1

Opinion issued August 22, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00847-CV

———————————

ADAN G. ADAME, ROBERT H. ARISPE, HARVEY EDWARD ARNOLD, 

HERMON HARVEY ARNOLD, LUCIANO BARRIENTEZ, HOMER L. 

BATCHELOR, TOMAS BENITEZ, DELBERT RAY BLUNDELL, MELVIN 

BRIONES, TROY BRITT, RAYMOND H. BUTTERFIELD, GUADALUPE 

CALVO JR., RICHARD F. CAPSON, MERCEDES CASTILLO, IGNACIO 

CAVAZOS, HECTOR A. CHAPA, HUMBERTO CHAPA, REX CICERO, 

PALFREY COLLINS, GLENN COURMIER, EDDIE M. CROSS,

FRANCISCO DABDUB, CAROL GENE DABNEY, STEVE DAVIS, NOE 

DE LA CRUZ, JOSE G. DELAPAZ, JOSE DUENES, JESSIE DUNCAN, 

RUDY ENCINAS, JOSE ESQUIVEL, JOSE T. FAJARDO, BENJAMIN D. 

FIELDS, FRANK FRANCO, JESUS CANTU GARCIA JR., PABLO G. 

GARCIA SR., MICHAEL GARY, ALONZO GARZA, HERMILO GARZA 

SR., HOMERO GARZA, OSCAR GARZA JR., PAUL D. GAWLIK, 

MANUEL B. GONZALES, BACILIO M. GUZMAN, CHESTER 

HARRINGTON, NORRIS G. HAWLEY, GERALD HENRY, JOSE A. 

HERNANDEZ, RIGOBERTO HERNANDEZ, C. DELL HODGE JR., 

DAVID HOLLINGSWORTH, KENNETH W. HOUFF, ELMER JAMISON, 

RONNIE L. JOHNSON, CURTIS JONES, JOE KOENIG, ELIAS LEAL, 

ROBERT LEMOS, JOSE G. LONGORIA, ANTONIO LOPEZ, CELSO 

LOPEZ, ARRON LUKE, GEORGE MCFARLAND, ERNEST MECHELL, 

ROBERT MECHELL, JOSE MEZA, CLYDE T. MILLER, KEITH 
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MOORE, JUAN MORALES, TOMAS MORIN, ADALBERTO MUNIZ, 

DANIEL NAVEJAR, ESTEBAN NIETO, DANIEL OCHOA, MARCOS 

ORTIZ, JIMMY PATTERSON, MANUEL C. PAZ SR., ROBERTO PAZ, 

JUAN R. PEREZ, OSCAR PEREZ, VICTOR C. PEREZ, CARL PRENTICE, 

RENE R. RAMIREZ, RAY CHARLES REDMON, BILLY W. 

RICHARDSON, JOSE RIOS, FLOYD H. RODGERS, JOSE Z. ROJAS, 

GEORGE SAENZ, HECTOR SALAZAR, GUADALUPE C. SERNA, JESUS 

SOLIZ, HOWARD LEROY SPEARS, ROGER SPENCER, CARROLL G. 

STARKS, WILLIAM T. TERRAL, CURTIS THOMAS, MARTIN TORRES, 

TEODORO TOVAR, JOSE LUIS URESTI, ENRIQUE G. VILLARREAL 

JR., CLIFTON WEITZEL, ROBERT F. WEITZEL, JOSEPH H. 

WHEELER, JAY C. WHITLOCK, HERBERT WHITMIRE, and 

ABELARDO ZAMBRANO, Appellants

V.

3M COMPANY F/K/A MINNESOTA MINING AND MANUFACTURING 

COMPANY; AEARO COMPANY; AIR EQUIPMENT & REPAIR, INC.; 

AIR LIQUIDE AMERICA L.P.; AIRTROL SUPPLY, INC.; ALAMO 

CEMENT COMPANY; AMCOL INTERNATIONAL CORPORATION; 

AMERICAN COLLOID COMPANY; AMERICAN OPTICAL 

CORPORATION; AMF INCORPORATED & MINSTAR, INC.; ASHLAND 

CHEMICAL, INC.; BACOU-DALLOZ SAFETY, INC. F/K/A DALLOZ 

SAFETY, INC. F/K/A WGM SAFETY CORPORATION D/B/A WILLSON 

SAFETY PRODUCTS; BARRETTS MINERALS INC.; BARRY & BARRY 

SAND COMPANY, INC.; BLACK & DECKER (U.S.), INC.; BOB 

SCHMIDT, INC.; BONDO CORPORATION; CEL INDUSTRIES, INC.; 

CENTRAL READY MIX CONCRETE; CHEVRON U.S.A. INC. F/K/A 

GULF OIL; CHICAGO PNEUMATIC, INC.; CITGO PETROLEUM 

CORPORATION; CITGO REFINING AND CHEMICALS COMPANY, 

L.P.; CLEMCO INDUSTRIES CORPORATION HANSON AGGREGATES 

LLC SUCCESSOR BY MERGER TO PIONEER INTERNATIONAL (USA), 

INC. SUCCESSOR BY MERGER TO HANSON AGGREGATES, INC. 

F/K/A HANSON AGGREGATES CENTRAL, INC. F/K/A PIONEER 

SOUTH CENTRAL, INC. F/K/A PIONEER CONCRETE OF TEXAS, INC.; 

CORPUS CHRISTI EQUIPMENT COMPANY; DEVILBISS OR THE 

DEVILBISS COMPANY (SOMETIMES NAMED AS RANSBURG 

CORPORATION, ITW FINISHING LLC OR ILLINOIS TOOL WORKS 

INC.); E. I. DU PONT DE NEMOURS; E.D. BULLARD COMPANY, INC.;

EASTERN SAFETY EQUIPMENT CO., INC.; EL PASO SAND & 
3

TRUCKING; EMPIRE ABRASIVE EQUIPMENT COMPANY, L.P.; 

EMPIRE ABRASIVE EQUIPMENT CORPORATION; ENCON SAFETY 

PRODUCTS, INC.; ESPEY SILICA SAND COMPANY, INC.;

FAIRMOUNT MINERALS, LTD.; FERRO ENGINEERING DIVISION OF 

ON MARINE SERVICES; FLEX-KLEEN; FLEXO PRODUCTS, INC.; 

GARDNER DENVER, INC.; GENERAL PATTERN COMPANY 

(SUCCESSOR-BY-MERGER TO GENERAL FOUNDRY PRODUCTS 

CORP.); GLENDALE TECHNOLOGIES, INC.; GRANITE CITY TOOLS; 

HAMILTON SUNDSTRAND; HANSON AGGREGATES WEST, INC.; 

HEXION INC. F/K/A MOMENTIVE SPECIALTY CHEMICALS F/K/A 

HEXION SPECIALTY CHEMICALS, INC. AND F/K/A BORDEN 

CHEMICAL, INC.; HUMBLE SAND & GRAVEL, INC.; IDEAL BASIC 

INDUSTRIES, INC.; INDUSTRIAL HOLDINGS CORPORATION F/K/A 

THE CARBORUNDUM COMPANY; INGERSOLL-RAND COMPANY; 

JOBE CONCRETE PRODUCTS; KELCO SALES & ENGINEERING CO., 

A DIVISION OF POLLEY, INC.; KEY HOUSTON, A DIVISION OF 

JACKSONVILLE SHIPYARDS, INC.; KEY HOUSTON, INC., A DIVISION 

OF JACKSONVILLE SHIPYARDS, INC.; LOCKHEED MARTIN 

CORPORATION; LOGAN & WHALEY COMPANY; LONE STAR 

INDUSTRIES, INC.; LOUIS M. GERSON COMPANY, INC.; 

MARTINDALE ELECTRIC COMPANY; MILTON ROY; MINE SAFETY 

APPLIANCES; MISSISSIPPI VALLEY SILICA COMPANY, INC.; 

MOLDEX-METRIC, INC.; NORCROSS; NORTH SAFETY PRODUCTS; 

OGLEBAY NORTON; P.K. LINDSAY COMPANY; PANGBORN 

CORPORATION; PARMELEE INDUSTRIES, INC.; PAULI & GRIFFIN 

COMPANY; PORTER WARNER INDUSTRIES, INC.; PREMIER 

REFRACTORIES, INC., IMPROPERLY NAMED AND SERVED AS 

AMERICAN PREMIER, INC. F/K/A PREMIER REFRACTORIES AND 

CHEMICALS, INC.; PROTECH COATINGS, INC. F/K/A FOUNDRY 

SPECIALTIES, INC.; PULMOSAN SAFETY EQUIPMENT 

CORPORATION; QUIKRETE; RACAL HEALTH AND SAFETY, INC.; 

RUEMELIN IN RECEIVERSHIP; SABINE PROPELLER & MARINE 

SERVICE COMPANY; SAINT-GOBAIN ABRASIVES, INC., F/K/A 

NORTON COMPANY; SCHRAMM, INC.; SCOTT TECHNOLOGIES, 

INC.; SHREVEPORT RUBBER AND GASKET; SIEBE NORTH; SILICA 

PRODUCTS, INC.; SLY, INC. F/K/A W. W. SLY MANUFACTURING CO.;

SOUTHERN SILICA OF LOUISIANA, INC.; SPECIALTY MINERALS 

INC.; SPECIALTY SAND COMPANY; SPENCE CONCRETE COMPANY
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SULLAIR, LLC; SUNDYNE; SURVIVAIR, A DIVISION OF U.S.D. 

CORPORATION; SURVIVAIR, INC.; TECHNISAND, INC.; TEXAS

GASKET; TEXTRON INC.; THE DOW CHEMICAL COMPANY;

THE EASTWOOD GROUP INC. D/B/A THE EASTWOOD COMPANY; 

THE GOODYEAR RUBBER AND TIRE COMPANY; THE HILL AND 

GRIFFITH COMPANY; THE MORIE COMPANY; THORSTENBERG 

MATERIALS CO., INC.; TIDE-AIR; TRIANGLE SUPPLY; TRIPLEX, 

INC.; TRUMAN’S INC.; TWENTIETH CENTURY FOX FILM 

CORPORATION; TXI OPERATIONS, LP; TYROLIT NORTH AMERICA 

INC.; U.S. SILICA COMPANY, FORMERLY KNOWN AS 

PENNSYLVANIA GLASS SAND CORPORATION AND SUCCESSOR IN 

INTEREST THOUGH MERGER TO OTTAWA SILICA COMPANY; 

UNIMIN CORPORATION; UNION CARBIDE CORPORATION; VALERO 

ENERGY CORPORATION; VALLEN CORPORATION; VESUVIUS USA 

CORPORATION; VULCAN MATERIALS COMPANY; WEDRON SILICA 

COMPANY, AN OHIO CORPORATION; WESCO; WESCO 

REFRACTORIES; AND WHEELER PROTECTIVE APPAREL, INC., 

APPELLEES

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2006-76611

OPINION ON EN BANC RECONSIDERATION

We grant Appellants’ motion for en banc reconsideration. The opinion and 

judgment issued on August 30, 2018, is hereby withdrawn, and this en banc 

opinion and judgment are issued in their stead.

Approximately 20 years ago, there was a significant increase in the number 

of suits filed in Texas courts alleging injury from silica exposure. In 2005, the 
5

Texas Legislature created a Silica multidistrict litigation pretrial docket that

established procedures for individual claims to advance to trial.

1

Under the provisions of the Silica MDL statute in chapter 90 of the Civil 

Practice and Remedies Code, each silica claim already pending on August 31,

2005 would remain in the MDL until that particular claimant submitted a medical 

report complying with certain statutory requirements. If a compliant medical report 

was submitted and approved by the MDL Court, that claim would then be 

remanded to the district court for trial. If no medical report was filed, the claim 

would remain pending in the MDL indefinitely. 

Appellants are 106 sandblasters whose already-pending silica claims were 

transferred into the MDL once it was formed. Their claims remained pending in

the MDL for more than 10 years without medical reports being submitted. 

As originally enacted, the MDL statute had no provision for involuntary 

dismissal of silica claims that predated the MDL and were later transferred into it; 

however, the statute was amended in 2013 to allow for the dismissal without 

prejudice of pre-2005 claims if claimants failed to file qualifying medical reports 

by a statutorily specified deadline.

Facing dismissal under the new statutory provision, the sandblasters filed 

their individual medical reports in 2013. Significantly, these medical reports were 

 

1 See TEX. CIV. PRAC. & REM. CODE § 90.001–.012; Act of May 16, 2005, 79th 

Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169.
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not prepared contemporaneously with their filing. Two-thirds of them were 

prepared before May 2005, which means they were written before enactment of the

statute that specifies the required content of a medical report for approval by the 

MDL Court. The remaining one-third were prepared after the statute was 

enacted—between mid-2005 and 2008.

After the sandblasters filed their medical reports, the Silica MDL defendants 

filed individual and global objections to the medical reports, contending the reports

failed to meet various statutory requirements of Chapter 90. The defendants then 

moved to dismiss all 106 sandblasters’ suits for failure to comply with statutory 

requirements by the deadline specified in the 2013 amendment. The MDL Court 

sustained almost all objections and dismissed all the sandblasters’ claims without 

prejudice to refiling. The cases were consolidated, and the sandblasters appealed 

the dismissal of their claims.

In nine issues, the sandblasters argue that Chapter 90 is unconstitutional. We 

affirm.

Background

A Rule 13 pretrial MDL was created in 2004 when the Judicial Panel on 

Multidistrict Litigation determined the then-pending 71 suits filed by 453 plaintiffs 

against 158 defendants involved one or more common questions of fact and 

transfer would be for the convenience of the parties and witnesses and would 
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promote the just and efficient conduct of the cases. In re Silica Prods. Liab. Litig., 

166 S.W.3d 3, 5–9 (Tex. M.D.L. Panel Nov. 10, 2004); see TEX. R. JUD. ADMIN.

13.

In 2005, the Legislature enacted Chapter 90 of the Civil Practice and 

Remedies Code. TEX. CIV. PRAC. & REM. CODE § 90.001–.012; Act of May 16, 

2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169. The new legislation 

created a statutory MDL for silica-related claims. Id. Under the terms of the 

statute, individual cases were held in the MDL until the plaintiffs submitted

medical reports that met all listed statutory requirements. Id. § 90.010(d)

(providing for cases to remain in MDL until report is filed); see id. § 90.004

(specifying required content of medical report for approval). After a qualifying 

medical report was submitted and approved by the MDL Court, a case would be 

returned to the district courts for trial. Id. § 90.010.

All 106 of the sandblasters who are appealing dismissal of their suits had a 

claim pending in the Rule 13 MDL in 2005 when Chapter 90 was enacted. Their 

claims were then transferred to the statutory Silica MDL where they remained for 

over 10 years without remand for trial. 

The purpose behind Chapter 90

The Legislature included official comments when it enacted Chapter 90. Id. 

§ 1, cmts. a–n. According to the official comments, individuals who have been 
8

exposed to silica may have “markings on [their] lungs that are possibly consistent 

with silica exposure, but the individual has no functional or physical impairment 

from any silica-related disease.” Id., cmt. m. The discovery of these markers can 

trigger a statute of limitations problem for the exposed individuals. Id. Individuals’ 

efforts to avoid limitations problems led to a “crush” of suits being filed in the 

courts on behalf of workers who have shown some signs of exposure but have “no 

current impairment and may never have impairment.” Id., cmts. g, m.

The large number of filings has been described as a “situation [that] has 

reached critical dimensions and is getting worse.” Id., cmt. d. To “prevent[] scarce 

judicial and litigant resources from being misdirected by the claims of individuals 

who have been exposed to . . . silica but have no functional or physical impairment 

from . . . silica-related disease,” the Legislature enacted Chapter 90, aimed at

“protect[ing] the right of people with impairing . . . silica-related injuries to pursue 

their claims for compensation in a fair and efficient manner through the Texas 

court system.” Id., cmt. n. 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 the MDL, without any statute-of-limitations 

ramifications, until an impairment was confirmed. Id.; see id. § 90.010(d) 

(providing that cases remain in MDL without dismissal until qualifying 

impairment is established).
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Section 90.004

Section 90.004 requires that certain information be included in a claimant’s 

medical report to qualify for remand to district court for trial and, after the 2013 

amendment, to avoid dismissal. The statute requires medical reports based on silica 

exposure to be prepared by board-certified physicians and to include specific

verifications and findings by the report’s authoring physician. See id. § 90.004. 

The physician must (1) verify that she or a medical professional employed by and 

under her direct supervision and control (a) performed a physical exam of the 

claimant, (b) took a detailed occupational and exposure history, including the 

claimant’s principal employments, exposure to airborne contaminants, and the 

“nature, duration, and frequency” of exposure, and (c) took a detailed medical and 

smoking history, including the claimant’s “past and present medical problems and 

their most probable cause”; and (2) set out in her report the claimant’s 

“occupational, exposure, medical, and smoking history.” Id. § 90.004(a)(1)–(2), 

(e).

The physician must also verify the claimant has “one or more” of the 

following: (1) “a quality 1 or 2 chest x-ray that has been read by a certified Breader according to the ILO system of classification[2]

as showing . . . bilateral 

 

2 Chapter 90 defines “ILO system of classification” as “the radiological rating

system of the International Labor Office in ‘Guidelines for the Use of ILO 
10

predominantly nodular opacities (p, q, or r) occurring primarily in the upper lung 

fields” with a specified “profusion grading”; (2) “pathological demonstration of 

classic silicotic nodules exceeding one centimeter in diameter as published in 

‘Diseases Associated with Exposure to Silica and Nonfibrous Silicate Minerals,’

112 Archives of Pathology and Laboratory Medicine 7 (July 1988)”;

3

(3) “progressive massive fibrosis radiologically established by large opacities 

greater than one centimeter in diameter”; or (4) “acute silicosis.” Id. 

§ 90.004(a)(3). 

In addition to these verifications, detailed statements, and medical 

conclusions, the physician’s report must be “accompanied by copies of all ILO 

classifications, pulmonary function tests, including printouts of all data, flow 

volume loops, and other information demonstrating compliance with the 

equipment, quality, interpretation, and reporting standards set out in this chapter, 

lung volume tests, diagnostic imaging of the chest, pathology reports, or other 

 

International Clasification of Radiographs of Pneumoconioses’ (2000), as 

amended.” TEX. CIV. PRAC. & REM. CODE § 90.001(11).

3

In September 2005, the MDL Court provided an interpretation of the statute to all 

parties, which is in the clerk’s record, memorializing that the parties had agreed 

the “original statutory language ‘nodules exceeding one centimeter’” should read 

“nodules less than 1 cm in diameter.” There is no indication in the record that any 

party objected to this statement or sought an alternative statutory interpretation 

from the MDL Court.
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testing reviewed by the physician in reaching the physician’s conclusions.”4Id. 

§ 90.004(a)(4).

For silicosis claims, the statute requires physician verification of a 

claimant’s impairment. Id. § 90.004(b). The physician must verify that (1) there 

has been a sufficient latency period for the type of silicosis alleged; (2) the 

claimant has “at least Class 2 or higher impairment due to silicosis, according to 

the American Medical Association Guides to the Evaluation of Permanent 

Impairment and reported in 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), 

Sections 3.00(E) and (F) (2003)”; and (3) the physician has concluded the medical 

findings and impairment “were not more probably the result of causes other than 

silica exposure” as possibly signified by the claimant’s occupational, exposure, 

medical, and smoking history. Id. For silica-related lung cancer and another silicarelated disease, the statute lists additional requirements. § 90.004(c)–(d).

Thus, to qualify under Section 90.004, a claimant’s medical report must 

contain certain, specific findings, diagnoses, and verifications by the boardcertified physician who authors the report. The content of the report must be based 

on the claimant’s physical examination and pulmonary function testing, and it must 

 

4 The same MDL Court statutory-interpretation filing directs that a standard 

pulmonary-function report is not required to include pulmonary-function-testing 

compliance data or detailed printouts of how the tests were performed; however, 

“any PFT [pulmonary function testing] data reviewed by the physician to reach his

conclusion must accompany the report.”
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take into account the American Medical Association (AMA) Guides, federal 

regulations concerning appropriate testing to establish a respiratory impairment,5

and a medical article published in the Archives of Pathology and Laboratory 

Medicine. 

Section 90.010

Section 90.010 directs when a case may transfer from the statutory MDL to 

the trial court. Id. § 90.010. It specifically states it applies to Rule 13 MDL cases 

that were pending when Chapter 90 was enacted. Id. §90.010(a). Thus, its 

provisions apply to all 106 sandblasters’ claims. 

Section 90.010 requires the statutory Silica MDL Court to retain jurisdiction 

over pending suits and not to remand them for trial until the individual claimants 

file medical reports complying with Section 90.004 or, alternatively, with a limited 

“safety valve” provision found in Section 90.010(f). Id. § 90.010(d); see id. 

§90.010(f)–(j). Until a qualifying report is filed and approved, the cases remain 

inactive. See id. § 90.010.

Silica MDL judge’s Section 90.010(k) report

Section 90.010(k) requires the Silica MDL Court to present a report to state 

government officials five years after statututory enactment that details the total 

number of cases on the docket as well as the number of those cases that do not 

 

5 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F) 

(2003).
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meet the criteria for a Section 90.004 compliant medical report; states the Silica 

MDL Court’s “evaluation of the effectiveness of the medical criteria established by

Section . . . 90.004”; recommends “how medical criteria should be applied”; and 

includes any other administrative information the statutory Silica MDL Court 

deems appropriate. Id. § 90.010(k).

The Silica MDL Court submitted the required report in September 2010.6

The judge declined to comment on policy issues related to the statute:

[A]s to whether the criteria themselves or the minimum levels of

impairment are appropriate, I am not in a position to ethically opine. 

This is more appropriately a matter for the law makers . . . . It all 

depends on what the law makers of Texas believe the definition of 

“impairment” should be to allow a claimant to proceed in court in 

these cases.

However, the MDL Court did provide statistical information regarding the 

progression of the docket. As of August 1, 2010, there were 667 cases in the silica

MDL, representing 5,839 “exposed persons.” Only 54 of the individual claimants

had filed medical reports under Section 90.004. Only half of those had been 

submitted to the MDL Court for evaluation: 

 

6 http://www.justex.net/JustexDocuments/24//Section%2090.010%28k%29%20 

Report.pdf
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Claimants who had filed a medical report 

54

– Number who had not yet been evaluated by MDL 

Court because report was withdrawn from 

consideration or never submitted 

28

– Number who had filed and submitted report for 

consideration 26

● Number who had been approved

22

● Number who had not yet been determined

1

● Number who were not approved because 

defendants’ objection(s) were sustained 3

None of the remaining 5,817 claimants had filed medical reports in the five years 

the MDL had existed.

Section 90.010(d-1) dismissal procedure

In 2013, the Legislature amended Section 90.010 to establish a procedure for 

dismissal of silica cases filed before the 2005 legislation was enacted but for which 

no medical report were submitted by a specified deadline. Id. § 90.010(d-1). The 

MDL Court could begin dismissing pre-2005 cases for failure to file compliant 

medical reports in September 2014 and was required to complete the dismissals of 

such claims by August 2015. Id.

The Legislature further amended the statute to provide that dismissals under 

Subsection (d-1) would be without prejudice to the filing of a subsequent action 
15

and that any refiled action would be treated as through it had never been dismissed. 

Id. §§90.010(l)–(n).

An effort to enjoin the dismissal of claims under Subsection (d-1)

Before the September 2014 date on which dismissal of pre-2005 cases could 

begin, all 106 sandblasters filed a joint request for injunctive relief, seeking to 

enjoin enforcement of 90.010(d-1). They argued the medical-report requirement 

was “oppressive and unreasonable” and nearly impossible to satisfy. They 

presented various constitutional challenges as a facial challenge to the statute, 

meaning that the statute, by its terms, always operates unconstitutionally. See New 

York State Club Ass’n v. City of New York, 487 U.S. 1, 11 (1988). The MDL Court

denied the sandblasters’ motion for injunctive relief for jurisdictional deficiencies. 

A panel of this Court affirmed the MDL Court’s order denying injunctive 

relief, holding that a motion seeking to enjoin a court from enforcing a statute is 

not a proper vehicle to challenge a statute’s constitutionality. In re Tex. State Silica 

Prods. Liab. Litig., No. 01-15-00251-CV, 2016 WL 757873, *8 (Tex. App.—

Houston [1st Dist.] Feb. 25, 2016, no pet.) (stating that, when court determines 

statute is unconstitutional, it “does not enjoin itself from enforcing a defective law; 

it merely declares the law unconstitutional.”). After the sandblasters’ interlocutory 

appeal was denied, the case proceeded in the MDL Court.
16

The sandblasters began filing their Section 90.004 medical reports as

required by the 2013 amendment to Section 90.010(d-1) to avoid dismissal. 

Defendants filed general objections and specific objections to individual medical 

reports or subsets of reports. The sandblasters responded. Defendants then filed a 

“motion to dismiss any plaintiff whose medical records are deemed not compliant 

with Chapter 90,” and all parties filed related responses and briefing. The 

sandblasters argued both that their medical reports complied with the statutory 

requirements and that the statute was unconstitutionally vague. The MDL Court 

held a hearing on the pending motions.

The MDL Court issued its rulings in separate orders for each sandblaster. 

Each order overruled one general objection (as to the timeliness of the medical 

report filings) and sustained all other general and individual objections to that 

sandblaster’s medical report. The MDL Court dismissed each individual

sandblaster’s claim. By agreement, the cases were consolidated for appeal.

The sandblasters filed a joint appellate brief, contending Chapter 90 is 

unconstitutionally vague in several respects and is an unconstitutional retroactive 

law. 
17

Constitutional Vagueness Challenges

The sandblasters raise five challenges to Chapter 90 premised on a 

constitutional vagueness argument. We consider each argument separately, but 

first, we review the standard for a constitutional vagueness challenge to a civil 

statute.

A. Vagueness standard for civil statutes

Under the United States Constitution, “[i]t is a basic principle of due process 

that an enactment is void for vagueness if its prohibitions are not clearly defined. 

Vague laws offend several important values.” Grayned v. City of Rockford, 408 

U.S. 104, 108 (1972). Vague laws “may trap the innocent by not providing fair 

warning” and can “impermissibly delegate[ ] basic policy matters to policemen, 

judges, and juries for resolution on an ad hoc and subjective basis, with the 

attendant dangers of arbitrary and discriminatory application.” Id. at 108–09. To 

avoid these dangers, the Due Process Clause requires that laws be reasonably clear. 

As the United States Supreme Court explained, due process

ensures that state power will be exercised only on behalf of policies 

reflecting an authoritative choice among competing social values, 

reduces the danger of caprice and discrimination in the administration 

of the laws, enables individuals to conform their conduct to the 

requirements of law, and permits meaningful judicial review.

Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984).
18

Both the United States Supreme Court and the Supreme Court of Texas have 

applied the principle that statutory language may not be so vague that persons “of 

common intelligence must necessarily guess at its meaning and differ as to its 

application.” Connally v. Gen’l Constr. Co., 269 U.S. 385, 391 (1926); Tex.

Antiquities Comm. v. Dallas Cty. Comm’y Coll. Dist., 554 S.W.2d 924, 928 (Tex.

1977) (plurality opinion) (quoting same).

“Although the vagueness standard applies most frequently to penal statutes, 

a civil statute may also be so vague that it violates due process.” Bradley v. State 

ex rel. White, 990 S.W.2d 245, 252 (Tex. 1999) (Abbott, J., concurring); see A.B. 

Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239–40 (1925) (explaining that 

rationale stated in previous vagueness cases is not limited to criminal cases 

because “[i]t was not the criminal penalty that was held invalid, but the exaction of 

obedience to a rule or standard which was so vague and indefinite as really to be 

no rule or standard at all”); Tex. Antiquities Comm., 554 S.W.2d at 927–28 

(striking down civil statute as unconstitutionally vague). “The degree of clarity that 

the vagueness standard . . . requires ‘varies according to the nature of the statute, 

and the need for fair notice or protection from unequal enforcement.’” Bradley, 

990 S.W.2d at 252 (Abbott, J., concurring); see Vill. of Hoffman Estates v. The 

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (in directing that 

vagueness standard not be mechanically applied, stating, “The degree of vagueness
19

that the Constitution tolerates—as well as the relative importance of fair notice and 

fair enforcement—depends in part on the nature of the enactment.”).

There is “greater tolerance of enactments with civil rather than criminal 

penalties because the consequences of imprecision are qualitatively less severe.” 

Id. Statutes that “do not impose criminal penalties and those that do not threaten to 

inhibit the exercise of constitutionally protected rights are subject to a less strict 

vagueness test.” Raitano v. Tex. Dep’t of Pub. Safety, 860 S.W.2d 549, 551 (Tex. 

App.—Houston [1st Dist.] 1993, writ denied). A civil statute violates due process 

only if it requires compliance in terms “so vague and indefinite as really to be no 

rule or standard at all.” A.B. Small Co., 267 U.S. at 239; see State ex rel. N.P.N., 

No. 12-06-00283-CV, 2007 WL 1139907, at *1 (Tex. App.—Tyler Apr. 18, 2007, 

no pet.) (mem. op.) (quoting same).

When considering an attack on a statute’s constitutionality, we begin with a

presumption the statute is valid and the Legislature did not act arbitrarily or 

unreasonably in enacting it. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex. 1974). 

We must uphold a statute if a reasonable construction can be determined that will 

render it constitutional. Rowan Drilling Co. v. Sheppard, 87 S.W.2d 706, 707 (Tex. 

1935) (orig. proceeding). The burden rests on the individual challenging a statute 

to prove its unconstitutionality. Robinson, 507 S.W.2d at 524. 
20

B. Incorporation of 20 C.F.R. Part 404 into Chapter 90 does not render the 

statute unconstitutionally vague

There are 106 sandblasters appealing the dismissal of their suit. Of those, 

five do not have medical records in the appellate record. An additional 58 

sandblasters do not have medical records that reflect an impairment rating of Class 

2 or higher. Thus, more than half of the sandblasters cannot establish on this record 

that they submitted medical reports containing the statutorily required impairment 

finding. See TEX. CIV. PRAC. & REM. CODE § 90.010(d-1) (requiring dismissal of 

claims without compliant medical report submitted); § 90.004(b)(2) (requiring 

medical reports for silicosis claimants to contain board-certified physician’s 

verification that “the exposed person has at least Class 2 or higher impairment due

to silicosis”).

Defendants asserted objections against more than half of the 106 

sandblasters’ medical reports for failing to include the requisite impairment finding

and moved for dismissal of those claims. The objections were sustained.

The sandblasters do not argue the MDL Court erred in concluding some of 

their medical reports did not have the requisite impairment finding. Instead, they 

argue dismissal for this reason is improper because Section 90.004 is 

unconstitutionally vague because the subsection imposing a requirement of a Class 

2 impairment finding refers to the AMA Guides and then references the Code of 

Federal Regulations even though the AMA Guides “are not reported in the 
21

referenced section of the C.F.R.” The challenged provision requires a silicosis 

claimant to submit a medical report verifying that 

the exposed person has at least Class 2 or higher impairment due to 

silicosis, according to the American Medical Association Guides to 

the Evaluation of Permanent Impairment and reported in 20 C.F.R.

Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F) 

(2003).

Id. § 9.004(b)(2). According to the sandblasters, creating an understanding in a 

reader that a cited material can be found at a location where it cannot be found 

creates a constitutional infirmity in a statute. We cannot agree with their argument 

for two reasons.

First, we do not read the above provision to suggest that the AMA Guides 

are located in the C.F.R. but, instead, that the impairment determination is to be 

made in accordance with what is reported in the C.F.R. at the specified location. 

The referenced portion of the C.F.R. discusses testing used to evaluate respiratory 

disorders in the context of social security disability determinations. See 20 C.F.R. 

Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and (F) (2003). There, 

Subsection 3.00(E) explains “[w]hat is spirometry and what are our requirements 

for an acceptable test and report” to demonstrate a respiratory disorder, and 

Subsection 3.00(F) explains “[w]hat is a DLCO [diffusing capacity of the lungs for 

carbon monoxide] test, and what are our requirements for an acceptable test and 

report” in establishing a respiratory disorder. Id.; see also id. Section 3.00(C)(9) 
22

(defining DLCO). The statute does not purport to provide a citation to where AMA 

Guides can be located and read. Rather, it refers to recognized testing standards 

that apply when making a respiratory-disorder impairment determination.

Second, even if the reference to the C.F.R. was meant to be a citation for a 

reader to locate the AMA Guides, we fail to see why an incorrect citation would 

render the statute unconstitutionally vague. The sandblasters have not argued they 

are unable to locate copies of AMA Guides from any source and must rely on this 

single citation to find controlling materials. They argue no more than that the 

provided citation does not lead to a recitation of applicable Guides. An incorrect 

citation in this context—which would be analogous to a broken link to an 

otherwise accessible webpage—does not cause Chapter 90 to be unconstitutionally 

vague because it does not leave a person of common intelligence guessing at the

statute’s meaning or reduce it to no standard or rule at all. See A.B. Small Co., 267 

U.S. at 239; Tex. Antiquities Comm., 554 S.W.2d at 928.

We hold that this citation argument does not support a conclusion that 

Section 90.004(b)(2) is unconstitutionally vague. We affirm the dismissal of the 63

sandblasters who did not submit medical reports with the requisite impairment 

finding. These sandblasters are listed below:
23

Adan Adame

Roberto Arispe

Harvey Arnold

Hermon Arnold

Luciano Barrientez

Troy Britt

Raymond Butterfield

Richard Capson

Mercedes Castillo

Rex Cicero

Palfrey Collins

Glenn Courmier

Eddie Cross

Carol Dabney

Jose De La Paz

Jose Duenes

Benjamin Fields

Frank Franco

Jesus Garcia

Alonzo Garza

Hermilio Garza

Oscar Garza

Paul Gawlik

Manuel Gonzales

Bacilio Guzman

Chester Harington

Norris Hawley

Rigoberto Hernandez

Kenneth Houff

Elmer Jamison

Curtis Jones

Joe Koenig

Elias Leal

Roberto Lemos

Celso Lopez

George McFarland

Robert Mechell

Jose Meza

Clyde Miller

Keith Moore

Esteban Nieto

Marcos Ortiz

Jimmy Patterson

Manuel Paz

Juan Perez

Ray Redmon

Billy Richardson

Jose Rodgers

Jose Rojas

George Saenz

Hector Salazar

Guadalupe Serna

Jesus Soliz

Howard Spears

Carroll Stakrs

Curtis Thomas

Martin Torres

Enrique Villarreal

Robert Weitzel (deceased)

Clifton Weitzel

Joseph Wheeler

Jay Whitlock

Herbert Whitmire

We will consider the remaining constitutional challenges in light of the

MDL Court’s ruling on objections to the remaining 43 claimants.
24

C. Requirement that medical report contain verification by report’s 

physician-author regarding the collection of medical and occupational 

history is not unconstitutionally vague

Defendants objected to the medical history, occupational history, or both 

histories for multiple sandblasters. We affirm the dismissal of 13 sandblasters

because, first, their medical reports did not contain a verification by the physicianauthor that the physician (or a medical professional employed by and under the 

direct supervision and control of the physician) took a detailed medical and 

smoking history that includes a thorough review of the exposed person’s past and 

present medical problems and their most probable cause and, second, the 

medical/occupational history requirement is not unconstitutionally vague. See TEX.

CIV. PRAC. & REM. CODE § 90.004(a)(1).

1. Meaning of “detailed medical history” and “detailed occupational

exposure history” 

The sandblasters argue Section 90.004(a)(1)’s requirement that a boardcertified physician verify she (or a medical professional employed by and under 

her direct supervision) “took a detailed occupational and exposure history from the 

exposed person” and “took a detailed medical and smoking history that includes a 

thorough review of the exposed person’s past and present medical problems and 

their most probable cause” is unconstitutionally vague. See id. § 90.004(a)(1)(B–

C). They attribute the vagueness to the lack of a statutory definition for the terms 

“detailed occupational and exposure history” and “detailed medical . . . history.”
25

Chapter 90 contains a definition section in which 29 terms are defined, but 

“detailed occupational and exposure history” and “detailed medical . . . history” are 

not among them. Cf. id. § 90.001 (defining certain terms used in Chapter 90). 

Nonetheless, Section 90.004 provides guidance on the meaning of these phrases. 

Section 90.004(e) states that the “detailed occupational and exposure history 

required by Subsection (a)(1)(B) must describe . . . the exposed person’s principal 

employments and state whether the exposed person was exposed to airborne 

contaminants, including silica and other dusts that can cause pulmonary 

impairment; and . . . the nature, duration, and frequency of the exposed person’s 

exposure to airborne contaminants, including silica and other dusts that can cause 

pulmonary impairment.” Id. § 90.004(e). Section 90.004(A)(1)(C) explains that a 

“detailed medical and smoking history” should include “a thorough review of the 

exposed person’s past and present medical problems and their most probable 

cause.” Id. § 90.004(a)(1)(C). 

We conclude these provisions amply describe what is meant by the statutory 

phrases “detailed occupational and exposure history” and “detailed medical . . . 

history” so as not to be so vague that persons “of common intelligence must 

necessarily guess at its meaning.” See Connally, 269 U.S. at 391; Tex. Antiquities 

Comm., 554 S.W.2d at 928.
26

2. Verification regarding medical history 

Aside from whether these terms are sufficiently understandable to survive a 

vagueness challenge, there appears to be an incongruence between the objections 

asserted against the medical reports and the sandblasters’ argument with regard to 

their medical histories. For several sandblasters, Defendants asserted an “objection 

to insufficient medical history.” A closer reading of the objection reveals that the 

argument is not that the medical histories lack detail, which is the argument the 

sandblasters appear to respond to with the above vagueness challenge. Instead, the 

objection is that Section 90.004(a)(1)(C) requires the submitted medical report to 

include a physician verification that “the physician or a medical professional 

employed by and under the direct supervision and control of the physician . . . took 

a detailed medical . . . history,” yet the objected-to sandblasters’ medical reports

have no such verification. There is a medical history, but there is no verification by 

the physician-author that she (or a qualifying medical professional) took the

medical history. Defendants argue the sandblasters without an appropriate 

verification failed to comply with statutory requirements. This is the objection 

asserted by Defendants and sustained by the MDL Court.
27

Our review of the medical records of the remaining 43 claimants reveals 13

whose medical reports did not include physician verifications.

7 The MDL Court 

did not err in sustaining the medical-history objection to these 13 sandblasters, and 

we affirm their dismissal:

Thomas Benitez David Hollingsworth

Melvin Briones Juan Morales

Francisco Dabdub Daniel Navejar

Jessie Duncan Carl Prentice

Jose Fajardo Jose Rios

Michael Gary Abelardo Zambrano

Gerald Henry

 

7 Why these 13 sandblasters’ medical reports lacked verifications might be 

understood, at least in part, by considering the history of this type of litigation and 

taking into account when the medical reports were prepared compared to when the 

MDL statute was enacted. As noted in the official comments to Chapter 90, there 

was a great deal of activity in silica-exposure litigation in the early 2000s, when

thousands of claims were filed in state district courts because of concerns about 

limitations issues. Those claimants submitted to x-rays and other testing for 

evidence of silica exposure and to physician exams by physicians who then 

prepared contemporaneous medical reports discussing illness diagnoses and 

impairment findings. These medical reports for these 13 sandblasters were

prepared in 2005, within a few months of Chapter 90 being enacted. Their medical 

reports were not supplemented, as some were for other claimants with older 

reports. Thus, these 13 sandblasters were relying on medical reports prepared at a 

time when the physician-author may not have known Chapter 90’s requirements 

for a qualifying medical report.

As the sandblasters have noted, there were cost considerations when evaluating 

whether to amend older medical reports before submitting them to the MDL 

Court, but the MDL procedures certainly allowed amended medical reports to be 

filed. The record reflects that, on at least one occasion, a claimant who is not part 

of this appeal filed amended medical reports and then was able to move for 

remand and a trial setting. Still other claimants filed single-page supplements in 

which physicians added the verifications required by Section 90.004. These 13 

sandblasters did not amend or supplement their medical reports, but there was 

nothing in the statute preventing them from doing so.
28

This leaves 30 sandblasters.

D. Failure to designate the AMA Guides edition that would control

evaluation of medical reports does not render statute unconstitutionally 

vague

Defendants objected that some sandblasters’ medical reports did not confirm 

exercise testing as part of their medical evaluations. The MDL Court sustained the 

objections. The sandblasters argue Chapter 90 is unconstitutionally vague because 

the various editions of the AMA Guides are inconsistent regarding the requirement 

of exercise testing and the statute does not specify which edition is to be followed, 

creating uncertainty as to whether the statute requires exercise testing. They argue 

the statute “lacks definiteness or certainty” and violates due process guarantees.

The record does not support the sandblasters’ uncertainty argument. In 

March 2006, the MDL Court issued a supplement to its recommended checklist for 

medical reports and documentation.8 The supplement states that the fifth edition of 

the AMA Guides to the Evaluation of Permanent Impairment “shall be used to 

determine impairment.” It further states that, “[i]f the AMA publishes a new 

edition of the AMA Guides, the new edition shall apply to medical reports based 

on examinations or testing performed on or after the date of publication of the new 

edition.” And, to further clarify, it adds, “If a new edition is published, medical 

reports that have already been approved under the current [fifth] edition shall not 

 

8 The supplement is in the record and was attached to the sandblasters’ response to 

the objections to their medical reports.
29

be subject to the new edition.” None of the parties contend the trial court erred in 

determining that the statute requires the application of the guidelines in effect at 

the time of testing. 

To the extent the sandblasters chose to rely on their pre-written medical 

reports, the MDL Court indicated in 2006 their reports would be evaluated under 

the fifth edition’s requirements. If the sandblasters amended their reports, their new 

reports would be evaluated under the version of the AMA Guides in existence 

when the underlying examinations and testing were performed. If the sandblasters

preferred the impairment criteria in the sixth edition, additional testing and an 

amended report would have brought the reports within its requirements.

Ten of the remaining sandblasters submitted medical reports that pre-dated 

the 2006 MDL Court supplemental filing, in which the MDL Court stated that 

already-performed medical testing would be analyzed under the fifth edition. None 

of them amended their reports over the next decade. In that context, there was no 

uncertainty whether the fifth edition applied to their reports: it clearly did. Because 

the following sandblasters did not submit medical reports with the required data on 

exercise testing, the dismissal was not error with regard to these 10 sandblasters: 

Noe De La Cruz

Ronnie L. Johnson

Jose Longoria

Victor Perez

Roberto Paz

Daniel Ochoa

Humberto Chapa

Rudy Encinas

Dell Hodge

Roger Spencer
30

This leaves 20 sandblasters.

E. Requirement of certain x-ray findings indicating lung abnormalities is 

not unconstitutional

The sandblasters’ next constitutional argument is that Section 

90.004(a)(3)(A) arbitrarily requires medical reports to contain a finding from the xrays that the claimant’s pulmonary scarring is “predominately nodular” and 

“primarily in the upper lung fields,” even though silicosis can be a lower-lobe 

disease. By requiring these specific findings, they argue, Chapter 90 wrongly 

excludes claimants who have atypical silicosis or pneumoconiosis, which can 

present primarily in the lower lobes of the lungs. They contend these statutory 

limitations are unreasonable, arbitrary, and capricious. 

Subsection (f) of Section 90.010 is referred to as a “safety value” provision. 

It establishes a path to medical-report approval for claimants whose medical 

profiles do not match the Section 90.004 criteria. Under Subsection (f), a claimant 

who cannot meet Section 90.004(a)(3)’s requirements but does comply with 

Section 90.004(a)(1), (2), and (4) has another option: a physician can verify there 

is a physician-patient relationship between the physician-author of the report and 

the claimant, pulmonary function testing was performed, and the physician has 

concluded, to a reasonable degree of medical probability, that the claimant has 

“radiographic, pathologic, or computed tomography evidence establishing bilateral 

pleural disease or bilateral parenchymal disease caused by exposure to . . . silica; 
31

and . . . has . . . silica-related physical impairment comparable to the impairment” 

the claimant would have had if he had met the criteria in Section 90.004. Id. 

§ 90.010(f)(1)(B). Under Subsection (f), neither the “predominantly nodular” 

requirement nor the “primarily in the upper lung fields” requirement applies. 

Compare id. § 90.004(a)(3), with § 90.010(f)(1)(B)(iii-iv). Subsection (f) was 

available to sandblasters who did not present with typical findings. None of the 

remaining 20 sandblasters moved for consideration under Subsection (f). 

Sections 90.004 and 90.010 must be analyzed in light of the statute as a 

whole. See Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n of City of 

Lubbock, 616 S.W.2d 187, 190 (Tex. 1981). Taking into account Subsection (f), 

which presents an alternative means to establish an injury and impairment, the

specificity of Section 90.004 does not create an arbitrary approval process that 

denies the sandblasters due process.

We overrule this constitutional challenge and conclude the MDL Court did 

not err in dismissing the following 20 sandblasters for failure to submit medical 

reports with the requisite findings:
32

Homer Batchelor

Delbert Blundell

Guadalupe Calvo

Ignacio Cavazos

Hector Chapa

Steve Davis

Jose Esquivel

Pablo Garcia

Homero Garza

Jose Hernandez

Antonio Lopez

Aaron Luke

Ernest Mechell

Tomas Morin

Adalberto Muniz

Oscar Perez

Rene Ramirez

William Terral

Teodoro Tovar

Jose Uresti

We have concluded the MDL Court did not err in sustaining certain 

objections to various subsets of sandblasters and have overruled the sandblasters’

constitutional challenges to the statutory provisions on which those particular 

objections were based. We turn next to the sandblasters’ global constitutional 

challenges to Sections 90.004 and 90.010 that are not tied to any specific 

objections.

Global Constitutional Challenges Not Tied to Any Specific Objections

Claimants assert two global constitutional challenges to Sections 90.004 and 

90.010. 

A. MDL Court’s statutory authority to evaluate the sufficiency of medical 

reports does not render Chapter 90 unconstitutionally vague

The sandblasters challenge the statutory framework of Chapter 90 granting

the MDL Court authority to determine whether a medical report complies with 

Section 90.004’s requirements. They argue the “framework places the Court in the 
33

precarious position of rendering medical opinions and providing medical 

interpretation even though the Court has no specialized training in medicine or 

impairment evaluations.” They further argue “the statute allows untrained courts 

and lawyers to interpret highly technical medical articles” without fully 

understanding their content, which denies the sandblasters due process. 

This argument is reminiscent of initial challenges to the expert-reliability 

framework established in Daubert and Robinson. See Daubert v. Merrell Dow 

Pharms., Inc., 509 U.S. 579 (1993); E.I. du Pont de Nemours & Co., Inc. v. 

Robinson, 923 S.W.2d 549, 557 (Tex. 1995) (rejecting arguments that (1) “judges 

are not competent to assess the scientific reliability” of expert evidence and (2) 

judges should not be cast in “role of amateur scientist”). Since Robinson, a body of 

law has developed that confirms trial judges’ role in assessing the reliability of 

expert opinions and the data underlying their opinions, including evidence 

concerning medical diagnoses and medical causation. See, e.g., Transcont’l Ins. 

Co. v. Crump, 330 S.W.3d 211, 215–20 (Tex. 2010) (analyzing reliability of 

treating physician’s diagnostic methodology and evaluating whether analytical gap 

exists between plaintiff’s medical data and physician’s causation opinion).

The sandblasters assert that judges and lawyers are “untrained” in medicine 

and do not have the necessary “specialized training” required to “interpret highly 

technical medical articles” or access “impairment evaluations.” But, Texas courts 
34

have consistently rejected arguments built on a supposition that trial courts are 

incapable of assessing scientific issues.9 See Robinson, 923 S.W.2d at 557–58 

(rejecting contention that judges must be “trained in science to evaluate the 

reliability of a theory or technique”; accepting that judges are “capable of 

understanding and evaluating scientific reliability”); see also Merrell Dow Pharm., 

Inc. v. Havner, 953 S.W.2d 706, 713, 730 (Tex. 1997) (stating that courts should 

independently evaluate scientific data underlying expert’s opinion as part of 

determining whether expert’s opinion is reliable).

In Havner, the Supreme Court of Texas analyzed the scientific data and 

medical literature underlying an expert’s opinion that there is a causal link between 

 

9 There are a number of reasons it is appropriate to have judges determine complex 

scientific issues before cases proceed to trial within a crowded docket like an 

MDL. The trial process uses court and litigant resources on particular claimants, 

leaving other claimants waiting in the queue. Those waiting might be more 

impaired than those who reach the trial phase first if there is not a procedure in 

place to prioritize the more seriously ill claimants. The Legislature created a 

separate MDL for silica-based claims and supplemented the judge’s salary in 

recognition that the judge would need to allocate sufficient time to manage the 

docket and analyze complex procedural and scientific issues and evidence. The 

judge has resources available for evaluating evidence that would not be available 

to a jury if the decisional process for determining the adequacy of a gatekeeping 

report was delegated to a jury. The judge has the opportunity to read and study any 

underlying articles and scientific studies supporting medical conclusions, the 

ability to conduct or direct additional research on an issue or to require additional 

hearings or evidence, and, finally, the procedural flexibility to ask questions of 

designated experts and to hire, appoint, and confer with experts beyond those 

designated by the parties. See Harvey Brown, Procedural Issues Under Daubert, 

36 Hous. L. Rev. 1133, 1176–77 (1999) (stating that “a judge may not be smarter 

than a jury, but the judge has resources that are unavailable to the jury” to equip 

the judge to analyze complex expert issues).
35

ingestion of a drug during pregnancy and a subsequent birth defect, and the Court 

held there was no scientifically reliable evidence to support the causation opinion, 

meaning there was legally insufficient evidence to support the jury’s verdict 

finding the pharmaceutical company liable for the birth defects. See Havner, 953 

S.W.2d at 730. As Havner demonstrates, while the task can be daunting at times, 

judges have the duty as gatekeepers to evaluate scientific evidence, medical expert 

opinions, and the data underlying them.

Section 90.004 requires a medical report to contain various physician 

verifications, set forth relevant histories, contain a diagnosis and impairment 

finding, and attach relevant medical records relied on by the physician in reaching 

her conclusions. See TEX. CIV. PRAC. & REM. CODE § 90.004. We fail to see how a 

statute requiring a court to evaluate the content of a medical report for these items 

is so vague that it is “no rule or standard at all.” See A.B. Small Co., 267 U.S. at

239 (setting forth civil vagueness standard).

Nor do we see how the specific scientific area of study addressed in the 

statute—silica-related illnesses and impairment—contributes to vagueness. 

The Texas Supreme Court has noted the similarity between the MDL 

Court’s role under Chapter 90.004 and trial courts’ role, generally, in evaluating 

the reliability of medical experts’ methodologies and underlying data. See In re 

GlobalSanteFe Corp., 275 S.W.3d 477, 487 (Tex. 2008). The issue in that case 
36

was whether the Jones Act preempts various Chapter 90 features. See id. In 

detailing the Chapter 90 features, the Court stated that “Section 90.004 tracks 

widely if not universally recognized criteria for reliably diagnosing the existence of 

silica-related illnesses.” Id. The Court offered four examples of Section 90.004 

requirements aimed at ensuring reliability: (1) Section 90.004(a)(1)’s requirement 

that a “board-certified physician conduct a detailed occupational and exposure 

history is directed at assuring—early in the litigation so as to conserve judicial and 

litigant resources—that the claim of silica-related injury is supported by medically 

reliable expert review”; (2) Section 90.004(a)(3)’s requirement that the expert 

observe specific findings that are the “standardized method of medical science to 

identify chronic or classic silicosis and distinguishing it from asbestosis”;

(3) Section 90.004(b)(1)’s requirement that the physician verify a sufficient latency 

period “to assure that the claimant is in fact suffering from a silica-related disease 

under established medical science”; and (4) Section 90.004(a)(3)(A)’s requirement 

that a qualified B-reader make certain findings to further “assure that the reader has 

found at least some abnormality in the x-ray.” Id. 

Section 90.004’s criteria are “directed at assuring reliable expert 

confirmation of the existence of one of the medically recognized forms of silicarelated illness,” and an expert’s “failure to establish these criteria is grounds for 

rejecting expert testimony under Daubert,” even if the criteria were not 
37

incorporated into Chapter 90. Id. at 487–88. Section 90.004’s requirements 

“represent the Legislature’s attempt to require a medically valid demonstration of 

silica-related disease as opposed to mere exposure to silica or some other substance 

or mere concern that a disease may develop in the future.” Id. at 488.

The Court also noted “it is vitally important for a physician to take a 

thorough occupational/exposure history and medical history” to “rule out the 

multitude of other causes of the radiographic findings.” Id.

The Court’s statements in In re GlobalSanteFe are consistent with our 

conclusion that authorizing a court to evaluate whether a medical report complies 

with Section 90.004’s requirements does not violate the sandblasters’ right to due 

process. We overrule the sandblasters’ constitutional challenge premised on the 

argument that trial courts are incapable of assessing complex medical materials and 

expert medical opinions related to the diagnosis of silicosis and related 

impairment.

B. The addition of Section 90.010(d-1) through a 2013 amendment does not 

make the statute an unconstitutional retroactive law

The sandblasters contend Section 90.010(d-1), which was added to Chapter 

90 in 2013 through a statutory amendment, is an unconstitutionally retroactive law.

Subsection (d-1) created a procedure, which had not existed under the earlier 

version of Chapter 90, for the dismissal of pre-2005 claims that had been pending 

in the MDL for nearly a decade without medical reports being submitted. See TEX.
38

CIV. PRAC. & REM. CODE § 90.010(d-1). Subsection (l) stated dismissal under

Subsection (d-1) would be without prejudice to refiling. Id. § 90.010(l).

The sandblasters acknowledge dismissal under Subsection (d-1) for failing 

to file a conforming medical report is without prejudice to refiling; however, they 

assert dismissal is still prejudicial because they will not be able to recapture some 

of the defendants that have already answered and appeared and because dismissal 

will cause them to lose their financial investment in their cases, including already 

incurred costs for filing fees, court records, deposition transcripts, and experts. The 

sandblasters argue the costs associated with these expenses and attorney work 

would be lost if their cases were dismissed.

1. Applicable law

The Texas Constitution prohibits “retroactive law[s].” TEX. CONST. art. I, 

§ 16; see Houston Indep. Sch. Dist. v. Houston Chronicle Pub. Co., 798 S.W.2d 

580, 585 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (“Texas law militates 

strongly against the retroactive application of laws.”). 

An unconstitutional retroactive law is one that “takes away or impairs vested 

rights acquired under existing law.” McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 

1955); see Retroactive law, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining 

as law that “divests vested rights”). A “vested right” is an immediate right or 

entitlement; expectations and contingencies do not qualify. See Kissick v. Garland 
39

Indep. Sch. Dist., 330 S.W.2d 708, 712 (Tex. Civ. App.—Dallas 1960, writ ref’d 

n.r.e.). “When the authority granting the right has the power and discretion to take 

that right away, it cannot be said to be a vested right.” Ex parte Abell, 613 S.W.2d

255, 262 (Tex. 1981); see McCain, 284 S.W.2d at 900. 

A statute can apply retroactively and yet not be a “retroactive law” if the 

right it affects did not accrue before the statute became effective. See Houston 

Indep. Sch. Dist., 798 S.W.2d at 585.

2. The sandblasters have no vested right to the application of the 

pre-amended version of Chapter 90

The sandblasters’ suits all pre-dated the enactment of Chapter 90. When they

filed their claims, they were governed by the general rules of procedure and 

evidence and faced the possibility that their claims would be dismissed for want of 

prosecution if they lingered without advancement. See TEX. R. CIV. P. 165a(2) 

(providing that cases not disposed of within applicable time standards may be 

placed on dismissal docket). 

It was after the sandblasters initiated their suits that the Legislature enacted 

Chapter 90’s procedural scheme to permit silica-related claims to remain within the

court’s jurisdiction, protected from dismissal. See TEX. CIV. PRAC. & REM. CODE 

§ 90.010(a)(1), (b), (d). The sandblasters benefitted from this law because their 

claims remained on the MDL docket, in a holding pattern, for more than a decade

without the risk of dismissal for lack of prosecution. And, the sandblasters received 
40

a second benefit from the 2005 enactment of Chapter 90: they did not risk going to 

trial when they had lung markings “possibly consistent with silica exposure” but 

“no functional or physical impairment.” They could wait until they had a medically 

verified impairment to go to trial, at which point they would have the potential for 

a larger damages award.

After the MDL Court submitted its Subsection (k) report in 2010, showing 

that only 54 of over 5,000 claimants had filed medical reports, the Legislature 

amended the statute to add Subsection (d-1) and require claimants to take the next 

step in their case progression or face dismissal. Those who filed qualifying medical 

reports would be remanded to district court for trial; those who did not would be 

dismissed without prejudice to refiling. Id. § 90.010(d-1), (l). Staying indefinitely

in the holding pattern would no longer be an option.

The statute specifically provides that a claim dismissed under Subsection

(d-1) and later refiled “is treated for purposes of determining the applicable law as 

if that claimant’s action had never been dismissed but, instead, had remained

pending until the claimant served a report that complied with . . . Section 90.004 or 

Subsection (f)” of Section 90.010. Id. § 90.010(n). Moreover, a claimant dismissed 

under Subsection (d-1) who elected to refile a claim would be given the option to 

use more “cost-efficient” service options when they renewed their claim, such as 

certified mail. See id. § 90.010(o).
41

When these sandblasters first asserted their claims, general docketing rules

controlled and Robinson expert requirements applied. They would have anticipated 

needing to accumulate and present evidence of a medical diagnosis and establish 

medical causation through an expert. They had no “vested right” to have their 

claims remain on a court’s docket indefinitely without producing reliable medical 

evidence of an impairment caused by silicosis. See In re GlobalSanteFe, 275

S.W.3d at 487. Nor did the addition of Subsection (d-1) divest them of their right 

to proceed to trial once they had reliable medical evidence. While Section 

90.010(d-1) acts retroactively, it is not an unconstitutional retroactive law that 

divests the sandblasters of vested rights.

Furthermore, to the extent the sandblasters contend Chapter 90, generally, 

prevents the advancement of their cases due to its medical-report requirements, the 

statute includes Section 90.010(f), which is a “safety value” procedure through 

which sandblasters whose illness progressions do not match medical criteria in 

Section 90.004 may establish an injury through alternative proof, including 

submission of a medical report from a treating physician with equivalent, though 

not identical, findings. Id. § 90.010(f). 

Having concluded Section 90.010(d-1) is not an unconstitutional retroactive 

law, we overrule this final constitutional challenge to the statute.
42

Conclusion

We affirm the trial court’s judgment.

Sarah Beth Landau

Justice

Justice Landau, joined by Chief Justice Radack and by Justices Keyes, Higley, 

Lloyd, Kelly, Goodman, Hightower, and Countiss.