IN RE: Deloris JONES (2026)

OPINION

Relators originally filed suit in Jefferson and Orange County, Texas alleging injuries resulting from exposure to asbestos.¹ In 2017, their cases were transferred to the 11th District Court of Harris County, Texas sitting as the Asbestos Multi-District Litigation pretrial court for asbestos claims. Relators moved for remand arguing that because, pursuant to Section 90.010(a)(3) of the Civil and Practice and Remedies Code, their actions were filed prior to September 1, 2003, and they had established asbestos-related malignancies, the multi-district litigation rules do not apply to their actions and they are thus entitled to remand. The pretrial court denied their motions and Relators filed petitions for writ of mandamus. Relators argue that the pretrial court abused its discretion in denying their motions because under the express terms of Section 90.010(a)(3), they are entitled to remand, and they lack an adequate remedy by appeal.

We agree. Because Relators filed their suits prior to September 1, 2003, and they filed medical reports establishing they had been diagnosed with asbestos-related malignancies, Relators are exempt from the multi-district litigation rules under Section 90.010(a)(3) of the Civil Practice and Remedies Code. They are thus entitled to remand.

We conditionally grant Relators' petitions for writ of mandamus.

The Relevant Statute 2

In 2005, the Legislature added Chapter 90—titled “Claims Involving Asbestos and Silica”—to the Civil Practice and Remedies Code. Its stated purpose is to “protect the right of people with impairing asbestos-related and silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system, while at the same time preventing scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to asbestos or silica but have no functional or physical impairment from asbestos-related or silica-related disease.” Massachusetts Bay Ins. Co. v. Adkins, 615 S.W.3d 580, 588 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting Act of May 16, 2005, 79th Leg., R.S., ch. 97, § 1, 2005 Tex. Gen. Laws 169, 170-71). Chapter 90 “created a bifurcated system to allow those with confirmed impairment to proceed to trial while those without a confirmed impairment would remain in [multi-district litigation], without any statute-of-limitations ramifications, until an impairment [is] confirmed.” Adame v. 3M Co., 585 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2019, no pet.).³

Relevant here, Section 90.010(a)—titled “Multidistrict Litigation Proceedings”—provides that the multidistrict ligation (“MDL”) “rules apply to any action pending on the date this chapter becomes law [September 1, 2005] in which the claimant alleges personal injury or death from exposure to asbestos or silica unless” one of three exceptions applies. Tex. Civ. Prac. & Rem. Code § 90.010(a)–(b) (emphasis added). Under Section 90.010(a), the MDL rules do not apply if:

(1) the action was filed before September 1, 2003, and trial has commenced or is set to commence on or before the 90th day after the date this chapter becomes law, except that the MDL rules shall apply to the action if the trial does not commence on or before the 90th day after the date this chapter becomes law;

(2) the action was filed before September 1, 2003, and the claimant serves a report that complies with Section 90.003 [relating to asbestos injuries] or 90.004 [relating to silica injuries] on or before the 90th day after the date this chapter becomes law; or

(3) the action was filed before September 1, 2003, and the exposed person has been diagnosed with malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-related cancer.

Id. § 90.010(a)(1)–(3). Section 90.010(b) provides that

If the claimant fails to serve a report complying with Section 90.003 or 90.004 on or before the 90th day after the date this chapter becomes law under Subsection (a)(2), the defendant may file a notice of transfer to the MDL pretrial court. If the MDL pretrial court determines that the claimant served a report that complies with Section 90.003 or 90.004 on or before the 90th day after the date this chapter becomes law, the MDL pretrial court shall remand the action to the court in which the action was filed. If the MDL pretrial court determined that the report was not served on or before the 90th day after the date this chapter becomes law or that the report served does not comply with Section 90.003 or 90.004, the MDL pretrial court shall retain jurisdiction over the action pursuant to the MDL rules.

Id. § 90.010(b). And Section 90.003(a) relatedly requires that a claimant asserting an asbestos-related injury serve a medical report on each defendant. Id. § 90.003(a); see also Adkins, 615 S.W.3d at 588-89 (discussing requirements for asbestos-related claims under Section 90.003).

In 2005, when Chapter 90 became law, the Texas Supreme Court adopted Rule of Judicial Administration 13.11, which applies to civil actions filed before September 1, 2003, involving claims for asbestos-and silica-related injuries. Tex. R. Jud. Admin. 13.11; see also Adkins, 615 S.W.3d at 590. Under Rule 13.11(c), a party seeking to transfer a case to the MDL pretrial court must file a notice of transfer with the trial court and the MDL pretrial court. Tex. R. Jud. Admin. 13.11(c). A case is deemed transferred to the MDL pretrial court when a notice of transfer is filed unless a motion for severance is pending. Id. 13.11(e). Although there are no procedures articulated for a remand, Rule 13.11(i) contemplates that a plaintiff's motion objecting to the transfer and requesting a remand may occur, stating that if a remand is ordered, the pretrial court may allocate costs among the parties and award attorney's fees. Id. 13.11(i); Adkins, 615 S.W.3d at 590.

Background

These four mandamus proceedings arise from personal injury actions originally filed in Jefferson County, Texas and Orange County, Texas in 1995, alleging Relators sustained injuries caused by years of exposure to asbestos.⁴

In August 2017, Relators amended their petitions to add as defendants several insurance companies that issued insurance policies to companies that according to Relators, exposed them to asbestos. One of the named insurance companies, Real Party in Interest Nationwide Mutual Insurance Company (“Nationwide”), filed a notice of transfer in October 2017 transferring the actions to the 11th District Court of Harris County, Texas sitting as the Asbestos Multi-District Litigation pretrial court for asbestos claims (“MDL Court”). Nationwide filed its notice of transfer under Rule 13 of the Rules of Judicial Administration stating the actions were being transferred as “a tag-along case to another case [then] pending before the MDL pretrial court.”⁵

After the transfer,⁶ Relators filed motions to remand and subsequently, amended motions to remand on June 21, 2024, attaching Section 90.003(a) medical reports.⁷ The medical reports state that all four Relators are deceased and were diagnosed with malignant mesothelioma or other asbestos-related cancer in or before 2002. The reports state that:

• Jones died on December 5, 1995; his death certificate said that his cause of death was malignant mesothelioma and his medical records established that his cancer was directly due to his long-term prior asbestos exposure;

• Brown was diagnosed with malignant mesothelioma in July 2002; he died on May 15, 2003, his cause of death was listed as mesothelioma, and medical records indicated that the malignant mesothelioma was related to Brown's history of long-term prior asbestos exposure;

• Morris died on August 19, 2000; he was diagnosed with asbestosis on December 4, 1994; and autopsy and medical records indicated Morris in all medical probability had mesothelioma caused by asbestos exposure; and

• Moten was diagnosed on July 30, 1990 with metastatic adenocarcinoma, and, although the death certificate reflected that his immediate cause of death was adenocarcinoma of the lung, Dr. Michael Connor had diagnosed Moten with asbestos-related pleural disease based on the amount of fibrosis and pleural thickening revealed from a biopsy. Based on these findings, Dr. Andre McShan concluded that Moten was diagnosed with asbestos-related malignant mesothelioma that was to a reasonable degree of medical probability a result of his exposure to asbestos.8

Relators argued that their cases were exempt from the MDL rules under Section 90.010(a)(3) because (1) the actions at issue were filed before September 1, 2003, and (2) as established in their medical reports, the exposed person had been diagnosed with malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-related cancer. See Tex. Civ. Prac. & Rem. Code § 90.010(a)(3).

Real Parties opposed the amended motions to remand arguing that notwithstanding Section 90.010(a)(3), because Relators had not filed their medical reports “on or before the 90th day after the date” Chapter 90 became law (September 1, 2005), remand was not proper and the MDL Court was required to retain jurisdiction under Subsection 90.010(b). Following a hearing, the MDL Court issued an order denying Relators' motions to remand. This mandamus proceeding ensued.

Standard of Review

To obtain mandamus relief, a relator must establish that the trial court committed a clear abuse of discretion or violated a duty imposed by law and there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). To establish that the trial court abused its discretion, a relator must show that the trial court reached “a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.” In re Cerberus Cap. Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (internal quotation marks and citations omitted).

As to the resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court reasonably could have reached only one decision. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). We review de novo a trial court's legal conclusions, including its interpretation of statutes, because “an error of law or an erroneous application of law to facts is always an abuse of discretion.” In re Facebook, 625 S.W.3d 80, 86 (Tex. 2021) (orig. proceeding); see also In re Eagleridge Operating, LLC, 627 S.W.3d 478, 479 (Tex. App.—Dallas 2020, orig. proceeding) (“[W]e defer to the trial court's factual determinations if they are supported by evidence, but we review its legal determinations de novo.”).

Discussion

A. Relators' First Motion to Remand and Adkins

This is not the first time Relators have sought remand from the MDL Court under Section 90.010(a)(3). Nor is this the first time this Court has reviewed an order from the MDL Court denying Relators' motions to remand.

In 1995, several plaintiffs,⁹ including Relators (collectively, the “Adkins plaintiffs”), sued numerous defendants alleging they had contracted asbestos-related diseases after working for companies that used asbestos-containing materials and products. Adkins, 615 S.W.3d at 590. In August 2017, the Adkins plaintiffs amended their petitions to name as defendants several insurance companies, including Real Parties in Interest Nationwide and Massachusetts Bay Insurance Company, claiming they had issued insurance policies to companies where the Adkins plaintiffs claim they were exposed to asbestos. Id. at 590–91.

After Nationwide transferred the Adkins actions to the MDL Court, the Adkins plaintiffs filed motions to remand the actions to the trial court alleging the actions were “specifically excluded from the jurisdiction” of the MDL Court under Section 90.010(a)(3) because their suits were filed before September 1, 2003, and all of the plaintiffs had been diagnosed with “malignant mesothelioma or other malignant asbestos-related cancer.” Id. at 592. None of the plaintiffs had served the defendants with Section 90.003(a) reports or otherwise provided evidence establishing their diagnosis. The MDL Court thus denied their motions to remand and the Adkins plaintiffs appealed to this Court. Id. at 593.

On appeal, a different panel from this Court held that the MDL Court had correctly denied the Adkins plaintiffs' motions to remand because, even if the plaintiffs had been diagnosed with mesothelioma or other asbestos-related cancers, they had not established their diagnoses. Id. at 609–10. This Court held that to be entitled to remand, the claimants must establish their diagnosis of malignant mesothelioma or another malignant asbestos-related cancer through a medical report. The Court held that:

In considering Chapter 90 as a whole—particularly its requirement that claimants file a medical report that meets the standards set out in section 90.003—we conclude that when a case has been transferred to the MDL court pursuant to section 90.010(b) for failure to timely file a medical report ․ the claimants must serve a report complying with section 90.003 and demonstrating a diagnosis of malignant mesothelioma or another malignant asbestos-related cancer in order to be entitled to remand from the MDL court to the original trial court.

Id. at 609–10. Because the Adkins plaintiffs had not served a medical report establishing their diagnoses, our Court held they were not entitled to remand. Id. at 610. In a footnote, this Court further stated:

Nothing in this opinion should be read as preventing the plaintiffs, upon obtaining the statutorily-required medical reports under section 90.003, from seeking remand of the cases back to the original trial courts should the medical reports reflect that the plaintiffs have a diagnosis of malignant mesothelioma or another malignant asbestos-related cancer and thus that they fall under section 90.010(a)(3).

Id. at 612 n.10.¹⁰

After our decision in Adkins, Relators served medical reports establishing that each Relator had been diagnosed with an asbestos-related malignancy in or before 2002.

B. Amended Motions to Remand

Relators filed motions to remand and subsequently, amended motions to remand attaching the medical reports reflecting that all four Relators had been diagnosed with malignant mesothelioma or other asbestos-related cancer in or before 2002. Relators argued they were entitled to remand because they had satisfied the requirements of Section 90.010(a)(3) and the MDL rules were therefore not applicable to them.

Real Parties opposed the motions arguing that because the medical reports had not been filed within 90 days of Chapter 90 becoming law on September 1, 2005, Relators were not entitled to a remand. They argued that pursuant to Section 90.010(b), the MDL Court was required to retain jurisdiction until Relators satisfied the MDL pretrial court's Case Management Order (“CMO”).

Following a hearing, the MDL Court denied Relators' motions to remand. Although the written order signed by the MDL Court states no reasons for the denial, the MDL court judge stated during the hearing that his ruling was based on his conclusion that Section 90.010(b) takes precedence over and trumps the provisions of Section 90.010(a) including Subsection (a)(3). See Tex. Civ. Prac. & Rem. Code § 90.010(a), (b).

Relators argue that the MDL Court abused its discretion in denying their amended motions to remand because they satisfied the requirements of Section 90.010(a)(3) and thus, the MDL rules do not apply to them. Real Parties respond that the MDL Court correctly denied the motions to remand because once the actions were properly transferred to the MDL Court under Section 90.010(b), the MDL Court retains jurisdiction and any attempt to utilize Section 90.010(a)(3) to seek remand was untimely.

Discussion

A. Rules of Statutory Construction

The threshold issue in this mandamus proceeding turns on statutory interpretation—the interplay between Sections 90.010(a)(3) and Section 90.010(b), and the determination of which section governs given the particular facts of these cases.

“We begin, as always, with the text of the statute.” City of San Antonio v. Realme, 731 S.W.3d 342, 349 (Tex. 2026). We “study the language of the specific provision at issue, within the context of the statute as a whole, endeavoring to give effect to every word, clause, and sentence.” Ritchie v. Rupe, 443 S.W.3d 856, 867 (Tex. 2014). We consider the statute as a whole rather than its isolated provisions. We should not “give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone.” Shinogle v. Whitlock, 596 S.W.3d 772, 776–77 (Tex. 2020) (quoting Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)).

We must interpret a statute so that no part of it is rendered meaningless or superfluous. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). When construing a statute, “we do not ‘second-guess the policy choices that inform our statutes or ․ weigh the effectiveness of their results.’ ” City of San Antonio, 731 S.W.3d at 350 (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003)). “ ‘When the text unambiguously answers a question, our inquiry ends’ [ ] and we must honor its plain language.” Id. (quoting Brown v City of Houston, 660 S.W.3d 749, 752 (Tex. 2023).

B. Interpretation of the MDL Statute

The terms of the statute control our analysis. The statute provides that for cases pending on September 1, 2005—the date Chapter 90 became law—the MDL rules govern unless an exception applies. See Tex. Civ. Prac. & Rem. Code § 90.010(a) (emphasis added). The statute provides three independent exceptions that, if applicable, prevent application of the MDL rules. Two exceptions are relevant to our analysis. Under Section 90.010(a), the MDL rules apply to any action pending on September 1, 2005 unless:

․

(2) the action was filed before September 1, 2003, and the claimant serves a report that complies with Section 90.003 . , , on or before the 90th day after the date this chapter becomes law; or

(3) the action was filed before September 1, 2003, and the exposed person has been diagnosed with malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-related cancer.

Tex. Civ. Prac. & Rem. Code § 90.010(a)(2)–(3) (emphasis added).

Under the plain terms of Section 90.010(a)(3), the MDL rules are not applicable to Relators' actions. When Chapter 90 became law on September 1, 2005, Relators—whose actions were filed before September 1, 2003—had already been diagnosed with malignant asbestos-related cancer. When they served their medical reports on Real Parties post Adkins—which Real Parties do not dispute established Relators' malignant diagnosis—Relators satisfied the requirements of Section 90.010(b)(3), and they were thus entitled to a remand. See id. § 90.010(a)(3). Section 90.010(b), which does not reference Section 90.010(a)(3), is not to the contrary.

Real Parties argue that because Relators filed their medical reports establishing their diagnosis post-transfer and after the 90-day period in Section 90.010(a)(2), remand is not permitted. They argue that pursuant to Section 90.010(b), the MDL Court “shall retain jurisdiction over the action[s] pursuant to the MDL rules” and remand may not be accomplished until Relators comply with the MDL Court's CMO. See id. § 90.010(b). We disagree.

Under Section 90.010(a)(3), the MDL rules—including compliance with the MDL Court's CMO—do not apply “to any action pending on [September 1, 2005] in which the claimant alleges personal injury or death from exposure to asbestos or silica” if two requirements are met: (1) “the action was filed before September 1, 2003” and (2) “the exposed person has been diagnosed with malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-related cancer.” Id. § 90.010(a)(3) (emphasis added). Real Parties do not dispute that Relators meet both requirements, nor could they. Relators' cases were filed before September 1, 2003, and they were diagnosed with malignant mesothelioma or other asbestos-related cancer in or before 2002. Section 90.010(a)(3) thus applies, and the cases are exempt from the MDL and its rules.

Notwithstanding, Real Parties argue that although not expressly stated in Section 90.010(a)(3), this Court should construe that section to impose yet a third requirement: (3) that the malignant diagnosis be established through a Section 90.003(a) report filed “on or before the 90th day after the date this chapter becomes law.” Real Parties do not rely on the language of Section 90.010(a)(3) for support—indeed, that section does not include the italicized language. Rather, they lean on the language of Section 90.010(b) to advance their position. They interpret Section 90.010(b) as mandating that once a case is transferred to the MDL Court for failure to file a Section 90.003(a) report within 90 days of Chapter 90 becoming law, the MDL Court shall retain jurisdiction over the transferred cases—including over those cases that satisfy the requirements of Section 90.010(a)(3)—until the MDL Court's CMO is satisfied and discovery is complete. See Tex. Civ. Prac. & Rem. Code § 90.010(b) (“If the MDL pretrial court determined that the report was not served on or before the 90th day after the date this chapter becomes law or that the report served does not comply with Section 90.003 or 90.004, the MDL pretrial court shall retain jurisdiction over the action pursuant to the MDL rules.”) (emphasis added).

In other words, Real Parties interpret Section 90.010(b) as trumping Section 90.010(a)(3) such that the (a)(3) exception would apply only if the requirements of (a)(3) are established and Subsection (b) is also independently satisfied. By doing so, Real Parties seek to add a temporal requirement to Subsection (a)(3) that would require a plaintiff to establish their malignant diagnosis with a Section 90.003(a) medical report within 90 days of Chapter 90 becoming law. Real Parties' interpretation is problematic for several reasons.

First, by its express terms, Section 90.010(b) applies only to Section 90.010(a)(2). It states:

If the claimant fails to serve a report complying with Section 90.003 ․ on or before the 90th day after the date this chapter becomes law under Subsection (a)(2), the defendant may file a notice of transfer to the MDL pretrial court. If the MDL pretrial court determines that the claimant served a report that complies with Section 90.003 ․ on or before the 90th day after the date this chapter becomes law, the MDL pretrial court shall remand the action to the court in which the action was filed. If the MDL pretrial court determined that the report was not served on or before the 90th day after the date this chapter becomes law or that the report served does not comply with Section 90.003 ․ the MDL pretrial court shall retain jurisdiction over the action pursuant to the MDL rules.

Id. (emphasis added). There is no indication in the statute that Section 90.010(b)—which directly states it applies to Section (a)(2)—also applies to Section 90.010(a)(3).

Second, contrary to Real Parties' argument, nothing in Section 90.010(b) provides that the MDL court shall retain jurisdiction over the action until the MDL Court's CMO is satisfied and discovery is complete in all cases. That provision merely provides that if the “MDL pretrial court determines that the [90.003(a)] report was not served on or before the 90th day after the date this chapter become law or that the report does not comply with Section 90.003 ․ the MDL pretrial court shall retain jurisdiction over the action pursuant to the MDL rules.” Id. Section 90.010(b) does not provide that the MDL Court retains jurisdiction after a plaintiff—whose action was filed prior to September 1, 2003—serves a medical report establishing his prior diagnosis as Relators did here. That is, nothing in Section 90.010(b) provides that the MDL Court continues to retain jurisdiction after a plaintiff establishes his case falls under the Subsection (a)(3) exception. And nothing in Subsection (a)(3) requires that the plaintiff also meet the terms of Subsection (b) to be exempt from the MDL rules. Such an interpretation, advanced by Real Parties, would be contrary to the express terms of Section 90.010(a)(3), which provides that the MDL rules do not apply if (1) the action was filed before September 1, 2003, and the exposed person has been diagnosed with an asbestos-related malignancy. See id. § 90.010(a)(2)–(3).

Third, while Sections 90.010(a)(1)–(2) and Section 90.010(b) all have a temporal requirement, Section 90.010(a)(3) does not, and we are not at liberty to impose one under the guise of statutory construction. Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (“A court may not judicially amend a statute by adding words that are not contained in the language of the statute. Instead, it must apply the statute as written.”). The fact that Sections 90.010(a)(1)–(2) and Section 90.010(b) include a temporal requirement, while Section 90.010(a)(3) does not, reflects that the Legislature chose not to impose a temporal requirement in Subsection (a)(3). See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (stating that we presume Legislature chose statute's language with care, including inserting and omitting specific words purposefully).

Last, if as Real Parties argue, the Section 90.010(a)(3) exception is inapplicable notwithstanding the fact Relators have satisfied its requirements, Real Parties' interpretation would violate the well-established tenet of statutory construction that requires all portions of a statute to be construed in tandem, such that no provision is rendered meaningless. See Whole Woman's Health v. Jackson, 642 S.W.3d 569, 581 (Tex. 2022) (“We have consistently and repeatedly acknowledged that courts ‘must give effect to all words of a statute and not treat any language as surplusage.’ ”) (quoting In re CenterPoint Energy Hous. Elec., LLC, 629 S.W.3d 149, 159 (Tex. 2021) (orig. proceeding)); see also Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 513 S.W.3d 487, 493 (Tex. 2017) (“We endeavor to interpret each word, phrase, and clause in a manner that gives meaning to them all. We accordingly read statutes as a whole so as to render no part inconsistent, superfluous, or devoid of meaning.”) (citing PlainsCapital Bank v. Martin, 459 S.W.3d 550, 556 (Tex. 2015)).

Real Parties' argument would require that we ignore the exception enumerated in Section 90.010(a)(3) because Relators' medical reports were not served in the time set forth under Section 90.010(a)(2). But Section 90.010(a) lists three separate and independent exceptions to the MDL rules. Sections 90.010(a)(1), (a)(2), and (a)(3) are separated by the disjunctive “or” which “creates alternatives.” City of Stephenville v. Belew, 692 S.W.3d 347, 364 (Tex. App.—Eastland 2024, pet. denied) (citing Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 116 (2012)).¹¹ Real Parties' interpretation impermissibly attempts to fashion a conjunctive rule joining the temporal element of Section 90.010(a)(2) with Section 90.010(a)(3)'s rule on diagnoses, which contains no temporal requirement. Compare Tex. Civ. Prac. & Rem. Code § 90.010(a)(2) with id. § 90.010(a)(3); see also MBank Abilene, N.A. v. Westwood Energy, Inc., 723 S.W.2d 246, 251 (Tex. App.—Eastland 1986, no pet.) (“The general rule of statutory construction is that the words ‘and’ and ‘or’ are not interchangeable.”) (citing Robinson v. Reliable Life Ins. Co., 569 S.W.2d 28 (Tex. 1978)).

Under the express terms of Section 90.010(a), the MDL rules do not apply in three separate scenarios. The MDL rules do not apply if:

(1) the action was filed before September 1, 2003, and trial has commenced or is set to commence on or before the 90th day after the date this chapter becomes law ․ ;

(2) the action was filed before September 1, 2003, and the claimant serves a report that complies with Section 90.003 ․ on or before the 90th day after the date this chapter becomes law; or

(3) the action was filed before September 1, 2003, and the exposed person has been diagnosed with malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-related cancer.

Tex. Civ. Prac. & Rem. Code § 90.010(a)(1)-(3) (Emphasis added.) There is no 90-day temporal requirement in Subsection (a)(3). As noted, the drafters of the MDL statute could have inserted a temporal requirement in Section 90.010(a)(3) but chose not to do so. There is thus no basis for adding a 90-day temporal element into a freestanding exception to the application of the MDL statute. And adopting Real Parties' interpretation to the contrary would render Section 90.010(a)(3) meaningless.¹²

It is undisputed that here, all Relators were diagnosed with asbestos-related malignancies in or before 2002 and that they filed their civil actions before September 1, 2003.¹³ Thus, when Relators served their medical reports establishing their prior malignant diagnosis, they satisfied the requirements of Section 90.010(a)(3) and nothing more was required. Consistent with the express provisions of Section 90.010(a)(3), the MDL rules do not apply to Relators' actions, and they are thus entitled to a remand.¹⁴

Because Real Parties' interpretation of the statute would nullify one of its exceptions, we cannot adopt their argument without violating the rules of statutory construction to which we are bound. We conclude that under the plain language of the statute and given the facts of this case, the exception in Section 90.010(a)(3) governs, the MDL rules are inapplicable to Relators' actions, and Section 90.010(b) does not preclude a remand. The MDL Court thus erred in denying Relators' motions to remand.¹⁵

Adequate remedy by appeal

“The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments.” In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (quoting In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). “[W]here significant rulings in exceptional cases are involved, mandamus review ‘may be essential to preserve important substantive and procedural rights from impairment or loss ․ and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ” In re N. Hous. Pole Line, L.P., No. 01-25-00729-CV, 2026 WL 569055, at *5 (Tex. App.—Houston [1st Dist.] Feb. 27, 2026, orig. proceeding) (mem. op.) (quoting Prudential, 148 S.W.3d at 136).

Relators argue they have no adequate remedy by appeal “because the trial court compels [them] to proceed in MDL litigation that should instead by remanded” to the 60th District Court in Jefferson County (for Relators Jones, Brown, and Morris) or the 128th District Court in Orange County (for Relator Duncan). Relators argue that “even if the MDL Court's erroneous denial of [their] amended motion[s] to remand [are] overturned on appeal, the harm will have already been done.” We agree.

“[M]andamus review is not—and should not be—an easily wielded tool, but such review of significant rulings in exceptional cases may be essential to, among other things, ‘spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ” In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 299 (Tex. 2016) (quoting Prudential, 148 S.W.3d at 136).

Because Relators' cases were filed before September 2003, and they served Section 90.003(a) reports establishing they were diagnosed with asbestos-related malignancies, the MDL rules do not apply to them. Allowing Relators' cases to continue in the MDL Court would thus result in a reversal after an excess of time and money is spent. We thus conclude that mandamus is the appropriate remedy in this exceptional case.

Conclusion

Relators have established an abuse of discretion by the trial court and the lack of an adequate remedy by appeal. We thus conditionally grant the petitions for writ of mandamus. The MDL Court is directed to vacate its order denying Relators' amended motions to remand and to grant the motions. The Court is confident that the MDL Court will comply with this Court's order and the writ will issue only if the MDL Court does not.

FOOTNOTES

1.   The underlying cases are Deloris Jones, Individually and as Representative of the Estate of Willie Lee Jones, Jr, et al. v. Lincoln Electric Company, et al.; Wanda Brown, Individually and as Representative of the Estate of James Edward Brown, et al. v. Lincoln Electric Company, et al.; Russell Morris, Individually and as Representative of the Estate of Clarence James Morris, et al. v. Lincoln Electric Company, et al.; and Velma Duncan, Individually and as Representative of the Estate of Howard Moten Sr., et al. v. Lincoln Electric Company, et al., cause numbers 2017-67350-C ASB, 2017-67350-B ASB, 2017-67350-D ASB, and 2017-67246-B ASB, pending in the 11th District Court of Harris County, Texas, the Hon. Mark Davidson presiding.

3.   The general MDL goals are “convenience, efficiency, and justice.” In re State Farm Lloyds Hurricane Ike Litig., 392 S.W.3d 353, 355 (Tex. Jud. Pan. Mult. Lit. 2012).

4.   These four actions and others were consolidated into Cause No. B-0150896-AK in the 60th District Court of Jefferson County and styled Newbern Brown Adkins, et. al. v Lincoln Electric Co., et al.

5.   Rule of Judicial Administration 13.2(g) defines a “tag-along” case as a “case related to cases in an MDL transfer order but not itself the subject of an initial MDL motion or order.” Tex. R. Jud. Admin 13.2(g).

6.   The Real Parties in Interest are Massachusetts Bay Insurance Company, Nationwide Indemnity, on Behalf of Wausau Insurance, Nationwide Mutual Insurance Company, Cooper Industries, Inc., and Kimberly-Clark Corporation. We refer to them collectively as “Real Parties.”

7.   Relators served their medical reports on Real Parties and the other named defendants in December 2021 and early 2022.

8.   When the plaintiffs died from their asbestos-related cancers, their personal representatives were substituted into the case.

9.   The Adkins plaintiffs comprised 463 plaintiffs in the “Adkins litigation” and 790 plaintiffs in the “Able litigation.” Adkins, 615 S.W.3d at 590–91. The Adkins suits were filed in Jefferson County, Texas, and the Able suits were filed in Orange County, Texas. Id. The claims were identical. Id. at 591. We refer to them collectively as the “Adkins plaintiffs” and we refer to the cases collectively as the “Adkins cases.”

10.   Relators rely in part on this footnote to argue that once they served their Section 90.003(a) medical reports on the Real Parties, they were entitled to a remand under Section 90.010(a)(3). Real Parties argue that Relators' reliance on the footnote is improper because the footnote “ignores the entirety of Chapter 90,” the requirements of the Case Management Order, and the Court's actual holding in Adkins. We need not address any argument with respect to the Adkins footnote because it is dicta and has no precedential value. See Brazda v. Suretec Ins. Co., No. 01-21-00482-CV, 2022 WL 3363190, at *5 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022, no pet.) (mem. op.) (“[B]ecause the statements quoted above were dicta unnecessary to the Court's holding ․ we are not bound by these statements.”); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., Inc., 217 S.W.3d 653, 662 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (“The law of the case doctrine does not apply to dicta.”) (citations omitted). Our reasoning is based on the controlling statutory text.

11.   Lists that are phrased in the disjunctive create “distinct categories.” City of Stephenville v. Belew, 692 S.W.3d 347, 364 (Tex. App.—Eastland 2024, pet. denied).

12.   Section 90.010(b) refers to reports served in connection with Section 90.010(a)(2) but does not refer to Sections 90.010(a)(3) or (a)(1). That further supports our conclusion that Section 90.010(b) is not intended to apply when the Section 90.010(a)(3) exception applies. Taking Real Parties' argument to its logical conclusion, whenever a transfer under Section 90.010(b) is taken, the exception set forth in Section 90.010(a)(3) would be nullified. That argument is untenable for the reasons discussed above.

13.   During oral argument, Relators argued that Section 90.010(a)(3) does not expressly govern when the diagnosis must be made, while Real Parties argued that given the use of the present perfect tense “has been diagnosed,” any diagnosis must have been made prior to September 1, 2005. We need not decide this issue, because here, it is undisputed that all Relators were diagnosed with malignancies prior in or before 2002.

14.   The Section 90.010(a)(3) exception is narrow, applying only to the subset of cases both filed before January 1, 2003 and in which the plaintiff has been diagnosed with certain, limited subset of conditions: “malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-related cancer.” Tex. Civ. Prac. & Rem. Code §§ 90.003(a), 90.010(a)(3). The exception does not apply to cases filed after the applicable date. And the exception does not apply to cases filed before that date with other diagnoses. The Legislature was free to craft this limited exception to the MDL rules, and it did so with clear language. Our role is to interpret the statute as written, and we are not at liberty to rewrite the statute or to “second-guess the policy choices that inform our statutes or ․ weigh the effectiveness of their results.” City of San Antonio v. Realme, 731 S.W.3d 342, 350 (Tex. 2026) (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003)).

15.   Real Parties argue in the alternative that Relators' claims against Nationwide did not exist, if at all, until 2012, when a “purported final judgment” was rendered against a “bankrupt alleged tortfeasor,” allowing them to sue Nationwide. Relators counter that Nationwide never disputed the fact that the case was filed prior to September 1, 2003. Indeed, Real Parties could not have transferred the case to the MDL Court under Section 90.010(b) unless the action was filed before September 1, 2003.

Veronica Rivas-Molloy, Justice

Justice Dokupil dissenting without written opinion.