                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0698n.06

                                                   No. 12-1253                           FILED
                                                                                      Jul 29, 2013
                               UNITED STATES COURT OF APPEALS                  DEBORAH S. HUNT, Clerk
                                    FOR THE SIXTH CIRCUIT


In re: DOW CORNING CORPORATION,                            )
                                                           )
         Debtor.                                           )
                                                           )     ON APPEAL FROM THE UNITED
------------------------------------------------           )     STATES DISTRICT COURT FOR
                                                           )     THE EASTERN DISTRICT OF
                                                           )     MICHIGAN
                                                           )
DOW CORNING CORPORATION,                                   )          OPINION
                                                           )
         Appellant,                                        )
                                                           )
v.                                                         )
                                                           )
SHEILA CAFFREY; CHRISTINA GIBSON;                          )
HILDA McANDREW; REBECCA YOUNG,                             )
                                                           )
         Appellees.                                        )


BEFORE: NORRIS, MOORE, and DONALD, Circuit Judges.

         ALAN E. NORRIS, Circuit Judge. Regrettably, there are times when otherwise well-

considered procedural rules result in hardship. This is one such time. Claimants on appeal are four

women who allege that they were injured by silicone breast implants manufactured by Dow Corning

Corporation (“Dow”). Like thousands of other women, they filed suit against Dow in the early

1990s. One of the favored venues for plaintiffs’ attorneys involved in this mass tort litigation was

Harris County (Houston), Texas. The claimants were all slated for trial in early 1995.



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       Claimants had elected to “opt out” of a global settlement approved by the United States

District Court for the Northern District of Alabama, which had been assigned a multi-district action

designed to manage the vast array of suits filed against Dow. In re Silicone Gel Breast Implant

Products Liability Litigation, Case No. MDL 926. Part of the global settlement included a protocol,

similar to a grid, which helped to determine with some consistency what an injured party could

expect by way of compensation depending on her situation.

       For its part, Dow and its lawyers preferred to settle cases rather than risk large verdicts,

particularly with those 57 opt-out plaintiffs who filed suit in Harris County. Dow retained Kenneth

Feinberg & Associates with an eye to negotiating a “mini-global” settlement with all of the opt-out

plaintiffs. This proposed settlement was called the Marshall Plan and included a protocol like the

one used in the MDL case to fix a dollar amount on claims. The Plan went through a number of

drafts but it was ultimately abandoned when Dow filed for Chapter 11 bankruptcy protection on May

15, 1995. However, the Plan remains important to this appeal. It contemplated a procedure by which

a claimant would agree to an alternative dispute resolution process (“ADR”). The mediator would

use the protocol and award damages which would be binding on Dow but not on the claimant.

       The claimants involved in this appeal all submitted to mediation and were awarded

substantial damages. However, these awards were never paid by Dow. Rather, approximately three

months later, Dow sought bankruptcy protection. Claimants eventually filed proofs of claim in the

bankruptcy court to which Dow objected. The district court removed the claims from the

bankruptcy court and held a bench trial in 2004. In 2012, it issued its opinion and allowed the


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claims. The underlying district court opinion includes detailed factual findings which we review for

clear error; its legal conclusions, however, are subject to de novo review. Spurlock v. Fox, 716 F.3d

383, 393 (6th Cir. 2013).

       In this appeal, the claimants contend that they entered into the ADR process expecting Dow

to be bound by the mediator’s decision.         They point out that Dow never objected to that

characterization before declaring bankruptcy. Dow counters that these mediation sessions were in

contemplation of the Marshall Plan. The company points to evidence that the awards would be

incorporated into the Plan. In fact, drafts of the Plan continued to include these claimants despite

the fact that the awards had been determined. Asking us to overturn the district court’s order, the

company denies that the mediator’s awards are enforceable.

       Claimants face a major obstacle, which is the crux of this appeal: Texas Rule of Civil

Procedure 11, which reads in full as follows:

       Unless otherwise provided in these rules, no agreement between attorneys or parties
       touching any suit pending will be enforced unless it be in writing, signed and filed
       with the papers as part of the record, or unless it be made in open court and entered
       of record.

Tex. R. Civ. P. 11. The policy is longstanding, as this 1857 case from the Texas Supreme Court

makes clear:

               The alleged agreement not being in writing, and the counsel differing as to
       the existence of such agreement, the court very properly refused to grant a new trial
       on that ground. Agreements of counsel, respecting the disposition of causes, which
       are merely verbal, are very liable to be misconstrued or forgotten, and to beget
       misunderstandings and controversies; and hence there is great propriety in the rule
       which requires that all agreements of counsel respecting their causes shall be in


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       writing, and if not, the court will not enforce them. They will then speak for
       themselves, and the court can judge of their import, and proceed to act upon them
       with safety. The rule is a salutary one, and ought to be adhered to whenever counsel
       disagree as to what has transpired between them.

Birdwell v. Cox, 18 Tex. 535, 537 (1857). This strong preference for written judgments has been

reiterated by the Texas Supreme Court. Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex. 1984) (“The

clear language of the rule indicates, and this court holds, that compliance with Rule 11 is a general

prerequisite for any judgment enforcing an agreement touching a pending suit.”); Knapp Med. Ctr.

v. De La Garza, 238 S.W.3d 767, 768-69 (Tex. 2007). Dow vigorously argues that Rule 11

precludes claimants’ awards from being construed as judgments enforceable in the courts of Texas.

       However, cases exist in which settlements have been enforced without technical compliance

with Rule 11. For instance, the Texas Supreme Court has held that a series of letters among counsel

satisfied the rule even though one party later withdrew its consent:

       Although a court cannot render a valid agreed judgment absent consent at the time
       it is rendered, this does not preclude the court, after proper notice and hearing, from
       enforcing a settlement agreement complying with Rule 11 even though one side no
       longer consents to the settlement. The judgment in the latter case is not an agreed
       judgment, but rather is a judgment enforcing a binding contract.

Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). And, in the case most relied upon by the

district court, an intermediate Texas appellate court enforced an agreement to arbitrate even though

one party sought to withdraw consent:

               We agree that the benefits of Rule 11 are substantial, and that in general the
       rule should be followed. However, we hold that this is one of the cases where the
       equities require that we do not resort to “slavish adherence” and hypertechnical
       construction. First, the purpose of the rule and the rationale behind it speak about


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       misconstruction of oral agreements. In this case we have a series of writings which,
       while not technically in compliance with Rule 11, clearly show an agreement to
       arbitrate. Further, until the arbitrators made the award, there was never any dispute
       over the fact that there was such an agreement or what the terms of that agreement
       were. Thus, we do not have a purely oral agreement in this case. Second, it would be
       highly inequitable to allow the appellants who proposed the arbitration in the first
       place to escape its impact through a technicality when it is clear that appellants had
       no complaint about the arbitration proceeding until an award which they considered
       unfavorable was rendered. To allow this would be to elevate form over substance.
       Third, statements made by the trial court during the hearings reveal that it believed
       such an agreement existed between the parties, and Mrs. Massey’s own testimony
       discloses the fact that there was an agreement. Though there was no technical
       compliance with Rule 11, we hold the equities require this court to uphold the
       agreement to arbitrate.

Massey v. Galvan, 822 S.W.2d 309, 318 (Tex. App. 1992).

       The district court followed the equitable principles of Massey and held that enough evidence

existed to support enforcement of the mediation awards. Before doing so, however, it recognized

that claimants had not shown that any “settlements were placed on the record in open court,” nor had

they “produced any precise written agreement with [Dow] evidencing a written settlement agreement

as to the four Claimants at issue.” Dist. Ct. Op., Doc. 626 at 46. In other words, the requirements

of Rule 11 had not been followed.

       That said, the court explained why, in its view, the evidence produced at trial called for the

kind of equitable exception to Rule 11 outlined in Massey. Of critical importance in reaching this

conclusion was the court’s finding that Michael Gallagher, attorney for the claimants, and Kenneth

Feinberg, attorney for Dow, had a “working agreement” that the Marshall Plan approach would be

used in the mediation of each of the four claimants’ cases and, critically, that this agreement was not



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contingent on the Marshall Plan being adopted. Dist. Ct. Op., Doc. 626 at 46-47. The court noted

that other cases mediated in the same manner “were placed on the record in open court and [Dow]

did not object to those awards.” Id. at 46.

       We are mindful that factual findings of the district court are subject to clear error review.

The record is voluminous and often contradictory. One thing is clear to us, however: the record

contains neither written documentation nor unequivocal testimony to support a finding that Dow ever

agreed to be bound by the mediation awards at issue regardless of the adoption of the Marshall Plan.

The contradictory nature of much of the testimony and evidence highlights why Texas courts strictly

enforce the hurdles contained in Rule 11except in rare instances: it promotes finality regarding the

binding nature of agreements and, in the process, avoids the kind of costly litigation that this case

represents.

       The fact of the matter is, as the district court recognized, that counsel for claimants did not

take the ministerial steps necessary to render claimants’ agreements enforceable under the language

of Rule 11. That is regrettable. We have no doubt that claimants suffered injury and that Dow

desired to reach a settlement agreement with them. This process was short-circuited by the parties’

inability to reach a “mini-global” settlement with respect to the opt-out claimants before Dow’s

bankruptcy filing. Though we are sympathetic, we are obliged to look to Texas law in this case, and

that law precludes enforcement of these agreements, which are different from that at issue in Massey

in one critical respect: in that case written documentation made it clear that both parties agreed to

binding arbitration. Massey, 822 S.W.2d at 313-14. Moreover, the parties acknowledged in open


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court that a binding agreement existed. Id. The same cannot be said in this case. Rather, the record

supports that a finding that negotiations of the agreements were never finalized. Under those

circumstances, the Massey exception to Rule 11 simply does not apply.

       The judgment is reversed and remanded for further proceedings consistent with this

opinion.




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