Dissenting and Concurring Opinions to Denial of Rehearing En Banc filed 

September 20, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00815-CV

THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

V.

RONALD K. ONEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE 

ESTATE OF DANIEL D. ONEY, Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2011-32031

D I S S E N T I N G O P I N I O N T O D E N I A L O F 

R E H E A R I N G E N B A N C

I respectfully dissent to the denial of rehearing en banc.

I agree with the panel majority’s determinations that (1) this court has appellate 

jurisdiction to consider the interlocutory appeal of Kansas City Southern Railway 

Company (KCSR); and (2) this appeal does not pertain to claims based on the decedent’s 

asserted exposure to diesel exhaust.
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I disagree with the panel majority’s affirmance of the MDL court’s order denying 

dismissal and determining that “Plaintiffs are not required to file expert reports 

complying with Tex. Civ. Prac. & Rem. Code [Ch.] 90, et seq.” because this case “arises 

under the Federal Employer’s Liability Act, 45 U.S.C. § 51, et seq.” I would hold that 

the preemption analysis of Chapter 90’s expert report requirements applicable to a Jones 

Act claim for injuries attributed to silica — announced in In re GlobalSantaFe Corp., 275 

S.W.3d 477 (Tex. 2008) (orig. proceeding) — applies with equal force to Chapter 90’s 

expert report requirements governing a Federal Employer’s Liability Act (“FELA”) claim 

for injuries attributed to silica and asbestos exposure. Under this analysis, Chapter 90’s 

report requirement is not preempted by FELA.

Congress indisputably has the power to preempt state law. U.S. Const. art. VI, cl. 

2; Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992). Congress may do so 

expressly or impliedly. Cipollone, 505 U.S. at 516. The intent to preempt state law may 

be explicitly stated in statutory language or implicit in a statute’s structure and purpose. 

Id. Implied preemption can be based on field preemption or conflict preemption. Id. 

Field preemption exists when Congress indicates in some manner an intent to occupy a 

given field to the exclusion of state law. Id. Conflict preemption exists when a state law 

actually conflicts with federal law or stands as an obstacle to accomplishment of 

Congress’s purposes and objectives in enacting a federal law. See, e.g., Shaw v. Delta 

Air Lines, Inc., 463 U.S. 85, 95 (1983). Thus, there are three possible routes to 

preemption.

Close reading is required to identify the exact route at issue in this case because 

appellee Ronald Oney does not clearly delineate the basis for his preemption assertion. 

Nor does the MDL court’s order.

In “Plaintiffs’ Motion for Continuance to Respond, Objections, and Response to 

Defendant Kansas City Southern Railway Company’s Motion for Summary Judgment 

and Motion to Dismiss,” Oney cited 45 U.S.C. § 55 and asserted broadly that “statutory 

requirements are void and preempted by the Federal Employers’ Liability Act.” Oney
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does so again on appeal. Section 55 states: “Any contract, rule, regulation, or device 

whatsoever, the purpose or intent of which shall be to enable any common carrier to 

exempt itself from any liability created by this chapter, shall to that extent be void.” 45 

U.S.C.A. § 55 (West 2007). This provision is inapposite because Chapter 90’s statutory 

expert report requirement is not a “contract, rule, regulation, or device” by which KCSR 

seeks to exempt itself from liability. See Nordgren v. Burlington N. R.R. Co., 101 F.3d 

1246, 1251 (8th Cir. 1996) (Phrase “[a]ny contract, rule, regulation, or device 

whatsoever” refers to “the legal instruments railroads used prior to the enactment of

FELA to exempt themselves from liability.”); see also Downer v. CSX Transp., Inc., 507 

S.E.2d 612, 616 (Va. 1998) (Section 55 “is limited to devices created by railroads to 

exempt themselves from liability.”). If Oney’s citation of 45 U.S.C. § 55 is an attempt to 

assert that Chapter 90 is expressly preempted by statute, the attempt fails.

On appeal, Oney also makes passing references to field preemption in the course 

of asserting that “KCSR is seeking to ‘exempt itself from liability’ under the FELA, 

under the auspices of sections 90.003, 90.004, and 90.007 of the Texas Civil Practices 

and Remedies Code.” The MDL pleading contains no explicit reference to field 

preemption. Insofar as Oney attempts on appeal to argue field preemption in connection 

with Chapter 90, this attempt also fails. The disagreement in this case does not focus on 

whether a federal statutory scheme displaces state law remedies or liability standards. 

See Cipollone, 505 U.S. at 516 (State law is impliedly preempted when federal law so 

thoroughly occupies a legislative field “as to make reasonable the inference that Congress 

left no room for the States to supplement it.”).

This case involves a different inquiry focusing on the interplay of federal 

substantive law and state procedural requirements arising from a FELA case pursued in 

state court. State and federal courts have concurrent jurisdiction over FELA cases. 45 

U.S.C.A. § 56 (West 2008). “The Federal Act prescribes the substantive rights of the 

parties in F.E.L.A. cases, but when filed in our State courts, they are generally to be tried 

in accordance with our own Rules of Civil Procedure.” Mo. Pac. Ry. Co. v. Cross, 501 
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S.W.2d 868, 870 (Tex. 1973); cf. In re GlobalSantaFe Corp., 275 S.W.3d at 484 

(Congress has not preempted the entire field of a maritime law; “[w]here Congress has 

acted in the admiralty area, ‘state regulation is permissible, absent a clear conflict with 

the federal law.’” (quoting Askew v. Am. Waterways Operators, 411 U.S. 325, 341 

(1973))). I agree with the majority that implied conflict preemption is the battleground 

here.

Oney’s MDL court pleading and his appellate brief cite Felder v. Casey, 487 U.S. 

131 (1988), which addressed implied conflict preemption of a state law notice-of-suit 

provision in connection with a claim brought under 42 U.S.C. § 1983. On appeal, Oney 

erroneously characterizes Chapter 90’s expert report requirement as a notice-of-suit 

provision. Felder is inapposite because Chapter 90’s expert report requirement is not a 

notice-of-suit provision and Chapter 90 contains no notice-of-suit requirement. In re 

GlobalSantaFe Corp. is the most pertinent authority because it addresses implied conflict 

preemption of parallel Chapter 90 expert report requirements for silica cases.

The majority approaches implied conflict preemption by minimizing the 

significant differences between Chapter 90’s expert report requirement and the notice-ofsuit mechanism analyzed in Felder. A sounder approach is to acknowledge the 

significant similarities between this Chapter 90 case and In re GlobalSantaFe Corp.’s 

analysis of Chapter 90 preemption in the context of a Jones Act suit for injuries attributed 

to silica.

A unanimous Texas Supreme Court concluded that certain of section 90.004’s 

expert report requirements for silica claimants were not subject to implied conflict 

preemption under the Jones Act. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89.

According to the supreme court, “The requirements embedded in Chapter 90 to 

assure reliable expert confirmation of silica-related diseases are not preempted by the 

Jones Act.” Id. at 486. “Nothing in the Jones Act exempts a seaman claiming a silicarelated disease from establishing, through reliable medical proof, that he in fact suffers 

from such a disease.” Id. “To the extent that Jones Act jurisprudence recognizes a 
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special standard for proving causation, federal cases have held that this causation 

standard does not exempt Jones Act cases from the general rules for admission of expert 

testimony.” Id. at 487 (citing Willis v. Amerada Hess Corp., 379 F.3d 32, 47 (2d Cir. 

2004)). “We see no basis for holding that Texas law generally governing the admission 

of expert testimony, which draws so heavily from federal law, is preempted by the Jones 

Act.” Id. “Therefore, the provisions of Chapter 90 directed at assuring reliable expert 

confirmation of the existence of one of the medically recognized forms of silica-related 

illness are not preempted.” Id. “In short, the principles of Jones Act preemption are 

flexible enough to accommodate general Texas rules governing the admission of expert 

testimony, and also accommodate the Chapter 90 rules specific to expert testimony in 

cases involving silica-related injuries . . . .” Id. at 489.1

In my view, the supreme court’s reasoning in In re GlobalSantaFe Corp. is 

equally applicable to Chapter 90’s expert report requirements in connection with claims 

under FELA for injuries attributed to silica and asbestos exposure. This court already has 

covered much of the same ground as In re GlobalSantaFe Corp. by analyzing the 

intersection between expert testimony standards and FELA’s lower burden of proof. 

“Despite the lower burden under FELA, a plaintiff still bears the burden of presenting 

evidence from which a jury could conclude the existence of a probable or likely causal 

relationship as opposed to a merely possible one.” Abraham v. Union Pac. R.R. Co., 233 

S.W.3d 13, 17 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), cert. denied, 128 S. 

Ct. 1900 (2008). “The lower burden under FELA does not mean that, in FELA cases, 

courts must permit expert testimony that would not be admissible in other contexts.” Id. 

at 19; see also Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d 747, 750-51 (Tex. App.—San 

 

1 The supreme court concluded that a provision addressing a minimum physical impairment 

requirement is preempted. In re GlobalSantaFe Corp., 275 S.W.3d at 489 (citing Tex. Civ. Prac. & Rem. 

Code Ann. § 90.004(b)(2)). KCSR concedes that a parallel minimum physical impairment requirement in 

section 90.003(a)(2)(D) addressing asbestos claims likewise is preempted under FELA. The MDL court 

is the appropriate court to determine in the first instance on a requirement-by-requirement basis whether 

any other provision of sections 90.003 or 90.004 conflicts with FELA. Whatever the result of such an

analysis, it is erroneous to conclude that the report mechanism is preempted in its entirety in connection 

with FELA claims for injuries attributed to silica and asbestos exposure.
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Antonio 2002, no pet.). Oney and the panel majority do not provide a convincing 

rationale for analyzing preemption of Chapter 90’s report requirements in a FELA case 

differently from preemption of Chapter 90’s report requirements in a Jones Act case.

Oney offers two justifications for a different Chapter 90 preemption analysis here. 

Neither justification withstands scrutiny.

First, Oney stresses that “In re GlobalSantaFe involved silica-related claims, not 

asbestos-related claims.” Oney also emphasizes the supreme court’s statement that “we 

have not examined the provisions of Chapter 90 relating to asbestos-related claims, and 

express no opinion on whether any such provisions are preempted.” In re GlobalSantaFe 

Corp., 275 S.W.3d at 489 n.78. This distinction is accurate but hardly dispositive. As 

the supreme court has noted, Chapter 90’s expert report requirements for silica cases in 

section 90.004 and asbestos cases in section 90.003 were born of the Legislature’s 

identification of “an asbestos litigation crisis.” Id. at 482. The Legislature “warned of a 

similar crisis looming over silica-related actions, evidenced by a recent spike in such 

claims, and raising some of the same concerns applicable to the asbestos crisis.” Id. 

Chapter 90’s parallel expert report requirements for silica cases and asbestos cases were 

part of the legislative response. Id. “[B]y requiring detailed expert reports early in the 

litigation process, Chapter 90 endeavors to assure that claims are not brought and pursued 

unless they are supported by reliable expert evaluations of the claimant.” Id. (citing Tex. 

Civ. Prac. & Rem. Code §§ 90.003-90.004). These intertwined circumstances make it 

difficult to justify divergent approaches to Chapter 90 preemption for silica and asbestos 

claims. In addition, Oney has pled that he was exposed to both asbestos and silica and 

that as a result of these substances, he was diagnosed with lung cancer. Under Oney’s 

reasoning he should at least provide a report as to silica exposure.

Second, Oney stresses that In re GlobalSantaFe Corp. analyzed preemption in 

connection with the Jones Act rather than FELA. This argument is not persuasive. 

Concurrent jurisdiction exists in connection with both statutory schemes. See id. at 480 

n.2 (“Under the ‘saving to suitors’ clause of 28 U.S.C. § 1333(1), a Jones Act claim can 
7

be brought in state court.”) (citations omitted); see also 45 U.S.C. § 56. This concurrent 

jurisdiction gives rise to similar tensions between federal substantive law and state 

procedure in both types of cases. More importantly, the Jones Act incorporates FELA by 

reference. See 46 U.S.C.A. § 30104 (West 2008). In light of this incorporation, 

“precedent under the Jones Act is deemed instructive in FELA cases, and vice versa.” 

Butynski v. Springfield Terminal Ry. Co., 592 F.3d 272, 276 n.2 (1st Cir. 2010); see also 

Abraham, 233 S.W.3d at 19 n.2. Therefore, Oney’s second proffered distinction is not 

dispositive.

The majority opinion takes a different tack by focusing on section 90.007’s 

dismissal mechanism, which was not addressed in In re GlobalSantaFe Corp. This 

distinction likewise fails to demonstrate that a divergent preemption analysis is warranted 

in this case. As a threshold matter, it is worth noting that the majority’s concerns 

regarding the effect of dismissal rest in large part on suppositions about the prospects for 

a limitations bar in this and other cases if dismissal occurs — suppositions that run 

counter to Oney’s position that KCSR cannot assert a viable limitations defense in this 

case. In any event, the supreme court’s preemption analysis in In re GlobalSantaFe 

Corp. did not focus on the potential consequences of a failure to comply with expert 

report requirements. Instead, that analysis focused on the compatibility between federal 

standards requiring reliable expert testimony and similar Texas standards reflected in 

Chapter 90. See In re GlobalSantaFe Corp., 275 S.W.3d at 486-89. That should be the 

focus in this case, too.

The majority’s reliance on the possibility of dismissal as the distinguishing factor 

does not withstand scrutiny even if credence is given to suppositions about the potential 

for a limitations bar after dismissal. Also questionable is the majority’s suggestion that 

Chapter 90 preemption analysis turns on whether a claimant can “conduct discovery to 

obtain the information needed to satisfy the report requirements.” Such a suggestion is

— at the very least — in tension with the Legislature’s concern regarding “enormous 

litigation expenses” and its desire for “detailed expert reports early in the litigation 
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process.” Id. at 482. The majority’s distinctions, even if granted the benefit of every 

doubt, ultimately collide with the following longstanding principle: “A state statute 

cannot be considered ‘inconsistent’ with federal law merely because the statute causes the 

plaintiff to lose the litigation.” Robertson v. Wegmann, 436 U.S. 584, 593 (1978).

The panel majority’s holding is incompatible with In re GlobalSantaFe Corp. and 

Abraham; therefore, rehearing en banc is warranted. I respectfully dissent from the 

denial of rehearing en banc.

/s/ William J. Boyce

Justice

En Banc Court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown, 

Boyce, Christopher, Jamison, McCally, and Busby, and Senior Justice Mirabal.2(J. 

Boyce dissenting to denial of rehearing en banc, joined by Justices Brown, Christopher, 

Jamison, and Busby). (J. Frost concurring on denial of rehearing en banc).

 

2

Senior Justice Margaret Garner Mirabal sitting by assignment.