On August 22, 2019 the First Court of Appeals, in an en-banc decision, affirmed orders issued by the Texas Silica MDL Pretrial Court dismissing the claims of 106 plaintiffs alleging personal injury through exposure to silica. In so doing, the Court of Appeals also held that the Texas impairment criteria applicable to silicosis lawsuits and the dismissal of those lawsuits for failing to comply with the impairment criterial was not unconstitutionally vague and was not unconstitutionally retroactive.
The Texas impairment criteria required that the Plaintiffs serve medical reports complying with Chapter 90’s impairment criteria or face dismissal. The Plaintiffs served their medical reports to attempt to avoid dismissal. MehaffyWeber coordinated with ten other defense firms the filing of objections to the Plaintiffs’ medical reports, and filed general objections and specific objections to the individual medical reports. MehaffyWeber also filed a Motion to Dismiss, seeking dismissal of all plaintiffs because their medical reports were not compliant with the Texas impairment criteria applicable to silicosis lawsuits. In response the Plaintiffs alleged Chapter 90 was unconstitutionally vague and unconstitutionally retroactive. The MDL Court held a hearing on the pending motions, and dismissed each individual Plaintiff’s lawsuit.
The Plaintiffs appealed the dismissal of their cases, and MehaffyWeber took lead on preparing the appellate brief on behalf of all defendants with vital input from major defense firms in the Texas State Silica and Asbestos MDL Pretrial Court. A panel of the First Court of Appeals initially held the Plaintiffs waived their constitutional challenges and affirmed the dismissal of their cases. The Plaintiffs unsuccessfully sought rehearing by the panel who authored the initial opinion, and then sought en-banc reconsideration.
The First District Court of Appeals granted the Plaintiff’s motion for en-banc reconsideration, addressed the merits of their constitutional claims, and unanimously held that Chapter 90’s application to their lawsuits which resulted in dismissal was not unconstitutionally vague, and that Chapter 90 was not unconstitutionally retroactive. In so doing, the Court of Appeals affirmed the dismissal of all 106 plaintiffs. This is a significant decision, as it answered constitutional questions created by the 2005 enactment of Chapter 90 of the Texas Civil Practice and Remedies Code and the 2013 amendment to the statute that allowed for dismissal of claims that do not satisfy the impairment criteria.