Asbestos companies do not like out-of-staters with asbestos cancer who assert their rights in Texas. Texas law, however, allows asbestos victims to bring their lawsuit in Texas if an "act or omission that was a . . . producing cause of the injury occurred" in Texas. On May 24, 2004, Judge John Davidson, who had been appointed by the Texas Supreme Court to rule on pre-trial issues for all cases filed in Texas, upheld the law in a case involving John Pomranky, a 59-year-old former Dow Chemical plant worker from Midland, Michigan who filed his lawsuit in Wharton County, Texas. Mr. Pomranky is suffering from malignant mesothelioma.

The defendants in Mr. Pomranky's lawsuit, led by the Chrysler Corporation (and joined in by 28 defendants), argued that the case should be dismissed and refiled in Michigan. The defense argued that Mr. Pomranky was exposed to asbestos at the Dow plant in Michigan from 1965 to 1996, was diagnosed in Michigan, and is being treated for his asbestos cancer in Michigan (see affidavit below from Dr. Pass of Detroit, Michigan, who performed an extra pleural pneumonectomy). However, Mr. Pomranky testified in his deposition that he was exposed to products made in Texas by Texas defendants.

Judge Davidson strained to find support in the law to agree with the asbestos company defendants. He asked Pomranky's counsel to brief the issue whether the Judge could split the lawsuits among Texas and Michigan. Texas law, however, prevented a court from severing a case involving an indivisible injury (asbestos cancer is the result of numerous exposures which have cumulative contribution to the cause of the injury).

In the end, the Supreme Court-appointed "Asbestos Czar" begrudgingly denied the motions to dismiss, calling his ruling "silly" but the only result supported by the new "tort reform" law passed in Texas in 2003.

Although we thank the Judge for following the rule of law, we do not find his ruling "silly." We represent John and Ann Pomranky, along with The Lanier Law Firm. Mr. Pomranky is recovering from complications arising from his lung removal (EPP), including unrelenting pain and numbness in his legs and atrial fibrillation. He has not been a candidate for post surgery chemotherapy or radiation therapy and was stage II at the time of his surgery (lymph node involvement). Recent PET scans confirm possible metastatic tumor in the left thorax, as well as in the right chest cavity. He has had a morphine pump inserted.

Despite his declining health, John Pomranky's spirits remain strong. He and Ann want their day in court. They want to hold accountable the companies who have poisoned him and brought ruination and despair into his once happy family.

Please see Dr. Harvey Pass' declaration, dated 28 January 2004.

Please see photographs by Dr. Pass during the surgery of John Pomranky, dated January 26, 2004.

Please see John Pomranky's medical profile.

RGW

Order from Judge Davidson:

May 24, 2004

To all Counsel in Pomranky:

             The court has carefully considered the Motion to Dismiss on Grounds of Forum Non Conveniens filed by the Chrysler Corporation and joined in by two of the twenty-eight Defendants.

             First, let’s get the facts straight.  The Plaintiff lives in Michigan.  He has his entire life.  All of his jobs have been in Michigan.  He apparently never set foot in Texas until his deposition was taken in this case.  He has spent his life working in a number of factories in Michigan.  He has brought a lawsuit claiming that property owned by various Defendants in Michigan contained asbestos.  He also claims that various products that he used in Michigan contained asbestos.  He has been treated exclusively by Michigan doctors.  The coworkers and family members that will join his physicians in testifying in this trial all live in Michigan.

             The lawsuit against all of these Defendants, of course, was filed in Wharton County.  To get to Wharton County, all plaintiffs, defendants, family members, and physicians will have to either drive for 36 hours or get on an airplane for a three hour flight and then drive for two hours (unless there is road construction on any freeway in Houston, in which case it will be a three hour drive) across the coastal plains to Wharton.  I will note that the Plaintiff has apparently never set foot in Wharton County.  Unless the word “conveniens” means something very different today from the time I took Latin in high school, the doctrine of forum non conveniens means nothing if it does not apply to this case.

             Why Wharton instead of Michigan?  Plaintiff’s counsel, with commendable candor, gives several reasons.  First, he acknowledges the existence of severe damage caps under Michigan law.  Those damage caps will, of course, almost certainly be in effect for most, if not all, portions of this case.  Secondly, he asserts, but does not offer any evidence to prove, that there is a long wait for asbestos trials in Wayne County, Michigan.  If true (and I am assuming it is), this is a matter for the Plaintiff and those similarly situated to take up with their elected officials in Michigan.

             The third, and more legally significant reason given is that one of the Defendants made some gloves that the Plaintiff says he used back in the early 1970’s that was made in Wharton County.  Incredibly, the Plaintiff argues, supported by affidavit proof, that the fact that these gloves were made in Wharton County thirty years ago mandates this court to tell twenty-seven Defendants and all Plaintiffs’ witnesses that they have to travel from Michigan to Wharton.  Even more incredibly, the Plaintiff is right!

             The power of a court to dismiss a case on a claim of Forum Non Conveniens is set forth in Section 71.051 of the Civil Practice and Remedies Code.  It is not a gem of the art of draftsmanship.  Subsection b of the section sets forth standards that a court may look at, in its discretion, to determine whether a case should be dismissed without prejudice for refiling elsewhere.  The discretion given in subsection (c) is taken away in subsection (f). Subsection f states:

             A court may not stay or dismiss a claim or action pursuant to Subsection (b) if a party opposing the motion under subsection (b) alleges and makes a prima facie showing that an act or omission that was a proximate or producing cause of the injury or death occurred in this state.  The prima facie showing need not be by a preponderance of the evidence. And shall be deemed to be satisfied if the party produces credible evidence in support of the pleading, which evidence need not be in admissible form and may include affidavits, deposition testimony, discovery responses, or other verified evidence. (Italics added)

            Let’s review.  A prima facie showing is all it takes.  Fine.  It need not be shown by a preponderance of the evidence.  What must it be shown by?  A scintilla?  Substantial evidence?  A modicum?  The statute is silent.  Reading affidavits and other inadmissible evidence by an unknown standard upon which I am to judge credibility is, at best, a challenge.   Proximate cause will be the standard upon which a jury will be instructed to judge this case, but for purposes of this motion, I am commanded to use the lower standard of producing cause.  This statute needs work.

            The Plaintiff in this case has pleaded a cause of action against a Texas Defendant.  They have made, barely, a prima facie case against that Defendant.  As I read the statute, as poorly drawn as it is, that should end any consideration of the motion in this case.  However, on this court’s initiative, in an effort to prevent half the state of Michigan from being dragged into this state in hundreds of other cases, I asked counsel to brief the legality of a severance.  The Plaintiff responded with the indivisible injury theory enunciated in Jones v. Ray.  Even though the Texas Supreme Court did not review Jones, I accept it as the law.  While not on all fours, it is at least on all threes.  I will accept it as authority for the proposition that severance is improper in a case involving indivisible injury.

            Even if I did not, I think I would still be unable to send any portion of the case to Michigan or elsewhere due to the wording of the statute.  By prohibiting dismissal if it is shown that “an act or omission that was a …cause of injury took place in this state” severance would do no good, as long as that showing can be made, even in a severed case.

            I give up.  This ruling is silly, but it is the only one I can make under the law.  The motion to dismiss this case on grounds of forum non conveniens is denied.

            One more thing.  In the absence of extraordinary circumstances, any case filed after today from an asbestos plaintiff who does not and never has resided in Texas, or who has not worked here, will be ineligible for fast track status under the scheduling order applicable to asbestos cases.   First, it will take extra time for counsel to travel to the other forty-nine states to take depositions of co-workers, doctors and other witnesses.   There will be extra briefing time for briefing to be prepared on the law of any state whose residents choose to file cases in Texas.   Therefore, while cases may be filed, and they will not be dismissed, but I am not going to beg judges throughout the state to give hyper-accelerated trial settings if cases with as tenuous a relationship to Texas as this case are going to be filed.  I am making this order prospective only so that plaintiffs whose cases are in the pipeline now will not be unduly harmed.

            This order is being place in the District Clerk’s file in this case and is being Emailed to all asbestos counsel of whose Email addresses I have been made aware.

                                                                        Respectfully,

                                                                        MARK DAVIDSON

MD/
Cc:  Judge Daniel L. Sklar

*** POSTED MAY 27, 2004 ***