RESPONSE TO STATEMENT OF FACTS
In their highly argumentative Statement of Facts, the Relators misstate the central factual and scientific disputes in these cases. The Relators continue to suggest that the differences among asbestos fiber types cause “confusion” and that the Plaintiffs have ignored “significant differences” between fiber types. In fact, the Plaintiffs’ brief explains these differences beginning on the very first page, and each of the Plaintiffs’ experts distinguished among the fiber types. In discussing the difference between serpentines and amphiboles, the Relators actually cite the testimony of Dr. Ronald Dodson, an expert on asbestos fibers called by the Plaintiffs. The court charged with overseeing the asbestos multidistrict litigation (“MDL Court”) was not in any way confused about the relevant differences in fiber types. Nor has the scientific community as a whole been confused about the differences among fiber types. The relative potency of different asbestos fiber types in causing mesothelioma has been researched and analyzed in the worldwide scientific literature for decades. As discussed below, the relevant studies support the consensus that chryostile asbestos causes mesothelioma.
With virtually no factual support, the Relators assert that by the 1990s, “[l]eading scientists confirmed that chrysotile was not a likely cause of mesothelioma . . . .” The Relators quote a remark by Sir Richard Doll that “it is possible to argue” that the mesothelioma cases among workers exposed to chrysotile are attributable to “minute amounts of tremolite” in the chrysotile ore. The fact that it is “possible to argue” about a causal relationship is hardly a basis for excluding expert testimony as unreliable. Moreover, Dr. Doll readily acknowledges the ability of tremolite, a naturally occurring component of chrysotile ore, to cause mesothelioma. The tremolite content of the Relators’ products remains a subject of factual dispute, making it unclear whether an advisory opinion about “pure chrysotile” would even be dispositive of any issue before the MDL Court. These areas of disagreement simply underscore the fact that mandamus review of the MDL Court’s ruling is inappropriate at this point. The Relators’ broad pronouncements cannot gloss over the need for careful exploration of the relevant facts in these cases.
In any event, Dr. Doll was correct that reasonable minds can differ about the causal relationship between chrysotile asbestos and mesothelioma. Indeed, Dr. John Craighead – an expert witness called by the Relators – agreed that scientists using reliable methods and data had concluded that chrysotile asbestos is capable of causing mesothelioma in human beings. The consensus view is certainly that chrysotile asbestos itself is a cause of mesothelioma in human beings. The Relators dismiss the views of independent scientists as the product of a “multi-billion dollar asbestos litigation industry,” but this is nothing more than unsupported rhetoric. Neither the World Health Organization nor the American Cancer Society nor any of the other scientific panels discussed in the hearing are affiliated with asbestos litigation. The scientific consensus is not, as the Relators imagine, the result of some nefarious conspiracy. It simply reflects a reasoned analysis of peer-reviewed empirical research spanning several decades:
- The World Health Organization’s International Progamme on Chemical Safety (IPCS) published an exhaustive report on chrysotile asbestos in 1998. After analyzing data from more than 400 scientific articles, the IPCS concluded that “[c]ommercial grades of chrysotile have been associated with an increased risk of pneumoconiosis, lung cancer and mesothelioma in numerous epidemiological studies of exposed workers” and that “[e]xposure to chrysotile asbestos poses increased risks for asbestosis, lung cancer and mesothelioma in a dose-dependent manner.”
- An internationally recognized group of epidemiologists, pathologists, industrial hygienists and other experts on asbestos-related disease were invited to Helsinki, Finland, in 1997 to discuss criteria for the diagnosis and attribution of asbestos-related diseases. The consensus of the experts was that all types of asbestos fibers are capable of causing mesothelioma, with the amphibole fibers having “greater carcinogenic potency” than chrysotile.
- The World Trade Organization convened a panel of independent scientists to evaluate the hazards of chrysotile asbestos in 2000. Based on a review of multiple epidemiological studies, the scientific panel concluded that chrysotile asbestos was a cause of lung cancer, asbestosis and mesothelioma in humans.
- The Asbestos Bibliography published by the U.S. Department of Health and Human Services in 1997 explains that “both epidemiologic evidence and experimental confirmation indicate that chrysotile, amosite, and crocidolite asbestos are causative agents for mesothelioma.”
- The American Cancer Society’s publication on malignant mesothelioma, revised in December 2004, reiterates that “chrysotile fibers are associated with malignant mesotheliomas . . . .”
Against this backdrop of scientific consensus, the Relators filed global motions in limine, seeking the pretrial exclusion of any evidence that “chrysotile fibers themselves, regardless of the finished product involved, could cause mesothelioma.” On their face, the motions appear to seek advisory opinions that may or may not be relevant to particular cases, but the MDL Court overlooked this defect. The motions were carefully framed to preclude the consideration of potentially relevant evidence, such as the asbestos content of particular products or the pathological findings relevant to individual plaintiffs. In an effort to evaluate the Relators’ abstract requests, the MDL Court conducted a lengthy and expansive hearing. The Plaintiffs called several experts in epidemiology, biology and medicine, each of whom had spent the majority of their professional careers studying asbestos-related diseases.
In addition to Dr. Craighead, the Relators called two additional witnesses, neither of whom had any apparent expertise in the study of mesothelioma. Neither witness has ever published an article about mesothelioma, performed any research on mesothelioma or expressed any opinions about mesothelioma outside the confines of a courtroom. Dr. Timothy Lash, the Relators’ expert witness on epidemiology, admitted that the techniques advocated by his testimony were not generally accepted in the field of studying asbestos-related diseases. Dr. Lash further agreed that the studies cited by the Plaintiffs’ expert witnesses were following “the convention in the field” and that the lack of a relative risk calculation did not render the studies unreliable. Another expert witness for the Relators, Dr. Laura Green, also testified that the “relative risk model” is not “typically used” in studying mesothelioma.
The MDL Court heard evidence regarding empirical research spanning several decades, beginning with Dr. Irving Selikoff’s groundbreaking epidemiological studies of cohorts exposed predominantly to chrysotile. Dr. Selikoff himself observed that the increase in mesothelioma and other asbestos-related diseases was attributable in part to “the one asbestos fiber that was in regular use in insulation materials during the 1930s – chrysotile.” Since that time, empirical research has consistently supported the conclusion that chrysotile asbestos causes mesothelioma.
The causal relationship has been observed across several different cohorts of workers exposed to chrysotile. A study of plasterers reported a Proportionate Mortality Ratio (PMR) of 2.03 for mesothelioma deaths. A study of the mortality of 2,242 women in two chrysotile asbestos mining areas of the province of Quebec found seven “pleural cancers” (mesotheliomas). The authors calculated a Standard Mortality Ratio (SMR) of 7.63 at a 95% confidence interval of 3.06 to 15.73. Among 5,932 male employees of a plastics research facility that used chrysotile asbestos, a study found an SMR of 3.73, with a 95% confidence interval of 1.21 to 8.70.
For a number of reasons, the consistent associations between chrysotile exposure and mesothelioma cannot be attributed solely to random chance or to amphibole exposures. First, if mesothelioma were produced only by amphiboles, “one would expect large differences in the mesothelioma lung cancer ratio between populations with pure chrysotile exposure and those with extensive amphibole exposure.” In fact, a statistical analysis of more than forty epidemiological studies indicated that “[t]he ratio of mesothelioma to lung cancer is . . . the same, within statistical uncertainty, for exposures to 100% chrysotile, 97%+ chrysotile, 100% amosite, and mixtures of chrysotile, amosite, and crocidolite. Only 100% crocidolite exposures appear to have a greater ratio, about two to four times above that of predominantly chrysotile exposures.” Such results strongly support the conclusion that “much of the mesothelioma risk in populations with predominantly chrysotile exposures is due to chrysotile.” Nor does the empirical research support a conclusion that “contamination” by tremolite accounts for the observed increase in the incidence of mesothelioma.
Studies of lung tissue provide further information on the causal relationship. The presence of chrysotile in the lungs correlates with increased risk of mesothelioma, and the presence of mixed chrysotile and amphibole fibers “are associated with higher relative risks than either type of fiber alone.” As one textbook observed, there is “good evidence from lung burden studies . . . that chrysotile alone can cause mesothelioma.”
Finally, as the MDL Court explained in its Ruling, the causal association persists in studies of populations exposed predominantly or exclusively to chrysotile. Among other studies, the MDL Court discussed the 25-year longitudinal study published in the American Journal of Epidemiology by Dr. Yano and his colleagues, the study of chrysotile production workers in Italy published by Dr. Piolatto and his colleagues in the British Journal of Industrial Medicine, and the study of Zimbabwean chrysotile miners published by Drs. Cullen and Baloyi in the American Journal of Industrial Medicine.
Several witnesses testified about the concept of relative risk. In the context of mesothelioma, epidemiological studies generally do not use the relative risk methodology. Dr. Lash readily acknowledged that studies of mesothelioma generally do not calculate a relative risk or odds ratio because such calculations would often involve dividing by zero, a mathematical impossibility. A relative risk is calculated by dividing the incidence of disease in the exposed population by the incidence of disease in the unexposed population. Since the incidence of mesothelioma in any sample population not exposed to asbestos is effectively zero, a relative risk calculation does not yield particularly meaningful results. Dr. Lash agreed that Dr. Yano and the authors of the other studies were following “the convention in the field” and that the lack of a relative risk calculation did not render the studies scientifically unreliable. Another expert witness for the Relators, Dr. Laura Green, also testified that the “relative risk model” is not “typically used” in studying mesothelioma.
Nevertheless, in order to provide the MDL Court with a frame of reference, Dr. Lemen used standard methods to calculate what the relative risk would be for some of the studies, based on the generally accepted figure for the background incidence of mesothelioma. Dr. Lemen had performed similar calculations in a presentation at Harvard University a few months earlier, but he acknowledged that one of his calculations differed from a “crude computation” in the Harvard lecture. The MDL Court considered Dr. Lemen’s testimony as a whole and concluded that “while the underlying data is not free from question, I am convinced Dr. Lemen used [a] sound scientific basis for his calculations.”
Based on the evidence presented, the MDL Court declined to find that all general causation evidence was unreliable as a matter of law. On June 30, 2005, the MDL Court issued a written ruling denying the motions. More than a year after the ruling, the Relators requested that the MDL Court sign an additional written order and then filed a petition for writ of mandamus in the Houston Court of Appeals. That petition was denied on Sept. 19, 2006.
SUMMARY OF ARGUMENT
The essence of the Relators’ argument is that any deviation from the scientific terminology discussed in Havner constitutes a “clear abuse of discretion” justifying mandamus relief. This central proposition is so manifestly incorrect that the Relators cannot cite any case law to support it. Havner itself recognizes that “[w]e do not attempt to discuss all the multifaceted aspects of the scientific method and statistics, but focus on the principles that shed light on the particular facts and issues in this case.” The Court held that “[c]areful exploration and explication of what is reliable scientific methodology in a given context is necessary.” Havner describes “relative risk” as one way – and not necessarily the “most useful” way – to measure the strength of causal associations. The failure to use the terminology of “relative risk” does not render a scientific study intrinsically unreliable, and the MDL Court was correct to consider the scientific evidence on its merits.
Even if the Relators had identified any abuse of the trial court’s broad discretion, none of the requirements for mandamus relief have been satisfied. The consideration of pretrial evidentiary motions is a matter within the trial court’s discretion, and any errors can be addressed more fully and fairly on appeal. The mere fact that the issue arises in an MDL does not justify mandamus relief. If anything, an MDL Court should be entitled to broader discretion in deciding how and when to resolve issues in the cases entrusted to it. This Court should not exercise its mandamus authority to cut off the MDL Court’s continuing consideration of these issues.
THE MDL COURT FOLLOWED THE ANALYTICAL FRAMEWORK ADOPTED BY THIS COURT IN ROBINSON AND HAVNER.
A.Under Robinson and Havner, Trial Courts Have Broad Discretion in Evaluating the Admissibility of Expert Testimony.
Particularly at the pretrial stage, a trial court has “wide latitude in determining whether expert testimony is admissible.” The trial court “is responsible for making the preliminary determination of whether the proffered testimony” is reliable. This Court has expressly recognized the need for a “flexible inquiry” into the reliability of expert testimony:
We emphasize that the factors mentioned above are non-exclusive. Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case.
The trial court’s decision on the admissibility of expert testimony is reviewed under an abuse of discretion standard. The test is therefore “not whether, ‘in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action.’ A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment.’”
Rulings “on the reliability of proffered expert testimony are necessarily case specific.” Consequently, the trial court “must have the same kind of latitude in deciding how to test an expert’s reliability . . . as it enjoys when it decides whether or not that expert’s relevant testimony is reliable. . . .That [abuse of discretion] standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion.”
The factors identified in Robinson encourage trial courts to focus on the application and acceptance of scientific methods outside the legal context. These factors include “whether the theory has been subjected to peer review and/or publication,” “whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community,” and “the non-judicial uses which have been made of the theory or technique.” Under Robinson, an expert’s testimony must be supported by “a well-considered consensus of at least a substantial segment of the scientific, technical, or specialized community to which he belongs.”
In Havner, this Court reaffirmed Robinson’s requirement that “evidence of causation from whatever source must be scientifically reliable.” In determining what constituted “sound methodology,” the Court looked to the same sources of information considered by the MDL Court in this proceeding: the opinions of the “scientific community,” the published literature, and the standards used by government agencies.
The Court did not “attempt to discuss all the multifaceted aspects of the scientific method and statistics” but did analyze “principles that shed light on the particular facts and issues in this case.” The Court expressly disavowed any “bright line” or “litmus test” for proving causation and cautioned that “[c]areful exploration and explication of what is reliable scientific methodology in a given context is necessary.” The Court expressly did not decide “whether epidemiological evidence with a relative risk less than 2.0, coupled with other credible and reliable evidence, may be legally sufficient to support causation.” The Court emphasized that “[c]ourts should allow a party, plaintiff or defendant, to present the best available evidence, assuming it passes muster under Robinson . . . .”
In a comment developed in collaboration with the National Academy of Sciences, the final draft of the new Restatement (Third) of Torts endorsed such a flexible approach, observing that courts “should be cautious about adopting specific ‘scientific’ principles, taken out of context, to formulate bright-line legal rules or conclude that reasonable minds cannot differ about factual causation.” Although “one scientist or group of scientists comes to one conclusion about factual causation, they recognize that another group that comes to a contrary conclusion might still be ‘reasonable.’”
Given the trial court’s broad discretion, it is not surprising that this Court has never granted mandamus review as to the admissibility of expert testimony. The MDL Court’s handling of the Relators’ motions certainly does not justify such extraordinary relief.
B.The MDL Court Applied the Correct Legal Standard for Admissibility.
The Relators assert that a material difference exists between “scientific reliability” as defined by scientists and the “legal requirements for reliability” under Rule 702. Specifically, the Relators argue that “‘scientific probability’ as purportedly defined by at least a respectable portion of the scientific community is not the proper legal test for admissibility.” The Relators are demonstrably incorrect.
The central insight of Robinson and subsequent cases is that “reliability” has the same meaning both inside and outside the courtroom. If expert analysis is reliable outside the courtroom, then it is “reliable for purposes of . . . trial.” The term “scientific knowledge” as used in Rule 702 refers to knowledge that is “grounded ‘in the methods and procedures of science.’” Rule 702 therefore incorporates scientific standards, and the Robinson inquiry focuses on the application and acceptance of such standards outside the judicial context. To be admissible, an expert’s testimony must be supported by “a well-considered consensus of at least a substantial segment of the scientific, technical, or specialized community to which he belongs.”
Citing Robinson and Havner, the MDL Court described the standard as one of “scientific probability as applied in peer-reviewed mainstream science through accepted methodology.” This standard is well established in Texas law. Reasonable probability is also the threshold standard required by statute in mesothelioma cases. The consideration of “peer-reviewed mainstream science” and “accepted methodology” are taken almost verbatim from Robinson.
The Relators claim that, regardless of whether a given scientific methodology is sound, this Court has made a per se “policy determination” that certain epidemiological studies may not be admitted as evidence. The portion of Havner quoted by the Relators does not actually impose such a bright-line evidentiary requirement, nor would such a blanket requirement make sense. As discussed above, Havner expressly acknowledged that “[c]areful exploration and explication of what is reliable scientific methodology in a given context is necessary.” Studies using different methods or terminology may fully comport with sound scientific methodology in a given context. When considering the preliminary question of admissibility, it is completely appropriate for a trial court to look to “peer-reviewed mainstream science” and “accepted methodology” within the relevant field. The Relators’ criticism of the MDL Court’s legal analysis is unfounded.
C.The Proffered Evidence Was Based on Reliable Scientific Methods.
The Relators focus primarily on the fact that most studies of mesothelioma do not calculate a “relative risk.” As explained by every expert who testified during the hearing, epidemiological studies of mesothelioma generally do not follow a relative risk model. This fact has nothing to do with fiber type. Virtually none of the epidemiological studies of mesothelioma follow a relative risk model, including those involving primary exposure to amphiboles. Yet even the Relators are not willing to argue that all studies of mesothelioma should be deemed unreliable.
The Realtors’ expert witness, Dr. Lash, readily acknowledged that studies of mesothelioma generally do not calculate a relative risk or odds ratio because such calculations would often involve dividing by zero, a mathematical impossibility. He agreed that the authors were following “the convention in the field” and that the lack of a relative risk calculation did not render the studies unreliable. The Relators are asking this Court to depart dramatically and unnecessarily from sound scientific methodology.
The Relators also assert that the published studies must be disregarded because of potential confounding factors. The Relators argue that epidemiological studies are unreliable unless they apply techniques such as stratification and multivariate analysis. The Relators do not refer to any peer-reviewed scientific literature for this proposition. Dr. Lash, the Relators’ expert witness on epidemiology, admitted that the techniques discussed in his testimony were not generally used in the epidemiology of asbestos-related diseases.
In lieu of scientific literature, the Relators cite the Reference Manual on Scientific Evidence’s Reference Guide on Epidemiology (“Reference Guide”), which simply describes the techniques that can be used to address confounding factors in certain contexts. On the preceding page, the Reference Guide expressly cautions against using “the mere possibility of uncontrolled confounding . . . to call into question the results of a study. This was certainly the strategy of those seeking . . . to undermine the implications of the studies persuasively linking cigarette smoking to lung cancer.”
In this proceeding, the Relators’ specific claims of “confounding factors” rest on a highly questionable factual foundation. For example, the Relators claim that “evidence introduced at the Chrysotile Hearing established” that participants in Dr. Yano’s study were exposed to amphibole fibers. This “evidence” consisted of a personal e-mail to an attorney for Georgia-Pacific, purporting to be from Dr. Yano. The attorney then offered to give his “interpretation” of the e-mail, at which point the MDL Court reminded him that he was not the “one under oath.” The Relators cannot seriously contend that the MDL Court was required to accept this evidence at face value.
With respect to the Camus study, the Relators claim that Dr. Lemen “admitted that follow-up studies by Camus in 2002 confirmed that only women exposed to high levels of amphiboles contracted mesothelioma.” The Relators cite to two different portions of the record, neither of which contains any testimony from Dr. Lemen at all. Moreover, neither of the witnesses testified that the follow-up studies “confirmed that only women exposed to high levels of amphiboles contracted mesothelioma.” One of the Relators’ attorneys appeared to make such an assertion, but the statements of attorneys are not evidence.
If anything, the Relators’ dubious factual statements simply demonstrate that mandamus relief is inappropriate. A trial court’s resolution of such fact-intensive issues should be reviewed on appeal under ordinary standards of legal and factual sufficiency. Mandamus relief is an unwieldy vehicle for such analysis.
Nor did the court err in considering non-epidemiological evidence, including tissue burden studies. Scientists outside the courtroom regularly rely on such studies in assessing causation. As one textbook observed, there is “good evidence from lung burden studies . . . that chrysotile alone can cause mesothelioma.” The Relators seize on a partial quotation from Dr. Dodson’s testimony, in which he commented that some of the studies he was working on were “not ready for prime time.” This comment was certainly not directed at tissue burden studies in general, which have been published in the scientific literature for decades.
Courts have long recognized that tissue studies may provide reliable proof of causation “[a]s long as the basic methodology . . . is sound . . . .” Havner stressed that courts “must make a determination of reliability from all the evidence.” The MDL Court’s consideration of such evidence in this proceeding does not constitute an abuse of its discretion.
THE RELATORS HAVE FAILED TO SATISFY ESSENTIAL PREREQUISITES FOR MANDAMUS RELIEF.
A.As a Matter of Law, the Relators Were Not Entitled to the Specific Relief Sought in the Trial Court.
The Relators’ critique of the MDL Court’s legal reasoning is deeply flawed, but the argument for mandamus relief fails on a much more basic level. Parties seeking mandamus relief must show that they were “clearly entitled to the specific relief they sought” in the trial court. If the trial court was under no obligation to grant the specific relief sought, mandamus relief is not available even if the trial court “gives an incorrect legal reason for its decision.”
In this case, the Relators’ burden is to show that the MDL Court was required to grant their global pretrial motion to exclude all general causation evidence. The Relators cannot make such a showing.. In the first place, the Relators have not demonstrated that a trial court is required to determine general causation as a separate issue. The Relators cite a recent slip opinion in a Fifth Circuit case, holding that “[e]vidence concerning specific causation in toxic tort cases is admissible only as a follow-up to admissible general-causation evidence.” No other legal authority is offered for this proposition, and it directly contradicts established Texas law.
Under Texas law, trial courts have broad discretion in resolving challenges to expert testimony. This discretion extends “as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion.” Trial courts have discretion over “whether, when, and how to hold a Robinson hearing.”
Neither Havner nor any other Texas case has ever required that a trial court must consider challenges to general causation evidence separately. The Court emphasized that a trial court should consider “all the evidence” in evaluating reliability. The concepts of “general causation” and “specific causation” are “not ‘elements’ of a plaintiff’s cause of action, and in some cases may not require separate proof. So long as the plaintiff introduces admissible and sufficient evidence of factual causation the burden of production is satisfied. . . . These categories function as devices to organize a court’s analysis, not as formal elements of the cause of action.” The practice of “splitting causation into general and specific components” is not necessarily the most appropriate or efficient way to address causation issues.
In Coastal Tankships, U.S.A., Inc. v. Anderson, the court recognized that “depending on the circumstances and the proof available to a plaintiff, similar evidence, if properly adapted, may possibly be used to prove both general and specific causation.” In his concurring opinion, Justice Brister quite correctly observed that “the term ‘toxic torts’ covers a lot of ground – from asbestos and breast implants to refinery explosions, vaccinations, and food poisoning. There is a logical appeal to requiring every plaintiff to prove that an alleged causation chain can actually occur. But if asbestos fibers are directly found in a plaintiff’s lungs, or thirty people eating at the same restaurant get sick at once, I hesitate to hold that each of them must prove ‘general causation’ simply because their tort implicates a toxin.”
Even if the MDL Court were required to consider general causation evidence separately, the MDL Court was under no obligation to grant motions to exclude the evidence on a global basis. No court, MDL or otherwise, is obliged to make binding determinations without consideration of all the relevant facts and legal issues. The MDL rules do not require a court to make global rulings on evidentiary issues. Like a class action, an MDL is merely a procedural device designed to “ensure the expeditious resolution of each case and the just and efficient conduct of the litigation as a whole.” Specifically, an MDL court is not legally required to make global rulings if it does not consider such rulings appropriate. Such procedural devices may not be construed to enlarge or diminish any substantive rights:
Although a goal of our system is to resolve lawsuits with ‘great expedition and dispatch and at the least expense,’ the supreme objective of the courts is ‘to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.’ This means that ‘convenience and economy must yield to a paramount concern for a fair and impartial trial’ And basic to the right to a fair trial – indeed, basic to the very essence of the adversarial process – is that each party have the opportunity to adequately and vigorously present any material claims and defenses.
In the context of asbestos litigation, this Court has cautioned that the “systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plaintiff’s – and defendant’s – cause not be lost in the shadow of a towering mass litigation.”
The Relators argue that the denial of their global motions represented a finding that “the entirety of Plaintiffs’ testimony and evidence” was “admissible without any apparent exception or limitation.” This is not a remotely accurate characterization of the MDL Court’s actual ruling. It is well settled that the denial of a pretrial evidentiary motion is not a ruling on the evidence, much less a ruling that the evidence is admissible without limitation. The Relators remain free to seek limitations on evidence in appropriate cases. The MDL Court has made it clear that more specific objections may be raised at pretrial hearings in individual cases in its capacity as “gatekeeper.” The Relators have not made any showing that they were “clearly entitled” to the specific relief that they chose to seek. Without such a showing, mandamus relief is not available.
B.The Relators Failed to Exercise Any Diligence in Seeking Review of the MDL Court’s Pretrial Evidentiary Ruling.
Even assuming that the MDL Court’s initial evidentiary ruling was properly subject to mandamus review, the Relators have failed to offer any reason for their delay in seeking such relief. Although mandamus is not an equitable remedy, “its issuance is largely controlled by equitable principles. One such principle is that ‘[e]quity aids the diligent and not those who slumber on their rights.’” This Court “need not afford mandamus relief to a dilatory party even if an opposing party does not assert lack of diligence as a ground for denying relief.”
The Relators are challenging an evidentiary ruling made by the MDL Court nearly two years ago. The letter ruling, issued on June 30, 2005, informed the Relators that their global motion had been denied. The Relators took no further action until the following year, when they submitted a proposed order reiterating the MDL Court’s prior decision. After this order was signed, in May 2006, the Relators belatedly sought mandamus review of the MDL Court’s 2005 ruling in the Houston Court of Appeals. The Relators have never offered a colorable reason for such delay.
The Relators could certainly have sought mandamus review of the MDL Court’s written ruling in June 2005. If “a court’s order is adequately reflected in the reporter’s record, a formal written order is not essential to obtaining mandamus relief.” A trial court may make rulings “either by spoken word or signed memorandum, which decides the issues upon which the ruling is made.” In this case, the MDL Court announced its decision formally in writing more than a year ago. That written decision, quoted extensively by the Relators, is the subject of this mandamus proceeding. The Relators should have exercised some minimal degree of diligence in seeking mandamus review of that ruling.
Mandamus is “only available in limited circumstances ‘involving manifest and urgent necessity . . . .’” The Relators’ extraordinary delay in securing an order from the MDL Court precludes any finding of “manifest and urgent necessity” in this proceeding. In the absence of any credible urgency, it is perfectly appropriate to require the Relators to pursue remedy by appeal rather than by mandamus.
C.The Relators Have an Adequate Remedy by Appeal.
Mandamus is “intended to be an extraordinary remedy” that is not available “for grievances that may be addressed by other remedies.’” Mandamus review is therefore available only if the remedy by appeal is inadequate, and “[a]n appellate remedy is not inadequate merely because the party may incur more expense and delay than in obtaining a writ.” Mandamus “is justified only when parties stand to lose their substantial rights.” As discussed above, the Relators have no cognizable “right” to a global resolution of their evidentiary objections. If and when allegedly inadmissible evidence is introduced and admitted, they will have a right to seek appellate review. The MDL Court’s pretrial ruling does not threaten those rights in any way.
This Court has consistently limited mandamus review to cases in which appeal cannot afford a meaningful remedy. For example, in In re Prudential Insurance Company of America, the Court held that an appeal could not remedy a trial court’s refusal to enforce a contractual waiver of jury trial, because the trial itself violated the party’s contractual rights. The Court explained that the issue “eludes answer by appeal. In no real sense can the trial court’s denial of Prudential’s contractual right to have the Secchis waive a jury ever be rectified on appeal. . . . Even if Prudential could somehow obtain reversal based on the denial of its contractual right, it would already have lost a part of it by having been subject to the procedure it agreed to waive.”
CSR Ltd. v. Link involved a similar situation, in which the party seeking mandamus faced the loss of substantial rights. The CSR case involved the “exercise of personal jurisdiction over a foreign corporation by Texas courts” in asbestos litigation. The issue implicated the party’s rights under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and “comity in foreign affairs.” Under the circumstances of that case, the Court held that “[b]ecause of the size and complexity of the asbestos litigation, the most prudent use of judicial resources in this case is to permit a preliminary resolution of the fundamental issue of personal jurisdiction by writ of mandamus.” The Court emphasized that “we do not relax or retreat from the requirement that a relator must show an inadequate remedy by appeal.” This Court does not apply an “asbestos exception” to the otherwise applicable requirements of mandamus review.
In these cases, the Relators will have an opportunity to seek appellate review under what is essentially a de novo standard:
Under Robinson and Havner, a defendant has two bites at the Daubert apple. He can and should object to the proffer of the evidence at trial. If the trial court excludes the evidence, then the reviewing court views the trial court’s decision by the lenient abuse of discretion standard. However, if the trial court overrules the defendant’s objection and admits the evidence, then the defendant may seek review of the trial court’s decision in a sufficiency of the evidence point of error to an appellate court. Further, under the sufficiency of the evidence standard, the appellate court looks to the plaintiff’s evidence in an almost de novo standard . . . .
The Relators never directly address the adequacy of their appellate remedy but suggest that appellate review is inadequate because the MDL Court’s ruling will purportedly “inject reversible error into hundreds of pending MDL cases . . . .” The Relators have not offered any factual substantiation for this claim. To this day, the Relators have refused to identify how many individual plaintiffs would be affected by their motions. In the absence of any such showing, the Relators’ speculations cannot justify mandamus relief.
The Relators also contend that the MDL Court’s ruling “has been widely circulated, and is being used as the basis for argument on general causation in other contexts and venues.” If true, this would be an argument against mandamus review. If the MDL Court’s reasoning is being considered in other venues, the opportunities for appellate review of these issues will be multiplied. This makes it even less likely that the issues raised by the Relators will “elude answer by appeal.”
CONCLUSION AND PRAYER
The Relators have failed to identify any genuine basis for mandamus relief in this proceeding. The Plaintiffs respectfully request that this Court deny the Petition for Writ of Mandamus.
- ↑ Brief on the Merits of Relators Garlock Sealing Technologies LLC and Georgia-Pacific LLC (“Br.”) at 3 n.7.
- ↑ Plaintiffs’ Consolidated Response to All Motions to Exclude General Causation Opinion Testimony that Chrysotile Asbestos Can Cause Mesothelioma (“Consolidated Response”), Pet. App. Tab 7.
- ↑ See Br. at 3 n.6.
- ↑ See Letter Ruling dated June 30, 2005 (“Ruling”), Pet. App. Tab 3, at 4 (explaining differences between chrysotile and amphibole asbestos fibers).
- ↑ Br. at 5.
- ↑ Br. at 5 n.19.
- ↑ See Consolidated Response, supra, at 30; Plaintiffs’ Exhibits 18, 72-75.
- ↑ See RR3, p. 253; see also id. at 217 (agreeing that “reasonable minds among qualified experts can and do disagree about whether chrysotile fibers themselves cause mesothelioma in humans.”).
- ↑ Br. at 5.
- ↑ World Health Organization, Environmental Health Criteria 203: Chrysotile Asbestos (1998) (“Environmental Health Criteria 203”), attached as Exhibit 11 to Consolidated Response, at ¶¶ 1.6, 10. Many of the relevant exhibits were attached to the Plaintiffs’ Consolidated Response, which was admitted into evidence as Plaintiffs’ Exhibit 1. For ease of reference, these exhibits will hereinafter be cited as “Pl. Ex. 1-1,” “Pl. Ex. 1-2,” and so on.
- ↑ Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, Scand. J. Work Envtl. Health 23:311 (1997) (“Helsinki Criteria”), Pl. Ex. 1-9, at 313.
- ↑ World Trade Organization, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Panel (Sept. 18, 2000), Pl. Ex. 1-12.
- ↑ U.S. Dep’t of Health and Human Services, Asbestos Bibliography (Sept. 1997), Pl. Ex. 1-17, at 86.
- ↑ American Cancer Society, Detailed Guide: Malignant Mesothelioma (Dec. 21, 2004), Pl. Ex. 1-10.
- ↑ Br. at 9.
- ↑ To this day, the Relators have refused to identify the individual plaintiffs who would be bound by their motions. The Relators have identified the “Real Parties in Interest” as all “[p]laintiffs alleging mesothelioma” in the MDL. The Relators have served their mandamus pleadings on a total of two law firms, who do not represent all of the plaintiffs before the MDL. The Relators appear to have made no effort of any kind to identify or notify the individual plaintiffs who would be affected by this mandamus proceeding.
- ↑ See Br. at 9-10.
- ↑ RR 8:135, 256-57.
- ↑ Id. at 145; 231-32.
- ↑ RR9, p. 163; see also RR4, pp. 34-41, 67-69 (testimony of Dr. Lemen, agreeing that the relative risk model is not generally used in studies of mesothelioma).
- ↑ RR2, p. 139.
- ↑ Pl. Ex. 1-31.
- ↑ Hodgson et al., Mesothelioma Mortality in Britain: Patterns by Birth Cohort and Occupation, Ann. Occup. Hyg. 41(Supp. 1):129-133 (1997), Pl. Ex. 1-33; see also Coggon et al., Differences in Occupational Mortality from Pleural Cancer, Peritoneal Cancer, and Asbestosis, Occup. & Envtl. Med. 52:775-777 (1995), Pl. Ex.1-34 (reporting PMR of 2.07 for pleural cancers).
- ↑ Camus et al., Nonoccupational Exposure to Chrysotile Asbestos and The Risk of Lung Cancer, New England J. Med. 338(22):1565-1571 (1998), Pl. Ex.1-37.
- ↑ Dell & Teta, Mortality Among Workers at a Plastics Manufacturing and Research and Development Facility: 1946-1988, Am. J. Indus. Med. 28:373-384 (1995), Pl. Ex. 1-40.
- ↑ Landrigan et al., The Hazards of Chrysotile Asbestos: A Critical Review, Indus. Health 37:271-280 (1999), Pl. Ex. 1-6A , at 275.
- ↑ Id.
- ↑ Id.; see also Nicholson, Comparative Dose-Response Relationships of Asbestos Fiber Types: Magnitudes and Uncertainties, Ann N.Y. Acad. Sci 643:74-84 (1991), Pl. Ex. 1-43.
- ↑ See RR4, pp. 119-20.
- ↑ RR4, pp. 117-18.
- ↑ Malignant Mesothelioma (Henderson et al., eds. 1992) 230, Pl. Ex. 1-64.
- ↑ See Ruling at 5-6.
- ↑ Yano et al., Cancer Mortality Among Workers Exposed to Amphibole-Free Chrysotile Asbestos, Am. J. Epidemiology 154:538-43 (2001), Pl. Ex. 1-36.
- ↑ Piolatto et al., An Update of Cancer Mortality Among Chrysotile Asbestos Miners in Balangero, Northern Italy, Br. J. Indus. Med. 47:810-814 (1990), Pl. Ex. 1-38.
- ↑ Cullen & Baloyi, Chrysotile Asbestos and Health in Zimbabwe: I. Analysis of Miners and Millers Compensated for Asbestos-related Diseases Since Independence, Am. J. Indus. Med. 19:161-169 (1991), Pl. Ex. 1-39.
- ↑ See Environmental Health Criteria 203, supra.
- ↑ See RR8, pp. 144-48; 230-31.
- ↑ Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 722 (Tex. 1996).
- ↑ Id. at 145; 231-32.
- ↑ RR9, p. 163; see also RR4, pp. 34-41, 67-69 (testimony of Dr. Lemen, agreeing that the relative risk model is not generally used in studies of mesothelioma).
- ↑ See RR4, pp. 70-80, 120-25, 128-29, 132-35.
- ↑ RR5, p. 157.
- ↑ Ruling at 6.
- ↑ Havner, 953 S.W.2d at 721.
- ↑ Id. at 719.
- ↑ See id. at 721.
- ↑ Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App. – Houston [1st Dist.] 2002, pet. denied).
- ↑ E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).
- ↑ Id. at 557.
- ↑ Id. at 558 (citations omitted).
- ↑ Coastal Tankships U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 599 n.14. (Tex. App. – Houston [1st Dist.] 2002, pet. denied).
- ↑ Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App. – Houston [1st Dist.] 2002, no pet.) (emphasis in original) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999)).
- ↑ Robinson, 923 S.W.2d at 557.
- ↑ Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 913 (Tex. 2004) (Hecht, J., concurring).
- ↑ Id. at 719.
- ↑ Id. at 719-20.
- ↑ Havner, 953 S.W.2d at 721.
- ↑ Id. at 718-19.
- ↑ Id. at 719.
- ↑ Id. at 720.
- ↑ Restatement (Third) of Torts: Liability for Physical Harm (hereinafter “Restatement (Third)”) §28, cmt. c (“Toxic Substances and Disease”) (Final Draft No. 1, April 6, 2005).
- ↑ Id.
- ↑ Br. at 39.
- ↑ Id.
- ↑ Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 262 (Tex. 2004) (Hecht, J., concurring).
- ↑ Id.
- ↑ Robinson, 923 S.W.2d at 557 (citations omitted).
- ↑ Id.
- ↑ Volkswagen, 159 S.W.3d at 913 (Hecht, J., concurring).
- ↑ Ruling at 2.
- ↑ See, e.g., Schaefer v. Texas Emp. Ins. Ass’n, 612 S.W.2d 199, 202 (Tex. 1980) (expert testimony must be based on “reasonable probability”); Havner, 953 S.W.2d at 712; Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 37 (Tex. App. – Houston [1st Dist.] 2004, pet. denied) (explaining than an expert’s opinion must “demonstrate scientific indicia that evidences reasonable medical probability before the opinion can be accorded evidentiary value”).
- ↑ Tex. Civ. Prac. & Rem. Code § 90.003(a)(1)(B).
- ↑ Br. at 40.
- ↑ Id. at 718-19.
- ↑ See Environmental Health Criteria 203, supra.
- ↑ See RR8, pp. 144-48; 230-31.
- ↑ Id. at 145; 231-32; see also RR9, p. 163 (testimony of defense expert Dr. Laura Green); RR4, pp. 34-41, 67-69 (testimony of Dr. Lemen).
- ↑ Br. at 32-36.
- ↑ Br. at 33.
- ↑ RR 8:135, 256-57.
- ↑ Reference Guide, supra, at 372. The lead author of the Reference Guide, Professor Michael Green, submitted an amicus brief to the MDL Court, explaining that the Relators had misinterpreted basic principles of epidemiology.
- ↑ Br. at 34.
- ↑ RR5, p. 24.
- ↑ Id. at 25.
- ↑ Br. at 38 (citing RR5, pp. 117-18, 246-53).
- ↑ See In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (“A trial court’s determination of a factual issue is entitled to deference in a mandamus proceeding and should not be set aside unless it is clear from the record that only one decision could have been reached.”).
- ↑ See, e.g., Helsinki Criteria, supra, at 313.
- ↑ Malignant Mesothelioma , supra, at 230.
- ↑ Br. at 14, 42 (quoting RR6, p. 169).
- ↑ See, e.g., Suzuki & Kohyama, Translocation of Inhaled Asbestos Fibers from the Lung to Other Tissues, Am. J. Indus. Med. 19:701-704 (1991), Pl. Ex. 1-65; Kohyama & Suzuki, Analysis of Asbestos Fibers in Lung Parenchyma, Pleural Plaques, and Mesothelioma Tissues of North American Insulation Workers, Ann. N.y. Acad. Sci. 643:27-52 (1991), Pl. Ex. 1-66; Sebastien et al., Asbestos Retention in Human Respiratory Tissues: Comparative Measurements in Lung Parenchyma and in Parietal Pleura, IARC Sci. Pub. 30:237-246 (1980), Pl. Ex.1-67.
- ↑ Pick v. Am. Med. Sys., Inc., 958 F.Supp. 1151, 1158 (E.D. La. 1997) (citations omitted).
- ↑ Havner, 953 S.W.2d at 720 (emphasis added).
- ↑ In re Union Carbide Corp., 145 S.W.3d 805, 807 (Tex. App. – Houston [14th Dist.] 2004, orig. proceeding) (emphasis added).
- ↑ Luxenberg v. Marshall, 835 S.W.2d 136, 141 (Tex. App. – Dallas 1992, orig. proceeding); see also In re ExxonMobil Corp., 97 S.W.3d 353, 358 n.5 (Tex. App. – Houston [14th Dist.] 2003, orig. proceeding) (“[I]n a mandamus proceeding, the appellate court must focus on the result reached by the trial court rather than the reasons stated in the order.”).
- ↑ Br. at 10 n.41.
- ↑ Robinson, 923 S.W.2d at 556; Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App. – Houston [1st Dist.] 2002, pet. denied).
- ↑ Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App. – Houston [1st Dist.] 2002, no pet.) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999)).
- ↑ Id.
- ↑ See Havner, 953 S.W.2d at 714 (explaining that “[s]ometimes, causation in toxic tort cases is discussed in terms of general and specific causation.”).
- ↑ Id. at 720.
- ↑ Restatement (Third) §28 cmt. c.
- ↑ Southwestern Ref’g Co., Inc. v. Bernal, 22 S.W.3d 425, 440 (Tex. 2000) (Baker, J., concurring).
- ↑ Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 n.21 (Tex. App. – Houston [1st Dist.] 2002, pet. denied).
- ↑ Id. at 617.
- ↑ Tex. R. Jud. Admin. 13.6(c).
- ↑ Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002) (citations omitted).
- ↑ In re Ethyl Corp., 975 S.W.2d 606, 613 (Tex. 1998) (addressing consolidation of asbestos trials).
- ↑ Br. at 16.
- ↑ Wilkins v. Royal Indem. Co., 592 S.W.2d 64, 66 (Tex. Civ. App. – Tyler 1979, no writ) (“The granting or overruling of a motion in limine is not a ruling on the evidence and, therefore, cannot be error.”).
- ↑ RR2, p. 92.
- ↑ In re Xeller, 6 S.W.3d 618, 624 (Tex. App. – Houston [14th Dist.] 1999, orig. proceeding) (citations omitted); see also Rivercenter Assoc. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993).
- ↑ In re Users Sys. Serv., Inc., 22 S.W.3d 331, 337 (Tex. 1999).
- ↑ Ruling at 10.
- ↑ In re Vernor, 94 S.W.3d 201, 207 n.8 (Tex. App. – Austin 2002, orig. proceeding); see also Davenport v. Garcia, 837 S.W.2d 73 (Tex. 1992) (conditionally granting writ of mandamus to vacate trial court’s oral order); In re Bledsoe, 41 S.W.3d 807, 811-12 (Tex. App. – Fort Worth 2001, orig. proceeding) (oral ruling made on the record “is properly subject to mandamus review.”); In re Perritt, 973 S.W.2d 776, 779-80 (Tex. App. – Texarkana 1998, orig. proceeding) (explaining that under current version of Tex. R. App. P. 52.3, “it seems clear that if a court’s ruling is adequately shown by the reporter’s record, then a formal written order is now unnecessary”); Tex. R. App. P. 52.3(j)(1)(A) (requiring party to submit copy of order or “any other document showing the matter complained of”).
- ↑ Keim v. Anderson, 943 S.W.2d 938, 942 (Tex. App. – El Paso 1997, no writ); see also Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex. 1982) (“A judgment is in fact rendered whenever the trial judge officially announces his decision in open court.”).
- ↑ See, e.g., In re Little, 998 S.W.2d 287, 290 (Tex. App. – Houston [1st Dist.] 1999, orig. proceeding) (mandamus relief was barred when party waited six months from the date of trial court’s letter ruling); Furr’s Supermarkets, Inc. v. Mulanax, 897 S.W.2d 442, 443 (Tex. App. – El Paso 1995, orig. proceeding) (mandamus relief was barred when a party waited until four months after the trial court’s oral discovery ruling and one month after written order).
- ↑ In re Ostrofsky, 112 S.W.3d 925, 928 (Tex. App. – Houston [14th Dist.] 2003, orig. proceeding) (quoting Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989)).
- ↑ Id.
- ↑ Id.
- ↑ Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992).
- ↑ 148 S.W.3d 124 (Tex. 2004).
- ↑ Id. at 138.
- ↑ 925 S.W.2d 591 (Tex. 1996).
- ↑ Id. at 593.
- ↑ Id. at 594-96.
- ↑ Id. at 597 (emphasis added).
- ↑ CSR Ltd., 925 S.W.2d at 597.
- ↑ 3M v. Atterbury, 978 S.W.2d at 192.
- ↑ Br. at 16-17.
- ↑ See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (a party must provide this Court “with a sufficient record to establish [its] right to mandamus relief.”).
- ↑ Br. at 19.