Win some....

Although the Supreme Cort of Texas seems intent on doing me wrong every chance it gets, there are other courts. And one of those courts is the very conservative Houston [14th] Court of Appeals. And the case I have in mind is In re: Union Carbide.

Perhaps a little background is in order.

In the last round of "tort reform," the Texas Legislature enacted a state multidistrict Litigation (MDL) provision. In theory, MDL provides a means of streamlining mass tort litigation. Rather than repeat the same pretrial proceedings over and over, all cases are transferred to one court where al the pretrial stuff (discovery ad so forth) is coordinated and disposed of expeditiously, and then the case is sent back or trial to the court in which it was filed. In practice, MDL is a judicial oubliette--it's a place where cases are sent to be forgotten. Needless to say, corporate wrongdoers love it.

Which brings us to In re: Union Carbide.

The first thing Texas courts did when they got MDL was transfer all new asbestos cases to the MDL court. Nevermind the fact that Texas courts had already developed procedures to deal with asbestos cases and there was really no need for a change.

But that's neither her nor there. Once things started getting transferred to the MDL court, the Defendants tried to get what they call an "unimpaired docket" established, the purpose of which is to deprive people who cannot demonstrate some arbitrary level of impairment their right to their day in court.

Imagine, if you will, an Olympic athelete. Someone who can do all kinds of stuff that you and I could never do. Now imagine that you cut back his abilities so that he's only a bit less capable than we are. That's what "unimpaired" means in this context. It has nothing to do with what's lost--it only looks at how far below average a person has to be pushed before they're willing to conceed that there's an "injury."

Anyway, the Defendants filed their motion to create an unimpaired docket, and the MDL court indicated a willingness to do so in theory, but said it wouldn't becase the judge thought it would violate the Texas Constitution.

So the Defendants filed a mandamus petition in the Court of Appeals. (In this context, a mandamus proceeding is where a party in litigation tries to get a higher court to order a lower court to do something.) They all argued that the MDL court was wrong, that it wasn't unconstitutional, and so forth. And the lawyers for the Plaintiffs generally argued that it was indeed unconstitutional. And that's what I was going to do too.

But I'm lazy and my eye hurt. So I talked to the lawyer for some of the other plaintiffs, and he said he was covering those issues in his brief. Which left me free to argue whatever I wanted to argue.

So I said none of that stuff matters--the only real issue is whether the requirements for mandamus were met (i.e., "clear abuse of discretion"), and they clearly weren't in this case. It was a very short brief. In fact, I was told by one of the guys who did the hard work to respond to the arguements in the Defendants' briefs (and a damn good lawyer) that it was a "perfect" brief. I was enormously pleased with myself.

I'll give you one guess on the court's reasons for denying the mandamus petition.