the Kansas City Southern Railway Company v. Ronald K. Oney, Individually and as Representative of the Estate of Daniel D. Oney

Affirmed and Majority and Dissenting Opinions filed July 19, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00815-CV

THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant

V.

RONALD K. ONEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF DANIEL D. ONEY, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2011-32031

MAJORITY OPINION

Appellee, Ronald K. Oney, Individually and as Representative of the Estate of
Daniel D. Oney, brought a claim under the Federal Employers’ Liability Act (“FELA”)
against The Kansas City Southern Railway Company (“KCSR”). KCSR filed a motion to
dismiss based on appellee’s failure to serve medical reports under Chapter 90 of the
Texas Civil Practice and Remedies Code.1 The multidistrict litigation (“MDL”) court
handling pretrial issues in this case denied KCSR’s motion, determining appellee is not
required to comply with Chapter 90 report requirements. In a single issue, KCSR
contends the trial court erred by denying the motion to dismiss. We affirm.

I. BACKGROUND

On March 14, 2011, appellee filed his original petition, alleging the following
facts. From 1971 until 1994, Daniel D. Oney (“the decedent”) was employed by KCSR,
a railroad engaged in interstate commerce. During this employment, the decedent “was
exposed to harmful and/or hazardous substances, including known human carcinogens,
such as asbestos, silica, and diesel exhaust.” As a result of this exposure, the decedent
was diagnosed with lung cancer in April 2010 and died approximately one month later.
Appellee asserted a claim under FELA because of KCSR’s involvement in interstate
railroad commerce.2

KCSR answered appellee’s suit and filed a motion to transfer the case to the
asbestos MDL pretrial court. According to KCSR, its answer triggered a thirty-day
deadline for the claimant to furnish medical reports under Chapter 90. Succinctly,
sections 90.003 and 90.004, respectively, require a claimant alleging asbestos-related and
silica-related injuries to serve reports in which a qualified physician verifies that the
person alleged to have been exposed to asbestos or silica has been diagnosed with an
injury caused by that exposure. See Tex. Civ. Prac. & Rem. Code Ann. §§ 90.003,
90.004. It is undisputed appellee did not timely serve reports to KCSR. Pursuant to
section 90.007, KCSR filed a motion to dismiss appellee’s asbestos-related and silica-
related claims based on appellee’s failure to serve the reports required under Chapter 90.
See id. § 90.007 (providing procedure for motion to dismiss). As discussed in more detail
below, the filing of a section 90.007 motion to dismiss stays all proceedings until the

1
See generally Tex. Civ. Prac. & Rem. Code Ann. §§ 90.001–90.012 (West 2011).
2
Appellee later filed an amended petition, alleging the same facts and claim.

2
motion is resolved by the court. Id. § 90.007(d). Appellee responded to the motion by
contending Chapter 90 report requirements and dismissal provision are preempted by
FELA.

On August 15, 2011, appellee filed an agreed motion to compel discovery from
the hospital maintaining the decedent’s pathology. On August 17, 2011, appellee filed a
supplemental response to KCSR’s motion to dismiss, arguing that “discovery in this case
is in its infancy” and his experts needed an opportunity to review pathology evidence
before providing reports. On August 26, 2011, the MDL court signed an order
compelling the hospital to provide the requested pathology evidence. On the same date,
the trial court also signed an order denying KCSR’s motion to dismiss, expressly
concluding that appellee is not required to comply with Chapter 90 report requirements.

II. JURISDICTION

As an initial matter, appellee contends we lack jurisdiction to consider this
interlocutory appeal. Generally, a party may appeal only a final judgment. See Lehmann
v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). However, a party may appeal an
interlocutory order in which the trial court denies a motion to dismiss filed under section
90.007. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(11) (West Supp. 2011).

Apparently, appellee argues section 51.014(a)(11) does not apply because Chapter
90 is preempted by FELA. Thus, according to appellee, KCSR’s motion to dismiss was,
in actuality, a motion to dismiss under FELA, not section 90.007. We disagree. In its
motion to dismiss, KCSR specifically requested dismissal pursuant to section 90.007.
Because the Texas Legislature has authorized interlocutory appeals from a trial court’s
denial of a section 90.007 motion to dismiss, we have jurisdiction to consider this
appeal.3

3
Nevertheless, we agree with appellee that this appeal in no way pertains to or affects his claims
based on the decedent’s exposure to diesel exhaust.

3
 III. FEDERAL PREEMPTION

In a single issue, KCSR contends the trial court erred by denying KCSR’s motion
to dismiss and concluding that appellee is not required to comply with Chapter 90 report
requirements because they are preempted by FELA.

A. Conflict Preemption

Federal preemption of state law is grounded in the Supremacy Clause of the
United States Constitution, which provides that “the Laws of the United States . . . shall
be the supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
U.S. Const. art. VI, cl. 2; MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 481 (Tex.
2010). Although there are several species of preemption, we are concerned with that type
of “conflict preemption” under which state law is preempted when it stands as an obstacle
to the accomplishment and execution of congressional objectives. See Hinton, 329
S.W.3d at 482. Whether substantive or procedural, state law is preempted when it
interferes with or restricts remedies under a federal statute. See Felder v. Casey, 487 U.S.
131, 138 (1988). “[W]here state courts entertain a federally created cause of action, the
‘federal right cannot be defeated by the forms of local practice.’” Id. (quoting Brown v.
W. Ry. of Ala., 338 U.S. 294, 296 (1949)). The relative importance to the state of its own
law is immaterial when there is a conflict with a valid federal law because any state law,
however clearly within a state’s acknowledged power, which interferes with or is
contrary to federal law must yield. Free v. Bland, 369 U.S. 663, 666 (1962). State
procedural rules may not be used to impose unnecessary burdens upon rights of recovery
authorized by federal law. See Brown, 338 U.S. at 298.

B. Federal Employers’ Liability Act (FELA)

“Before FELA was enacted, the harsh and technical rules of state common law had
made recovery difficult or even impossible for injured railroad workers.” CSX Transp.,
Inc. v. McBride, 131 S.Ct. 2630, 2638 (2011) (citation omitted). “[D]issatisfied with the

4
[railroad’s] common-law duty, Congress sought to supplan[t] that duty with [FELA’s] far
more drastic duty of paying damages for injury or death at work due in whole or in part to
the employer’s negligence.” Id. (citations omitted). FELA was enacted to “shif[t] part of
the human overhead of doing business from employees to their employers.” Id. at 2636
(citations omitted).

Under FELA,

Every common carrier by railroad while engaging in [interstate] commerce
. . . shall be liable in damages to any person suffering injury while he is
employed by such carrier in such commerce, or, in case of the death of such
employee, to his or her personal representative, . . . for such injury or death
resulting in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier.

45 U.S.C.A. § 51. FELA affords claimants the right to have causation of their injuries
determined by the simple test of whether the injuries resulted “in whole or in part” from
the carrier’s negligence, which is far less burdensome than the usual proximate-cause test
applied in common-law negligence cases. Dutton v. S. Pac. Transp., 576 S.W.2d 782,
784 (Tex. 1978). Additionally, “In order to further FELA’s humanitarian purposes,
Congress did away with several common-law tort defenses that had effectively barred
recovery by injured workers,” such as the fellow-servant rule, contributory negligence,
and assumption-of-the-risk doctrine. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542–
43 (1994). “Any contract, rule, regulation, or device whatsoever, the purpose or intent of
which shall be to enable any common carrier to exempt itself from any liability created
by this chapter, shall to that extent be void.” 45 U.S.C.A. § 55. Federal and state courts
have concurrent jurisdiction under FELA. 45 U.S.C.A. § 56.

“It is now well-settled that Congress explicitly directed that FELA wholly preempt
state-law remedies for railway employees injured in the course of employment when any
part of that employment furthers interstate commerce.” Rogers v. Consol. Rail Corp.,
948 F.2d 858, 860 (2d Cir. 1991). “As a general matter, FELA cases adjudicated in state
courts are subject to state procedural rules, but the substantive law governing them is

5
federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985); see also
Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 43 (Tex. App.—Houston [14th
Dist.] 1999, no pet.). Substantive rights governed by FELA cannot be interfered with,
lessened, or destroyed by a state rule of practice or procedure. Scott v. Atchison, T. & S.
F. R. Co., 572 S.W.2d 273, 281 (Tex. 1978) (op. on rehearing) (citing Arnold v.
Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 360–61 (1957) (per curiam)).

C. Texas Civil Practice and Remedies Code Chapter 90: Claims Involving Asbestos
and Silica

In 2005, Chapter 90 was signed into law, establishing the method for handling a
pretrial docket for asbestos-related and silica-related claims and prescribing reporting
requirements and medical criteria by which impaired and unimpaired claimants are
identified. See Acts 2005, 79th Leg., R.S., ch. 97, § 1–2, 2005 Tex. Gen. Laws 169, 169–
79. In passing Chapter 90, the Legislature stressed the existence of an “asbestos-
litigation crisis,” noting that Texas led the nation in such suits during the period from
1988 to 2000. Tex. Civ. Prac. & Rem. Code Ann. § 90.001 cmts. (d)–(e). The
Legislature found that the crisis was due in part to claimants, who had occupational
exposure to asbestos but did not yet suffer impairment from the exposure, filing suits to
avoid statute-of-limitations issues. Id. § 90.001 cmt. (f). The Legislature recognized that
the deluge of asbestos litigation resulted in the bankruptcies of many companies, the loss
of tens of thousands of jobs, massive litigation expenses, and overcrowded dockets that
severely hampered the ability of seriously ill claimants to seek redress. Id. § 90.001
cmts. (g)–(h). For similar reasons, the Legislature found a silica-litigation crisis was
imminent. Id. § 90.001 cmts. (i)–(m); see generally John G. George, Sandbagging
Closed Texas Courtrooms with Senate Bill 15: The Texas Legislature’s Attempt to
Control Frivolous Silica Claims Without Restricting the Constitutional Rights of Silicosis
Sufferers, 37 St. Mary’s L.J. 849, 855–65 (2006) (discussing problems with silica-related
litigation and Legislature’s enactment of Chapter 90).

6
 Consequently, the Legislature enacted Chapter 90, commenting:

It is the purpose of this Act to protect the right of people with impairing
asbestos-related and silica-related injuries to pursue their claims for
compensation in a fair and efficient manner through the Texas court
system, while at the same time preventing scarce judicial and litigant
resources from being misdirected by the claims of individuals who have
been exposed to asbestos or silica but have no functional or physical
impairment from asbestos-related or silica-related disease.

Id. § 90.001 cmt. (n). To that end, Chapter 90 requires a claimant to demonstrate early in
the pretrial phase of litigation that his asbestos-related or silica-related injuries have been
substantiated by a reliable medical-expert evaluation. Under sections 90.003 and 90.004,
respectively, a claimant must serve on each defendant a report in which a board-certified
physician details certain information regarding the diagnostics performed and the injured
person’s exposure history and verifies that the injured person suffers from an asbestos-
related or silica-related impairment. Id. §§ 90.003, 90.004. The claimant must serve the
report on the defendant not later than the thirtieth day after the defendant answers or
enters an appearance in the action. Id. § 90.006(a).4 Section 90.007 is entitled “Motion
to Dismiss” and provides in relevant part,

(a) In an action filed on or after the date this chapter becomes law, if a
claimant fails to timely serve a report on a defendant, or serves on the
defendant a report that does not comply with the requirements of Section
90.003 or 90.004, the defendant may file a motion to dismiss the claimant’s
asbestos-related claims or silica-related claims. The motion must be filed
on or before the 30th day after the date the report is served on the
defendant. If a claimant fails to serve a report on the defendant, the motion
must be filed on or before the 30th day after the date the report was
required to be served on the defendant under Section 90.006. If the basis of
the motion is that the claimant has served on the defendant a report that
does not comply with Section 90.003 or 90.004, the motion must include
the reasons why the report does not comply with that section.
...

4
However, as discussed more fully below, different report deadlines and procedures applied to
actions pending on the date Chapter 90 became effective. See Tex. Civ. Prac. & Rem. Code Ann. §
90.006(b), (c).

7
 (c) Except as provided by Section 90.010(d) or (e),5 if the court is of the
opinion that a motion to dismiss is meritorious, the court shall, by written
order, grant the motion and dismiss all of the claimant’s asbestos-related
claims or silica-related claims, as appropriate, against the defendant. A
dismissal under this section is without prejudice to the claimant’s right, if
any, to assert claims for an asbestos-related injury or a silica-related injury
in a subsequent action.

Id. § 90.007(a), (c).

D. Analysis

1. In re GlobalSantaFe

In support of its argument that the medical-report requirements of Chapter 90 are
not preempted by FELA, KCSR relies primarily on In re GlobalSantaFe Corp. 275
S.W.3d 477 (Tex. 2008) (orig. proceeding).

In In re GlobalSantaFe, the plaintiff filed suit against GlobalSantaFe Corp.
(“GSF”) in Texas district court, asserting Jones Act claims for maritime injuries allegedly
stemming from occupational exposure to silica. Id. at 479–80. While the case was still
in the pretrial phase, Chapter 90 of the Texas Civil Practice and Remedies Act became
effective. Id. at 480. Because the plaintiff filed his suit before September 1, 2003, the
dismissal provisions of section 90.007 were inapplicable. Id. at 481 (citing Tex. Civ.
Prac. & Rem. Code Ann. § 90.007(a)). Nevertheless, the plaintiff had ninety days to
serve a report complying with Chapter 90 requirements, or the defendant could file a
notice of transfer, automatically transferring the case to the MDL court until a report was
served. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 90.010(a)(2), (b)). GSF filed a
notice of transfer, contending the plaintiff failed to timely serve a Chapter 90 report. Id.

5
Section 90.010(d) is inapplicable in the present case because it applies only to those actions
pending on September 1, 2005, when Chapter 90 became effective. Section 90.010(e) may be invoked in
actions filed on or after the effective date of Chapter 90 and, in conjunction with section 90.010(f)–(j),
provides claimants with alternative expert-report requirements and procedures to those espoused in
sections 90.003 and 90.004. Nonetheless, appellee did not invoke, and does not argue, that section 90.010
(e)–(j) applies. Accordingly, we do not consider the effect of section 90.010(e)–(j) in our preemption
analysis.

8
at 482. After the case was transferred to the MDL court, the plaintiff argued Chapter 90
was preempted in its entirety by the Jones Act. Id. The MDL court agreed and remanded
the case to district court. Id. at 482, 484. GSF petitioned for a writ of mandamus in this
court; we agreed Chapter 90 was preempted. In re GlobalSantaFe Corp., 292 S.W.3d 68
(Tex. App.—Houston [14th Dist.] 2006, orig. proceeding), mand. granted, 275 S.W.3d
477 (Tex. 2008). GSF then sought mandamus relief from the Supreme Court of Texas.

The supreme court considered the applicability of Chapter 90 relative only to silica
claims; the court noted it expressed no opinion relative to Chapter 90 provisions applying
to asbestos-related claims. In re GlobalSantaFe, 275 S.W.3d at 489 n.78. The court
recognized that the Jones Act is remedial, meaning “for the benefit and protection of
seamen who are particularly wards of admiralty,” and discussed Jones Act preemption
principles:

The preemption of state law by the Jones Act is a unique corner of federal
preemption law that must be applied with recognition that Jones Act cases
can be brought in federal or state court. While state law must sometimes
yield to the need for a uniform and harmonious system of federal maritime
law, “this limitation still leaves the States a wide scope.” Congress could
preempt the entire field of maritime law, but has instead left the states “with
a considerable legislative and judicial competence in the maritime field.”
Where Congress has acted in the admiralty area, “state regulation is
permissible, absent a clear conflict with the federal law.”

Id. at 484 (citations omitted). The court then recognized general principles regarding
preemption under the Jones Act:

On the one hand, substantive rights created by Congress via the Jones Act
must prevail over inconsistent state substantive law even where the suit is
brought in state court. On the other hand, it has held that state law
characterized as procedural is not preempted. The [United States Supreme]
Court has also recognized that federal maritime law follows a “reverse
Erie” doctrine of sorts, employing the use of substantive federal maritime
law in state courts but recognizing that state procedural law can be
followed.

Id. at 485 (citations omitted). The court cited a United States Supreme Court case
supporting this proposition. Id. at 486 (citing Am. Dredging Co. v. Miller, 510 U.S. 443
9
(1994) (holding state statute rendering federal doctrine of forum non conveniens
inapplicable was procedural and thus not preempted)).

The court then considered whether certain portions of Chapter 90 were preempted
by the Jones Act. First, the court held that most of the report requirements of section
90.004 were not preempted: “Nothing in the Jones Act exempts a seaman claiming a
silica-related disease from establishing, through reliable medical proof, that he in fact
suffers from such a disease. . . . Both federal and state law require expert testimony
grounded in the methods and procedures of science.” Id. at 486–87. “To the extent that
Jones Act jurisprudence recognizes a special standard for proving causation, federal cases
have held that this causation standard does not exempt Jones Act cases from the general
rules for admission of expert testimony.” Id. at 487. The court then specified which
requirements in section 90.004 are related to assuring reliable expert confirmation of the
existence of silica diseases. Id. at 487–88. “All of these requirements represent the
[Texas] 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.

Second, the court held that Chapter 90 procedures for transferring silica cases to
an MDL court for pretrial proceedings are not preempted by the Jones Act because it is
merely state procedural law. Id. at 488–89.6 “These provisions serve an important state
purpose . . . of streamlining the resolution of silica cases . . . and thus conserving judicial
and litigant resources.” Id. at 488. “Texas courts are not expected to abandon all their
regular rules of practice and procedure and to adopt federal rules in a case simply because
a Jones Act claim is alleged. On the contrary, maritime law recognizes a ‘reverse-Erie’
principal that generally leaves state courts hearing maritime suits to their regular
procedures.” Id. at 489. “The transfer of silica-related cases to an MDL court for

6
In the present case, neither party argues the case was improperly transferred to the MDL court.

10
consolidated pretrial proceedings does not work material prejudice to a characteristic
feature of maritime law.” Id.

Third, the court held that one portion of the report requirements in section 90.004
was preempted: the requirement that an expert must verify the exposed person has “at
least Class 2 or higher impairment” due to silicosis. Id. (quoting Tex. Civ. Prac. & Rem.
Code Ann. § 90.004(b)(2)). This “minimal-impairment provision” was preempted
because the Jones Act imposes no minimal threshold of injury. Id. “Chapter 90 must not
be interpreted to impose a higher standard of proof for causation than the federal standard
applicable to Jones Act cases.” Id. The diminished causation standard under the Jones
Act is whether “employer negligence played any part, even the slightest, in producing the
injury.” Id. at 489 n.79 (citation omitted). Finally, the court determined that preemption
of one portion of Chapter 90 did not necessitate preemption of the remaining provisions.
Id. at 490.

2. Application of In re GlobalSantaFe in Present Suit

Appellee argues the instant case differs significantly from In re GlobalSantaFe
because, inter alia, section 90.007, pertaining to motions to dismiss for failure to serve a
Chapter 90 report, was not applicable in that case. 275 S.W.3d at 481. We agree .

In In re GlobalSantaFe, the plaintiff’s failure to timely serve a report merely
resulted in the MDL court retaining jurisdiction until a satisfactory report was served, and
nothing in Chapter 90 mandated a stay in discovery while the plaintiff attempted to
prepare a report; the defendant could not file a motion to dismiss based on the plaintiff’s
failure to file a report. Id. Thus, under the circumstances in In re GlobalSantaFe, the
plaintiff had an opportunity to conduct discovery and obtain the information needed to
satisfy the report requirements.

Conversely, in the instant case, a defendant may file a section 90.007 motion to
dismiss when the claimant fails to serve a sufficient medical report. Tex. Civ. Prac. &
Rem. Code Ann. § 90.007(a). Importantly, although the trial court has discretion to

11
extend or shorten deadlines for filing the motion to dismiss and response, all proceedings
are stayed upon filing of the motion to dismiss, precluding the claimant from conducting
additional discovery. Id. § 90.007(d), (e); see also Willard v. Davis, 881 S.W.2d 907,
912 (Tex. App.—Fort Worth 1994, orig. proceeding) (noting statutory stay of all
proceedings includes discovery). If the trial court determines that the motion to dismiss
is meritorious, it “shall” grant the motion and dismiss the claimant’s asbestos-related and
silica-related claims without prejudice. Tex. Civ. Prac. & Rem. Code Ann. § 90.007(c).
As explained below, a dismissal could result in extreme prejudice depending on whether
the limitations period has expired. Hence, the effect of failing to serve a Chapter 90
report is different and more onerous because of the requirements of section 90.007.

3. Felder v. Casey

Next, appellee argues that the report requirements under Chapter 90 are preempted
because they are akin to the notice-of-suit requirements which were determined by the
United States Supreme Court to be preempted in Felder v. Casey. 487 U.S. 131. We
conclude the Supreme Court’s analysis is instructive notwithstanding the fact that the
report requirements of Chapter 90 clearly differ from the notice-of-claim requirements
examined in Felder.

In Felder, the Court considered whether a Wisconsin notice-of-claim statute was
preempted in a federal section 1983 action. Id. at 134–137.7 The Wisconsin statute
provided, in relevant part, that no action may be brought against the government or its
officers unless a claimant provided written notice of the claim within 120 days of the
alleged injury. Id. at 136. A claimant also was required to submit to the governmental
defendant an itemization of relief requested, and the governmental defendant had 120
days to grant or deny such relief. Id. at 136–37. Succinctly, the Supreme Court
determined that the state procedural law was preempted because it conflicted in “its

7
Section 1983 provides claimants a right of redress against governmental employees for violating
the claimant’s federal rights. 42 U.S.C.A. § 1983.

12
purpose and effects with the remedial objectives of [section] 1983, and because its
enforcement in such actions [would] frequently and predictably produce different
outcomes in [section] 1983 litigation based solely on whether the claim is asserted in
state or federal court.” Id. at 138.

As we have done regarding FELA, the Supreme Court discussed the purposes of
section 1983:

Section 1983 creates a species of liability in favor of persons deprived of
their federal civil rights by those wielding state authority. As we have
repeatedly emphasized, “the central objective of the Reconstruction-Era
civil rights statutes . . . is to ensure that individuals whose federal
constitutional or statutory rights are abridged may recover damages or
secure injunctive relief.” Thus, [section] 1983 provides “a uniquely federal
remedy against incursions . . . upon rights secured by the Constitution and
laws of the Nation” and is to be accorded “a sweep as broad as its
language.”

Id. at 139 (citations omitted). The Court also recognized the Wisconsin notice-of-claim
and exhaustion requirements were primarily intended to benefit governmental defendants
by preventing meritless claims and controlling liability expenses. Id. at 142–44.
However, the Court explained these goals were “patently incompatible with the
compensatory goals of” section 1983—goals which sought to subject governmental
employees to liability. Id. at 143–46.

States, however, may no more condition the federal right to recover for
violations of civil rights than bar that right altogether, particularly where
those conditions grow out of a waiver of immunity which, however
necessary to the assertion of state-created rights against local governments,
is entirely irrelevant insofar as the assertion of the federal right is
concerned, and where the purpose and effect of those conditions, when
applied in [section] 1983 actions, is to control the expense associated with
the very litigation Congress has authorized.

Id. at 144 (citations omitted).

Finally, the Court explained why section 1983 likewise preempted the exhaustion
provision of the Wisconsin statute. Declaring that states may not place a condition on

13
vindication of a federal right, the Court determined that the exhaustion requirements,
albeit easily and inexpensively satisfied, were inconsistent with the remedial purposes of
section 1983, particularly “the notion that a State could require civil rights victims to seek
compensation from offending state officials before they could assert a federal action in
state court.” Id. at 149. “[T]o the extent the exhaustion requirement is designed to sift
out ‘specious claims’ from the stream of complaints that can inundate local governments
in the absence of immunity, we have rejected such a policy as inconsistent with the aims
of federal legislation.” Id. (citation omitted).

4. Application of Felder in Present Suit

We recognize the differences between Felder and the present case. For example,
the Wisconsin statute applied only to suits against governmental defendants, in direct
contravention to section 1983 which was specifically intended to subject governmental
employees to liability. Id. at 144–46. Here, Chapter 90 applies to all defendants in
asbestos and silica suits, not just railway companies engaged in interstate commerce.
Additionally, although requiring claimants to provide an accurate picture of the
underlying incident before litigation commences may benefit both claimants and
governmental defendants, the primary purpose of the Wisconsin statute was to benefit
governmental defendants by reducing litigation costs and allowing them an opportunity
to prepare a stronger case. Id. at 143, 145, 150. The legislative intent behind Chapter 90
was perhaps not so defendant-friendly because, aside from protecting companies and jobs
negatively impacted by the deluge of asbestos-related and silica-related claims, the
Legislature expressly intended to expedite relief for those actually suffering from
asbestos-related and silica-related injuries. Tex. Civ. Prac. & Rem. Code Ann. § 90.001
cmts. (g)–(n); see also In re Quigley Co., Inc., 383 B.R. 19, 28–29 (Bankr. S.D.N.Y.
2008) (explaining purposes behind several state asbestos-related report requirement
statutes).

Despite these differences, there are several key similarities between Felder and the
instant case. First, section 1983 and FELA are remedial, intended to provide groups with

14
historically unequal access to legal remedies the ability to seek and receive adequate
compensation for injuries. Specifically, the purpose behind section 1983 was to ensure
access to courts for persons who are deprived of civil rights instead of having to seek
redress from governmental agencies not known for protecting civil rights. See Burnett v.
Grattan, 468 U.S. 42, 50–51 (1984); McDonald v. City of West Branch, Mich., 466 U.S.
284, 290 (1984); Felder, 487 U.S. at 147–48; Patsy v. Bd. of Regents of State of Fla., 457
U.S. 496, 505 (1982). The primary purpose of FELA was to shift part of the risks
inherent in dangerous railway work from employees to employers by eliminating harsh
defenses, prohibiting pre-injury releases, and reducing the standard of proof for
causation. See McBride, 131 S.Ct. at 2638; Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135,
144–45 (2003).

Second, the challenged state statutes here and in Felder benefit defendants by
requiring claimants to disclose merits-related information regarding their claims in order
to save litigation costs and prevent frivolous suits. The report requirements under
sections 90.003 and 90.004 are “directed at assuring reliable expert confirmation” of
asbestos-related and silica-related illness. See In re GlobalSantaFe, 275 S.W.3d at 486–
88. Many of these requirements—such as providing a detailed occupational and
exposure history, including nature, duration, and frequency of exposure, and a physician
opinion that “to a reasonable degree of medical probability, exposure to asbestos was a
cause of the [cancer]” or “inhalation of silica was a substantial contributing factor to that
cancer”—likely oblige the claimant to obtain information from the railroad employer—a
party who may not be readily forthcoming with inculpatory evidence regarding exposure
of its employees to asbestos and silica.8

Furthermore, as mentioned above, unlike In re GlobalSantaFe, section 90.007
applies in this case. See Tex. Civ. Prac. & Rem. Code Ann. § 90.007; In re

8
For example, a physician may not be willing to opine that asbestos or silica exposure was a
cause of a claimant’s injury unless the physician knows the claimant’s exposure history—information
most likely possessed by the defendant railway company.

15
GlobalSantaFe, 275 S.W.3d at 481. Comparable to the Wisconsin statute, Chapter 90
arms a defendant with the option to file a motion to dismiss based on the claimant’s
failure to timely serve a sufficient report, thereby staying all court proceedings, including
discovery. Tex. Civ. Prac. & Rem. Code Ann. § 90.007(a), (d); see also Felder, 487 U.S.
at 144 (explaining the Wisconsin statute “confers on governmental defendants an
affirmative defense that obligates the plaintiff to demonstrate compliance with the notice
requirement before he or she may recover at all”). If the trial court agrees that the
claimant failed to comply with the report requirements, the case shall be dismissed
without prejudice. Tex. Civ. Prac. & Rem. Code Ann. §§ 90.007(c), 90.010(e).
Although the dismissal is denominated “without prejudice,” it could often have a
prejudicial effect because the limitations period may expire before a claimant has the
opportunity to conduct sufficient discovery to prepare a Chapter 90 report.9

In effect, the Chapter 90 report requirements and dismissal provision force a
claimant to respond to a no-evidence motion for summary judgment without adequate
time for discovery. See Tex. R. Civ. P 166a(i) (authorizing parties to file no-evidence
motion for summary judgment after adequate time for discovery); see also Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (recognizing Federal Rule of Civil
Procedure 56 allows parties to file no-evidence motions for summary judgment after an
adequate time for discovery); cf. also Cruz v. Chang, 400 F. Supp. 2d 906, 914–15 (W.D.
Tex. 2005) (determining Texas report requirements in medical-malpractice case influence

9
The statute of limitations for a FELA action is three years from the date a cause of action
accrues. 45 U.S.C.A. § 56. The limitations period relative to an occupational-disease claim under FELA
accrues “when the employee becomes aware of his disease and its cause.” Kichline v. Consol. Rail Corp.,
800 F.2d 356, 358 (3d Cir. 1986) (citing Urie v. Thompson, 337 U.S. 163, 169–70 (1949) (holding
silicosis claim accrued when the disease manifested itself)). The key inquiry is whether the plaintiff has
knowledge of an injury and its cause, but this does not require that the plaintiff know a legal wrong has
occurred, i.e. that the defendant is legally blameworthy. Tolston v. Nat’l R.R. Passenger Corp., 102 F.3d
863, 865 (7th Cir. 1996) (citing United States v. Kubrick, 444 U.S. 111, 122–23 (1979)). The statute of
limitations begins to run when a reasonable person knows, or in the exercise of reasonable diligence
should have known, of the injury and that the injury is work-related. Id.; Bealer v. Mo. Pac. R. Co., 951
F.2d 38, 39 (5th Cir. 1991); Minyard v. Mo. Pac. R. Co., 889 S.W.2d 10, 11 (Tex. App.—Tyler 1994, no
writ).

16
substantive outcomes and protect defendants from “a full battery of discovery and
protracted litigation prior to dismissal of a non-meritorious lawsuit”). Such a situation
was exemplified here: after KCSR filed its motion to dismiss, appellee filed a motion to
compel production of pathology evidence from a hospital and requested an opportunity
for his experts to review the evidence before preparing reports.

This also distinguishes the instant case from Norfolk Southern Railway Co. v.
Bogle. 875 N.E.2d 919 (Ohio 2007). In Bogle, the Supreme Court of Ohio considered
whether FELA preempted an Ohio statute requiring the plaintiff claiming a non-
malignant asbestos-related injury to serve a medical report within thirty days of filing
suit. Id. at 921. The court concluded there was no preemption because the sanction for
failing to timely serve the report was an administrative dismissal during which the statute
of limitations was tolled until the claimant could serve a sufficient report. Id. at 926. In
our situation, there is no tolling following dismissal.10

The Bogle court also recognized that there was uniformity between Ohio and
federal procedure because the federal courts initiated in 1991 an MDL docket for
asbestos-related cases. Id. at 926–27; see also 28 U.S.C.A. 1407(a) (explaining MDL
courts address pretrial proceedings). Similar to the Georgia statute, the federal MDL
panel issued Administrative Order No. 8 (“AO No. 8”) requiring claims not supported by
a medical report to be administratively dismissed with tolling of the limitations period
until submission of sufficient medical evidence. Bogle, 875 N.E.2d at 926–27.

However, when appellee filed the present suit during February 2011,11 AO No. 8
had been replaced by Administrative Order No. 12 (2009) (“AO No. 12”). Pursuant to

10
We acknowledge that under section 16.0031 of the Civil Practice and Remedies Code, the
limitations period on claims involving asbestos-related or silica-related injuries do not accrue until the
earlier of the date the claimant serves a sufficient Chapter 90 report or the exposed person’s death. Tex.
Civ. Prac. & Rem. Code Ann. § 16.0031 (West 2011). However, this section does not apply because
Oney has asserted FELA claims and thus the federal statute of limitations applies. See Maurizi v.
Goldsmith, 84 F. Supp. 2d 455, 463 (S.D.N.Y. 2000) (recognizing state law may not be used to extend
federal limitations period). Furthermore, the exposed person in this case has died.
11
Beginning December 2011, asbestos claims were no longer transferred to the asbestos MDL
17
AO No. 12, claimants were required to submit medical reports similar to those required
by Chapter 90:

Each plaintiff asserting a claim based upon an alleged asbestos-related
malignancy [or alleged non-malignant injury or condition] shall submit to
the court a copy of the medical diagnosing report or opinion upon which
the plaintiff now relies for the prosecution of the claim as if to withstand a
dispositive motion.
...
Each report or opinion submitted hereunder shall be based upon objective
and subjective data which shall be identified and descriptively set out with
the report or opinion.

AO No. 12, provision 4.12

Although not specified in the text of AO No. 12, the MDL panel required
claimants to serve authenticated reports which include a diagnosis of symptomatic
asbestos-related disease based on medically accepted principles and exposure history.
See In re Asbestos Prods. Liab. Litig. (No. VI), 278 F.R.D. 126, 131, 133 (E.D. Pa. 2011).
Claimants whose cases were transferred to the MDL docket in February 2011 were
required to file a report within thirty days from the date of the transfer. AO No. 12,
provision 12. “The court may dismiss pursuant to F.R.C.P. 41(b) the cases of any
plaintiffs who fail to comply with the requirements set forth.” AO No. 12, provision 6
(emphasis added); compare with Tex. Civ. Prac. & Rem. Code Ann. § 90.007(c)
(requiring courts to dismiss claims if the motion to dismiss has merit). Unless a dismissal
order states otherwise, dismissals pursuant to Federal Rule of Civil Procedure 41(b) are
with prejudice. Fed. R. Civ. P. 41(b); see also In re Asbestos Prods. Liab. Litig. (No.
VI), 278 F.R.D. at 131–32.13

docket. In re Asbestos Prods. Liab. Litig. (No. VI), 830 F. Supp. 2d 1377 (U.S. Judicial Panel on
Multidistrict Litigation 2011).
12
At the time this opinion was issued, AO No. 12 was available at
http://www.paed.uscourts.gov/documents/MDL/MDL875/adord12.pdf (last visited July 2012).
13
We also note that at some point, a report requirement similar to AO No. 12 was required in the
federal silica MDL docket. See In re In re Asbestos Prods. Liab. Litig. (No. VI), 256 F.R.D. 151, 156 &
18
 There are instances of cases pending in the federal asbestos MDL Docket in which
FELA claims were asserted.14 Although none of these cases involves the legal question
of whether FELA claimants are required to comply with AO No. 12, at least one FELA
claimant filed an AO No. 12 report. See Robinson v. Ill. Cent. R. Co., 2011 WL 4907401,
at *1 n.1 (E.D. Pa. Feb. 14, 2011) (noting claimant submitted medical records in
accordance with AO No. 12). However, we note MDL panels “may prescribe rules for
the conduct of its business not inconsistent with Acts of Congress and the Federal Rules
of Civil Procedure.” 28 U.S.C.A. § 1407(f). We have not found any case in which a
federal court has determined whether AO No. 12 is inconsistent with FELA. See
Weibrecht v. S. Ill. Transfer, Inc., 241 F.3d 875, 879 (7th Cir. 2001) (explaining that
federal rules inconsistent with an act of Congress are superseded, not preempted).
Accordingly, the fact that FELA claimants asserting asbestos-related injuries may have
been subject to AO No. 12 does not foreclose this court from holding that Chapter 90
report requirements are preempted.

Furthermore, claimants unable to comply with AO No. 12 may avoid dismissal by
advancing a legitimate ground for noncompliance. See In re Asbestos Prods. Liab. Litig.
(No. VI), 278 F.R.D. at 132. Presumably, a legitimate ground would be inability to
secure information necessary to satisfy the report requirements. Under the provisions of
Chapter 90 applicable to this case, nothing authorizes a trial court to extend the deadline
for the claimant to serve a report or to allow the claimant to conduct discovery after a

n.12 (E.D. Pa. 2009); In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 575–75 & n.18 (S.D. Tex.
2005) (citing Administrative Order No. 4, which required each plaintiff to create a specific fact sheet).
14
See, e.g., In re Asbestos Prods. Liab. Litig. (No. VI), 2012 WL 1231840 (E.D. Pa. March 20,
2012); In re Asbestos Prods. Liab. Litig. (No. VI), 2012 WL 1137006 (E.D. Pa. March 13, 2012); In re
Asbestos Prods. Liab. Litig. (No. VI), 2012 WL 661673 (E.D. Pa. Feb. 8, 2012); McCullom v. Allen-
Bradley Co., 2011 WL 6026605 (E.D. Pa. Dec. 2, 2011); McElroy v. Ill. Cent. R.R. Co., Civil No. 05-174-
GPM, 2011 WL 4074144 (S.D. Ill. Sept. 13, 2011); In re In re Asbestos Prods. Liab. Litig. (No. VI), 2011
WL 3925098 (E.D. Pa. Sept. 6, 2011); In re Asbestos Prods. Liab. Litig. (No. IV), 2011 WL 3919375
(E.D. Pa. Aug. 10, 2011); Maynor v. Ill. Cent. Gulf R.R. Co., 2011 WL 4907756 (E.D. Pa. Feb. 10, 2011);
Bludworth v. Ill. Cent. R.R. Co., 2011 WL 4916913 (E.D. Pa. Feb 10, 2011).

19
motion to dismiss is filed and the stay is in effect. See Tex. Civ. Prac. & Rem. Code
Ann. §§ 90.006, 90.007.

Accordingly, we conclude that the applicable Chapter 90 report requirements and
dismissal provision impose an unnecessary burden on appellee’s rights of recovery under,
and interfere with the remedial purposes of, FELA. See Brown, 338 U.S. at 295–99
(determining state pleading rule requiring court to construe pleadings most strongly
against pleader interfered with plaintiff’s federal rights under FELA). Nothing in our
holding relieves appellee from the burden of presenting reliable, admissible evidence
supporting his FELA claim in future proceedings. See id. at 299 (recognizing its
determination that FELA preempted state pleading requirement did not relieve plaintiff
from presenting sufficient evidence at trial). KCSR’s sole appellate issue is overruled.

We affirm the trial court’s interlocutory order.

/s/ Charles W. Seymore
Justice

Panel consists of Justices Seymore, Boyce, and Mirabal.15 (Boyce, J., Dissenting)

15
Senior Justice Margaret Garner Mirabal sitting by assignment.

20