• Texas HB 1325: Dismissals of Inactive Cases
  • July 9, 2013
  • Law Firm: DeHay Elliston L.L.P. - Dallas Office
  • History of Asbestos and Silica cases in Texas

    Asbestos is a group of minerals that was mined for use in various industrial products, appealing for its fireproofing properties. Certain asbestos fibers have also been found to cause certain lung or respiratory problems in exposed persons who possess certain susceptibilities. Plaintiffs who claim injury based on exposure to asbestos are typically tradesmen who worked in industrial occupations, such as pipe fitters and shipyard workers.

    Silica is another naturally occurring mineral that is found in the earth’s crust. Some workers who were exposed to free silica claim that such exposure caused lung or breathing impairment. The typical silica plaintiff was a sandblaster who claimed exposure to free silica released in the process of sandblasting.

    Lawsuits filed by plaintiffs claiming exposure to asbestos or silica have been filed in Texas for decades. By the early 2000’s, the number of asbestos or silica cases on file in Texas had skyrocketed, and was resulting in an overwhelming accumulation in many Texas courts.

    Chapter 90 of the CPRC

    In 2005, the legislature enacted Chapter 90 of the Civil Practice and Remedies Code that established two MDL (multi-district litigation) courts that would oversee all cases involving silica or asbestos claims pending in Texas until the time of trial. Chapter 90 required existing cases to be placed on an inactive docket until the plaintiff filed a medical report that complied with the statutory definitions of impairment of the plaintiff. For new cases filed, the plaintiff was required to file a compliant medical report in order to avoid dismissal. Upon filing of a compliant medical report, the case would be qualified to proceed through the discovery phase, where written discovery and depositions were conducted. After discovery was substantially complete, the plaintiff could approach the MDL Court and request that the case be certified for trial. The case would then be governed by the standard Case Management Order, and would proceed to a pre-trial hearing before the MDL court. The MDL court set the trial date, after consultation with the local court in which the case would be ultimately tried, and issued pre-trial rulings that would be submitted to the trial court.

    HB 1325

    On February 14, 2013, HB 1325 was introduced by Rep. Doug Miller of New Braunfels, Texas. The Bill was signed by Governor Rick Perry on May 24, 2013 and will be effective on September 1, 2013. The Act authorizes the Texas MDL Court to dismiss a case governed by Chapter 90 if that case is currently pending on the inactive docket and a complaint medical report has yet to be filed. The dismissals would begin on September 1, 2014, with the completion of dismissal by August 31, 2015.

    For the cases dismissed pursuant to HB 1325, if the claimant later obtains a complaint medical report, the claimant would be allowed to re-file the action without repercussion. Although the applicable statute of limitations may have expired, the claimant’s case would be allowed to proceed as if it were never dismissed.

    Impact

    While HB 1325 will affect many parties, the impact will not be catastrophic for any particular group. First, HB 1325 will affect the claimants who have cases on file, currently pending in the inactive docket, because these claimants’ cases will be re-evaluated by counsel and will be dismissed until the claimant’s disease progresses to a point where a qualifying medical report could be obtained.

    HB 1325 will also affect the companies that have been sued by those claimants because the companies will gain a dismissal of the claims, thus impacting SEC filings and balance sheets where such open lawsuits against the companies are reported. Nevertheless, even though the cases are no longer a reported threat, the companies know that the cases could become active at any time, regardless of any statute of limitations defenses.

    Further, HB 1325 will affect the attorneys who represent both plaintiffs and defendants in these suits. The plaintiffs will benefit by obtaining a reduction in the number of open, inactive claims that require counsel’s monitoring. Counsel representing these claimants have an ethical obligation to monitor and communicate with their clients; however, this monitoring comes at an expense to the counsel that counsel may never recover should the claimant’s case never qualify for removal from the inactive docket.

    Finally, counsel for defendants are also required to keep file information pertaining to inactive claims filed against their clients. However, since these cases are not active, defense counsel must act as merely a free storage facility for the information until the case is removed from the inactive docket. Such cases must be included in electronic or paper filing systems, and active cases must compete with the inactive cases for resources.