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In its first ruling, Texas’ new multidistrict litigation panel recently ordered the transfer of more than 20 asbestos cases filed around the state to a single judge to handle pretrial matters — a decision that potentially could affect thousands of asbestos suits. “I think it’s significant,” Houston attorney Stephen Tipps says of the MDL panel’s 3-2 decision in Union Carbide v. Adams, et al. The panel issued its decision on Dec. 30. Tipps, head of the appellate section at Houston’s Baker Botts and an attorney for Union Carbide, says his client will file a motion for a statewide standing order in asbestos cases. The goal, he says, is to have all asbestos cases filed after Sept. 1, 2003, pending before the same judge. The MDL panel had not appointed the pretrial judge by presstime on Jan. 8. Charles Siegel, a partner in Dallas’ Waters & Kraus and an attorney for plaintiffs suing Union Carbide for injuries they allege were caused by exposure to asbestos, says the panel’s decision means delay. “Delay is a wonderful thing for Union Carbide; it’s not good for people who are trying to get their day in court before they die,” Siegel says. Leslie MacLean, an associate with Waters & Kraus, says the firm represents about 125 plaintiffs with malignancies they allege stem from asbestos exposure. Rule of Judicial Administration 13 — a mandate of H.B. 4, the major tort reform measure passed by the Texas Legislature in 2003 — allows litigants to request that a single judge hear all pretrial matters in cases filed in state courts across Texas if the cases have common issues. Adopted by the Texas Supreme Court, Rule 13 applies to cases with common issues filed after Sept. 1, 2003. Cases filed before that date come under Rule of Judicial Administration 11, which has been in effect since 1997 and allows a single judge to hear all pretrial matters in cases involving common issues filed within a judicial administrative region. Rule 11 judges can consult with the Rule 13 judge. Siegel contends that what Union Carbide wants is to have all post-Sept. 1, 2003, cases consolidated before a single judge and all pre-Sept. 1, 2003, cases consolidated before Rule 11 judges, who would yield to the Rule 13 “czar.” Lonny Hoffman, a University of Houston Law Center professor who teaches civil procedure and has written articles on H.B. 4 and the new MDL rule, says statewide consolidation was possible in theory under the old rule. Rule 11.3(d) allows the state Supreme Court to appoint a district judge to handle pretrial matters in cases outside the judge’s administrative region. That would amount to “de facto consolidation,” Hoffman says. But Hoffman says the Rule 11 provision has been rarely used. “The rule is solely a promulgation of the Texas Supreme Court; it had no legislative blessing,” he says. Hoffman says there was a constitutional question as to whether the court is authorized to enact a statewide consolidation rule. That is no longer an issue, he says, because the Legislature specifically mandated the creation of the MDL panel in H.B. 4. TWO DISSENTS In its unsigned opinion in Union Carbide, the MDL panel’s majority said it found that the three cases in which the New York-based corporation filed transfer motions “involve one or more common questions of fact.” The majority also said in the opinion that the transfer of the three cases and about 20 tag-along cases “will promote the just and efficient conduct of the cases. “ The panel’s chairman, 224th District Judge David Peeples of San Antonio, presiding judge of the 4th Administrative Region; 1st Court of Appeals Justice George Hanks of Houston; and 5th Court of Appeals Justice Douglas Lang of Dallas made up the majority. Justice Mack Kidd of Austin’s 3rd Court of Appeals, said in a dissenting opinion that the asbestos litigation docket in Texas over the past quarter of a century has disposed of almost 30,000 cases. The federal asbestos experience of the last decade stands in sharp contrast to Texas’ experience, Kidd wrote. “After the assignment of all pretrial matters in federal asbestos cases to a single federal district court, the federal asbestos docket suffered from that dreaded disease commonly known as ‘pretrial paralysis.’” Dying asbestos victims watched in horror as their asbestos cases were, quite literally, “pretried to death,” Kidd wrote. In a separate dissenting opinion, 13th Court of Appeals Justice Errlinda Castillo of Corpus Christi wrote that a defendant experienced in asbestos litigation indicated in a response to Union Carbide’s motion to transfer that it lacked sufficient information to take a position in favor of granting or denying the motion. Alcoa Inc. said in its response that it is a defendant in more than 380 asbestos-exposure cases, including several that are related to the cases that Union Carbide identified in its motion. “The reality is that there are hundreds of asbestos-exposure cases in Texas, thousands of plaintiffs and over a hundred defendants. Because of the sheer number of cases and parties involved, the dynamics and mechanics of placing all these cases in one pretrial court need to be carefully analyzed,” Alcoa said in the response. Richard Faulk, lead attorney for Alcoa Inc. and a partner in Gardere Wynne Sewell in Houston, did not return a phone call seeking comment. In her dissent, Castillo wrote that she would allow parties in the tag-along cases to show cause why their cases should not be transferred to a pretrial judge. Siegel says the plaintiffs in the asbestos cases are considering whether to appeal the panel’s decision. Rule of Judicial Administration 13.9(a) provides that the Supreme Court can review orders of the MDL panel in original proceedings. Chris Griesel, rules attorney for the high court, says such an appeal would be like a mandamus. Hoffman says Union Carbide can’t count the panel’s decision as a victory unless the panel appoints a Rule 13 judge willing to be aggressive in handling pretrial matters. “My guess is the judges appointed [under Rule 13] will be willing to weed out cases,” he says. But Hoffman says the jury is still out as to how valuable defendants will consider Rule 13. Notes Hoffman: “I think defendants may be reluctant to seek statewide consolidation under the theory that the devil we know (is better than the devil we don’t know.)”

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