1

Opinion issued August 22 , 2019

In The



## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 16
- 00847
- CV

——————————— ADA N G. ADAME, ROBERT H. ARISPE, HARVEY EDWARD ARNOLD, HERMON HARVEY ARNOLD, LUCIANO BARRIENTEZ, HOMER L. BATCHELOR, TO MAS BENITEZ, DELBERT RAY BLUNDELL, MELVIN BRIONES, TROY BRITT, RAYMOND H. BUTTERFIELD, GUADALUPE CALVO JR., RICHARD F. CAPSON, MERCEDES CAST ILLO, IGNACIO CAVA ZOS, HECTOR A. CHAPA, HUMBERTO CHAPA, REX CICERO, PALFREY COLLINS, GLENN COURMIER, EDDIE M. CROSS, FRA NCISCO DABDUB, CAROL GENE DABNEY, STEVE DAVIS, NOE DE LA CRUZ, JOSE G. DELAPAZ, JOSE DUENES, JESSIE DUNCAN, RUDY ENCINAS, J OSE ESQUIVEL, JOSE T. FAJARDO, BENJAMIN D. FIELDS, FRANK FRANCO, JESUS CANTU GARCIA JR., PABLO G. GARCIA SR., MICHAEL GARY, ALONZ O GA RZA, 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. HOU FF, 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, KEITH2

MOORE, JUAN MORALES, TOM AS MORIN, ADALBERTO MUNIZ, DANIEL NAVEJAR, ESTEBAN NIETO, DANIEL OCHOA, MARCOS ORTIZ, JIMMY PATTERSON, MANUEL C. PAZ SR., ROBERTO PAZ, J UAN R. PEREZ, OSCA R PEREZ, VICTOR C. PEREZ, CARL PRENTICE, RENE R. RAMIREZ, RAY CHARLES REDMON, BILLY W. RICHARDSON, JOS E RIOS, FLOYD H. RODGERS, JOSE Z. ROJAS, GEORGE SAENZ, HECTOR SALAZAR, GUADALUPE C. SERNA, JESUS SOLIZ, HOWARD LEROY SPEARS, ROGER SPENC ER, CARROLL G. STA RKS, WILLIAM T. TERRAL, CURTIS THOMAS, MARTIN TORRES, TEODORO TOVAR, JOSE LUIS URESTI, ENRIQUE G. VILL ARREAL JR., CLIFTON WEITZEL, ROBERT F. WEITZEL, JOSEPH H. WHEELER, JAY C. WHITLOCK, HERBERT WHITMIRE, and

ABELARDO ZAMBRANO, Appella nt s

V. 3M COMPANY F/K /A MINNESOTA MINING AND MANUFACTURING COMPANY; AEARO COMPA NY; AIR EQUIPMENT & REPAIR, INC.; AIR LI QUID E AMERICA L.P.; AIRT ROL SUPPLY, INC.; AL AMO CEMENT COMPANY; AMCO L INTERNATIONAL CORP ORATION; AMERICAN COLLOID COM PANY; AMERICAN OPTIC AL CORPORATION; AMF I NCORPORATED & MINSTA R, INC.; ASHLAND CHEMICAL, INC.; BACO U
- DALLOZ SAFETY, INC . F/K/A DALLOZ SAFETY , IN C. F/K/A WGM SAFETY CORPORATION D/B/A WI LLSON SAFETY PRODUCTS; BAR RETTS MINERALS INC.; BARRY & BARRY SAND COMPANY, INC.; BLACK & DECKER (U.S.), INC.; BOB SCHMIDT, INC.; BONDO CORPORATION; CEL IN DUSTRIES, INC.; CENTRAL READY MIX CO NCRETE; CHEVRON U.S. A. INC . F/K/A GULF OIL; CHICAGO PN EUMATIC, INC.; CITGO PETROLEUM CORPORATION; CITGO R EFINING AND CHEMICAL S COMPANY, L.P.; CLEMCO INDUSTR IES CO RPORATION HANSON A GGREGATES LLC SUCCESSOR BY MER GER TO PIONEER INTER NATIONAL (USA), INC. SUCCESSOR BY ME RGER TO HANS ON A GGREGATES, INC. F/K/A HANSON AGGREGA TES CENTRAL, INC. F/ K/A PIONEER SOUTH CENTRAL, INC. F/K/A PIONEER CONCRE TE OF TEXAS, INC.; CORPUS CH RISTI EQUIPMENT CO MPANY; DEVILBISS OR THE DEVILBISS COMPANY (S OMETIMES NAMED AS RA NSBURG CORPORATION, ITW FIN ISHING LLC OR ILLINOIS TOOL WOR KS INC.); E. I. DU PONT DE NEMOURS; E.D. BU LLARD COMPANY, INC.; EASTERN SAFETY EQUIP MENT CO., INC.; EL P ASO SAND &3

T RUCKING ; EMPIRE AB RASIVE EQUIPMENT COM PANY, L.P.; EMPIRE ABRASIVE EQUI PMENT CORPORATION; E NCON SAFETY PRODUCTS, INC. ; ES PEY SILICA SAND COMP ANY, INC.; FAIRMOUNT MINERALS, LTD.; FERRO ENGINEER ING DIVISION OF ON MARINE SERVICES; FLEX
- KLEEN; FLEXO PR ODUCTS, INC.; GARDNER DENV ER, INC.; GENERAL PA TTERN COMPANY (SUCCESSOR
- BY
- MERGER TO GENERAL FOUNDRY PRODUCTS CORP.); GLENDAL E TE C HNOLOGIES, INC.; GRA NITE CITY TOOLS; HAMILTON SUNDSTRAND; HANSON AGGREGATES W EST, INC.; HEXION INC. F/K/A MO MENTIVE SPECIALTY CH EMICALS F/K/A HEXION SPEC IALTY CHEMICALS, INC . AND F/K/A BORDEN CHEMICAL, INC.; HUMB LE SAND & GRAVEL, IN C.; IDEAL BASIC IND USTR I ES, INC.; INDUSTRIAL HOLDINGS CORPORATIO N F/K/A THE CARBORUNDUM COMP ANY; INGERSOLL
- RAND COMPANY; JOBE CONCRETE PRODUC TS ; KELCO SALES & ENGINEERING CO., A DIVISION OF POLLEY, INC.; KEY HOUSTON, A DIVISION OF JACKSONVILLE SHIPYAR DS, INC.; KEY HOUSTO N, I NC., A DIVISION OF JACKSONVILLE SHIP YARDS, INC.; LOCKHEE D MARTIN CORPORATION; LOGAN & WHALEY COMPANY; LON E STAR INDUSTRIES, INC.; LO UIS M. G ERSON COMPANY, INC .; MARTINDALE ELECTRIC COMPANY; MILTON ROY; MINE SAFETY APPLIANCES; MISSISSI PPI VALLEY SILICA CO MP ANY, INC.; MOLDEX
- METRIC, INC.; NORCROSS; NORTH SAF ETY PRODUCTS; OGLEBAY NORTON; P.K. LINDSAY COMPANY; PA NGBORN CORPORATION; PARMELE E INDUST RIES, INC.; PAULI & GRIFFIN COMPANY; PORTER WARN ER INDUSTRIES, INC.; PREMIER REFRACTORIES, INC., IMPROPERLY NAMED AN D SE R VED AS AMERICAN PREMIER, IN C. F/K/A PREMIER REF RACTORIES AND CHEMICALS, INC.; PRO TECH COATINGS, INC. F/K/A FOUNDRY SPECIALTIES, INC.; P ULMOSAN SAFETY EQU IPMENT CORPORATION; QUIKRET E; RACAL HEALTH AND SAFETY, INC.; RUEMELIN IN RECEIVER SHIP; SABINE PROP ELLE R & MARINE SERVICE COMPANY; SAI NT
- GOBAIN ABRASIVES, INC., F/K/A NORTON COMPANY; SCHR AMM, INC.; SCOTT TEC HNOLOGIES, INC.; SHREVEPORT RUB B ER AND GASKET; SIE BE NORTH; SILICA PRODUCTS, INC.; SLY, INC. F/K/A W. W. SL Y MANUFACTURING CO.; SOUTHERN SILICA OF L OUIS I ANA, INC.; SPECIALTY MINERALS INC.; SPECIALTY SAND COMPANY; SPENCE CON CRETE COMPANY4

SULLAIR, LLC; SUNDYN E; SURVIVAIR, A DIVI SION OF U. S.D. CORPORATION; SURVIVAIR, INC.; TEC HNISAND, INC.; TEXAS GASKET; TEXTRON INC. ; THE DOW CHEMICAL C OMPANY; THE EAST WOOD GR OUP INC. D/B/A THE E ASTWOOD COMPANY; THE GOODYEAR RUBBER AND TIRE COMPANY; TH E HILL AND GRIFFITH COMPANY; TH E MORIE COMPANY; THO RSTEN BERG MATERIALS CO. , INC.; TIDE
- AIR; TR IANGLE SUPPLY; TRIPL EX, INC.; TRUMAN’S INC.; TWENTIETH CENTURY F OX FILM CORPOR ATIO N; TXI OPERATIONS, LP; TYROLIT NORTH AMERIC A INC.; U.S. SILICA CO MPANY, FORMERLY KNOW N AS P ENNSYLVANIA GLASS SA ND CORPORATION AND S UCCES SOR IN INTEREST TH OUGH MERGER TO OTTAW A SILICA COMPANY; UNIMIN CORPORATION; UNION CARBIDE CORPOR ATION; VALERO ENERGY COR POR ATION; VALLEN CORPOR ATION; VESUVIUS USA CORPORATION; VULCAN MATERIALS COMPANY; W EDRON SILICA COMPANY, AN OHIO COR PORATION; WESCO ; WES CO R EFRACTORIES; A ND WHEELER PROTECTIV E APPAREL, INC. , APPELLEE S
On Appeal from the 333rd District Court

Harris Co unty , T exas Trial Court Ca se No. 2006
- 76611

OPINION ON EN BANC RECONSIDE RATION We grant Appellants’ motion for en banc reconsid eration

. The opin ion and judgment issued on August 30, 2018, is her eby withdrawn , and this en banc opinion and judgment are iss ued in their stead. Approximately 20 years ago, there was a significant increase in the number of s uits filed in Texas courts alleging injury from silica exposure. In 2005, t he5

Texas L egislature created a Silica multidi stri ct litigation pretrial docket th at

e sta blished 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 C ode , each silica claim already pending on A ugust 31,
200 5 would remain in the MDL until that pa rticular claim ant submit ted a medical report complying with certain statutory requirements

. If a compliant medical report

w as submitted and approved by the MDL Court, that claim would then be remanded to t he distr ict court for trial. If no medical r epor t w as filed, the cl aim would remain pending in the MDL indefinitely

. Appellants are 106 sandblasters who se already

- pending silica claims were transferred into the MDL once it was formed. Their claims remained pend in g in the MDL for more than 10 years with out medical reports bei ng submitted

. As origi nally enacted , the MDL statute had no provision for involuntary dismissal of silica claim s that predated the MDL and were later transferred into it ; however, the statu te was amended in 2013 to allow for the dis mis sal without prejudi ce of pre

- 200 5 claims if claimants fai l ed to file q ualifying medical report s by a statutorily specified deadline

. Facing dismissal under the new statutory provision , the sandblasters filed
th e i r in dividual medical reports in 2013

. Si gni ficantly , the s e medical reports were

1 See T EX
. C IV
. P RAC

. & R EM
. C ODE § 90.001

– .012; Act o f M ay 16, 2005, 79th Leg., R. S ., ch. 97, § 1, 2005 Tex. Ge n. L aw s 169.6

not pr epared contemporaneously with their filing

. Two

- thirds of them were prepared before May 2005, which means they were written before enactment of the
statute t hat specifies the required content of a medical r epor t f or approv al 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 , t he Silica MDL defendants filed indi v idu al and global objections to the medi cal 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 t he d e a dline specified in the 2013 am endm ent

. The MDL C ourt sustained almost all object ions and dismissed all the sandblasters ’ claims without prejudice to refiling

. The cases were consolidated, and the san dblasters appealed the dismissal of their claims.
I n ni ne issues, the s andblasters argu e th at Chapter 90 is unconstitutional. We affirm. Background A Rule 13 pretrial M DL was created in 2004 when the Judicial Panel on
Multidistrict Litig ation determined the then

- pending 71 suits filed by 453 plaintiffs
aga inst 158 defendants involve d one or more co mmon questions of fact and transfer would be for the convenie n ce of the parties and witnesses and would7

promote the just and effici ent 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 T EX
. R. J UD
. A DMIN
. 13

. In 2005, the Legislature enacted Chapter 90 of the Civil Practice a nd Remedies Code. T E X
. C IV
. P RAC
. & R EM
. C ODE § 90.001

– .012 ; Act of May 16, 2005, 79th Leg ., R. S., ch. 97, § 1, 2005 Tex. Gen. La ws 1 69. The new legislation

crea ted a s tat utory MDL for silica

- related claims. Id. Under the terms of the statute, individual cases were held in th e MDL until the plaintiffs submi t t ed medical reports that me t all listed statutory requirements. Id. § 90.010 (d) (pr oviding for cases to remain in M DL until report is filed); see i d. § 90.004 (specifying required content of medical report f or approval) . After a qualifying medical report was submitted and approved by the MDL C ourt , a case would be
returned to the dis tric t courts for trial. Id. § 90 .010

. All 106 of the sandblasters who are appealing dismissal of their suit s had a claim pendin g in the Rule 13 MDL in 20 0 5 when Chapter 90 was enacted. Their claims were then transferred to the statutory Silica MDL where t hey remained for over 10 years w itho ut remand for trial

. The purpose behind Chapter 90 The Legislature included official comments when it enacted Chapte r 90. Id. § 1, cmts. a

– n. A ccording to the official comments, individuals who have been8

exposed to sili ca m ay have “markings on [their] lun gs that are possibly consistent with silica exposure, but the individual has no functional or physical impairment
fro m any silica

- related disea s e.” Id. , cmt. m . The discovery of these markers can trigger a statute of lim itat ions problem for the exposed ind ivi duals. Id. Individuals’
efforts to avoid limitations problems led to a “crush” of suits being filed in the

courts on behalf of workers who have s h ow n some signs of exposure but have “no current impairment and may nev e r ha ve impairment.” Id. , cmt s . g , m. T he large number of filings has been described as a “situation [that] has reached critical dimensions and is getting wo rse.” Id. , cmt. d. To “prevent[] scarce judicial and litigant resources from being misdirected by the c laim s of individuals who hav e be en exposed to

. . . silica but have no functional or physical impairment from

. . . silica

- related disease,” the Legislat ure enacted Chapter 90, aimed at “protect[ing] the right of people with impairing

. . . silica

- related inju ries to pursue their cla ims for compensation in a fair and efficient manner through the Texas court system

. ” Id. , cmt. n . Chapter 90 creat ed a bifurcated system t o allow those with confirmed impair m ent to proceed to trial while those without a confirmed impairment woul d re main in the MD L, without any statute

- of

- limitations ramifications, until an impairment was confirmed. Id. ; see id. § 90.010(d) (providing that ca ses remain in MDL without dismissal until q ualifying impairment is established ).9

Section 90.004 Section 90. 004 require s that ce rta in information be included in a claimant ’ s medical report to qualify for remand to district court for trial and, after the 2013

ame ndment, to avoid dismissal. T he statute requires medical reports based on silica

e xposure to be prepare d by board

- cert if ie d p hysicians and to include specific verifications and findings by th e report’s authoring physician. See i d. § 90.004. The physician must ( 1 ) verify that sh e or a medical professional employed by and under her direct supervisi on and control ( a ) per formed a ph ysic a l exam of the claimant, ( b ) took a detailed occupational and exposure history , including the claimant’s principal employments, expos ure to airborne contaminants, and the “nature, duration, and frequency” of expos ure , and ( c ) took a det aile d medic a l a nd smoking history , including the claimant’s “past and present medical problems and their most probable cause ” ; and ( 2 ) set out in her rep ort the cl a imant’s “occupational, exposure, medical, and smoking history.” Id. § 90.004(a)(1)

– (2), (e).
Th e physi c ian 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 B

r eader according to the ILO system of classification [ 2 ] as showing

. . . bilate ral

2 Chapter 90 defines “ ILO system of classification ” as “ the radiological rating system of the International Labor Office in ‘ Guidel ines for the Use of ILO10

predominantly nodular opa cities ( p, q, or r) occurring primarily in the upper lung fields” with a specified “profusion grading” ; (2) “pathological demonstration of
classic silic otic n odules exceeding one centimeter in diameter as published in

‘ Diseases Associated with Exposure to Silica a nd Nonfibrous Silicate Minerals, ’ 112 Archives of Pathology and Laboratory Medicine 7 (July 1988)” ; 3 (3) “progressive massive fibrosis radiologi cally established by large opacities greater than one centimeter in diamete r” ; or (4) “acute silicos is.” Id. § 9 0.0 04(a)(3). In addition to these verifications, detailed statements, and medical conclusions, the physician’s report must be “accompanied by c opies of all ILO classifications, pulmonary function tests, including print outs of all data, flow

vo lume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lun g vol u me tests, diagnostic imaging of the chest, pathology reports, or othe r

I nternational Clasification of Radiographs of Pneumoconioses ’ (2000), as amended

. ” T EX
. C IV
. P RAC

. & R EM
. C ODE § 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 centime ter’” should r ead “nodules less than 1 cm in diameter.” There is no indication in the record that any party objected to this state ment or sought an alternative statutory interpretati on from th e MDL Court.11

testing reviewed by the phy sician i n r eaching the physician’s conclusions.” 4 Id. § 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) th ere has been a sufficient latency peri od for t he type of silicosis alleged ; (2) the claimant has “at least Class 2 or higher impairment due to silicosis, according to the American Medica l As sociation Guides to the Evaluation of Permanent Impairment and rep orted in 20 C.F.R. Part 404, Subpa rt P , Appen d ix 1, Part (A), Sections 3.00(E) and (F) (2003) ” ; and (3) the physician has concluded the medical findings and impairment “were not mor e probabl y the result of causes other than silica exposure” as possibl y signified by the claimant ’ s occupatio nal, exposu r e, medical, and smoking history. Id. For silica

- related lung cancer and another silica

related disease, the statute lists add i tional requirement s . § 90.004(c)

– (d). Thus, to qualify under Section 90.004, a claimant ’ s medical report must contain cert ain, sp e cif

ic findings, d iagnoses, and verifications by the board

certified physician who author s the report. The c ontent of the report must be based

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

4 The same MDL Cour t statuto ry - interpre tation fili ng directs t hat a standard pulmonary

- fun ction report is not required to include pulmonary

- function

- testing compliance data or deta iled printouts of how the tests were performed; howe ver , “an y PFT [pulmonary function testing] data revi ewed by the physician to reach h is conclusion must accompany t he report.”12

take into account t he A merican Med ical Associatio n ( AMA ) Guides , federal regulations concerning appropriate testing to establish a respiratory impairment, 5
and a medic a l article published in the Archives o f Pathology and Laboratory Medic ine. Section 90.010 Section 90.010 d irec ts when a c ase 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 enact ed. Id. §90.01 0(a). Thus, its provisions apply to all 106 sandblaster s ’ c laims

. Sec tion 90.010 requires the statutory Silica MDL C ourt to retain jurisdiction

over pending suits and not to remand them for trial until the individual claimants file medical rep o rts complying with Section 90.004 or, alternatively, with a limited

“ s afety v a lve ” provision found in Section 90.010(f). Id. § 90.010(d); see id. §90.010 (f)

– (j). Until a qualifying r e port is filed and approved, the cases remain inactive. See i d. § 90.010

. Silic a M DL judge’s Section 90.010(k) report Section 90.010(k) require s the Si l ic a MDL Court to present a report to state government officials five years after statut utory enactment that details the total number of cases on the docket as well as the number of thos e cas es that do not

5 20 C.F.R. Part 404, Subpart P, Appendix 1, Part (A), Sections 3.00(E) and ( F) (2003).13

meet the criteria for a Section 90.004 com pl i a nt m e di c al report; states the Silica
MDL C ourt’s “evaluation of the effectiveness of the medical criteria established b y Section . . . 90.004”; recommends “how medical criteria should be app lied” ; and includes any other administrati ve information the s tatutory Si l ica MDL C ourt deems appropriate. Id. § 90.010(k).
The S ilica MDL Court submitted the required report i n Septemb e r 2010. 6 The judge declined to comment on policy issues related to the stat ute: [A]s to whether the criteria themselves or the minim um level s o f impairment are appropriate, I am not in a position to ethically opine. This is more appropriately a matter for t he law makers . . . . It all depends on what the law makers of Texas belie ve the definition of “impairment” should be to allow a cl aimant t o p r oceed in court in these cases. However, the MDL C ourt did provide statistical information regarding the
progres s i on of the docket. As o f August 1, 2010, there were 667 cases in the s ilica
MDL , representing 5,839 “exposed persons.” Only 54 of th e indivi d ua l claimants had filed medical reports under Section 90.004. Only half of those had been submitted to the MDL C our t for evaluation:

6 ht tp://www.justex.net/JustexDocument s /2 4// Section%2090.010%28k%29%20 Report.pdf14

Claimants who ha d filed a medical report 54

– Numb er who had not yet been evaluated by MDL Court because re port was wi t hdrawn from consideration or never submitted 28

– Number who had filed and submitted report for c onsideration 26

● Number who had been a pprove d 22

● Number who had n ot yet been determined 1

● Number who were not approve d be cause de f en d ants’ objection(s) were sustained 3

None of the remaining 5,817 claimants had filed medical report s in the five year s the MDL had existed

. Section 90.010(d

- 1) d ismissal procedure In 2013, the Legislature amended Section 90.010 to establish a proce d ur e for dismiss al of silica cases filed before the 2005 legislation was enacted but for which no medical report were submitte d by a specified deadline

. Id. § 90.010(d

- 1)

. The MDL Court could begin dismissing pre

- 2005 cases fo r failure t o file compliant

me d ica l reports in September 2014 and was required to complete the dismissals of
such cl a i ms by August 20 15. Id. The Legislature further amended the statute to pr ovide that dismissal s under Subsection (d

- 1) would be without prejudi ce to the f i ling of a subse q uen t action15

and that any refiled action would be treated as through it had never been di s m issed. Id. §§90 .010( l )

– (n). An effort to enjoin the dismissal of clai ms under Subsection (d

- 1) Before the September 2014 date on which dis missal of p r e - 2005 cases co u ld begin , all 106 sandblasters filed a joint request for injunctive relief, seeking to enjo i n enforcement of 90.010 (d

- 1)

. They argued the medical

- report requ irement was “oppressive and unreasonable ” and nearly impossible to sati sfy. They
p r esented various con stitutional challenge s as a facial challenge to the statute, meaning that the s tatute, by its terms, a lways operates unconstitutionally. See New
Yor k State Club Ass’n v. City of New York , 487 U.S. 1, 11 (1988). T h e MDL Court denied the s a ndblasters ’ mo t ion for injunctive relief for jurisdictional deficiencies. A panel of this Court affirmed the MDL C ourt’ s order denying injunctive relief, holding that a motion seeking to enjoin a court from enforcing a statut e is not a proper vehicle to challenge a sta t ute ’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 i s unconstitutional, it “d o es not e njoin itsel f fr om enforcing a defectiv e law; it merely declares the law unconstitutional.”). After the sandblasters ’ inte rlocutory appeal was denied , the case proceeded in the MDL C ourt.16

The sandblas ters began filing their Secti on 90.004 medica l reports a s required b y th e 2013 amendment to Section 9 0.0 10(d

- 1) to avoid dismissal

. Defendants filed general objections and specif ic objections to individual medical reports or subsets of reports

. The s andblasters responde d

. Defendants then filed a “mot ion to dism i ss any plai n tif f whose medical records are deemed not compliant with Chapter 90 , ” and all parties filed relate d responses and briefing. The sandblasters argued bo th that their medical reports complied with the statutory requirements and that th e statute w a s unconstit u tio nally vague. The MDL Court held a hearing on the pending motions

. Th e MDL C ourt is sued its rulings in sep arate orders for each sandblaster

. E ach order overruled one general objection (as to the timeliness of the medical report f ilings) and sustained a l l o ther general and individual objections to that
sandblaster ’s medical repo rt. The MDL C ourt dismiss e d each individual sandblaster ’ s claim

. By agreement , t he cases were consolidated for appeal. The sandblasters filed a joint appell ate brief , c ontending C h apt er 90 is unconstitutionally vague in several respects and is an unconstitutional retro a ctive law.17 Constitutio nal Vagueness Challeng es The s andblasters raise five challeng es to Chapter 90 premised on a constitutional vagueness argum ent. We con si der eac h ar gument separately, but first, we review the standard for a constitutional vagueness c hallenge to a civil
statu te. A. Vagueness standa rd for civil statutes Under the United States Constitution, “[i]t is a basic principle of due process
that an ena ct ment is voi d for vagueness if its prohibitions are not clearly define d. Vague laws offend sever a l important values.” Gray ned v. City of Rockf ord , 408 U.S. 104, 108 (1972). Vague laws “may trap the innocent by not providing fair warning” and ca n “impermis si bly del e gat e[ ] basic policy matters to policemen, judges, and juries for resolution on an ad h o c and subjective basis, w ith the
attendant da ngers of arbitrary and discriminatory application.” Id. at 108

– 09

. T o avoid these dangers, the Due Pro cess Clause r equires tha t laws be reasonably clear. As the United States Supreme C ourt explained, due proces s ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces th e danger of c aprice a nd discrimination in the administration of the laws, enables individuals to conform th e ir conduct to the requirem ents of law, and pe rmits meaningful judicial review. Roberts v. United States Jaycees , 468 U.S. 609, 629 (1984).18

Both the United Stat es Suprem e Co urt and the Supreme Court of Texas have applied the princ iple that statutory langua g e 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. C o. , 269 U

. S. 385, 391 (1926) ; Tex

. Antiquities Comm. v. Dallas Cty

. Comm’ y Coll

. Dist. , 554 S. W .2d 924, 928 (Tex. 1977) (pl urality opinion) (quoting same)

.

“ Although the vagueness standard applies most frequently to penal statutes, a civil statu te may also b e so va g ue that it violates due process. ” Bradley v. State ex rel. White , 990 S.W.2d 245, 25 2 (Tex. 1999) (Abbott, J., concurring) ; s ee 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 n ot limited to criminal cases because “[i]t was not the criminal penalty that wa s held invalid, but the ex a ction of
obedience to a rule or standard whic h was so vague and indefinite as really to be no rule or standard at all” ); Tex

. Antiquities Comm. , 5 54 S .W.2d at 92 7

– 28 (striking down civil statute as unconstitutionally vague). “ The degree of clarity that
t h e vagueness standard . . . re quires ‘ varies ac cording to the nature of the statute, and the need for fair notice or protection from unequal enforc e men t

. ’ ” Bradley , 990 S.W.2d at 252 (Abbott, J., concurring) ; see Vill

. of Hoffman Estates v. The Flipside, H

offman Estates, Inc. , 455 U .S. 489, 498 (1982) ( in dire cting that
vaguen ess standard not be mechanically applied, stating, “ The degree of vagueness19

tha t the Constitution tolerat es

— as well as the relative importance of fair notice and fair enforcement

— depen ds in part on the nature o f the enactme nt.”).
Th ere is “greater toleran ce of enactments with civil rather than criminal penalties because the cons e que nces of imprecision are qu alitatively l ess severe.” Id. S tatutes that “do not impose criminal penalties a nd those that do not threa t en to inhibit the exercise o f constitutionall y protected rights are subject to a less strict vagueness test. ” Raitano v. Tex

. Dep ’ t of Pub. Sa fe ty , 860 S.W.2d 549, 551 (Tex. App.

— Houston [1st Dist.] 1993, writ denied) . A civil statute v iolate s due process only if i t requires compl iance 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 ; s ee State ex rel. N.P.N. , No. 1 2

- 06

- 00283

- CV, 2007 WL 113 9 907, 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 sta t ute is valid and the Legi slature did n ot act arbitr arily or unreasonably in e n acting it

. Robinson v. Hill , 507 S.W.2d 521, 524 (Tex. 1974). We must uphold a st atute if a reasonable construction can be determined that will render it constitutional. Rowan D r ill ing Co. v. Sheppard , 8 7 S.W.2d 70 6, 707 (Tex. 1935) (orig. proceeding). T he burden rests on the individual challenging a statute to prove its unconstitution ality. Robinson , 507 S.W.2d at 524.20

B. Incorporation of 20 C.F.R. Part 404 into Chapter 90 does no t re nder the statute uncon stitutional ly vague Th ere are 106 sandblasters appe a ling the dismissal of their suit. Of those,
f ive do not have medical records in th e appellate record. An additional 58
sandb l a sters do not have medical records that reflect an im p air ment rating of C lass
2 or higher

. T hus, more than half of the sandblasters cann o t establish on this record that they submitte d medical reports containing th e statutorily required impairment finding. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 90.010(d

- 1) (requir i ng dismissal of claims wi thout compl ia nt medical report submitted); § 90.004(b)(2) (requiring medical report s for silicosis claimant s to c ontain board

- certifie d physician’s verification that “the exposed person has at least Class 2 or higher impairment du e
to silicosis ”)

. D efendan ts asserted o bject ions against more than hal f of the 106 sandblasters ’ medical reports for failin g to include the requisite impairment finding
and moved for dismissal of those claims

. The objection s w ere sustained

. The s andblaster s do not argue the MDL Cou r t e rred in con cl uding some of their medi cal reports d id not have the requisite impairment finding. Instead, they
argue dismissal for this reason is improper because Section 90.004 is unconstitutional ly vague because the subsectio n imp osi ng a requ i rement of a C lass 2 imp ai rment finding refers to the AMA Guides and then references the Code of Federal Regulations even though the AMA Guides “ar e not reported in the21

referenced section of the C.F.R.” The challenged provision r e quires a silic osi s claimant to submit a medical re po rt verifying that the exposed person has at least Class 2 or higher impairment due to silicosis, according to the Americ an Medical Association Guides to the Evaluation o f Permanent Impairment and reported in 20 C .F.R. Pa rt 404, Subpart P, Ap p endix 1, Pa rt (A), Sections 3.00(E) and (F) (2003)

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

r eader that a cited material can b e found at a location wher e it cannot be found
creates a co nstit uti onal infirmity in a st atute. We c annot agree with their argument for two reasons.
F irst, we do not read the above provision to suggest that the AMA Guides
are locate d in the C.F.R. but, instead, that the impairment determina t ion is to be made in ac corda nce 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 di sability determinations. S e e 20 C.F.R. Part 404, Subpa rt P, Ap pendix 1, Part (A), Se ctions 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 an d report” to demonstrate a re spiratory disorder, and
Su b section 3.00(F) explains “[ w]ha t i s a DLCO [ d iffusing c apacity o f the l ungs for carbon monoxide] t est, and wha t are our r equirements 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
G uides can be located and r e ad. Rather, it refers to recognized t est ing s tandards that app ly when mak ing a respi ratory

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

re ader to locate the AMA Guides, we fail to see why an incorrect citation would
render the st atute unconstitutional ly vague. T he s andblas ters 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 m o re than that the provided citation does not l ead to a recitation of applicab le Guides. An incorrect
citation in this context

— which would be analogous to a broken link to an otherwise acces sible web page

— does n ot cause Chapter 90 to be unconstitutionally

v a gue because it does not leave a person of co m mon intelligence gues sing 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

. Antiqui ties Comm. , 554 S.W.2d at 928

. We hold that this citation argumen t does not support a conclusion that Sectio n 9 0.004 (b)(2) is unconst itutionally vague. We affirm the dismissal of the 63 sandblasters who did not submit medical reports with the requisite imp airment finding . The se sandblasters are list ed below:23

Adan Adame Roberto Arispe Harvey Arnold Hermon Ar nold Luciano Barrient ez Troy Br itt Raymon d Butterfield Richard Capson Mercedes Castillo Rex Cicero Palfrey Collins Gl enn Courmier Eddie Cross Carol Dabney Jose De La Paz Jose Duenes Benjamin Fields Frank Franco Jesus Garcia Alonzo Garza He rmilio Garza Oscar Ga rza Paul G awlik Manu el Gonzales Bacilio Guzman Chester Harington Norris Hawley Rigoberto Hernande z Kenneth Houff El mer Jamison Curtis Jones Joe Koe nig Elias Leal Roberto L e mos Celso Lopez George McFarland Robert Mech ell Jose Meza Clyde Mil ler Keith Moore Este ban Nieto Marcos Ortiz Jimmy Patterson Manuel Paz Juan Perez Ray Redmon Billy Richardson Jose Rodgers Jose Rojas Ge orge Saenz Hector Salaza r Guadalupe Serna Jesu s S oliz Howard Spears Carroll Stak rs Curtis Thomas Martin Torres En rique Villa rreal Robert Weitzel (deceased) Clifton Weitzel Joseph Wheeler Jay Whitlock Herbert Whitmire

We will consider the re maining constitutional ch allenges in light of the
M D L Court’s ruling on objections to th e remaining 43 claiman ts.24

C. Require ment that m edical report contain verification by report’s physician
- author regarding the collection of medical a nd occupational history is not uncons titutionally vague Defen da n ts objected to the medical history, occupati ona l history, or both his tories for multiple sa ndblasters . We affi rm the dismissal of 13 sandblasters
because , first, the ir medical reports did not contain a verification by the physician

author that the physician ( or a medi cal professional employed by and un der the direct supervi sion and co ntrol of th e physician ) took a detailed medical and smoking history that includes a thorough review of the expos ed person’s past and
pr esent medical proble ms and their most probable cause a nd , second, the medical/occupat ion al history requirement is not unc onstitution ally vague

. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 90.004(a)(1). 1. Meaning of “detailed medical history” and “detailed occupational exposure history” The sandb lasters argue Secti o n 90.004(a)(1) ’s requirement that a boa rd

certif i ed physi cian verify she ( or a medi cal professional employed by and under
her direct supervision ) “took a detailed occupational and expo sure histor y from the

e xpo s ed person” and “took a detailed medical and smoking history t hat includes a thoro ugh re v iew of the expos ed person’s p ast and pre sent medical problems and their most probable cause” is unconstitutional ly vague. See id. § 90.004(a) (1 )(B

– C). They attribute the vagueness to the lack of a statutory definition for the terms “detailed occupat ion al and expo sure history” and “detail e d medical . . . h istory.”25

Chapter 90 contains a definition section in which 29 terms are defined, but “detai led occupational and exposur e history” and “detailed medical . . . history” are not among them. Cf. id. § 90 .00 1 (defining c e rtain terms used in Ch apter 90). Nonetheless, Section 90.004 provides guidance on the meaning of these phrases. Section 90.004(e) s tates that the “detailed occ upational and exposure history required by Subsection (a)(1)(B) must d escribe .

. . the exposed p erson’s pri ncipa l empl oyments and state whether the exposed person was exposed to airborne contaminants, including silica and other dusts that can cause pulmon ary impairment; and . . . the nature, duration, and frequency of the e xposed per son ’s exposure t o airborne c ontam inants , including silica and other dusts that can cause pulmonary impairment.” Id. § 90.004(e). Section 90.004(A)(1 )(C) explains that a “detail ed medical and smoking history” should include “a thorough review of t he exposed pe rson’s past a n d present m edica l prob lems and th eir 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

. . . his tory” so as n o t to be so vague that persons “o f common intelligence must necessarily guess at its meaning .” See Connally , 269 U.S. at 391 ; Tex

. A ntiquities
Comm. , 554 S.W.2 d at 928.26

2. Verification regarding medical history Aside from whet her these terms ar e suffic i ently understan d able to su rvive a
vag ueness challenge, there appears to be an incongruence between the objections asserted against the m edical reports and the sand blasters ’ argument with regard to
their medical histories. For several sandblaste rs , Defendants assert e d an “objection
to insuffic ient medical history.” A closer read ing of th e objection reveals that the argument is not that the medical histor ies lack deta il, which is the argumen t the
sandblasters appear to r espond to with t he above va gue ness challenge. Instead, the object ion is that Section 90.004(a)(1)(C) requires the submitted medical report to include a physician verification that “the physician or a me dical professional employed by and under the direct s u pervision and co ntrol of th e p hysician . . . took a de tailed medi cal . . . h istory,” yet the objected

- to sandblasters ’ medical report s ha ve no such verification . There is a me dical history , but there is no verification by the physician

- author that s he ( or a qualif ying medical profe s sio nal ) took th e medical hi story. Defe ndants argu e the sandblasters without an ap p ropriate verification fai l ed to comply with statutory req uirements

. Th is is the obj e ction

a ss erted by Defendants and sustained by the MDL Court

.27

Our review of the medical rec ord s of the remaining 43 cl aimants rev eals 13 who se medical reports did not include physician verifications

. 7 The MD L C ourt did not err in susta inin g the medical

- history obje ction to these 13 sandblasters, and we affirm their dismissal: Thomas Benitez Davi d H ollingsworth Melvin Bri ones Juan M orales Fra ncisco Dab dub Daniel Navejar Jessie Duncan Carl Prentice Jose Fajardo Jose Rios Michael Gary Abe lardo Zambrano Gerald Hen ry

7 Why the se 13 sandb lasters ’ me dical report s lack ed verifications might be understood, at least in part, by considering the history of this type of litigation an d taki ng into account when the medical reports were pre pared compared to when the M DL statute was enacte d. As noted in the off icial commen ts 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 becaus e o f concerns about limitat ions issues . Those claima nts submitt ed to x

- ray s and other testing for evidence of silica exposure and to physician exams by physicians who then prepared contemporaneous medical r eports discussing illness diagnoses and impairment fi ndings. These medical reports for these 13 sandbl asters were prepared i n 2005, with in a few months of Chapter 90 being enacted. Their medical reports were not supplemented, as some were fo r other claim ants with old er reports. Thus, these 13 sandbl asters w e re relying on medical reports prepared at a ti me when the ph ysician

- author may n ot have known C hapter 90 ’ s requirements for a qualifying medical report.
As the sandblasters have note d , there were cos t considera tions when evaluating whether to amend ol der medical reports before submittin g them to the MDL Court, bu t the MD L procedures certainly allowed amended medical reports to be filed . The record reflects that, on at least one occa s ion, a claimant wh o is no t part of this appeal filed amended medical r epo rts and then was able to move for remand and a trial sett ing

. Still other claima nts filed single

- page supplements in which physician s added the verifications r equired by Section 90.004. T hese 13 sandbl asters did not amend or supplement their medical rep ort s , but there was no thing in the statute preven ting them f rom doing s o .28

This leaves 30 sandblasters

. D. Failure to designate the AMA Guide s edition tha t w ould control evaluation of medical reports doe s not render statute unconstitutionally v agu e Defendants objected that some sandblasters ’ medical r eports did not confirm

exe rcise testing as part of the ir medical evaluation s . The MDL Court sustained the ob jec tions. The sandblasters argue Chapt er 90 is un constitutionally vague because
t he various edi tions of the AMA Guides are inconsistent regarding th e requirement
of exercise testing and the statute does not specify which edition is to be followed, creating un certainty as to whether the statute requires e xercise testing. Th ey argue the statute “ l acks definiteness or certainty” and violates due process guarantees. The record doe s not support the sandblasters ’ uncertainty argument. In March 2006, the MDL Court is sued a supplement to its recommende d ch ecklist for medical reports and documentation. 8 The supplement states that the fifth edition of the AMA Gu ides to the Evaluation of Permanent Impairment “shall be use d to determine impairment. ” It further states th at, “[i]f the AMA publ i shes a new edition of the AMA Guides, the new edi tion shall apply to medical reports based on examinations or testing perform ed on or after the date of publication of the new edition.” An d, to further clarify, it adds , “If a new edit io n is published, medical report s that have already been appr oved under the current [fifth] edition shall not

8 The supplement is in the record and was attached to the sandblasters ’ res ponse to the objections to their medical reports.29

be subject to the new edition.” None o f the parties contend the trial court erred in determining t hat t he statute requires the applic a tion of the gui delines in effect at
the time of testing

. To the extent t he sandblas ters chose t o rely on their pre

- written m edical reports, the MDL Court indic ated in 2006 their reports would be evaluated under
the fift h edition’s requirements. If the s andblasters am end ed their reports, the ir new reports would be evaluated und er the vers ion of t he AMA Guides in existence whe n the underlying examinations and test ing were performed. If the sandblasters preferred the impair ment criteria in the sixth edition, additional t est ing and an amended report would have brought the reports w ithin its r equirements

. Ten o f the remaining sandblasters subm i tted medical reports tha t pre

- dated the 2006 MDL Court supplemental filing, in which the MDL Court stated that already

- performed med ica l testing would be analyzed under the fifth edition. None of them ame nded their reports ov er the next decade. In that co n text, there was no

uncer tainty whether the fifth edition applied to their reports: i t clearly did. Because the following sandblaster s d id not submit medical reports with the required data on exerci se testing, the dismis sal was not e rr or with regard to these 10 sandblasters : Noe De La Cruz Ronnie L. J ohnson Jose Longoria Victor Perez Rob erto Paz Daniel Ochoa Humberto Chapa Rudy En cinas Dell Hodge Roger Spencer30

This leaves 20 sandblaster s . E. R equirem ent of cert ain x - ray findings indicating lung abnormalities is not uncon stituti o nal The sandblasters ’ next constitutional argument is that Section 90.004(a)(3)(A) ar

bitrarily requi res medical reports to contain a finding from the x

rays that the claimant’s pulmonary scarring is “predominately nodular” and “pr im arily in the upp er lung fields ,” e v en though silicosis can be a lower

- lobe disease. By requiring these specific findings, th ey argue, Ch apter 90 wrongly excludes claimants who have atypical silic osis or pne umoconiosis , which can present p rimarily in the lower lobes o f the lungs. They contend the se statutory limitations are unreasonabl e , arbitrary, and capricious. Subsection (f

) o f Section 90.010 is referred to as a “safety value” provision.
It es tablishes a pat h to me dical

- report approval f o r claimants whose medical profi les do not match the Section 90.004 criteria . Under Subsection (f), a claimant who cannot meet Section 90.00 4(a )(3)’s requirements but does comply with Section 90.004(a)(1), (2), and (4) has an other op tion : a physician ca n verify there is a physician

- patie nt relationship between the physician

- author of the report and the claimant, pulmonary function testing was per formed , and the physician has concluded, to a reasonable degree o f m edical prob ability, th at th e claimant has “radiographic, pathologic, or compu ted tomography evidence establishing bilateral pleural disease or bilateral parenchymal disease caused by ex pos ure to . . . silica;31

and . . . has . . . silica

- related physical im p airment com

parable to the i m

pairment”
the claimant would have had if he had m et the criteria in Section 90.004. Id. § 90.010(f)(1)(B). Under Subsection (f), neither the “predominantly n odu lar”

r equirement nor the “primarily in the upper lung fields” requir e me nt appl i es . Compare id. § 90

. 004(a)(3) , with § 90.010(f)(1)(B)(iii

- iv). Su bsection (f) was available to sandblasters who did not present with typical findings. None of the remaining 20 sandbl asters moved for consideration under Subsection (f). Sections 90.004 an d 90.010 mus t be analyzed in l i ght of the statute as a whole. See T

aylor v. Firemen ’ s & Policemen ’ s Civil Serv. Comm ’ n of City of Lubbock , 616 S.W.2d 187, 190 (Tex. 1981)

. Tak ing into account Subsection (f), which presents an alternative means to establish an injury a nd impairment, the specificity of Section 90.004 does n ot create an arbitrary approval process that
denies the sandb lasters due process. We overrule th is constitu tio nal challe nge and conclude the MDL Court did not err in dismissing the f ollowing 2 0 sandblast e rs for failure to submit medical reports with the r equisite findings :32

Homer B a tchelor Delbert Blundell Guadalupe Calvo Ignacio Cavazos Hector Chapa Stev e D avis Jose Esquivel Pablo Garcia Homero Garza Jose Hernandez Antonio Lopez Aaro n Luke Ern est Mechell T omas Morin Adalberto Muniz Oscar P erez Rene Ramirez William Terral Teodoro Tovar Jose Uresti

We have concluded the MDL Court did not er r i n sustainin g certain objec ti ons to various subsets of sandblasters and hav e overruled the sandbl asters ’ constitutional challenges to the statutor y provisions on which those particular objections were based. We turn next to the sand blasters ’ global const itu tional chal lenges to Sections 90.00 4 and 90.010 that are not tie d to any specific

o bjections

. Global Cons titutional Challenges Not Tied to A n y S pecific Objections Claimants assert two global constitutional challenges to Sections 90 .004 and 90.010

. A. MD L Co urt ’ s s tatutory auth ority to evaluate th e sufficiency of medical rep o rts does not r ender Chapt er 90 uncon stitutionally vague The s andblasters cha llenge the statutory framework of Chapter 90 granting the MDL Court authority to determine whether a medical re port complies with Secti on 90.004’s requir em ents. They argue the “ f r am ework places the Court in th e33

precariou s position of rendering medical opin ions and providing medical interpretation even though the Court has no specialized training in medicine or
i mpa irment e valuations. ” Th e y further argue “ the statute allows untrained courts and lawyer s to interp ret highly technical medical articles ” without fully understanding their content, which deni es the sandblasters due process

. This argument i s reminiscent o f initial chall e nges to th e expert

- reliability framework established in Daubert and Robin son . See Da ubert v. Me rrell Dow Pharm s. , Inc. , 509 U .S. 57 9 (1993); E.I. du Pont de Nemours & Co., Inc. v. Robinson , 923 S.W.2d 549, 557 (Tex. 1995) (rejecting argume nt s that (1) “ judges are not competent to ass es s the scientific reliability ” of ex pert eviden ce and (2) judges should not be cast in “ role of amateu r scientist ” ) . Since Robinson , a body of law has developed that confirms trial judges’ role in assessing the re liability of expert opinions and the data un derlying their opinions, inc l uding evid ence

co ncerning me dical diagnos e s 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 p hys ician’s diagnostic methodology and evaluat in g whether analytical gap exi s t s be twee n plain tiff’s medi cal data and physician’s causation opinion).
The s andblasters assert that judges and lawyers are “untrained” in medicine and do not have the necessary “s pec ialized training” required to “interpret highly

te chnical medical articles” or access “im pairment ev aluations.” But , Texas c ourts34

have consistent ly rejected arguments built on a supposition that trial courts are incapable of assessing scientific issues. 9 S ee Robinson , 923 S.W .2 d at 557

– 58 (rejecting conte n tion that judges must be “ tr ained in sc ience to ev aluate the reliability of a theory or techni que ” ; accept ing that judges are “ capable of understanding and eval uating scientific reliability”); see also Mer rell Dow P harm.,
Inc. v. Havner , 953 S

. W.2d 706, 713, 730 (Tex. 1997) (stating that cou rts should ind ependently evaluate scientific data underlyi ng expert’s opinion as part of determining whether expert’s opinion is reliable).
In Havner , the Supreme Cou rt of Tex as analyzed the scientific dat a and medical literature underlying an ex pert’s o pin ion that th ere is a causal link between

9 T here are a number of reasons it is appropriate to ha ve judge s determine complex scientific issues before case s proc eed to trial within a crow ded docket like an MDL. The trial process uses court and litigant resources on particu lar claiman ts, leaving other claim ants waiting in the queue . Those waiting might be more imp aired 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 sepa rate MDL fo r silica

- ba sed cla ims a nd supplemented the judge’s sala r y in recogniti on that the judge would need to allocate sufficient time to man age the docket and analyz e complex procedural and scientific issues and evidence. The judge has resources availa ble for eva luating evi dence t hat w ould not be available to a jury i f the decision al process for determining the adequacy of a gatekeeping report was delegated to a jury. The judge ha s the opportunity to read and study any underlying articles and scientific studies su pporting me dical c onclu sions , the ability to conduct or direct a dditio nal resear ch on an issue or to require additional hearings or e vidence, and , finally, the procedural flexibility to ask questions of designated experts and to hire, appoint, a nd confer w ith experts beyond thos e designated by the parties. See Harvey Brown, Pro cedural 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 issue s).35

ingestion of a dr ug during pregnancy and a subsequent birth defect, and the Court held there was no scientifically reliable e vid e nc e to support the causation o p inion, meaning there was legally insufficient evidenc e t o support t he jury’s verdict finding the pharmaceutical c ompany liable for the birth defects. See Havner , 953 S.W.2d at 730. As Havner demonstrates, while the task c a n be daunting at times, judg e s have the duty as gatekeepers to evaluate scienti fic evid enc e, medical expert opinions, and the data underlying them. Section 90.004 requires a medical report to contain various physician verifications, set forth relevant hi sto ries, contain a d i agnosis and impairment finding, and attach relevant medical records re lied on by the physician in reaching her conclusions. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 90.004. We fail to see how a statute requiring a court to evaluate th e conten t o f a medical repor t for these items is so vague that it is “ no rule or standar d at all .” See A.B. Sm all 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
stat ut e

— silica

- re lated illnesses a n d impairment

— contributes to vagueness. The Texas Supreme C ourt has no ted the sim ilarity between the MDL Court’s role under Cha pter 90.004 and trial courts’ role, generally, in evaluating the reliability of medical experts’ m et hodologi es and underlying da t a. See In re GlobalSanteFe Corp. , 275 S.W.3d 477, 487 (Tex. 2008)

. The issue in t hat case36

was whether the Jones Act preempts va rious Chapter 90 features. See id. In detailing the Chapter 90 features, the Court stated that “ Se ct ion 90.0 04 tracks widely if n ot universally recognized criteria for reliably diagnosing the exis ten ce of silic a - related illnesses .” Id. The Court offered fo ur examples of Section 90.004 requirements aimed at ensuring reliability : (1) Section 90. 00 4(a)(1)’s require men t that a “board

- certified physician conduct a detailed occupational and expos ure hist ory is directe d at assuring

— early in the litigation so as to conserve judicial and litigant resources

—

that the claim of silica

- related injury is supp or ted by medically rel iable ex p ert review”; (2) Section 90.004(a)(3)’s requirement that the expert
observe spe cific findi ngs that are the “standardized method of medic al science to identify chronic or classic silicosis and distinguishing it f r o m asbestosis ”; (3) Section 90.0 04( b)(1)’s r equirement that the physician verify a sufficient latency period “to assure tha t the claim ant is in fact suffering from a silica

- related disease under established medical science”; and (4) Section 90.004(a)(3)(A)’s r eq uireme nt that a qualified B

- r eader mak e certain findings to further “assure that the reader has
found at l east som e a bnormality in the x

- ray.” Id. Section 90.004’s criteria are “ directed at assuring reliable expert confirmation of the existence o f one of the medically recog n ized f orm s of silica

related illness ,” and an expert’s “failure to establish these cri teria is gr ounds for

r ejecting expert testimony under Daubert , ” even if the criteria were not37

incorporated into Chapter 90. Id. at 487

– 88

. Se ction 90.004’s requirements

“ repres ent the Legislature’s attempt to require a medically valid demonstration of
sili ca - relat ed disease as opposed to mere exposure to silica or some oth er substance or mere concern that a disease may develop in the future.” I d. at 488. The Court also noted “ it is vitally important for a physician to take a thorough occupational/exposure history and medi cal history” t o “rule out the
multitude of other caus es of the radiographic findings.” Id. The Court’s statements in I n re GlobalSanteFe are consist e nt with our

con clusion that authorizing a court to evaluate whether a medical report compli es with Sec tion 90.004 ’s requirements does not violate the sandblaste rs ’ right to due
process . We overrule the sandblast ers ’ constitutional ch allenge premised on the
argu m ent th at trial courts are incapable of assessing complex medical materials and expert medi cal opin ion s related t o the diagnosis of silicosis and related
i mpairment.
B. The addition of Section 90.010(d
- 1) through a 2013 amendment does not make the statute an u nconst itu tional retroactive law The s andblasters contend Section 90.010(d

- 1), which was added to Chapt er 90 in 2013 through a statutory amendment, is an u nconstitutional ly retroactive law. Subsection (d

- 1) created a procedure, which had not existed under t h e earlie r

v ersion of Chapter 90, for the dismissal of pre

- 2005 claims that had been pending
in the M DL for nearly a decade without medical reports being submitted. See T EX
.38

C IV
. P RAC
. & R EM
. C ODE § 90.010(d

- 1). Subsection ( l ) stated dismissal unde r Subsection (d

- 1 ) w ould be without prejudice to refiling. Id. § 90.010( l ). The s andblasters acknowledge dismissa l u nder Subsec tion (d

- 1) for failing to file a c onforming medical report is without prejudice to refiling; however, they
assert dismissal is still prejudicial becau se they will not be a ble to recapture some of the defendants that have already answe red and app eared and b ecause dismissal will cause them t o lose their financial investment in their cases, including al ready incurred costs for filin g fees, court records, d epo sition transcripts, and experts. The

s andblasters argue the costs associated with the se expen ses and attorn ey work would be lost if their cases were dismissed. 1. Applicable law The Texas Constitution prohib i ts “retroactive law[s].” T EX
. C ONST
. art. I, § 16 ; s ee Houston Indep. Sch. Dist. v. Houston Chronicle Pub. Co. , 798 S.W.2d 580, 585 (Tex . App.

— H ous ton [1st Di st.] 1990, writ denied) (“ Texa s law militates strongly against the retroactive application of law s . ”). An unconstitutional retroactive law is one tha t “ takes away or impairs vested rights acquired under existing law.” McCain v. Yost , 284 S.W .2d 898, 900 ( Tex. 1955); see Retroactive la w , B LACK ’ S L AW D ICTIONARY ( 10 th ed. 2 014) (defining as law that “ di v ests vested rights ” ). A “vested right” is an immedia te right or entitlement ; expectation s and contingenc ies do not qualify

. See Kissick v. Garla nd39

Indep. Sch

. Dist. , 330 S.W.2d 708, 712 (T ex. Civ. App.

— Dallas 1960, writ ref ’ d n.r.e.). “When the authorit y granting the right has the power and discretion to ta ke that right away, it cannot be said to be a vested right.” Ex parte Abell , 613 S .W.2d
25 5, 262 (Tex. 1 981); see McCain , 284 S.W.2d at 900.
A statute can appl y retroacti vely and yet not be a “retroac t ive law” if the right it affects did not accrue before th e statute became effective. See Houston Indep. Sch. Dist. , 798 S.W.2d at 585

. 2. The s andblast ers ha ve no ve sted right to the applicatio n of the pre - amended version of Chapter 90 The s andblaste rs ’ suits all pre

- dat e d the enactment of Chapter 90. When they
fi led their claims, the y were governed by the general rules of procedure and evidence and faced t he possibility that their claims would be dismissed for want of prosecution i f they lin g ered without advancement. See T EX
. R. C IV
. P. 165a(2) (providing that cas es not disposed of within applicable time standards may be placed on dismissal docket).
It was afte r t he sandblas ters initiated thei r suits that the Legislature enacted Chapte r 90’s procedural scheme to per m it silica

- related claims to remain within the

co urt’s jurisdiction, protected from dismissal. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 90.010(a)(1) , (b), ( d). The sandbl asters benefitted f rom this law because their claims remained on the MDL docket, in a holding patte r n, for more than a decade without the r isk of dismissal for lack of prosecution

. And , the sandblasters received40

a second benefit from t he 2005 ena ctment of C hapter 90: they di d not risk going to trial when they had lung markings “possibly consistent with sili c a exposure” but “no functional or p hys ical impairment.” They could wait until they had a medically verified impairment to go to tri al, at w hic h point the y would have the p otential for a larger damages award. After the MDL Co u rt 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 Subsect ion (d

- 1) and require claimants to take the next step in their case progression or f ace dismissal. Those who filed qualifying medical reports would be r ema nded to district court for trial; those who did not would be dismissed without prejudice to r efiling. Id

. § 90.010( d

- 1), ( l ). Staying indefinitely in the holding pattern w ould no longe r be an option. The statute spe c ifically provides that a claim dismis sed under Subsection (d

- 1) and later refiled “is treated for purposes of determining the applica ble law as if that cla imant’s action had never been dismissed but, instead, had remain ed pending until the claimant se r ved a report that complied with . . . Sec tio n 90.004 or Subsection (f)” of Section 90.010. Id. § 90.010(n). Moreover, a claimant dismisse d under Sub section (d

- 1) who elect ed to refile a claim would be given the option to

use more “c ost

- efficient” service options when they renew ed their claim, suc h a s certified mail. See id. § 90.010(o).41

When these sandblasters first asserted their claims, g eneral d ock eting rules controlled and Ro binson expert requirements applied. They would have antici pa ted needing to accumulate and p resent evidence of a medical dia gnosis and establish medical causation through an expert. They had no “vested right” to have their cl aim s remain on a court’s docket indefinitely without producing reliable medical evidence o f an impairment caused by silico s is. See In re GlobalSant e Fe , 275 S.W.3d at 487. Nor did the addition of Subsection (d

- 1) divest them of their right to procee d to tri al once they h a d reliable medica l evidence. While Section 90.010(d

- 1) acts retroactively, i t is not a n unconstitutional retroactive law that
d ivests the sa ndblasters of vested right s . Furthermore, to the extent the s andblasters contend Chapter 90, generally, prevent s the ad van cement of t heir cases due to its medical

- report requirements, the
statute include s S ection 9 0.010 (f) , which is a “safety v a lue” pro ced ure through which sandblasters whose illness progressions do not match medical criteria in Section 90.004 may e stablish an injury thr ough alternative proof , including submission of a medical report from a treating p hy sician with equivalent , though

n ot i den tical , findings. Id. § 90.010(f). Having concluded Section 90.010(d

- 1) is not an unconstitutional retroactive law, we ove rrule this final constitutional challenge to the statute.42 Conclusion We affirm the trial c ourt ’ s judgment

.

Sarah Beth Landau Just ice
Justice Landau, joined by Chief Justice Radack and by Justices K eyes, Higley, L loyd, Kelly, Goodman, H i ghtower, and Countiss.