By Carolina Bolado Law360, New York (July 20, 2012) —http://www.law360.com/articles/362079/texas-court-eases-reporting-deadline-for-asbestos-suits A Texas appeals court on Thursday said a state law requiring plaintiffs pursuing asbestos claims to file medical reports within 30 days places an unnecessary burden for recovering damages under the Federal Employers’ Liability Act.
The Fourteenth Court of Appeals affirmed a lower court’s refusal to dismiss a suit against Kansas City Southern Railway Co<http://www.law360.com/companies/kansas-city-southern>., which claimed that because plaintiff Ronald Oney had not complied with the medical reporting requirements of Chapter 90 of the Texas Civil Practice and Remedies Code, the asbestos- and silica-related claims against the company should be tossed.
Nothing in the state law authorizes a trial court to extend the deadline for a claimant who has legitimate grounds for noncompliance, according to the appeals court.
“We conclude 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,” the court said.
The court added that nothing in its ruling relieves Oney from having to present reliable, admissible evidence to support his claim in future proceedings.
Oney sued on behalf of Daniel Oney, who worked for KCSR from 1971 until 1994, according to the opinion. While on the job, he was exposed to carcinogens like asbestos, silica and diesel exhaust, according to the opinion.
Daniel Oney was diagnosed with lung cancer in April 2010 and died one month later, according to the opinion. His estate sued under FELA, and the suit was combined with other asbestos-related suits in multidistrict litigation.
KCSR’s answer to the suit filed by Oney’s estate triggered the 30-day deadline for the claimant to supply medical reports under Chapter 90, according to the opinion. When no reports were filed by the deadline, KCSR moved to dismiss the asbestos and silica claims under Chapter 90, according to the opinion.
Oney replied that the Chapter 90 reporting requirements and dismissal provision are preempted by FELA, according to the opinion. The plaintiff also said that it needed time for experts to review pathology evidence before providing reports.
In August, the MDL court signed an order compelling the hospital to provide the requested pathology evidence and denied KCSR’s motion to dismiss, saying Oney was not required to comply with the Chapter 90 reporting requirements.
Counsel information for the parties was unavailable.
The case is The Kansas City Southern Railway Co. v. Oney, case number 14-11-00815-CV, in the Fourteenth Court of Appeals for the State of Texas.
–Editing by Kat Laskowski.
