Dissenting and Concurring Opinions to Denial of Rehearing En Banc filed
September 20, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00815-CV


       THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

                                            V.

  RONALD K. ONEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
               ESTATE OF DANIEL D. ONEY, Appellee


                        On Appeal from the 11th District Court
                                Harris County, Texas
                          Trial Court Cause No. 2011-32031


     DISSENTING OPINION TO DENIAL OF
           REHEARING EN BANC
      I respectfully dissent to the denial of rehearing en banc.

      I agree with the panel majority’s determinations that (1) this court has appellate
jurisdiction to consider the interlocutory appeal of Kansas City Southern Railway
Company (KCSR); and (2) this appeal does not pertain to claims based on the decedent’s
asserted exposure to diesel exhaust.
       I disagree with the panel majority’s affirmance of the MDL court’s order denying
dismissal and determining that “Plaintiffs are not required to file expert reports
complying with Tex. Civ. Prac. & Rem. Code [Ch.] 90, et seq.” because this case “arises
under the Federal Employer’s Liability Act, 45 U.S.C. § 51, et seq.” I would hold that
the preemption analysis of Chapter 90’s expert report requirements applicable to a Jones
Act claim for injuries attributed to silica — announced in In re GlobalSantaFe Corp., 275
S.W.3d 477 (Tex. 2008) (orig. proceeding) — applies with equal force to Chapter 90’s
expert report requirements governing a Federal Employer’s Liability Act (“FELA”) claim
for injuries attributed to silica and asbestos exposure. Under this analysis, Chapter 90’s
report requirement is not preempted by FELA.

       Congress indisputably has the power to preempt state law. U.S. Const. art. VI, cl.
2; Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992). Congress may do so
expressly or impliedly. Cipollone, 505 U.S. at 516. The intent to preempt state law may
be explicitly stated in statutory language or implicit in a statute’s structure and purpose.
Id. Implied preemption can be based on field preemption or conflict preemption. Id.
Field preemption exists when Congress indicates in some manner an intent to occupy a
given field to the exclusion of state law. Id. Conflict preemption exists when a state law
actually conflicts with federal law or stands as an obstacle to accomplishment of
Congress’s purposes and objectives in enacting a federal law. See, e.g., Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 95 (1983).         Thus, there are three possible routes to
preemption.

       Close reading is required to identify the exact route at issue in this case because
appellee Ronald Oney does not clearly delineate the basis for his preemption assertion.
Nor does the MDL court’s order.

       In “Plaintiffs’ Motion for Continuance to Respond, Objections, and Response to
Defendant Kansas City Southern Railway Company’s Motion for Summary Judgment
and Motion to Dismiss,” Oney cited 45 U.S.C. § 55 and asserted broadly that “statutory
requirements are void and preempted by the Federal Employers’ Liability Act.” Oney

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does so again on appeal. Section 55 states: “Any contract, rule, regulation, or device
whatsoever, the purpose or intent of which shall be to enable any common carrier to
exempt itself from any liability created by this chapter, shall to that extent be void.” 45
U.S.C.A. § 55 (West 2007). This provision is inapposite because Chapter 90’s statutory
expert report requirement is not a “contract, rule, regulation, or device” by which KCSR
seeks to exempt itself from liability. See Nordgren v. Burlington N. R.R. Co., 101 F.3d
1246, 1251 (8th Cir. 1996) (Phrase “[a]ny contract, rule, regulation, or device
whatsoever” refers to “the legal instruments railroads used prior to the enactment of
FELA to exempt themselves from liability.”); see also Downer v. CSX Transp., Inc., 507
S.E.2d 612, 616 (Va. 1998) (Section 55 “is limited to devices created by railroads to
exempt themselves from liability.”). If Oney’s citation of 45 U.S.C. § 55 is an attempt to
assert that Chapter 90 is expressly preempted by statute, the attempt fails.

       On appeal, Oney also makes passing references to field preemption in the course
of asserting that “KCSR is seeking to ‘exempt itself from liability’ under the FELA,
under the auspices of sections 90.003, 90.004, and 90.007 of the Texas Civil Practices
and Remedies Code.”        The MDL pleading contains no explicit reference to field
preemption. Insofar as Oney attempts on appeal to argue field preemption in connection
with Chapter 90, this attempt also fails. The disagreement in this case does not focus on
whether a federal statutory scheme displaces state law remedies or liability standards.
See Cipollone, 505 U.S. at 516 (State law is impliedly preempted when federal law so
thoroughly occupies a legislative field “as to make reasonable the inference that Congress
left no room for the States to supplement it.”).

       This case involves a different inquiry focusing on the interplay of federal
substantive law and state procedural requirements arising from a FELA case pursued in
state court. State and federal courts have concurrent jurisdiction over FELA cases. 45
U.S.C.A. § 56 (West 2008). “The Federal Act prescribes the substantive rights of the
parties in F.E.L.A. cases, but when filed in our State courts, they are generally to be tried
in accordance with our own Rules of Civil Procedure.” Mo. Pac. Ry. Co. v. Cross, 501

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S.W.2d 868, 870 (Tex. 1973); cf. In re GlobalSantaFe Corp., 275 S.W.3d at 484
(Congress has not preempted the entire field of a maritime law; “[w]here Congress has
acted in the admiralty area, ‘state regulation is permissible, absent a clear conflict with
the federal law.’” (quoting Askew v. Am. Waterways Operators, 411 U.S. 325, 341
(1973))). I agree with the majority that implied conflict preemption is the battleground
here.

        Oney’s MDL court pleading and his appellate brief cite Felder v. Casey, 487 U.S.
131 (1988), which addressed implied conflict preemption of a state law notice-of-suit
provision in connection with a claim brought under 42 U.S.C. § 1983. On appeal, Oney
erroneously characterizes Chapter 90’s expert report requirement as a notice-of-suit
provision. Felder is inapposite because Chapter 90’s expert report requirement is not a
notice-of-suit provision and Chapter 90 contains no notice-of-suit requirement. In re
GlobalSantaFe Corp. is the most pertinent authority because it addresses implied conflict
preemption of parallel Chapter 90 expert report requirements for silica cases.

        The majority approaches implied conflict preemption by minimizing the
significant differences between Chapter 90’s expert report requirement and the notice-of-
suit mechanism analyzed in Felder.         A sounder approach is to acknowledge the
significant similarities between this Chapter 90 case and In re GlobalSantaFe Corp.’s
analysis of Chapter 90 preemption in the context of a Jones Act suit for injuries attributed
to silica.

        A unanimous Texas Supreme Court concluded that certain of section 90.004’s
expert report requirements for silica claimants were not subject to implied conflict
preemption under the Jones Act. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89.

        According to the supreme court, “The requirements embedded in Chapter 90 to
assure reliable expert confirmation of silica-related diseases are not preempted by the
Jones Act.” Id. at 486. “Nothing in the Jones Act exempts a seaman claiming a silica-
related disease from establishing, through reliable medical proof, that he in fact suffers
from such a disease.” Id. “To the extent that Jones Act jurisprudence recognizes a

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special standard for proving causation, federal cases have held that this causation
standard does not exempt Jones Act cases from the general rules for admission of expert
testimony.” Id. at 487 (citing Willis v. Amerada Hess Corp., 379 F.3d 32, 47 (2d Cir.
2004)). “We see no basis for holding that Texas law generally governing the admission
of expert testimony, which draws so heavily from federal law, is preempted by the Jones
Act.” Id. “Therefore, the provisions of Chapter 90 directed at assuring reliable expert
confirmation of the existence of one of the medically recognized forms of silica-related
illness are not preempted.” Id. “In short, the principles of Jones Act preemption are
flexible enough to accommodate general Texas rules governing the admission of expert
testimony, and also accommodate the Chapter 90 rules specific to expert testimony in
cases involving silica-related injuries . . . .” Id. at 489.1

        In my view, the supreme court’s reasoning in In re GlobalSantaFe Corp. is
equally applicable to Chapter 90’s expert report requirements in connection with claims
under FELA for injuries attributed to silica and asbestos exposure. This court already has
covered much of the same ground as In re GlobalSantaFe Corp. by analyzing the
intersection between expert testimony standards and FELA’s lower burden of proof.
“Despite the lower burden under FELA, a plaintiff still bears the burden of presenting
evidence from which a jury could conclude the existence of a probable or likely causal
relationship as opposed to a merely possible one.” Abraham v. Union Pac. R.R. Co., 233
S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), cert. denied, 128 S.
Ct. 1900 (2008). “The lower burden under FELA does not mean that, in FELA cases,
courts must permit expert testimony that would not be admissible in other contexts.” Id.
at 19; see also Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d 747, 750-51 (Tex. App.—San

        1
           The supreme court concluded that a provision addressing a minimum physical impairment
requirement is preempted. In re GlobalSantaFe Corp., 275 S.W.3d at 489 (citing Tex. Civ. Prac. & Rem.
Code Ann. § 90.004(b)(2)). KCSR concedes that a parallel minimum physical impairment requirement in
section 90.003(a)(2)(D) addressing asbestos claims likewise is preempted under FELA. The MDL court
is the appropriate court to determine in the first instance on a requirement-by-requirement basis whether
any other provision of sections 90.003 or 90.004 conflicts with FELA. Whatever the result of such an
analysis, it is erroneous to conclude that the report mechanism is preempted in its entirety in connection
with FELA claims for injuries attributed to silica and asbestos exposure.

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Antonio 2002, no pet.). Oney and the panel majority do not provide a convincing
rationale for analyzing preemption of Chapter 90’s report requirements in a FELA case
differently from preemption of Chapter 90’s report requirements in a Jones Act case.

       Oney offers two justifications for a different Chapter 90 preemption analysis here.
Neither justification withstands scrutiny.

       First, Oney stresses that “In re GlobalSantaFe involved silica-related claims, not
asbestos-related claims.” Oney also emphasizes the supreme court’s statement that “we
have not examined the provisions of Chapter 90 relating to asbestos-related claims, and
express no opinion on whether any such provisions are preempted.” In re GlobalSantaFe
Corp., 275 S.W.3d at 489 n.78. This distinction is accurate but hardly dispositive. As
the supreme court has noted, Chapter 90’s expert report requirements for silica cases in
section 90.004 and asbestos cases in section 90.003 were born of the Legislature’s
identification of “an asbestos litigation crisis.” Id. at 482. The Legislature “warned of a
similar crisis looming over silica-related actions, evidenced by a recent spike in such
claims, and raising some of the same concerns applicable to the asbestos crisis.” Id.
Chapter 90’s parallel expert report requirements for silica cases and asbestos cases were
part of the legislative response. Id. “[B]y requiring detailed expert reports early in the
litigation process, Chapter 90 endeavors to assure that claims are not brought and pursued
unless they are supported by reliable expert evaluations of the claimant.” Id. (citing Tex.
Civ. Prac. & Rem. Code §§ 90.003-90.004). These intertwined circumstances make it
difficult to justify divergent approaches to Chapter 90 preemption for silica and asbestos
claims. In addition, Oney has pled that he was exposed to both asbestos and silica and
that as a result of these substances, he was diagnosed with lung cancer.    Under Oney’s
reasoning he should at least provide a report as to silica exposure.

       Second, Oney stresses that In re GlobalSantaFe Corp. analyzed preemption in
connection with the Jones Act rather than FELA. This argument is not persuasive.
Concurrent jurisdiction exists in connection with both statutory schemes. See id. at 480
n.2 (“Under the ‘saving to suitors’ clause of 28 U.S.C. § 1333(1), a Jones Act claim can

                                              6
be brought in state court.”) (citations omitted); see also 45 U.S.C. § 56. This concurrent
jurisdiction gives rise to similar tensions between federal substantive law and state
procedure in both types of cases. More importantly, the Jones Act incorporates FELA by
reference.     See 46 U.S.C.A. § 30104 (West 2008).        In light of this incorporation,
“precedent under the Jones Act is deemed instructive in FELA cases, and vice versa.”
Butynski v. Springfield Terminal Ry. Co., 592 F.3d 272, 276 n.2 (1st Cir. 2010); see also
Abraham, 233 S.W.3d at 19 n.2. Therefore, Oney’s second proffered distinction is not
dispositive.

       The majority opinion takes a different tack by focusing on section 90.007’s
dismissal mechanism, which was not addressed in In re GlobalSantaFe Corp. This
distinction likewise fails to demonstrate that a divergent preemption analysis is warranted
in this case. As a threshold matter, it is worth noting that the majority’s concerns
regarding the effect of dismissal rest in large part on suppositions about the prospects for
a limitations bar in this and other cases if dismissal occurs — suppositions that run
counter to Oney’s position that KCSR cannot assert a viable limitations defense in this
case. In any event, the supreme court’s preemption analysis in In re GlobalSantaFe
Corp. did not focus on the potential consequences of a failure to comply with expert
report requirements. Instead, that analysis focused on the compatibility between federal
standards requiring reliable expert testimony and similar Texas standards reflected in
Chapter 90. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89. That should be the
focus in this case, too.

       The majority’s reliance on the possibility of dismissal as the distinguishing factor
does not withstand scrutiny even if credence is given to suppositions about the potential
for a limitations bar after dismissal. Also questionable is the majority’s suggestion that
Chapter 90 preemption analysis turns on whether a claimant can “conduct discovery to
obtain the information needed to satisfy the report requirements.” Such a suggestion is
— at the very least — in tension with the Legislature’s concern regarding “enormous
litigation expenses” and its desire for “detailed expert reports early in the litigation

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process.” Id. at 482. The majority’s distinctions, even if granted the benefit of every
doubt, ultimately collide with the following longstanding principle: “A state statute
cannot be considered ‘inconsistent’ with federal law merely because the statute causes the
plaintiff to lose the litigation.” Robertson v. Wegmann, 436 U.S. 584, 593 (1978).

          The panel majority’s holding is incompatible with In re GlobalSantaFe Corp. and
Abraham; therefore, rehearing en banc is warranted. I respectfully dissent from the
denial of rehearing en banc.




                                                          /s/       William J. Boyce
                                                                    Justice




En Banc Court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown,
Boyce, Christopher, Jamison, McCally, and Busby, and Senior Justice Mirabal. 2 (J.
Boyce dissenting to denial of rehearing en banc, joined by Justices Brown, Christopher,
Jamison, and Busby). (J. Frost concurring on denial of rehearing en banc).




2
    Senior Justice Margaret Garner Mirabal sitting by assignment.

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