James L. Ware and Defense Group Win Appellate Ruling Over Transfer of Asbestos Cases to MDL and Jurisdiction


The Houston First Court of Appeals sided with the position of firm clients and other defendants that every claimant asserting an asbestos claim must timely serve a medical report which complies with the state statute and that there are no “carve-outs” for malignancy claims as well as affirming the MDL court’s ruling that the Texas courts lack personal jurisdiction.

The appeal involved two cases in which 463 plaintiffs and 790 plaintiffs asserted asbestos-related personal injury claims. The cases were filed prior to the 2005 legislation including Chapter 90.001 et seq Tex. Civ. Prac. Rem. Code and were claims severed from several larger filings. Plaintiffs contended without evidence that all were allegedly asbestos-caused malignancies. However, no plaintiff had ever served a medical report which stated that a given plaintiff suffered from malignancy and that asbestos was a cause. Plaintiffs becoming appellants argued that the statute created a “carve-out” for asbestos-related malignancies such that no reports must be filed. The Houston First Court of Appeals reiterated that Chapter 90.003 requires all claimants to serve medical reports. For those cases filed prior to September 1, 2003, there are three windows of time within which one may avoid having a case transferred to the MDL as follows:

  1. If trial commences within 90 days of the effective date of the act (September 1, 2005), or
  2. If one serves a report on or before 90 days following the effective date of the act, or
  3. If there is a diagnosis of mesothelioma, other malignant asbestos-related cancer…

If no report is filed per Chapter 90.003 by the 90th day, a Defendant may transfer the case to the MDL. If the MDL court determines that a report was timely filed, it will remand the case to the trial court. If not, it retains jurisdiction over the case. Here the fact that no claimant served a medical report meant that the case was properly transferred to the MDL which will continue to supervise the case.

The court also confirmed that a Special Appearance per TRCP 120a must be the first filed pleading and that an answer, not a Special Appearance, filed first is not a nullity even if the case has been transferred to the MDL. One may become an Intervenor by the filing of a pleading thus making an appearance and need not style it “Intervention” nor seek permission to intervene. It is an intervention subject only to a motion to strike and a trial court ruling granting that motion.

Special Appearances have a due order of filing and due order of hearing such that the MDL court was correct to take up the Special Appearances first before addressing the requirements of medical reports and transfer. The appellate court affirmed the MDL court ruling granting Special Appearances because there was no personal jurisdiction.

To read the full Opinion, click here.