Licensed To Practice Law in Texas, Arkansas, California, Mississippi, and Oklahoma FILED IN 1st 2615 Calder I Suite COURT OF APPEALS 8oo HOUSTON, Post I Office Box 16 TEXAS Beaumont, Texas mo4 6/17/2015 409.835·50114:35:58 PM I Fax 409.835.5177 CHRISTOPHER A. PRINE June 17, 20 15 Clerk
Christopher A. Prine via Elextronic Filing Clerk, First Court of Appeals 30 I Fannin Street Houston, Texas 77002-2066
Mr. Chris Daniel via Electronic Filing District Clerk Harris County Civil Courthouse 20 I Caroline Houston, Texas 77002
RE: Cause No. 2004-70000; In Re: Texas State Silica Products Liability Litigation; pending in the 333rd Judicial District Court, Harris County, Texas.
Case Number 0 I-I5-0025I-CV; In Re: Texas State Silica Products Liability Litigation; before the Court of Appeals for the First District of Texas at Houston.
Dear Mr. Daniel and Mr. Prine:
I write regarding the status of the appellate record in the First Court of Appeals and the Court of Appeal 's recent disposition of the Appellant's Motion to extend time to file a brief in the above-referenced matter.
On March 3I, 2015 Appellant' s counsel Mike Martin filed with the District Clerk "Plaintiffs' Designation of the Record Relating to Plaintiffs' Motion for Injunctive Relief on the Grounds that Sections 90.004 and 90.010 are Unconstitutional." That filing identified a number of items that need to be included in the Clerk's record that have not, to date, been provided to the Court of Appeals.
For example, with respect to the Defendants' filings, Mr. Martin identified, among other things, the following: MEHAFFYWEBER
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*** ll7/23/lU 14 6 1 689~(19 Supplemental Rricf of Defe nda nt~· Stc~ring Committee in Suppo11 of lhc Con'liluti(lnali t) 111 Tc" Ch . Pmc. & Rem . Code Chtlplcr ~. indudin~; Appcndi~>. A nnct B . *** "'/6/1~ f-I J X707~~ Tr:msmitlal k ll~r frotn Barb:tm Burron rcgarlling amcndc-d Exh ihil D-57. mcl udm!J anaCJldL·d hhih il D-57.
See CR: 1873-1875. After Plaintiffs' record designation, the Defendants sought the inclusion of additional items into the Appellate Record. See CR: 1876- 188 1.
A large number of necessary items, as far as the Defendants' response brief will be concerned, are not, despite being identified by the parties, included in the Clerk's Record. For example: MEHAFFYWEBER
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• Exhibits A through H to the April 11 , 20 I 4 filing, which were identified by Appellants' counsel for inclusion in the Clerk's Record (i.e. "including Exhibits A through H"), were omitted;
• Exhibits I through IO to the April I 7, 20I4 filing, which were identified for inclusion in the Clerk's Record by Appellants' counsel (i.e. "including Reply Exhibits I through I 0"), were omitted;
• Appendix I through 3, and Exhibits D-I through D-71 to the June 3, 2014 filing, which were identified for inclusion in the Clerk's Record by Appellants' counsel (i.e. "including Appendix I through 3, and Exhibits D-1 through D-71 "),were omitted;
• Appendix A and B to the July 23, 2014 filing, despite being identified for inclusion in the Clerk' s record by Appellants' Counsel, were omitted;
• Amended Exhibit D-57 that was filed under the August 6, 2014 letter and requested for inclusion by Appellant's counsel, was omitted. While the briefing or correspondence identified above are in the Clerk' s record, the actual exhibits and appendices to those filings are not included in the Clerk's record. The same problem appears to be present with respect to items the Appellants would presumably want to be present in the Clerk' s Record, including over 107 Plaintiff-specific exhibits and a number of general exhibits and appendices as well.
Because of the large volume of exhibits and appendicies that were requested but were not included in the Clerk's record, if the District Clerk supplements the appellate record with all of those exhibits at the end of the Clerk' s Record as it currently exists, it will be difficult for the parties and the Court to associate particular exhibits with particular briefs/trial court filings. As such, I believe it would be appropriate at this point, if possible, for an amended Clerk's record to be prepared that includes all of the previously requested exhibits with the actual filings.
I know that the Court of Appeals indicated that the last extension would be the last for the Appellants and I also know that it is the Appellant's burden to get the items included in the appellate record that the Appellant needs in the record. However I do not want to be put in the same position thart Appellants' counsel is currently in if the record is partially supplemented.
As such, as allowed by TEX.R.APP.P. 34.5(c)(1), I am asking that the Harris Couunty District Clerk consider this a request that the Harris County District Clerk supplement the Clerk' s Record for the above referenced appeal to the Court of Appeals for the First District. Many of the below items and/or exhibits were omitted from the Clerk' s Record previously prepared and filed in this matter. Please supplement the Clerk's Record with the following items: MEHAFFYWEBER
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Date Harris County Document District Clerk "Image No." 1 12/ 12/2005 18118521 Order No. 11 07/30/2010 45960072 Certain Defendants' Additional Comments Concerning the Suggested Amendment to Section 90.008 04/ 1112014 60396864 EXHffiiT A - H to Motion to Dismiss Plaintiff's Request for (Main document) Injunctive Relief for Lack of Standing and Because Plaintiffs' See Exhibit 1 for Complaints are Not Ripe or Alternatively Request for Order list of " Image Nos" Compelling Plaintiffs to Demonstrate Standing and that Their for Exhibits A - H. Constitutional Complaints are Ripe Before Entering a Briefing Schedule. 04/15/2014 60426509 Defendants' Response to " Pla intiffs ' Steering Committee Motion to (Main document) Stay Enforcement of Supplemental Case Management Order Re lating to Dismissal Procedures under 90.0 I 0" INCLUDING See Exhibit 2 for EXHffiiTS 1-28 list of " Image Nos" for Exhibits 1 - 28 . 04/17/2014 60479421 EXHffiiTS 1-10 to Reply to Plaintiffs ' Response to Motion To (Main document) Dismiss Plaintiffs Request for Injunctive Relief for Lack of Standing and Because Plaintiffs' Complaints are Not Ripe or See Exhibit 3 for Alternatively Request for Their Constitutional Complaints are Ripe list of " Image Nos" Before Entering a Briefing Schedule and Memorandum of Law in for Exhibits I - 10. Support 05/29/2014 60985701 Rule 11 Stipulation Regarding Constitutional Challenges to Chapter 90 of the Texas Civil Practice & Remedies Code 06/03/14 61057805 EXHffiiTS D-1 THROUGH D-71; APPENDIX 1; APPENDIX (Main document) 2· APPENDIX 3· AND AFFIDAVIT to Opposition of ' ' Defendants' Steering Committee to Certain Plaintiffs' Request for a See Exhibit 4 for Temporary Injunction in Connection with their Motion to Enjoin list of " Image Nos" Enforcement of Sections 90.004 and 90.010 of the Texas Civil for Exhibits D-1 to Practice & Remedies Code Because the Statute is Unconstitutional D -71, Appendix 1 to Appendix 3, and Affidavit.
1 The District Clerk assigns an "Image No." to filings that are scanned and uploaded onto the internet. Those numbers are being provided to assist the District Clerk in locating the documents in the District Clerk's office. In addition, Exhibits attached to this letter include printouts of excerpts of infonnation that contain the " Image No." of many (but not all) items that are being requested from the District Clerk' s website. MEHAFFYWEBER
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Date Harris County Document District Clerk "Image No." 1 06/03/2014 61067232 EXHffiiT D-71 (DVD) to Opposition of Defendants' Steering Committee to Certain Plaintiffs' Request for a Temporary See Exhibit 5. Injunction in Connection with their Motion to Enjoin Enforcement Defendants of Sections 90.004 and 90.010 of the Texas Civil Practice & Request that the Remedies Code Because the Statute is Unconstitutional actual D VD be it~cluded as part of the Clerk's Record. 06/04/2014 61071525 AMENDED EXHffiiT D-61 to Opposition of Defendants' Steering Committee To Certain Plaintiffs' Request for a Temporary Injunction in Connection with Their Motion to Enjoin Enforcement See Exhibit 6. of Sections 90.004 and 90.010 of the Texas Civil Practice & Remedies Code Because the Statute is Unconstitutional 07/23/2014 61689809 APPENDIX A AND APPENDIX B to Supplemental Brief of (Main Document) Defendants' Steering Committee in Support of the Constitutionality of Tex. Civ. Prac. & Rem Code Chapter 90 FILED 7/23/2014 See Exhibit 7 for list of " Image Nos" for Appendix A and Appendix B. 07/29/20 14.l 61777692 Juan Naves' Supplement to Chapter 90 Compliant Medical Report (Main Document) with All Exhibits (Exhibit A) (Styled in Cause No. 2004-70000, In re: Texas State Silica See Exhibit 8. Products Liability Litigation, in the 333'd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/., in the 333'd District Court of Harris County, Texas) 08/22/2014 62082499 Objections to Medical Report of Plaintiff Juan Naves with All Exhibits (Exhibits 1 and 2) See Exhibit 8. (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333'd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/. , in the 333'd District Court of Harris County, Texas) 12/23/2014 63623879 Juan Naves' Second Supplement to Chapter 90 Compliant Medical Report with All Exhibits (Exhibit A) See Exhibit 8. (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333'd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/., in the 333'd District Court of Harris County, Texas)
2 Certain items pertaining to Plaintiff Naves and Plaintiff Tullos have not previously been requested. MEHAFFYWEBER
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Date Harris County Document District Clerk 1 "lma2e No." 01 /01 /2015 63789807 Supplemental Objections to Medical Report of Plaintiff Juan Naves with All Exhibits (Exhibit A) See Exhibit 8. (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/., in the 333rd District Court of Harris County, Texas) 01 /27/2015 63995569 Juan Naves' Third Supplement to Chapter 90 Compliant Medical Report with All Exhibits (Exhibit A) See Exhibit 8. (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/. , in the 333rd District Court of Harris County, Texas) 02/09/2015 64 166536 Objection to Juan Naves Third Supplement to Chapter Noncompliant Medical Report with All Exhibits (Exhibits A - C) See Exhibit 8. (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/., in the 333rd District Court of Harris County, Texas) 02/23/2015 64365845 Plaintiffs Response to Defendants' Objection to Third Supplement to Chapter 90 Medical Report of Juan Naves with All Exhibits See Exhibit 8. (Exhibits A - C) (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/., in the 333rd District Court of Harris County, Texas) 02/27/2015 64428924 Order on Plaintiff Juan Naves' Medical Report (Styled in Cause No. 2004-70000, In re: Texas State Silica See Exhibit 8. Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2005-79697, Robert Ramirez v. Air Liquide America Corporation, et. a/., in the 333rd District Court of Harris County, Texas) 07/29/2014 61890057 Billy Tullos' Supplement to Chapter 90 Compliant Medical Report with All Exhibits (Exhibit A) See Exhibit 9. (Styled in Cause No. 2004-70000, In re: Texas State Silica Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2006-0 1960, James Van Allen v. Air Liquide America Corporation, et. a/. , in the 333rd District Court of Harris County, Texas) 09/22/2014 62446642 Order on Billy Tullos' Chapter 90 Medical Report MEHAFFYWEBER
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Date Harris County Document District Clerk "Image No." 1 (Styled in Cause No. 2004-70000, In re: Texas State Silica See Exhibit 9. Products Liability Litigation, in the 333rd District Court of Harris County, Texas and Cause No. 2006-01960, James Van Allen v. Air Liquide America Corporation, et. a/. , in the 333rd District Court of Harris County, Texas)
Please file this letter with the papers as part of the record as a request to supplement the Clerk' s Record.
Thank you for your time and consideration. If you should have any questions, please feel free to contact one of us at our offices.
Very truly yours, Very truly yours,
Harvey Ferguson, Jr. '1~ Barbara J. Barron Law Office of Harvey Ferguson, Jr., PLLC For the Firm P.O. Box 1974 Canyon Lake, Texas 78133 Office: (830) 715-9276 Facsimile: (830) 715-9277 E-mail: harvey@hfergusonlaw.com
HF/BJB/fad
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