in Re Global Santa Fe Corporation

Petition for Writ of Mandamus Denied and Opinion filed December 19, 2006

Petition

for Writ of Mandamus Denied and Opinion filed December 19, 2006.

In The

Fourteenth Court of

Appeals

____________

NO. 14-06-00625-CV

____________

IN RE GLOBAL SANTA FE CORPORATION , Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

O P I N I O N

In this

original proceeding, relator GlobalSantaFe Corporation ( A GSF @ ) challenges an order signed by

respondent, the Honorable Tracy Christopher, presiding judge of the 295th

Judicial District Court, the silica multidistrict litigation pretrial court ( A MDL pretrial court @ ), in which real party = s Jones Act claims were remanded to

the 55th Judicial District Court of Harris County. GSF claims that the MDL

pretrial court must retain the case pursuant to chapter 90 of Texas = s Civil Practice and Remedies Code.

For the reasons set forth below, we deny GSF = s petition for a writ of mandamus.

Background

On May

29, 2003, real party in interest John Lopez filed his Jones Act [1]

claims in the 55th District Court against GSF, alleging that it had failed to

provide a safe and seaworthy vessel, resulting in his exposure to silica.

On

December 5, 2005, GSF filed a A Notice of Transfer under Section 90.010(b), @ whereby Lopez = s case was transferred to the MDL

pretrial court. [2] See Tex.

Civ. Prac. & Rem. Code Ann. ' 90.010(b) (Vernon Supp. 2006); Tex.

R. Jud. Admin. 13.11(c), reprinted

in Tex. Gov = t Code Ann., tit. 2, subtit. F app. (Vernon Supp. 2006).

Lopez filed a motion to remand and, in his pleadings, argued that the case

should be remanded to the 55th District Court because section 90.010 was

preempted by the Jones Act. GSF argued that because the MDL rules applied to

all silica related claims, they all were to be transferred to the MDL pretrial

court.

A

hearing was held on Lopez = s motion in the MDL pretrial court. His counsel argued that

by transferring the case to the MDL pretrial court, Lopez is required to

provide an expert report complying with the provisions of chapter 90; the

report requirement is a substantive one not found in the Jones Act; therefore,

the provisions of chapter 90 are preempted by the federal law. GSF, in

contrast, characterized the issue as one of venue. Arguing that the provisions

by which Lopez = s case was transferred to the MDL pretrial court are merely procedural

provisions, GSF asserted that federal law did not preempt the state = s procedural provision. After Judge

Christopher signed an order on January 10, 2006, remanding the case to the 55th

District Court, GSF filed its petition for writ of mandamus in this court. [3]

Mandamus Standard of Review

Under

the MDL rules, an order or judgment of the pretrial court may be reviewed by

the appellate court regularly reviewing orders of the court in which the case

is pending at the time review is sought. See Tex. R. Jud. Admin.

13.9(b); see, e.g. , In re Fluor Enters., Inc. , 186 S.W.3d 639,

642 (Tex. App. C Austin 2006, orig. proceeding [mand. denied]) (concluding that the

intermediate appellate court had mandamus jurisdiction to review an order of

the MDL pretrial court under rule 13.9(b)); In re Union Carbide Corp. ,

145 S.W.3d 805 , 806 B 07 (Tex. App. C Houston [14th Dist.] 2004, orig. proceeding) (reviewing order

of MDL pretrial court in mandamus proceeding).

Mandamus

is an extraordinary remedy that will issue to correct a clear abuse of

discretion and, generally, only when the relator lacks an adequate appellate

remedy. See In re Nitla S.A. de C.V. , 92 S.W.3d 419, 422 (Tex. 2002).

A clear failure to correctly analyze or apply the law constitutes an abuse of

discretion. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

Accordingly, we review the remand order under an abuse of discretion standard.

See In re Fluor , 186 S.W.3d at 643 .

To

determine whether a party has an adequate remedy by appeal, we balance

jurisprudential considerations implicating both public and private interests. In

re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004). When the

benefits of mandamus review outweigh its detriments, appellate courts must

consider whether the appellate remedy is adequate. Id. GSF contends

that it has no adequate remedy by appeal because A [o]nce the pretrial phase of the case

is over, and trial has occurred, [GSF] will have lost the benefits of

efficiency and fairness conveyed by Section 90. @

Discussion

In its

mandamus petition, GSF argues that the remand order is an abuse of discretion

because (1) it is contrary to the express language of section 90.010 and (2)

the MDL pretrial court misinterpreted federal preemption law.

At issue

here is Texas Civil Practice and Remedies Code section 90.010(b), which enables

a defendant, in a suit for personal injury or death resulting from asbestos or

silica exposure, to file a notice of transfer to the MDL pretrial court should

the claimant fail to serve an expert report that complies with the statute. See

Tex. Civ. Prac. & Rem. Code Ann. ' 90.010 (Vernon Supp. 2006). The

Jones Act, in contrast, does not contain a report requirement.

GSF

characterizes section 90.010(b) and the related MDL rules as venue provisions

and argues that because federal law is not concerned with venue, section

90.010(b) is not preempted by the Jones Act. GSF contends that, even if

section 90.010 provisions are substantive, Congress has not explicitly or

implicitly occupied the field; therefore, we must give effect to the procedural

portions of chapter 90 [4] because they

do not conflict with federal law. GSF also asserts that whether the report

provisions in chapter 90 are preempted under the Jones Act is premature because

section 90.010(b) is the only provision applied to Lopez = s claims at this point. It states

that many of the chapter = s provisions will not apply to Lopez = s suit because it was filed before

September 1, 2003; GSF concedes, however, that A the Jones Act probably preempts the

portion of Section 90.010 that imposes a > minimum injury = requirement on silica plaintiffs. @ Further, GSF contends that some of

the report requirements merely dictate the way in which a plaintiff must prove

the reliability of his expert, similar to Rule of Evidence 702.

Lopez

argues that chapter 90 is preempted by the Jones Act because the statute

substantially impairs the substantive rights of Jones Act plaintiffs and

precludes a uniform application of the federal maritime law. He asserts that

Jones Act plaintiffs transferred to the MDL pre-trial court pursuant to chapter

90 are held there in A suspended animation @ without a remedy until complying

with the minimum injury, reporting, and causation requirements set out in

chapter 90, requirements not found in the Jones Act. He also contends that the

report requirements under chapter 90 directly conflict with the negligence

standard for recovery under the Jones Act.

We must

decide whether transfer to the MDL pretrial court, pursuant to the provisions

of chapter 90, of Lopez = s Jones Act claims is precluded by the preemption doctrine.

This is an issue of first impression, chapter 90 having been only recently

enacted. [5] We begin

with preemption analysis under maritime law.

GSF

frames its preemption argument as follows: (1) courts must be reluctant to find

preemption; (2) because Congress has not intended to A occupy the field @ in this area, preemption should be

found only if it is impossible to comply with both the state and federal laws,

that is, if they A conflict @ ; and (3) the provisions here do not conflict with the Jones

Act. Therefore, GSF reasons chapter 90 = s procedural provisions must be

enforced.

1.

Preemption

Congressional

intent determines whether a federal statute preempts state law. Gade v. Nat = l Solid Wastes Mgmt. Ass = n , 505 U.S. 88, 96 (1992); Am. Cyanamid Co. v. Geye ,

79 S.W.3d 21 , 23 B 24 (Tex. 2002). A The purpose of Congress is the

ultimate touchstone @ and is discerned by examining the statute = s language, its structure, and its

purpose. Gade , 505 U.S. at 96 . We must determine whether the state law

is A consistent with the structure and

purpose of the [federal] statute as a whole. . . . and to its object and

policy. = @ Id. at 98 .

Generally,

absent express preemptive language, preemption may be implied if the statute = s scope indicates congressional

intent to A occupy the field @ or when the state law actually conflicts with the federal

statute. Am. Cyanamid Co. 79 S.W.3d at 24 . GSF recites this preemption

principle, asserting that federal law is not concerned with a state = s procedural rules. However, whether

procedural or substantive, a state = s law will be preempted when it

interferes or restricts remedies under a federal statute. See Felder v.

Casey , 487 U.S. 131, 138 (1988). A [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.

Western Ry. Co. of Al. , 338 U.S. 294, 296 , (1949)). The Supreme Court

stated in Gade :

We can no longer adhere to the aberrational doctrine .

. . that state law may frustrate the operation of federal law as long as the

state legislature in passing its law had some purpose in mind other than one of

frustration. . . . such a doctrine would enable state legislatures to nullify

nearly all unwanted federal legislation by simply publishing a legislative

committee report articulating some state interest or policy B other than frustration of the federal

objective B that would be tangentially furthered by the proposed state law . . . .

Any state legislation which frustrates the full effectiveness of federal law is

rendered invalid by the Supremacy Clause.

505 U.S. at 106 B 07 (quoting Perez v. Campbell ,

402 U.S. 637 , 651 B 52 (1971)).

2.

Jones Act

The

Jones Act provides a cause of action for a seaman injured in the course of his

employment by the negligence of his employer. See 46 U.S.C.A. ' 688(a); see also Am. Dredging Co.

v. Miller , 510 U.S. 443, 455 (1994) (describing the Jones Act as

legislation that A establishes a uniform federal law that state as well as

federal courts must apply to the determination of employer liability to seamen. @ ). Its purpose is to provide for the

benefit and protection of A seamen who are peculiarly the wards of admiralty. @ The Arizona v. Anelich , 298

U.S. 110, 123 (1936); see also Stier v. Reading & Bates Corp. , 992 S.W.2d 423,

429 (Tex. 1999) ( A Providing a remedy to an injured

seaman is a > characteristic feature = of admiralty, @ quoting S. Pac. Co. v. Jensen ,

244 U.S. 205, 216 (1917)). The Jones Act is liberally construed to enlarge the

protection afforded to seamen under general maritime law. See Arizona , 298

U.S. at 123 ; see also Kernan v. Am. Dredging Co. , 355 U.S. 426, 432

(1958) ( A [I]t is clear that the general

congressional intent was to provide liberal recovery for injured workers @ under the Jones Act).

In

passing the Jones Act, Congress granted the same rights to seamen as it granted

to railway employees by the Federal Employers = Liability Act ( A FELA @ ). Cox v. Roth , 348 U.S. 207,

208 (1955). Therefore, interpretations of FELA are instructive in deciding

issues under the Jones Act. See Brown v. Parker Drilling Offshore Corp. ,

410 F.3d 166, 178 (5th Cir. 2005) ( A Jones Act cases follow cases under

the FELA. @ ). The Jones Act adopts the A uniformity requirement @ of FELA, and state courts are

required to apply a uniform federal law. Am. Dredging , 510 U.S. at 456 ;

see Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 211 (1996).

Under

the Jones Act, a state court may A > adopt such remedies, and . . . attach

to them such incidents, as it sees fit = so long as it does not attempt to

make changes @ in the substantive maritime law. Am. Dredging Co. , 510 U.S. at

447 (quoting Madruga v. Superior Court of Cal., County of San Diego , 346

U.S. 556, 561 (1954)). Also, when considering preemption under the Jones Act,

we consider whether the state law concerns A a > characteristic feature = of admiralty or a doctrine whose

uniform application is necessary to maintain the > proper harmony = of maritime law. @ See Stier , 992 S.W.2d at 428 B 29. [6]

Uniformity in maritime law is important to the availability of unseaworthiness

as a basis of liability. See Yamaha , 516 U.S. at 211 .

Whether

the Jones Act preempts provisions of chapter 90 depends on the impact of those

provisions on the rights and remedies provided under the federal statute. If

it A stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress, @ chapter 90 will be preempted. See

Gade , 505 U.S. at 98 . [7]

3.

Chapter 90

Effective

September 1, 2003, the Texas Legislature established the multi-district

litigation panel concept to coordinate pretrial handling of asbestos-related

claims. See In re Union Carbide , 145 S.W.3d at 806 n.1; see

also Tex. Gov = t Code Ann. ' 74.161 B .164 (Vernon 2005). [8] In 2005,

Senate Bill 15 was signed into law, which established the method for handling a

pretrial docket for asbestos and silica related claims and set forth reporting

requirements and medical criteria by which impaired and unimpaired plaintiffs

are identified. See Tex. Civ. Prac. & Rem. Code Ann. ' 90.001 cmt. (Vernon Supp. 2006)

[Acts of 2005, 79th Leg., R.S., ch. 97, ' 1, 2005 Tex. Gen. Laws 169 , 170].

The 2005 legislation applies to any action pending on September 1, 2005, unless

exempted by one of several exceptions BB not at issue here BB for cases filed prior to September 1,

2003. See id. ' 90.010(a). Section 90.010(b) provides as follows:

If the claimant fails to serve a report complying with

. . . 90.004 [9] on or before

the 90th day after [September 1, 2005] under Subsection (a)(2), the defendant

may file a notice of transfer to the MDL pretrial court. . . . If the MDL

pretrial court determines that the report was not served on or before the 90th

day after the date this chapter becomes law or that the report served does not

comply with . . . 90.004, the MDL pretrial court shall retain jurisdiction over

the action pursuant to the MDL rules.

Id. ' 90.010(b). GSF relied on this

provision to request transfer of Lopez = s claims.

Examining

the impact of section 90.010(b), the result is that a pre-September 1, 2003

Jones Act silica related claim is transferred to the MDL pretrial court if the

claimant fails to file a report complying with chapter 90; however, once there,

other provisions in section 90.010 dictate that the case remain there until a

report complying with chapter 90 is served or, presumably, until the claimant

is diagnosed with a malignant silica-related cancer. See Tex. Civ. Prac.

& Rem. Code Ann. '' 90.010(a)(3), (b), (d), (f). If section 90.010 is applied

to a pre-September 1, 2003 Jones Act claimant, he or she is free to pursue

federal remedies only by satisfying the report requirements contained in

chapter 90. There is no such report requirement in the Jones Act.

Consequently, because applying the provisions to the pre-2003 Jones Act

claimant thwarts federal remedies, it is preempted. See, e.g. , Norfolk

S. Ry. Co. v. Bogle , 850 N.E.2d 1281 (Ohio Ct. App. 2006); see also Gade ,

505 U.S. at 105 B 06 (noting that preemption is, in part, A defined by the state law = s actual effect. @ ).

GSF

acknowledges that there is no report requirement under the Jones Act, and

states the Jones Act A probably @ preempts the portions of section 90.010 that impose a A minimum injury @ requirement on those claimants. [10]

GSF reasons, however, that while some provisions in section 90.010 may be

preempted, other provisions BB such as section 90.010(b) BB which do not A conflict @ with the Jones Act, must be

enforced. We disagree. Parsing the statute in this manner results in the

provisions within section 90.010 deemed A procedural @ applying to permit transfer, while

the substantive provisions, i.e. , report requirements, will not apply

and the claimant must therefore be transferred back to the court of origin.

This resulting A transfer-retransfer @ procedure is a waste of resources

and is incompatible with the purposes of both the federal and state laws.

GSF also

asserts that the A featherweight @ causation burden applied in Jones Act cases is not offended

by chapter 90 = s provisions. The A featherweight @ causation burden is defined as A > whether the proofs justify with

reason the conclusion that employer negligence played any part, even the

slightest , in producing the injury or death for which damages are sought. @ Diamond Offshore Mgmt. Co. v.

Horton , 193 S.W.3d 76, 79 (Tex. App. C Houston [1st Dist.] 2006, pet.

denied) (quoting Rogers v. Mo. Pac. R.R. , 352 U.S. 500, 506 (1957))

(emphasis added); see also Johnson v. Offshore Express, Inc. , 845 F.2d

1347, 1352 (5th Cir. 1988). GSF claims the report requirements affect only the

manner in which the proof is presented. Again, we disagree.

A report

under section 90.004 must contain a history of the claimant = s past and present medical problems

and A their most probable cause. @ Tex. Civ. Prac. & Rem. Code

Ann. ' 90.004(a)(1). If a claim for

silicosis is made, the report must verify that A the physician has concluded that the

exposed person = s medical findings and impairment were not more probably the result of

causes other than silica exposure revealed by the exposed person = s occupational, exposure, medical,

and smoking history. @ Id. ' 90.004(b)(3). If claiming silica-related lung cancer, the

report must include that A inhalation of silica was a substantial contributing factor to

that cancer. @ Id. ' 90.004(c)(1). The remaining provisions of section 90.004

provide as follows:

(d) If the claimant is asserting a claim for any disease other than

silicosis and lung cancer alleged to be related to exposure to silica, the

report required by Subsection (a) must also verify that the physician has

diagnosed the exposed person with a disease other than silicosis or silica‑related

lung cancer and has concluded that the exposed person = s disease is not more probably the result of causes

other than silica exposure.

(e) The detailed occupational and exposure history required by

Subsection (a)(1)(B) must describe:

(1) the exposed person = s principal

employments and state whether the exposed person was exposed to airborne

contaminants, including silica and other dusts that can cause pulmonary

impairment; and

(2) the nature, duration, and

frequency of the exposed person = s exposure to airborne contaminants, including silica and

other dusts that can cause pulmonary impairment.

Id. ' 90.004(d),(e). Thus, a report under

section 90.004 for any silica-related injury requires a defined level of

causation between the claimant = s exposure and his illness; while perhaps not a direct

causative relationship, it is at least one blurring the line between substance

and procedure. Indeed, even GSF states A [t]he line between > substance = and > procedure = must be drawn more finely @ in this case than others and, at one

point, refers to the doctor = s report under chapter 90 as a A causation report. @

Likening

chapter 90 = s report requirements to Texas = s Rule of Evidence 702, GSF argues

that Lopez will be required to establish the reliability of his medical experts

and meet normal standards of proof even if the case proceeds in 55th District

Court. GSF = s argument suggests that transfer to an MDL pretrial court would not

alter Lopez = s obligation with regard to medical reports or reliability of experts.

4.

Other Case Law

Both

parties rely on Norfolk S. Ry. Co. v. Bogle , 850 N.E.2d 1281 (Ohio Ct.

App. 2006), a case similar to the facts before us. [11]

In Norfolk , the plaintiffs filed claims for injuries caused by

occupational exposure to asbestos. See id. at 1283 . The trial court

concluded that the state = s law, House Bill 292, a statute similar to chapter 90, was

preempted by the FELA and/or the Locomotive Boiler Inspection Act ( A LBIA @ ). See id. at 1283, 1286 .

After setting out the principles of preemption and examining the report

requirements of H.B. 292, the Ohio appellate court stated:

We hold that this requirement would > gnaw = at the FELA/LBIA claimants = substantive rights to assert a cause

of action under federal law in a state court. FELA claimants would essentially

be indefinitely precluded from asserting their federal rights until they

complied with these requirements. This would not further Congress = s intent of creating > uniformity throughout the Union with

respect to railroads = financial responsibility for injuries to their employees. =

Id. at 1289 (quoting Norfolk & W.

Ry. Co. v. Liepelt , 444 U.S. 490, 493 (1980)). This is the reasoning

expressed by Lopez.

GSF

argues that Bogle is instructive because the features of Ohio = s law are not an issue in this case.

GSF claims that H.B. 292 is more harsh than chapter 90, because the plaintiff = s claim under H.B. 292 is dismissed

without prejudice, and A [t]hus, Ohio simply does not permit asbestos plaintiffs with

minor injuries to maintain a lawsuit. @ However, under chapter 90, assuming

the pre-September 1, 2003 plaintiff does not meet the report requirements, the

result is that his suit languishes in the MDL pre-trial court, precluding BB or, at least, delaying BB pursuit of his federal remedies. See

Tex. Civ. Prac. & Rem. Code Ann. ' 90.010(d),(f) B (h).

GSF also

cites American Dredging Company v. Miller as directly on point. See 510

U.S. at 445 B 46. In that case, the defendants had argued that the forum non

conveniens defense available to them under federal law was not available under

Louisiana = s statute, and, therefore, Louisiana = s law was preempted. Id. at

450 B 51. The Court examined whether the

forum non conveniens doctrine A is either a > characteristic feature = of admiralty or a doctrine whose

uniform application is necessary to maintain the > proper harmony = of maritime law. @ Id. at 447 . It concluded

that the doctrine neither originated in admiralty law nor had exclusive

application there; consequently, Louisiana = s statute did not A work material prejudice to a

characteristic feature of the general maritime law, @ and was not preempted. Id.

at 450 . [12]

American

Dredging is

inapposite to the subject case. A The Jones Act has the effect of

bringing into the maritime law . . . all appropriate statutes relating to

employers = liability for personal injury or death @ for the benefit of seamen. Bainbridge

v. Merchants = & Miners = Transp. Co. , 287 U.S. 278, 282 (1932). Thus,

the Jones Act claim here is not comparable to a procedural doctrine.

Uniformity in the application of federal law plays a larger role in the

preemption analysis when an unseaworthiness claim is involved. See Yamaha ,

516 U.S. at 211 .

In

short, GSF = s argument rests on the conclusion that section 90.010(b) is procedural

and can be construed apart from chapter 90 = s remaining provisions BB in fact, from other provisions in

that section. We disagree with GSF that section 90.010(b) is merely procedural

and susceptible to segregation from other chapter 90 provisions. Section

90.010(b) is an integral part of the larger MDL design and cannot be isolated from

it. Even so, by applying only section 90.010(b), Lopez is precluded from

pursuing his rights under the Jones Act. Whether procedural or substantive,

chapter 90 is preempted by federal law. See Gade , 505 U.S. at 98 ; Felder ,

487 U.S. at 138 .

Conclusion

Because we conclude that application of chapter 90 = s provisions to Lopez = s Jones Act claims interferes with or restricts his remedies under the

federal statute, whether substantive or procedural, the state law is

preempted. Accordingly, we deny GSF = s

petition for writ of mandamus.

/s/ Adele Hedges

Chief Justice

Petition denied and Opinion filed

December 19, 2006.

Panel consists of Chief Justice

Adele Hedges, Justices Yates and Seymore.

[1] See 46 U.S.C.A. ' 688 (2000).

[2] In its Notice, GSF stated that as an A injurious exposure to silica @ case, it was addressed by the November 10, 2004 MDL

Panel decision as a A tag-along @

case.

[3] GSF filed a motion to reconsider with the MDL

Panel. The panel concluded its jurisdiction to review remand orders was

limited to those in which remand was based on deciding whether a case was a A tag along. @ See

Tex. R. Jud. Admin. 13.5(e) (stating a remand order of the pretrial court

based on the ground that the case remanded is not a tag-along case may be

appealed to the MDL panel).

[4] See Tex. Civ. Prac. & Rem. Code Ann. '' 90.001 B .012

(Vernon Supp. 2006) (setting out the pretrial handling of claims involving

asbestos and silica).

[5] To date, it appears that only one state has directly

addressed the impact of its MDL statute on a Jones Act claim. E.g. , Norfolk

S. Ry. Co. v. Bogle , 850 N.E.2d 1281 (Oh. Ct. App. 2006), appeal allowed

by , 852 N.E.2d 1213 (Oh. 2006) (unpublished table opinion No.

2006-1025).

[6] In Stier , a case involving a nonresident

seaman injured in the territorial waters of another nation, the court concluded

that under either standard, the seaman = s

state law tort claims were impliedly preempted. 992 S.W.2d at 429 .

[7] Preemption analysis under maritime law is somewhat

different than preemption in other areas of the law. See Stier , 992 S.W.2d at 428 . For example, while preemption under the Supremacy

Clause starts with the basic assumption that Congress did not intend to

displace state law, in Stier the court noted that decisions addressing

preemption issues under admiralty law typically have not applied or even

mentioned the Supremacy Clause. Id. Also, preemption under maritime

law has historically recognized that state laws must yield to the needs of an

area of law which requires A harmony and

uniformity. @ S. Pac. Co. v. Jensen , 244 U.S. 205, 216

(1917). Currently, there is no bright line rule to determine when a state law

is preempted under federal maritime law. See Stier , 992 S.W.2d at 429

(noting that Jensen may be overruled); see also Am. Dredging

Co. , 510 U.S. at 452 ( A It would be

idle to pretend that the line separating permissible from impermissible state

regulation is readily discernible in our admiralty jurisprudence, or indeed is

even entirely consistent within our admiralty jurisprudence. @ ).

[8] The MDL panel designated Judge Mark Davidson of the

11th Judicial District Court of Harris County as the pretrial judge to whom the

asbestos cases would be transferred. In re Union Carbide , 145 S.W.3d at

806 n.1.

[9] Section 90.004 sets out the report requirements for

silica-related injuries, and section 90.003 pertains to asbestos-related

injuries. See Tex. Civ. Prac. & Rem. Code Ann. '' 90.003, 90.004 (Vernon Supp. 2006). Because Lopez = s claims are for silica-related injuries, our citation

to report requirements is to section 90.004 only.

[10] As noted in the subsequent discussion concerning the

causation burden under the Jones Act, various report requirements in chapter 90

impose a certain level of impairment, caused by exposure to asbestos or silica,

before a claimant may proceed with his claim.

[11] The case was accepted for appeal by the Ohio Supreme

Court, 852 N.E.2d 1213 , on August 23, 2006.

[12] The Court also noted the disparity within its

decisions concerning state regulations and maritime law, but decided that where

those boundaries may lie was not a question it had to decide in that case. Id.

at 453. Instead, the Court concluded that the doctrine was procedural rather

than substantive; as such, its application would not produce uniform results,

and the doctrine under federal law was not applicable to the states. Id.

at 457.