Massachusetts Bay Insurance Company v. Adkins (Tex. Ct. App., July 2, 2020)

Our plain-English summary of Massachusetts Bay Insurance Company v. Adkins (Texas Court of Appeals, July 2, 2020).

This is a short procedural order from the Texas Court of Appeals, First District, in three consolidated appeals involving asbestos-related injury claims. The plaintiffs include the estates of Newbern Brown Adkins and Arlie Richard Able, who sued Lincoln Electric Company and others. The opinion does not describe the workers' diseases, their work or their exposure to asbestos. The court heard oral argument by Zoom on June 30, 2020. It then ordered the parties to file post-argument briefs, with citations to authority and legislative history, on three questions. The first was how much proof Texas Civil Practice and Remedies Code section 90.010(a)(3) requires to show that a claimant has been diagnosed with malignant mesothelioma or another malignant asbestos-related cancer. The second was whether the MDL court must make a specific written finding of that diagnosis. The third was the standard of review for the MDL court's denial of the plaintiffs' motions to remand their cases to the original trial courts and for its decision on whether the diagnosis requirement was met. The order decided none of these questions.

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, 1st District
• Decided: July 2, 2020
• Docket: Nos. 01-18-00993-CV, 01-18-01064-CV, 01-18-01071-CV
• Stage: Appeal from jurisdiction, venue or removal
• State: Texas

Outcome. The court ordered the parties to file post-argument briefs on the proof needed to show a malignant mesothelioma or other asbestos-related cancer diagnosis under section 90.010(a)(3), whether the MDL court must make a written finding, and the standard of review; it decided nothing else.

Issues decided: Trial Procedure and Discovery, Venue, Removal and Transfer.

The defendants

• Lincoln Electric Company
• Massachusetts Bay Insurance Company (insurer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Massachusetts Bay Insurance Company v. Adkins (December 3, 2020). The court of appeals affirmed the MDL court's orders: it denied Massachusetts Bay's special appearance in the Adkins litigation, denied the Adkins and Able plaintiffs' motions to remand, and granted the other insurers' special appearances.

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.

Massachusetts Bay Insurance Company named as Fictitious Party Hanover Insurance Group (On Behalf of Massachusetts Bay Insurance Company),

v.

Newbern Brown Adkins, etal.;

Larry Adkins, Personal Representative of the Estate of Newbern Brown Adkins, etal.,

v.

Lincoln Electric Company, etal.;

Dorothy Wilson, as Personal Representative for the Estate of Arlie Richard Able, etal.

v.

Lincoln Electric Company, etal..

Nos. 01-18-00993-CV, 01-18-01064-CV, 01-18-01071-CV.

July 2, 2020.

Court of Appeals of Texas, First District, Houston.

Appeal from the 11th District Court of Harris County, Texas, Nos. 2017-67350-ASB, 2017-67350-A, 2017-67246-A. Panel consists of Justices Keyes, Kelly, and Landau.

MEMORANDUM ORDER

EVELYN V. KEYES, Judge.

The Court heard oral argument on the above-captioned cases on June 30, 2020, via Zoom. The Court orders that the parties submit post-argument briefing with citations to authority, including citations to any applicable legislative history, on the following questions:

(1) What quantum of proof is necessary under Civil Practice and Remedies Code section 90.010(a)(3) to demonstrate that a claimant asserting an asbestos-related injury "has been diagnosed with malignant mesothelioma [or] other malignant asbestos-related cancer." See TEX. CIV. PRAC. & REM. CODE ANN. § 90.010(a)(3).

(2) Whether the MDL court is required to make a specific written finding that the claimant has a diagnosis of malignant mesothelioma or other malignant asbestos-related cancer.

(3) What is the appropriate standard of review of the MDL court's denial of the plaintiffs' motions to remand their cases to the respective original trial courts. Additionally, what is the appropriate standard of review of the MDL court's determination concerning whether the plaintiffs have established that they have the required "diagnosis" under section 90.010(a)(3).

The parties' post-argument briefs shall be filed in this Court within ten business days of the date of this order. It is so ORDERED.

Sources

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