Petition for Writ of Mandamus Denied and Memorandum Opinion filed April 28, 2011.
In The
Fourteenth Court of Appeals
NO. 14-11-00336-CV
In Re The Kansas City Southern Railway Company, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
MEMORANDUM OPINION
On April 20, 2011, relator The Kansas City Southern Railway Company filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Mark Davidson, Multidistrict Litigation pretrial judge of the 11th District Court of Harris County to vacate his order denying relator’s motion to dismiss.
On September 27, 2010, real parties in interest Nathaniel Dinkins, Vernon Brooks, Earnest Henderson, and Melvin Goines filed suit against relator alleging injury from exposure to “harmful and/or hazardous substances, including but not limited to dusts, fumes, and vapors.” The suit is governed by the Federal Employers’ Liability Act (FELA) 45 U.S.C. §51, et. seq. On December 10, 2010, relator filed a motion to dismiss pursuant to section 90.007 of the Texas Civil Practice and Remedies Code because the employees failed to serve a compliant report for any asbestos exposure claims.
Section 90.003 of the Texas Civil Practice and Remedies Code requires asbestosis claimants to serve a detailed expert report on the defendant. The statute requires, among other things, that a board-certified physician state the “the exposed person has been diagnosed with malignant mesothelioma or other malignant asbestos-related cancer; and to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma or other cancer in the exposed person[.]” Tex. Civ. Prac. & Rem. Code Ann. § 90.003(1)(A) & (B). The report must further verify that the exposed person meets a minimum threshold of injury. FELA has no minimum threshold requirement. The trial court denied relator’s motion to dismiss. Relator contends the trial court abused its discretion in denying the motion to dismiss.
Mandamus relief is available when the trial court abuses its discretion and there is no adequate remedy at law, such as by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004); In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding)).
Section 51.014(a)(11) of the Texas Civil Practice and Remedies Code permits appeal from an interlocutory order that “denies a motion to dismiss filed under Section 90.007.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(11). Consequently, a party challenging the denial of a motion to dismiss filed under Section 90.007 has an adequate remedy by appeal. Relator has not established entitlement to the extraordinary relief of a writ of mandamus. Relator’s remedy lies with an interlocutory appeal of the trial court’s order. Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Frost, Jamison, and McCally.