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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
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
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
OPINION ON EN BANC RECONSIDERATION
Beth Landau, Justice
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.
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
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.
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.
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.
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.
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
issues, the sandblasters argue that Chapter 90 is
unconstitutional. We affirm.
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.
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.
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.
purpose behind Chapter 90
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.
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).
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. §
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 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) "progressive massive fibrosis
radiologically established by large opacities greater than
one centimeter in diameter"; or (4) "acute
silicosis." Id. § 90.004(a)(3).
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." Id. § 90.004(a)(4).
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).
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, and a medical article published in the
Archives of Pathology and Laboratory Medicine.
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
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. §
MDL judge's Section 90.010(k) report
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).
Silica MDL Court submitted the required report in September
judge declined to comment on policy issues related to the
[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.
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
Claimants who had filed a medical report
- Number who had not yet been evaluated by MDL Court
because report was withdrawn from consideration or
- Number who had filed and submitted report for
● Number who had been approved
● Number who had not yet been determined
● Number who were not approved because
defendants' objection(s) were sustained
the remaining 5, 817 claimants had filed medical reports in
the five years the MDL had existed.
90.010(d-1) dismissal procedure
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.
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).
effort to enjoin the dismissal of claims under Subsection
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