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Adame v. 3M Co.

Court of Appeals of Texas, First District

August 22, 2019

ADAN G. ADAME, ROBERT H. ARISPE, HARVEY EDWARD ARNOLD, HERMON HARVEY ARNOLD, LUCIANO BARRIENTEZ, HOMER L. BATCHELOR, TOMAS BENITEZ, DELBERT RAY BLUNDELL, MELVIN BRIONES, TROY BRITT, RAYMOND H. BUTTERFIELD, GUADALUPE CALVO JR., RICHARD F. CAPSON, MERCEDES CASTILLO, IGNACIO CAVAZOS, HECTOR A. CHAPA, HUMBERTO CHAPA, REX CICERO, PALFREY COLLINS, GLENN COURMIER, EDDIE M. CROSS, FRANCISCO DABDUB, CAROL GENE DABNEY, STEVE DAVIS, NOE DE LA CRUZ, JOSE G. DELAPAZ, JOSE DUENES, JESSIE DUNCAN, RUDY ENCINAS, JOSE ESQUIVEL, JOSE T. FAJARDO, BENJAMIN D. FIELDS, FRANK FRANCO, JESUS CANTU GARCIA JR., PABLO G. GARCIA SR., MICHAEL GARY, ALONZO GARZA, HERMILO GARZA SR., HOMERO GARZA, OSCAR GARZA JR., PAUL D. GAWLIK, MANUEL B. GONZALES, BACILIO M. GUZMAN, CHESTER HARRINGTON, NORRIS G. HAWLEY, GERALD HENRY, JOSE A. HERNANDEZ, RIGOBERTO HERNANDEZ, C. DELL HODGE JR., DAVID HOLLINGSWORTH, KENNETH W. HOUFF, ELMER JAMISON, RONNIE L. JOHNSON, CURTIS JONES, JOE KOENIG, ELIAS LEAL, ROBERT LEMOS, JOSE G. LONGORIA, ANTONIO LOPEZ, CELSO LOPEZ, ARRON LUKE, GEORGE MCFARLAND, ERNEST MECHELL, ROBERT MECHELL, JOSE MEZA, CLYDE T. MILLER, KEITH MOORE, JUAN MORALES, TOMAS MORIN, ADALBERTO MUNIZ, DANIEL NAVEJAR, ESTEBAN NIETO, DANIEL OCHOA, MARCOSORTIZ, JIMMY PATTERSON, MANUEL C. PAZ SR., ROBERTO PAZ, JUAN R. PEREZ, OSCAR PEREZ, VICTOR C. PEREZ, CARL PRENTICE, RENE R. RAMIREZ, RAY CHARLES REDMON, BILLY W. RICHARDSON, JOSE RIOS, FLOYD H. RODGERS, JOSE Z. ROJAS, GEORGE SAENZ, HECTOR SALAZAR, GUADALUPE C. SERNA, JESUS SOLIZ, HOWARD LEROY SPEARS, ROGER SPENCER, CARROLL G. STARKS, WILLIAM T. TERRAL, CURTIS THOMAS, MARTIN TORRES, TEODORO TOVAR, JOSE LUIS URESTI, ENRIQUE G. VILLARREAL JR., CLIFTON WEITZEL, ROBERT F. WEITZEL, JOSEPH H. WHEELER, JAY C. WHITLOCK, HERBERT WHITMIRE, and ABELARDO ZAMBRANO, Appellants
v.
3M COMPANY F/K/A MINNESOTA MINING AND MANUFACTURING COMPANY; AEARO COMPANY; AIR EQUIPMENT & REPAIR, INC.; AIR LIQUIDE AMERICA L.P.; AIRTROL SUPPLY, INC.; ALAMO CEMENT COMPANY; AMCOL INTERNATIONAL CORPORATION; AMERICAN COLLOID COMPANY; AMERICAN OPTICAL CORPORATION; AMF INCORPORATED & MINSTAR, INC.; ASHLAND CHEMICAL, INC.; BACOU-DALLOZ SAFETY, INC. F/K/A DALLOZ SAFETY, INC. F/K/A WGM SAFETY CORPORATION D/B/A WILLSON SAFETY PRODUCTS; BARRETTS MINERALS INC.; BARRY & BARRY SAND COMPANY, INC.; BLACK & DECKER (U.S.), INC.; BOB SCHMIDT, INC.; BONDO CORPORATION; CEL INDUSTRIES, INC.; CENTRAL READY MIX CONCRETE; CHEVRON U.S.A. INC. F/K/A GULF OIL; CHICAGO PNEUMATIC, INC.; CITGO PETROLEUM CORPORATION; CITGO REFINING AND CHEMICALS COMPANY, L.P.; CLEMCO INDUSTRIES CORPORATION HANSON AGGREGATES LLC SUCCESSOR BY MERGER TO PIONEER INTERNATIONAL (USA), INC. SUCCESSOR BY MERGER TO HANSON AGGREGATES, INC. F/K/A HANSON AGGREGATES CENTRAL, INC. F/K/A PIONEER SOUTH CENTRAL, INC. F/K/A PIONEER CONCRETE OF TEXAS, INC.; CORPUS CHRISTI EQUIPMENT COMPANY; DEVILBISS OR THE DEVILBISS COMPANY (SOMETIMES NAMED AS RANSBURG CORPORATION, ITW FINISHING LLC OR ILLINOIS TOOL WORKS INC.); E. I. DU PONT DE NEMOURS; E.D. BULLARD COMPANY, INC.; EASTERN SAFETY EQUIPMENT CO., INC.; EL PASO SAND & TRUCKING; EMPIRE ABRASIVE EQUIPMENT COMPANY, L.P.; EMPIRE ABRASIVE EQUIPMENT CORPORATION; ENCON SAFETY PRODUCTS, INC.; ESPEY SILICA SAND COMPANY, INC.; FAIRMOUNT MINERALS, LTD.; FERRO ENGINEERING DIVISION OF ON MARINE SERVICES; FLEX-KLEEN; FLEXO PRODUCTS, INC.; GARDNER DENVER, INC.; GENERAL PATTERN COMPANY (SUCCESSOR-BY-MERGER TO GENERAL FOUNDRY PRODUCTS CORP.); GLENDALE TECHNOLOGIES, INC.; GRANITE CITY TOOLS; HAMILTON SUNDSTRAND; HANSON AGGREGATES WEST, INC.; HEXION INC. F/K/A MOMENTIVE SPECIALTY CHEMICALS F/K/A HEXION SPECIALTY CHEMICALS, INC. AND F/K/A BORDEN CHEMICAL, INC.; HUMBLE SAND & GRAVEL, INC.; IDEAL BASIC INDUSTRIES, INC.; INDUSTRIAL HOLDINGS CORPORATION F/K/A THE CARBORUNDUM COMPANY; INGERSOLL-RAND COMPANY; JOBE CONCRETE PRODUCTS; KELCO SALES & ENGINEERING CO., A DIVISION OF POLLEY, INC.; KEY HOUSTON, A DIVISION OF JACKSONVILLE SHIPYARDS, INC.; KEY HOUSTON, INC., A DIVISION OF JACKSONVILLE SHIPYARDS, INC.; LOCKHEED MARTIN CORPORATION; LOGAN & WHALEY COMPANY; LONE STAR INDUSTRIES, INC.; LOUIS M. GERSON COMPANY, INC.; MARTINDALE ELECTRIC COMPANY; MILTON ROY; MINE SAFETY APPLIANCES; MISSISSIPPI VALLEY SILICA COMPANY, INC.; MOLDEX-METRIC, INC.; NORCROSS; NORTH SAFETY PRODUCTS; OGLEBAY NORTON; P.K. LINDSAY COMPANY; PANGBORN CORPORATION; PARMELEE INDUSTRIES, INC.; PAULI & GRIFFIN COMPANY; PORTER WARNER INDUSTRIES, INC.; PREMIER REFRACTORIES, INC., IMPROPERLY NAMED AND SERVED AS AMERICAN PREMIER, INC. F/K/A PREMIER REFRACTORIES AND CHEMICALS, INC.; PROTECH COATINGS, INC. F/K/A FOUNDRY SPECIALTIES, INC.; PULMOSAN SAFETY EQUIPMENT CORPORATION; QUIKRETE; RACAL HEALTH AND SAFETY, INC.; RUEMELIN IN RECEIVERSHIP; SABINE PROPELLER & MARINE SERVICE COMPANY; SAINT-GOBAIN ABRASIVES, INC., F/K/A NORTON COMPANY; SCHRAMM, INC.; SCOTT TECHNOLOGIES, INC.; SHREVEPORT RUBBER AND GASKET; SIEBE NORTH; SILICA PRODUCTS, INC.; SLY, INC. F/K/A W. W. SLY MANUFACTURING CO.; SOUTHERN SILICA OF LOUISIANA, INC.; SPECIALTY MINERALS INC.; SPECIALTY SAND COMPANY; SPENCE CONCRETE COMPANY SULLAIR, LLC; SUNDYNE; SURVIVAIR, A DIVISION OF U.S.D. CORPORATION; SURVIVAIR, INC.; TECHNISAND, INC.; TEXAS GASKET; TEXTRON INC.; THE DOW CHEMICAL COMPANY; THE EASTWOOD GROUP INC. D/B/A THE EASTWOOD COMPANY; THE GOODYEAR RUBBER AND TIRE COMPANY; THE HILL AND GRIFFITH COMPANY; THE MORIE COMPANY; THORSTENBERG MATERIALS CO., INC.; TIDE-AIR; TRIANGLE SUPPLY; TRIPLEX, INC.; TRUMAN'S INC.; TWENTIETH CENTURY FOX FILM CORPORATION; TXI OPERATIONS, LP; TYROLIT NORTH AMERICA INC.; U.S. SILICA COMPANY, FORMERLY KNOWN AS PENNSYLVANIA GLASS SAND CORPORATION AND SUCCESSOR IN INTEREST THOUGH MERGER TO OTTAWA SILICA COMPANY; UNIMIN CORPORATION; UNION CARBIDE CORPORATION; VALERO ENERGY CORPORATION; VALLEN CORPORATION; VESUVIUS USA CORPORATION; VULCAN MATERIALS COMPANY; WEDRON SILICA COMPANY, AN OHIO CORPORATION; WESCO; WESCO REFRACTORIES; AND WHEELER PROTECTIVE APPAREL, INC., APPELLEES

          On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2006-76611

          Justice Landau, joined by Chief Justice Radack and by Justices Keyes, Higley, Lloyd, Kelly, Goodman, Hightower, and Countiss.

          OPINION ON EN BANC RECONSIDERATION

          Sarah Beth Landau, Justice

         We grant Appellants' motion for en banc reconsideration. The opinion and judgment issued on August 30, 2018, is hereby withdrawn, and this en banc opinion and judgment are issued in their stead.

         Approximately 20 years ago, there was a significant increase in the number of suits filed in Texas courts alleging injury from silica exposure. In 2005, the Texas Legislature created a Silica multidistrict litigation pretrial docket that established procedures for individual claims to advance to trial.[1]

         Under the provisions of the Silica MDL statute in chapter 90 of the Civil Practice and Remedies Code, each silica claim already pending on August 31, 2005 would remain in the MDL until that particular claimant submitted a medical report complying with certain statutory requirements. If a compliant medical report was submitted and approved by the MDL Court, that claim would then be remanded to the district court for trial. If no medical report was filed, the claim would remain pending in the MDL indefinitely.

         Appellants are 106 sandblasters whose already-pending silica claims were transferred into the MDL once it was formed. Their claims remained pending in the MDL for more than 10 years without medical reports being submitted.

         As originally enacted, the MDL statute had no provision for involuntary dismissal of silica claims that predated the MDL and were later transferred into it; however, the statute was amended in 2013 to allow for the dismissal without prejudice of pre-2005 claims if claimants failed to file qualifying medical reports by a statutorily specified deadline.

         Facing dismissal under the new statutory provision, the sandblasters filed their individual medical reports in 2013. Significantly, these medical reports were not prepared contemporaneously with their filing. Two-thirds of them were prepared before May 2005, which means they were written before enactment of the statute that specifies the required content of a medical report for approval by the MDL Court. The remaining one-third were prepared after the statute was enacted-between mid-2005 and 2008.

         After the sandblasters filed their medical reports, the Silica MDL defendants filed individual and global objections to the medical reports, contending the reports failed to meet various statutory requirements of Chapter 90. The defendants then moved to dismiss all 106 sandblasters' suits for failure to comply with statutory requirements by the deadline specified in the 2013 amendment. The MDL Court sustained almost all objections and dismissed all the sandblasters' claims without prejudice to refiling. The cases were consolidated, and the sandblasters appealed the dismissal of their claims.

         In nine issues, the sandblasters argue that Chapter 90 is unconstitutional. We affirm.

         Background

         A Rule 13 pretrial MDL was created in 2004 when the Judicial Panel on Multidistrict Litigation determined the then-pending 71 suits filed by 453 plaintiffs against 158 defendants involved one or more common questions of fact and transfer would be for the convenience of the parties and witnesses and would promote the just and efficient conduct of the cases. In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 5-9 (Tex. M.D.L. Panel Nov. 10, 2004); see Tex. R. Jud. Admin. 13.

         In 2005, the Legislature enacted Chapter 90 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code § 90.001-.012; Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169. The new legislation created a statutory MDL for silica-related claims. Id. Under the terms of the statute, individual cases were held in the MDL until the plaintiffs submitted medical reports that met all listed statutory requirements. Id. § 90.010(d) (providing for cases to remain in MDL until report is filed); see id. § 90.004 (specifying required content of medical report for approval). After a qualifying medical report was submitted and approved by the MDL Court, a case would be returned to the district courts for trial. Id. § 90.010.

         All 106 of the sandblasters who are appealing dismissal of their suits had a claim pending in the Rule 13 MDL in 2005 when Chapter 90 was enacted. Their claims were then transferred to the statutory Silica MDL where they remained for over 10 years without remand for trial.

         The purpose behind Chapter 90

         The Legislature included official comments when it enacted Chapter 90. Id. § 1, cmts. a-n. According to the official comments, individuals who have been exposed to silica may have "markings on [their] lungs that are possibly consistent with silica exposure, but the individual has no functional or physical impairment from any silica-related disease." Id., cmt. m. The discovery of these markers can trigger a statute of limitations problem for the exposed individuals. Id. Individuals' efforts to avoid limitations problems led to a "crush" of suits being filed in the courts on behalf of workers who have shown some signs of exposure but have "no current impairment and may never have impairment." Id., cmts. g, m.

         The large number of filings has been described as a "situation [that] has reached critical dimensions and is getting worse." Id., cmt. d. To "prevent[] scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to . . . silica but have no functional or physical impairment from . . . silica-related disease," the Legislature enacted Chapter 90, aimed at "protect[ing] the right of people with impairing . . . silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system." Id., cmt. n. Chapter 90 created a bifurcated system to allow those with confirmed impairment to proceed to trial while those without a confirmed impairment would remain in the MDL, without any statute-of-limitations ramifications, until an impairment was confirmed. Id.; see id. § 90.010(d) (providing that cases remain in MDL without dismissal until qualifying impairment is established).

         Section 90.004

         Section 90.004 requires that certain information be included in a claimant's medical report to qualify for remand to district court for trial and, after the 2013 amendment, to avoid dismissal. The statute requires medical reports based on silica exposure to be prepared by board-certified physicians and to include specific verifications and findings by the report's authoring physician. See id. § 90.004. The physician must (1) verify that she or a medical professional employed by and under her direct supervision and control (a) performed a physical exam of the claimant, (b) took a detailed occupational and exposure history, including the claimant's principal employments, exposure to airborne contaminants, and the "nature, duration, and frequency" of exposure, and (c) took a detailed medical and smoking history, including the claimant's "past and present medical problems and their most probable cause"; and (2) set out in her report the claimant's "occupational, exposure, medical, and smoking history." Id. § 90.004(a)(1)-(2), (e).

         The physician must also verify the claimant has "one or more" of the following: (1) "a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification[2] as showing . . . bilateral predominantly nodular opacities (p, q, or r) occurring primarily in the upper lung fields" with a specified "profusion grading"; (2) "pathological demonstration of classic silicotic nodules exceeding one centimeter in diameter as published in 'Diseases Associated with Exposure to Silica and Nonfibrous Silicate Minerals,' 112 Archives of Pathology and Laboratory Medicine 7 (July 1988)";[3](3) "progressive massive fibrosis radiologically established by large opacities greater than one centimeter in diameter"; or (4) "acute silicosis." Id. § 90.004(a)(3).

         In addition to these verifications, detailed statements, and medical conclusions, the physician's report must be "accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions."[4] Id. § 90.004(a)(4).

         For silicosis claims, the statute requires physician verification of a claimant's impairment. Id. § 90.004(b). The physician must verify that (1) there has been a sufficient latency period for the type of silicosis alleged; (2) the claimant has "at least Class 2 or higher impairment due to silicosis, according to the American Medical Association Guides to the Evaluation of Permanent Impairment and reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F) (2003)"; and (3) the physician has concluded the medical findings and impairment "were not more probably the result of causes other than silica exposure" as possibly signified by the claimant's occupational, exposure, medical, and smoking history. Id. For silica-related lung cancer and another silica-related disease, the statute lists additional requirements. § 90.004(c)-(d).

         Thus, to qualify under Section 90.004, a claimant's medical report must contain certain, specific findings, diagnoses, and verifications by the board-certified physician who authors the report. The content of the report must be based on the claimant's physical examination and pulmonary function testing, and it must take into account the American Medical Association (AMA) Guides, federal regulations concerning appropriate testing to establish a respiratory impairment, [5]and a medical article published in the Archives of Pathology and Laboratory Medicine.

         Section 90.010

         Section 90.010 directs when a case may transfer from the statutory MDL to the trial court. Id. § 90.010. It specifically states it applies to Rule 13 MDL cases that were pending when Chapter 90 was enacted. Id. §90.010(a). Thus, its provisions apply to all 106 sandblasters' claims.

         Section 90.010 requires the statutory Silica MDL Court to retain jurisdiction over pending suits and not to remand them for trial until the individual claimants file medical reports complying with Section 90.004 or, alternatively, with a limited "safety valve" provision found in Section 90.010(f). Id. § 90.010(d); see id. §90.010(f)-(j). Until a qualifying report is filed and approved, the cases remain inactive. See id. § 90.010.

         Silica MDL judge's Section 90.010(k) report

         Section 90.010(k) requires the Silica MDL Court to present a report to state government officials five years after statututory enactment that details the total number of cases on the docket as well as the number of those cases that do not meet the criteria for a Section 90.004 compliant medical report; states the Silica MDL Court's "evaluation of the effectiveness of the medical criteria established by Section . . . 90.004"; recommends "how medical criteria should be applied"; and includes any other administrative information the statutory Silica MDL Court deems appropriate. Id. § 90.010(k).

         The Silica MDL Court submitted the required report in September 2010.[6] The judge declined to comment on policy issues related to the statute:

[A]s to whether the criteria themselves or the minimum levels of impairment are appropriate, I am not in a position to ethically opine. This is more appropriately a matter for the law makers . . . . It all depends on what the law makers of Texas believe the definition of "impairment" should be to allow a claimant to proceed in court in these cases.

         However, the MDL Court did provide statistical information regarding the progression of the docket. As of August 1, 2010, there were 667 cases in the silica MDL, representing 5, 839 "exposed persons." Only 54 of the individual claimants had filed medical reports under Section 90.004. Only half of those had been submitted to the MDL Court for evaluation:

Claimants who had filed a medical report

54

- Number who had not yet been evaluated by MDL Court because report was withdrawn from consideration or never submitted

28

- Number who had filed and submitted report for consideration

26

● Number who had been approved

22

● Number who had not yet been determined

1

● Number who were not approved because defendants' objection(s) were sustained

3

         None of the remaining 5, 817 claimants had filed medical reports in the five years the MDL had existed.

         Section 90.010(d-1) dismissal procedure

         In 2013, the Legislature amended Section 90.010 to establish a procedure for dismissal of silica cases filed before the 2005 legislation was enacted but for which no medical report were submitted by a specified deadline. Id. § 90.010(d-1). The MDL Court could begin dismissing pre-2005 cases for failure to file compliant medical reports in September 2014 and was required to complete the dismissals of such claims by August 2015. Id.

         The Legislature further amended the statute to provide that dismissals under Subsection (d-1) would be without prejudice to the filing of a subsequent action and that any refiled action would be treated as through it had never been dismissed. Id. §§90.010(l)-(n).

         An effort to enjoin the dismissal of claims under Subsection (d-1)

         Before the September 2014 date on which dismissal of pre-2005 cases could begin, all 106 sandblasters filed a joint request for injunctive relief, seeking to enjoin enforcement of 90.010(d-1). They argued the medical-report requirement was "oppressive and unreasonable" and nearly impossible to satisfy. They presented various constitutional challenges as a facial challenge to the statute, meaning that the statute, by its terms, always operates unconstitutionally. See New York State Club Ass'n v. City of New ...


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