# in Re Globalsantafe Corporation

> Texas Supreme Court · December 5, 2008

URL: https://www.frixlaw.com/law-library/cases/3008421

## Case

- **Court:** Texas Supreme Court
- **Decided:** December 5, 2008
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3008421

## How later opinions describe it (automated extraction)

- 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”
- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3008421. Public record. Not legal advice.