in Re: Texas State Silica Products Liability Litigation ( 2015 )

ACCEPTED
01-15-00251
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/22/2015 4:59:51 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00251-CV
__________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 7/22/2015 4:59:51 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
__________________________________________________________
In Re Texas State Silica Products Liability
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Appeal from the 333rd District Court of Harris County, Texas
Trial Court Cause No.: 2004-7000
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APPELLANTS’ RESPONSE TO APPELLEES’
MOTION TO DISMISS APPEAL OR, ALTERNATIVELY,
TO STRIKE APPELLANTS’ BRIEF
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
This appeal is based on the MDL Court’s order denying interlocutory
injunctive relief to Appellants and the Court of Appeals has jurisdiction over the
appeal on the following grounds:
I. THE MDL COURT’S RULING ON APPELLANTS’ MOTION FOR
TEMPORARY INJUNCTION.
Before addressing the injunction hearing upon which Appellees’ Motion is
based, it is important to note that during the pendency of this appeal, all other
silicosis cases filed prior to 2005 have been or are being dismissed in accordance
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with Chapter 90.101 (d-1). See, Exhibit 1, MDL Court Dismissal Orders. To date,
4577 silicosis cases, previously filed before 2005 have been dismissed. Id. By
August 31, 2015, the only remaining pre-2005 silicosis cases left in the state of
Texas will be the Appellants.
On August 19, 2014, the MDL Court issued an Amended Order denying
Appellants’ Request for Temporary Injunction to Enjoin Enforcement of Chapters
90.004 and 90.010 of the Texas Civil Practice and Remedies Code. (CR 1639-40)
This Order also sets out the MDL Court’s approval of a stipulation by the parties
dated May 19, 2014. (CR 1640) The parties stipulated that the only matter
currently under consideration by the MDL Court is the request for temporary
injunction. Id. Ultimately, the MDL denied Appellants’ Request for Temporary
Injunction. (CR 1639-40). By holding that the Plaintiffs’ complaints were not
ripe, the MDL Court issued a specific ruling denying the Plaintiffs’ request for
temporary injunction. (CR 1640 at ¶ 5)
Based upon the MDL Court’s specific rulings, this appeal is from an
interlocutory order refusing a temporary injunction which greatly prejudices
Appellants by forcing a dismissal of their cases. See, Tex. Civ. Prac. & Rem. Code
51.014 (a) (4). Consequently, this appeal arises from the denial of Appellants’
Request for Temporary Injunction to enjoin the enforcement of Chapters 90.004
and 90.010 of the Texas Civil Practice and Remedies Code on the grounds that
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these statutes are unconstitutional. Section 51.014(a)(4) of the Texas Civil
Practices and Remedies Code provides for an interlocutory appeal of the denial of
a temporary injunction. Id. Appellants originally appealed to the Texas Supreme
Court in accordance with Section 22.001(c) of the Texas Government Code and
Acts 2005, 79th Leg. R. S. Ch. 97 Sec. 10 (“S.B.15”).1 When the Supreme Court
denied consideration of the appeal, Appellants filed this appeal pursuant to TRAP
57.5. Thus, this Court has jurisdiction over Appellants’ interlocutory appeal.
III. APPELLEES’ CLAIM THAT THE CONSTITUTIONAL
CHALLENGE IS NOT RIPE IS MOOT.
The MDL Court abused its discretion in determining that the Appellants’
constitutional challenge was not ripe. (CR 1640) Presently, the challenge could
not be more ripe because of the Legislature’s 2013 amendment to Chapter 90.
Tex. Civ. Pract. & Rem. Code § 90.010 (d-1) (2013). Under this amendment, all
silicosis cases will be dismissed by August 31, 2015, as mandated by the statute.
Chapter 90.010 (d-1) of the Texas Civil Practice and Remedies Code. This matter
was, in fact, briefed in Appellants’ Brief on pages 50-52. The futility of
Appellees’ Motion is demonstrated by the dismissal mandate in Chapter 90.010 (d-
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The Legislature provided a direct appeal to the Supreme Court from an order, however
characterized, of a trial court granting or denying a temporary or otherwise interlocutory
injunction or a permanent injunction on the grounds of constitutionality or unconstitutionality, or
other validity or invalidity, under the state or federal constitution of all or any part of this Act.
(CR 1st Supp. V2, 524) The direct appeal is an accelerated appeal.
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1). By August 31, 2015, Appellants’ cases face dismissal. At that point, as a result
of the final disposition of their claims, Appellants would then have the right to
appeal the dismissals as final, appealable orders from a trial court. See, TRAP
Rule 25 (c). The actual effect of the Appellees’ Motion, if it were granted, would
be to dismiss this appeal, only to have hundreds of appeals appear on this Court’s
docket in September, after the dismissal orders are entered. Since Appellants are
faced with certain dismissal of their silicosis claims, their constitutional challenge
satisfies the ripeness requirement under Texas law.
The Supreme Court describes ripeness as a question of timing. Perry v. Del
Rio, 66 S.W.3d 239, 250 (Tex. 2011); citing, Abbott Labs v. Gardner, 387 U.S.
136, 149, 87 S. Ct. 1507 (1967). “The central concern is whether the case involves
uncertain or contingent future events that may not occur as anticipated, or indeed
may not occur at all.” In this regard, a court is required to “evaluate both the
fitness of the issues for judicial decision and the hardship to the parties of
withholding court decision.” Id. “Hardship is shown when a statute ‘requires an
immediate and significant change in the plaintiffs’ conduct of their affairs with
serious penalties attached to noncompliance.” Mitz v. State Bd. of Veterinary Med.
Exam’rs, 278 S.W.3d 17, 26 (Tex. App. – Austin 2008, pet. dism’d) (quoting
Abbott Labs v. Gardener, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507
(1967) (emphasis added).
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In this case, statutory mandate dictates that by August 31, 2015, the
Appellants’ cases will be dismissed. This dismissal represents an immediate and
significant change in the conduct of Appellants’ affairs because Appellants’ can no
longer prosecute their cases. The Appellants face the hardship of having their
pending lawsuit dismissed and stripped from them. If they want to continue to
pursue a claim, they are being forced to re-file a new lawsuit, pay new filing fees,
attempt to re-serve defendants who have already answered and appeared.
Moreover, the Appellants, either in their present cases or in new cases, have to
attempt to serve a compliant Chapter 90.004 report based upon vague statutory
language they cannot follow or understand. To suggest that this appeal is not ripe
is, quite frankly, absurd.
In fact, the administrative burden of hundreds of dismissals on the court
system should not be disregarded. If Appellees’ Motion is granted, the Appellants
return to the trial court to await certain orders of dismissal by the Court on August
31, 2015. As demonstrated by Exhibit 1 to this Response, such effort is no small
task. Once the dismissals are documented and entered, Appellants would have to
file individual notices of appeal, as distinguished from the single appeal from the
injunction presented here. Hundreds of notices would be administratively
processed and the clerk would, yet again, be asked to issue another clerk record
based upon each individual appeal. Consequently, a dismissal of this case would
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not only represent an unnecessary delay, but a profound waste of staff time and
resources. This judicial duplication and waste would occur precisely because this
matter is ripe for consideration now.
A ripeness determination also requires the Appellants to demonstrate that
injury or hardship is imminent, direct, and immediate, not remote, conjectural or
hypothetical. Rea v. State, 297 S.W.3d 379, 383 (Tex. App. -- Austin 2009, no
pet.); Mitz v. Texas State Board of Veterinary Examiners, 278 S.W.3d 17, 25 (Tex.
App. -- Austin 2008, pet. dism’d) (Holding that a constitutional challenge to a state
licensing law is ripe when enforcement of the law is “sufficiently likely to occur”).
If judicial review of the constitutional challenge is withheld, Appellants’ injury is
imminent and direct, due to the mandated dismissal of their case, and will
ultimately cause calamity on this court with duplicitous and repetitive appeals.
Likewise, in the context of attempting to comply with the statute as currently
written, Appellants will incur significant costs in investing in medical reports to
attempt compliance with a vague, arbitrary statute that appears to have constantly
changing medical requirements, even though their suits predate the statute and are
based on silicosis diagnoses. For the Maloney Martin Appellants, the cost is
estimated at $240,000. (CR 1st Supp. V6, 2778-79) These injuries cannot be
termed remote, conjectural, or hypothetical. Further, Appellants’ injury of
dismissal of their cases establishes the ripeness of the constitutional challenge for
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judicial consideration and the MDL Court’s error in denying Appellants’
Temporary Injunction Request.
IV. RIPENESS AND STANDING ARE INEXTRICABLY INTERTWINED
WITH THE CONSTITUTIONAL CHALLENGE ITSELF.
The issues of ripeness and standing cannot be separated from the
constitutional challenge brought by Appellants. Appellees took the position before
the MDL Court that until each Appellant attempts the impossible: obtaining, at
considerable expense, a medical report that meets the vague, arbitrary, and shifting
requirements of the statute, Appellants lack standing and ripeness to bring their
constitutional challenge. However, the constitutional issues raised by Appellants
establish ripeness and standing without first requiring Appellants to attempt this
costly and unobtainable medical report.
The retroactive application alone of Chapters 90.004 and 90.010 to
Appellants’ common law causes of action is grounds for a constitutional challenge
and makes Appellants challenge ripe. 2 Further, the vague, arbitrary, and shifting
medical report requirements of the statute has halted the progress of Appellants’
cases. Thus, the statute violates the open courts provision of the Texas
2
While the legislature applied the interlocutory medical report requirement retroactively in
silicosis claims under Section 90.004, it did not make interlocutory review of expert reports
retroactive in healthcare liability claims. Tex. Civ. Proc. & Rem. Code Sec. 51.014(a)(9) - (10).
The Texas Supreme Court noted that retroactive application of the statute in such claims might
have raised constitutional challenges that prospective application did not. In Re McAllen Medical
Center, Inc., 275 S.W.3d 458, 466-67 (Tex. 2008).
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Constitution as well as Appellants’ rights to due process. Tex. Const. Art. 1, Sec.
13; Hightower v. Baylor University Medical Center, 348 S.W.3d 512, 521-22
(Tex. App. -- Dallas 2011, pet. denied) (Premise of open-courts provision is the
rationale that the legislature has no power to make a remedy by due course of law
contingent upon an impossible condition).
Additionally, an attempt by each of the hundreds of Appellants to comply
with the statute’s vague, arbitrary, and shifting medical requirements could not
realistically be accomplished between the date of the enactment of the dismissal
provision of the statute on September 1, 2013, and the date of dismissal, August
31, 2015. Each Appellant’s attempt would involve the lengthy process of
obtaining a medical report, responding to opposing parties’ objections to the report,
and seeking the MDL Court’s approval of the report. Also, each Appellant’s
attempt to comply with the statute would add up to considerable expense with no
certainty the medical report is written correctly due to the vagueness of the statute.
Now, Appellants’ cases are to be dismissed under the statute, which further
raises constitutional issues and establishes ripeness. Atmos Energy Corp. v. Abbott,
127 S.W.3d 852, 856 (Tex. App. -- Austin 2004, no pet.) (The ripeness of a
constitutional challenge is demonstrated by showing that enforcement is imminent
or sufficiently likely).
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Likewise, the precarious position in which Appellants now find themselves
establishes their standing to challenge the constitutionality of the statute.
“Standing consists of some interest peculiar to the person individually and not as a
member of the general public.” Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984).
(Plaintiffs had standing to bring mandamus suit for failure of court system to
provide timely trial of their lawsuits since each was a party to a suit pending in
district court). A party has standing when it is personally aggrieved. Nootsie v.
Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). For
standing to challenge a statute, a party must suffer both some actual or threatened
restriction under the statute and contend that the statute unconstitutionally restricts
the party’s rights. Patel v. Texas Dept. of Licensing, No. 12-0657, (Tex 6/26/15);
Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995).
In these cases, facing certain dismissal of their claims and losing the ability to
prosecute their previously-filed claims demonstrates that Appellants face sufficient
harm to their cases to create standing for each Appellant.
V. ALL OF THE ISSUES RAISED IN APPELLANTS’ BRIEF PERTAIN
TO THE MDL COURT’S DENIAL OF TEMPORARY INJUNCTIVE
RELIEF.
Appellants raise four issues in Appellants’ Brief to this Court. Appellants’
Brief, xivii. Each issue arises from the MDL Court’s denial of Appellants’ Motion
for Temporary Injunction against enforcement of Chapters 90.004 and 90.010 of
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the Texas Civil Practice and Remedies Code. Each issue addresses the
constitutionality of the statute; no new issues are set forth in the brief.
While Appellees seek to limit the issue to merely ripeness and standing in
order to forgo having to address the constitutional challenge to the statute,
Appellants have shown ripeness and standing to bring their challenge. Moreover,
the constitutional issues are intertwined with ripeness and standing and cannot be
separated. The halt to Appellants’ suits and the impending dismissal of the suits
indicate that the issues raised by Appellants’ Brief are fit for judicial review and
hardship will result if judicial consideration is withheld. Perry v. Del Rio, 66
S.W.3d at 250. Furthermore, the MDL Court erred in denying Appellants’ request
for temporary injunction.
Appellants ask this Court to deny Appellees’ Motion to Dismiss Appeal or,
Alternatively, to Strike Appellants’ Brief, and to find that this Court has
jurisdiction over the appeal, and to allow this appeal to proceed before the Court.
Respectfully submitted,
MALONEY  MARTIN, L.L.P.
/s/Michael B. Martin
Michael B. Martin (TBN: 13094400)
mmartin@maloneymartinllp.com
3401 Allen Parkway, Suite 100
Houston, Texas 77019
(713) 759-1600
(713) 759-6930 (Facsimile)
ATTORNEYS FOR APPELLANTS
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been provided to all counsel of record and/or attorneys-in-charge via efiling on this
22nd day of July, 2015.
/s/Michael B. Martin
Michael B. Martin
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