in Re Globalsantafe Corporation

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF

TEXAS

════════════

No. 07-0040

════════════

In re Global Sante Fe

Corporation, Relator

════════════════════════════════════════════════════

On Petition for Writ of Mandamus

════════════════════════════════════════════════════

Argued January 16, 2008

Justice Willett delivered

the opinion of the Court.

In this original proceeding, GlobalSantaFe

Corp. (GSF) asks this Court to direct the silica MDL pretrial court to vacate

its order remanding this case to the trial court where it was originally filed.

The pretrial court concluded that Chapter 90 of the Civil Practice and Remedies

Code, applicable to certain silica-related cases and under which the case had

been transferred to the pretrial court, was inoperative because it was preempted

by the Jones Act, a federal maritime statute. We agree with GSF that the general

procedural framework set out in Chapter 90 is not preempted, although we also

hold that Chapter 90's minimal-impairment provision relating to silica claims is

preempted. We conditionally grant mandamus relief.

I. Background

In May 2003, John Lopez sued GSF under the Jones Act, alleging injuries

from exposure to asbestos and silica while employed by GSF aboard a vessel. [1] Lopez filed his Jones Act suit in state

court, as allowed by federal law, [2] in the 55th district court of Harris County.

Two years later, Chapter 90 of the Civil Practice and Remedies Code

became effective, [3] adopting unique procedures for

personal-injury actions alleging injuries from silica and asbestos. [4] We focus here on the requirements

relating to silica claims. [5]

Section 90.004 requires silica claimants to serve a detailed expert

report on each defendant. Among other requirements, the report must be prepared

by a physician who has specific qualifications, [6] and the physician (or other medical

professional “employed by and under the direct supervision and control of the

physician”) must perform a physical examination of the claimant and take a

detailed occupational, exposure, medical, and smoking history. [7]

The report must verify that the claimant suffers from one or more

silica-related diseases based on recognized symptoms. [8] It must attach all medical evidence

supporting the physician’s opinion. [9] The report must also verify that the

physician has made certain causation findings regarding silica exposure and the

claimant’s observed ailments. [10] The report must make these causation

determinations depending on the type of silica-related disease asserted. [11]

If the claimant is asserting a claim for silicosis, the report must

verify a minimal level of impairment under section 90.004(b)(2), requiring “at

least Class 2 or higher impairment due to silicosis, according to the American

Medical Association Guides to the Evaluation of Permanent Impairment . . .

.”

Section 90.010(a) provides that “[t]he MDL rules apply to any action

pending on the date this chapter becomes law in which the claimant alleges

personal injury or death from exposure to asbestos or silica,” subject to

certain exceptions. Relevant MDL rules are set out in Rule 13 of the Texas Rules

of Judicial Administration, created by this Court pursuant to legislative

authority. [12] The 295th district court of Harris County is the MDL pretrial court for

personal-injury suits alleging silica exposure. [13] Generally, the MDL pretrial court

decides all pretrial matters and then remands the case to the trial court. [14]

Section 90.006(a) provides, for actions filed on or after the statute’s

September 1, 2005 effective date, the expert report must be served not later

than thirty days after the defendant answers or otherwise appears. For actions

filed after the effective date, the defendant may file a motion to dismiss if

the claimant fails to file an expert report or files one that does not comply

with section 90.003 (asbestos claims) or 90.004 (silica claims). [15]

For actions like this one filed before September 1, 2003, the MDL rules

are inapplicable if the plaintiff files an expert report complying with the

expert report requirements of Chapter 90. [16] The report is due within 90 days of

Chapter 90's September 1, 2005 effective date. [17] If the plaintiff misses this deadline

for filing a compliant report, the defendant may file a notice of transfer to

the MDL pretrial court. [18] Section 90.010(b) provides:

If the

claimant fails to serve a report complying with Section 90.003 or 90.004 on or

before the 90th day after the date this chapter becomes law 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 claimant served a report that

complies with Section 90.003 or 90.004 on or before the 90th day after the date

this chapter becomes law, the MDL pretrial court shall remand the action to the

court in which the action was filed. 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 Section 90.003 or

90.004, the MDL pretrial court shall retain jurisdiction over the action

pursuant to the MDL rules.

The notice of

transfer automatically transfers the case without further court order, [19] subject to a motion to remand filed in

the MDL court and a remand by that court if it determines that the plaintiff had

filed a compliant report. [20] Absent a successful motion to remand,

cases thus transferred to the MDL court remain in that court until the claimant

serves a Chapter 90-compliant report. [21]

Contending that Lopez did not file a report complying with Chapter 90,

GSF filed on December 2, 2005, a notice of transfer to the silica MDL pretrial

court. Lopez responded, arguing Chapter 90 was preempted by the Jones Act and

urging the MDL pretrial court to remand the case to the trial court. The MDL

pretrial court agreed. GSF sought mandamus relief in the court of appeals, which

also sided with Lopez by holding that “chapter 90 is preempted by federal

law.” [22] GSF now seeks mandamus relief in this

Court directing the MDL pretrial court to vacate its remand order.

II. Discussion

A. The “Asbestos Litigation Crisis” Addressed by Chapter

90

The statute enacting Chapter 90 and other codified provisions begins with

legislative findings concerning asbestos and silica litigation. The Legislature

stressed the existence of an “asbestos litigation crisis,” [23] noting that Texas leads the nation in

such suits. [24] It found that this problem is

exacerbated by the filing of suit, sometimes to avoid limitations problems,

before the claimant is suffering from any illness affecting his daily life. [25] The Legislature made further findings

that this litigation has resulted in the bankruptcies of many companies, the

loss of thousands of jobs, enormous litigation expenses, overcrowded dockets

that hamper the ability of seriously ill claimants to seek redress, and the

bleeding of company assets lost to a crush of claims by those “who are not

functionally or physically impaired.” [26] It warned of a similar crisis looming

over silica-related actions, evidenced by a recent spike in such claims, and

raising some of the same concerns applicable to the asbestos crisis. [27] The statute further provides:

It is the

purpose of this Act to protect the right of people with impairing

asbestos-related and silica-related injuries to pursue their claims for

compensation in a fair and efficient manner through the Texas court system,

while at the same time preventing scarce judicial and litigant resources from

being misdirected by the claims of individuals who have been exposed to asbestos

or silica but have no functional or physical impairment from asbestos-related or

silica-related disease. [28]

To address the Legislature’s stated purposes and concerns, Chapter 90

includes three components on which we focus. First, by requiring detailed expert

reports early in the litigation process, Chapter 90 endeavors to assure that

claims are not brought and pursued unless they are supported by reliable expert

evaluations of the claimant. [29]

Second, Chapter 90 attempts to consolidate silica and asbestos cases in a

single MDL court for pretrial proceedings. [30] The obvious advantages of such

consolidation include (1) the more efficient resolution of recurring issues by a

court that acquires expertise in cases with related factual, procedural, and

substantive legal issues; and (2) consistent rulings in such cases. The

Legislature has authorized MDL transfers where they will serve the convenience

of parties and witnesses and “promote the just and efficient conduct of the

[consolidated] actions.” [31] It has empowered the judicial panel on

multidistrict litigation to transfer related cases to MDL courts for

“consolidated or coordinated pretrial proceedings.” [32] In creating the silica pretrial

MDL action, the panel observed:

One virtue

of transferring related cases to a single pretrial judge is that issues, once

raised, will be decided the same way in the future. A consistent and steady

judicial hand at the helm should in fact promote agreements because lawyers will

know where the court stands on recurring issues. As contested issues arise, the

pretrial judge will make consistent rulings, which can then be reviewed by the

appellate courts as appropriate. This, we think, serves Rule 13's goal that our

system give related cases consistent and efficient

treatment. [33]

Third, Chapter 90 requires claimants in some cases to establish a minimal

level of impairment before their cases can proceed. [34]

These procedures serve the stated legislative purpose of conserving

judicial and litigant resources and directing those resources to persons most

suffering from asbestos and silica injuries. Of these three Chapter 90

components, we conclude that only the third is preempted by the Jones Act; the

other two are not preempted and should be followed in Jones Act cases. [35]

B. Mandamus Relief is Warranted

A writ of mandamus will issue only if the trial court committed a clear

abuse of discretion for which the relator has no adequate remedy at law. [36] The adequacy of an appellate remedy must

be determined by balancing the benefits of mandamus review against its

detriments. [37] In evaluating benefits and detriments,

we consider whether mandamus relief will safeguard “important substantive and

procedural rights from impairment or loss.” [38] In addition to impairment of rights, we

consider whether mandamus will “allow the appellate courts to give needed and

helpful direction to the law that would otherwise prove elusive in appeals from

final judgments.” [39]

By remanding the case to the trial court, the MDL pretrial court in

effect held that, at least as to Lopez, Chapter 90 in its entirety is preempted

by the Jones Act. This is so because Chapter 90 prescribes, as a result of a

plaintiff’s failure to file an adequate section 90.004 report, the defendant’s

right to file a notice of transfer to the MDL pretrial court, as described

above. That court then retains, dismisses, or remands the case back to the trial

court depending on whether the report is filed.

The MDL pretrial court’s conclusion that Chapter 90 was preempted by the

Jones Act was erroneous and mandamus relief is appropriate to correct the error.

As we recently held in In re McAllen Medical

Center , another case concerning legislatively mandated expert reports,

mandamus relief is available when the Legislature has enacted a statute to

address findings “that traditional rules of litigation are creating an ongoing

crisis,” and “the purposes of the [enacted] statute

would otherwise be defeated.” [40] These precise grounds for mandamus

relief are again presented. “Here, the Legislature has already balanced most of

the relevant costs and benefits for us.” [41]

C. Jones Act Preemption Principles

The Jones Act provides that “[a] seaman injured in the course of

employment . . . may elect to bring a civil action at law . . . against the

employer.” [42] The Act has been described as “remedial,

for the benefit and protection of seamen who are peculiarly the wards of

admiralty.” [43]

The preemption of state law by the Jones Act is a unique corner of

federal preemption law that must be applied with recognition that Jones Act

cases can be brought in federal or state court. [44] While state law must sometimes yield to

the need for a uniform and harmonious system of federal maritime law, “this

limitation still leaves the States a wide scope.” [45] Congress could preempt the entire field

of maritime law, but has instead left the states “with a considerable

legislative and judicial competence in the maritime field.” [46] Where Congress has acted in the

admiralty area, “state regulation is permissible, absent a clear conflict with

the federal law.” [47]

Federal preemption in this context does not always lend itself to simple

resolution. As the United States Supreme Court observed in one Jones Act case,

“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.” [48]

The Court, however, has laid down some general principles. On the one

hand, substantive rights created by Congress via the Jones Act must

prevail over inconsistent state substantive law even where the suit is brought

in state court. [49] On the other hand, it has held that

state law characterized as procedural is not preempted. [50] The Court has also recognized that

federal maritime law follows a “reverse Erie ” doctrine of sorts, employing the

use of substantive federal maritime law in state courts but recognizing that

state procedural law can be followed. [51]

Our own cases have recognized this general proposition that a state court

hearing a Jones Act case “must apply substantive federal maritime law but follow

state procedure,” [52] and have acknowledged the “reverse

Erie ”

nature of state court adjudication of Jones Act claims. [53] Unfortunately, a simple rule of Jones

Act preemption—providing that such cases litigated in state court follow federal

substantive law and state procedural law—cannot be fashioned from the extant

jurisprudence. For example, even as to substantive remedies, we have recognized

that “state law remedies that do not conflict with federal law remedies are

available to seamen.” [54]

In Southern Pacific Co. v. Jensen , [55] the United States Supreme Court held

that a state workers’ compensation law was preempted by federal general maritime

law. In an oft-recited standard, the Court held that a state-law remedy is

preempted by federal maritime law if the state remedy “works material prejudice

to the characteristic features of the general maritime law, or interferes with

the proper harmony and uniformity of that law in its international and

interstate relations.” [56] Because the state law remedy in

Jensen was “wholly unknown” to federal maritime common law, “incapable of

enforcement by the ordinary processes of any court,” and inconsistent with

congressional policy to encourage investments in ships, as indicated by two

federal statutes, the Court held that the state remedy was preempted by federal

law. [57]

In American Dredging Co. v. Miller , the Court held in a Jones Act

case that a Louisiana rule making inapplicable the

doctrine of forum non conveniens in maritime cases was not preempted by

federal maritime law. [58] Looking to the Jensen standard

quoted above, the Court noted that the federal doctrine of forum non

conveniens is a doctrine of general application and did not originate in

admiralty; therefore, the Louisiana rule did not work material prejudice

to a characteristic feature of general maritime law. [59] Although recognizing that the state rule

produced some disuniformity , the Court rejected the

argument that, under the Jensen standard, the rule interfered with the

proper harmony and uniformity of federal maritime law. [60] The Court reasoned that the uniformity

requirement is not absolute, especially on matters of procedure. [61] It noted that uniformity of process is

not required by admiralty law, that the doctrine of forum non conveniens

“is nothing more or less than a supervening venue provision,” and that venue

“goes to process rather than substantive rights—determining which among various

competent courts will decide the case.” [62] The Court also noted it had previously

held that venue in Jones Act cases brought in state court should be decided

under state law, [63] and that “[j] ust as state courts, in deciding admiralty cases, are not

bound by the venue requirements set forth for federal courts in the United

States Code, so also they are not bound by the federal common-law venue rule (so

to speak) of forum non conveniens .” [64]

D. Application of Preemption Principles to this Case

1.

Non-Preempted Provisions

The requirements embedded in Chapter 90 to assure reliable expert

confirmation of silica-related diseases are not preempted by the Jones Act.

Nothing in the Jones Act exempts a seaman claiming a silica-related disease from

establishing, through reliable medical proof, that he in fact suffers from such

a disease. Federal cases, beginning with Daubert v. Merrell Dow

Pharmaceuticals, Inc. , [65] have in recent years established

standards for the admission of expert testimony that focus on the trial court’s

role in determining the reliability of such testimony. Texas cases have

developed similar standards that draw heavily from federal jurisprudence. [66] Both federal and state law require expert testimony “grounded ‘in the methods and

procedures of science.’” [67]

To the extent that Jones Act jurisprudence recognizes a special standard

for proving causation, [68] federal cases have held that this

causation standard does not exempt Jones Act cases from the general rules for

admission of expert testimony. [69] We see no basis for holding that

Texas law

generally governing the admission of expert testimony, which draws so heavily

from federal law, is preempted by the Jones Act. This law does not clearly

conflict with federal maritime law. Under Miller and Jensen , the

jurisprudence requiring reliable expert testimony has developed in tandem in the

federal and Texas courts, and is a body of law of general

application; the use of these general standards does not work material prejudice

to a characteristic feature of general maritime law. Nor do we see how the use

of such standards, which apply to Jones Act cases proceeding in federal court,

would interfere with the proper harmony and uniformity of federal maritime

law.

Therefore, the provisions of Chapter 90 directed at assuring

reliable expert confirmation of the existence of one of the medically recognized

forms of silica-related illness are not preempted. Most of the expert-report

requirements of section 90.004 can be so characterized. Section 90.004 tracks

widely if not universally recognized criteria for reliably diagnosing the

existence of silica-related illnesses by (1) conducting a physical examination

by a trained professional that includes an appropriate occupational and exposure

history under section 90.004(a)(1), (a)(2), and (e); (2) identifying a

silica-related condition based on established radiographic methods and tests

employed by medical science under section 90.004(a)(3) and (a)(4); and (3)

ruling out other causes of the observed condition under sections 90.004(b)

through (d). [70] The failure to establish these criteria

is grounds for rejecting expert testimony under Daubert . [71]

As examples, the requirement of section 90.004(a)(1) that a

board-certified physician conduct a detailed occupational and exposure history

is directed at assuring—early in the litigation so as to conserve judicial and

litigant resources—that the claim of silica-related injury is supported by

medically reliable expert review. “In order to rule out the multitude of other

causes of the radiographic findings, it is vitally important for a physician to

take a thorough occupational/exposure history and medical history.” [72] The requirement of section

90.004(a)(3)(A), that the expert observe bilateral nodular opacities categorized

as p, q, or r primarily in the upper lungs, is a standardized method of medical

science to identify chronic or classic silicosis and distinguishing it from

asbestosis. [73] The requirements specifying a minimal

latency period, such as section 90.004(b)(1)’s requirement that the report for a

claimant alleging silicosis verify that “there has been a sufficient latency

period for the applicable type of silicosis,” are also intended to assure that

the claimant is in fact suffering from a silica-related disease under

established medical science. [74] The requirement that a qualified reader

find a profusion grading of 1/0 or 1/1, found in section 90.004(a)(3)(A),

assures that the reader has found at least some abnormality in the x-ray. [75] All of these requirements represent the

Legislature’s attempt to require a medically valid demonstration of

silica-related disease as opposed to mere exposure to silica or some other

substance or mere concern that a disease may develop in the future.

Nor are Chapter 90's provisions for consolidating silica-related cases in

a single court for pretrial disposition preempted by the Jones Act. These

provisions serve an important state purpose, recognized by the Legislature, of

streamlining the resolution of silica cases in the state court system and thus

conserving judicial and litigant resources.

Moreover, as discussed above, Jones Act preemption principles recognize

that Jones Act cases can be brought in federal or state courts and that

adherence to precisely the same rules of procedure and practice are not

required. Texas courts are not expected to abandon all

their regular rules of practice and procedure and to adopt federal rules in a

case simply because a Jones Act claim is alleged. On the contrary, maritime law

recognizes a “reverse- Erie ” principle that generally leaves state courts

hearing maritime suits to their regular procedures. American Dredging

recognized that matters of venue have long been the province of state law in

Jones Act cases brought in state court. As with the doctrine of forum non

conveniens analyzed in American Dredging , the transfer of

silica-related Jones Act cases to the MDL pretrial court is a “supervening venue

provision” [76] where state court procedures can be

followed. The transfer of silica-related cases to an MDL court for consolidated

pretrial proceedings does not work material prejudice to a characteristic

feature of maritime law.

In short, the principles of Jones Act preemption are flexible enough to

accommodate general Texas rules governing the admission of expert

testimony, and also accommodate the Chapter 90 rules specific to expert

testimony in cases involving silica-related injuries and the consolidation of

silica cases in the MDL pretrial court for pretrial proceedings. These

Texas rules

and standards are not preempted.

2.

Preemption of Minimal-Impairment Provision

The Jones Act imposes no requirement for a minimal threshold of physical

injury, nor any limitation that only lung diseases that have progressed to a

specified level of physical impairment are covered. [77] GSF concedes that Chapter 90 cannot

impose a requirement that the plaintiff suffer from a minimal level of physical

impairment before he can obtain relief on his Jones Act claim. Accordingly,

section 90.004(b )( 2), providing that claimants alleging

silicosis must have sustained “at least Class 2 or higher impairment” cannot be

applied to Jones Act claims. [78] We further conclude that Chapter 90 must

not be interpreted to impose a higher standard of proof for causation than the

federal standard applicable to Jones Act cases. [79]

The preemption of section 90.004(b)(2) does not mean that the remaining

expert-report requirements of Chapter 90 and its provisions for pretrial

proceedings in the MDL pretrial court are preempted. We hold that these

non-preempted provisions should be followed in all applicable suits alleging

silica-related injuries and including a cause of action under the Jones Act. The

MDL pretrial court therefore erred in remanding this case to the trial

court.

III. Conclusion

We conditionally grant the writ of mandamus and direct the MDL pretrial

court to vacate its remand order, and to conduct further proceedings in a manner

consistent with this opinion. [80] We are confident the court will comply,

and the writ will issue only if it does not.

___________________________________

Don R. Willett

Justice

OPINION DELIVERED:

December 5, 2008

[1]

The Jones Act provides a cause of action to seamen injured in the course of

their employment. 46 U.S.C. § 30104 .

[2]

Under the “saving to suitors” clause of 28 U.S.C. § 1333 (1), a Jones Act claim

can be brought in state court. See Engel v. Davenport , 271 U.S. 33, 37 (1926); Stier v. Reading & Bates Corp. , 992 S.W.2d

423 , 428–29 (Tex. 1999).

[3]

See Act of May 16, 2005, 79th Leg., R.S., ch .

97, § 12, 2005 Tex. Gen. Laws 169 , 182 (adopting September 1, 2005 effective

date).

[4]

Tex. Civ. Prac. & Rem. Code

§§ 90.001–90.012.

[5]

Although Lopez alleged injuries from both asbestos and silica, GSF filed a

notice of transfer to the silica MDL pretrial court, and this mandamus action

concerns that court’s decision to remand the case to the trial court where it

was originally filed. We focus, therefore, on the Chapter 90 components relating

to silica-related injuries.

[6]

The report must be prepared “by a physician who is board certified in pulmonary

medicine, internal medicine, oncology, pathology, or, with respect to a claim

for silicosis, occupational medicine and whose license and certification were

not on inactive status at the time the report was made.” Id. §

90.004(a).

[7]

Id. §§

90.004(a )( 1)–(2), (e).

[8]

Id. §

90.004(a )( 3).

[9]

Id. §

90.004(a )( 4).

[10] Id. §§ 90.004(b)–(d).

[11] Id. For example, section 90.004(d)

states, “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.”

[12] See Tex. Gov’t Code §§ 74.024,

74.163.

[13] See In re Silica Prods. Liab . Litig . , 166 S.W.3d 3

(Tex. M.D.L. Panel 2004) (granting motion to establish Silica MDL pretrial

court); Tex. Gov’t Code § 74.162

(authorizing judicial panel on multidistrict litigation to transfer cases to MDL

pretrial court).

[14] See Tex. Gov’t Code § 74.162; Tex. R. Jud.

Admin. 13.6, 13.7, reprinted in Tex. Gov’t Code Ann. , tit. 2, subtit . F app. (Vernon).

[15] Tex. Civ. Prac. & Rem. Code §

90.007(a).

[16] Id. § 90.010(a )( 2).

[17] Id . Section 90.010(a )( 3) separately provides that the MDL rules do not apply to

actions filed before September 1, 2003, if the claimant “has been diagnosed with

malignant mesothelioma , other malignant

asbestos-related cancer, or malignant silica-related cancer.”

[18] Id. § 90.010(b).

[19] See Tex. R. Jud. Admin. 13.11(e).

[20] Tex. Civ. Prac. & Rem. Code §

90.010(b).

[21] Id. § 90.010(d). Besides the provisions

concerning expert reports and proceedings before an MDL court, Chapter 90 has

other miscellaneous provisions. For example, section 90.009 provides, “Unless

all parties agree otherwise, claims relating to more than one exposed person may

not be joined for a single trial.”

[22] ___ S.W.3d ___ ,_ __.

[23] Act of May 16, 2005, 79th Leg., R.S., ch . 97, §§ 1(d) ,( f), 2005 Tex. Gen.

Laws 169 ; see also Amchem Prods.,

Inc. v. Windsor , 521 U.S. 591, 597 (1997) (also noting an

“asbestos-litigation crisis” confronting the nation).

[24] Act of May 16, 2005, 79th Leg., R.S., ch 97, § 1(e), 2005 Tex. Gen. Laws 169 .

[25] Id. § 1(f).

[26] Id. §§ 1(g)–(h), 2005 Tex. Gen. Laws

169–70.

[27] Id. §§ 1( l )–(m), 2005 Tex. Gen.

Laws 170 .

[28] Id. § 1(n).

[29] See Tex. Civ. Prac. & Rem. Code §§

90.003–90.004.

[30] See id. § 90.010.

[31] Tex. Gov’t Code § 74.162.

[32] Id.

[33] In re Silica Prods. Liab . Litig . , 166 S.W.3d 3 , 6

(Tex. M.D.L. Panel 2004).

[34] See Tex. Civ. Prac. & Rem. Code §

90.004(b)(2).

[35] Some causation provisions of Chapter 90 may

also be preempted. See infra note 79 and accompanying text.

[36] In re Prudential Ins. Co. of Am. ,

148 S.W.3d 124 , 135–36 (Tex. 2004) (orig. proceeding).

[37] In re McAllen Med. Ctr. , ___S.W.3d___ ,_ __(Tex. 2008) (orig. proceeding); Prudential

Ins. Co. of Am. , 148 S.W.3d at 136 .

[38] Prudential Ins. Co. of Am. , 148 S.W.3d at 136 .

[39] Id.

[40] ___ S.W.3d at ___.

[41] Id. at ___.

[42] 46 U.S.C. § 30104 .

[43] The Arizona v. Anelich , 298

U.S. 110, 123 (1936).

[44] See supra note 2. We have noted that

preemption cases arising under admiralty law typically do not even mention the

more general line of preemption authority under the Supremacy Clause. Stier v. Reading & Bates Corp. , 992 S.W.2d

423, 428 (Tex. 1999).

[45] Romero v. Int’l Terminal Operating

Co. , 358 U.S. 354, 373 (1959).

[46] David W. Robertson, Displacement of State Law by Federal

Maritime Law , 26 J. Mar . L. & Com. 325, 327 (1995).

[47] Askew v. Am. Waterways Operators ,

411 U.S. 325, 341 (1973).

[48] Am. Dredging Co. v. Miller , 510

U.S. 443, 452 (1994).

[49] See Engel v. Davenport , 271 U.S. 33,

39 (1926) (holding that the Jones Act statute of limitations is a “provision

affecting the substantive right” created by the Jones Act and must prevail over

inconsistent state statute of limitations).

[50] Am. Dredging Co. , 510 U.S. at 453

(characterizing the state doctrine of forum non conveniens as “procedural

rather than substantive” and noting that “[u] niformity

of process (beyond the rudimentary elements of procedural fairness) is assuredly

not what the law of admiralty seeks to achieve, since it is supposed to apply in

all the courts of the world”).

[51] See Offshore Logistics, Inc. v. Tallentire , 477 U.S. 207, 222-23 (1986) (“Stated another

way, the ‘savings to suitors’ clause allows state courts to entertain in

personam maritime causes of action, but in such

cases the extent to which state law may be used to remedy maritime injuries is

constrained by a so-called ‘reverse- Erie’ doctrine which requires that

the substantive remedies afforded by the States conform to governing federal

maritime standards.”).

[52] Mar. Overseas Corp. v. Ellis , 971

S.W.2d 402, 406 (Tex. 1998).

[53] Texaco Ref. & Mktg., Inc. v. Estate

of Dau Van Tran , 808 S.W.2d 61, 64 (Tex. 1991).

[54] Stier

v. Reading & Bates Corp. , 992 S.W.2d 423, 425 (Tex. 1999); see

also Robertson, supra note

46, at 348 (“Anyone who began studying law after 1940 will have been brought up

on two rather intimidating notions about drawing the substance-procedure

distinction: it is done differently in different contexts, and in all contexts

it is hard to do.” (footnotes omitted)).

[55] 244 U.S. 205

(1917).

[56] Id. at 216 .

[57] Id. at 218 .

[58] 510 U.S. 443

(1994).

[59] Id. at 450 .

[60] Id. at 450-53 .

[61] Id. at 451 .

[62] Id. at 453 .

[63] Id. at 457 (discussing

Bainbridge v. Merch . & Miners Transp . Co. , 287 U.S. 278 (1932)).

[64] Id. at 453.

[65] 509 U.S. 579

(1993).

[66] See, e.g. , Mack Trucks, Inc. v.

Tamez , 206 S.W.3d 572, 579 (Tex. 2006) (applying

Kumho Tire Co. v. Carmichael , 526 U.S.

137 (1999)); Gammill v. Jack Williams

Chevrolet, Inc. , 972 S.W.2d 713 , 720–28 (Tex. 1998) (applying Daubert

and Gen. Elec. Co. v. Joiner , 522 U.S. 136 (1997), and recognizing

that relevancy and reliability requirements under Daubert’s interpretation of Federal Rule of Evidence

702 are also applicable to Texas Rule of Evidence 702); Merrell Dow Pharm ., Inc. v. Havner , 953

S.W.2d 706, 712 (Tex. 1997) (stating that reliability of expert testimony under

Texas law “is determined by looking at numerous factors including those set

forth in Robinson and Daubert ”); E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d

549 , 556–58 (Tex. 1996) (stating that “[w]e are persuaded by the reasoning in

Daubert ” and adopting standards for admission of expert testimony

consistent with Daubert ’s focus on relevance

and a reliabile foundation).

[67] Robinson , 923 S.W.2d at 557 (quoting

Daubert , 509 U.S. at 590 ).

[68] See infra note 79.

[69] See Wills v. Amerada Hess Corp. , 379

F.3d 32, 47 (2d Cir. 2004) (holding that even though a Jones Act “plaintiff

faces a relaxed burden of proof with regard to causation, the district court’s

admission of expert testimony is nonetheless governed by the strictures of

[Evidence] Rule 702 and Daubert ,” and noting that the Sixth and Ninth

Circuits have reached the same conclusion).

[70] See In re Silica Prods. Liab . Litig . , 398 F. Supp. 2d

563, 622 (S.D. Tex. 2005) (“A diagnosis [of silicosis] requires (1) an adequate

exposure to silica dust with an appropriate latency period, (2) radiographic

evidence of silicosis, and (3) the absence of any good reason to believe that

the radiographic findings are the result of some other condition . . . .

[T] hese three criteria are universally accepted, as

demonstrated by learned treatises and experts in the field.”).

[71] See id. at 624–25:

In the absence of an appropriate work/exposure history,

there is no way for the diagnosing doctors to have known the potential

intensities of respirable silica exposure, the

duration of the exposure, information as to dosage . . . as well as information

as to possible alternative causes of the radiographic findings . . . . Looking

no further than the first criterion, virtually all of the diagnoses fail to

satisfy the minimum, medically-acceptable criteria for the diagnosis of

silicosis, and therefore, the testimony of the challenged doctors cannot be

admissible under the standards set by Rule 702 and Daubert .

(footnote omitted). See also Borg-Warner Corp. v.

Flores , 232 S.W.3d 765 , 771–72 (Tex. 2007) (“[A] bsent any evidence of dose, the jury could not evaluate the

quantity of respirable asbestos to which Flores might

have been exposed or whether those amounts were sufficient to cause

asbestosis.”).

[72] In re Silica Prods. Liab . Litig . , 398 F. Supp. 2d

at 593 (also noting that “it is imperative that the diagnosing physician take at

least some portion of the histories”).

[73] See id. at 591–92 (noting that

chronic or classic silicosis is characterized by small round nodules, primarily

in the upper lungs, indicated by a p, q, or r rating under the International

Labour Office (ILO) system standardizing the

interpretation of chest x-rays, and that asbestosis is characterized by linear

scarring primarily in the lower lungs, characterized by irregular opacities

indicated by an s, t, or u rating in the ILO system); see also id. at 603

(noting that one testing company “managed to generate” 6,757 MDL silicosis

plaintiffs, of which 4,031 had previously made asbestosis claims, and that

“[t]he magnitude of this feat becomes evident when one considers that many pulmonologists , pathologists and B-readers go their entire

careers without encountering a single patient with both silicosis and

asbestosis”). Sections 90.003(a)(2)(C) and 90.003(c)(2), applicable to

asbestos-related claims, therefore specify that asbestosis can be verified by an

x-ray showing irregular opacities indicated by an s, t, or u rating, among other

requirements.

[74] See id. at 569 (“Chronic or classic

silicosis, the most common form, typically requires at least 15–20 years of

moderate to low exposure of respirable

silica.”).

[75] See id. at 591 (explaining that 1/0

and 1/1 ILO designations indicate some abnormality, while a first number of “0”

indicates no abnormality found, and first numbers greater than “1” indicate

increasingly abnormal readings).

[76] Am. Dredging Co. v. Miller , 510

U.S. 443, 453 (1994).

[77] We do not mean to suggest that the Jones

Act dispenses entirely with a requirement of physical injury, only that we are

unaware of a minimal level of physical impairment under the Act. See Norfolk

& W. Ry . Co. v. Ayers , 538 U.S. 135, 141, 159

(2003) (holding that in a case brought under the Federal Employers’ Liability

Act (FELA), 45 U.S.C. §§ 51–60, a plaintiff already suffering from asbestosis

can recover emotional distress damages associated with fear of developing

cancer, but a disease-free plaintiff merely exposed to asbestos cannot recover

emotional distress damages); Mar. Overseas Corp. v. Ellis , 971 S.W.2d

402, 406 (Tex. 1998) (“The Jones Act expressly incorporates FELA and the case

law developing that statute.”).

[78] We again note that we have not examined the

provisions of Chapter 90 relating to asbestos-related claims, and express no

opinion on whether any such provisions are preempted.

[79] See Mar. Overseas Corp. , 971 S.W.2d

at 406 (stating that the Jones Act requires use of a relaxed causation standard,

one that asks whether “employer negligence played any part, even the slightest,

in producing the injury”) (quoting Rogers v. Mo. Pac. R.R. Co. , 352 U.S.

500, 506 (1957)); but see Norfolk S. Ry . Co. v.

Sorrell , 549 U.S. 158 , 172–77 (2007) ( Souter , J.,

concurring) (concluding, in FELA case, that Rogers has been

misinterpreted and did not alter the common-law causation standard, but instead

merely rejected a sole causation requirement); see also id. at 178

(Ginsburg, J., concurring in the judgment) (“Today’s opinion leaves in place

precedent solidly establishing that the causation standard in FELA actions is

more ‘relaxed’ than in tort litigation generally.”).

[80] Lopez contends in the pending mandamus

action, apparently for the first time, that he filed a physician report that

complied with the non-preempted provisions of Chapter 90. GSF contends

otherwise. The MDL pretrial court and the court of appeals did not consider this

issue, and instead based their analysis on Lopez’s argument that Chapter 90 was

entirely inapplicable to Jones Act cases. We leave resolution of this issue to

the MDL pretrial court.