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The Texas Supreme Court on May 11 decertified two closely watched class actions and cast doubt on the future of such suits, particularly in the area of personal injury. In Southwestern Refining Co. v. Julia Bernal, et al., the court said 904 plaintiffs who alleged injuries arising from a refinery tank fire in Corpus Christi, Texas did not have common issues that predominate. In an opinion by Justice Al Gonzales, the court said that plans to divide the class into subclasses based on the severity of their exposure is not good enough. Gonzales said, “Southwest is entitled to a fair opportunity to individual determinations of causation and damages for each of the 904 plaintiffs.” Gonzales rejected the plaintiffs contention that denial of class treatment is denial of legal redress for many of the plaintiffs because some claims are simply too small to justify the cost of individual litigation. “But proceeding as a class action may very well cost more in the long run, if, as can be expected here, the class must ultimately be dissolved because there is no manageable way, fair to both parties, to resolve the individual issues,” Gonzales wrote, adding that there is no right to litigate a claim as a class action. Justice Craig Enoch, joined by Chief Justice Tom Phillips and Justice Deborah Hankinson, dissented. Enoch said the court did not have jurisdiction to reach the merits of the class certification order. The majority said that it could consider the appeal because it conflicted with Transportation Insurance Co. v. Moriel, the court’s 1994 opinion that bifurcated actual and punitive damages. Enoch said the court has not yet applied Moriel to class actions. In the other case, Ford Motor Co. v. Sheldon, the court said a class of members who “allege peeling paint on their vehicles was caused by a defective paint process” would require the trial court to inquire into each proposed class member’s state of mind. The majority, in an opinion by Phillips, said the definition failed to meet a requirement in the recent case of Intratex Gas Co. v. Beeson, that a class be clearly ascertainable and not defined by criteria that require an analysis of the merits of the case. The court said it was not expressing any opinion on whether the class could be properly redefined. RULEMAKING SURVEY DEBATED Lawyers may be asked about issues that could come before the Legislature next year, including the Supreme Court’s rulemaking authority, pro bono and lawyer donations to judicial candidates. The idea of a survey first was proposed by Phillips, who asked the State Bar of Texas’ research department to help formulate some questions. Phillips says he had hoped the questions might be sent to lawyers along with the recent president-elect ballots. David Keltner, chairman of the Bar’s Board of Directors, told the board’s executive committee on April 27 that he questioned the wisdom of some of the questions. He says the survey may ask who should have the rulemaking power in Texas, the court or the Legislature. Keltner says he would like for the court and Bar leaders to meet to discuss the survey further. Phillips says he proposed some questions about the court’s power but not necessarily the rulemaking question Keltner mentioned. “We have the rules and it seems we’ve by and large done a good job,” he says. The court was caught off guard last session when the House passed a bill that would have required the Supreme Court and the Court of Criminal Appeals to submit rule changes to lawmakers during a legislative session. The bill died in the Senate. The author of the House bill, Rep. Jim Dunnam, D-Waco, says he doesn’t have a problem with surveying lawyers on rulemaking issues, but he believes very strongly that the Texas Constitution gives lawmakers the right to write the laws and rules that govern litigation. “I don’t see anything wrong with polling the lawyers as long as they are fully informed about what’s going on,” says Dunnam. “What’s going on is that judges are attempting to legislate by rule. They’ve gone beyond the bounds of rulemaking and stepped into legislating.” Dunnam says he is concerned with rules that affect litigants’ substantive rights. The court’s rewrite of discovery and summary judgment rules was controversial, although Phillips defends them and says they are working well. Dunnam, a nonvoting member of the court’s Rules Advisory Committee, also believes a proposed recusal rule that would require a judge to stop hearing a case if a lawyer or party exceeded campaign donation limits encroaches into legislative authority. The rules committee is scheduled to discuss the recusal rule at its next meeting.

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