The National Association of Manufacturers, American Chemistry Council, Texas Chemical Council and U.S. Chamber on Feb. 12 filed an amicus brief in the Texas Supreme Court, fighting the continued abuse of discovery in a South Texas mass tort against chemical manufacturers, In Re Allied Chemical Corporation, et al, Relators. The brief is here.
The brief challenges the judge’s handling of the lawsuit filed in Hidalgo County, one of the South Texas jurisdictions that constitute a “Judicial Hellhole” as described by the American Tort Reform Association. It’s a far-fetched suit as 1,800 plaintiffs claim to be harmed by general exposure to chemicals going back to 1950. The case has also been dragging on for a decade, as the judge keeps allowing the plaintiffs to avoid defendants’ efforts at discovery. The defendants can’t even gain the most basic of information they need to mount a defense, such as the products supposedly involved, claimed exposures and basic causation.
In April 2009 the defendant companies filed a petition for a writ of mandamus with the Supreme Court, now supported by our brief. The brief argues: “A true adversary justice system must require a claimant to shoulder the burden of proof, determine whether the claimant’s burden has been satisfied, and then subject the determination to review. Cases such as this one appear to follow different rules that require correction.”
Our brief urges the Texas Supreme Court both to order the lower court to act and to change the rules of procedure to prevent other courts from continuing to behave this way in the future: “Society cannot tolerate a system of justice in which the value of a claim is based upon the ability to drive up risk and avoid resolution on the merits rather than on the defendant’s fault for the plaintiff’s injury.” Failure to resolve this problem undermines public confidence in the courts, violates constitutional rights and prevents a defendant from clearing his name in court, the amici argue.
Last week the Texas Supreme Court set oral arguments on the companies’ petition for March 24. Again, our brief argues for granting the petition for mandamus, but also for correcting court procedures to prevent this kind of discovery abuse from occurring again. Specifically, the the Court could consider options such as:
• A non-discretionary deadline and disclosure framework for basic discovery in mass tort or toxic tort cases not already subject to such regimes;
• A non-discretionary right to dismissal for failure to comply or cure defects in the disclosure requirements;
• Supreme Court appointed special masters for discovery in mass tort cases, even to the extent they do not already qualify for MDL treatment;
• Supreme Court appointed special masters on Daubert/Havner issues in toxic tort cases;
• A mandatory and reviewable right to dismissal upon the granting of a case-dispositive challenge to expert testimony;
• Amendment to the Rules of Judicial Administration for the appointment of specialized pretrial judges; and
• Amendment to the Rules of Judicial Administration and
• Rules of Judicial Conduct to address judicial noncompliance with mandatory, appellate relief.
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