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PETITION FOR WRIT OF ATTORNEYS FOR

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PETITION FOR WRIT OF ATTORNEYS FOR Powered By Docstoc
					                                 ORAL ARGUMENT REQUESTED
        No.




   Regarding an Order in Cause No. 2005-76732,
In re Texas State Silica Products Liability Litigation,
 in the 295&District Court of Harris County, Texas,
        the Texas State Silica Pre-Trial Court

Which Remanded the Case to Cause No. 2003-30221,
   John B. Lopez v. GlobalSantaFe Corporation,
 in the 55& District Court of Harris County, Texas.


PETITION WRITOF ~ ~ ~ W A M U S
       FOR

                            LOCKE LIDDELL & SAPP LLP

                            John Hall
                            State Bar No. 08759900
                            Christopher Dove
                            State Bar No. 24032138
                            600 Travis Street, Suite 3400
                            Houston, Texas 77002-3095
                            (7 13) 226- 1200 (Telephone)
                            (7 13) 223-37 17 (Facsimile)

                            ATTORNEYS FOR DEFENDANT
                            GLOBALSANTAFE CORPORATION
                      IDENTITY OF PARTIES AND COUNSEL

Relator:                  GlobalSantaFe Corporation

Relator's Counsel:        John Hall
                          Christopher Dove
                          Locke Liddell & Sapp LLP
                          600 Travis St., Suite 3400
                          Houston, TX 77002

Respondent:               The Honorable Tracy Christopher
                          2 9 5 District Court
                                ~
                          20 1 Caroline, 14' Floor
                          Houston, TX 77002

Real Party in Interest:   John B. Lopez

Attorneys for Real        John M. Black
Party in Interest:        Ian P. Cloud
                          Heard, Robins, Cloud, Lube1 & Greenwood, LLP
                          One Allen Center
                          500 Dallas, Suite 3 100
                          Houston, TX 77002
                                                 TABLE OF CONTENTS

Identity of Parties and Counsel ............................................................................................. i
                                                                                                                                   ..
Table of Contents ................................................................................................................ 11
Index of Authorities ...........................................................................................................
                                                                                                                                         ...
                                                                                                                                         111

Statement of the Case ........................................................................................................... v
                         . . .
Statement of Junsdlctlon ..................................................................................................... vi
Issue Presented ..............................................................................................................
                                                                                                                             vli
                                                                                                                                          ..
Statement of Facts ................................................................................................................ 1
Summary of the Argument ..................... .............................................................................. 3
Argument.............................................................................................................................. 4
           I . Part of Section 90 Is Preempted. But Most Is Not Preempted .............................. 4
                     A. Federal Maritime Law Does Not Preempt A State's
                     Determination Of Which Court Shall Hear The Case ...................................5
                                1. The United States Supreme Court Has Held That The
                                Jones Act Is Indifferent To Which Court Hears The Case .................5
                                2. The Asbestos MDL Pretrial Court Agreed With
                                GlobalSantaFe..................................................................................... 6
                      B. Federal Maritime Law Preempts Only One Part of Section 90 ...............7
                                1. Federal Maritime Law Preempts The Minimum Injury
                                Requirement, But Not The Rest of the Report ................................... 7
                                 2 . The Ohio Supreme Court Is Wrestling With These
                                 Same Issues....................................................................................... 10
            I1. When Part of a Statute Is Preempted. Courts Must Enforce the
            Remaining Provisions ............................................................................................. 11
                      A . Preemption Must Be Limited To The Areas of Actual
                      Conflict ........................................................................................................ 1
                                                                                                                                      1
              B . The Legislature's Decision To Require MDL Treatment
              Cannot Be Ignored .................................................................................. 1 2
       I11. GlobalSantaFe Has No Adequate Remedy By Appeal.................................... 14
 Conclusion and Prayer ...................................................................................................... 1 5
 Signature ...........................................................................................................................   -16
 Certificate of Service....................................................................................................... 16
  Affidavit ............................................................................................................................ 1 7
                                                                       ..
                                                                       11
                                        INDEX OF AUTHORITIES

    .
    Cases
    American Dredging Co. v. Miller. 5 10 U.S. 443 (1994) ............................................. 5.6. 8
    Chrysler Corp. v. Texas Motor Vehicle Comm 'n. 755 F.2d 1192 (5" Cir. 1985) .............11
    City of Houston v. Clark. 197 S.W.3d 3 14 (Tex. 2006) ......................................................7
    Edwards v . Sears. Roebuck and Co.. 5 12 F . 276 (5' Cir. 1976) .................................... 9
                                                 2d
    Engel v. Davenport. 27 1 U.S. 33 (1926) ..............................................................................2
    Florida Lime and Avocado Growers. Inc. v. Paul, 373 U.S. 132 (1963) ..........................14
                                              .
    Henderson v. 0 'Neill, 797 S W.2d 905 (Tex. 1990) ..................................................... 1 5
    In re AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004) .............................................................. 15
    In re D. Wilson Construction Co., 196 S.W.3d 774 (Tex. 2006) ...................................... 12
    In re Fluor Enters., Inc., 186 S.W.3d 639 (Tex. App.-Austin 2006. orig.
    proceeding). mand. denied (Mar. 1. 2006) .......................................................................... vi
    In re J D. Edwards World Solutions Co., 87 S.W.3d 546 (Tex. 2002).............................. 15
    In re Prudential Ins. Co. of Am.. 148 S.W.3d 124 (Tex.2004) ........................................ 1 5
    In re Silica Products Liability Litigation. No . 04-0606 (Judicial Panel on
    Multidistrict Litigation. June 19. 2006) ............................................................................... v
    Jack B. Anglin Co.. Inc. v. Tipps. 842 S.W.2d 266 (Tex. 1992)....................................... -12
    Maritime Overseas Corp. v. Ellis. 97 1 S.W.2d 402 (Tex . 1998)........................................ -9
    Norfolk S. Ry. Co. v. Bogle, 852 N.E.2d 1213 (Ohio August 23. 2006) ............................ 10
     Norfolk S. Ry. Co. v. Bogle, 850 N.E.2d 1281 (Ohio App. 2006) ..................................... 10
     Silkwood v. Kerr-McGee Corp.. 464 U.S. 238 (1984) ....................................................... 11
     Simpson v. Canales. 806 S.W.2d 802 (Tex. 1991) .......................................................15
     Thompson v. Robbins. 157 Tex. 463. 304 S.W.2d 111 (1957) ............................................5
-
     Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)..................................................... 4                               14


     Statutes and Rules
     28 U.S.C. tj 1331 ..................................................................................................................2
     46 U.S.C. app. 5 688(a)................................................................................................. 1
      S.B. 15 tj 1, Acts 2005, 79* Leg.. ch. 97, 2005 Tex. Sess. Law Serv.ch. 97......................
                                                                                                     9
      TEX CONSTart.5. tj 3 .............................................................................................................. v
         .    .
                                                                       iii
Articles
Steven Tipps. MDL Comes to Texas. 46 S .TEX L.REV . 829 (Summer 2005) .................13
                                           .
                              STATEMENT OF THE CASE

      GlobalSantaFe Corporation seeks a writ of mandamus because the Silica MDL

Pretrial Court remanded a silica lawsuit, on the grounds that Section 90.010 of the Civil

Practice and Remedies Code is preempted by federal law. On May 29, 2003, Plaintiff

John B. Lopez ("Lopez") filed suit against Defendant GlobalSantaFe Corporation

("GlobalSantaFe") alleging "injurious exposure to silica." Record Tab I. His case

remained in the 55" District Court of Harris County, Texas until 2005, when Section

90.010(b) took effect and permitted the transfer of existing silicosis lawsuits to the Silica

MDL Pretrial Court. See Record Tab 14. The Defendant filed a Notice of Transfer to the

Silica Pretrial MDL Court as permitted by Section 90.010(b) and TEX.R. JUD. ADM.

13.11.' RecordTab4.

       On December 15, 2005, the Plaintiff filed a Motion to Remand to the trial court,

which was granted by the Respondent, Silica MDL Pretrial Court Judge Tracy

Christopher, of the 295" Judicial District Court in Harris County, Texas. Record Tabs 5-

11. GlobalSantaFe promptly filed a Motion for Reconsideration with the MDL Panel,

pursuant to TEX. JUD. ADM. 13.5(e). On June 19, 2006, the MDL Panel held that it
                R.

lacked jurisdiction, and that mandamus is the proper method for review under TEx.R.

 JUD.ADM. 13.9(b). Record Tab 12.

        On July 18, 2006, GlobalSantaFe filed a Petition for Writ of Mandamus in the

 Fourteenth Court of Appeals, Houston, Texas. The C o m of Appeals denied the writ of

   The Rules of Judicial Administration are codified at TEX. GOV'T CODEANN., Title 2, Subtitle F,
 Appendix. They can be most easily found on Westlaw by typing "TX ST J ADMIN Rule 13" into the
 "FIND" dialog. They are also included in the Appendix at Tab 15.
mandamus on December 19, 2006, in an opinion authored by Chief Justice Adele

Hedges, joined by Justices Yates and Seymore. Record Tab 1. This Petition for Writ of

Mandamus followed.



                              STATEMENT OF JURISDICTION

       This case presents questions of federal preemption and statutory interpretation that

have already resulted in a split between the Asbestos and Silica MDL Pretrial Courts, and

that are presently being considered by the Ohio Supreme Court as well.                      That error

should be corrected by this Court.

        This Court has general jurisdiction to issue a writ of mandamus under Texas

Constitution article 5, section 3, and Texas Government Code section 22.002(a). TEX.
                                                                                   R.

JuD. ADM. 13.9(b) also states that orders remanding a case fiom the Silica MDL Pretrial

                                                             R.
Court to the trial court shall be reviewable by mandamus. TEX. JUD. ADM. 13.9(b);~
                                                                                 see

also In re Silica Products Liability Litigation, No. 04-0606 (Judicial Panel on

Multidistrict Litigation, June 19, 2006); In re Fluor Enters., Inc., 186 S.W.3d 639, 644

(Tex. App.-Austin       2006, orig. proceeding), mand. denied (Mar. 1,2006).




 2
    "An order or judgment of the trial court or pretrial court may be reviewed by the appellate court that
 regularly reviews orders of the court in which the case is pending at the time review is sought,
 irrespective of whether that court issued the order or judgment to be reviewed. A case involving such
 review may not be transferred for purposes of docket equalization among appellate courts."
                                        ISSUES PRESENTED

             Civil Practice and Remedies Code Section 90 transfers silicosis cases to the MDL

       Pretrial Court for their pretrial phase, and then remands them to the trial court when they

       are ready to be tried. The Silica MDL Pretrial Court refused to keep the transferred case

       because it held that a report requirement in Section 90 was preempted by the federal

       Jones Act. Yet the United States Supreme Court has held that the Jones Act does not

       preempt a state's laws determining which court shall hear a particular case, and courts are

----
       instructed to preempt onlythose parts of a statute thatactually conflict~witkfedaab1aw~-
        --    - -    - --


              Does the Jones Act preempt Texas's MDL rule permiting transfer of the pretrial
              phase of this silica case to the Silica ADL Pretrial Court?
              Must Section 90 be entirely discarded because federal law preempts only one
              portion: the requirement of a report showing, inter alia, an injury above a certain
              minimum threshold as a prerequisite for recovery?




                                                     vii
TO THE HONORABLE SUPREME COURT OF TEXAS:

       The Texas Legislature created a new system of centralized MDL courts to handle

the pretrial phase of asbestos and silica cases, and commanded that the MDL Pretrial

Courts "shall" retain jurisdiction over the cases transferred to them. Yet the Silica MDL

Pretrial Judge threw out this whole system because one part of a report requirement is

preempted by the federal Jones Act. But this Court has held that even where one portion

of a statute offends the federal law, the rest of the statute must be enforced. By ignoring

this principle, the pretrial court disrupted the Legislature's MDL scheme and created a

"loophole" for all seamen in Texas. The Asbestos and Silica MDL Pretrial Judges have

issued conflicting opinions, and the Ohio Supreme Court granted review of a similar

issue. This Court should take charge of the situation and issue a writ of mandamus

instructing the Silica MDL Pretrial Court to retain jurisdiction.

                                    STATEMENT OF FACTS

        On May 29, 2003, Plaintiff John B. Lopez filed suit against Defendant

GlobalSantaFe Corporation alleging personal "injurious exposure to silica." Record Tab

1. Lopez filed suit under federal maritime law: he contends that this silica exposure

constituted negligence under the Jones Act, 46 U.S.C. app.              5 688(a), and also rendered
 his vessel unseaworthy.' Id.         The Jones Act is a terse statute that applies the federal

 railway statutes (such as the Federal Employers' Liability Act or "FELA") to "any

 seaman who shall suffer personal injury in the course of his employment." Apx. Tab 8.

 3
   Because the Jones Act is presently codified in an appendix, it can be diffrcult to find on Westlaw. The
 easiest method is to type "46 APP USCA 688" in the "FIND" dialog. It is also included as Tab 8 in the
 Appendix
I

    Though his claims were federal, Lopez filed in the Harris County district courts. See 28

    U.S.C.   5 1331 ("saving to suitors" clause permits a state venue); Engel v. Davenport, 27 1
    U.S. 33,37 (1926). Lopez's case went to the 5
                                                '            Judicial District Court.

             Though the MDL rules originally did not apply to cases filed before September 1,

    2003, that changed when Texas Civil Practice & Remedies Code 5 90.010 took effect on

    September 1, 2005. TEX.CIV. PRAC.& REM. CODEIj 90.010(a) and (a)(2), Apx. Tab 6.

    Section 90.010(b) permits the defendant to transfer a pending silica case to the Silica

    MDL Pretrial Court if the Plaintiff does not serve a report within ninety days after the

    statute took effect, and Lopez filed no report. Id. So on December 2, 2005, the

    Defendant filed a Notice of Transfer. See Record Tab 3; TEX.R. Jm.ADM. 13.1 1.4

             Lopez moved to remand, arguing that Section 90.010 was entirely preempted in

    Jones Act cases, and Silica MDL Pretrial Judge Tracy Christopher agreed. Record Tabs

    5-11; Hearing Transcript, Apx. Tab 2; Order, Apx. Tab 3. After the MDL Panel held it

    had no jurisdiction because the case was not a "tag-along" case, GlobalSantaFe promptly

    filed a Petition for Writ of Mandamus in the Fourteenth Court of Appeals. See MDL

    Panel Opinion, Apx. Tab 4. The Court of Appeals denied the writ on December 19,

     2006. See Opinion, Apx. Tab I . The court of appeals reasoned that the non-preempted

     portions of Section 90 could not be segregated &om the remainder of the statute because

     the result "is a waste of resources and is incompatible with the purposes of both the

     federal and state laws." Id. at p. 9, 13. This Petition for Writ of Mandamus followed.

      The Rules of Judicial Administration governing MDL actions are codified at TEX. GOV'T CODEANN.,
     Title 2, Subtitle F, Appendix. They can be most easily found on Westlaw by typing "TX ST J ADMIN
     Rule 13" into the "FIND" dialog. Rule 13 is also attached as Tab 7 in the Appendix.
                         SUMMARY OF THE ARGUMENT
      The courts below misapplied federal preemption law, thereby abusing their

discretion and creating an unwarranted loophole in the Legislature's MDL procedures.

This is a partial preemption case. U.S. Supreme Court authority explains that the Jones

Act does not preempt a state's laws determining which court should hear the case, such as

the pretrial transfer provision of Section 90.010(b). At the same time, another portion of

Section 90 imposes a minimum injury requirement that does offend the Jones Act. The

solution is to delete that one preempted requirement, not to discard all of Section 90,

because the remaining portions of Section 90 serve a purpose and must be applied as

written.   That is what the Asbestos MDL Pretrial Cout did; and indeed, the Ohio

Supreme Court recently granted review after the Ohio Court of Appeals held that the

Jones Act preempted Ohio's asbestos MDL provision.

       Though this Court and the U.S. Supreme Court have reiterated that courts must

apply the remaining portions of a state statute that is partially preempted, the Court of

Appeals rejected this obligation for two reasons-it   considered the Texas Legislature's

transfer provision to be a bad idea, a "waste of resources," and it held that it would

violate the "purpose" of the federal and state statutes to enforce Section 90 without the

 minimum injury requirements.       Yet this "waste of resources" was created by the

 Legislature, not GlobalSantaFe. And the "purpose" of a state statute does not affect

 preemption, because the only question is whether it actually "impairs" federal law.

 Transferring Lopez's case fiom one court to another impairs no part of the Jones Act.
       The Silica MDL Pretrial Court ensures that the "crush" of asbestos and silica

litigation will be handled consistently across the state, by a judge versed in the recurring

problems that arise in DaubertlRobinson challenges and discovery disputes. The courts

are not £tee to discard the Legislature's carehlly-constructed plans simply because they

are preempted in part. This Court must grant a writ of mandamus to ensure that the

Legislature's answer to a litigation crisis remains in effect for Jones Act claimants.

                                          ARGUMENT
       The Texas Legislature demands that the pretrial phase of this case be heard in the

Silica MDL Pretrial Court. The U.S. Supreme Court has held that the maritime law is

indifferent to which court hears the case. And this Court has held that one must enforce

the portions of a state statute that are not preempted. But the Silica MDL Pretrial Court

and the Court of Appeals have thrown the baby out with the bathwater. This Court must

grant the Petition for Writ of Mandamus in order to correct the error of law made by the

Silica MDL Pretrial Court, and to protect the MDL system implemented by the Texas

Legislature. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (mandamus will lie to

correct a trial court's errors of law).

I. Part of Section 90 Is Preempted, But Most Is Not Preempted

        Clear U.S. Supreme Court authority demonstrates that the MDL pretrial transfer

 provision is not preempted by the Jones Act. Though the Jones Act does preempt the

 minimum injury requirement, the remainder of the statute makes sense and serves an

 important purpose. It must be ehforced as written.
      A. Federal Maritime Law Does Not Preempt A State's Determination Of m i c h
      Court Shall Hear The -case
       Civil Practice & Remedies Code          90.010(b) permits defendants to transfer

silicosis cases to the Silica MDL Pretrial Court, which is the central court that determines

all pretrial matters in all silica cases, including DaubertLRobinson motions, discovery

disputes, and so on. See TEX.R. JUD.ADM. 13.6, Apx. Tab 7. That is the only provision

that has been applied. This provision simply cannot be preempted by the Jones Act.

              1. The United States Supreme Court Has Held That The Jones Act Is
              Indzflerent To Which Court Hears The Case

       State laws are preempted only when they "interfere" with the federal law. "A state

court may adopt such remedies, and attach to them such incidents, as it sees fit, so long as

it does not attempt to make changes in the substantive maritime law."             American

Dredging Co. v. Miller, 510 U.S. 443, 447 (1994) (quotes omitted). "That proviso is

violated when the state remedy works material prejudice to the characteristic features of

the general maritime law or interferes with the proper harmony and uniformity of that law

in its international and interstate relations." Id. (quotes omitted). Procedural matters do

not interfere with the federal maritime law, however. See, e.g., Thompson v. Robbins,

 157 Tex. 463,304 S.W.2d 111, 116-17 (1957) (FELA case).

        Applying these principles to the Section 90 transfer provision is easy. In 1994, the

 U.S. Supreme Court held that a state's choice of forum cannot "interfere" with the Jones

 Act, because the maritime law is indifferent to which court hears the case:

        But venue is a matter that goes to process rather than substantive rights-
        determining which among various competent courts will decide the case.
        Uniformity of process (beyond the rudimentary elements of procedural
       fairness) is assuredly not what the law of admiralty seeks to achieve, since
       it is supposed to apply in all the courts of the world.
Id. at 453. Similarly, section 90.010(b) moves cases to a centralized court for the pretrial

phase of the case, and thereby chooses one state court over another. According to

American Dredging, such transfers fall outside the Jones Act's area of concern. Id.

       The Court of Appeals distinguished American Dredging because of a false

assumption: that American Dredging concerned purely procedural matters, whereas this

case involves the substantive Jones Act. Opinion, Apx. Tab 1 at 12-13. That distinction

fails because American Dredging is itself a Jones Act case. American Dredging, 5 10

U.S. at 445. By the same token, the court of appeals wrongly claimed that American

Dredging must be distinguished because federal maritime law demands "uniformity."

Opinion, Apx. Tab 1 at 13:       The need for "uniformity" was expressly raised and rejected

in American Dredging. American Dredging, 510 U.S. at 453. In both instances, the

court of appeals missed the central holding of American Dredging: the federal maritime

law (Jones Act or otherwise) has no substantive provision addressing which court shall

hear the case, because it is applied the same way in every court of the world. Id. at 453.

 Thus, the federal maritime law never preempts a state's laws assigning the case to a

 particular court. Id. at 453. Statutes like Section 90.010(b) cannot be preempted.

                2. The Asbestos MDL Pretrial Court Agreed With GlobalSantaFe

        In contrast, the Asbestos Pre-Trial Court agreed with GlobalSantaFe's argument

 and denied a Motion to Remand for the very reasons asserted in this Petition. See
                                                                  claims, apparently believing that Jones
   The court of appeals referred to uniformity in b'unsea~~rthimess"
 Act claims are for "unseaworthiness." See id That is incorrect, but irrelevant, because unseaworthiness
 claims were at issue in American Dredging as well. American Dredging, 5 10 U.S. at 445.
    Transcript o Hearing, Apx. Tab bS6 Judge Davidson was persuaded that the pre-trial
                f

-   transfer provision in Section 90 was procedural, not substantive, and thus remand was

    improper. Id. at 15. At the same time, he ruled that the minimum injury requirement was

    preempted by the Jones Act. Id. Judge Davidson has not yet entered an order containing

    his rulings, but GlobalSantaFe believes that Judge Davidson applied the correct

    reasoning. In any event, this Court should grant the writ of mandamus to ensure a

    consistent application of preemption law, just as it must ensure that the MDL rules are

    not discarded without basis in federal law.

           B. Federal Maritime Law Preempts Only One Part of Section 90

            Because Section 90.010(b) is the only MDL rule applied thus far, any argument

    based on the other provisions is premature. Nevertheless, this Court will interpret the

    statute in light of all of its provisions.7 See, e.g., City o Houston v. Clark, 197 S.W.3d
                                                                 f

    3 14,3 18 (Tex. 2006). Therefore, GlobalSantaFe will show that only one part of Section

    90 has been preempted by the federal maritime law, and that the remaining portions are

    unaffected by the Jones Act and should continue to be enforced as written.

                    I . Federal Maritime Law Preempts The Minimum Injury Requirement, But
                                  f
                    Not The Rest o the Report
            GlobalSantaFe concedes that the Jones Act preempts one part of Section 90.010.

     Section 90.010(d)(l) states that the case shall be herd in the MDL pretrial court until the

     plaintiff "serves a report complying with Section 90.003 or 90.004." In turn, Section
     6
       The hearing was in E h a r d s v. Hyundai Heavy Idus., Inc. et al., No. 2005-78255.
     7
       Because this case was filed before September 1,2003, many of the more groundbreaking provisions of
     Section 90 would not apply to the Plaintiff even if his claim arose from state law. See TEX. CIV. PRAC.&
     REM. CODE    $90.006 (date for service of reports); 5 90.007 (permitting motion to dismiss for failure to
     serve a report complying with $90.004), $ 90.OlO(e) (procedure for motion to dismiss).
90.004 requires that report to attest that the plaintiffs injuries exceed a minimum

threshold. See TEX. CIV. PRAC. & REM. CODE 5 90.004(a)(3), (b) and (c). Those

provisions are preempted by the Jones Act, because seamen who allege even the most

meager injuries-like     Lopez-may      assert their claims under the Jones Act.

GlobalSantaFe agrees that Lopez need never prove a minimum level of injury.

       Yet the pretrial transfer provision still remains in effect. At the hearing, Judge

Christopher noted that Section 90.010(b) only permits transfer when a Section 90.004

report has not been filed. See Apx. Tab 2; see TEX.CIV. PRAC.& REM. CODE

  90.010(a)(2). Even so, the failure to file such a report only results in a temporary

transfer to the Silica MDL Pretrial Court. See id. at 5 90.010(b). Swapping one court for

another makes no difference to the federal maritime law. American Dredging, 5 10 U.S.

at 453. Indeed, the Texas Legislature could transfer the casesfor any reason whatsoever,

so long as the result was a court that would apply due process to Lopez's claims. Id.

       And more importantly, the Section 90.004 report requirement still applies even

after this minimum injury requirement is deleted. Lopez could have avoided transfer by

filing a report that complied with the remaining provisions of Section 90.004, but he filed

nothing at all. Nor is Lopez now "trapped" in the MDL pretrial court by his inability to

 file a report. When Lopez's case is ready for trial, he must merely file a report from a

 qualified doctor that meets the remainiig requirements of Section 90.004:

        1. Show that the doctor or someone under his personal supervision performed a
        physical examination of the plaintiff, and took a history of the plaintiffs
        occupational and exposure history, as well as a medical and smoking history,
        9 90.004(a)(l) and (e),
      2. Set out the details of that history, including the nature, duration and fkequency
      of the individual's exposure to silica and other airborne contaminants,
      $90.004(a)(2) and (e),
      3. Attach all medical evidence supporting the doctor's opinion, 8 90.004(a)(4).

These requirements show that section 90.004 prevents "assembly-line" medical evidence

in silica and asbestos cases by requiring that the proof of injury come fiom someone who

(1) personally examined the plaintiff, (2) bothered to take a history of smoking and other

possible causes of disease, and (3) explains her conclusions in detail with attached

evidence. These requirements would seem to be painhlly obvious, but they serve a real

purpose in the face of "the crush of asbestos litigation" and "precipitous" rise in silicosis

lawsuits that compelled the creation of the asbestos and silica MDL courts. See S.B. 15

$ 1, Acts 2005,79" Leg., ch. 97,2005 Tex. Sess. Law Serv. ch. 97.

       These additional requirements are not preempted because they address evidentiary

procedure, and how the plaintiff must prove the reliability of the opinion rendered by his

medical expert. State rules regarding evidence and expert witness qualifications do not

interfere with the federal law. Edwards v. Sears, Roebuck and Co., 5 12 F.2d 276, 292

(5" Cir. 1976). Nothing in this sensible procedure offends the Jones Act.

       Nonetheless, the Plaintiff has previously argued that the Jones Act necessarily

 destroys every single part of the report requirement because the Jones Act's

 "featherweight" causation standard would be offended. Cf Maritime Overseas Corp. v.

 Ellis, 97 1 S.W.2d 402, 406 (Tex. 1998). These requirements do not offend any standard

 of causation. The "featherweight" standard only refers to the causal connection to

 GlobalSantaFe; Lopez still must prove that he has silicosis in the first place. CJ: id.

                                               9
Second, Lopez still must produce some proof of causation, and these report requirements

simply spell out the reliability standards for that proof TEX.R. EVID.702 can be applied

in Jones Act cases, and so can the analogous requirements of Section 90.004.

              2. The Ohio Supreme Court Is Wrestling With These Same Issues

       The Ohio Supreme Court has recently granted review of a similar case. Norfolk S.

Ry. Co. v. Bogle, 852 N.E.2d 1213 (Ohio August 23,2006). An Ohio Court of Appeals

recently held that Ohio's MDL procedures for asbestos were preempted by FELA, but it

did so because of a feature of the Ohio law that is not at issue in this appeal. Norfolk S.

Ry. Co. v. Bogle, 850 N.E.2d 1281 (Ohio App. 2006), Apx. Tab 9. Ohio's statute simply

does not permit asbestos plaintiffs with minor injuries to maintain a lawsuit. Id. The

plaintiffs had filed suit under FELA and the Locomotive Boiler Inspection Act (LBIA)

for asbestos injuries, and the Ohio Court of Appeals held that the dismissal provision

could not be invoked. Id. at 1283. By dismissing the plaintiffs' claims, the court

reasoned, Ohio was attempting to "'gnaw' at the FELAILBIA claimants' substantive

rights to assert a cause of action in a state court." Id. at 1289. The Ohio Supreme Court

granted review, presumably to protect Ohio's asbestos MDL procedures from a dubious

claim of Jones Act preemption.

        The Ohio Supreme Court has demonstrated the importance of the issue. Even if

 that case were a f k e d , Lopez is in a very different position than the Norfolk Southern

 plaintiffs. Ohio's law denied all relief to plaintiffs with minor injuries, and thus crossed

 over the line into substantive law, but Lopez has suffered no such rejection. His claim
was simply sent to a different court for its pretrial phase. Ohio's dispute illustrates that

Texas law must be enforced, because no federal law prevents it from being enforced.

11. When Part of a Statute Is Preempted, Courts Must Enforce the Remaining
Provisions

       This case presents the situation where only part of a state statute offends the

federal maritime law, and this Court has made clear that the courts must enforce as much

of the state statute as they can. But the Silica MDL Pretrial Court and the Court of

Appeals discarded Section 90 entirely. The lower courts' overreaction has created a

dangerous "loophole" that lets federal silica claimants take advantage of the Texas state

courts without being subject to the silica procedures implemented by the Texas

Legislature. This Court must close this loophole by reiterating settled law.

       A. Preemption Must Be Limited To The Areas of Actual Conflict

       Some state laws are completei'y preempted because Congress evinced an intent to

"occupy a given field" with its own statutes. Silkwood v. Kerr-McGee Corp., 464 U.S.

238, 248 (1984). Lopez has never argued "field preemption," and American Dredging

demonstrates that it cannot apply. Without "field" preemption, the federal law leaves the

 rest of the state law intact. A federal statute preempts a state statute only to the extent

 that it "actually conflicts with federal law" or "stands as an obstacle to the

 accomplishment and full objectives of Congress." Silkwood, 464 U.S. at 248. And

 "actual conflicts" are limited to situations where it is "literally impossible" to comply

 with state and federal law at the same time. Chrysler Corp. v. Texas Motor Vehicle

 Comm 'n, 755 F.2d 1192, 1206 (5m Cir. 1985).
      For instance, in Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 27 1 (Tex.

1992), this Court held that the Federal Arbitration Act preempted the non-waiver

provision of the Deceptive Trade Practices-Consumer Protection Act (DTPA). Id. at 27 1-

72. Nevertheless, the remainder of the DTPA was left untouched, and the claim was sent

to arbitration. Id. Thus, even in 1992 it was clear that the preemption of one part of a

statute did not compel the preemption of the entire statute.

       This Court reiterated this important point just last year.     In re D. Wilson

Construction Co., 196 S.W.3d 774 (Tex. 2006). This Court warned that even though the

Federal Arbitration Act (FAA) overlaps with the Texas Arbitration Act (TAA), and

preempts it in some instances, the TAA must be given full effect. Id. "Many courts of

appeals wrongly view the FAA and TAA as mutually exclusive, but the United States

Supreme Court and this Court have held a different view for some time: the FAA only

preempts contrary state law, not consonant state law." Id. (emphasis in original). "For

the FAA to preempt the TAA, state law must rehse to enforce an arbitration agreement

that the FAA would enforce." Id. This Court should apply the same analysis in this

"partial preemption" case. Though Section 90 overlaps with the Jones Act, only a part of

 Section 90 is preempted, and Section 90 should be enforced where possible.

        B. The Legislature's Decision To Require MDL Treatment Cannot Be Ignored

        Nevertheless, the Court of Appeals offered two reasons for rehsing to apply the

 remaining portions of Section 90: "This resulting "transfer-retransfer" procedure is a

 waste of resources and is incompatible with the purposes of both the federal and state

 laws." Opinion at 9 (emphasis added). Both of these reasons must be rejected.
                                              12
      First, the "transfer-retransfer" procedure abhorred by the Court of Appeals is

nothing more than the Legislature's decision to create a centralized MDL court where all

asbestosis and silicosis cases will be transferred for their pretrial phase. See TEX.CIV.

PRAC. & REM. CODE § 90.010. This so-called "waste of resources" was a deliberate

policy decision by the Texas Legislature, spelled out in the statute itself. Id. The Court

of Appeals should have deferred to that decision, rather than to reject it as a bad idea.

       And it is not a bad idea. The transfer provision ensures consistency in the

handling of asbestos and silicosis claims across Texas, because pretrial rulings will be

made by a trial judge experienced in the unique fact patterns and problems of these cases,

and who will be familiar with the issues that are likely to repeatedly arise in

Daubert/Robinson motions and discovery disputes. Indeed, parties cited this uniformity

and consistency as the reason why an asbestos MDL needed to be urgently created.'

Texas recognizes a strong value in having silica cases heard in the MDL court--even if

the underlying cause of action arises under the Jones Act rather than state substantive

law. Lopez had the choice to file his Jones Act case in federal or state court, and chose

the state courts. He must therefore accept the state procedural rules.

        The Court of Appeals also contended that it would violate the "purpose" of the

 federal and state laws to enforce the portions of Section 90 that are not preempted.

 Opinion, Apx. Tab I at 9. Similarly, Lopez has stressed that the Legislature's real

 "purpose" was to frustrate asbestos and silicosis claimants with minimal injuries. See,


 8
   See, e.g., Steven Tipps, MDL Comes to Texas, 46 S. TEX. L. REV. 829, 854, 856 (Summer 2005)
 (describing reasoning and history behind Texas MDL provisions).
e.g., Response in Court of Appeals at 5-7, 11. But the state legislature's "purpose" in

passing a law is wholly irrelevant. "The test of whether both federal and state regulations

may operate, or the state regulation must give way, is whether both regulations can be

enforced without impairing the federal superintendence of the field, not whether they are

aimed at similar or different objectives." Florida Lime and Avocado Growers, Inc. v.

Paul, 373 U.S. 132, 142 (1963). The Court of Appeals identified no part of the Jones Act

that was "impaired" by the Texas Legislature's pretrial transfer provision. C Opinion,
                                                                             f

Apx. Tab 1 at 9. Instead, it cited only the "purpose" of the Jones Act. Id. Yet American

Dredging teaches that the Jones Act's "purpose" is not thwarted by transferring the case

to a different state court for its pretrial phase.                                      +



       At best, Section 90 can only be wholly preempted if it degenerates into nonsense

when the minimum injury requirement is deleted. But this Court has already seen that is

not true. Though Section 90 contains a minimum injury requirement, other provisions

impose a much-needed rigor on the pretrial determinations in an area of law that was

quickly becoming overwhelming. See supra. By refusing to enforce the remainder of

 Section 90, the Silica MDL Pretrial Court and the Court of Appeals have effectively

 rewritten the MDL rules, rejected the Legislature's policy decisions, and created a

 loophole for all Texas asbestos and silica claimants who can plausibly call themselves

 "seamen." This Court must correct this mistake by issuing a writ of mandamus.

 111. GlobalSantaFe Has No Adequate Remedy By Appeal

        Finally, mandamus is a proper remedy because GlobalSantaFe has no adequate

 remedy by appeal. See Walker, 827 S.W.2d at 840. Indeed, the MDL Rules expressly
                                                 14
    recognize that the trial court's remand decision is reviewable by mandamus. TEX. R.

-   JvD. ADM. 13.9(b), Apx. Tab 7. Once the case has been tried, GlobalSantaFe will have

    forever lost its right to have the pretrial phase of this case heard in the Silica Pretrial

    MDL Court, with the corresponding benefits of uniform decisions and an experienced

    trial judge. This Court has often granted mandamus when a trial would erase the very

    efficiency and inconvenience to which the parties were entitled. In re AIU Ins. Co., 148

    S.W.3d 109, 115-17 (Tex. 2004); In re Prudential Ins. Co. o Am., 148 S.W.3d 124, 136
                                                               f

    (Tex. 2004); In re JD. Edwards World Solutions Co., 87 S.W.3d 546, 551 (Tex. 2002);

    Simpson v. Canales, 806 S.W.2d 802 (Tex. 1991); Henderson v. O'Neill, 797 S.W.2d 905

    (Tex. 1990). Even if the court of appeals ordered a new trial, that would not reverse the

    pretrial phase of the case, where the decisions should have been made by a judge familiar

    with the recurring problems of silica cases. Nor would it undo the parties' wasted effort.

    Mandamus should be granted in this case.

                                 CONCLUSION AND PRAYER

            The Texas Legislature has decided that GlobalSantaFe should have the

     opportunity to transfer cases like Lopez's to the Silica MDL Pretrial Court. That policy

     decision should not be rejected simply because a different provision of the statute is

     preempted by the Jones Act. Accordingly, GlobalSantaFe prays this Court grant this

     Petition and issue a writ of mandamus reversing the Silica MDL Pretrial Court's order of

     remand. GlobalSantaFe also prays for all other relief to which it has shown itself

     entitled.
                                       Respecthlly submitted,


                                         &
                                    /&L 4 (
                                       h h n Hall

                                  I/   State Bar No. 08759900
                                       Christopher Dove
                                       State Bar No. 24032138
                                       600 Travis Street, Suite 3400
                                       Houston, Texas 77002-3095
                                       (7 13) 226- 1200 (Telephone)
                                       (7 13) 223-3717 (Facsimile)

                                       ATTORNEYS FOR DEFENDANT
                                       GLOBALSANTAFE CORPORATION



                            CERTIFICATE OF SERVICE

                t
                h
      On the B day of January, 2007, a true and correct copy of the above and
foregoing was delivered, via facsimile and regular mail, to counsel for the parties as
follows:
John M. Black
Ian P. Cloud
Heard, Robins, Cloud, Lube1 & Greenwood, LLP
One Allen Center
500 Dallas, Suite 3 100
    STATE OF TEXAS              3
                                6
-   COUNTY OFHARRIS             6
                                 AFFIDAVIT OF JOHN HALL

          Before me, the undersigned notary, on this day personally appeared John Hall, a

    person whose identity is known to me. After I administered an oath to him upon his oath,

    he said the following:

           1.      My name is John Hall and I am one of the attorneys representing

    GlobalSantaFe Corporation in this matter. I am over twenty-one, have never been

    convicted of a felony or other crime of moral turpitude, and am otherwise competent to

    make this affidavit. In my capacity as attorney for GlobalSantaFe Corporation, I have

    personal knowledge of the facts referenced in the Petition for Writ of Mandamus.

           2.      All of the factual statements in the Petition for Writ of Mandamus are true

    and correct.

    FURTHER AFFIANT SAYETH NOT.




           SWORN TO AND SUBSCRIBED before me                           G i1on this /pday
    of January, 2007.
                                                                    0.

                                              My Commission Expires:       /a -AT9 5

				
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