The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. Ronald K. ONEY, Individually and as Representative of the Estate of Daniel D. Oney, Appellee.
No. 14-11-00815-CV.
Court of Appeals of Texas, Houston (14th Dist.).
July 19, 2012.
Concurring and Dissenting Opinions on Denial of Rehearing En Banc Sept. 20, 2012.
380 S.W.3d 795
CHARLES W. SEYMORE, Justice.
I. BACKGROUND
On March 14, 2011, appellee filed his original petition, alleging the following facts. From 1971 until 1994, Daniel D. Oney (“the decedent“) was employed by KCSR, a railroad engaged in interstate commerce. During this employment, the decedent “was exposed to harmful and/or hazardous substances, including known human carcinogens, such as asbestos, silica, and diesel exhaust.” As a result of this exposure, the decedent was diagnosed with lung cancer in April 2010 and died approximately one month later. Appellee asserted a claim under FELA because of KCSR‘s involvement in interstate railroad commerce.2
KCSR answered appellee‘s suit and filed a motion to transfer the case to the asbestos MDL pretrial court. According to KCSR, its answer triggered a thirty-day deadline for the claimant to furnish medical reports under Chapter 90. Succinctly, sections 90.003 and 90.004, respectively, require a claimant alleging asbestos-related and silica-related injuries to serve re-
On August 15, 2011, appellee filed an agreed motion to compel discovery from the hospital maintaining the decedent‘s pathology. On August 17, 2011, appellee filed a supplemental response to KCSR‘s motion to dismiss, arguing that “discovery in this case is in its infancy” and his experts needed an opportunity to review pathology evidence before providing reports. On August 26, 2011, the MDL court signed an order compelling the hospital to provide the requested pathology evidence. On the same date, the trial court also signed an order denying KCSR‘s motion to dismiss, expressly concluding that appellee is not required to comply with Chapter 90 report requirements.
II. JURISDICTION
As an initial matter, appellee contends we lack jurisdiction to consider this interlocutory appeal. Generally, a party may appeal only a final judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). However, a party may appeal an interlocutory order in which the trial court denies a motion to dismiss filed under section 90.007.
Apparently, appellee argues section 51.014(a)(11) does not apply because Chapter 90 is preempted by FELA. Thus, according to appellee, KCSR‘s motion to dismiss was, in actuality, a motion to dismiss under FELA, not section 90.007. We disagree. In its motion to dismiss, KCSR specifically requested dismissal pursuant to section 90.007. Because the Texas Legislature has authorized interlocutory appeals from a trial court‘s denial of a section 90.007 motion to dismiss, we have jurisdiction to consider this appeal.3
III. FEDERAL PREEMPTION
In a single issue, KCSR contends the trial court erred by denying KCSR‘s motion to dismiss and concluding that appellee is not required to comply with Chapter 90 report requirements because they are preempted by FELA.
A. Conflict Preemption
Federal preemption of state law is grounded in the Supremacy Clause of the United States Constitution, which provides that “the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
B. Federal Employers’ Liability Act (FELA)
“Before FELA was enacted, the harsh and technical rules of state common law had made recovery difficult or even impossible for injured railroad workers.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011) (citation omitted). “[D]issatisfied with the [railroad‘s] common-law duty, Congress sought to supplan[t] that duty with [FELA‘s] far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer‘s negligence.” Id. (citations omitted). FELA was enacted to “shif[t] part of the human overhead of doing business from employees to their employers.” Id. at 699 (citations omitted).
Under FELA,
Every common carrier by railroad while engaging in [interstate] commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.
“It is now well-settled that Congress explicitly directed that FELA wholly preempt state-law remedies for railway employees injured in the course of employment when any part of that employment furthers interstate commerce.” Rogers v. Consol. Rail Corp., 948 F.2d 858, 860 (2d Cir.1991). “As a general matter, FELA cases adjudicated in state courts are sub-
C. Texas Civil Practice and Remedies Code Chapter 90: Claims Involving Asbestos and Silica
In 2005, Chapter 90 was signed into law, establishing the method for handling a pretrial docket for asbestos-related and silica-related claims and prescribing reporting requirements and medical criteria by which impaired and unimpaired claimants are identified. See Acts 2005, 79th Leg., R.S., ch. 97, § 1-2, 2005 Tex. Gen. Laws 169, 169-79. In passing Chapter 90, the Legislature stressed the existence of an “asbestos-litigation crisis,” noting that Texas led the nation in such suits during the period from 1988 to 2000.
Consequently, the Legislature enacted Chapter 90, commenting:
It is the purpose of this Act to protect the right of people with impairing asbestos-related and silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system, while at the same time preventing scarce judicial and litigant resourсes from being misdirected by the claims of individuals who have been exposed to asbestos or silica but have no functional or physical impairment from asbestos-related or silica-related disease.
(a) In an action filed on or after the date this chapter becomes law, if a claimant fails to timely serve a report on a defendant, or serves on the defendant a report that does not comply with the requirements of Section 90.003 or 90.004, the defendant may file a motion to dismiss the claimant‘s asbestos-related claims or silica-related claims. The motion must be filed on or before the 30th day after the date the report is served on the defendant. If a claimant fails to serve a report on the defendant, the motion must be filed on or before the 30th day after the date the report was required to be served on the defendant under Section 90.006. If the basis of the motion is that the claimant has served on the defendant a report that does not comply with Section 90.003 or 90.004, the motion must include the reasons why the report does not comply with that section.
. . .
(c) Except as provided by Section 90.010(d) or (e),5 if the court is of the opinion that a motion to dismiss is meritorious, the court shall, by written order, grant the motion and dismiss all of the claimant‘s asbestos-related claims or silica-related claims, as appropriate, against the defendant. A dismissal under this section is without prejudice to the claimant‘s right, if any, to assert claims for an asbestos-related injury or a silica-related injury in a subsequent action.
D. Analysis
1. In re GlobalSantaFe
In support of its argument that the medical-report requirements of Chapter 90 are not preempted by FELA, KCSR relies primarily on In re GlobalSantaFe Corp., 275 S.W.3d 477 (Tex.2008) (orig. proceeding).
In In re GlobalSantaFe, the plaintiff filed suit against GlobalSantaFe Corp. (“GSF“) in Texas district court, asserting Jones Act claims for maritime injuries allegedly stemming from occupational exposure to silica. Id. at 479-80. While the case was still in the pretrial phase, Chapter 90 of the Texаs Civil Practice and Remedies Act became effective. Id. at 480. Because the plaintiff filed his suit before September 1, 2003, the dismissal provisions of section 90.007 were inapplicable. Id. at 481 (citing
The supreme court considered the applicability of Chapter 90 relative only to silica claims; the court noted it expressed no opinion relative to Chapter 90 provisions applying to asbestos-related claims. In re GlobalSantaFe, 275 S.W.3d at 489 n. 78. The court recognized that the Jones Act is remedial, meaning “for the benefit and protection of seamen who are particularly wards of admiralty,” and discussed Jones Act preemption prinсiples:
The preemption of state law by the Jones Act is a unique corner of federal preemption law that must be applied with recognition that Jones Act cases can be brought in federal or state court. While state law must sometimes yield to the need for a uniform and harmonious system of federal maritime law, “this limitation still leaves the States a wide scope.” Congress could preempt the entire field of maritime law, but has instead left the states “with a considerable legislative and judicial competence in the maritime field.” Where Congress has acted in the admiralty area, “state regulation is permissible, absent a clear conflict with the federal law.”
Id. at 484 (citations omitted). The court then recognized general principles regarding preemption under the Jones Act:
On the one hand, substantive rights created by Congress via the Jones Act must prevail over inconsistent state substantive law even where the suit is brought in state court. On the other hand, it has held that state law characterized as procedural is not preempted. The [United States Supreme] Court has also recognized that federal maritime law follows a “reverse Erie” doctrine of sorts, employing the use of substantive federal maritime law in state courts but recognizing that state procedural law can be followed.
Id. at 485 (citations omitted). The court cited a United States Supreme Court case supporting this proposition. Id. at 486 (citing Am. Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (holding state statute rendering federal doctrine of forum non conveniens inapplicable was procedural and thus not preempted)).
The court then considered whether certain portions of Chapter 90 were preempted by the Jones Act. First, the court held that most of the report requirements of section 90.004 were not preempted: “Nothing in the Jones Act exempts a seaman claiming a silica-related disease from establishing, through reliable medical proof, that he in fact suffers from such a disease.... Both federal and state law require expert testimony grounded in the methods and procedures of science.” Id. at 486-87. “To the extent that Jones Act jurisprudence recognizes a special standard for proving causation, federal cases have held that this causation standard does not exempt Jones Act cases from the general rules for admission of expert testimony.” Id. at 487. The court then specified which requirements in section 90.004 are
Second, the court held that Chapter 90 procedures for transferring silica cases to an MDL court for pretrial proceedings are not preempted by the Jones Act because it is merely state procedural law. Id. at 488-89.6 “These provisions serve an important state purpose ... of streamlining the resolution of silica cases ... and thus conserving judicial and litigant resources.” Id. at 488. “Texas courts are not expected to abandon all their regular rules of practice and procedure and to adopt federal rules in a case simply because a Jones Act claim is alleged. On the contrary, maritime law recognizes a ‘reverse-Erie’ principal that generally leaves state courts hearing maritime suits to their regular procedures.” Id. at 489. “The transfer of silica-related cases to an MDL court for consolidated pretrial proceedings does not work material prejudice to a characteristic feature of maritime law.” Id.
Third, the court held that one portion of the report requirements in section 90.004 was preempted: the requirement that an expert must verify the exposed person has “at least Class 2 or higher impairment” duе to silicosis. Id. (quoting
2. Application of In re GlobalSantaFe in Present Suit
Appellee argues the instant case differs significantly from In re GlobalSantaFe because, inter alia, section 90.007, pertaining to motions to dismiss for failure to serve a Chapter 90 report, was not applicable in that case. 275 S.W.3d at 481. We agree.
In In re GlobalSantaFe, the plaintiff‘s failure to timely serve a report merely resulted in the MDL court retaining jurisdiction until a satisfactory report was served, and nothing in Chapter 90 mandated a stay in discovery while the plaintiff attempted to prepare a report; the defendant could not file a motion to dismiss based on the plaintiff‘s failure to file a report. Id. Thus, under the circumstances in In re GlobalSantaFe, the plaintiff had an opportunity to conduct discovery and obtain the information needed to satisfy the report requirements.
Conversely, in the instant case, a defendant may file a section 90.007 motion to dismiss when the claimant fails to serve a sufficient medical report.
3. Felder v. Casey
Next, appellee argues that the report requirements under Chapter 90 are preempted because they are akin to the notice-of-suit requirements which were determined by the United States Supreme Court to be preempted in Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302. We conclude the Supreme Court‘s analysis is instructive notwithstanding the fact that the report requirements of Chapter 90 clearly differ from the notice-of-claim requirements examined in Felder.
In Felder, the Court considered whether a Wisconsin notice-of-claim statute was preempted in a federal section 1983 action. Id. at 134-137.7 The Wisconsin statute provided, in relevant part, that no action may be brought against the government or its officers unless a claimant provided written notice of the claim within 120 days of the alleged injury. Id. at 136. A claimant also was required to submit to the governmental defendant an itemization of relief requested, and the governmental defendant had 120 days to grant or deny such relief. Id. at 136-37. Succinctly, the Supreme Court determined that the state procedural law was preempted because it conflicted in “its purpose and effects with the remedial objectives of [section] 1983, and because its enforcement in such actions [would] frequently and predictably produce different outcomes in [section] 1983 litigation based solely on whether the claim is asserted in state or federal court.” Id. at 138.
As we have done regarding FELA, the Supreme Court discussed the purposes of section 1983:
Section 1983 creates a species of liability in favor of persons deprived of their federal civil rights by those wielding state authority. As we have repeatedly emphasized, “the central objective of the Reconstruction-Era civil rights statutes ... is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief.” Thus, [section] 1983 provides “a uniquely federal remedy against incursions ... upon rights secured by the Constitution and laws of the Nation” and is to be accorded “a sweep as broad as its language.”
Id. at 139 (citations omitted). The Court also recognized that the Wisconsin notice-of-claim and exhaustion requirements were primarily intended to benefit governmental defendants by preventing meritless claims and controlling liability expenses. Id. at 142-44. However, the Court explained these goals were “patently incompatible with the compensatory goals of” section 1983--goals which sought to subject governmental employees to liability. Id. at 143-46 States, however, may no more condition the federal right to recover for violations of civil rights than bar that right altogether, particularly where those conditions grow out of a waiver of immunity which, however necessary to the assertion of state-created rights against local governments, is entirely irrelevant insofar as the assertion of the federal right is concerned, and where the purpose and effect of those conditions, when applied in [section] 1983 actions, is to control the expense associated with the very litigation Congress has authorized.
Id. at 144 (citations omitted).
Finally, the Court explained why section 1983 likewise preempted the exhaustion provision of the Wisconsin statute. Declaring that states may not place a condition on vindication of a federal right, the Court determined that the exhaustion requirements, albeit easily and inexpensively satisfied, were inconsistent with the remedial purposes of section 1983, particularly “the notion that a State could require civil rights victims to seek compensation from offending state officials before they could assert a federal action in state court.” Id. at 149. “[T]o the extent the exhaustion requirement is designed to sift out ‘specious claims’ from the stream of complaints that can inundate local governments in the absence of immunity, we have rejected such a policy as inconsistent with the aims of federal legislation.” Id. (citation omitted).
4. Application of Felder in Present Suit
We recognize the differences between Felder and the present case. For example, the Wisconsin statute applied only to suits against governmental defendants, in direct contravention to section 1983 which was specifically intended to subject governmental employees to liability. Id. at 144-46. Here, Chapter 90 applies to all defendants in asbestos and silica suits, not just railway companies engaged in interstate commerce. Additionally, although requiring claimants to provide an accurate picture of the underlying incident before litigation commences may benefit both claimants and governmental defendants, the primary purpose of the Wisconsin statute was to benefit governmental defendants by reducing litigation costs and allowing them an opportunity to prepare a strоnger case. Id. at 143, 145, 150. The legislative intent behind Chapter 90 was perhaps not so defendant-friendly because, aside from protecting companies and jobs negatively impacted by the deluge of asbestos-related and silica-related claims, the Legislature expressly intended to expedite relief for those actually suffering from asbestos-related and silica-related injuries.
Despite these differences, there are several key similarities between Felder and the instant case. First, section 1983 and FELA are remedial, intended to provide groups with historically unequal access to legal remedies the ability to seek and receive adequate compensation for injuries. Specifically, the purpose behind section 1983 was to ensure access to courts for persons who are deprived of civil rights instead of having to seek redress from governmental agencies not known for protecting civil rights. See Burnett v. Grattan, 468 U.S. 42, 50-51 (1984); McDonald v. City of West Branch, Mich., 466 U.S. 284, 290 (1984); Felder, 487 U.S. at 147-48;
Second, the challenged state statutes here and in Felder benefit defendants by requiring claimants to disclose merits-related information regarding their claims in order to save litigation costs and prevent frivolous suits. The report requirements under sections 90.003 and 90.004 are “directed at assuring reliable expert confirmation” of asbestos-related and silica-related illness. See In re GlobalSantaFe, 275 S.W.3d at 486-88. Many of these requirements--such as providing a detailed occupational and exposure history, including nature, duration, and frequency of exposure, and a physician opinion that “to a reasonable degree of medical probability, exposure to asbestos was a cause of the [cancer]” or “inhalation of silica was a substantial contributing factor to that cancer“--likely oblige the claimant to obtain information from the railroad employer--a party who may not be readily forthcoming with inculpatory evidence regarding exposure of its employees to asbestos and silica.8
Furthermore, as mentioned above, unlike In re GlobalSantaFe, section 90.007 applies in this case. See
This also distinguishes the instant case from Norfolk Southern Railway Co. v. Bogle, 115 Ohio St.3d 455, 875 N.E.2d 919 (2007). In Bogle, the Supreme Court of Ohio considered whether FELA preempted an Ohio statute requiring the plaintiff claiming a non-malignant asbestos-related injury to serve a medical report within thirty days of filing suit. Id. at 921. The court concluded there was no preemption because the sanction for failing to timely serve the report was an administrative dismissal during which the statute of limitations was tolled until the claimant could serve a sufficient report. Id. at 926. In our situation, there is no tolling following dismissal.10
The Bogle court also recognized that there was uniformity between Ohio and federal procedure because the federal courts initiated in 1991 an MDL docket for asbestos-related cases. Id. at 926-27; see also
However, when appellee filed the present suit during February 2011,11 AO No. 8 had been replaced by Administrative Order No. 12 (2009) (“AO No. 12“). Pursuant to AO No. 12, claimants were required to submit medical reports similar to those required by Chapter 90:
Each plaintiff asserting a claim based upon an alleged asbestos-related malignancy [or alleged non-malignant injury or condition] shall submit to the court a copy of the medical diagnosing report or opinion upon which the plaintiff now re-
lies for the prosecution of the claim as if to withstand a dispositive motion. . . .
Each report or opinion submitted hereunder shall be based upon objective and subjective data which shall be identified and descriptively set out with the report or opinion.
AO No. 12, provision 4.12
Although not specified in the text of AO No. 12, the MDL panel required claimants to serve authenticated reports which include a diagnosis of symptomatic asbestos-related disease based on medically accepted principles and exposure history. See In re Asbestos Prods. Liab. Litig. (No. VI), 278 F.R.D. 126, 131, 133 (E.D.Pa.2011). Claimants whose cases were transferred to the MDL docket in February 2011 were required to file a report within thirty days from the date of the transfer. AO No. 12, provision 12. “The court may dismiss pursuant to F.R.C.P. 41(b) the cases of any plaintiffs who fail to comply with the requirements set forth.” AO No. 12, provision 6 (emphasis added); compare with
There are instances of cases pending in the federal asbestos MDL Docket in which FELA claims were asserted.14 Although none of these cases involves the legal questiоn of whether FELA claimants are required to comply with AO No. 12, at least one FELA claimant filed an AO No. 12 report. See Robinson v. Ill. Cent. R. Co., 2011 WL 4907401, at *1 n. 1 (E.D.Pa. Feb. 14, 2011) (noting claimant submitted medical records in accordance with AO No. 12). However, we note MDL panels “may prescribe rules for the conduct of its business not inconsistent with Acts of Congress and the Federal Rules of Civil Procedure.”
Accordingly, we concludе that the applicable Chapter 90 report requirements and dismissal provision impose an unnecessary burden on appellee‘s rights of recovery under, and interfere with the remedial purposes of, FELA. See Brown, 338 U.S. at 295-99 (determining state pleading rule requiring court to construe pleadings most strongly against pleader interfered with plaintiff‘s federal rights under FELA). Nothing in our holding relieves appellee from the burden of presenting reliable, admissible evidence supporting his FELA claim in future proceedings. See id. at 299 (recognizing its determination that FELA preempted state pleading requirement did not relieve plaintiff from presenting sufficient evidence at trial). KCSR‘s sole appellate issue is overruled.
We affirm the trial court‘s interlocutory order.
BOYCE, J., dissenting.
WILLIAM J. BOYCE
Justice
I agree with the majority‘s determinations that (1) this court has appellate jurisdiction to consider Kansas City Southern Railway Company‘s (KCSR) interlocutory appeal; and (2) this appeal does not pertain to claims based on the decedent‘s asserted exposure to diesel exhaust.
I respectfully dissent from this court‘s judgment insofar as it affirms the MDL court‘s order denying dismissal and determining that “Plaintiffs are not required to file expert reports complying with Tex. Civ. Prac. & Rem.Code [Ch.] 90, et seq.” because this case “arises under the Federal Employer‘s Liability Act, 45 U.S.C. § 51 et seq.” (FELA). I would hold that the preemption analysis of Chapter 90‘s expert report requiremеnts applicable to a Jones Act claim for injuries attributed to silica--announced in In re GlobalSantaFe Corp., 275 S.W.3d 477 (Tex.2008) (orig. proceeding)----applies with equal force to Chapter 90‘s expert report requirements applicable to a FELA claim for injuries attributed to asbestos. Under this analysis, Chapter 90‘s requirements to assure reliable expert confirmation of asbestos-related diseases are not preempted by FELA.
Congress indisputably has the power to preempt state law.
Close reading is required to identify the exact route at issue in this case because appellee Ronald Oney does not clearly delineate the basis for his preemption assertion. Nor does the MDL court‘s order.
In “Plaintiffs’ Motion for Continuance to Respond, Objections, and Response to Defendant Kansas City Southern Railway Company‘s Motion for Summary Judgment and Motion to Dismiss,” Oney cited
On appeal, Oney also makes passing references to field preemption in the course of asserting that “KCSR is seeking to ‘exempt itself from liability’ under the FELA, under the auspices of sections 90.003, 90.004, and 90.007 of the Texas Civil Practices and Remedies Code.” The MDL pleading contains no explicit reference tо field preemption. Insofar as Oney attempts on appeal to argue field preemption in connection with Chapter 90, this attempt also fails. The issue in this case involves no battle over the wholesale displacement of state law remedies or liability standards by a federal statutory scheme. See Cipollone, 505 U.S. at 516 (State law is impliedly preempted when federal law so thoroughly occupies a legislative field “as to make reasonable the inference that Congress left no room for the States to supplement it.“).
This case involves a distinct inquiry focusing on the interplay of federal substantive law and state procedural requirements arising from a FELA case pursued in state court. State and federal courts have concurrent jurisdiction over FELA cases.
Oney‘s MDL court pleading and his appellate brief cite Felder v. Casey, 487 U.S. 131 (1988), which addressed implied conflict
The majority approaches implied conflict preemption by minimizing the significant differences between Chapter 90‘s expert report requirement and the notice-of-suit mechanism analyzed in Felder. A sounder approach is to acknowledge the significant similarities between this Chapter 90 case involving injuries attributed to asbestos and In re GlobalSantaFe Corp.‘s analysis of Chapter 90 preemption in the context of injuries attributed to silica.
A unanimous Texas Supreme Court concluded that certain of section 90.004‘s expert report requirements for silica claimants were not subject to implied conflict preemption under the Jones Act. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89.
According to the supreme court, “The requirements embedded in Chapter 90 to assure reliable expert confirmation of silica-related diseases are not preempted by the Jones Act.” Id. at 486. “Nothing in the Jones Act exempts a seaman claiming a silica-related disease from establishing, through reliable medical proof, that he in fact suffers from such a disease.” Id. “To the extent that Jones Act jurisprudence recognizes a special standard for proving causation, federal cases have held that this causation standard does not exempt Jones Act cases from the general rules for admission of expert testimony.” Id. at 487 (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 47 (2d Cir.2004)). “We see no basis for holding that Texas law generally governing the admission of expert testimony, which draws so heavily from federal law, is preempted by the Jones Act.” Id. “Therefore, the provisions of Chapter 90 directed at assuring reliable expert confirmation of the existence of one of the medically recognized forms of silica-related illness are not preempted.” Id. “In short, the principles of Jones Act preemption are flexible enough to accommodate general Texas rules governing the admission of expert testimony, and also accommodate the Chapter 90 rules specific to expert testimony in cases involving silica-related injuries....” Id. at 489.1
In my view, the supreme court‘s reasoning in In re GlobalSantaFe Corp. is equally applicable to Chapter 90‘s expert report requirements in connection with claims under FELA for injuries attributed to asbestos. See
Oney offers two justifications for a different Chapter 90 preemption analysis here. Neither justification withstands scrutiny.
First, Oney stresses that ”In re GlobalSantaFe involved silica-related claims, not asbestos-related claims.” Oney also emphasizes the supreme court‘s statement that “we have not examined the provisions of Chapter 90 relating to asbestos-related claims, and express no opinion on whether any such provisions are preempted.” In re GlobalSantaFe Corp., 275 S.W.3d at 489 n. 78. This distinction is accurate but hardly dispositive. As the supreme court has noted, Chapter 90‘s expert report requirements for silica cases in section 90.004 and asbestos cases in section 90.003 were born of the Legislature‘s identification of “an asbestos litigation crisis.” Id. at 482. The Legislature “warned of a similar crisis looming over silica-related actions, evidenced by a recent spike in such claims, and raising some of the same concerns applicable to the asbestos crisis.” Id. Chapter 90‘s parallel expert report requirements for silica cases and asbestos cases were part of the legislative response. Id. “[B]y requiring detailed expert reports early in the litigation process, Chapter 90 endeavors to assure that claims are not brought and pursued unless they are supported by reliable expert evaluations of the claimant.” Id. (citing
Second, Oney stresses that In re GlobalSantaFe Corp. analyzed preemption in connection with the Jones Act rather than FELA. This argument is not persuasive. Concurrent jurisdiction exists in connection with both statutory schemes. Id. at 480 n. 2 (“Under the ‘saving to suitors’ clause of
The majority opinion takes a different tack by focusing on section 90.007‘s dismissal mechanism, which was not addressed in In re GlobalSantaFe Corp. This distinction likewise fails to demonstrate that a divergent preemption analysis is warranted in this case. As a threshold matter, it is worth noting that the majority‘s concerns regarding the effect of dismissal rest in large part on suppositions about the prospects for a limitations bar in
The majority‘s reliance on the possibility of dismissal as the distinguishing factor does not withstand scrutiny even if credence is given to suppositions about the potential for a limitations bar after dismissal. Also questionable is the majority‘s suggestion that Chapter 90 preemption analysis turns on whether a claimant can “conduct discovery to obtain the information needed to satisfy the report requirements.” Such a suggestion is--at the very least--in tension with the Legislature‘s concern regarding “enormous litigation expenses” and its desire for “detailed expert reports early in the litigation process.” Id. at 482. The majority‘s distinctions, even if granted the benefit of every doubt, ultimately collide with the following longstanding principle: “A state statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation.” Robertson v. Wegmann, 436 U.S. 584, 593 (1978).
For these reasons, I respectfully dissent.
Rehearing en banc denied.
FROST, J., concurred on denial of rehearing en banc.
BOYCE, J., dissented to denial of rehearing en banc, joined by Justices BROWN, CHRISTOPHER, JAMISON, and BUSBY.
KEM THOMPSON FROST, Justice, concurring on denial of rehearing en banc.
Today, the en banc court denies the motion for en banc reconsideration filed by appellant The Kansas City Southern Railway Company.1 The decision is compelled by the exacting standard for en banc consideration imposed by the Texas Rules of Appellate Procedure.2
Rule 41.2(c) supplies the legal standard for determining whether a motion for en banc reconsideration should be granted.3 The relevant portion of that rule provides:
(c) En Banc Consideration Disfavored. En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court‘s decisiоns or unless extraordinary circumstances require en banc consideration.4
This high threshold for en banc consideration is reasonable given the large volume of cases adjudicated each year by intermediate appellate courts and the substantial expenditure of time and resources involved in considering a case en banc. Notably, the standard for en banc review is not whether a majority of the en banc court disagrees with all or part of a panel opinion.5 Thus, even if a majority of the en banc court were to conclude that the majority opinion in the case under review was wrongly decided, that conclusion alone would not justify en banc consideration.6 The fact that the issues involved are important is likewise not sufficient to satisfy the legal standard.7 Under the plain meaning of Rule 41.2(c), en banc consideration is disfavored and should be ordered only when necessary to secure or maintain uniformity in this court‘s decisions or when extraordinary circumstances require en banc consideration.8
In its motion for en banc reconsideration, The Kansas City Southern Railway Company does not address the standard for en banc review set forth in Rule 41.2(c). Nor does it assert or show a direct conflict between the panel majority opinion and any other opinion of this court. The Kansаs City Southern Railway Company does not assert or argue that en banc consideration is necessary to secure or maintain uniformity in this court‘s decisions. Nor does The Kansas City Southern Railway Company assert or argue that extraordinary circumstances require en banc consideration. Likewise, in the dissenting opinion on denial of rehearing en banc, there is no discussion of the exacting standard for en banc consideration or why it is met in this instance. Because this exacting standard is not satisfied, it is proper for this court to deny The Kansas City Southern Railway Company‘s motion for en banc reconsideration. Though the presented issues are important to the jurisprudence, the prerequisites for en banc consideration have not been satisfied.10 By voting to deny this motion for en banc reconsideration, I take no position on the merits of the case under review; rather, I conclude only that the high threshold for en banc consideration has not been met.11
For these reasons, I respectfully concur with this court‘s decision to deny The Kansas City Southern Railway Company‘s motion for en banc reconsideration.
Congress indisputably has the power to preempt state law.
Close reading is required to identify the exact route at issue in this case because appellee Ronald Oney does not clearly delineate the basis for his preemption assertion. Nor does the MDL court‘s order.
In “Plаintiffs’ Motion for Continuance to Respond, Objections, and Response to Defendant Kansas City Southern Railway Company‘s Motion for Summary Judgment and Motion to Dismiss,” Oney cited
On appeal, Oney also makes passing references to field preemption in the course of asserting that “KCSR is seeking to ‘exempt itself from liability’ under the FELA, under the auspices of sections 90.003, 90.004, and 90.007 of the Texas Civil Practices and Remedies Code.” The MDL pleading contains no explicit reference to field preemption. Insofar as Oney attempts on appeal to argue field preemption in connection with Chapter 90, this attempt also fails. The disagreement in this case does not focus on whether a federal statutory scheme displaces state law remedies or liability standards. See Cipollone, 505 U.S. at 516 (State law is impliedly preempted when federal law so thoroughly occupies a legislative field “as to make reasonable the inference that Congress left no room for the States to supplement it.“).
This case involves a different inquiry focusing on the interplay of federal substantive law and state procedural requirements arising from a FELA case pursued in state court. State and federal courts have concurrent jurisdiction over FELA cases.
Oney‘s MDL court pleading and his appellate brief cite Felder v. Casey, 487 U.S. 131 (1988), which addressed implied conflict preemption of a state law notice-of-suit provision in connection with a claim brought under
The majority approaches implied conflict preemption by minimizing the significant differences between Chapter 90‘s expert report requirement and the notice-of-suit mechanism analyzed in Felder. A sounder approach is to acknowledge the significant similarities between this Chapter 90 case and In re GlobalSantaFe Corp.‘s analysis of Chapter 90 preemption in the context of a Jones Act suit for injuries attributed to silica.
A unanimous Texas Supreme Court concluded that certain of section 90.004‘s expert report requirements for silica claimants were not subject to implied conflict preemption under the Jones Act. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89.
In my view, the supreme court‘s reasoning in In re GlobalSantaFe Corp. is equally applicable to Chapter 90‘s expert report requirements in connеction with claims under FELA for injuries attributed to silica and asbestos exposure. This court already has covered much of the same ground as In re GlobalSantaFe Corp. by analyzing the intersection between expert testimony standards and FELA‘s lower burden of proof. “Despite the lower burden under FELA, a plaintiff still bears the burden of presenting evidence from which a jury could conclude the existence of a probable or likely causal relationship as opposed to a merely possible one.” Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). “The lower burden under FELA does not mean that, in FELA cases, courts must permit expert testimony that would not be admissible in other contexts.” Id. at 19; see also Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d 747, 750-51 (Tex.App.-San Antonio 2002, no pet.). Oney and the panel majority do not provide a convincing rationale for analyzing preemption of Chapter 90‘s report requirements in a FELA case differently from preemption of Chapter 90‘s report requirements in a Jones Act case.
Oney offers two justifications for a different Chapter 90 preemption analysis here. Neither justification withstands scrutiny.
First, Oney stresses that ”In re GlobalSantaFe involved silica-related claims, not asbestos-related claims.” Oney also emphasizes the supreme court‘s statement that “we have not examined the provisions of Chapter 90 relating to asbestos-related
Second, Oney stresses that In re GlobalSantaFe Corp. analyzed preemption in connection with the Jones Act rather than FELA. This argument is not persuasive. Concurrent jurisdiction exists in connection with both statutory schemes. See id. at 480 n. 2 (“Under the ‘saving to suitors’ clause of
The majority opinion takes a different tack by focusing on section 90.007‘s dismissal mechanism, which was not addressed in In re GlobalSantaFe Corp. This distinction likewise fails to demonstrate that a divergent preemption analysis is warranted in this case. As a threshold matter, it is worth noting that the majority‘s concerns regarding the effect of dismissal rest in large part on suppositions about the prospects for a limitations bar in this and other cases if dismissal occurs--suppositions that run counter to Oney‘s position that KCSR cannot assert a viable limitations defense in this case. In any event, the supreme court‘s preemption analysis in In re GlobalSantaFe Corp. did not focus on the potential consequences of a failure to comply with expert report requirements. Instead, that analysis focused on the compatibility between federal standards requiring reliable expert testimony and similar Texas standards reflected in Chapter 90. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89. That should be the focus in this case, too.
The majority‘s reliance on the possibility of dismissal as the distinguishing factor does not withstand scrutiny even if credence is given to suppositions about the potential for a limitations bar after dismissal. Also questionable is the majority‘s suggestion that Chapter 90 preemption analysis turns on whether a claimant can “conduct discovery to obtain the informa-
The panel majority‘s holding is incompatible with In re GlobalSantaFe Corp. and Abraham; therefore, rehearing en banc is warranted. I respectfully dissent from the denial of rehearing en banc.