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Silica litigation virtually has come to a halt in Texas, with thousands of claimants’ cases going to a state multidistrict litigation court, because they didn’t meet a Nov. 30 deadline for serving defendants with medical reports. The Texas Legislature’s passage of S.B. 15 earlier this year changed the rules for claimants who bring personal-injury or wrongful-death suits for exposure to asbestos or silica. The new law, Chapter 90 of the Texas Civil Practice & Remedies Code, distinguishes between the claims of people who are physically impaired or sick due to silica or asbestos exposure from those who have been exposed but are not impaired. Claimants who are impaired can pursue their claims in court, but the claims of those who are unimpaired are deferred. Before advancing to court, however, a claimant must serve all defendants named in the claimant’s suit with a medical report that complies with S.B. 15. Defense lawyer Steve Russell, a partner in Beirne, Maynard & Parsons in Dallas, says the new law has parked the cases of thousands of plaintiffs who claim they’ve been injured by exposure to silica in the state silica MDL, where the cases will remain until the plaintiffs serve the reports to defendants. “It has changed the way this litigation is taking place in the state of Texas,” says Russell, a member of the defendants’ steering committee for the state silica MDL, which is overseen by 295th District Judge Tracy Christopher of Houston. Mike Martin, a plaintiffs lawyer who has represented claimants in silica cases since 1985, says the law gives defendants the advantage, because they can transfer cases to the state MDL. “They shut the docket down,” says Martin, a former state representative and a partner in Houston’s Maloney, Martin & Mitchell. State Rep. Joe Nixon, a Houston Republican who sponsored S.B. 15 in the House, says the bill creates a separate docket for unimpaired claimants, where they’re on “standby” until they provide a report that shows a physician certified in certain specialty fields has diagnosed them with cancer or physical impairment caused by exposure to silica or asbestos. “We don’t change anybody’s rights,” says Nixon, a partner in Beirne, Maynard & Parsons in Houston. “It’s just they can’t go to trial until they’re impaired.” The law extends the statute of limitations for injury claims stemming from silica or asbestos exposure to two years after an injured person’s death or two years after the person provides a report that complies with the statute to the defendant. Civil suits filed before Sept. 1, 2003, are not subject to MDL rules that the Legislature adopted as part of H.B. 4, the major tort reform measure lawmakers passed in 2003. As a result, S.B. 15 included a provision addressing such older suits. The new law provided a window of opportunity for plaintiffs who filed suits prior to Sept. 1, 2003, to avoid having their cases sent to the state MDL. Claimants in those older cases had 90 days from Sept. 1 of this year, when S.B. 15 took effect, to provide medical reports to the defendants named in their suits. But when that window slammed shut on Nov. 30, most claimants had not provided the required reports. Harvey Ferguson, notice counsel for the defendants’ steering committee in the state MDL, says most of the approximately 1,250 pre-Sept. 1, 2003, suits will go into the MDL, where Christopher will handle all pretrial matters. Those suits involve about 4,400 plaintiffs, he estimates. “I think very few of the cases are going to escape being transferred to the MDL,” says Ferguson, a partner in Gonzales Hoblit Ferguson in San Antonio. Russell estimates that about 900 cases filed after Sept. 1, 2003, already are in the state silica MDL, because those cases were already subject to the MDL rules under H.B. 4. REPORT REQUIREMENTS In 2004, the state Panel for Multidistrict Litigation, which was created after the passage of H.B. 4, appointed the 295th District Court to oversee silica cases that defendants transfer to the MDL. Ferguson says the first hurdle for plaintiffs involved in all the suits transferred to the MDL is to come up with a medical report that meets the requirements of the statute. Only then can their cases proceed to trial. Some plaintiffs lawyers opted not to file medical reports on their pre-Sept. 1, 2003, suits by the Nov. 30 deadline. John Black, a partner in Houston’s Heard, Robins, Cloud & Lubel and a member of the plaintiffs’ steering committee for the state MDL, says he didn’t file medical reports for any of the approximately 350 silica plaintiffs he represents. “We decided it would be better from our clients’ standpoint to see how the judge rules on what is a qualifying report,” Black says. “We have to see what a compliant report looks like,” he says. “If you go out and do it all, and it’s not right, you have to go out and do it all again.” Martin, another member of the plaintiffs’ steering committee, says he had about four or five depositions scheduled in silica cases for the next two weeks and four cases set for trial in January and February 2006. All of that evaporated, because the cases are going into the MDL, he says. But Martin says he chose not to serve defendants with medical reports on the approximately 40 pre-Sept. 1, 2003, silica cases he has, because he believes defendants would “tag” any case that he tried to keep out of the MDL by claiming that the medical report for the claimant doesn’t meet the statutory requirements. Under �90.004(a), a physician who is board certified in pulmonary medicine, internal medicine, oncology, pathology or occupational medicine must prepare a plaintiff’s report. The diagnosing physician, or a medical professional employed by and under the supervision of the diagnosing physician, must examine the individual and take a detailed history of the plaintiff’s occupational, exposure, medical and smoking history. The law also requires that the medical report verify that the plaintiff has had a chest X-ray read by a National Institute for Occupational Safety and Health-certified B-reader that shows the effect that silica exposure has had on the plaintiff’s lungs. NIOSH grants B-reader approval to physicians who demonstrate proficiency in reading X-rays for pneumoconioses — including asbestosis and silicosis — using the International Labor Office classification system. Martin objects to the statutory requirement for a B-reader to read the plaintiff’s X-rays. He questions why a B-reader is needed, if the chief of pulmonary medicine at Texas Tech University School of Medicine or the University of Texas Medical Branch at Galveston has diagnosed an individual with silicosis. “It’s hard to believe those doctors’ opinions can’t get you through the gate,” Martin says. He says only 20 NIOSH-certified B-readers are in Texas, and some parts of the state don’t have any. FEDERAL MDL The Legislature considered the silica and asbestos reform legislation as a federal judge in Corpus Christi was criticizing allegedly abusive practices by silica plaintiffs’ doctors, lawyers and screening companies in a federal MDL involving thousands of out-of-state plaintiffs. In 2003, acting on a motion filed by defendants in hundreds of silica suits, the federal Judicial Panel on Multidistrict Litigation consolidated the suits — most of which were filed in Mississippi — and assigned U.S. District Judge Janis Graham Jack of the Southern District of Texas to oversee pretrial discovery. In a June 30 order, Jack accused plaintiffs’ lawyers, doctors and screening companies of participating in a “scheme” that involved about 10,000 plaintiffs diagnosed with silicosis. “[T]hese diagnoses were driven neither by health nor justice; they were manufactured for money,” Jack wrote in her order in In Re Silica Products Litigation. [See "Judge's Silica Order Could Affect Future Mass Tort Litigation," Texas Lawyer, July 11, 2005, page 1.] Jack ended her jurisdiction over the silica cases in November, when she dismissed or remanded all the cases remaining in her court to courts in the states where the plaintiffs had filed suit. Martin says he thinks S.B. 15 has had a greater impact on the silica docket than Jack’s decision in the federal MDL. “But I think what happened in the federal MDL created the political momentum for S.B. 15,” he says. Nixon says members of the Legislature were aware of the problems that Jack found in the federal MDL when they considered the reform legislation. A defense lawyer involved in the federal MDL testified at the House and Senate committee hearings on the bill, he says. According to a transcript of a Feb. 17 hearing before her, Jack commented that she saw the testimony of one doctor who testified as “raising great flags of fraud.” On Feb. 16, according to a transcript, the doctor testified that he had diagnosed some 2,700 of the plaintiffs with silicosis without personally interviewing them, conducting physical exams on them or checking their work records. As lawmakers considered S.B. 15, the testimony in the federal MDL provided “hard evidence” of what defense lawyers thought had been going on in silica litigation, Nixon says. JURISDICTIONAL ISSUE Of current concern for plaintiffs in the state silica MDL is a jurisdictional issue. On Nov. 29, the Texas Supreme Court amended Rule 13 of the Rules of Judicial Administration to confer jurisdiction over the pre-Sept. 1, 2003, silica cases on the 295th District Court. The Supreme Court made the amended rule effective immediately. But Black says that Texas Government Code �74.024(d), which grants the Supreme Court rulemaking authority with respect to MDLs, requires the court to give 120 days’ notice to all lawyers in the state when it enacts rules or amendments. Under �74.024(d), the rule should not take effect until April 1, 2006, he says. The plaintiffs’ steering committee for the MDL filed a request asking Christopher to rule on the jurisdictional issue. It is one of several issues Christopher will consider at a Dec. 12 hearing. The plaintiffs’ concern is that defendants could raise the jurisdictional issue at a later date. “The defense could run this issue back at us in three years and get a reversal,” Black says. Martin says that, if the amended rule is proven void, “then essentially the pre-Sept. 1, 2003, cases are in some sort of empty vacuum with no place to go.” Jody Hughes, rules attorney for the Supreme Court, says the court faced a timing issue. S.B. 15 required the court to enact a rule by 90 days after the bill took effect on Sept. 1. So, the court decided to provide the 120-day notice period after it enacted the rule change, so that it could meet the bill’s requirement, he says. “The court believed it needed to implement the rule the way that it did in order to have a rule in effect at the appropriate time,” Hughes says. “In terms of the jurisdiction, the courts will have to sort that out.”

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