in Re: Texas State Silica Products Liability Litigation ( 2016 )

Opinion issued February 25, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00251-CV
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IN RE: TEXAS STATE SILICA PRODUCTS LIABILITY LITIGATION
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2004-70000
MEMORANDUM OPINION
This is an appeal of a denial of a temporary injunction in a pretrial
multidistrict litigation for silica products-liability claims.1 Plaintiffs are over 100
1
Ordinarily, Texas appellate courts have jurisdiction only over final judgments.
Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012). An exception exists
when a statute authorizes an interlocutory appeal. CMH Homes v. Perez, 340
S.W.3d 444, 447 (Tex. 2011). The Civil Practice and Remedies Code provides for
an interlocutory appeal from an order that “grants or refuses a temporary
injunction or grants or overrules a motion to dissolve a temporary injunction as
sandblasters who were exposed to silica in their workplaces. The sandblasters
sought to enjoin enforcement of Sections 90.004 and 90.010 of the Civil Practice
and Remedies Code that specify what must be included in their medical reports to
allow them to exit the multidistrict litigation court and return to their respective
trial courts for a trial on the merits. The sandblasters argue that these provisions
violate due process because they are unconstitutionally vague and oppressive and
violate the open courts provision of the constitution by applying retroactively to
their already-pending claims. Defendants are manufacturers, producers, designers,
distributors, and sellers of silica-related products. They moved to dismiss the
injunction request, contending that the sandblasters lacked standing and their
challenge was not yet ripe for judicial determination.
The MDL court granted Defendants’ motion and dismissed the sandblasters’
constitutional challenge without specifying the basis for its ruling. The sandblasters
appeal the denial of their temporary injunction request.
Because a temporary injunction is not an available vehicle to obtain the
relief sought by the sandblasters, we affirm the trial court’s order denying their
temporary injunction motion.
provided by Chapter 65.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4)
(West Supp. 2015). Here, the MDL court refused a temporary injunction, and we,
therefore, have appellate jurisdiction. See id.
2
Background
The sandblasters are plaintiffs in a statewide MDL for silica products
liability litigation. A Rule 13 pretrial MDL was created in 2004 when the Judicial
Panel on Multidistrict Litigation determined that the then-pending 71 suits filed by
453 plaintiffs against 158 defendants “involve one or more common questions of
fact” and “transfer would be for the convenience of the parties and witnesses and
would promote the just and efficient conduct of the cases.” In re Silica Prods.
Liab. Litig., 166 S.W.3d 3 (Tex. M.D.L. Panel 2004).
In 2005, the Legislature enacted Chapter 90 of the Civil Practice and
Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. §§ 90.001–.012 (West 2011
and Supp. 2015); Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex.
Gen. Laws 169. The new legislation created a statutory MDL for silica- and
asbestos-related claims. Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005
Tex. Gen. Laws 169. Under the terms of the statute, individual cases are held in the
MDL until the plaintiffs submit medical reports that meet all listed, statutory
requirements. TEX. CIV. PRAC. & REM. CODE ANN. § 90.003 (requirements for
asbestos-related claims); § 90.004 (requirements for silica-related claims). After a
qualifying medical report is submitted and approved by the MDL court, a case may
be returned to a district court for trial. Id. § 90.010.
3
All of the sandblasters had suits pending in the Rule 13 MDL when Chapter
90 was enacted. Their claims were then transferred to the statutory MDL where
they have remained for 10 years.
The purpose behind Chapter 90
The Legislature included official comments when it enacted Chapter 90. Act
of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, cmts. a–n, 2005 Tex. Gen. Laws
169. According to the official comments, individuals who have been exposed to
silica may have “markings on [their] lungs that are possibly consistent with silica
exposure, but the individual has no functional or physical impairment from any
silica-related disease.” Id., cmt. m (regarding silica exposure); see id., cmt. f
(similar provision related to asbestos). The discovery of these markers can trigger a
statute of limitations problem for the individuals. Id. This led to a “crush” of suits
being filed in the courts on behalf of workers who show some signs of exposure
but still have “no current impairment and may never have impairment.” Id., cmts.
g, h, and m.
The large number of filings was described as a “situation [that] has reached
critical dimensions and is getting worse.” Id., cmt. d (citing Judicial Conference
Ad Hoc Committee on Asbestos Litig. (1991)). To “prevent[] 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
4
from asbestos-related or silica-related disease,” the Legislature enacted Chapter 90,
aimed at “protect[ing] 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,” but creating a bifurcated system that
allows those with confirmed impairment to proceed to trial while those without a
confirmed impairment to remain in the MDL, without any statute of limitations
ramifications, until an impairment is confirmed. Id., cmt. n; see TEX. CIV. PRAC. &
REM. CODE ANN. § 90.010(d) (providing that cases remain in MDL without
dismissal until qualifying impairment is established); § 90.010(l) (providing that
pre-2005 silica suits that are dismissed for failure to file compliant medical reports
after September 1, 2014, are dismissed without prejudice); § 90.010(n) (further
providing that such dismissed claims may be refiled after dismissal and, if refiled,
“treated for purposes of determining the applicable law as if that claimant’s action
had never been dismissed but, instead, had remained pending until the claimant
served a report that complied . . . .”).
Section 90.004
Section 90.004 specifies the information that must be included in the
medical report for a silicosis claim. Id. § 90.004.2 The provision requires that a
qualifying physician verify that she (or a medical professional under her direct
2
Cf. TEX. CIV. PRAC. & REM. CODE ANN. § 90.003 (listing medical-report
requirements for asbestos-related claims).
5
supervision and control) performed a physician exam and obtained a detailed
occupational and exposure history—including the claimant’s principal
employments, exposure to airborne contaminants, and the “nature, duration, and
frequency” of that exposure—as well as a detailed medical and smoking history
and explain, within the report, the claimant’s “occupational, exposure, medical,
and smoking history.” Id. §§ 90.004(a)(1)–(2), (e).
The physician must also verify that the claimant has “one or more” of the
following: “(A) a quality 1 or 2 chest x-ray that has been read by a certified B-
reader according to the ILO system of classification as showing: (i) bilateral
predominantly nodular opacities (p, q, or r) occurring primarily in the upper lung
fields” with a specified “profusion grading” and/or “(B) pathological
demonstration of classic silicotic nodules exceeding one centimeter in diameter as
published in ‘Diseases Associated with Exposure to Silica and Nonfibrous Silicate
Minerals,’ 112 Archives of Pathology and Laboratory Medicine 7 (July 1988)”
and/or “(C) progressive massive fibrosis radiologically established by large
opacities greater than one centimeter in diameter” and/or “(D) acute silicosis.” Id.
§ 90.004(a)(3).
In addition to these verifications, detailed statements, and medical
conclusions, the physician’s report must be “accompanied by copies of all ILO
classifications, pulmonary function tests, including printouts of all data, flow
6
volume loops, and other information demonstrating compliance with the
equipment, quality, interpretation, and reporting standards set out in this chapter,
lung volume tests, diagnostic imaging of the chest, pathology reports, or other
testing reviewed by the physician in reaching the physician’s conclusions.” Id.
§ 90.004(a)(4).
The statute further requires the physician to verify that there has been a
sufficient latency period, the claimant has “at least Class 2 or higher impairment
due to silicosis, according to the American Medical Association Guides . . .
reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E)
and (F) (2003),” and the physician has concluded that the medical findings and
impairment “were not more probably the result of causes other than silica
exposure” as possibly signified by the claimants’ occupational, exposure, medical,
and smoking history. Id. § 90.004(b). If the claim is for silica-related lung cancer
or another silica-related disease, other requirements are specified. Id.
§§ 90.004(c)–(d).
Thus, the statute incorporates into its provisions the AMA Guides, federal
regulations concerning appropriate testing to establish a respiratory impairment,3
and a medical article published in the Archives of Pathology and Laboratory
Medicine. Id. § 90.004.
3
20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F)
(2003).
7
Section 90.010
Section 90.010 directs when a case may transfer out of the statutory MDL
back to a trial court. Id. § 90.010. The provision specifically states that it applies to
cases that were pending in the Rule 13 MDL when Chapter 90 was enacted. Id. §
90.010(a). Thus, its provisions apply to all of these sandblaster suits.
Section 90.010 requires the statutory MDL judge to retain jurisdiction over
the pending silicosis suits and not remand them for trial until the individual
claimants file medical reports that comply with Section 90.004 or, alternatively,
with a limited “safety valve” provision found in Section 90.010(f). Id. § 90.010(d);
see id. §§ 90.010(f)–(j). Until a qualifying report is filed and approved, the cases
are considered inactive. There have been many cases on this inactive docket for
several years.
Section 90.010(k) requires the silica MDL judge to present a report to the
governor, lieutenant governor, and speaker of the house five years after the statute
was enacted detailing the total number of cases on the docket as well as the number
of those cases that do not meet the criteria for a Section 90.004 complaint medical
report; stating the court’s “evaluation of the effectiveness of the medical criteria
established by Section . . . 90.004”; providing the court’s recommendations “as to
how medical criteria should be applied”; and including any other administration
information the statutory MDL court deems appropriate. Id. § 90.010(k).
8
Silica MDL judge’s Section 90.010(k) report
The silica MDL judge submitted a report on September 1, 2010, as
required.4 The judge declined to comment on policy issues related to the statute:
[A]s to whether the criteria themselves or the minimum levels of
impairment are appropriate, I am not in a position to ethically opine.
This is more appropriately a matter for the law makers . . . . It all
depends on what the law makers of Texas believe the definition of
“impairment” should be to allow a claimant to proceed in court in
these cases.
However, the court did provide statistical information regarding the progression of
the docket. As on August 1, 2010, there were 667 cases in the silica MDL
representing 5,839 “exposed persons.” Only 54 of the “exposed persons” had filed
medical reports under Section 90.004. Only half of those had been submitted to the
MDL court for evaluation:
Exposed persons who have filed a medical report 54
for evaluation
Number of those that have been, not just filed 26
but also, submitted to the judge
Approved 22
Not yet determined 1
Defendant objections sustained 3
Number of those filed that have not yet been 28
determined because either they were withdrawn
or just never submitted
For the remaining 5,785 “exposed persons,” no medical report had yet been filed.
4
http://www.justex.net/JustexDocuments/24//Section%2090.010%28k%29%20
Report.pdf
9
Section 90.010(d–1) dismissal procedure
In 2013, the Legislature amended Section 90.010 to establish a procedure for
dismissing silica cases that have been on file since before the 2005 legislation was
enacted and still have not submitted compliant medical reports. TEX. CIV. PRAC. &
REM. CODE ANN. § 90.010(d–1) (West Supp. 2015). The new Subsection (d–1)
provides as follows:
Beginning on September 1, 2014, the MDL pretrial court shall dismiss
each action for . . . a silica-related injury that was pending on August
31, 2005, unless a report was served on or after September l, 2013,
that complies with . . . Section 90.004, or Subsection (f). The MDL
pretrial court shall provide for the dismissal of such actions in a case
management order entered for that purpose. All [such] actions . . .
shall be dismissed on or before August 31, 2015. . . .
Id. Along with the new Subsection (d–1), the Legislature provided that dismissal
would be without prejudice to the filing of a subsequent action and that any refiled
action would be treated as through it had never been dismissed. Id. §§ 90.010(l)–
(n).
Sandblasters challenge Chapter 90 as unconstitutional
Before the September 1, 2014 deadline, the sandblasters filed a request for
injunctive relief, seeking to enjoin enforcement of Sections 90.004 and 90.010.5
The sandblasters asserted that the requirement that they comply with the medical
5
In 2007, one of the MDL plaintiffs, Mr. Olivas, filed a constitutional challenge to
Section 90.004. That challenge became moot, though, when the defendants
withdrew their objections to Olivas’s medical report.
10
report obligation is “oppressive and unreasonable.” According to them, it is nearly
impossible to comply with the statutory requirements because the criteria to
establish a qualifying impairment is listed, not within the statute, but by reference
to American Medical Association medical guidelines and literature cited therein,
which are continuously evolving in ways that have altered both the standards for
demonstrating an impairment and the tests necessary to support a medical
conclusion that a sandblaster has a qualifying impairment.
The sandblasters contend that “their medical reports have to be rewritten”
with each change to the AMA guidelines. Each new report is costly and delays the
prosecution of their claims, thereby increasing the risk that the defendant-entities
will not have funds left to satisfy judgments once the sandblasters eventually meet
the criteria for remand and trial. The sandblasters present their constitutional
challenge as a facial challenge to the statute, meaning that the statute, by its terms,
always operates unconstitutionally. See New York State Club Ass’n v. New York
City, 487 U.S. 1, 11, 108 S. Ct. 2225, 2233 (1988).
The sandblasters’ challenges to Sections 90.004 and 90.010 can be grouped
into two constitutional arguments.
1. Open courts challenge
The sandblasters argue that Section 90.004 significantly impedes their
ability to pursue damages claims for their pre-existing silica-related disabilities, in
11
violation of the Open Courts provision of the Texas Constitution. They claim that
Chapter 90 significantly limits their existing common-law claims by imposing new
hurdles for demonstrating an impairment that were not required under the common
law. Further, Chapter 90 does not recognize a sandblaster as impaired until he rises
to the level of “class 2” impaired. Thus, Chapter 90, according to the sandblasters,
prevents recovery of common law damages for less impaired claimants that would
have been available under the common law, such as lost earning capacity to
compensate for a “vocational disability” suffered by a lower-level impaired
worker. They further contend that applying these requirements retroactively to
their already-pending claims violates the Open Courts provision.
2. Substantive due process challenge
The sandblasters also argue that the statute should require no more than that
a qualified physician provide a medical opinion that a worker has, in reasonable
medical probability, a silica-related impairment, based on the physician’s
understanding of the prevailing scientific standards and related medical literature.
They argue that the statute removes the ability of a qualified doctor to make this
determination based on his assessment of the appropriate, necessary requirements
for a reliable diagnosis and, instead, demands compliance with pre-specified
scientific standards and medical literature written into the statute. According to the
sandblasters, the task of determining if the worker has established an impairment
12
was transferred from medical professionals to the MDL court. Furthermore, they
contend, because the statutorily-referenced medical literature was intended only to
be a guide for medical practitioners—not a legal standard for compensability—it is
continuously evolving and, as a result, its requirements are, over time,
contradictory. According to the sandblasters, each time the Guides change, what is
necessary to comply with the medical-report requirements also changes.6 The
sandblasters contend that, because the science is evolving and the literature is
complex, detailed, and changing, the statute is unconstitutionally vague and
violates due process.
The sandblasters sought to prospectively enjoin the statute’s enforcement,
using a pleading entitled “Plaintiffs’ Motion to Enjoin Enforcement of Sections
90.004 and 90.010 of the Texas Civil Practice & Remedies Code because the
Statute is Unconstitutional and Plaintiffs’ Request for Permanent Injunction
Declaring Sections 90.004 and 90.010 Unconstitutional.”
Defendants responded, raising jurisdictional arguments that the sandblasters
lack standing and their complaints are not ripe for judicial determination.
Defendants’ motion to dismiss the request for injunctive relief, in which they
6
The sandblasters acknowledge that the MDL court previously advised that new
editions of the AMA Guides will apply but only to newly performed testing and
that earlier editions will continue to apply to testing performed when those were in
effect.
13
challenge standing and ripeness, states that “the merits of Plaintiffs constitutional
complaints are not at issue at this juncture . . . .”
The trial court granted the defendants’ motion to dismiss and, through an
amended order, denied the temporary injunction.7 The order specifically states that
the injunctive request is being denied because the court granted the jurisdictional
challenge to that request. In other words, the temporary-injunction motion was not
denied on the merits.
The sandblasters filed a direct appeal with the Texas Supreme Court, which
dismissed the appeal. The sandblasters then filed an appeal with this Court,
challenging the MDL pretrial court’s refusal to grant a temporary injunction.
7
The parties agreed that the motion would be treated as a request for a temporary
injunction instead of a permanent injunction, and the trial court accepted the
motion accordingly. Throughout the record, the trial court and parties have
expressed their agreement that the trial court intended to deny a temporary
injunction and that the denial would be subject to interlocutory appeal. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 2015). After the
injunction request was denied and the sandblasters appealed, the defendants filed a
motion to dismiss the appeal, arguing that the MDL court’s order of dismissal
referenced a pending request for permanent injunction and that permanent
injunctions are not subject to interlocutory appeal under Section 51.014(a)(4).
We reject the argument that the wording of the order overrules the intended action
of the MDL court. First, the order specifically references a pending “request for
temporary injunction.” Second, the trial court described the pleading filed as a
“motion to enjoin enforcement of Section 90.004 and 90.010” as well as a “request
for permanent injunction.” That phrasing does not confine the resulting order such
that it could not have been addressing anything other than the permanent
injunction request, especially in light of the agreement that the motion before the
court was the sandblasters’ request for a temporary injunction. We overrule the
defendants’ motion to dismiss that is based on its permanent injunction theory.
14
Requirements for a Temporary Injunction
“An injunction is a remedial writ that depends on the issuing court’s equity
jurisdiction.” Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex.
2000). “A temporary injunction is an extraordinary remedy, the purpose of which
is ‘to preserve the status quo of the litigation’s subject matter pending a trial on the
merits.’” City of Houston v. Downstream Environmental, L.L.C., No. 01-13-01015-
CV, 2014 WL 5500486, at *3 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, pet.
dism’d) (mem. op.) (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204
(Tex. 2002)). “To obtain a temporary injunction, the applicant must plead and
prove three specific elements: (1) a cause of action against the defendant; (2) a
probable right to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim.” Butnaru, 84 S.W.3d at 204; see TEX. R. CIV. P. 682.
To be effective, an injunction is required, by rule, to satisfy certain content
requirements. Rule 683 requires that it “describe in reasonable detail”
“the act or acts sought to be restrained.” TEX. R. CIV. P. 683. Rule 687 adds the
requirements that the injunction “shall be directed to the person . . . enjoined” and
“command the person . . . to whom it is directed to desist and refrain from the
commission or continuance of the act enjoined, or to obey and execute such order
as the judge has seen proper to make.” TEX. R. CIV. P. 687. The court’s clerk issues
the temporary injunction and delivers it to the sheriff or any constable of the
15
county of the residence of the person enjoined. TEX. R. CIV. P. 688. The officer
executes the injunction “by delivering [it] to the party enjoined.” TEX. R. CIV. P.
689.
If the enjoined person disobeys the temporary injunction, he “may be
punished by the court or judge . . . as a contempt.” TEX. R. CIV. P. 692. The judge
has the authority to “cause to be issued an attachment for such person” who is
alleged to have disobeyed the injunction and require the person to be arrested and
brought before the court or judge. Id. Upon proof of disobedience to the injunction,
the judge “may commit such person to jail without bail until he purges himself of
such contempt, in such manner and form as the . . . judge may direct.” Id.
Sandblasters’ Motion Does Not Align with these Requirements
The sandblasters argue that the statute operates unconstitutionally to impair
their ability to seek recovery for silica-related injuries. They seek a determination
of this question of law and to have the law “declared unconstitutional.” Should
they prevail on their argument, the relief they seek is to have “the application and
enforcement of Section 90.004 . . . immediately and permanently enjoined,”
thereby prohibiting the dismissal of their claims for failure to file a compliant
medical report. Not only do they seek to avoid statutorily mandated dismissal, they
further request in their injunctive motion “that the Court hold that Plaintiffs’
16
medical reports are sufficient for Plaintiffs to move forward with their cases as
though Section 90.004 was never enacted.”
Nowhere in their motion do the sandblasters identify a person or persons to
be enjoined. To the extent they seek to prohibit an act, it is the implementation of a
statute by the MDL court, as part of its role of managing the MDL docket. Thus, it
would seem, the sandblasters are petitioning the judge to enjoin himself from
following the laws as written.8 This request is at odds with the use contemplated of
injunction requests in the Rules of Civil Procedure. Cf. TEX. R. CIV. P. 687 (stating
that, to be sufficient, an injunction “must command the person . . . to whom it is
directed to desist and refrain from . . . the act enjoined.”) The disconnect appears
even more stark when we consider the possibility of contempt. If the judge enjoins
himself, is there some contemplation that he could be subject to contempt if an
assertion were made that he has not fully complied with his ruling?
In short, the sandblasters are making a legal argument, seeking a declaration
that a law is unconstitutional. There are various vehicles available to them to
present that argument to the MDL judge—perhaps a motion for summary or
declaratory judgment. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 444–46
(Tex. 1994) (affirming relief under Uniform Declaratory Judgments Act to home-
8
The sandblasters confirmed this intent in a post-submission filing: “Appellants
seek injunctive relief against the MDL Court.”
17
school parents who challenged construction of compulsory school attendance law);
TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (West 2015) (Uniform
Declaratory Judgments Act); see also TEX. R. CIV. P. 166a(c) (providing
mechanism to resolve legal issues on showing that, “there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law on
the issues expressly set out in the motion.”).
Instead of pursuing those avenues, the sandblasters filed a motion for
temporary injunction, with the understanding that a denied motion is subject to
immediate, interlocutory review. But this vehicle is not capable of providing the
relief they seek because, on a conclusion that a statute is unconstitutional, a court
does not enjoin itself from enforcing a defective law; it merely declares the law
unconstitutional. Cf. Ryan v. Rosenthal, 314 S.W.3d 136, 141 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied) (recognizing narrow availability to litigants
of mechanism to enjoin enforcement of criminal statutes in civil proceeding but in
context of motion to enjoin district attorney, not reviewing court, itself).
Because the motion for temporary injunction fails to meet the content
requirements established under the Rules of Civil Procedure and erroneously
attempts to have a trial court enjoin itself, we conclude that the MDL court did not
err by refusing the motion.
18
Conclusion
We affirm the order of the MDL court. All pending motions are denied.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
19