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New York-based Union Carbide on Sept. 29 became the first litigant in Texas to take advantage of an untested provision of the H.B. 4 tort reform law when it filed a motion seeking to refer five asbestos cases it is defending to a new statewide multidistrict litigation panel. The newly enacted Rule of Judicial Administration 13 — a mandate of H.B. 4 — allows litigants to request that a single judge hear all pretrial matters in cases filed in state courts across Texas that have common issues. A five-member MDL panel is responsible for appointing the judge to hear the pretrial matters, if they deem it appropriate. MDL panel members include 14th Court of Appeals Chief Justice Scott Brister, 13th Court of Appeals Justice Errlinda Castillo, 3rd Court of Appeals Justice Mack Kidd, 5th Court of Appeals Justice Douglas Lang and the panel is chaired by 224th District Judge David Peeples of Bexar County. Peeples did not return a call seeking comment before press time on Oct. 2. A lawyer for Union Carbine says the new MDL rules will promote efficiency. However, a lawyer who represents asbestos plaintiffs says the rule will only cause delays. The Texas Supreme Court adopted Rule 13, as it is known, on Aug. 29; Rule 13 only applies to civil tort cases with common issues filed by plaintiffs after Sept. 1, 2003. The new MDL rule replaces Rule of Judicial Administration 11, which went into effect in 1997 and still applies to cases filed before Sept. 1, 2003. If requested, the older rule allows a single judge to hear all pretrial matters on cases with common issues that were filed within a judicial administrative region. There are nine judicial administrative regions in Texas. Union Carbide also filed Rule 11 motions with the presiding judges in eight Texas administrative judicial regions for over 2,600 older asbestos cases filed against the company before Sept. 1, says Stephen Tipps, head of the appellate section at Houston’s Baker Botts who represents Union Carbide. “Rule 11 didn’t offer the opportunity for statewide coordination that is now available through Rule 13 working in conjunction with Rule 11,” Tipps says. “And I think before that most parties did not see any great advantages of regional coordination over countywide coordination that exists in some counties.” In some individual counties that handle numerous asbestos cases, one judge is designated to make pretrial decisions in all of the asbestos cases filed in the county, Tipps says. The advantage of Rule 13 is that a single judge can make the same call on recurring issues in cases all over the state, Tipps says. In its Rule 13 motion — filed with the MDL panel’s clerk at the Texas Supreme Court — Union Carbide argues that “this repeated litigation merely enriches counsel for both sides at the expense of all of the litigants.” POSSIBLE DELAYS But Peter Kraus, a partner in Dallas’ Waters & Kraus whose firm represents plaintiffs in three of the cases filed in Dallas that are the subject of Union Carbide’s Rule 13 motions, wonders why the company requested a statewide MDL judge. “They’re just trying to stop the trial docket,” alleges Kraus, who says his firm will object to the consolidation effort before the MDL panel. Kraus sees no reason for the new MDL panel to replace the system that is already in place in many Texas counties. “Asbestos cases move like clockwork through the trial courts in Texas,” Kraus says. Ian Cloud, a partner in Houston’s Heard, Robins, Cloud, Lubel & Greenwood who represents plaintiffs who could be affected if the Rule 13 motion is granted by the MDL panel, did not return a call for comment by presstime. Brent Coon, of Houston’s Brent Coon & Associates, who also represents plaintiffs who could be affected if the motion is granted, was out of town last week and could not be reached for comment. Kraus believes the Union Carbide’s Rule 13 and Rule 11 motions add up to one thing: delay. “There is no way to even calculate the delay,” Kraus says. “But it’s safe to say that � patients with 18 months to live would never see their day in court” if they wait for the new MDL process. But state Rep. Joe Nixon, R-Houston, who authored H.B. 4, which created the state MDL system, says the provision is modeled after the federal MDL system where one judge handles pretrial motions on cases with common issues filed all over the United States. The federal MDL rule, 28 U.S.C. 1407, has been in place for 30 years, he says. “Our whole point was to have a rule very similar to the federal rule,” Nixon says. “And Rule 13 has a little more modern language but essentially the same effect.” Tipps says it’s natural for there to be some delay while courts adjust to a new MDL process, but it won’t be for long. “I think there will be efficiencies introduced that we don’t presently have,” he says. In its motion, Union Carbide noted that if the five cases are referred to the MDL panel, discovery will be much improved and a master discovery file can be maintained, eliminating the need for repetitive discovery motions. The plaintiffs in all five cases allege they sustained injuries related to asbestos exposure. “I think there may be some delay occasioned by the need for any pretrial judge assigned by either Rule 11 and Rule 13 to get their arms around the cases and sort out what needs to be decided and when,” Tipps says. Notes Tipps, “After the initial process, I don’t foresee that there should be any delay.”

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