Opinion issued February 25, 2016




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-15-00251-CV
                             ———————————
    IN RE: TEXAS STATE SILICA PRODUCTS LIABILITY LITIGATION



                    On Appeal from the 333rd District Court
                             Harris County, Texas
                       Trial Court Case No. 2004-70000


                           MEMORANDUM OPINION

      This is an appeal of a denial of a temporary injunction in a pretrial

multidistrict litigation for silica products-liability claims.1 Plaintiffs are over 100


1
      Ordinarily, Texas appellate courts have jurisdiction only over final judgments.
      Rusk State Hosp. v. Black, 392 S.W.3d 88, 92 (Tex. 2012). An exception exists
      when a statute authorizes an interlocutory appeal. CMH Homes v. Perez, 340
      S.W.3d 444, 447 (Tex. 2011). The Civil Practice and Remedies Code provides for
      an interlocutory appeal from an order that “grants or refuses a temporary
      injunction or grants or overrules a motion to dissolve a temporary injunction as
sandblasters who were exposed to silica in their workplaces. The sandblasters

sought to enjoin enforcement of Sections 90.004 and 90.010 of the Civil Practice

and Remedies Code that specify what must be included in their medical reports to

allow them to exit the multidistrict litigation court and return to their respective

trial courts for a trial on the merits. The sandblasters argue that these provisions

violate due process because they are unconstitutionally vague and oppressive and

violate the open courts provision of the constitution by applying retroactively to

their already-pending claims. Defendants are manufacturers, producers, designers,

distributors, and sellers of silica-related products. They moved to dismiss the

injunction request, contending that the sandblasters lacked standing and their

challenge was not yet ripe for judicial determination.

      The MDL court granted Defendants’ motion and dismissed the sandblasters’

constitutional challenge without specifying the basis for its ruling. The sandblasters

appeal the denial of their temporary injunction request.

      Because a temporary injunction is not an available vehicle to obtain the

relief sought by the sandblasters, we affirm the trial court’s order denying their

temporary injunction motion.




      provided by Chapter 65.” TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4)
      (West Supp. 2015). Here, the MDL court refused a temporary injunction, and we,
      therefore, have appellate jurisdiction. See id.

                                          2
                                      Background

       The sandblasters are plaintiffs in a statewide MDL for silica products

liability litigation. A Rule 13 pretrial MDL was created in 2004 when the Judicial

Panel on Multidistrict Litigation determined that the then-pending 71 suits filed by

453 plaintiffs against 158 defendants “involve one or more common questions of

fact” and “transfer would be for the convenience of the parties and witnesses and

would promote the just and efficient conduct of the cases.” In re Silica Prods.

Liab. Litig., 166 S.W.3d 3 (Tex. M.D.L. Panel 2004).

       In 2005, the Legislature enacted Chapter 90 of the Civil Practice and

Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. §§ 90.001–.012 (West 2011

and Supp. 2015); Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex.

Gen. Laws 169. The new legislation created a statutory MDL for silica- and

asbestos-related claims. Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005

Tex. Gen. Laws 169. Under the terms of the statute, individual cases are held in the

MDL until the plaintiffs submit medical reports that meet all listed, statutory

requirements. TEX. CIV. PRAC. & REM. CODE ANN. § 90.003 (requirements for

asbestos-related claims); § 90.004 (requirements for silica-related claims). After a

qualifying medical report is submitted and approved by the MDL court, a case may

be returned to a district court for trial. Id. § 90.010.




                                             3
      All of the sandblasters had suits pending in the Rule 13 MDL when Chapter

90 was enacted. Their claims were then transferred to the statutory MDL where

they have remained for 10 years.

The purpose behind Chapter 90

      The Legislature included official comments when it enacted Chapter 90. Act

of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, cmts. a–n, 2005 Tex. Gen. Laws

169. According to the official comments, individuals who have been exposed to

silica may have “markings on [their] lungs that are possibly consistent with silica

exposure, but the individual has no functional or physical impairment from any

silica-related disease.” Id., cmt. m (regarding silica exposure); see id., cmt. f

(similar provision related to asbestos). The discovery of these markers can trigger a

statute of limitations problem for the individuals. Id. This led to a “crush” of suits

being filed in the courts on behalf of workers who show some signs of exposure

but still have “no current impairment and may never have impairment.” Id., cmts.

g, h, and m.

      The large number of filings was described as a “situation [that] has reached

critical dimensions and is getting worse.” Id., cmt. d (citing Judicial Conference

Ad Hoc Committee on Asbestos Litig. (1991)). To “prevent[] scarce judicial and

litigant resources from being misdirected by the claims of individuals who have

been exposed to asbestos or silica but have no functional or physical impairment


                                          4
from asbestos-related or silica-related disease,” the Legislature enacted Chapter 90,

aimed at “protect[ing] the right of people with impairing asbestos-related and

silica-related injuries to pursue their claims for compensation in a fair and efficient

manner through the Texas court system,” but creating a bifurcated system that

allows those with confirmed impairment to proceed to trial while those without a

confirmed impairment to remain in the MDL, without any statute of limitations

ramifications, until an impairment is confirmed. Id., cmt. n; see TEX. CIV. PRAC. &

REM. CODE ANN. § 90.010(d) (providing that cases remain in MDL without

dismissal until qualifying impairment is established); § 90.010(l) (providing that

pre-2005 silica suits that are dismissed for failure to file compliant medical reports

after September 1, 2014, are dismissed without prejudice); § 90.010(n) (further

providing that such dismissed claims may be refiled after dismissal and, if refiled,

“treated for purposes of determining the applicable law as if that claimant’s action

had never been dismissed but, instead, had remained pending until the claimant

served a report that complied . . . .”).

Section 90.004

       Section 90.004 specifies the information that must be included in the

medical report for a silicosis claim. Id. § 90.004.2 The provision requires that a

qualifying physician verify that she (or a medical professional under her direct

2
       Cf. TEX. CIV. PRAC. & REM. CODE ANN. § 90.003 (listing medical-report
       requirements for asbestos-related claims).
                                           5
supervision and control) performed a physician exam and obtained a detailed

occupational      and   exposure   history—including   the   claimant’s    principal

employments, exposure to airborne contaminants, and the “nature, duration, and

frequency” of that exposure—as well as a detailed medical and smoking history

and explain, within the report, the claimant’s “occupational, exposure, medical,

and smoking history.” Id. §§ 90.004(a)(1)–(2), (e).

      The physician must also verify that the claimant has “one or more” of the

following: “(A) a quality 1 or 2 chest x-ray that has been read by a certified B-

reader according to the ILO system of classification as showing: (i) bilateral

predominantly nodular opacities (p, q, or r) occurring primarily in the upper lung

fields” with a specified “profusion grading” and/or “(B) pathological

demonstration of classic silicotic nodules exceeding one centimeter in diameter as

published in ‘Diseases Associated with Exposure to Silica and Nonfibrous Silicate

Minerals,’ 112 Archives of Pathology and Laboratory Medicine 7 (July 1988)”

and/or “(C) progressive massive fibrosis radiologically established by large

opacities greater than one centimeter in diameter” and/or “(D) acute silicosis.” Id.

§ 90.004(a)(3).

      In addition to these verifications, detailed statements, and medical

conclusions, the physician’s report must be “accompanied by copies of all ILO

classifications, pulmonary function tests, including printouts of all data, flow


                                         6
volume loops, and other information demonstrating compliance with the

equipment, quality, interpretation, and reporting standards set out in this chapter,

lung volume tests, diagnostic imaging of the chest, pathology reports, or other

testing reviewed by the physician in reaching the physician’s conclusions.” Id.

§ 90.004(a)(4).

      The statute further requires the physician to verify that there has been a

sufficient latency period, the claimant has “at least Class 2 or higher impairment

due to silicosis, according to the American Medical Association Guides . . .

reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E)

and (F) (2003),” and the physician has concluded that the medical findings and

impairment “were not more probably the result of causes other than silica

exposure” as possibly signified by the claimants’ occupational, exposure, medical,

and smoking history. Id. § 90.004(b). If the claim is for silica-related lung cancer

or another silica-related disease, other requirements are specified. Id.

§§ 90.004(c)–(d).

      Thus, the statute incorporates into its provisions the AMA Guides, federal

regulations concerning appropriate testing to establish a respiratory impairment,3

and a medical article published in the Archives of Pathology and Laboratory

Medicine. Id. § 90.004.

3
      20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F)
      (2003).
                                         7
Section 90.010

      Section 90.010 directs when a case may transfer out of the statutory MDL

back to a trial court. Id. § 90.010. The provision specifically states that it applies to

cases that were pending in the Rule 13 MDL when Chapter 90 was enacted. Id. §

90.010(a). Thus, its provisions apply to all of these sandblaster suits.

      Section 90.010 requires the statutory MDL judge to retain jurisdiction over

the pending silicosis suits and not remand them for trial until the individual

claimants file medical reports that comply with Section 90.004 or, alternatively,

with a limited “safety valve” provision found in Section 90.010(f). Id. § 90.010(d);

see id. §§ 90.010(f)–(j). Until a qualifying report is filed and approved, the cases

are considered inactive. There have been many cases on this inactive docket for

several years.

      Section 90.010(k) requires the silica MDL judge to present a report to the

governor, lieutenant governor, and speaker of the house five years after the statute

was enacted detailing the total number of cases on the docket as well as the number

of those cases that do not meet the criteria for a Section 90.004 complaint medical

report; stating the court’s “evaluation of the effectiveness of the medical criteria

established by Section . . . 90.004”; providing the court’s recommendations “as to

how medical criteria should be applied”; and including any other administration

information the statutory MDL court deems appropriate. Id. § 90.010(k).


                                           8
Silica MDL judge’s Section 90.010(k) report

      The silica MDL judge submitted a report on September 1, 2010, as

required.4 The judge declined to comment on policy issues related to the statute:

      [A]s to whether the criteria themselves or the minimum levels of
      impairment are appropriate, I am not in a position to ethically opine.
      This is more appropriately a matter for the law makers . . . . It all
      depends on what the law makers of Texas believe the definition of
      “impairment” should be to allow a claimant to proceed in court in
      these cases.

However, the court did provide statistical information regarding the progression of

the docket. As on August 1, 2010, there were 667 cases in the silica MDL

representing 5,839 “exposed persons.” Only 54 of the “exposed persons” had filed

medical reports under Section 90.004. Only half of those had been submitted to the

MDL court for evaluation:

       Exposed persons who have filed a medical report          54
       for evaluation
            Number of those that have been, not just filed      26
            but also, submitted to the judge
                   Approved                                             22
                   Not yet determined                                   1
                   Defendant objections sustained                       3
            Number of those filed that have not yet been        28
            determined because either they were withdrawn
            or just never submitted

For the remaining 5,785 “exposed persons,” no medical report had yet been filed.



4
      http://www.justex.net/JustexDocuments/24//Section%2090.010%28k%29%20
      Report.pdf
                                         9
Section 90.010(d–1) dismissal procedure

       In 2013, the Legislature amended Section 90.010 to establish a procedure for

dismissing silica cases that have been on file since before the 2005 legislation was

enacted and still have not submitted compliant medical reports. TEX. CIV. PRAC. &

REM. CODE ANN. § 90.010(d–1) (West Supp. 2015). The new Subsection (d–1)

provides as follows:

       Beginning on September 1, 2014, the MDL pretrial court shall dismiss
       each action for . . . a silica-related injury that was pending on August
       31, 2005, unless a report was served on or after September l, 2013,
       that complies with . . . Section 90.004, or Subsection (f). The MDL
       pretrial court shall provide for the dismissal of such actions in a case
       management order entered for that purpose. All [such] actions . . .
       shall be dismissed on or before August 31, 2015. . . .

Id. Along with the new Subsection (d–1), the Legislature provided that dismissal

would be without prejudice to the filing of a subsequent action and that any refiled

action would be treated as through it had never been dismissed. Id. §§ 90.010(l)–

(n).

Sandblasters challenge Chapter 90 as unconstitutional

       Before the September 1, 2014 deadline, the sandblasters filed a request for

injunctive relief, seeking to enjoin enforcement of Sections 90.004 and 90.010.5

The sandblasters asserted that the requirement that they comply with the medical


5
       In 2007, one of the MDL plaintiffs, Mr. Olivas, filed a constitutional challenge to
       Section 90.004. That challenge became moot, though, when the defendants
       withdrew their objections to Olivas’s medical report.
                                           10
report obligation is “oppressive and unreasonable.” According to them, it is nearly

impossible to comply with the statutory requirements because the criteria to

establish a qualifying impairment is listed, not within the statute, but by reference

to American Medical Association medical guidelines and literature cited therein,

which are continuously evolving in ways that have altered both the standards for

demonstrating an impairment and the tests necessary to support a medical

conclusion that a sandblaster has a qualifying impairment.

      The sandblasters contend that “their medical reports have to be rewritten”

with each change to the AMA guidelines. Each new report is costly and delays the

prosecution of their claims, thereby increasing the risk that the defendant-entities

will not have funds left to satisfy judgments once the sandblasters eventually meet

the criteria for remand and trial. The sandblasters present their constitutional

challenge as a facial challenge to the statute, meaning that the statute, by its terms,

always operates unconstitutionally. See New York State Club Ass’n v. New York

City, 487 U.S. 1, 11, 108 S. Ct. 2225, 2233 (1988).

      The sandblasters’ challenges to Sections 90.004 and 90.010 can be grouped

into two constitutional arguments.

      1.     Open courts challenge

      The sandblasters argue that Section 90.004 significantly impedes their

ability to pursue damages claims for their pre-existing silica-related disabilities, in


                                          11
violation of the Open Courts provision of the Texas Constitution. They claim that

Chapter 90 significantly limits their existing common-law claims by imposing new

hurdles for demonstrating an impairment that were not required under the common

law. Further, Chapter 90 does not recognize a sandblaster as impaired until he rises

to the level of “class 2” impaired. Thus, Chapter 90, according to the sandblasters,

prevents recovery of common law damages for less impaired claimants that would

have been available under the common law, such as lost earning capacity to

compensate for a “vocational disability” suffered by a lower-level impaired

worker. They further contend that applying these requirements retroactively to

their already-pending claims violates the Open Courts provision.

      2.     Substantive due process challenge

      The sandblasters also argue that the statute should require no more than that

a qualified physician provide a medical opinion that a worker has, in reasonable

medical probability, a silica-related impairment, based on the physician’s

understanding of the prevailing scientific standards and related medical literature.

They argue that the statute removes the ability of a qualified doctor to make this

determination based on his assessment of the appropriate, necessary requirements

for a reliable diagnosis and, instead, demands compliance with pre-specified

scientific standards and medical literature written into the statute. According to the

sandblasters, the task of determining if the worker has established an impairment


                                         12
was transferred from medical professionals to the MDL court. Furthermore, they

contend, because the statutorily-referenced medical literature was intended only to

be a guide for medical practitioners—not a legal standard for compensability—it is

continuously evolving and, as a result, its requirements are, over time,

contradictory. According to the sandblasters, each time the Guides change, what is

necessary to comply with the medical-report requirements also changes.6 The

sandblasters contend that, because the science is evolving and the literature is

complex, detailed, and changing, the statute is unconstitutionally vague and

violates due process.

      The sandblasters sought to prospectively enjoin the statute’s enforcement,

using a pleading entitled “Plaintiffs’ Motion to Enjoin Enforcement of Sections

90.004 and 90.010 of the Texas Civil Practice & Remedies Code because the

Statute is Unconstitutional and Plaintiffs’ Request for Permanent Injunction

Declaring Sections 90.004 and 90.010 Unconstitutional.”

      Defendants responded, raising jurisdictional arguments that the sandblasters

lack standing and their complaints are not ripe for judicial determination.

Defendants’ motion to dismiss the request for injunctive relief, in which they



6
      The sandblasters acknowledge that the MDL court previously advised that new
      editions of the AMA Guides will apply but only to newly performed testing and
      that earlier editions will continue to apply to testing performed when those were in
      effect.
                                           13
challenge standing and ripeness, states that “the merits of Plaintiffs constitutional

complaints are not at issue at this juncture . . . .”

       The trial court granted the defendants’ motion to dismiss and, through an

amended order, denied the temporary injunction.7 The order specifically states that

the injunctive request is being denied because the court granted the jurisdictional

challenge to that request. In other words, the temporary-injunction motion was not

denied on the merits.

       The sandblasters filed a direct appeal with the Texas Supreme Court, which

dismissed the appeal. The sandblasters then filed an appeal with this Court,

challenging the MDL pretrial court’s refusal to grant a temporary injunction.


7
       The parties agreed that the motion would be treated as a request for a temporary
       injunction instead of a permanent injunction, and the trial court accepted the
       motion accordingly. Throughout the record, the trial court and parties have
       expressed their agreement that the trial court intended to deny a temporary
       injunction and that the denial would be subject to interlocutory appeal. See TEX.
       CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 2015). After the
       injunction request was denied and the sandblasters appealed, the defendants filed a
       motion to dismiss the appeal, arguing that the MDL court’s order of dismissal
       referenced a pending request for permanent injunction and that permanent
       injunctions are not subject to interlocutory appeal under Section 51.014(a)(4).

       We reject the argument that the wording of the order overrules the intended action
       of the MDL court. First, the order specifically references a pending “request for
       temporary injunction.” Second, the trial court described the pleading filed as a
       “motion to enjoin enforcement of Section 90.004 and 90.010” as well as a “request
       for permanent injunction.” That phrasing does not confine the resulting order such
       that it could not have been addressing anything other than the permanent
       injunction request, especially in light of the agreement that the motion before the
       court was the sandblasters’ request for a temporary injunction. We overrule the
       defendants’ motion to dismiss that is based on its permanent injunction theory.
                                            14
                    Requirements for a Temporary Injunction

      “An injunction is a remedial writ that depends on the issuing court’s equity

jurisdiction.” Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 336 (Tex.

2000). “A temporary injunction is an extraordinary remedy, the purpose of which

is ‘to preserve the status quo of the litigation’s subject matter pending a trial on the

merits.’” City of Houston v. Downstream Environmental, L.L.C., No. 01-13-01015-

CV, 2014 WL 5500486, at *3 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, pet.

dism’d) (mem. op.) (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204

(Tex. 2002)). “To obtain a temporary injunction, the applicant must plead and

prove three specific elements: (1) a cause of action against the defendant; (2) a

probable right to the relief sought; and (3) a probable, imminent, and irreparable

injury in the interim.” Butnaru, 84 S.W.3d at 204; see TEX. R. CIV. P. 682.

      To be effective, an injunction is required, by rule, to satisfy certain content

requirements. Rule 683 requires that it “describe in reasonable detail”

“the act or acts sought to be restrained.” TEX. R. CIV. P. 683. Rule 687 adds the

requirements that the injunction “shall be directed to the person . . . enjoined” and

“command the person . . . to whom it is directed to desist and refrain from the

commission or continuance of the act enjoined, or to obey and execute such order

as the judge has seen proper to make.” TEX. R. CIV. P. 687. The court’s clerk issues

the temporary injunction and delivers it to the sheriff or any constable of the


                                          15
county of the residence of the person enjoined. TEX. R. CIV. P. 688. The officer

executes the injunction “by delivering [it] to the party enjoined.” TEX. R. CIV. P.

689.

       If the enjoined person disobeys the temporary injunction, he “may be

punished by the court or judge . . . as a contempt.” TEX. R. CIV. P. 692. The judge

has the authority to “cause to be issued an attachment for such person” who is

alleged to have disobeyed the injunction and require the person to be arrested and

brought before the court or judge. Id. Upon proof of disobedience to the injunction,

the judge “may commit such person to jail without bail until he purges himself of

such contempt, in such manner and form as the . . . judge may direct.” Id.

        Sandblasters’ Motion Does Not Align with these Requirements

       The sandblasters argue that the statute operates unconstitutionally to impair

their ability to seek recovery for silica-related injuries. They seek a determination

of this question of law and to have the law “declared unconstitutional.” Should

they prevail on their argument, the relief they seek is to have “the application and

enforcement of Section 90.004 . . . immediately and permanently enjoined,”

thereby prohibiting the dismissal of their claims for failure to file a compliant

medical report. Not only do they seek to avoid statutorily mandated dismissal, they

further request in their injunctive motion “that the Court hold that Plaintiffs’




                                         16
medical reports are sufficient for Plaintiffs to move forward with their cases as

though Section 90.004 was never enacted.”

      Nowhere in their motion do the sandblasters identify a person or persons to

be enjoined. To the extent they seek to prohibit an act, it is the implementation of a

statute by the MDL court, as part of its role of managing the MDL docket. Thus, it

would seem, the sandblasters are petitioning the judge to enjoin himself from

following the laws as written.8 This request is at odds with the use contemplated of

injunction requests in the Rules of Civil Procedure. Cf. TEX. R. CIV. P. 687 (stating

that, to be sufficient, an injunction “must command the person . . . to whom it is

directed to desist and refrain from . . . the act enjoined.”) The disconnect appears

even more stark when we consider the possibility of contempt. If the judge enjoins

himself, is there some contemplation that he could be subject to contempt if an

assertion were made that he has not fully complied with his ruling?

      In short, the sandblasters are making a legal argument, seeking a declaration

that a law is unconstitutional. There are various vehicles available to them to

present that argument to the MDL judge—perhaps a motion for summary or

declaratory judgment. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 444–46

(Tex. 1994) (affirming relief under Uniform Declaratory Judgments Act to home-


8
      The sandblasters confirmed this intent in a post-submission filing: “Appellants
      seek injunctive relief against the MDL Court.”

                                         17
school parents who challenged construction of compulsory school attendance law);

TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (West 2015) (Uniform

Declaratory Judgments Act); see also TEX. R. CIV. P. 166a(c) (providing

mechanism to resolve legal issues on showing that, “there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law on

the issues expressly set out in the motion.”).

      Instead of pursuing those avenues, the sandblasters filed a motion for

temporary injunction, with the understanding that a denied motion is subject to

immediate, interlocutory review. But this vehicle is not capable of providing the

relief they seek because, on a conclusion that a statute is unconstitutional, a court

does not enjoin itself from enforcing a defective law; it merely declares the law

unconstitutional. Cf. Ryan v. Rosenthal, 314 S.W.3d 136, 141 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied) (recognizing narrow availability to litigants

of mechanism to enjoin enforcement of criminal statutes in civil proceeding but in

context of motion to enjoin district attorney, not reviewing court, itself).

      Because the motion for temporary injunction fails to meet the content

requirements established under the Rules of Civil Procedure and erroneously

attempts to have a trial court enjoin itself, we conclude that the MDL court did not

err by refusing the motion.




                                          18
                                  Conclusion

      We affirm the order of the MDL court. All pending motions are denied.




                                            Harvey Brown
                                            Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.




                                       19
