Plaintiffs Lawyer Files Constitutional Challenge to Law Restricting Silica Litigation

Paulsen thinks the more interesting argument filed by the plaintiffs is their contention that the Legislature has abdicated its law-making authority to a third party.

John Council is a senior reporter for The Texas Lawyer, an Incisive Media sister publication of this newsletter.

A Houston plaintiffs lawyer, on behalf of hundreds of silica litigants, is pressing a constitutional challenge to a 2005 Texas state law that restricts his clients from litigating claims if they suffer no physical impairments.

On Aug. 25, John M. Black, managing partner of Houston's Heard Robins Cloud & Lubel, filed a brief in In Re: Texas State Silica Products Liability Litigation, supporting a motion for injunction he originally filed in April. The motion called on Judge Tracy Christopher, the state's multidistrict litigation judge for silica cases, to overturn portions of Chapter 90 of the Texas Civil Practice & Remedies Code.

The Texas Legislature's goal in passing S.B. 15, which created Chapter 90, was “differentiating between individuals with ' silica-related disease causing functional impairment and individuals with no functional impairment,” the law's preamble reads. The reason for the law was to allow judicial resources to focus on silica plaintiffs who are impaired rather than those who are not. The law also provided a method to obtain dismissals of suits filed by plaintiffs who have no functional impairment. However, the law protected a plaintiff's right to file a suit once the impairing injury is discovered.

'Functional Impairment'

The bill also tied the definition of “functional impairment” to the American Medical Association's “Guides to the Evaluation of Permanent Impairment,” which Texas state courts use to determine which plaintiffs are functionally impaired and therefore can litigate suits.

In his brief, Black argues Chapter 90 is unconstitutional, because the state Legislature did not state which edition of the AMA Guides should be used to define “functional impairment.” The AMA has changed those guidelines since the law was passed three years ago, making it even more difficult for silica plaintiffs to prove they are functionally impaired, Black says. By tying the law to evolving AMA guides, the Legislature has abdicated its law-making role to a third party that is not accountable to the citizens of Texas ' a violation of Article 1 of the Texas Constitution. In effect, the Legislature created a moving target when it came to determining which silica plaintiffs were functionally impaired and could pursue litigation, Black says.

TX Bill of Rights

Black also believes the law violates the Texas Constitution's Bill of Rights, which forbids a law from being applied retroactively if it destroys a person's vested rights, which is how S.B. 15 was written. The law applies to cases filed before Sept. 1, 2005. Some of his clients had cases that were close to being resolved before Sept. 1, 2005, but the law effectively took them out of the litigation process, he says.

Attorneys Comment

Barbara Barron, a shareholder in MehaffyWeber, who represents a group of silica defendants in In Re: Texas State Silica Products Liability Litigation, was supposed to file a response to the challenge. Judge Christopher is scheduled to hold a hearing to consider the injunction on Dec. 8, Barron says.

The Legislature had a good reason for creating a moving target when it came to defining “functional impairment” in silica cases by tying it to the AMA Guides, says Barron, who adds that the Legislature is not abdicating its law-making authority to a third party. “The reason for the moving target is because medicine changes,” Barron says. “Instead of going back and changing the statute every year, you want to stay with the most current medicine.” The retroactive aspect of Chapter 90 does not violate a plaintiff's right to sue under the Texas Constitution's Bill of Rights, Barron says. “The plaintiffs have to have some type of impairment or disability to have damages. And their cases are still pending, they're just inactive,” Barron says.

James Paulsen, a law professor at South Texas College of Law in Houston, does not believe the constitutional challenge to the law has much chance for success. He says the retroactive nature of the law does not violate the Texas Constitution's Bill of Rights, because it does not necessarily restrict a plaintiff's right to sue.

Paulsen thinks the more interesting argument filed by the plaintiffs is their contention that the Legislature has abdicated its law-making authority to a third party.

John Council is a senior reporter for The Texas Lawyer, an Incisive Media sister publication of this newsletter.