

                                 No. 04-0606




                 In re Silica Products Liability Litigation


               On Review By The Multidistrict Litigation Panel

                          Heard on October 13, 2004

Dissenting opinion filed by Justice Kidd.


      The alignment of the parties in this MDL proceeding is  so  strikingly
unusual that it reminds me of the oft-quoted fictional  newspaper  headline,
(Man  Bites  Dog.(   The  MDL  movants  are  a  small  group  of  collateral
defendants who are relative newcomers to silica  litigation  in  Texas.   In
opposition are the respondents, a surprising coalition led by  major  silica
defendants and joined by the  unanimous  support  of  the  plaintiffs(  bar.
This coalition contends that the movants have failed to  meet  their  burden
of proof and that an MDL order of consolidation is  unneeded  and  unwanted.
Because I agree that the movants have not carried their burden of proof  and
that  the  MDL  consolidation  ordered  by  a  majority  of  this  panel  is
inconvenient, inefficient, and unwise, I respectfully dissent.

                                 BACKGROUND
Burden of proof
      The Texas Constitution establishes the district  court  as  the  basic
trial court in this state.  Tex. Const.  art.  V,  ((  1,  7,  8.   Our  422
district  courts  of  general  jurisdiction  handle  all  of  the   pretrial
litigation matters from the simple to  the  complex.   The  design  of  this
system  emphasizes  the  relationship  between  judges   and   their   local
communities,  and  the  accountability  inherent  in  that  arrangement.   A
strength of this system is that a diverse group of judges across  the  state
bring their collective knowledge and experience to  bear  on  a  variety  of
legal issues rather than leaving them all to a  single  judge.   Within  the
parameters of the civil justice system, courts may customize  their  rulings
to the particular circumstances of the parties in their communities.
      Because MDL consolidation of cases before a single  judge  is  such  a
drastic change  from  our  conventional  civil  justice  system,  the  Texas
Legislature and Texas Supreme Court have established  an  extremely  onerous
burden of proof before MDL consolidation is  authorized.   The  movant  must
establish that the transfer will (1) be for the convenience of  the  parties
and witnesses, and (2)  promote  the  just  and  efficient  conduct  of  the
action.  Tex. R. Jud. Admin. 13, reprinted in Tex. Gov(t Code Ann., tit.  2,
subtit. F app. (West Supp. 2004-05) ((Rule  13().   Legislative  terms  like
(convenience( and (efficient( are extremely  high  thresholds  when  one  is
considering thousands of cases being assigned to a single judge who  already
has a busy trial docket.  The tragedy of this case is not that  the  movants
have wholly failed to meet their burden of proof, but  that  a  majority  of
this panel has tacitly conceded as much.
Silica litigation
      For over 80 years, an incredible number of silica  injury  cases  have
been disposed of by the Texas courts.   U.S.  Silica,  which  has  been  the
major  silica  supplier  and  defendant  in   these   cases,   opposes   MDL
consolidation.  In its brief and at oral argument, counsel for  U.S.  Silica
described  a  highly  successful  method  of  handling  pretrial  issues  by
agreement that rivals any mass-tort system in the country:
      As a practical matter, Texas courts are handling  the  current  silica
      caseload efficiently.  Historically, no Plaintiff, Defendant, or Court
      has sought a state court silica MDL in Texas, despite the existence of
      the procedure in one form or another since 1997,  when  Tex.  R.  Jud.
      Admin.11 was promulgated.  Nor are class actions,  consolidations,  or
      other traditional means of grouping cases sought on  a  routine  basis
      for silica cases.  Still, most silica cases are  resolved  in  two  to
      three years or less with relatively very little  use  of  the  courts(
      time and  resources.   Parties  invariably  agree  to  use  of  Master
      Discovery requests.  This Master Discovery is, by and  large,  handled
      without court  intervention.   Depositions  are  taken  on  a  regular
      schedule through the cooperation of opposing counsel,  mostly  without
      incident.  In fact, there are very few  trials,  and  most  cases  are
      resolved either through mediation  or  settlement  discussions,  often
      without the court having to order mediation.


      Now, six Defendants  (the  Movants)(without  consulting  their  fellow
      Defendants(seek to change entirely the handling  of  all  silica  pre-
      trial matters.  The Motion  does  not  meet  Rule  13(s  bare  minimum
      requirements.  Movants do not offer an adequate, thorough, or reasoned
      explanation of existing problems that the transfer would resolve,  nor
      do they explain how exactly the transfer  would  help.   Specifically,
      Movants  make  no  showing  of  duplicative  discovery,   inconsistent
      rulings, or pretrial mismanagement that could be avoided  or  lessened
      by the transfer and consolidation they now pursue.  Absent a much more
      compelling, complete, and reasoned  explanation  that  demonstrates  a
      need for change and explains how the change  would  help,  this  Panel
      must deny the revolutionary changes Movants seek.   Movants  have  not
      offered sufficient justification to change  from  the  known  current,
      efficient way of handling cases, to an unknown and untested  mechanism
      that may create new problems without offering better resolution to any
      old ones.  In short, U.S. Silica Company and Unimin Corporation  would
      urge the Panel to follow a well-known colloquial phrase: If  it  ain(t
      broke, don(t fix it.

This system is as close to  a  perfect  litigant-driven  system  as  can  be
found.  The panel majority concedes this fact.  The majority  can  point  to
no  significant  instances  where  inconsistent  rulings  have  occurred  or
discovery abuse has taken place.

                                 DISCUSSION
      Rule 13 permits us to transfer these cases if we  find  that  (related
cases involve one or more common questions of fact, and that transfer  to  a
specified district court will be for the  convenience  of  the  parties  and
witnesses and will promote the just and efficient  conduct  of  the  related
cases.(  Rule 13(l).  Not only have the movants failed  to  demonstrate  any
of these elements, the record indicates to me  that  transfer  will  have  a
detrimental effect on silica litigation and  will  unnecessarily  alter  the
civil justice system for silica cases in Texas.
1. Inconvenience of parties and witnesses
      Experienced trial attorneys will confirm  that  pretrial  matters  are
most conveniently handled in the local community and court  where  the  case
is filed.  The  panel  majority  lists  some  ten  categories  of  potential
pretrial matters that might come before  the  MDL  court  including  matters
like discovery, venue and Robinson/Havner challenges.  Many of these  issues
might require individual hearings in individual cases.  It is difficult  for
me to imagine that a party or witness in El Paso, Texarkana, or  Brownsville
would find it (convenient( to travel to Houston for every  pretrial  hearing
to be held in their case.   More  importantly,  the  movants  have  made  no
showing of inconvenience in this  MDL  proceeding.   The  majority  concedes
that movants have not shown that a single party  or  witness  has  yet  been
inconvenienced.  And yet, the majority grants the motion based  in  part  on
the assertion that  (it  is  undeniable  that  it  is  more  convenient  for
witnesses and parties who find themselves involved in several  cases  to  be
subject to one court instead of several.(  While this is strong rhetoric,  I
question the soundness of the  reasoning.   Except  for  those  parties  and
witnesses living in the city of the MDL court,  the  parties  will  have  to
travel across the state to attend every single pretrial  hearing.   I  would
submit that a party traveling halfway across the state to attend  a  routine
pretrial hearing would be little comforted by the (convenience(  of  arguing
their motion before a Houston judge as opposed to one  in  their  own  local
community.
      As for the convenience of having only one set of orders,  the  silica-
litigation parties  up  to  this  point  have  collegially  conducted  their
litigation by using the  standardized  and  uniform  Texas  Rules  of  Civil
Procedure coupled with a  body  of  formal  and  informal  agreements.   The
movants have not brought forth a single instance in  which  they  have  been
prejudiced by inconsistent  rulings  or  the  absence  of  uniform  pretrial
orders.  But rather than place the burden of proof on the movants  where  it
belongs, the majority speculates that the  silica  litigants  will  find  it
(convenient( to have only one set  of  pretrial  orders.   Of  course,  that
presupposes that the MDL court will impose the same set of orders  in  every
case(a supposition not supported by the record.
2.  Unjust and inefficient handling of cases
      One of the most oft-quoted phrases regarding efficiency and justice in
the civil justice system is (justice delayed is justice denied.(   Today,  a
panel majority orders the  transfer  of  71  cases  to  a  single  statewide
pretrial judge.  Soon, that number may swell to thousands;  indeed,  one  of
the parties to this MDL proceeding indicated that 25,000 silica  cases  were
filed nationwide in the year 2003 alone.  The majority seems to  think  that
these cases can be more efficiently handled  by  one  judge  as  opposed  to
spreading the workload among the  422  district  courts  across  the  state.
This viewpoint, in my opinion, defies common  sense.   To  provide  a  rough
analogy, the civil justice system  is  like  a  tollway  with  422  district
judges manning individual toll booths.  To eliminate  all  the  toll  booths
save one will, in my  opinion,  seriously  impede  the  flow  of  litigation
traffic.  The majority(s view of efficiency is troubling, to say the  least.
 I am equally troubled by the statement made by the majority:  (Nor  can  we
ignore what we as judges know  from  experience(that  it  is  difficult  for
dedicated but busy trial judges to consistently give cases  like  these  the
deliberate,  thoughtful,  and  focused  pretrial  treatment  they  deserve.(
While I wholeheartedly agree that, with the legislative budget cuts and  the
virtual elimination of the  visiting  judge  program,  our  active  district
courts are stretched to the breaking point, it is curious  that  a  majority
of this panel would transfer the entire  silica-litigation  docket,  present
and future, to an active sitting judge in Harris County who, I am sure,  has
little spare time on her hands.  Further, I believe  that  the  majority  is
unrealistic to assert that a statewide MDL judge will be able to give  these
71 silica cases more attention than 55 district judges could  give  them  in
their local courtrooms.
      By contrast, everything in this record, which the  majority  concedes,
establishes that over the last 80 years, silica cases have been  handled  by
agreement and have not required  numerous and extensive  pretrial  hearings.
Counsel for U.S. Silica, who  has  been  handling  its  docket  for  over  a
decade, could count the number of hearings and trials on the fingers of  two
hands.   And  what  justification  are  we  given  for  abandoning  such  an
incredibly efficient civil justice system?  We are told that  one  group  of
six defendants has the right to have their complaints  decided  by  a  court
rather than settled by agreement with plaintiffs( and their  fellow  defense
counsel.  Fair enough.  But why should six defendants be allowed,  not  only
to destroy a longstanding collegial system of  dispute  resolution,  but  to
force 605 other parties to forfeit their right to be heard  by  a  judge  in
the community where the action arose?  We are not told by the majority.
3.  Lack of common questions of fact
      While conceding that (each personal injury case is  indeed  different(
the majority opinion describes issues of law, not fact, to justify  transfer
such as (discovery, venue  and  forum  non  conveniens,  the  (sophisticated
user( doctrine, Robinson and Havner  challenges  to  expert  testimony,  the
sufficiency of warnings,  and  other  issues  concerning  common  worksites,
product identification, and the validity  of  the  diagnosis  and  screening
process.(  Although I am sure that common questions of fact do exist  within
the 71 transfer cases, the majority  cannot  point  to  a  single  piece  of
evidence in this record to establish the common  questions  of  fact.   This
record is completely devoid of any proof  to  that  effect.   On  the  other
hand, although not their burden,  the  respondents  have  provided  evidence
that silica cases  are  highly  individualized,  and,  although  grouped  at
common worksites, even those individual cases will be  widely  divergent  on
issues like product identification and causation.  Surely, the movants  must
do more than simply state that silicosis is a similar disease  of  the  lung
and therefore all silica cases are similar.  The MDL  Statute  and  Rule  13
are clear.  Common questions of fact are required to be proved.

                                 CONCLUSION
      Litigants  should  be  required  to  handle  their  cases  under   the
traditional civil justice system pursuant  to  the  Texas  Constitution  and
statutes.  MDL consolidation is an extraordinary remedy that should only  be
considered where the burden of proof has been met.   The  record  in  silica
cases demonstrates an incredibly efficient and convenient  system  in  which
collegial  agreements  complement  the  civil  justice  system.   Today,   a
majority of this panel allows a small  group  of  defendants  to  alter  the
civil justice  system  without  holding  them  to  their  burden  of  proof.
Because I believe that the overwhelming weight of the evidence  provided  by
the  respondents,  made  up  of  defense  and  plaintiffs(  counsel   alike,
establishes that transfer to a single statewide MDL judge  is  inconvenient,
unjust, inefficient, and unneeded, I respectfully dissent.


                                                                        Mack
Kidd, Justice


OPINION DELIVERED: November 10, 2004
