concurring.
I concur with the Court’s opinion and with its conclusion that we have conflicts jurisdiction here because the court of appeals’ opinion conflicts with Transportation Insurance Company v. Moriel, 879 S.W.2d 10 (Tex.1994). However, because the Court decided the conflicts issue on Moriel, the Court did not discuss. Iley v. Hughes, 311 S.W.2d 648 (Tex.1958). I write separately because I believe that it is necessary to discuss Iley in the context of whether separate juries can try different elements of a personal injury claim in separate phases.
The court of appeals suggests that if it were necessary, the trial court could have multiple juries decide the individual issues in the trial’s final phase. 960 S.W.2d at *440297. This suggestion departs from Iley, in which this Court disapproved of allowing different juries to determine contested liability and damage issues in a personal injury claim. See Iley, 311 S.W.2d at 649.
Piecemealing personal injury litigation by having separate juries decide the common and individual issues works “a substantial change in the nature of the jury trial itself.” 9 ChaRles Alan Wright, et al., Federal Practice and Procedure § 2390, at 508 (1995). Such a procedure forces two juries to evaluate discreet issues out of context and without knowledge of all the evidence. This procedure can also lead to inconsistent verdicts between class members. Moreover, the common and individual issues may be so interwoven that the litigants would have to present much of the same evidence to both juries, wasting the court’s time and the litigants’ money. This is particularly true with splitting causation into general and specific components. One commentator has stated that mass trials on the issue of general causation create substantial savings only when the plaintiffs lose because this leads immediately to the dismissal of large numbers of mass tort claims. See Roger H. Trangsrud, Mass Trials in Mass Tort Cases: A Dissent, 1989 U. III. L.Rev. 69, 79. This commentator observed that if the first jury finds general causation, for example, that the defendant’s product could have caused the plaintiffs injury, individual trials will still be necessary, and therefore little or no time and expense is saved. See Trangsrud, 1989 U. Ill L.Rev. at 79.
The Second Circuit Court of Appeals has also questioned the usefulness of deciding general causation without regard to specific causation:
The relevant question ... is not whether Agent Orange has the capacity to cause harm, the generic causation issue, but whether it did cause harm and to whom. That determination is highly individualistic, and depends upon the characteristics of individual plaintiffs (e.g. state of health, lifestyle) and the nature of them exposure to Agent Orange. Although generic causation and individual circum- ■ stances concerning each plaintiff and his or her exposure to Agent Orange thus appear to be inextricably intertwined, the class action would have allowed generic causation to be determined without regard to those characteristics and the individual’s exposure.
In re Agent Orange Prod. Liab. Litig., 818 F.2d 145,164-65 (2d Cir.1987).
It is true, as the court of appeals observed, that “the same considerations of long-standing policy and practice that inspired the Court’s decision in Iley” are somewhat different “when approximately nine hundred plaintiffs seek to proceed as a class action.” 960 S.W.2d at 297. But, in my view, having separate juries decide different phases of this personal injury case is not a viable option. First, the jury considering the trial’s phase IV would need to consider general causation evidence to evaluate whether and to what extent the toxic smoke was the specific cause of a particular claimant’s injuries. This would negate any savings that might be achieved by having the first jury decide general causation.
Second, the damage claims in this case, mental anguish and pain and suffering, are unliquidated. Our trial and appellate procedural rules prohibit separate trials of unliquidated damage claims when liability is contested. See Tex.R. Civ. P. 320; see also Tex.R.App. P. 44.1.
Third, other courts share Texas’s aversion to piecemeal litigation and its preference for unitary trials, particularly when personal injury claims are involved. See, e.g., Castano v. American Tobacco Co., 84 F.3d 734, 750 (5th Cir.1996); Cavender v. McCarty, 198 W.Va. 226, 479 S.E.2d 887, 893-94 (1996) (Cleckley, J., concurring); Brown v. General Motors Corp., 67 Wash.2d 278, 407 P.2d 461, 464 (1965).
Thus, for the reasons stated above, I would reject the court of appeals’ suggestion of using separate trials by separate *441juries in this case. In my view, Iley’s rationale is an important consideration whenever a trial court must determine whether common questions of law or fact predominate over questions affecting only individual members and whether class treatment is “superior to other available methods for the fair and efficient adjudication of the controversy.” Tex.R. Civ. P. 42(b)(4); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615,117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (discussing class actions that can be maintained under Federal Rule 23(b), on which Texas’s Rule 42(b) is based); Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 (9th Cir. 1976) (observing that certification under Federal Rule 23(b)(1)(A), the federal equivalent to Texas’s Rule 42(b)(1)(A), will ordinarily be inappropriate in an action for damages).
I otherwise concur with the Court’s opinion and judgment.