Opinion

Opinion issued June 28, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-01141-CV

———————————

UNION CARBIDE CORPORATION, Appellant

V.

DAISY E. SYNATZSKE AND GRACE ANNETTE WEBB, INDIVIDUALLY

AND AS REPRESENTATIVES AND CO-EXECUTRIXES OF THE

ESTATE OF JOSEPH EMMITE, SR., JOSEPH EMMITE, JR., DOROTHY

A. DAY, VERA J. GIALMALVA AND JAMES R. EMMITE, Appellees

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Case No. 2007-43950

CONCURRING OPINION

After reviewing a report and testimony from Joseph Emmite’s lung doctor,

the trial court allowed this lawsuit to proceed past the petition stage. See TEX. CIV.

PRAC. & REM. CODE ANN. § 90.010(e)–(f) (West 2011). Based on medical

evidence of the kind the statute describes, the trial court found the treating

physician’s opinion that asbestos-related impairment existed reliable enough for a

lawsuit to proceed. On this record, the MDL trial court did not abuse its discretion

in reaching that conclusion. Because the record supports the trial court’s finding

that the proffered proof meets the requirements of section 90.010(f)(1), we concur

in the judgment affirming the order of the MDL pretrial court.

Discussion

Union Carbide seeks reversal of the trial court’s ruling for two reasons. As a

preliminary matter, Union Carbide contends that the trial court abused its

discretion in considering a physician’s report proffered well after the Emmites filed

their lawsuit. In challenging the merit of the trial court’s ruling, Union Carbide

contends that this report does not satisfy the statutory criteria for evidence of

impairment under section 90.010(f)(1), because the Emmites provided an

out-of-date pulmonary function test to Emmite’s pulmonologist, rather than recent

testing, and the pulmonologist, Dr. Prince, did not rely on this outdated testing to

conclude that Emmite had asbestos-related breathing impairment before his death.

I. Timing of Expert Reports

a. The First Motion to Dismiss and Reports Proffered Pursuant to

Section 90.003

When they filed their lawsuit, the Emmites filed an expert report pursuant to

section 90.003—the statute that governs the required expert reports in most

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asbestos cases. See TEX. CIV. PRAC. & REM. CODE ANN. § 90.003 (West 2011)

(prescribing filing of expert report meeting statutory criteria when claimant asserts

asbestos-impairment claim). Section 90.006 prescribes the time for filing an expert

report under section 90.003: it must be served within thirty days of the defendant’s

answer. See TEX. CIV. PRAC. & REM. CODE ANN. § 90.006(a) (West 2011).

The Emmites timely filed and served Dr. Kradin’s report on Union Carbide.

And they timely supplemented the Kradin report, with Dr. Britton’s report, after

Union Carbide moved to dismiss their claims. See TEX. CIV. PRAC. & REM. CODE

ANN. § 90.007(a) (West 2011) (permitting motion to dismiss in response to

claimant’s failure to timely serve report or failure to serve report that complies

with section 90.003 or 90.004); see also id. § 90.007(b) (“A claimant may file a

response to a motion to dismiss on or before the 15th day after the date the motion

to dismiss is served. A report required by Section 90.003 or 90.004 may be filed,

amended, or supplemented within the time required for responding to a motion to

dismiss.”).

The MDL court considered Union Carbide’s motion to dismiss at a

September 2007 hearing. The trial judge denied the motion on the record, but did

not issue a written order. Union Carbide did not object to the court’s failure to sign

a written order, nor did it seek appellate relief from the trial court’s ruling. In its

briefing, Union Carbide acknowledges that it could have obtained a written order

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from the MDL judge or filed an interlocutory appeal. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(11) (West Supp. 2011). Instead, Union Carbide requested

that the trial court reconsider its ruling. Because it did not appeal the ruling

denying its motion to dismiss within twenty days of the ruling, Union Carbide

forewent its right to an interlocutory appeal of the denial of its motion to dismiss.

See TEX. R. APP. P. 26.1(b).

In November 2007, the MDL court heard Union Carbide’s motion to

reconsider. The court declined to rule on the motion during the hearing. At the

hearing, the Emmites—still proceeding under section 90.003—alerted the MDL

court that they planned to produce an amended death certificate, listing asbestosis

as a contributing cause of Emmite’s death. According to the plurality, the MDL

court impliedly considered this a motion to extend time under section 90.007(e) to

introduce supplemental evidence into the record, and the MDL court did not abuse

its discretion in granting a six-week extension to the Emmites. See TEX. CIV.

PRAC. & REM. CODE ANN. § 90.007(e) (“On the motion of a party showing good

cause, the court may shorten or extend the time limits provided in this section for

filing or serving motions, responses, or reports.”).

We disagree with the plurality’s analysis. In refusing to dismiss the case, the

MDL court determined that Union Carbide’s September 2007 motion to dismiss

lacked merit. In doing so, the court impliedly concluded that the claimant’s report

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complied with section 90.003. See id. § 90.007(c). Thus, the Emmites had no

reason to seek an extension to cure their report or supplement it. But if the court

had concluded that the report was deficient, the claimants could not have cured it at

that point. The statute requiring dismissal is mandatory, not permissive; it

provides that, “if the court is of the opinion that a motion to dismiss is

meritorious, the court shall, by written order, grant the motion . . . .” See id.

Although section 90.007(e) allows the trial court to “extend the time limits

provided . . . for filing or serving motions, responses, or reports” for good cause

shown, it does not permit claimants to cure a deficient report once the trial court

has decided the matter. See id. § 90.007(e). Section 90.007 is unlike other statutes

that grant time for a claimant to cure a report once a trial court has found it

deficient. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (c) (West

2011) (requiring expert report in suit against doctor for medical liability and

granting trial court discretion to grant one thirty-day extension for failure to serve

adequate report), and TEX. CIV. PRAC. & REM. CODE ANN. § 128.053(c) (West

Supp. 2011) (requiring expert report in suit against sport-shooting range and

granting trial court discretion to grant one thirty-day extension to cure deficient

report), with TEX. CIV. PRAC. & REM. CODE ANN. § 90.007 (requiring expert report

in suit for asbestos impairment but containing no provision for extension of time to

cure deficient report), and TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(a), (c)

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(West 2011) (requiring certificate of merit in suit against licensed professional but

containing no provision for extension of time to cure deficient report), and Sharp

Eng’g v. Luis, 321 S.W.3d 748, 754 n.10 (Tex. App.—Houston [14th Dist.] 2010,

no pet.) (Sullivan, J., concurring) (noting lack of opportunity to cure deficient

report filed under Chapter 150). Under section 90.007, a trial court has no

authority to reopen the record after denying a motion to dismiss to permit

claimants to cure a timely filed, but otherwise deficient report. Instead, the

claimant must file a new lawsuit, attaching a complying report. See TEX. CIV.

PRAC. & REM. CODE ANN. § 90.007(c) (“A dismissal under this section is without

prejudice to the claimant’s right, if any, to assert claims for an asbestos-related

injury or a silica-related injury in a subsequent action.”).

Union Carbide’s participation in the discovery process did not waive its

appellate complaint. See Pro Plus, Inc. v. Crosstex Energy Servs., L.P.,

01-11-00025-CV, 2012 WL 404500, at *14, — S.W.3d — (Tex. App.—Houston

[1st Dist.] Feb. 9, 2012, pet. filed) (participating in litigation process and discovery

did not waive right to seek motion to dismiss for failure to timely file certificate of

merit in suit against licensed professional). Courts have held that participating in

the litigation process or delaying pursuit of dismissal, without more, does not show

intent to waive a right to dismissal. See, e.g., Jernigan v. Langley, 111 S.W.3d

153, 157–58 (Tex. 2003) (doctor did not waive motion to dismiss even though he

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waited more than 600 days to file motion, participated in discovery, and moved for

summary judgment); Ustanik v. Nortex Found. Designs, Inc., 320 S.W.3d 409, 414

(Tex. App.—Waco 2010, pet. denied) (participating in discovery process does not,

alone, constitute waiver); DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 411

(Tex. App.—Dallas 2010, pet. denied) (waiting more than one year to file

dismissal motion did not manifest intent to waive). Participating in the litigation

process by conducting discovery does not manifest a defendant’s intent to waive a

right to seek dismissal. See Ustanik, 320 S.W.3d at 414. Dismissal of the suit

against it is ultimately any defendant’s goal.

b. Consideration of Section 90.010 Reports and Evidence Introduced in

Response to Union Carbide’s Pending Motion to Reconsider

Union Carbide’s motion to reconsider remained pending before the trial

court from October 2007 until December 2009. The parties did not press the trial

court for a ruling on Union Carbide’s motion to reconsider, and they continued to

seek and offer evidence into the record. Significantly, during this time, the

Emmites elected to proceed under section 90.010. As Chapter 90 contemplates

that reports filed under section 90.010 are not subject to the same timing

requirements that govern reports filed under section 90.003, the trial court did not

abuse its discretion in considering this supplemental evidence.

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The Emmites invoked section 90.010’s safety-valve provision in response to

Union Carbide’s renewed request that the case be dismissed. See TEX. CIV. PRAC.

& REM. CODE ANN. § 90.010(e)–(f). Citing the “extraordinary circumstances”

provision of the asbestos statute, the Emmites proffered new expert reports into the

record, including one from Dr. Prince, the board-certified pulmonologist who saw

Emmite in the hospital before he died. See id. The Emmites also introduced an

amended death certificate signed by Dr. McClure into the record, listing asbestosis

as a cause of Emmite’s death.

During a January 2008 hearing (the second hearing on the motion to

reconsider), the MDL court noted that the Emmites had invoked section 90.010

and had requested an evidentiary hearing to determine whether their claim met

Chapter 90’s safety valve. See id. The MDL court granted the Emmites’ motion

for a full evidentiary hearing. See id. § 90.010(g). The court also granted Union

Carbide’s request to depose Dr. McClure. In reply, the Emmites offered Dr.

Prince’s amended report into the record.

In November 2009, the MDL court held a third hearing on Union Carbide’s

motion to reconsider and ordered Union Carbide to file written objections to Dr.

Prince’s report. Union Carbide complied, while maintaining that the trial court

should not consider Dr. Prince’s amended report because it was not timely filed

and did not meet the statutory criteria set forth in section 90.010. In December

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2009, the trial court denied Union Carbide’s renewed motion to dismiss by written

order.

According to Union Carbide, the trial court had no discretion to consider any

of the evidence—and in particular, Dr. Prince’s final report—beyond Dr. Kradin’s

report and Dr. Britton’s initial reports, because Dr. Prince’s report was not served

together with the Emmites’ lawsuit. Proceedings under section 90.010’s safety

valve, it argues, are subject to the same filing and time constraints as those that

govern section 90.003. The structure of the statute, however, suggests the

opposite conclusion—that a trial court’s decision under section 90.010 is not

similarly time-constrained.

When construing a statute, we examine its plain meaning. State v.

Shumake, 199 S.W.3d 279, 284 (Tex. 2006); City of San Antonio v. City of

Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Our objective is to determine the

legislature’s intent. Shumake, 199 S.W.3d at 284. In discerning this intent, we

may consider other matters, including the objective of the law, its legislative

history, and the consequences of a particular construction. See TEX. GOV’T CODE

ANN. § 311.023(1), (3), (5) (West 2005); Union Bankers Ins. Co. v. Shelton, 889

S.W.2d 278, 280 (Tex. 1994). Applying these principles, we conclude that the trial

court was within its discretion to consider the medical reports before it.

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First, Chapter 90 does not require the election that Union Carbide advances.

Chapter 90 does not prohibit a claimant from invoking section 90.010 after

foundering (or, in this case, prevailing) under section 90.003. If a claimant

proceeds under the section 90.010 safety valve, the legislature made the

case, expressly, an “except[ion]” to the mandatory dismissal rules contained in

section 90.007. TEX. CIV. PRAC. & REM. CODE ANN. § 90.007(c) (“Except as

provided by Section 90.010(d) or (e), if the court is of the opinion that a motion to

dismiss is meritorious, the court shall . . . grant the motion . . . .”). Section

90.010(g) requires that the MDL court afford the parties a reasonable discovery

period, and it must hold an evidentiary hearing to address the merit of the motion

to dismiss. Id. § 90.010(g). The MDL court must make specific fact findings in

support of its decision. Id. § 90.010(h). An MDL court’s determination under

section 90.010 thus is one beyond section 90.007’s prima facie acceptance or

rejection of the initial report filed at the outset of the lawsuit. Unlike section

90.003, section 90.010 expands the trial court’s consideration of evidence well

beyond the initial report—and is silent as to deadlines for this

supplementation, leaving them to the MDL court.

Second, Dr. Prince’s report was not served in response to Union Carbide’s

initial motion to dismiss. The Emmites had prevailed on that matter with a report

that they had timely served. The Emmites filed supplemental expert

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reports, including Dr. Prince’s report, and Union Carbide deposed Dr. McClure

and Dr. Prince—all in connection with Union Carbide’s renewed request that the

trial court dismiss the case. Significantly, during that time, the Emmites elected to

proceed under the safety valve, the part of the statute that expressly allows for

supplementation of the evidentiary record. Nothing in the statute prohibited the

court from considering this evidence—including Dr. Prince’s report—in response

to Union Carbide’s December 2009 renewed motion to dismiss. See id.

§ 90.010(g) (requiring reasonable discovery period and an evidentiary hearing).

Section 90.010(g) does not impose a time frame—neither for obtaining

discovery, nor for the completion of the hearing. Section 90.010(e) does not

require that a report complying with subsection (f)(1) be served within the time

frame required under section 90.006. See id. § 90.010(e). Concomitantly, section

90.006 requires only that section 90.003 and 90.004 reports (not section

90.010(f)(1) reports) be filed within thirty days after a defendant answers the

lawsuit. TEX. CIV. PRAC. & REM. CODE ANN. § 90.006(a).

Union Carbide replies that, even if the statute does not contain timing

requirements prohibiting the filing and consideration of Dr. Prince’s report, the

delay in this case is not reasonable, as it undermines the legislature’s intent that

Chapter 90 operate to weed out frivolous asbestos claims early in litigation. We

agree that the legislature enacted Chapter 90 to weed out claimants who cannot

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show breathing impairment, and early consideration of dismissal is the

contemplated norm for all but the rarest of asbestos cases. But the legislature

enacted section 90.010 for the “exceptional and limited” case, one outside the

norm. See id. § 90.010(j). It narrowly defined the parameters of such a case in

detail. Section 90.010 does not impose a deadline for the length of time of

discovery, nor for conducting an evidentiary hearing, nor for the ultimate ruling on

the merit of the motion to dismiss. Section 90.006 does not impose its timing

requirements for reports filed under 90.010, but rather only for those under section

90.003 and 90.004. Even if it did, the practical effect on a meritorious section

90.010 report would be limited, because any dismissal under the statute is without

prejudice to refiling the suit. See id. § 90.007(c). Under the procedure the

legislature established in section 90.010, we hold that the trial court was not

confined to the Emmites’ original report (as amended) in considering Union

Carbide’s renewed request for dismissal, and could consider Dr. Prince’s section

90.010(f)(1) amended report.

II. Compliance With Requirements of Section 90.010

Union Carbide claims that the MDL court’s findings lack an element of

necessary support—a recent, as opposed to an out-of-date, pulmonary function test.

The plurality agrees, decides that Dr. Prince’s report is deficient under the

statute, and declares the law unconstitutional for this reason.

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a. Standard of Review

Three principles encouraging our deference to the trial court’s order are in

play. First, in determining legislative intent, we accord statutes their plain and

common meaning. Shumake, 199 S.W.3d at 284. Second, the legislature presumes

that a court will interpret its enactments in a manner abiding with the constitution,

if a constitutional interpretation reasonably can be afforded. See TEX. GOV’T CODE

ANN. § 311.021 (West 2005). The overarching intent of the legislature, in passing

any enactment, is that it comply with our state and federal constitutions. See id.

(“In enacting a statute, it is presumed that . . . compliance with the constitutions of

this state and the United States is intended . . . .”). Accordingly, “[w]e presume

that a statute passed by the Legislature is constitutional.” Nootsie, Ltd. v.

Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). A court must

not hold a legislative enactment to be unconstitutional unless it is absolutely

necessary to so hold. Texas State Bd. of Barber Exam’rs v. Beaumont Barber

Coll., Inc., 454 S.W.2d 729, 732 (Tex. 1970) (citing Smith v. Patterson, 111 Tex.

535, 538 (1922); State v. Brownson, 94 Tex. 436, 439 (1901); Lytle v. Halff, 75

Tex. 128, 132 (1889)). Thus, we construe statutes to avoid constitutional

infirmities, if possible. Nootsie, 925 S.W.2d at 662.

Third, the trial court is the main arbiter of questions of proof, and section

90.010 expressly vests the trial court with reliability and credibility determinations.

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See TEX. CIV. PRAC. & REM. CODE ANN. § 90.010(f)(2)(A) (“[T]he MDL pretrial

court shall determine whether . . . the report and medical opinions offered by the

claimant are reliable and credible . . . .”). We should reverse only if these

determinations are an abuse of its discretion. See Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (trial court dismissal under

former article 4591i, that required trial court to determine if an expert report was

made in good faith based on whether it “appear[ed] to the court” that it did so, was

reviewed for an abuse of discretion); see also Curtis & Windham Architects, Inc. v.

Williams, 315 S.W.3d 102, 106 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(reviewing a trial court’s decision to deny a motion to dismiss for failure to file a

certificate of merit under an abuse of discretion standard); Palladian Bldg. Co.,

Inc. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.—Fort Worth

2005, no pet.) (reviewing trial court’s dismissal in suit against professional for

abuse of discretion and observing, “we must decide whether the trial court acted

without reference to any guiding rules or principles; in other words, whether the

act was arbitrary or unreasonable.”) (citing Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985)). With these principles in mind, we turn to

whether the MDL court erred in concluding that Dr. Prince’s report satisfied

section 90.010(f)(1).

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b. Section 90.010(f)(1) Requirements

Chapter 90 provides a safety valve for asbestos claimants who, due to

“extraordinary physical or medical characteristics,” cannot meet its typical

pulmonary-impairment proof requirements. See TEX. CIV. PRAC. & REM. CODE

ANN. § 90.010(f)(2)(B), (h)(1), (j). That safety valve still requires a physician’s

report with reliable indicia of trustworthiness. See id. § 90.010(f)(1)(A)–(B).

But, with regard to pulmonary function testing, the safety-valve requirement is

different: rather than requiring that pulmonary function testing reveal particular

results, the safety-valve section requires only that pulmonary function testing “has

been performed on the exposed person,” and “the physician making the report has

interpreted the pulmonary function testing.” Id. § 90.010(f)(1)(B)(ii). The

provision supposes that the MDL court may accept other medical proof as a

reliable foundation for a physician’s opinion—and that a treating doctor may reject

the usefulness of pulmonary function testing. See id. § 90.010(f)(1), (g).

In this single instance—over years of handling the MDL asbestos docket—

the MDL court found that the “extraordinary circumstances” section 90.010 allows

this lawsuit to proceed, absent the typical pulmonary function results indicating

breathing impairment. Dr. Prince opined that Emmite’s debilitating illness

rendered him unable to take a pulmonary function test when Dr. Prince examined

him during a 2005 hospital visit. Emmite, however, had on occasion performed

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pulmonary testing—albeit historic and not recent, and conducted by his employer.

The Emmites provided these test results to Dr. Prince, who reviewed and

interpreted the results. Compliance with the plain wording of the statute is

undisputedly present. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 90.010(f)(1)(B)(ii); see also City of San Antonio, 111 S.W.3d at 25 (directing

courts to first look to “plain and common meaning of statute’s words” in cases

involving statutory construction).

The plurality correctly observes that the historic test results, although a part

of Emmite’s medical history, played no role in Dr. Prince’s diagnosis of

pulmonary impairment. But the statute does not require that they do. A test must

be performed, and it must be interpreted; but section 90.010 contains no provision

that the testing be the basis for an impairment diagnosis. See TEX. CIV. PRAC. &

REM. CODE ANN. § 90.010(f)(1). Instead, section 90.010 lists other evidence that

can support a treating physician’s conclusion that the claimant has asbestos-related

impairment “comparable to the impairment the exposed person would have had” if

he could meet the pulmonary function testing requirements of the statute, like

pathologic and radiographic results. See id. § 90.010(f)(1)(B)(iii), (iv). The

statutory language vests the MDL court with discretion to make the determination

whether the physician’s report—a report that is not based on a pulmonary function

test, but is comparable—is adequate. See id. § 90.010(f)(2).

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The MDL trial court in this case made preliminary fact-findings after an

evidentiary hearing. Among these: Emmite worked as an insulator for

approximately thirty-nine years; some evidence exists that Emmite’s death was in

part caused by asbestos; Emmite suffered from physical and mental

limitations, which made it impossible for him to take a pulmonary function test;

and, had Emmite been capable of performing a pulmonary function test, the results

would have demonstrated pulmonary impairment greater than that required under

section 90.003 of the Texas Civil Practice and Remedies Code. The evidence that

supports these impairment findings includes: (1) records of a diagnostic and

therapeutic medical procedure—a thoracentesis—where doctors removed fluid

from Emmite’s lungs, revealing findings consistent with an exudative pleural

effusion and asbestosis, (2) an autopsy report, (3) Joseph Emmite’s medical

records and occupational history, and (4) a chest CT scan revealing extensive

pleural and diaphragmatic calcifications, a right pleural effusion, and bilateral

interstitial fibrotic patterns. Union Carbide has not challenged the sufficiency of

the evidence supporting the court’s factual findings. Nor did Union Carbide

proffer an expert to controvert Dr. Prince’s conclusion that Joseph Emmite

suffered asbestos-related impairment during his lifetime. We should defer to the

evidentiary findings of the MDL pre-trial court, because they are reasonable and

supported by the evidence. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211

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(Tex. 2002) (trial court does not abuse its discretion if some evidence of

substantive and probative character supports the trial court’s decision). The MDL

judge also found that, had Emmite performed a recent pulmonary function test, the

test would have “demonstrated pulmonary impairment greater than required under

Texas Civil Practice and Remedies Code § 90.003.” Union Carbide does not

challenge that finding.

In concluding that Dr. Prince’s report satisfies the requirements of section

90.010(f)(1)(B)(ii), we do not read section 90.010(f) in a vacuum. Section

90.010(f)—which applies to MDL proceedings only and grants an MDL judge the

discretion to accept substitute proof for extraordinary reasons—contains

safeguards to eliminate unmeritorious claims for asbestos-related impairment.

These safeguards differ from those contained in section 90.003. Nevertheless, they

erect barriers to limit the application of section 90.010 to extraordinary cases. See

TEX. CIV. PRAC. & REM. CODE ANN. § 90.010(j) (“Subsections . . . (e)–(i) . . . apply

only in exceptional and limited circumstances in which the exposed person does

not satisfy the medical criteria of Section 90.003 or 90.004 but can demonstrate

meaningful asbestos-related . . . physical impairment that satisfies the requirements

of subsection (f).”). An expert report filed in accord with section 90.010(f)(1)

must meet the following requirements: (1) the expert report must satisfy selected

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statutory criteria contained in section 90.003,1 (2) the expert making the report

must have a physician-patient relationship with the exposed person, (3) the expert

must conclude that radiographic, pathological, or CT evidence establishes bilateral

pleural disease, and (4) the physician must conclude that the impairment is

sufficiently serious to be comparable to the statutory criteria for impairment set

forth in section 90.003(a)(2)(D). TEX. CIV. PRAC. & REM. CODE ANN.

§ 90.010(f)(1)(A)–(B). After conducting an evidentiary hearing, the MDL judge—

who is appointed by the Chief Justice of the Texas Supreme Court and who

routinely hears issues regarding asbestos cases—must make written fact findings.

Id. § 90.010(f)(2), (h)(1)–(2). Among these, the MDL judge must find that: (1) the

treating physician’s report is “reliable and credible,” (2) the claimant’s “unique or

extraordinary physical or medical characteristics” render the statutory medical

criteria set forth in section 90.003 inadequate to assess the claimant’s physical

1

Section 90.010(f)(1)(A) requires that a report meet criteria set forth in

section 90.003. TEX. CIV. PRAC. & REM. CODE ANN. § 90.010(f)(1)(A). The

report must be completed by a physician who is board certified in pulmonary

medicine, internal medicine, or occupational medicine. Id. § 90.003(a)(2). It

must verify that the physician (1) performed a physical examination of the

person or reviewed available medical records, (2) took a detailed

occupational history from the exposed person or, if the claimant is deceased,

from a person knowledgeable about the alleged exposure, (3) took a detailed

medical and smoking history, including other medical problems and their

probable causes. Id. § 90.003(a)(2)(A). The report must also (1) verify that

at least ten years have elapsed between the exposure to asbestos and the date

of the diagnosis, (2) rule out other causes of the impairment, and (3) attach

pertinent test results. Id. § 90.003(a)(2)(B), (E), (F).

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impairment, and (3) the claimant’s physical impairment is comparable to the

statutory medical criteria for impairment under 90.003. Id.

Union Carbide contends that Dr. Prince’s report does not satisfy a different

safeguard—the pulmonary testing requirement. See id. § 90.010(f)(1)(B)(ii). In so

doing, Union Carbide asks the Court to adopt a statutory construction that any

pulmonary function testing must meet three criteria for test results to pass statutory

muster, even under the safety valve: (1) a measurement level that is above normal

but below the statutory medical criteria and thus demonstrates some

impairment, (2) a recency requirement, and (3) reliance by the treating physician

on the results for his diagnosis. Union Carbide contends that, because the

pulmonary function testing the Emmites proffered reveals normal results, was not

in connection with hospitalizations before Emmite’s death, and Dr. Prince did not

use the test to diagnose Emmite, the suit must be dismissed. The plurality adopts

this statutory construction, concluding that Dr. Prince’s report is defective, thus

rendering the statute an unconstitutional, ex post facto law, is its view.

We disagree with such a construction. First, the legislature did not create the

impairment measurement criteria that Union Carbide seeks to advance. Rather, the

legislature created one definition for impairment reflected in pulmonary tests for

section 90.003 cases, and expressly granted discretion to the MDL court to

consider other test results when pulmonary function test results do not satisfy the

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90.003 medical criteria—the statute even lists sources of alternative medical proof.

Compare TEX. CIV. PRAC. & REM. CODE ANN. § 90.003 (listing pulmonary

function test requirements for expert report in asbestos-related impairment

cases), with TEX. CIV. PRAC. & REM. CODE ANN. § 90.010 (granting MDL trial

court discretion to consider expert report that does not satisfy medical criteria of

section 90.003, provided report meets alternative requirements and demonstrates

meaningful impairment). A claimant invokes the safety-valve provision only when

he cannot satisfy the statutorily-required medical criteria for pulmonary function

testing under section 90.003.2 See TEX. CIV. PRAC. & REM. CODE ANN.

§ 90.010(e), (j). The very existence of the safety-valve provision suggests that the

legislature intended to allow a treating physician (and, ultimately, the MDL judge)

to reject useless pulmonary function test results when other strong medical

evidence supports a finding of impairment. The relevance of these test results

cannot be determined by measurement levels alone.

Second, Union Carbide suggests that the claimant’s tests are not relevant

because they are decades old. But test results that are part of a patient’s medical

history may be relevant even though they are old. For example, old pulmonary

function test results may help determine the onset of impairment. And normal test

results may indicate no breathing impairment caused by exposure at the time.

2

If the minimum statutory criteria can be satisfied, the other criteria set forth

in section 90.003(a)(2) presumably will also be satisfied.

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Either circumstance may cause the MDL trial judge to question the credibility and

reliability of a physician’s report who disregards their diagnostic value. In such a

case, the MDL judge could, in the exercise of his discretion, deny the plaintiff from

bringing a suit under the safety valve provision.

Finally, Union Carbide claims that the treating physician must rely on

pulmonary function test results in reaching his diagnosis. Dr. Prince admits that he

did not rely on the old pulmonary function test results in reaching his impairment

opinion, states that Emmite was physically incapable of performing such a test at

the time he saw him in the hospital, and that a pulmonary function test would have

shown impairment if Emmite could have completed one. Union Carbide’s

argument is premised on its assertion that the pulmonary function testing

requirement is meaningless without a doctor’s reliance on the test results—results

that the safety-valve provision contemplates are infirm under section 90.003. We

disagree. The legislature reasonably adopted criteria to allow the MDL judge

discretion to weigh all the medical evidence in cases by claimants with “unique or

extraordinary physical or medical characteristics.” TEX. CIV. PRAC. & REM. CODE

ANN. § 90.010(f)(2)(B), (C) (requiring trial judge to find that, due to extraordinary

circumstances, medical criteria in section 90.003 do not address claimant’s

impairment, but requiring sufficient credible evidence to allow fact finder to

conclude that claimant suffered impairment comparable to standards set forth in

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section 90.003). Section 90.010(f)(1)(B)(ii) contains no directive requiring proof

that the treating physician rely on the pulmonary function test results to conclude

that a claimant is impaired from asbestos exposure. To the contrary, under that

section, a claimant seeks to prove impairment based on other medical evidence—

for the very reason that the pulmonary function test is unreliable. It was those sorts

of instances that the safety valve was intended to address. If a statutory reading

requiring reliance on these results springs constitutional doubt, and another

reasonable interpretation exists, then it is not the interpretation that the legislature

intended. See TEX. GOV’T CODE ANN. § 311.021. We will not read language

into the statute that the legislature did not include. See Iliff v. Iliff, 339 S.W.3d

74, 80–81 (Tex. 2011); see also Lee v. City of Houston, 807 S.W.2d 290, 294–95

(Tex. 1991) (observing that courts may not judicially amend statute to add words

not implicitly contained in statute); Duncan, Wyatt & Co. v. Taylor, 63 Tex. 645,

649 (1885) (declaring that courts may not add statutory conditions or provisions

not included by legislature). We conclude that the report meets the statutory

criteria: the claimant tendered pulmonary function test results to his treating

physician, and the physician verified that he reviewed and interpreted the testing.

See TEX. CIV. PRAC. & REM. CODE ANN. § 90.010(f)(1)(B)(ii).

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Conclusion

Chapter 90 prevents meritless or premature asbestosis claims from clogging

the court system. The MDL court found this suit to be neither premature nor

wholly meritless. The plurality rejects the MDL court’s findings and a

constitutional reading of the statute in favor of an expansive

interpretation, requiring that pulmonary function testing be of a particular kind at a

certain date. Just such an interpretation, it holds, renders the statute an

unconstitutional ex post facto law. Whether a new proof requirement in a nascent

wrongful death case is an ex post facto law under the constitution is one question.

But the MDL court found that the statute’s proof requirement was met. The MDL

court’s decision holds sway and should be evaluated in light of a constitutional

reading of the statute, because one can be had. We conclude that the trial court did

not abuse its discretion in refusing to dismiss the case, because sufficient evidence

supports its findings under section 90.010.

Jane Bland

Justice

Panel consists of Justices Jennings and Sharp.

A majority of the justices of the Court voted in favor of reconsidering the case en

banc. TEX. R. APP. P. 49.7.

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The en banc court on reconsideration consists of Chief Justice Radack and Justices

Jennings, Keyes, Higley, Bland, Sharp, and Brown.

Justice Jennings, writing for the En Banc Court, joined by Justices Higley and

Sharp.

Justice Keyes joins parts I, II, III, and IV of the En Banc Opinion.

Justice Bland, concurring in the judgment, joined by Chief Justice Radack and

Justice Brown.

Justice Keyes, dissenting from the judgment.

Justices Massengale and Huddle not sitting.

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