In re GARLOCK SEALING TECHNOLOGIES LLC AND

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In re GARLOCK SEALING TECHNOLOGIES LLC AND Powered By Docstoc
					                                   INTHE

                       SUPREME COURT OF TEXAS


              In re GARLOCKEALING TECHNOLOGIES
                           S                   LLC AND
                     GEORGIA-PACIFIC CORPORATION,
                                  Relators


              Original Proceeding from Cause No. 2004-03964
       in the Eleventh Judicial District Court of Harris County, Texas
                  The Honorable Mark Davidson, Presiding

            RELATORS GARLOCK SEALING TECHNOLOGIES  LLC's
             AND GEORGIA-PACIFIC CORPORATION'S REPLY TO


                     PETITION FOR WRIT OF MANDAMUS


        HARRJS
SCHACHTER    LLP                             THOMPSON &KNIGHT LLP

 Cary I. Schachter                             G. Luke Ashley
  State Bar No, 17719900                        State Bar No. 01377500
 Raymond P. Harris, Jr.                        Nicole L. Rittenhouse
  State Bar No. 09088050                        State Bar No. 24041784

600 N. Pearl Street, Suite 2300              1700 Pacific Avenue, Suite 3300
Dallas, Texas 75201                          Dallas, Texas 75201

214-999-5700 (Telephone)                     214-969-1700 (Telephone)
214-999-5746 (Facslde)                       214-969-1751 (Facsimile)

AnORNEYS FOR RELATOR                         ATTORNEYS FOR -TOR
GARLOCKSEALING TECHNOLOGIES                  GEORGIA-PACIFIC CORPORATION
LLC
                                                                                                                              Page

Table of Contents .....................       . .
                                              . .
                                               ........ .....................................................................
                                                                                                                            i

Index of Authorities ..........................................................................................................   1
                                                                                                                                   ..
                                                                                                                                   1


Reply to Responses of Real Parties in Interest..................................................................... 1

          I.        Introduction ...................................................................................................
                                                                                                                                1

          I1.       There is no exception to the Havner Factors for Rare Diseases....................2

          I11.      "Incidence" is no Substitute for Statistical Significance................................
                                                                                                            4
          IV.       The Court Cannot Ignore Confounding by Mixed Exposure........................
                                                                                                5
          V.        Mixed Exposure Studies Cannot Bolster Respondent's Analysis...................
                                                                                                 6
          VI.       There has been no Unreasonable Delay and no Resulting Harm ..................7

          VII.      Appeal in Individual Cases is not a n Adequate Appellate
                    Remedy......................................................................................................... 8

          VIII. Conclusion....................................................................................................
                                                                                                                             -8

Certificate of Service ......................................................................................................... 10
                                                 FEDERAL CASES

Footwear Dist. and Retailers of Am. v. U.S.,
      852 F. Supp. 1078 (Ct. Int'l Trade 1994) ..................................................................
                                                                                                              3


                                                   STATE CASES

Austin v Kern McGee Ref. Co.,
       25 S.W.3d 280 (Tex. App. . Texarkana 2000, no pet.) .......................................... 1

Exxon Coq, v. Makofski,
      116 S.W.3d 176 (Tex. App.- Houston [14th Dist.] 2003, pet. denied) ...............3, 5

ExxonMobil Coq. v. Altimore,
           S.W.3d -, 2006 WL 2165725 (Tex. App. - Houston [14thDist.]
      2006, no pet. h.) ........................................................................................................
                                                                                                                             4

Frias v. Atlantic RichfieldCo.,
        104 S.W.3d 925 (Tex. App-Houston [14th Dist.] 2003, no pet.) ............................2

In re AEP Tex. Central Co.,
       128 S.W.3d 687 (Tex. App.-San                      Antonio 2003) (orig. proceeding) ......................7

In re Bahn,
       13 S.W.2d 865 (Tex. App. - Fort Worth 2000) (orig. proceeding) .........................
                                                                                              7

In re Daimler Chrysler Corp.,
       No. 05.0598 (Tex., March 3, 2006) ..........................................................................7

In re Masonite Corp.,
       997 S.W.2d 194 (Tex. 1999)....................................................................................8

Merrell Dow Pharm., Inc. v. Havner,
       953 S.W.2d 706 (Tex. 1997)..................................................................... 2, 3, 5, 7
                                                                                                     1,
Missouri Pac. R.R. Co. v. Navamo,
      90 S.W.3d 747 (Tex. App.- San Antonio 2002, no pet.) .........................................
                                                                                                   3

Zimmerman v. Ottis,
      941 S.W.2d 259 (Tex. App.-Corpus                    Christi 1996) ................................................ 7


                                         FEDERAL STATUTES

59 Fed. Reg. 40864, 40880 (Aug. 10, 1994) ....................................................................... .4
                      REPLY TO RESPONSES OF REAL PARTIES ININTEREST
I.       LNTRODUCTION
         Without exception, the Texas appellate courts have applied the mandates of

H a m r to a host of toxic tort cases involving numerous different substances and diseases,

including diseases that are extremely rare in the general population. Neither Plaintiffs

nor Owens-Illinois ("0-1") suggests otherwise. However, admittedly unable to meet the

H a m criteria, they now argue for an exception that would apply a lesser standard when

addressing whether exposure to pure chrysotile asbestos fibers can cause mesothelioma.

The purported justification is that "calculating a relative risk for mesothelioma is not

                                                            hs
meaningful"' and therefore individual juries should decide ti critical general causation

issue.

         But Havner carefully crafted a standard for evaluating the reliability of

epidemiological evidence that "strikes a balance between the needs of our legal system

and the limits of sciencen2 and specifically acknowledged that "'[llaw lags science; it does

not lead it."3 There is no meaningful distinction between the general causation issue

presented here and that considered in Hamer and the host of subsequent decisions that

faithfully apply its holdings. There is no meanmgful distinction between the animal and

in vitro studies rejected as legally insufficient in H a m r , and the animal, in vitro, and fiber

burden studies that Plaintiffs and 0 - 1 serve up to bridge the analytical gap here. Thus,

        ' Plaintiffs' Response at 6. This same argument was rejected in Austin u. Ken-McGee Refining Corp., 25
S.W.3d 280, 292 (Tex. App. - Texarkana 2000, no pet.), which addressed the alleged causal relationship between
benzene and chronic myelogenous leukemia, another rare disease with exceptionally low background incidence.
         Havner, 953 S.W.2d at 718.
         '
         Hawner, 953 S.W.2d at 728.
this mandamus presents the important issue of whether to create an exception to Havner

for all the mesothelioma cases in the Asbestos MDL proceeding.

 1
1.       ?SIERE IS NO EXCEPTION TO THE HAVNER ACTORS FOR RARE DISEASES.
                                            F
          Leading epidemiologists indisputably believe that chrysotile fibers do not cause

mesothelioma4 and the current edition of the leading pathology text (endorsed by

Plaintiffs' experts) flatly states that "only amphibole exposure correlates with

              Even Plaintiffs' experts concede that epidemiology is essential to
me~othelioma."~

determine whether chrysotile fibers can cause mesothelioma6, and that studies meeting

the H a m r 7criteria do not exist.'

          Plaintiffs and 0-1, however, argue that compliance with H a m r should be excused

in t h context because the disease is so rare that many existing studies report only the

absolute number of mesothelioma cases (i.e., "incidence"), and do not report relative

risks.g As a result some scientists (i.e., those who regularly testdy as Plaintdfs' experts) are

d l i n g to use a lower standard to support their courtroom causation opinions. Thus, they


           As Dr. Brody admitted, among them are his mentors Dr. Wagner and Dr. Craighead. Brody Testimony,
RRIB, pp. 123, 125.
           Vinay Kumar, et al., ROBBINS                 P
                                         AND COTRAN ATHOLOGIC BASIS OF DISEASE, Ch. 15, p. 735 (7' ed. 2005),
Def. Ex. 1, Pet.App., Tab 17.
           Brody Testimony, RRlB, pp. 105, 110-11, 148-49, Pet.App., Tab 16; Hammar Testimony, RR 2, p. 231,
Pet.App., Tab 16. See also Frank Testimony, RR7 pp. 116-17, Pet. App., Tab 16 ("precious little evidence").
         ' Merrell Dow Phawn.,Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (requires studies reporting a relative risk
greater than 2.0, with a 95% confidence interval that does not include 1. Accord, Fsias v. Atlantu Richfield Co., 104
S.W.3d 925,928 n. 5 (Tex. AppHouston [14th Dist.] 2003, no pet.).
         ' Frank Testimony, RR7, pp. 120-21, Pet.App., Tab 16. See also Brody Testimony, RRlB, p. 178, Pet.App.,
Tab 16 (not aware of such studies); Hammar Testimony, RR2, p. 233, Pet.App., Tab 16, (no formal epidemiological
studies exist); Lemen Testimony, RR4, pp. 183-84, Pet.App., Tab 16 (none of the epidemiology studies in and of
themselves show that uncontaminated chrysotile can cause mesothelioma; those studies do not exist).
           Plaintiffs' Response at 6, 13 (citing Lash Testimony RR8 pp. 145, 231.32, Pet.App., Tab 16. While
mesothelioma is a rare disease, H a m r correctly points out that a case-control methodology is typically used to study
rare diseases. Havner, at 721. Dr. Lash testified that case-control studies could be done for mesothelioma. RR8, pp.
220-21, Pet.App., Tab 16.
                                                     2
cite public health agency findings and the refusal of Dr. Craighead to attack the

professional integrity of Plaintiffs' experts (though they advocate their beliefs on general

causation in courts across the nation).

          These arguments completely obscure the essence of Haerner, which melds science

and legal policy and "strikes a balance between the needs of our legal system and the

                    As
limits of s~ience."'~ one court explained it:

         It may be appropriate for the EPA to protect people from chemical exposure
         on weak evidence that it will cause any harm, but that does not make it
         equally appropriate to impose a judgment of several million dollars on weak
         evidence that a defendant caused any harm. Havner specifically bars this
         effort to lower epidemiological confidence levels for courtroom use.""

Thus, causation opinions cannot properly rest on public health agency findings12 or the

opinions of experts &ling to use in the courtroom standards lower than those this Court

has established for determinations of legal responsibility.


         lo   Havner, 953 S.W.2d at 718.
         " Makofski, 116 S.W.3d at 188.      See also, Missouri Pac. R.R. Co. u. Nauawo, 90 S.W.3d 747, 758 (Tex.
 App.- San Antonio 2002, no pet.)
           l2 Most public health statements cited by Plaintiffs' Response at 3 and 0-I's response at 2-3 are far from
 definitive. Moreover, these agencies reverse the burden of proof, placing it on the party trying to prove chrysotile is
not a cause of mesothelioma, The World Trade Organization report comes from a unique form of political dispute
resolution that does not bind U.S. courts. See Footwear Dist. and Retailers ofAm. u. U.S., F. Supp. 1078 (Ct. Int'l
                                                                                          852
Trade 1994). The WTO panel stressed that it was "not its function to settle a scientific debate." It said, "[Tlhe
Panel does not intend to set itself up as an arbiter of the opinions expressed by the scientific community." World
Trade Organization, European Communities- Measures Affecting Asbestos and Asbestos~Cdning            Products (2000) 11
                                                                                                             1
8.181. The panel placed the burden of proof on the party seeking to establish that no risk existed. See id., 1 8.188.
          The World Health Organization's 1998 monograph on chrysotile was approved for publication before
publication of the final installment of the Quebec Chrysotile Miner Cohort in 1997. It expressly cautioned that
estimation of the risk of mesothelioma is "complicated by factors such as the rarity of the disease, the lack of
mortality rates in the populations used as reference, and problems in diagnosis and reporting. In many cases,
therefore, risks have not been calculated ...." World Health Organization, Environmental Health Criteria 203:
Chrysotile Asbestos (1998), P1. Ex. 1-11 at 142.
          The brief report from the January 1997 Helskinki meeting explained that its criteria for "attribution"
included public health purposes such as prevention and international comparisons. Moreover, it contained only a
passing reference to fiber type that acknowledged the greater potency of amphiboles. It did not purport to be a
thorough study or to calculate relative risks. See PI. Ex. 1-9.
                                                      3
111.     "INCIDENCE" IS NO SUBSTITUTE STATISTICAL SIGNIF'ICANCE.
                                    FOR

          To bridge the unquestionable analytical gap in the three studies Relator credited,

Plaintiffs offer the computations of Dr. Lemen, an avowed Havner critic. l 3 Focusing on a

collective handful of cases, he assumed control groups not used by the authors and a

background mesothelioma incidence he did not support, then purported to compute

"what the relative risk would be."14 He thereby claimed statistical sigdcance for data

from the Yano, Piolatto, and Cullen studies,15even though the authors themselves could

not report statistically significant results.16 Havner refused to allow restifylng experts to

manipulate data from epidemiological studies to create statistical significance that the



          The OSHA findings are twenty years old and were based on the relatively sparse research on fiber type
differences then extant. Moreover, OSHA placed the burden of proof on those seeking to show that chrysotile does
not pose a risk of mesothelioma: "There is insufficient evidence to show that chrysotile does not present a significant
mesothelioma risk." 59 Fed. Reg. 40864, 40880 (Aug. 10, 1994). Even so, the quote in Plaintiffs' Response is
qualified to suggest disease induced after exposure to fiber types "alone or in combination," an acknowledgment of
the mixed exposure issue.
          The Asbestos Bibliography relies heavily on animal studies and qualifies its conclusion with the word
"indicates." The American Cancer Society informational publication hardy purports to a be an exhaustive study of
the issue, and merely reports what other public health agencies have stated.
         '   Lemen Testimony, RR5, pp.66-67, 70-71, Pet. App., Tab 16.
          l4 Plaintiffs' Response at 7.
          l5 Lemen Testimony, RR5, pp. 66-67, 70-71 Pet. App., Tab 16. 0 - 1 argues this technique allows even one
case report to establish statistical significance. 0-1 Response at 4. Yet Texas courtsrecognize that case reports are
merely a first step that can lead to, but not substitute for, an epidemiological study. ExronMobil Coq. V . Akimore,
        S.W.3d ,       2006 WL 2165725, at *3 n. 10. (Tex.App.-Houston []14th Dist.] 2006, no. pet.h.). The
Cullen study authors recognized this, noting "the obvious limitations of a case series of the kind presented here" and
further stating their work could provide "a basis for more substantial scientific inquiries in the future." Cullen, et d.,
Chrysotik Asbestos and Health in Zimbabwe: I. Analysis of Miners and Millers Compensation for Asbestos - Related
Diseases Since Independence, 19 Am. J. Ind. Med. 161, 165 (1995) ("Cullen"), Plf. Ex. 1-39.
          l6 In Piolatto, et al., An Update of Cancer Mortality among Chrysotile Asbestos Miners in Bahngero, Northern
Italy, 47 Br. J. Ind. Med, 810 (1990) ("Piolatto"), Def. Ex. 56-27, Pet. App., Tab 13, the authors concluded that "the
excess [mortality] reached statistical significance only for cancer of the larynx." Moreover, they explained that "the
number of deaths were still too limited to allow us to draw definite conclusions." I d at 814. In Yano, et al., Cancer
Mortality Among Workers Exposed to Amphibole-free Chrysotile Asbestos, 154 Am. J. Epiderniol. 538 (2001) ("Yano"),
Def. Ex. 56-22, Pet.App., Tab 12, the authors computed a relative risk for lung cancer and thus stated their results
"demonstrated" a likely relationship for lung cancer. They did not compute a relative risk for mesothelioma and
carefully couched their finding as merely suggesting a possible relationship. Id. at 542. In, C u l h at 165. the authors
cautioned that "obviously, very little can be said quantitatively about the cancers from this series." Id, at 168.
                                                       4
authors and peer reviewers did not find.17 Respondent's departure from Havmr and

acceptance of the same type of data manipulation merits full review.

IV.      THE COURT CANNOT IGNORE CONFOUNDING BY MTXJiD EXPOSURE.

         Plaintiffs do not dispute that Respondent ignored potential confounders explicitly

recognized by the authors of the studies he deemed reliable." However, they rationalize

the burden-shifting error by claiming that it is "speculative" that the confounders in each

of the studies can cause mes~thelioma.'~They ignore Dr. Lemen's concessions that,

"[a]lmost by definition, if exposure has been to mixed types of asbestos, then no evidence

is available to incriminate any particular [asbestos] type as causing any mesotheliomas

that occur"20and that each of the studies involved mixed exposures. While Plaintiffs

criticize as "not generally used in the field of studying asbestos related diseasesn2' the

recognized statistical techniques used by epidemiologists to evaluate the impact of

confounding variables as identified by Dr. Lash, they offer no reliable, objective method

for evaluating the effect of the confounders the authors themselves acknowledge.

Moreover, they offer no support for the suggestion that standard epidemiological

methodologies for evaluating the potential impact of confounding dlffer depending on the

disease or substance being studied.

                                                       at
           l7 Makofski, 116 S.W.3d at 186. See Havne~. 726 (disapproving substituting a different control group to
inflate relative risk to a significant level).
          l8 The Piolatto authors, for example, reported that balangeroite confounded their results and stated "[a]
contribution from these fibres cannot be ruled out." Piolatto at 813, Pet.App., Tab 13. Later studies in fact
confirmed balangerorite to be an amphibole that acts like crodidolite - the most potent mesothelioma-causing
amphibole. Def. Ex. 23, 24. Similarly, tremolite (an amphibole) was a contaminating factor in the Yano study, and
anthophyllite (an amphibole) confounded Cullen.
              Plaintiffs' Response at 14.
          20 Lemen Testimony, RR4, p. 182, Pet.App., Tab 16.
          2' Plaintiffs' Response at 2.
 V.       MDcn> EXPOSURE STUDIES CANNOT BOLSTER RESPONDENT'S ANALYSIS.
          Plaintiffs try to bolster Respondent's flawed analysis by citing studies not

mentioned in Respondent's Opinion. Those studies by Selikoff, by Dell, and by scientists

studying plasterers did not purport to determine risk by fiber type; rather they reported on

populations with significant occupational exposures to products made from commercial

arnphboles.22 Not surprisingly, Dr. Lemen did not feature these studies in his testimony

or his charts.') Of the new studies cited, Dr. Lemen made computations only for the 1998

Camus article.24 He admitted, however, that follow-up studies in 2002 confirmed that

only women exposed to high levels of amphiboles contracted mes~thelioma.~~

          Further, abundant evidence exists to trigger the Havner analysis.                                 Since the

mainstream opinion has now evolved to the consensus that chrysotile does not cause

mesothelioma, there is no reason to ignore the Havner criteria.

           22 Dr. Selikoff studied insulators and was not focused on determining risk by fiber type. Hammar Testimony

RRZ, p. 271. Insulators indisputably had substantial exposures to insulation products containing large amounts of
amosite. Hammar Testimony RRZ, pp. 76, 126. Lemen Testimony, RR5, p. 227. When Dr. Lernen published a
peer-reviewed article in 1996 that sought to compile all the predominately chrysotile exposure studies reported in the
literature, he did not include the Selikoff insulator studies. Stayner et a . Occupational Exposure to Chrysotile Asbestos
                                                                            l,
and Cancer Risk; a Review of the Amphibole Hypothesis, 86 Am. J. Public Health 179, Def. Ex. 89-10. Similarly, he did
not include the Dell and Teta study of a plant where the asbestos was "usually" chrysotile. Dell & Teta, Mortality
Anumg Workers at a Plastics Manufactukg and Research and Development Facility: 1946-1988, 28 Am. J. Indus. Med.
373 (1995), P1. Ex. 1-40. Nor did he cite plasterer studies, because plasterers were exposed to products that were
"either chrysotile or amosite asbestos, or both." Stem, et al. Mortality Among Ullionired Comtmtion Plasterers and
Cement Masons,39 Am. J. Indus. Med. 373 (2001), P1. Ex. 1-32,
          23 Plaintiffs' Exhibit 21.     Similarly Plaintiffs' Response at 4 mentions an analysis by Landrigan and
Nicholson. Dr. Lemen did not rely on these studies. As has been explained in the peer reviewed literature, the
Nicholson and Landrigan approach incorrectly assumes no difference between the potency of chrysotile and that of
amphiboles, and includes flawed assumptions about the date when importation of amphiboles began. Hodgson &
Darnton, The Quantitative Risks of Mesotheliorna and Lung Cancer in Relation to Asbestos Exposure, 44 Ann. Occup.
Hyg:, 565,587-88 (2000), Def. Ex. 4-H.
          24 Camus, ~onoccupationa~     Exposure to Chrystile Asbestos and the Risk of Lung Cancer, 338 New Eng. J. Med,
1569 (1998) ("Camus") was an ecological study, reporting deaths in the region based on death certificates without
knowing specifically where the women lived or worked. It is a type of study that by its nature "rarely provide[s]
definitive causal answers." Federal Judicial Center, Reference Manual in Scientific Evidence 344 (2d ed. 2000).
Thus, the authors "launched a separate study based on a province-wide survey of hospital records." Camus at 1570.
          25 LemenTestimony, RR5, pp. 117-18,246-53, Pet.App., Tab 16.

                                                       6
 VI.     THERE HAS BEEN NO UNREASONABLEDELAY AND NO RESULTING HARM.

         Attempting to avoid the merits, Plaintrffs invoke the equitable doctrine of laches.

However, none of the essential elements of laches are present:26 (1) there was no

 unreasonable delay; (2) any delay from the time of Respondent's letter ruling on the

matter was justified; and (3) there has been no resulting harm,

         Relators filed their Petition for Mandamus just eighteen days after Respondent

signed the order denying their motions. Even if the date Respondent issued his opinion is

relevant, there was no unreasonable delay.                   W     e Relators ultimately submitted a

proposed order, they had no duty to do so. Respondent did not direct Relators to prepare

an order consistent with the Opinion, and normally the prevailing party drafts a proposed

order for the court's consideration,               Further, Relators reasonably waited until the

Supreme Court had reviewed a related mandamus petition.27 Finally, no harm resulted

from any delay, a point that Plaintdfs and 0-1do not dispute,

        The serious and wide-sweeping effects of the Respondent's ruling warrant full

briefing and full review of these important issues on the merits."




          26 The application of laches, in general and in the context of a petition for mandamus, requires ar
unreasonable delay that results in prejudice or harm to the opposing party. See I re AEP Tex.Cent. Co., 128 S.w.3~
                                                                                    n
687, 690 (Tex. App.--$an Antonio 2003) (orig. proceeding) ("mandamus recovery should not be denied based or
delay if no harm has occurred); In re Bah, 13 S.W.3d 865,871 (Tex. App.-Fort Worth 2000) (orig. proceeding).
        ''  Shortly after Respondent issued his opinion, the Supreme Court began to consider a mandamus petitia
challenging Respondent's ruling on a different, but related Havner issue in the Asbestos MDL. See In re Daiml
Chrysler Gorp., No. 05-0598 (orig. proceeding). The petition was filed August 1, 2005, and a response was request1
on August 29, 2005. On October 25, 2005, the Court requested briefing on the merits. On March 3, 2006, t
Court denied review. While Plaintiffs note that denial in their response, it has no precedential significance.
         " See. e.g., Zimmemuzn v. Ottis, 941 S.W.2d 259, 262 (Tex. App.--Corpus Christi 1996) (orig. proceedi~
("it would not serve the interests of justice or those of the parties to invoke laches as an excuse").
                                                  7
 VII. APPEAL IN INDIVIDUAL CASES IS NOT AN ADEQUATE APPELLATE REMEDY.
         Despite general assertions that an adequate appellate remedy exists, Plaintiffs and

 0-1 offer no solution for the fundamental problem - without mandamus review, every

Texas mesothelioma case against Relators will be prepared, evaluated, and settled or tried

based on an incorrect ruling on the central common issue of general causation. Failure to

correct this error at this stage will force Relators to make a Hobson's choice between

proceeding with an unfair trial or avoiding it by making an excessive settlement payment.

The Asbestos MDL was created specifically to achieve efficient pretrial adjudication of

common issues.           Refusing to review Respondent's ruling at this stage will directly

undercut that overarching goal.29

VIII. CONCLUSION.
         In Borg Warner Coq. v. FZores, No. 05-0189, the Court is considering the

important issue of how the traditional causation requirements apply to asbestos cases.

This case presents the equally important issue of how the requirements for reliable

scientific proof of general causation will be applied to the most serious asbestos cases.

Relators respectfully request that, after full briefing and full review, the Court grant the

petition for writ of mandamus.




          l9 "Appeal may be adequate for a particular party, but it is no remedy at all for the irreversible waste of
judicial and public resources that would be required here if mandamus does not issue." In re Masonip Corp., 997
S.W.2d 194, 198-99 (Tex. 1999) (orig. proceeding) (noting "exceptional circumstances" when court's ruling would
burden fourteen other courts, hundreds of potential jurors and thousands of taxpayer dollars).
                                                    8
Respecdully submitted,



By:

       Raymond P. Hgnis, Jr.
         State Bar No. 09088050

600N.Pearl Street, Suire 2300
Dallas, T m 75201
214-999-5700 (Telephone)
2 14499-5746 (Facsimife)

ATTORNEYS RELATOR GARLOCK %ALING
       FOR
TEcHN0IXX;IES LLX:




By:   /& 4G-y                   0
      G. Luke Ashley
       State Bar No. 01377500
      Nicole L. Rittenhouse
       State Bar No. 24041784

1700 Pacific Avenue,Suite 3300
Ddas, Texas 75202
214-969-1700 (Telephone)
214-969-1751 (Facsimile)
       Per TRAP 6.3 and 9.5, I hereby certify that on t h s the5th  day of January, 2007,
a true and correct copy of the foregoing Reply to Responses of Real Parties in Interest was
sent via overnight mail to the following party and counsel:

RESPONDENT:

The Honorable Mark Davidson
Presiding Judge, 1 1th Judicial District Court
Harris County, Texas
301 Fannin Street,        znd
                         Floor
Houston, Texas 77002

COUNSEL FOR REAL PARTIES IN NTEREST:

Kevin D. McHargue                                Peter A. Kraus
John J. Spillane                                 Waters & Kraus
Baron & Budd, P.C.                               3219 McKinney
The Centrum, Suite 1100                          Dallas, Texas 75204
3102 Oak Lawn Avenue
Dallas, Texas 75219

COUNSEL FOR OWENS-IL.L.INOIS,INC.:

Peter Moir                                       Sandra Thourot Krider
Quilling, Selander, Cummiskey & Lownds           Edwards Bums & Krider LLP
2001 Bryan Street, Suite 1800                    1000 Louisiana, Suite 1300
Dallas, Texas 75201                              Houston, Texas 7 7002




                                           G. Luke Ashley

030772 000022 DALLAS 2125525.3