In re Kansas City Southern Railway Company (2011)

Our plain-English summary of In re Kansas City Southern Railway Company (Texas Court of Appeals, April 28, 2011).

Four railroad employees, Nathaniel Dinkins, Vernon Brooks, Earnest Henderson and Melvin Goines, sued the Kansas City Southern Railway under the Federal Employers' Liability Act. They alleged injury from exposure to harmful substances, including dusts, fumes and vapors. The railway moved to dismiss under section 90.007 of the Texas Civil Practice and Remedies Code, arguing the employees had not served a compliant medical report for any asbestos exposure claims. The Multidistrict Litigation pretrial judge in Harris County denied the motion. The railway asked the Fourteenth Court of Appeals for a writ of mandamus ordering the judge to vacate that ruling. The court did not decide whether the report requirement applied. It noted that Texas law lets a party appeal immediately from an order denying a section 90.007 motion to dismiss. Because that appeal was available, the railway had an adequate remedy and had not shown it was entitled to mandamus. The court denied the petition.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Texas Court of Appeals, 14th District
• Decided: April 28, 2011
• Docket: No. 14-11-00336-CV
• Stage: Appeal from motion to dismiss
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Texas

Outcome. The court of appeals denied Kansas City Southern Railway's petition for writ of mandamus, leaving in place the trial court's order denying its motion to dismiss the employees' claims.

What the court held. Because Texas Civil Practice and Remedies Code section 51.014(a)(11) allows an interlocutory appeal from an order denying a section 90.007 motion to dismiss, the party has an adequate remedy by appeal and mandamus is not available.

Issues decided: FELA Railroad Claims, Trial Procedure and Discovery.

The people and their exposure

• Nathaniel Dinkins

• Vernon Brooks

• Earnest Henderson

• Melvin Goines

The defendants

• The Kansas City Southern Railway Company (railroad)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Relator.

No. 14-11-00336-CV.

Memorandum Opinion filed April 28, 2011.

Court of Appeals of Texas, Fourteenth District, Houston.

Panel consists of Justices Frost, Jamison, and McCally.

MEMORANDUM OPINION

PER CURIAM.

On April 20, 2011, relator The Kansas City Southern Railway Company filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Mark Davidson, Multidistrict Litigation pretrial judge of the 11th District Court of Harris County to vacate his order denying relator's motion to dismiss.

On September 27, 2010, real parties in interest Nathaniel Dinkins, Vernon Brooks, Earnest Henderson, and Melvin Goines filed suit against relator alleging injury from exposure to "harmful and/or hazardous substances, including but not limited to dusts, fumes, and vapors." The suit is governed by the Federal Employers' Liability Act (FELA) 45 U.S.C. §51, et. seq. On December 10, 2010, relator filed a motion to dismiss pursuant to section 90.007 of the Texas Civil Practice and Remedies Code because the employees failed to serve a compliant report for any asbestos exposure claims.

Section 90.003 of the Texas Civil Practice and Remedies Code requires asbestosis claimants to serve a detailed expert report on the defendant. The statute requires, among other things, that a board-certified physician state the "the exposed person has been diagnosed with malignant mesothelioma or other malignant asbestos-related cancer; and to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma or other cancer in the exposed person[.]" Tex. Civ. Prac. & Rem. Code Ann. § 90.003(1)(A) & (B). The report must further verify that the exposed person meets a minimum threshold of injury. FELA has no minimum threshold requirement. The trial court denied relator's motion to dismiss. Relator contends the trial court abused its discretion in denying the motion to dismiss. Mandamus relief is available when the trial court abuses its discretion and there is no adequate remedy at law, such as by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004); In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding)).

Section 51.014(a)(11) of the Texas Civil Practice and Remedies Code permits appeal from an interlocutory order that "denies a motion to dismiss filed under Section 90.007." Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(11). Consequently, a party challenging the denial of a motion to dismiss filed under Section 90.007 has an adequate remedy by appeal. Relator has not established entitlement to the extraordinary relief of a writ of mandamus. Relator's remedy lies with an interlocutory appeal of the trial court's order. Accordingly, we deny relator's petition for writ of mandamus.

Sources

• The opinion on Google Scholar
• Texas asbestos laws
• Texas asbestos exposure sites