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                                        No. 05-0738
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                                      IN RE KONE, INC.

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     ON REVIEW BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
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      JUSTICE LANG delivered the opinion of the Multidistrict Litigation Panel, in which
JUSTICE PEEPLES, JUSTICE CASTILLIO, JUSTICE HANKS, and JUSTICE SMITH joined.

                       I. FACTUAL CONTEXT AND CONTENTIONS

       On September 9, 2005, Kone, Inc. filed its motion before this panel.1 Tracking the

language of Texas Rule of Judicial Administration 13.3(a)(2), Kone alleges that four cases

pending against it in four different counties2 involve common issues of fact and the transfer of

those cases for consolidated or coordinated pretrial proceedings would be for the convenience of

the parties and witnesses, and would promote the just and efficient conduct of the cases. See

TEX. R. JUD. ADMIN. 13.3(a)(2).

       In each of the four cases, the operators of a hospital sued Kone for breach of an

elevator/escalator maintenance contract.   CHRISTUS Health (CHRISTUS), is joined by a

different affiliate as a co-plaintiff in each lawsuit. Kone advises the disputes between it and

CHRISTUS began when a physician was killed in a tragic accident while he was using an

elevator maintained by Kone at one of CHRISTUS’s hospitals located in Houston, Texas.

According to Kone, after litigation was brought by the physician’s family, CHRISTUS alleged it

found defects in the maintenance program for the elevators. Hence, the four pending lawsuits

were filed.

       Kone describes five common issues of fact and law which are involved in all of the
lawsuits:

       (1)   Was there a material breach of the maintenance contract?
       (2)   Did Kone’s conduct harm the business reputation of the Plaintiff’s Hospitals?
       (3)   Did Kone’s breach proximately cause a decrease in hospital census?
       (4)   Can the Plaintiffs recover damages for loss of business reputation?
       (5)   Can the Plaintiffs recover damages for loss of census?

Premised on these “common issues,” Kone asserts that without transfer of the cases for pre-trial

coordination: (1) both its witnesses and those of CHRISTUS’s will be subjected to four sets of

depositions; and (2) “the parties” will bear the risk of inconsistent discovery rulings and

decisions on motions for summary judgment.

       CHRISTUS opposes transfer contending Kone has not met its burden under Rule 13 and

there will be no benefit in consolidating the lawsuits. It agrees the issues listed by Kone will

generally exist in each case. However, CHRISTUS tells us the facts are “local” in each case

because each hospital is a separate facility with its own elevators. Accordingly, a deposition

must be taken of each fact witness to address that person’s knowledge of the maintenance of the

different facilities. Further, expert witness depositions must inquire into the opinions about the

contractual performance at each facility and any alleged harm caused by the claimed failure of

Kone to perform its maintenance obligations.

                  II. DISCUSSION AND APPLICATION OF AUTHORITIES

       With these contentions in mind, we turn to the authorities and their application. Texas

Rule of Judicial Administration 13 provides a framework for a pretrial process that will allow

cases to proceed efficiently toward trial. See TEX. R. JUD. ADMIN. 13; In re Vanderbilt Mortgage

and Fin., Inc., 166 S.W.3d 12, 14 (Tex.M.D.L. Panel March 2, 2005). We have noted before that

“[Rule 13] does not require proof that witnesses have already been inconvenienced; it looks

ahead and focuses on whether transferring cases to a pretrial judge would serve the convenience
of parties and witnesses by preventing inconvenience in the future.” In re Silica Prod. Liab.

Litig., 166 S.W.3d 3, 5 (Tex.M.D.L. Panel Nov. 10, 2004). Additionally, we have observed:

        One virtue of transferring related cases to a single pretrial judge is that issues,
        once raised, will be decided the same way. A consistent and steady judicial hand
        at the helm should in fact promote agreements because lawyers will know where
        the court stands on recurring issues. As contested issues arise, the pretrial judge
        will make consistent rulings, which then can be reviewed by the appellate courts
        as appropriate. This, we think, serves Rule 13's goal that our system give related
        cases consistent and efficient treatment.

Id. at 6.

        The benefits of a Rule 13 transfer cannot be attained in this case because the record

before us shows no common fact issues, much less, recurring issues to be decided. Kone

demonstrated only common ultimate issues. However, CHRISTUS shed light upon the “local”

nature of these issues. The facts are substantially individual as they relate to each hospital

facility. Kone has not given us any information to the contrary. For instance, we have not been

shown how the facts discovered from witnesses on the issue of breach of contract and damages

in the Harris County case will have any relation to or bearing on the ultimate issues in the

Bowie, Cameron, and Nueces County cases. We cannot agree with Kone on the contention that

multiplicity of depositions can be avoided by transfer.

        As to Kone’s contention that without transfer, the parties will bear the risk of inconsistent

rulings on discovery issues and summary judgment, we are likewise unable to agree. Kone has

not provided us with any examples of what discovery rulings would be common to all cases or

how decisions on one summary judgment motion in one case would bear on any other. We will

not speculate as to what issues must be decided consistently or how a pretrial judge can address

the cases to promote uniformity of decisions. See In re Vanderbilt Mortgage and Fin., Inc., 166

S.W.3d at 15.
                                             III. CONCLUSION

        We conclude Kone has not met its burden under Texas Rule of Judicial Administration

13. Additionally, we conclude the transfer of these cases will not serve the convenience of the

parties and the witnesses, nor will it promote the just and efficient conduct of these cases.

Kone’s motion to transfer is denied.



                                                                      Douglas S. Lang, Justice

Opinion Delivered: October 26, 2005.

[1]
    Rule 13.3(j) provides in part, “The MDL Panel will accept as true facts stated in a motion, response, or reply
unless another party contradicts them.” TEX. R. JUD. ADMIN. 13.3(j), reprinted in TEX. GOV’T CODE ANN. tit. 2,
subtit. F app. (Vernon 2005).

[2]
     (1) CHRISTUS Health and CHRISTUS Health ARK-LA-TEX v. KONE, Inc., No. 05C1195-005 (5th Dist. Ct.,
Bowie County, Tex.); (2) CHRISTUS Health and CHRISTUS Health Gulf Coast v. Kone, Inc., No. 2005-49255
(127th Dist. Ct., Harris County., Tex.); (3) CHRISTUS Health and CHRISTUS Santa Rosa Health Care v. Kone,
Inc., No. 2005-08-3993G (404th Dist. Ct., Cameron County, Tex.); and (4) CHRISTUS Health and CHRISTUS
Spohn HealthSystem Corp. v. Kone, Inc., No. 05-03843-D (105th Dist. Ct., Nueces County, Tex.).
