Subcommittee on Asbestos:
The House JCJ Subcommittee on Asbestos met July 11, 2012 to take invited testimony on charges four and six, respectively:
Charge 4: Study the degree of transparency in asbestos bankruptcy trusts and how it affects litigation of asbestos exposure claims in Texas courts.
Charge 6: Study whether the asbestos and silica multidistrict litigation courts should be allowed to dismiss, without prejudice, claims on the courts’ inactive dockets for want of prosecution under certain circumstances.
Representative Tryon Lewis (R-Odessa), chair of the subcommittee, presided over the hearing. Subcommittee members in attendance were Chairman Jim Jackson (R-Carrollton) and Representatives Sarah Davis (R-West University Place), Connie Scott (R-Corpus Christi), and Richard Raymond (D-Laredo). Representative Doug Miller (R-New Braunfels), who is not on the committee, but who has a strong interest in the subject, was also present.
The subcommittee invited two witnesses to testify: Judge Mark Davidson, who presides over the asbestos MDL and David Slayton, the new executive director of the Office of Court Administration (OCA).
Charge 4 Discussion
Judge Davidson indicated that he has no interaction with the asbestos bankruptcy trusts or trustees. He discussed the issue of admissibility of submission to the trust as evidence of exposure by a responsible third party. He further cited the 2009 Borg Warner case as standing for the proposition that filing a claim with the bankruptcy trust does not establish prima facie proof of causation. In the past, Davidson has not ordered dollar for dollar credit on a jury verdict if the plaintiff might file a claim with the trust or receive money from the trust.
Charge 6 Discussion
Judge Davidson began with an overview of the process used to transfer a case from its original jurisdiction to the MDL and the procedure used in his court to conduct pretrial matters. Next, Davidson discussed the differences between the active and inactive docket. He described the 35,000-85,000 cases on the inactive docket as being “frozen in a deep freeze.” These cases, filed before September 2005 (effective date of SB 15), do not meet the medical criteria necessary to move the cases forward so they are sitting on the inactive docket. Davidson said no discovery is permitted in these cases. The parties do have the ability to “non-suit” if desired. On a number of occasions, Davidson stated emphatically that the Legislature mandated the inactive docket and it is the only one who can change how it functions. Davidson sent letters to attorneys with cases where no pleadings or motions have been filed since 2008, asking whether their cases should be retained on the inactive docket or dismissed. The attorneys were requested to respond by July 15th (4 days after the hearing). When asked about how many cases moved from the inactive docket to the active docket, Davidson recalled an average of 10-15 cases per year being activated when a plaintiff was diagnosed with mesothelioma or other asbestos-related disease.
With respect to the active docket, Davidson said there are 700-1300 active plaintiffs (not cases). Of these post- September 2005 claims, approximately 1/3 of the cases filed are dismissed for want of prosecution (DWOP). Davidson admitted he was not sure of the constitutionality of DWOPing pre-2005 cases and referred to the case on point pending before the 1st Court of Appeals in Houston.
David Slayton presented statistical data that OCA collected, primarily from Harris County. The OCA full testimony is linked below, but here are a few highlights:
- New filings peaked in the summer of 2005 (just before effective date of SB 15)
- An average of 81cases are disposed of each year
- 98% of the cases reach a final disposition in less than 12 months
- Between 2008-2011, 11 cases (excluding Harris County) were tried to a verdict
Full Committee Hearing:
Upon adjournment of the subcommittee, the full Judiciary & Civil Jurisprudence Committee met for its final hearing to take testimony from the heads of some of the state agencies under the committee’s jurisdiction. These included the State Office of Administrative Hearings (SOAH), the State Commission on Judicial Conduct, the Office of the Attorney General, Civil Division, the Guardianship Certification Board, the Office of Court Administration and the Texas Judicial Council. The committee also discussed the issue of mandatory e-filing. Chairman Jackson indicated that having finished all hearings for the interim, the committee would attempt to have a draft report completed by Labor Day.