*1 601 which, per- prudence, to the extent SQUIBB
suasive, justify uncertainty they do In re BRISTOL-MYERS example, Hospital engender. COMPANY, al., For Doctors et Relators. Appeals, v. 750 Facilities Fifth 96-0881. No. (Tex.1988), violations of 177 involved S.W.2d perform act a legal ministerial duties Supreme Court of Texas. appeals panel. The case was not court of of discretion decided under the clear abuse 16, Argued 1997. Jan. Founders, Inc. v. Mar- standard. Phoenix 14, July Decided 1998. shall, (Tex.1994), 831 and Na- 887 S.W.2d Brotherton, v. 851 tional Tank Co. S.W.2d (Tex.1993), distinguished. can
193 likewise be a motion to dis-
Phoenix Founders involved firm, in-
qualify a law while National Tank privileged documents. Cases such as
volved traditionally prompt emphasize us to harm at issue cannot be remedied contrast,
appeal. This involves a pretrial
motion to incidental rul- dismiss —an
ing typically appropriate for man- that is Black,
damus relief. Abor v. See (Tex.1985) (citing Fergu- Pope 566-67 v. (Tex.1969)).
son, 445 S.W.2d 953-54 Appeals, v.
While Street Second Court of (Tex.1988), and Crown Cen-
756 S.W.2d Garcia, Corp.
tral v. Petroleum 904 S.W.2d (Tex.1995), did involve some modification underlying
of the substantive law in a man- Morris, proceeding,
damus v. Lunsford (Tex.1988), is case the S.W.2d 471 squarely
Court cites like the case Lunsford,
presented today. approach
however, criticized, roundly despite has been seeming appeal.
its the fact the Court And previously
has modified the law in one or two compelling proceedings
mandamus is not a Rather,
reason to continue to do so. question of whether
Court should leave be to be considered
Atomoshould overruled ordinary appeal.
due course on relaxing in ef-
By mandamus standards to relief, grant Barney the Court
fect Smith practice I cannot but
firmly establishes approach re-
view as unwise. Court’s our mandamus standards and
treats from duty promote certainty
contravenes our Accordingly, predictability in the law. I that mandamus should not
while join opinion. I the Court’s cannot
granted leave to file in this
in
case and
a
proceeding challenging
mandamus
the con-
of
solidation
asbestos-related claims for
today.
Ethyl
which we also decide
See In re
(Tex.1998).
Corp.,
purposes single judge. Honor before originally presided able Frank I Andrews over Honor docket and was succeeded underlying suits are four of thousands Judge Subsequently, able John Marshall. implant pending breast eases in Dallas permitted an Marshall either remanded or County. pretrial hearing At a that encom opt-out implant of all breast cases that had passed pending eases in th originally assigned been Dis Court, the 14 District the trial court sua Court, presides. trict over which he As a sponte twenty-three set of those cases for a consequence, all breast cases were single subsequent trial. Due to events not courts to which returned here, only relevant four cases that collective originally assigned and the cases at issue in ly encompassed separate the claims nine th in this Court remained District pursuant remain to be tried to that special Court. Another docket was then cre Although technically order. there are twelve implant litigation ated the breast Dal defendants, parties agree th County, las but the 14 District Court and entities affiliated and there are partici two other district courts declined to essentially groups three of manufacturers as pate process and were not defendants. judge local do so administrative The trial court denied various motions ob- County regional presiding Dallas or the consolidation, jecting to the and the relators judge. unsuccessfully sought a writ of mandamus appeals. from the court of Relators have The order at issue consolidated number petitioned separate pending in the 14th District now this Court for relief. We suits Profes- a mass tort. disputes plant litigation involves one single for a trial. No a mature mass has defined fact, caption reads sor McGovern of the order Implant Litigation.” tort as one which Breast “Silicone Gel day that a was issued the same The order complete discov- has full and “there been trial court hearing was held at which the verdicts, persis- and a ery, multiple *3 surprise” announced what it called “little plaintiffs’ vitality [contentions]. in the tent hearing, trial parties. At the for the or no stage, mature little Typically at the 20 cases” would court revealed “about developed, significant evidence will be new trial, for but the court would be consolidated legal issues novel appellate review if identify cases. asked whieh When concluded, full at least one has been and plaintiffs or 20 different “cases” meant 20 exhaust- cycle strategies has been of trial multiple plaintiffs, in which there were suits ed.” informed that it was the latter. counsel were McGovern, Analysis Mass Torts An for objected at the At one of the defendants least (1995) Judges, 73 Tex.L.Rev. 1821, 1843 hearing setting of cases “with McGovern, Resolving Mass (quoting Mature any type in of consolidated other defendant Litigation, 659, 659 Tort 69 B.U.L.Rev. one setting to “the of more than trial” and (1989)). plaintiff at a time.” setting the task of A court confronted with Following hearing, the court is- this trial developmen- assess the cases for trial should identifying order the cases set sued written the asbes- stage tal of the mass tort. Unlike proceedings for and there were further Ethyl, in litigation tos objections hearings at whieh further and enough a mature tort. Until litigation is not one trial of the claims of more than contours of have occurred so that the trials orally plaintiff at a time were and raised types of within the breast various specifically in written motions. Defendants known, courts should implant litigation are plaintiff’s in argued their motions each in consolidat- proceed with extreme caution separately. For exam- case should be tried Ethyl, 975 S.W.2d generally claims. ing See ple, one motion stated: experience have extensive at 614. We do not short, few In the consolidation of even a very classes of claims with the diverse Plaintiffs, vary- with similar but have been asserted. histories, ing make a trial claims and conduct, sufficiently difficult to without Nevertheless, say, cannot based we consolidating cases of manufac- different us, that the trial court on the record before products turers of different at different consolidating these in abused its discretion periods time. Ethyl, the so-called claims. In we utilized requested motion that the order That same analyzing the trial Maryland factors “consolidating these cases for trial be vacated of claims for trial. See aggregation court’s proceed in and that these individual causes (1) Those factors are at 615. separate objections trials.” The defendants’ (3) (2) worksite; occupation; similar common separate to trials other than trials of no more (4) disease; exposure; type of similar time of clearly than at a time were and one (5) living or de plaintiffs were whether repeatedly urged in trial court and were (6) case; ceased; discovery in each status of overruled. (7) represented whether (8) counsel; challenge type of cancer plaintiffs’ argument that no same Maryland factors at 611. The regarding alleged. in the trial court Id. was made litigation in all plaintiffs is without merit. not fit breast suit with six do provide guid they do some particulars, but Ill criteria that should be to the kinds of ance as compa apply we criteria considered. When Ethyl, explained that mass torts In Maryland to the record factors cycle time will rable to the typically have a life and over us, implant man we conclude at 610. Like the before mature. See 975 S.W.2d how the dif- not established Ethyl, im- ufacturers have litigation in the breast asbestos among ferences the consolidated claims about some but not other materially substantially affect the fairness of a trial. would the trial of these claims. inquiry first Maryland under the fac- An additional consideration is whether the tors is whether there awas common work- types differ. The assortment of site. Worksites are not at issue alleged ailments in these consolidated eases another, but analogous there consideration disease, atypical neurological system- include present litigation. asbestos That is disease, ic symp- connective tissue flu-like the existence of “learned intermediaries.” toms, maladies, and scores of other as well as Physicians responsible implanting injuries” scarring, capsular “local such as warnings devices at contracture, pains. and chest The breast given information to them the manufac- implant litigation appear does not to involve turn, turers warnings and infor- *4 a cluster or of conditions diseases that have given mation by physi- to each her etiologies. related or similar presumably vary patient cian will from to patient product product. and from to variety injuries While The wide allegedly package implants by implants some of the inserts the caused the at issue are similar to part record, they variety injuries alleged Repeti of the the are not self- In re (2d explanatory Injury Litigation, tive 11 physician, to one who is not a Stress F.3d 368 Cir.1993). however, that is Unlike ease record otherwise silent as to what warnings record does indicate that the cause of given they were and how differ. be, many injuries of the could much less is analogous Another consideration be, likely something to than im other the Maryland given plaintiff factors is whether a plants. Nor is there is evidence in this implanted particular was with a manufactur- testimony regarding record that the causa ease, product. plain- er’s In this seven of the regard product tion with to each and each implants tiffs only received from one manu- substantially materially ailment will dif facturer, although plaintiffs the two other fer. allege implants received from more sum, In if the defendants had demonstrat- than Implants one manufacturer. differ disparities among ed that the the claims manufacturer, from manufacturer actually would affect the trial of the case and implants even manufactured the same consider, jury the evidence the company product product. differ from would be manufac- inclined to with the example, implants may For some be filled jury turers that a would be confused and types saline, gel, with various of silicone or single prejudiced by would be gel and saline. Another difference is trial of these nine claims. But evidence has plaintiffs’ implants that some of the provided support not been the claims of polyurethane, with allegedly coated which de- prejudice example, it and confusion. For is Here, grades carcinogens. plaintiffs alleged that “state-of-the-art” evidence will implants widely varying received with char- depending implant differ on when each was points acteristics at ranging different time received. But there is no evidence ques- from 1974 to 1991. is There also the assertions, support record to much less rupture. implants plain- tion of of some changes in evidence of when the state-of-the- allegedly ruptured tiffs while the gave art The manufacturers occurred. did, others did not. Of those that some guidance particular trial court no as to which ruptures may have been caused acute require claims would different state-of-the- trauma others not. while While the Likewise, already art as we have evidence. foregoing differences do indicate that alluded, might variety suffered regarding may evidence each claim differ require separate prevent injustice trials substantially, we cannot conclude with confusion, is no evidence from but there certainty from this that those record differ- which we can make that determination. preju- ences are material and would result jury. recognize dice or confuse the There is no evi- We the trial court likely attempt explaining dence what a to hear made no to assess whether confusion
605 Accordingly, I together. or result if these dissimilar claims claims were only by respectfully together. tried criterion utilized dissent.
the trial
that these
court was
cases were
argu-
stated at oral
Defendants’ counsel
implant
pending
of the
cases
breast
at
ment:
time in
further
recognize
its court. We
has never been a
knowledge,
to our
there
even counsel for the
stated re-
trial
multi-plaintiff
outside
breast
peatedly
at oral
selection
the State
Texas. Within
State of
process employed by the trial court was “ar-
Texas,
a trial of
there has never been
as
bitrary.”
determining
But in
whether man-
proposed
as nine
as is
here.
plumb
damus should
we cannot
fact,
In
that we are
largest number
subjective reasoning of the trial court. We
four,
aware of is
and we’re not aware of
must
that was
focus on the record
before the
trials,
any multiple
certainly
manufacturer
court
the decision
and whether
was not
“
outside the
of a woman who has
context
arbitrary
‘to a
but also amounted
clear and
”
multiple
with different manufac-
Packer,
prejudicial error of law.’ Walker v.
tures.
(Tex.1992)
(quoting
S.W.2d
Appeals,
Johnson v. Fourth Court
only been
Counsel added: “There have
(Tex.1985)).
This record
altogether.”
handful of
trials
does not demonstrate the
that will
*5
challenged
Plaintiffs have
these asser-
not
aggregating
result from
these claims for tri-
tions,
and the
cites no case from
Court
al.
support
the
court
would
consolidation
trial court abused its
the
Accordingly, we cannot conclude that the
request
for mandamus relief.
[*]
‡
discretion,
‡
‡
and we
deny
ordered
arbitrarily in
case
agreement
This is
that the
by
certainly
of
the
consolidating for trial
district court acted
district
and defendants
surprising, given
court
completely
this case.
the
nine
this
the
plaintiffs’
against
groups
three
claims
de-
HECHT, Justice,
a dissenting
filed
the
fendants. Plaintiffs’ counsel told
Court
opinion,
GONZALEZ, Justice,
in which
argument
in oral
the district court’s
joined.
capricious”,
“arbitrary
decision was
and
HARKINSON, Justice,
participate
did not
plain-
the “consolidation did not favor the
in the decision.
tiffs”,
opposed
and
he was therefore
it, although
sought
he
relief. Plain-
had
HECHT, Justice, joined by GONZALEZ,
experi-
tiffs’ counsel
that based on his
stated
Justice, dissenting.
ence, trying four claims at once was worka-
Ethyl Corporation,1
Here
inas
In re
also
ble,
trying
at
but
more than six claims
once
holds,
today,
decided
the Court
not that the
not,
plaintiffs’ standpoint
was
either from
or
for trial
consolidated
the district
Defendants,
course, agreed
defendants’.
court
together
prejudice,
can
tried
without
be
prejudicial.
was
consolidation
but only
yet
that defendants’ record is as
prejudice.
preju-
I disagree
insufficient to show
Defendants
their
based
discovery showing
age
with the Court that defendants
be
on
the
should
dice
extensive
(between
59),
the
to offer more evidence of
of each
34 and
date
(from
parties agree
implants
when
the
she
the
and
record dem-
or dates
received the
(recon-
1991),
implants
the district court
the
for the
onstrates that
acted arbi-
reason
trarily,
type
no
struction or
the
of im-
showing
augmentation),
when there has been
(silicone
saline,
together
prej-
plants
the
silicone
gel,
claims can be tried
without
and
udice,
saline,
uncoated),
economy
who manu-
when there is no evidence of
and coated or
(different
them
had im-
be achieved from a consolidated
factured
manufacturers),
plants
when
authority
no
can be cited from
from different
the
jurisdiction approving
many
physician
trial of
who
the
performed
so
sur-
(Tex.1998).
1.
gery whether recognize Court concedes this: “We (some not), raptured ever did and some did that the trial attempt court made no to as- multiple implant whether there surger- sess whether confusion or (some three), ies had as as whether result if together.”3 these claims were tried (for plain- had been removed seven To determine whether mandamus relief is tiffs, (chest yes), appropriate, claimed “plumb the Court need not rash, fever, pain, loss, flu symptoms, memory subjective reasoning of the trial court.”4 As loss, joint headaches, hair pain, today’s opinion infection of the author of wrote for the reproductive organs, vagi- itehiness year ago, joined by a little over a discharge, feet, nal bacterial infection of today’s majority all the Members who ears, skin, ringing Court, in the cramps tender in were then on “A trial court abuses hands, easy bruisability, feet and neck and its discretion if its arbitrary, decision ‘is un- sensation, pain, reasonable, shoulder a tingling pain in guiding and without reference to ”5 arms, ears, pain dry principles.’ standard, mouth Judged by etc.). weariness, dizziness, eyes, The Court record before us shows a clear abuse concludes: discretion. relief, Despite case, the denial of in this
if the defendants had demonstrated that just Ethyl, as in perfectly the Court makes disparities among the claims would clear that the cases consolidated the dis- actually affect the trial of the case and the trict together court cannot be tried without consider, jury evidence that the Here, prejudice. inas the district would be inclined to with the manu- court would do well to reconsider its consoli- facturers that a would be confused in light today’s opinions. dation order prejudiced and that the would be by single trial of these nine claims. But provided
evidence has not support been *6 prejudice
the claims of and confusion.2 imagine certainty
It is hard to how the near prejudice any and confusion could be more
apparent, especially given plaintiffs’ counsel’s argument. put own concessions at oral To CORPORATION, In re ETHYL USX Cor- proof defendants to further is makework. poration, Shipyards Corporation Todd importantly, More defendants should have City Refining, Inc., and Texas Relators. no additional burden to show when No. 96-0931. absolutely there has been showing no of an efficiency absence of or of an to be Supreme Court of Texas. achieved a consolidated trial. The addi- 16, Argued 1997. Jan. keep tional time that will be claims, separate the various and the risk of July Decided 1998. appeal, reversal on have not been factored determination whether consolidation necessary unnecessary “to avoid costs or delay”, the basis for consolidation Rule under
174(a) of the Texas Rules of Civil Procedure.
Indeed, reflects, the record
concede, that the district court undertook no
determination of ordering kind before
consolidation. (Tex. Shoukfeh, 2. Ante at 604. 5. Goode v. 943 S.W.2d 1997) (citation omitted). 3. Ante at 604. 4.Ante at 605.