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Click here for the full text of this decision FACTS:This is an original proceeding seeking a writ of mandamus to direct Respondent, the Honorable Mark Davidson of the 11th Judicial District Court to vacate his order of Feb. 23, 2006, remanding this case to the 345th Judicial District Court. It was filed in this court by the relators, Fluor Enterprises Inc., Fluor Corp., Fluor Constructors International Inc., and Fluor Texas Inc. (the Fluor defendants). The underlying suit is an asbestos case involving allegations of a death due to mesothelioma filed against a number of defendants, including the relators. On Sept. 29, 2005, this suit was set for trial in the Travis County District Court for Feb. 27, 2006. The Fluor defendants transferred the lawsuit to the asbestos multidistrict litigation (MDL) pretrial court in Harris County on Feb. 23, 2006. The same day, Judge Davidson, the MDL pretrial judge, heard the plaintiffs’ motion to remand and remanded the case back to Travis County district court. This original proceeding, as well as an Emergency Motion for Temporary Relief staying the trial, were filed in this court on Feb. 24, 2006, seeking review of Davidson’s order remanding the case to the Travis County trial court. HOLDING:The MDL pretrial court’s order remanding this case to the Travis County district court was not an abuse of discretion. The court denies the petition for writ of mandamus and the motion for emergency relief. Because this qualifies as a “tag-along case” under the MDL rules, jurisdiction to hear this original proceeding derives from Rule of Judicial Administration 13.9(b) rather than Rule 13.5(e). Texas Civil Practice and Remedies Code �90.010(b) applies to cases falling within the ambit of subsection (a)(2). Subsection (a)(2) applies only to actions filed before Sept. 1, 2003. This case was filed on Jan. 4, 2004. Subsection 90.010(b) does not apply and, therefore, can provide no basis for the transfer of this case to the MDL proceeding. Under the case management order authorized by the MDL rules, asbestos defendants had deadlines by which they had to act to transfer cases to the MDL proceeding, or their right to transfer would be waived. This is the situation with the relators/defendants in this case. If �90.010 was intended to revive the right of these defendants to transfer their cases to the MDL proceeding, one would expect to find a provision addressing such a revival. Such a provision does not appear in �90.010 despite the fact that the Legislature was aware of the existence of the MDL rules and Davidson’s case management order at the time it passed �90.010. “In light of this history, we are not persuaded that we should engraft a revival of such transfer rights onto �90.010.” Relators point to �90.010(d) as evidence that this case must remain in the MDL pretrial court until the plaintiffs serve a report that complies with �90.003. Subsection 90.010(d) does not create a right to transfer a case to an MDL proceeding. It provides that if a case pending on Sept. 1, 2005, is transferred to or pending in an MDL proceeding, it must remain in the MDL proceeding unless certain requirements are met. The right to be transferred to or pending in an MDL proceeding has to derive from a source other than �90.010(d). Relators argue that the source of the right to transfer this case comes from �90.010(b). However, �90.010(b) does not apply to this case. Subsection 90.010(d) also does not abrogate the procedural requirements governing transfer to the MDL pretrial court under the MDL rules and Davidson’s case management order. Subsection 90.010(d) was passed by the Legislature with the backdrop of the MDL rules in place. Those rules govern how a case is to be transferred to the MDL pretrial court. Section 90.010 does not supply new rules; it relies on the application of the MDL rules. Subsection 90.010(d) must be read with the overlay of the MDL rules in mind. Thus, if a case is transferred to the MDL pretrial court or is pending in the MDL pretrial court in accordance with the MDL rules, the MDL pretrial court cannot remand such a case unless the additional requirements of subsection (d) are met. Any other reading would create plainly unintended consequences, the court finds. “Finally, we are troubled by the fact that Relators waited until the Thursday before a Monday trial setting to raise the issue of a lack of a section 90.003 report and to attempt to transfer the case to the MDL proceeding.” Even if section 90.010 can be interpreted to create a new right to transfer post-September 2003 cases to the MDL proceeding independent of the rules promulgated by the Supreme Court and the MDL pretrial court, the relators in this case waived that right by failing to assert it in a more timely fashion. OPINION:Waldrop, G. Alan, J.; Smith, Puryear and Waldrop, JJ. Puryear, J., concurs.

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