. UnionCarbide then placed in the record additional medical records for Joseph and his death certificate. The court stated that it would keep the record open for six weeks and, if the Emmites filed an amended death certificate showing that asbestosis was a cause of Joseph's death, the court would deny Union Carbide's motion.

On January 14, 2008, the Emmites served, for a second time, Union Carbide with the August 9, 2007 physician report of Dr. Britton, and indicated that, given the “extraordinary circumstances” of this case, they intended to rely upon it as their required physician report.¹³ On January 18, 2008, the MDL pretrial court conducted a hearing, at which the Emmites expressed, consistent with their recent service of Britton's report upon Union Carbide, their intent to rely upon it as their required physician report. The Emmites explained that they were still trying to obtain a certified copy of Joseph's amended death certificate, and they requested “a full evidentiary hearing” to present witnesses and additional evidence.¹⁴ The Emmites argued that their case presented an “extraordinary circumstance” because Union Carbide had produced to them Joseph's pulmonary function testing from when he had been a Union Carbide employee. The court granted the Emmites' request for a full evidentiary hearing, and it granted Union Carbide's request to depose Dr. McClure, who had signed Joseph's amended death certificate.

Although Union Carbide did not depose Dr. McClure until September 10, 2009, which was over one and one-half of a year after the MDL pretrial court's January 2008 hearing, a substantial portion of this delay was attributable to the fact that McClure had been seriously injured in an accident. And when Union Carbide did obtain McClure's deposition, she still suffered from some impairment due to her injuries. Shortly after obtaining McClure's deposition testimony, Union Carbide, on October 19, 2009, filed a “renewed” motion to dismiss the Emmites' claims.

In their November 5, 2009 response to the renewed motion to dismiss, the Emmites argued that Union Carbide had waived its right to seek dismissal because the parties had engaged in significant discovery and the motion was untimely filed. Moreover, the Emmites produced an October 28, 2009 physician report, authored by Dr. J. Prince, which they offered as an addendum to Prince's June 12, 2008 letter report that the Emmites had previously given to Union Carbide in the discovery process.

At its subsequent hearing on Union Carbide's renewed motion to dismiss, the MDL pretrial court instructed Union Carbide to file its written objections to Dr. Prince's report. The court explained that it wanted a complete record, including a copy of Prince's deposition, which had been obtained before the hearing. Pursuant to the court's instructions, Union Carbide filed its written objections to Prince's report. The Emmites then filed their response to Union Carbide's objections and Prince's December 2009 amended report, which had been prepared in an effort to respond to some of Union Carbide's written objections.

In his amended report, Dr. Prince, who had been Joseph's pulmonologist during a 2005 hospital visit, stated, in relevant part, that he had physically examined Joseph and provided him with a pulmonary consultation and treatment. Prince noted that Joseph was 85 years old at the time and had a medical history of benign prostatic hypertrophy, osteoarthritis, and dementia. Joseph, who also had a remote history of smoking cigars, had been brought to the emergency room “with a complaint of bilateral lower extremity edema as well as difficulty ambulating.” Prince took an occupational exposure history from Joseph, who told Prince that he had worked as an insulator at Union Carbide for many years and “had a possible diagnosis of asbestosis.” Prince also noted that Joseph's chest exam revealed “diminished breath sounds at the right lung base with associated dullness to percussion.” Moreover, Joseph was “somewhat confused” and “unable to support his own weight while” standing or sitting. The hospital admitted Joseph with pneumonia, and Prince noted “the presence of bilateral calcified pleural plaques consistent with a prior exposure to asbestos.” After conducting a computed tomography scan of Joseph's chest and administering other diagnostic tests, Prince diagnosed Joseph as suffering from “pulmonary asbestosis.” ¹⁵ Prince further...