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Click here for the full text of this decision FACTS:Roughly 1,900 plaintiffs sued 30 defendants in Hidalgo County, alleging exposure to chemical fumes and leaks from several sites where pesticides were mixed or stored before authorities placed the sites in receivership in 1967 and remediated them in 1980. The plaintiffs identified no particular incidents or products, instead alleging exposure to a “toxic soup” of emissions in the air for many decades. In its 2004 opinion In Re: Van Waters & Rogers, Inc., the Texas Supreme Court stated that no such claim “has ever been tried or appealed in Texas,” and thus “the tort is immature.” Five years after filing, the trial court set the first trial for little more than six months away. Despite the court’s admonitions that trial courts should “proceed with extreme caution” in setting consolidated trials in immature mass torts, the trial court consolidated five claims for the initial trial. The five plaintiffs had little in common. They ranged in age from 29 to 74, resided in various directions from two different sites, alleged exposure over different parts of seven decades, and suffered injuries ranging from asthma and arthritis to miscarriages and heart disease, and in two cases damaged property. Shortly after the trial court’s order, the court issued Van Waters, reversing the same kind of order in the same kind of case in the same county. The defendants brought the opinion to the trial judge’s attention, but he changed nothing. Neither did the 13th Court of Appeals, where the defendants sought mandamus relief to no avail. When the court granted a stay and requested full briefing of the case, the plaintiffs retreated, asking the trial court t 1. sever out the property claims; 2. drop one plaintiff; and 3. eventually withdraw its consolidation order and proceed to trial on just one plaintiff’s claims. The trial court granted the requests, ordering that “the personal injury claims of Plaintiff Guadalupe Garza proceed to trial.” In their mandamus petition that reached the Texas Supreme Court, the defendants complained that the trial court erred in setting a consolidated trial “in contravention of In re Van Waters & Rogers Inc.and in the absence of an adequate response to the Able SupplyInterrogatory.” Second, the defendants argued that while the plaintiffs moved for deconsolidation in the face of this mandamus proceeding, they refused to give any assurance that they would not seek future consolidated trials inconsistent with Van Waters. HOLDING:The court granted the petition for a writ of mandamus. Trial courts may set trials as they wish, the court stated, but not so indiscriminately that parties are “deprived of any just defense, or that their rights would in any manner be jeopardized.” In its 1995 opinion, Able Supply Co. v. Moye, the Texas Supreme Court held that in mass tort cases involving hundreds of parties and complicated causation questions, a trial judge could not postpone responses to basic discovery until shortly before trial. Finding “that is precisely what has occurred here,” the court again granted mandamus relief. The court noted that it reviewed an interlocutory complaint about a trial setting in Able Supplyfor three reasons. First, the court stated that mandamus is appropriate when a discovery order imposes a burden on one party far out of proportion to any benefit to the other. In this case, as in Able Supply, the court stated that the “burden of making 30 defendants prepare in the dark for 1,900 claims is far out of proportion to the benefit of giving the plaintiffs more time (after five years) to decide who or what injured them.” Mandamus, the court stated, is appropriate in such cases to avoid this “monumental waste of judicial resources.” Second, the court stated that mandamus is appropriate when a denial of discovery goes to the heart of a party’s case. There are many cases in which it is perfectly reasonable to conduct discovery up until 30 days before trial. But in suits like this one, the court stated, “denying discovery until then goes to the very heart of this case, as well as what our justice system is supposed to be about.” Third, the court stated that mandamus is appropriate when a discovery order severely compromises a party’s ability to present any case at all at trial. No trial was set in Able Supply, the court recalled, but the plaintiffs’ intention to withhold responses until shortly before then meant the defendants could not prepare a viable defense. There are good reasons, the court stated, to schedule trial settings well in advance, and few reasons to postpone doing so until discovery is fully complete. But trial settings, like discovery orders, cannot be used to hold the parties hostage. It has long been the rule in Texas, the court stated, that plaintiffs bear the burden of pleading and proving how they were injured and by whom. They cannot simply file suit against everyone in the vicinity and demand that the defendants prove otherwise. Therefore, the court directed the trial court to vacate its order setting any of the plaintiffs’ claims for trial until the defendants have a reasonable opportunity to prepare for trial after learning who will connect their products to plaintiffs’ injuries. OPINION:Brister, J., delivered the opinion of the court, in which Hecht, Medina, Green and Willett, JJ., joined. CONCURRENCE:Hecht, J., filed a concurring opinion. “Years ago we observed that ‘[m]ass tort litigation such as this places significant strain on a defendant’s resources and creates considerable pressure to settle the case, regardless of the underlying merits.’ For this reason, mandamus review has been necessary in a few but important instances to prevent the use of such litigation to abuse the civil justice system.” DISSENTS:Jefferson, C.J., filed a dissenting opinion, in which O’Neill, Wainwright and Johnson, JJ., joined. “While I agree that defendants in mass tort cases face difficult hurdles in preparing for trial, and while I also agree that causation-related discovery must not be delayed, I disagree that this case presents the opportunity for us to create special rules for such cases. The trial court withdrew its consolidation order. Garza has supplemented her discovery responses, and the trial court has not been asked to evaluate their adequacy. I would deny mandamus relief.” Wainwright, J., filed a dissenting opinion. “If we do not require litigants to avail themselves of the existing avenues for relief before seeking unique and extraordinary mandamus remedies, then mandamus relief will cease being extraordinary in the manner our precedents prescribe. The rules of procedure provide methods to address the complaints in this case. I depart from the Court in this case over the propriety of granting relief by mandamus.”

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