Union Carbide Corp. v. Synatzske

438 S.W.3d 39, 57 Tex. Sup. Ct. J. 980, 2014 WL 2994437, 2014 Tex. LEXIS 565
CourtTexas Supreme Court
DecidedJuly 3, 2014
DocketNo. 12-0617
StatusPublished
Cited by87 cases

This text of 438 S.W.3d 39 (Union Carbide Corp. v. Synatzske) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 57 Tex. Sup. Ct. J. 980, 2014 WL 2994437, 2014 Tex. LEXIS 565 (Tex. 2014).

Opinions

Justice JOHNSON

delivered the opinion of the Court,

in which Chief Justice HECHT, Justice GREEN, Justice WILLETT, and Justice BROWN joined.

This interlocutory appeal concerns an asbestos-related injury suit in which Union Carbide Corporation filed a motion to dismiss based on the plaintiffs’ alleged failure to timely serve a statutorily compliant physician report. The Multi-District Litigation pretrial court denied the motion. On interlocutory appeal the court of appeals affirmed. It held that the plaintiffs did not file a compliant report, but that the report requirement was unconstitutionally retroactive as applied to the plaintiffs’ claims.

We agree with the court of appeals that a statutorily compliant report was not filed. But we disagree that, as applied in this case, the report requirements are unconstitutional. Accordingly, we reverse the judgment of the court of appeals and render judgment dismissing the suit.

I. Background

Joseph Emmite, who died in June 2005, worked as an insulator at Union Carbide for nearly forty years before he began receiving disability in 1979. At that time, Joseph had numerous health issues including a kidney disorder that required steroid therapy, a torn biceps muscle, and chronic fatigue, weakness, and vertigo. He was hospitalized twice during the last year of his life. His last hospitalization was in May 2005, because of edema, or swelling, in his legs. His medical history reflected, among other matters, that Joseph had been unable to walk for two years because of a deteriorated hip joint, he was unable to feed himself, he had dementia, and he had previously been diagnosed as having asbestosis. X-rays, an ultra-sound, and a computerized tomography performed during his final hospitalization showed lung calcifications that were most likely due to asbestos exposure. Dr. Prince was called in as a consulting pulmonologist and diagnosed him as having pulmonary asbestosis. When Joseph died on June 15, 2005, his death certificate listed the cause of death as “Alzheimer’s disease/dementia.” In June 2007, the representatives of Joseph’s estate and his surviving children (the Em-mites)1 filed a wrongful death suit against Union Carbide and thirty-seven other defendants.2 As to Union Carbide the Em-[43]*43mites alleged that Joseph was exposed to asbestos throughout his work life there and the long-term exposure caused him to develop asbestosis, which in turn was a cause of his death.

Chapter 90 of the Texas Civil Practice and Remedies Code was enacted by the 79th Legislature in 2005, signed by the Governor in May 2005, and became effective on September 1 of that year. Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169; see Tex. Civ. Prac. & Rem.Code §§ 90.001-012. Chapter 90 applies to actions commenced after its effective date and requires claimants — persons alleged to have suffered an asbestos-related injury and any persons seeking recovery of damages for or arising from the injury or death of the exposed person — to serve each defendant with a physician report meeting certain requirements. Tex. Crv. Prac. & Rem.Code §§ 90.001, 90.006. Thus, Chapter 90 was law before Joseph died, although it did not apply to suits filed during the more than two months between his death and September 1, 2005. Id. §§ 90.001-012. Because the Emmites did not file suit until 2007, Chapter 90 applies to their claims.

In order to meet Chapter 90’s requirements, the Emmites attached a report by Dr. Richard Kradin to their original petition. Union Carbide responded with a motion to dismiss in which it asserted that the report did not meet Chapter 90’s requirements. The Emmites, in turn, served Union Carbide with a report authored by Dr. J.D. Britton.

In September 2007, the MDL pretrial court3 (the MDL court or trial court) held a hearing on Union Carbide’s motion to dismiss. At the hearing Union Carbide argued that the Emmites’ claims should be dismissed because neither Dr. Kradin’s report nor Dr. Britton’s report complied with Chapter 90, primarily because neither report referenced pulmonary function testing showing that Joseph suffered functional pulmonary impairment.4 The trial court denied the motion to dismiss orally, but did not deny it by written order.

Union Carbide moved for reconsideration and the trial court conducted a hearing on that motion. In its motion and at [44]*44the hearing, Union Carbide reiterated its position that the suit should be dismissed because Chapter 90 required pulmonary-function testing and testing was neither performed on Joseph nor mentioned in a physician’s report. The Emmites informed the court that they were seeking an amended death certificate showing asbestosis as a cause of death. In light of the Emmites’ representations, the trial court left the record open for six weeks and indicated that Union Carbide’s motion would be granted if the death certificate was not amended during that time to reflect asbestosis as a cause of death.

Six weeks later, the Emmites again served Union Carbide with Dr. Britton’s report and asserted for the first time that the report complied with section 90.010(f)(1) — the “safety valve” provision of Chapter 90 which provides an alternative from the report standards in section 90.003 — even though the Emmites had declined to rely upon that section at the November hearing.5 The trial court held another hearing in January 2008. At that hearing the Emmites informed the court they were still awaiting the amended death certificate, but they had learned in discovery that Joseph had pulmonary function tests performed during his employment with Union Carbide and, using those pulmonary function testing results in conjunction with Dr. Britton’s report, they were now proceeding under the safety valve provision in section 90.010(f)(1). They also requested a full evidentiary hearing as required by section 90.010(g) for claimants proceeding under the safety valve provision. The court granted the Emmites’ request for an evidentiary hearing and also granted Union Carbide’s request to depose Dr. Suzanne McClure, the doctor who signed Joseph’s death certificate. The evi-dentiary hearing was deferred until after the deposition.

Dr. McClure was injured in an automobile accident and Union Carbide was unable to depose her until September 2009. After taking her deposition, Union Carbide renewed its motion to dismiss. The Em-mites responded by arguing that the renewed motion was untimely and Union Carbide waived its right to seek dismissal by engaging in discovery after the previous hearing. They also attached a report dated October 28, 2009, from Dr. Joseph Prince, a pulmonologist who treated Joseph just before he died. The Emmites asserted that Dr. Prince’s report complied with the safety valve requirements.

The trial court held a fourth hearing in November 2009 to address the renewed motion to dismiss. Following that hearing, but before the court ruled, the Emmites [45]*45filed an amended version of Dr. Prince’s report. In the amended report Dr.

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Bluebook (online)
438 S.W.3d 39, 57 Tex. Sup. Ct. J. 980, 2014 WL 2994437, 2014 Tex. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-carbide-corp-v-synatzske-tex-2014.