Amendment to Texas Asbestos and Silica Legislation that Allows for Dismissal of Inactive Docket - SIGNED BY GOVERNOR

As mentioned in earlier correspondence, on April 1, 2013 the Texas House Judiciary and Civil Jurisprudence Committee considered House Bill 1325, relating to the dismissal of unimpaired asbestos and silica cases pending before September 1, 2005, which are currently sitting on the inactive docket. Representative Doug Miller filed House Bill 1325, and presented a committee substitute to what he initially filed at the hearing. Representative Miller explained that the committee substitute was a compromise between plaintiffs’ attorneys and defense attorneys and that it required dismissal of all inactive docket cases sometime between September 1, 2014 and August 31, 2015. The initial bill provided for dismissal under a defendant’s motion, and through what is akin to a dismissal for want of prosecution. The Committee Substitute removes the defendant’s motion to dismiss procedure, and requires amendment of the current MDL Case Management Orders to implement a dismissal procedure. Beginning on September 1, 2014, that dismissal procedure would require dismissal, without prejudice, of all inactive cases pending on August 31, 2005 where the plaintiffs have not served a report that complies with the medical criteria set forth in Section 90.003 or 90.004 of the Texas Civil Practice and Remedies Code. This legislation requires dismissal of all such medically deficient cases by August 31, 2015. The dismissals continue to be without prejudice, but the language of the Committee Substitute differs from the initially filed bill in that the Committee Substitute implements vague language that states, with regard to re-filed actions, that “the re-filed action is to be treated for purposes of determining the applicable law as if the claimant’s action had never been dismissed, but instead, had remained pending until the claimant served a report that complied with either Section 90.003 or 90.004….” This continues to address some constitutional issues raised by plaintiff attorneys with regard to changes in the law such as proportionate responsibility, damage caps, and other matters that, but for dismissal, would not be an issue. However the law is silent as to prejudgment interest, which was arguably, albeit implicitly, addressed in the initial version of H.B. 1325 in that the initial version, re-filed actions were to be “considered filed on the date the dismissed action was filed.” The Bill has become law now with the governor’s signature. Therefore both the asbestos and silica MDL courts are required to enter a Case Management Order setting out procedures.