Plaintiffs file this consolidated response to motions to dismiss based on forum non conveniens and would respectfully show the Court as follows:

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Defendants General Electric Co. (“GE”) and Foster Wheeler Energy Corp. (“Foster Wheeler”) have asked this Court to dismiss the Plaintiff’s case based on forum non conveniens. In personal injury and wrongful death cases, motions to dismiss based on forum non conveniens are governed exclusively by Tex. Civ. Prac. & Rem. Code § 71.051. The applicable version of that statute imposes a burden of proving six specific requirements, but the Defendants have offered no evidence to meet their burden. Moreover, both the current and former versions of the statute prohibit dismissal if the claimant makes a prima facie showing that an act or omission that was a cause of injury occurred in Texas.


The Defendants Must Meet the Requirements of Section 71.051.

At the outset, the Court should recognize that these motions are governed exclusively by Tex. Civ. Prac. & Rem. Code § 71.051. In an attempt to confuse the issues and distract from its failure to comply with the statute, Foster Wheeler requests dismissal “under the common law doctrine of forum non conveniens” as well as the statute. Foster Wheeler Motion at ¶ 11. This request has no legal basis. In Dow Chem. Co. v. Alfaro, 786 S.W.2d 674 (Tex.1990), the supreme court held that the common law doctrine of forum non conveniens had been abolished by statute with respect to personal injury and wrongful death cases. In response to Alfaro, the Legislature enacted Tex. Civ. Prac. & Rem. Code § 71.051, which imposed “a procedural framework, as well as substantive elements that must be met, for a defendant to obtain a dismissal based on forum non conveniens. Section 71.051 now provides the forum non conveniens law in Texas governing all actions for personal injury or wrongful death.” Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118, 123 (Tex. App. – Fort Worth 2000, no pet.) (emphasis added).

The Applicable Version of Section 71.051 Requires the Defendants to Prove Six Statutory Requirements by a Preponderance of the Evidence.

GE asserts that the Court may dismiss an action after “considering” the six factors set out in section 71.051. GE Motion at 3. This is utterly incorrect. The current version of section 71.051 provides for “consideration” of the relevant factors, but that version of the statute is not applicable in this case. Section 71.051 was amended by article 3 of House Bill 4, which became effective September 1, 2003. See Act of June 11, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Sess. Law Serv. (Vernons), attached as Exhibit 1. The legislation expressly provides that cases filed before September 1, 2003, are not subject to the new provisions:

Except as otherwise provided in this section or by a specific provision in an article, this Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the change in law made by this Act, and that law is continued in effect for that purpose.

Id. at § 23.02(d) (emphasis added). Pursuant to section 23.02(a), the effective date of the bill is September 1, 2003. See id. at § 23.02(a). This case was filed on August 29, 2003. Consequently, it is governed by the version of Tex. Civ. Prac. & Rem. Code § 71.051 that existed prior to September 1, 2003.

Under the applicable version of the statute, the Defendants must “prove[] by a preponderance of the evidence that: (1) an alternative forum exists in which the claim or action may be tried; (2) the alternate forum provides an adequate remedy; (3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party; (4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff’s claim; (5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum; and (6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.” Tex. Civ. Prac. & Rem. Code § 71.051(b).

Mere assertions are not sufficient to meet the evidentiary requirements of section 71.051. The defendant has the burden “to prove by a preponderance of the evidence each of the six factors listed under section 71.051(b).” Tullis, 45 S.W.3d at 130 (emphasis in original). If a defendant does not provide evidence to support each factor, dismissal of the plaintiff’s claims is reversible error. Id. at 132-33 (reversing dismissal under section 71.051 because of the “total absence of evidence produced by Georgia-Pacific to support the factors required by section 71.051(b).”).

As in Tullis, in this case there is a “total absence of evidence” to support the factors required by section 71.051. The Defendants have made general allegations regarding the six statutory elements but have not supported their allegations with any evidence. Allegations or assertions made in pleadings do not constitute evidence. See, e.g., Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540, 545 (Tex.1971); Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App. – Houston [14th Dist.] 2001, pet. denied). In the absence of any evidence, the Defendants’ motions fail as a matter of law.

The Plaintiff Has Made a Prima Facie Showing That an Act or Omission that was a Cause of Injury Occurred in Texas.

The statute also provides that:

A court may not stay or dismiss a claim or action pursuant to Subsection (b) if a party opposing the motion under Subsection (b) alleges and makes a prima facie showing that an act or omission that was a proximate or producing cause of the injury or death occurred in this state. The prima facie showing need not be made by a preponderance of the evidence and shall be deemed to be satisfied if the party produces credible evidence in support of the pleading, which evidence need not be in admissible form and may include affidavits, deposition testimony, discovery responses, or other verified evidence.

Tex. Civ. Prac. & Rem. Code 71.051(f) (emphasis added). A prima facie case “represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” Berg v. AMF Inc., 29 S.W.3d 212, 219 (Tex. App. – Houston [14th Dist.] 2000, no pet.).

The attached affidavits of Mr. Klug’s co-workers, as well as the attached excerpts of Mr. Klug’s deposition testimony, confirm that he was exposed to asbestos from Unibestos pipe covering, See Affidavit of Leroy Gilley, attached as Exhibit 2; Affidavit of Gaston Lee, attached as Exhibit 3; Deposition of Rolland Klug, attached as Exhibit 4. Unibestos was manufactured in Texas, and between 1962 and 1964 was made exclusively in Texas. See _______________, attached as Exhibit 5.

Under Texas law, a “producing cause” is “an efficient, exciting, or contributing cause, which in a natural sequence, produced the injuries or damages complained of, if any.” Ford Motor Co. v. Cammack, 999 S.W.2d 1, 7 (Tex. App. – Houston [14th Dist.] 1998, pet. denied) (emphasis added); see also Tex. PJC 70.1. The pattern jury charge was drawn from Hartzell Propeller Co., Inc. v. Alexander, 485 S.W.2d 943, (Tex. Civ. App. 1972, writ ref’d n.r.e.), in which “producing cause” was defined as “an efficient, exciting, or contributing cause, which in a natural and continuous sequence, in connection with any other cause or causes produced the event complained of. There may be more than one producing cause of an event.” Id. at 946 (emphasis added).

It is well settled that when a person is exposed to asbestos from multiple products, each product may be considered a producing or proximate cause of injury. See, e.g., Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir. 1974) (“[T]he effect of exposure to asbestos dust is cumulative. . . . We think, therefore, that on the basis of strong circumstantial evidence the jury could find that each defendant was the cause in fact of some injury to Borel.”); Click v. Owens-Corning Fiberglas Corp., 899 S.W.2d 376, 377 (Tex. App. ‒ Houston [14th Dist.] 1995, no writ) (“It is difficult to determine exactly which exposure to asbestos is the cause of an asbestos-related cancer. Thus, appellants have met their burden of proof if they have some evidence that appellees supplied any of the asbestos to which George Click was exposed.”) (emphasis added) (citing Celotex Corp. v. Tate, 797 S.W.2d 197, 204 (Tex. App. – Corpus Christi 1990, no writ)).

The Plaintiff has made a prima facie showing that Mr. Klug’s disease was caused, in part, by exposure to asbestos-containing products manufactured in Texas. Texas is therefore an appropriate forum for this case. See General Refractories Co. v. Martin, 8 S.W.3d 818, 823 (Tex. App.-Beaumont 2000, pet. denied) (“It is undisputed that [the defendant] had a plant in Troup, Texas, that manufactured an asbestos-containing material. Appellees have alleged such products entered the stream of commerce and ultimately caused their injuries. Certainly, Texas has a manifest interest in adjudicating the dispute and protecting not only its own residents but also non-residents exposed to products manufactured in Texas and alleged to be unreasonably dangerous.”). In light of the evidence and the plain language of section 71.051(f), dismissal is not appropriate.


The Defendants have failed to comply with the applicable evidentiary requirements under section 71.051(b), and the prima facie showing of exposure to products manufactured in Texas precludes dismissal under section 71.051(f). The Plaintiff respectfully requests that this Court deny the motions to dismiss in their entirety.