IN RE: DELORIS JONES (2026)

DISSENTING OPINION

Mandamus should only issue on a question of statutory interpretation if the trial court abused its discretion by reaching “a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fail[ed] 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).

Here, we have a genuinely ambiguous statute susceptible of multiple interpretations.¹ Because I believe the trial court's conclusion was, in fact, correct, albeit its reasoning was slightly incomplete, I dissent.

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As the majority noted, the trial court's task was to harmonize the two relevant exceptions to the MDL rules with the provision in subsection (b) that allows defendants to transfer claims into the MDL court in the absence of a physician's report. TEX. CIV. PRAC. & REM. CODE § 90.010(a)–(b). The relevant provisions read as follows:

(a) The MDL rules apply to any action pending on the date this chapter becomes law in which the claimant alleges personal injury or death from exposure to asbestos or silica unless:

․

(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)(2)–(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).

This is how the trial court explained its ruling when it denied the relator's motion for remand on 90.010(a)(3) grounds in 2018, before the Adkins ruling:

Does the provision of 90.010(b) trump the provision of 90.010(a)(3)?

The interplay between subsections (a)(2) and (a)(3) of 90.010 are interesting.

Clearly, these actions were filed before September 1, '03. The claimant [ ] did not serve a report that complied with 90.003 before the 90th day after this chapter became law. Therefore, 90.010(a)(2) cannot be used to create their exception to the general rule contained in the beginning of 90.010(a) to MDL rules applying to the statute.

We then come to (a)(3). Clearly that statute [sic] was filed before September 1, 2003. No evidence has been presented here today that any of these plaintiffs have been diagnosed with malignant mesothelioma. Even if they had, I rule that 90 – I interpret 90.010(b) to say that even if there's a diagnosis, there is a report that must be a filed on or before the 90th day after the date the statute went into effect.

There was no such report filed until approximately 2017 which the Court finds to be 13 years after the statute went into effect. Therefore, I will respectfully deny the motion to remand and sign an order consistent with that.

See 3 Mandamus R. 193 (Mot. to Remand Hr'g Tr. (April 1, 2018), at 24–25).

After Adkins, when the relators re-raised their motion for remand after obtaining a physician's report, the trial court denied remand again for the same reason, that subsection (b) trumps subsection (a)(3) in this instance:

I just—I think that Subsection (b) of 90.010 trumps the provisions of (a) in this case. And I am uncertain about whether or not the law that was adopted in 2005 should not be applicable to a party that was added in 2017. And the consequences of those two coming together both concern me. Your motion is respectfully denied.

See 3 Mandamus R. 343 (Mot. to Remand Hr'g Tr. (July 17, 2024), at17–23). The trial court declined to state specifically whether subsection (a)(2) or (a)(3) applied. Id. at 344:3–8.

In my view, the trial court's conclusion is correct. First, section 90.003 requires a specific type of physician's report to confirm that a person was “diagnosed with malignant mesothelioma or other malignant asbestos-related cancer” and that “exposure to asbestos was a cause of the diagnosed mesothelioma or other cancer in the exposed person.” TEX. CIV. PRAC. & REM. CODE § 90.003(a). This report must be served on each defendant. Id. This Court confirmed in Adkins that a claimant must serve this report even to claim the section 90.010(a)(3) exemption from the MDL rules, and in the absence of said report, the case may properly be transferred to the MDL court. Adkins, 615 S.W.3d at 609–610 & n.9.²

If the case was properly transferred to the MDL court, the question becomes whether our relators are entitled to a remand, and the answer turns on whether section 90.010(a)(3) trumps 90.010(b). Unlike the exemption in (a)(2), (a)(3) does not contain the 90-day time limit after the statute's effective date. The majority found, and I agree, that it would be incorrect as a matter of statutory interpretation to imply a 90-day time limit in (a)(3). But section 90.010(b) can control, as the trial court concluded, without implying a 90-day time limit. At root, whether a claimant produces a physician's report before or after the transfer to the MDL does matter. Had our claimants served a qualifying 90.003 physician's report on the defendants at any time from the statute's effective date in 2005 until the transfer to the MDL court in 2017, (a)(3) would be the starting point for our analysis—but that is not the case before us. Once the case was properly transferred under section 90.010(b) due to the lack of a physician's report, we must begin our analysis there.

Section 90.010(b) states that if a case was transferred to the MDL court for lack of a physician's report, the MDL court “shall retain jurisdiction.” TEX. CIV. PRAC. & REM. CODE § 90.010(b). Now, the majority reads (b) to apply only to (a)(2) remands, but I disagree that this is necessarily the case. I read (b) to say that if no report was served on the defendants, then the transfer to the MDL court is valid, and the MDL court retains jurisdiction unless the (a)(2) exception applies.³ Nothing in (b) negates its application to any situation in which a 90.003 report was missing—it merely states that (a)(2) is an exception that would apply if the report was filed within 90 days of the statute's effective date.

Further, the Legislature could have included a reference to (a)(3) in (b) had it intended (a)(3) to operate as non-time-bound jurisdiction-stripping provision alongside (a)(2)'s time-bound one. It didn't, and this Court should not imply a jurisdiction-stripping provision into (b) any more than we should imply a time limit into (a)(3). Concluding that the physician's report has to be served on defendants before the defendants transfer the case to the MDL court is also consistent with the statutory scheme: an indefinite and open-ended jurisdiction-stripping provision would run somewhat counter to the stated purpose of the MDL system to promote “convenience, efficiency, and justice.” Adkins, 615 S.W.3d at 585. If (a)(3) is not self-executing, as our precedents have determined, then we must also give some effect to its absence from (b) as a mechanism for remand.

Reading (a)(3) and (b) together, (a)(3) blocks invalid transfers to the MDL court, but if the transfer was valid, (b) controls. Thus, the trial court got the right result, but perhaps for slightly the wrong reason to the extent that it relied on the 90-day time limit in (a)(2) to get there.

Because the trial court got the correct end result, it did not clearly abuse its discretion.⁴ Mandamus should be denied. I dissent.

FOOTNOTES

1.   Outside of this opinion, this Court's decision in Adkins, Massachusetts Bay Ins. Co. v. Adkins, 615 S.W.3d 580, 585 (Tex. App.—Houston [1st Dist.] 2020, no pet.), and the Texas Supreme Court's opinion in In re GlobalSantaFe Corp., 275 S.W.3d 477, 488 (Tex. 2008), no courts have construed 90.010(a)(3). GlobalSantaFe's application is limited because there, the Texas Supreme Court found that the Jones Act, 46 U.S.C. § 30104, did not preempt the state law statutory scheme without directly confronting the interaction of section 90.010(a)(3) and 90.010(b). See GlobalSantaFe, 275 S.W.3d at 488.

2.   GlobalSantaFe, while not squarely addressing the case here in which the claimant asserts a right to remand under (a)(3), says nothing to negate the conclusion that once a case is properly transferred to the MDL court, a physician's report is necessary for a remand. GlobalSantaFe, 275 S.W.3d at 481–82.

3.   Here's how that maps to the statutory language:If no report was filed = “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), ․”Then the transfer is valid = “the defendant may file a notice of transfer to the MDL pretrial court.”And the MDL court retains jurisdiction = “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.Unless the (a)(2) exception applies = “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.”

4.   Because the trial court did not abuse its discretion, we need not address whether there is adequate remedy by appeal. See In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004).

Susanna Dokupil Justice