1 NO. 01-15-00251-CV

______________________________ ____________________________ IN THE COURT OF APPEALS FOR THE FIRST DIST RICT OF TEXAS HOUSTON, TEXAS

______________________________ ____________________________ In Re Texas State Silica Products Liability

________________________________ ____________________________ Appeal from the 333 rd District Court of Harris County, Texas Trial Court Cause No.: 2004-7000

________________________________ ____________________________

APPELLANTS’ RESPONSE TO APPELLEES’ MOTION TO DISMISS APPE AL OR, ALTERNATIVELY, TO STRIKE APPELLANTS’ BRIEF

________________________ ______________________ ____________________ TO THE HONORABLE COURT OF APPEALS: This appeal is based on the MD L Court’s order denying interlocutory injunctive relief to Appellant s and the Court of Appeals has jurisdiction over the appeal on the following grounds:

I . THE MDL COURT ’ S RULING ON APPELLANTS ’ MOTION FOR TEMPORARY INJUNCTION. Before addressing the injunction hear ing upon which Appellees’ Motion is based, it is important to note that duri ng the pendency of this appeal, all other silicosis cases filed prior to 2005 have b een or are being dismissed in accordance ACCEPTED 01-15-00251 FIRST COURT OF APPEALS

HOUSTON, TEXAS 7/22/2015 4:59:51 PM CHRISTOPHER PRINE

CLERK2 with Chapter 90.101 (d-1). See, Exhibit 1, MDL Court Dismissal Orders. To date, 4577 silicosis cases, previously filed before 2005 have been dismissed. Id. By August 31, 2015, the only remaining pre-2005 silicosis cases left in the state of Texas will be the Appellants. On August 19, 2014, the MDL Court i ssued an Amended Order denying Appellants’ Request for Temporary Injuncti on to Enjoin Enforcement of Chapters 90.004 and 90.010 of the Texas Civil Prac tice and Remedies Code. (CR 1639-40) This Order also sets out the MDL Court’ s approval of a stipulation by the parties dated May 19, 2014. (CR 1640) The pa rties stipulated that the only matter currently under consideration by the MDL Court is the request for temporary injunction. Id . Ultimately, the MDL denied A ppellants’ Request for Temporary Injunction. (CR 1639-40). By holding th at the Plaintiffs’ complaints were not ripe, the MDL Court issued a specific ru ling denying the Plaintiffs’ request for temporary injunction. (CR 1640 at ¶ 5) Based upon the MDL Court’s specific ru lings, this appeal is from an interlocutory order refusing a temporar y injunction which greatly prejudices Appellants by forcing a dismissal of their case s. See, Tex. Civ. Prac. & Rem. Code 51.014 (a) (4). Consequently, this appeal arises from the denial of Appellants’ Request for Temporary Injunction to enjo in the enforcement of Chapters 90.004 and 90.010 of the Texas Civil Practice and Remedies Code on the grounds that3 these statutes are unconstitutional. S ection 51.014(a)(4) of the Texas Civil Practices and Remedies Code provides for an interlocutory appeal of the denial of a temporary injunction. Id. Appellants originally app ealed to the Texas Supreme Court in accordance with Section 22.001 (c) of the Texas G overnment Code and Acts 2005, 79th Leg. R. S. Ch. 97 Sec. 10 (“S.B.15”). 1 When the Supreme Court denied consideration of the appeal, Appellants filed this appeal pursuant to TRAP 57.5. Thus, this Court has jurisdiction over Appellants’ interlocutory appeal.
III. APPELLEES ’ CLAIM THAT THE CONSTITUTIONAL CHALLENGE IS NOT RIPE IS MOOT. The MDL Court abused its discretion in determining that the Appellants’ constitutional challenge was not ripe. (CR 1640) Presently, the challenge could not be more ripe because of the Legisl ature’s 2013 amendment to Chapter 90. Tex. Civ. Pract. & Rem. C ode § 90.010 (d-1) (2013). Under this amendment, all silicosis cases will be dismissed by August 31, 2015, as mandated by the statute. Chapter 90.010 (d-1) of the Texas Civil Pr actice and Remedies Code. This matter was, in fact, briefed in Appellants’ Brief on pages 50-52. The futility of Appellees’ Motion is demonstrated by the dismissal mandate in Chapter 90.010 (d-

1 The Legislature provided a direct appeal to the Supreme Court from an order, however characterized, of a trial court granting or denying a temporary or otherw ise interlocutory injunction or a permanent injunction on the gr ounds of constitutionality or unconstitutionality, or other validity or invalidity , under the state or federal constitution of all or any part of this Act. (CR 1 st Supp. V2, 524) The direct appeal is an accelerated appeal.4 1). By August 31, 2015, Appella nts’ cases face dismissal. At that point, as a result of the final disposition of their claims, Appellants would then have the right to appeal the dismissals as final, app ealable orders from a trial court. See, TRAP Rule 25 (c). The actual effect of the Appellees’ Motion, if it were granted, would be to dismiss this appeal, only to have hundreds of appeals appear on this Court’s docket in September, after the dismissal orders are entered. Since Appellants are faced with certain dismissal of their silic osis claims, their constitutional challenge satisfies the ripeness requi rement under Texas law. The Supreme Court describes ri peness as a question of timing. Perry v. Del Rio, 66 S.W. 3d 239, 250 (Tex. 2011); citing, Abbott Labs v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507 (1967). “The centr al concern is whether the case involves uncertain or contingent future events that may not occur as an ticipated, or indeed may not occur at all.” In this regard, a court is required to “evaluate both the fitness of the issues for judicial deci sion and the hardship to the parties of withholding court decision.” Id. “Hardship is shown when a statute ‘requires an immediate and significant c hange in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.” Mitz v. State Bd. of Veterinary Med. Exam’rs, 278 S.W. 3d 17, 26 (Tex. App. – Au stin 2008, pet. dism’d) (quoting Abbott Labs v. Gardener, 387 U.S. 136, 149, 18 L.Ed. 2d 681, 87 S.Ct. 1507 (1967) (emphasis added).5 In this case, statutory mandate di ctates that by August 31, 2015, the Appellants’ cases will be dism issed. This dismissal re presents an immediate and significant change in the conduct of Appella nts’ affairs because Appellants’ can no longer prosecute their cases. The Appella nts face the hardship of having their pending lawsuit dismissed and stripped from them. If they want to continue to pursue a claim, they are bei ng forced to re-file a new lawsuit, pay new filing fees, attempt to re-serve defe ndants who have already an swered and appeared. Moreover, the Appellants, either in their present cases or in new cases, have to attempt to serve a compliant Chapter 90.004 report based upon vague statutory language they cannot follow or understand. To suggest that this appeal is not ripe is, quite frankly, absurd. In fact, the administrative burden of hundreds of dismissals on the court system should not be disregarded. If A ppellees’ Motion is granted, the Appellants return to the trial court to await certain orders of dismissal by the Court on August 31, 2015. As demonstrated by Exhibit 1 to this Response, such effort is no small task. Once the dismissals are documente d and entered, Appella nts would have to file individual notices of appeal, as dis tinguished from the single appeal from the injunction presented here. Hundreds of notices would be administratively processed and the clerk would, yet again, be asked to issue another clerk record based upon each individual appeal. Conse quently, a dismissal of this case would6 not only represent an unnecessary delay, but a profound waste of staff time and resources. This judicial duplication and waste would occur precisely because this matter is ripe for consideration now. A ripeness determination also require s the Appellants to demonstrate that injury or hardship is imminent, direct, and immediate, not remote, conjectural or hypothetical. Rea v. State, 297 S.W. 3d 379, 383 (Tex. A pp. -- Austin 2009, no pet.); Mitz v. Texas State Boar d of Veterinary Examiners , 278 S.W. 3d 17, 25 (Tex. App. -- Austin 2008, pet. di sm’d) (Holding that a constitutional challenge to a state licensing law is ripe when enforcement of th e law is “sufficiently likely to occur”). If judicial review of the constitutional cha llenge is withheld, A ppellants’ injury is imminent and direct, due to the mandate d dismissal of their case, and will ultimately cause calamity on this court w ith duplicitous and re petitive appeals. Likewise, in the context of attempting to comply with the st atute as currently written, Appellants will incur significant costs in investi ng in medical reports to attempt compliance with a vague, arbitrary st atute that appears to have constantly changing medical requirements, even though their suits predate the statute and are based on silicosis diagnoses. For the Ma loney Martin Appellants, the cost is estimated at $240,000. (CR 1 st Supp. V6, 2778-79) These injuries cannot be termed remote, conjectural, or hypotheti cal. Further, Appellants’ injury of dismissal of their cases establishes the ripeness of the constitutional challenge for7 judicial consideration and the MDL C ourt’s error in denying Appellants’ Temporary Injunction Request. IV. RIPENESS AND STANDING ARE INEXTRICABLY INTERTWINED WITH THE CONSTITUTIONAL CHALLENGE ITSELF. The issues of ripeness and standi ng cannot be separated from the constitutional challenge brought by Appellan ts. Appellees took the position before the MDL Court that until each Appellant a ttempts the impossible: obtaining, at considerable expense, a medi cal report that meets the va gue, arbitrary, and shifting requirements of the statute, Appellants la ck standing and ripeness to bring their constitutional challenge. However, the c onstitutional issues raised by Appellants establish ripeness and standing without fi rst requiring Appellants to attempt this costly and unobtainable medical report. The retroactive application alone of Chapters 90.004 and 90.010 to Appellants’ common law causes of action is grounds for a co nstitutional challenge and makes Appellant s challenge ripe. 2 Further, the vague, arbitrary, and shifting medical report requirements of the statut e has halted the progress of Appellants’ cases. Thus, the statute violates th e open courts provision of the Texas

2 While the legislature applied the interlocutor y medical report requireme nt retroactively in silicosis claims under Section 90.004, it did not ma ke interlocutory review of expert reports retroactive in healthcare liabi lity claims. Tex. Civ. Proc. & Re m. Code Sec. 51.014(a)(9) - (10). The Texas Supreme Court noted that retroactive a pplication of the statute in such claims might have raised constitution al challenges that prospe ctive application did not. In Re McAllen Medical Center, Inc., 275 S.W. 3d 458, 466-67 (Tex. 2008).8 Constitution as well as Appell ants’ rights to due process. Tex. Const. Art. 1, Sec. 13; Hightower v. Baylor University Medical Center, 348 S.W. 3d 512, 521-22 (Tex. App. -- Dallas 2011, pet. denied) (Premise of open-courts provision is the rationale that the legislature has no powe r to make a remedy by due course of law contingent upon an impossible condition). Additionally, an attempt by each of th e hundreds of Appellants to comply with the statute’s vague, arbitrary, and shifting medical requirements could not realistically be accomplished between the date of the enactment of the dismissal provision of the statute on September 1, 2013, and the date of dismissal, August 31, 2015. Each Appellant’s attempt would involve the lengthy process of obtaining a medical report, responding to opposing parties’ objections to the report, and seeking the MDL Court’s approval of the report. Also, each Appellant’s attempt to comply with the statute would add up to considerable expense with no certainty the medical report is written correctly due to the vagueness of the statute. Now, Appellants’ cases are to be dism issed under the statute, which further raises constitutional issues and establishes ripeness. Atmos Energy Corp. v. Abbott, 127 S.W. 3d 852, 856 (Tex. A pp. -- Austin 2004, no pe t.) (The ripeness of a constitutional challenge is demonstrated by showing that enforcement is imminent or sufficiently likely).9 Likewise, the precarious position in which Appellants now find themselves establishes their standing to challenge the constitutionality of the statute. “Standing consists of some interest peculi ar to the person individually and not as a member of the general public.” Hunt v. Bass , 664 S.W.2d 323, 324 (Tex. 1984). (Plaintiffs had standing to bring mandamus suit for failure of court system to provide timely trial of their lawsuits si nce each was a party to a suit pending in district court). A party has standi ng when it is personally aggrieved. Nootsie v. Williamson County Appraisal Dist. , 925 S.W.2d 659, 661 (Tex. 1996). For standing to challenge a statute, a party mu st suffer both some actual or threatened restriction under the statute and contend th at the statute unconstitutionally restricts the party’s rights. Patel v. Texas Dept. of Licensing, No. 12-0657, (Tex 6/26/15); Tex. Workers’ Comp . Comm’n v. Garcia, 893 S.W. 2d 504, 517-18 (Tex. 1995). In these cases, facing certain dismissal of their claims and losing the ability to prosecute their previously-filed claims dem onstrates that Appellants face sufficient harm to their cases to creat e standing for each Appellant. V. ALL OF THE ISSUES RAISED IN APPELLANTS’ BRIEF PERTAIN TO THE MDL COURT’S DENIAL OF TEMPORARY INJUNCTIVE RELIEF. Appellants raise four issues in Appellants’ Brief to this Court. Appellants’ Brief, xivii. Each issue arises from the MDL Court’s de nial of Appellants’ Motion for Temporary Injunction against enforc ement of Chapters 90.004 and 90.010 of10 the Texas Civil Practice and Remedies Code. Each issue addresses the constitutionality of the statute; no new issues are set forth in the brief. While Appellees seek to limit the issu e to merely ripeness and standing in order to forgo having to address the c onstitutional challenge to the statute, Appellants have shown ripene ss and standing to bring th eir challenge. Moreover, the constitutional issues are intertwined with ripeness and st anding and cannot be separated. The halt to A ppellants’ suits and the impe nding dismissal of the suits indicate that the issues raised by Appellants’ Brief are fit for judicial review and hardship will result if judicial consideration is withheld. Perry v. Del Rio , 66 S.W.3d at 250. Furthermore, the MDL Court erred in denying Appellants’ request for temporary injunction. Appellants ask this Court to deny Appe llees’ Motion to Dismiss Appeal or, Alternatively, to Strike Appellants’ Br ief, and to find that this Court has jurisdiction over the appeal, and to allow th is appeal to proceed before the Court. Respectfully submitted, M ALONEY  M ARTIN , L.L.P. /s/Michael B. Martin Michael B. Martin (TBN: 13094400) mmartin@maloneymartinllp.com 3401 Allen Parkway, Suite 100 Houston, Texas 77019 (713) 759-1600 (713) 759-6930 (Facsimile) ATTORNEYS FOR APPELLANTS11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been provided to all counsel of record and/ or attorneys-in-charge via efiling on this 22 nd day of July, 2015.

/s/Michael B. Martin Michael B. Martin