David Yates Mar. 10, 2015, 12:25pm


Lawyers for Provost Umphrey and other asbestos firms might see their case loads lightened very soon, as justices shut down a direct appeal to the Texas Supreme Court on Friday, clearing the way for potentially thousands of asbestos cases to be tossed out.

As previously reported, the Texas State Silica Products Liability Litigation, a collection of attorneys representing around 1,000 individual plaintiffs, filed a direct appeal with the high court on Sept. 19, asserting parts of Chapter 90 of the Texas Civil Code are unconstitutional.

Specifically, Section 90.004 of Chapter 90 requires each plaintiff asserting a silica-related injury to first serve on each defendant a compliant report showing a physical examination of the plaintiff and a detailed occupational, exposure, medical, and smoking history.

Eight years after Chapter 90, the state legislature passed a tort reform measure in 2013, requiring asbestos plaintiffs with pending claims in multidistrict litigation pretrial court as of Sept. 1, 2005, to file an expert medical report no later than Sept. 1, 2014, or face dismissal.

A month prior to the direct appeal, in August, District Judge Joseph Halbach, who presides over the silica MDL in Houston, held the plaintiffs do not have standing to make a constitutional challenge to Chapter 90 and that their claims are not ripe.

On Appeal, the plaintiffs claimed the issue of ripeness is intertwined with the constitutional challenge.

“The Appellants face dismissal of their claims if they do not comply with a vague and unconstitutional statute,” states a court brief. “Appellants are caught in a classic Catch 22 – comply with a statute which is unconstitutional or have their case dismissed on the ground of ripeness because Appellants failed to comply with a vague and unconstitutional statute.”

Conversely, the 3M Company, a named defendant in the suits in question, argued in its brief that because “the MDL Court’s denial of the request for injunctive relief was based on lack of subject matter jurisdiction, and not on the constitutionality or unconstitutionality of a statute, this appeal should be dismissed for lack of jurisdiction.”

The Texas Supreme Court apparently agreed, declining to review asbestos law and dismissing the direct appeal for want of jurisdiction, court records show.

Locally, the plaintiffs’ attorneys involved include Guy Fisher of Provost Umphrey and Lance Bradley of McPherson Hughes Bradley Wimberley Steele & Chatelain in Port Arthur.

The other attorneys are Mike Martin of Maloney Martin LLP in Houston, F. Scott Baldwin Jr. of Baldwin & Baldwin LLP in Marshall, D. Allen Hossley of Hossley Embry LLP in Tyler, Cory Itkin of Arnold & Itkin in Houston, James “Buddy” Bell of Corpus Christi, Geoff Henley of Henley & Henley PC in Dallas, Hector Gonzalez of San Antonio, Michael Lowenberg of Gardere Wynne Sewell LLP in Dallas, Russell Cook of The Cook Law Firm in Austin, Scott Hooper of Houston, Justin Shrader of Schrader & Associates LLP in Houston, Steven Kherkher of Williams Kherkher in Houston and Mark Goranson of Goranson King PLLC in Houston.

Defendant companies named in the lawsuits include 3M, Baker Hughes, Amcol International, American Porcelain Enamel, Pulmosan Safety, Air Liquide, American Optical, Aearo Co., Reynolds Metals, A C and S Inc., Able Supply, Lone Star Industries, US Silica, Alamo Cement Co., Oglebay Norton, Clemtex Ltd., Moldex Metric, ACF Industries and Eastern Safety.

Texas Supreme Court case No. 14-0757

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Williams Kherkher
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