In Re Global Santa Fe Corp., No. 07-0040 (Tex. 2008) (Willett)(mandamus granted)(silica
litigation, federal preemption issues, Jones Act)
IN RE GLOBALSANTAFE CORPORATION; from Harris County; 14th district (14-06-00625-CV, ___ SW3d ___,
The Jones Act imposes no requirement for a minimal threshold of physical injury, nor
any limitation that only lung diseases that have progressed to a specified level of
physical impairment are covered. GSF concedes that Chapter 90 cannot impose a
requirement that the plaintiff suffer from a minimal level of physical impairment before he
can obtain relief on his Jones Act claim. Accordingly, section 90.004(b)(2), providing that
claimants alleging silicosis must have sustained “at least Class 2 or higher impairment”
cannot be applied to Jones Act claims. We further conclude that Chapter 90 must
not be interpreted to impose a higher standard of proof for causation than the federal
standard applicable to Jones Act cases.
The preemption of section 90.004(b)(2) does not mean that the remaining expert-report
requirements of Chapter 90 and its provisions for pretrial proceedings in the MDL
pretrial court are preempted. We hold that these non-preempted provisions should be
followed in all applicable suits alleging silica-related injuries and including a cause of
action under the Jones Act. The MDL pretrial court therefore erred in remanding this
case to the trial court.
The Court conditionally grants the petition for writ of mandamus.
Justice Willett delivered the opinion of the Court.
In Re Global Santa Fe Corp. (Tex. 2008)
Argued January 16, 2008
Justice Willett delivered the opinion of the Court.
In this original proceeding, GlobalSantaFe Corp. (GSF) asks this Court to direct the silica MDL pretrial court to
vacate its order remanding this case to the trial court where it was originally filed. The pretrial court concluded
that Chapter 90 of the Civil Practice and Remedies Code, applicable to certain silica-related cases and under
which the case had been transferred to the pretrial court, was inoperative because it was preempted by the
Jones Act, a federal maritime statute. We agree with GSF that the general procedural framework set out in
Chapter 90 is not preempted, although we also hold that Chapter 90's minimal-impairment provision relating to
silica claims is preempted. We conditionally grant mandamus relief.
In May 2003, John Lopez sued GSF under the Jones Act, alleging injuries from exposure to asbestos and silica
while employed by GSF aboard a vessel. Lopez filed his Jones Act suit in state court, as allowed by federal
law, in the 55th district court of Harris County.
Two years later, Chapter 90 of the Civil Practice and Remedies Code became effective, adopting unique
procedures for personal-injury actions alleging injuries from silica and asbestos. We focus here on the
requirements relating to silica claims.
Section 90.004 requires silica claimants to serve a detailed expert report on each defendant. Among other
requirements, the report must be prepared by a physician who has specific qualifications, and the physician
(or other medical professional “employed by and under the direct supervision and control of the physician”)
must perform a physical examination of the claimant and take a detailed occupational, exposure, medical, and
The report must verify that the claimant suffers from one or more silica-related diseases based on recognized
symptoms. It must attach all medical evidence supporting the physician’s opinion. The report must also
verify that the physician has made certain causation findings regarding silica exposure and the claimant’s
observed ailments. The report must make these causation determinations depending on the type of silica-
related disease asserted.
If the claimant is asserting a claim for silicosis, the report must verify a minimal level of impairment under section
90.004(b)(2), requiring “at least Class 2 or higher impairment due to silicosis, according to the American
Medical Association Guides to the Evaluation of Permanent Impairment . . . .”
Section 90.010(a) provides that “[t]he MDL rules apply to any action pending on the date this chapter becomes
law in which the claimant alleges personal injury or death from exposure to asbestos or silica,” subject to certain
exceptions. Relevant MDL rules are set out in Rule 13 of the Texas Rules of Judicial Administration, created by
this Court pursuant to legislative authority. The 295th district court of Harris County is the MDL pretrial court
for personal-injury suits alleging silica exposure. Generally, the MDL pretrial court decides all pretrial
matters and then remands the case to the trial court.
Section 90.006(a) provides, for actions filed on or after the statute’s September 1, 2005 effective date, the
expert report must be served not later than thirty days after the defendant answers or otherwise appears. For
actions filed after the effective date, the defendant may file a motion to dismiss if the claimant fails to file an
expert report or files one that does not comply with section 90.003 (asbestos claims) or 90.004 (silica claims).
For actions like this one filed before September 1, 2003, the MDL rules are inapplicable if the plaintiff files an
expert report complying with the expert report requirements of Chapter 90. The report is due within 90 days
of Chapter 90's September 1, 2005 effective date. If the plaintiff misses this deadline for filing a compliant
report, the defendant may file a notice of transfer to the MDL pretrial court. Section 90.010(b) provides:
If the claimant fails to serve a report complying with Section 90.003 or 90.004 on or before the 90th day after
the date this chapter becomes law under Subsection (a)(2), the defendant may file a notice of transfer to the
MDL pretrial court. If the MDL pretrial court determines that the claimant served a report that complies with
Section 90.003 or 90.004 on or before the 90th day after the date this chapter becomes law, the MDL pretrial
court shall remand the action to the court in which the action was filed. If the MDL pretrial court determines that
the report was not served on or before the 90th day after the date this chapter becomes law or that the report
served does not comply with Section 90.003 or 90.004, the MDL pretrial court shall retain jurisdiction over the
action pursuant to the MDL rules.
The notice of transfer automatically transfers the case without further court order, subject to a motion to
remand filed in the MDL court and a remand by that court if it determines that the plaintiff had filed a compliant
report. Absent a successful motion to remand, cases thus transferred to the MDL court remain in that court
until the claimant serves a Chapter 90-compliant report.
Contending that Lopez did not file a report complying with Chapter 90, GSF filed on December 2, 2005, a notice
of transfer to the silica MDL pretrial court. Lopez responded, arguing Chapter 90 was preempted by the Jones
Act and urging the MDL pretrial court to remand the case to the trial court. The MDL pretrial court agreed. GSF
sought mandamus relief in the court of appeals, which also sided with Lopez by holding that “chapter 90 is
preempted by federal law.” GSF now seeks mandamus relief in this Court directing the MDL pretrial court to
vacate its remand order.
A. The “Asbestos Litigation Crisis” Addressed by Chapter 90
The statute enacting Chapter 90 and other codified provisions begins with legislative findings concerning
asbestos and silica litigation. The Legislature stressed the existence of an “asbestos litigation crisis,” noting
that Texas leads the nation in such suits. It found that this problem is exacerbated by the filing of suit,
sometimes to avoid limitations problems, before the claimant is suffering from any illness affecting his daily life.
 The Legislature made further findings that this litigation has resulted in the bankruptcies of many
companies, the loss of thousands of jobs, enormous litigation expenses, overcrowded dockets that hamper the
ability of seriously ill claimants to seek redress, and the bleeding of company assets lost to a crush of claims by
those “who are not functionally or physically impaired.” It warned of a similar crisis looming over silica-
related actions, evidenced by a recent spike in such claims, and raising some of the same concerns applicable
to the asbestos crisis. The statute further provides:
It is the purpose of this Act to protect the right of people with impairing asbestos-related and silica-related
injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system,
while at the same time preventing scarce judicial and litigant resources from being misdirected by the claims of
individuals who have been exposed to asbestos or silica but have no functional or physical impairment from
asbestos-related or silica-related disease.
To address the Legislature’s stated purposes and concerns, Chapter 90 includes three components on which
we focus. First, by requiring detailed expert reports early in the litigation process, Chapter 90 endeavors to
assure that claims are not brought and pursued unless they are supported by reliable expert evaluations of the
Second, Chapter 90 attempts to consolidate silica and asbestos cases in a single MDL court for pretrial
proceedings. The obvious advantages of such consolidation include (1) the more efficient resolution of
recurring issues by a court that acquires expertise in cases with related factual, procedural, and substantive
legal issues; and (2) consistent rulings in such cases. The Legislature has authorized MDL transfers where they
will serve the convenience of parties and witnesses and “promote the just and efficient conduct of the
[consolidated] actions.” It has empowered the judicial panel on multidistrict litigation to transfer related
cases to MDL courts for “consolidated or coordinated pretrial proceedings.” In creating the silica pretrial
MDL action, the panel observed:
One virtue of transferring related cases to a single pretrial judge is that issues, once raised, will be decided the
same way in the future. A consistent and steady judicial hand at the helm should in fact promote agreements
because lawyers will know where the court stands on recurring issues. As contested issues arise, the pretrial
judge will make consistent rulings, which can then be reviewed by the appellate courts as appropriate. This, we
think, serves Rule 13's goal that our system give related cases consistent and efficient treatment.
Third, Chapter 90 requires claimants in some cases to establish a minimal level of impairment before their
cases can proceed.
These procedures serve the stated legislative purpose of conserving judicial and litigant resources and
directing those resources to persons most suffering from asbestos and silica injuries. Of these three Chapter
90 components, we conclude that only the third is preempted by the Jones Act; the other two are not preempted
and should be followed in Jones Act cases.
B. Mandamus Relief is Warranted
A writ of mandamus will issue only if the trial court committed a clear abuse of discretion for which the relator
has no adequate remedy at law. The adequacy of an appellate remedy must be determined by balancing
the benefits of mandamus review against its detriments. In evaluating benefits and detriments, we consider
whether mandamus relief will safeguard “important substantive and procedural rights from impairment or loss.”
 In addition to impairment of rights, we consider whether mandamus will “allow the appellate courts to give
needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments.”
By remanding the case to the trial court, the MDL pretrial court in effect held that, at least as to Lopez, Chapter
90 in its entirety is preempted by the Jones Act. This is so because Chapter 90 prescribes, as a result of a
plaintiff’s failure to file an adequate section 90.004 report, the defendant’s right to file a notice of transfer to the
MDL pretrial court, as described above. That court then retains, dismisses, or remands the case back to the
trial court depending on whether the report is filed.
The MDL pretrial court’s conclusion that Chapter 90 was preempted by the Jones Act was erroneous and
mandamus relief is appropriate to correct the error. As we recently held in In re McAllen Medical Center,
another case concerning legislatively mandated expert reports, mandamus relief is available when the
Legislature has enacted a statute to address findings “that traditional rules of litigation are creating an ongoing
crisis,” and “the purposes of the [enacted] statute would otherwise be defeated.” These precise grounds for
mandamus relief are again presented. “Here, the Legislature has already balanced most of the relevant costs
and benefits for us.”
C. Jones Act Preemption Principles
The Jones Act provides that “[a] seaman injured in the course of employment . . . may elect to bring a civil
action at law . . . against the employer.” The Act has been described as “remedial, for the benefit and
protection of seamen who are peculiarly the wards of admiralty.”
The preemption of state law by the Jones Act is a unique corner of federal preemption law that must be applied
with recognition that Jones Act cases can be brought in federal or state court. While state law must
sometimes yield to the need for a uniform and harmonious system of federal maritime law, “this limitation still
leaves the States a wide scope.” Congress could preempt the entire field of maritime law, but has instead
left the states “with a considerable legislative and judicial competence in the maritime field.” Where
Congress has acted in the admiralty area, “state regulation is permissible, absent a clear conflict with the
Federal preemption in this context does not always lend itself to simple resolution. As the United States
Supreme Court observed in one Jones Act case, “It would be idle to pretend that the line separating permissible
from impermissible state regulation is readily discernible in our admiralty jurisprudence, or indeed is even
entirely consistent within our admiralty jurisprudence.”
The Court, however, has laid down some general principles. On the one hand, substantive rights created by
Congress via the Jones Act must prevail over inconsistent state substantive law even where the suit is brought
in state court. On the other hand, it has held that state law characterized as procedural is not preempted.
 The Court has also recognized that federal maritime law follows a “reverse Erie” doctrine of sorts,
employing the use of substantive federal maritime law in state courts but recognizing that state procedural law
can be followed.
Our own cases have recognized this general proposition that a state court hearing a Jones Act case “must
apply substantive federal maritime law but follow state procedure,” and have acknowledged the “reverse
Erie” nature of state court adjudication of Jones Act claims. Unfortunately, a simple rule of Jones Act
preemption—providing that such cases litigated in state court follow federal substantive law and state
procedural law—cannot be fashioned from the extant jurisprudence. For example, even as to substantive
remedies, we have recognized that “state law remedies that do not conflict with federal law remedies are
available to seamen.”
In Southern Pacific Co. v. Jensen, the United States Supreme Court held that a state workers’ compensation
law was preempted by federal general maritime law. In an oft-recited standard, the Court held that a state-law
remedy is preempted by federal maritime law if the state remedy “works material prejudice to the characteristic
features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its
international and interstate relations.” Because the state law remedy in Jensen was “wholly unknown” to
federal maritime common law, “incapable of enforcement by the ordinary processes of any court,” and
inconsistent with congressional policy to encourage investments in ships, as indicated by two federal statutes,
the Court held that the state remedy was preempted by federal law.
In American Dredging Co. v. Miller, the Court held in a Jones Act case that a Louisiana rule making inapplicable
the doctrine of forum non conveniens in maritime cases was not preempted by federal maritime law. Looking
to the Jensen standard quoted above, the Court noted that the federal doctrine of forum non conveniens is a
doctrine of general application and did not originate in admiralty; therefore, the Louisiana rule did not work
material prejudice to a characteristic feature of general maritime law. Although recognizing that the state
rule produced some disuniformity, the Court rejected the argument that, under the Jensen standard, the rule
interfered with the proper harmony and uniformity of federal maritime law. The Court reasoned that the
uniformity requirement is not absolute, especially on matters of procedure. It noted that uniformity of
process is not required by admiralty law, that the doctrine of forum non conveniens “is nothing more or less
than a supervening venue provision,” and that venue “goes to process rather than substantive rights—
determining which among various competent courts will decide the case.” The Court also noted it had
previously held that venue in Jones Act cases brought in state court should be decided under state law, and
that “[j]ust as state courts, in deciding admiralty cases, are not bound by the venue requirements set forth for
federal courts in the United States Code, so also they are not bound by the federal common-law venue rule (so
to speak) of forum non conveniens.”
D. Application of Preemption Principles to this Case
1. Non-Preempted Provisions
The requirements embedded in Chapter 90 to assure reliable expert confirmation of silica-related diseases are
not preempted by the Jones Act. Nothing in the Jones Act exempts a seaman claiming a silica-related disease
from establishing, through reliable medical proof, that he in fact suffers from such a disease. Federal cases,
beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc., have in recent years established standards for
the admission of expert testimony that focus on the trial court’s role in determining the reliability of such
testimony. Texas cases have developed similar standards that draw heavily from federal jurisprudence.
Both federal and state law require expert testimony “grounded ‘in the methods and procedures of science.’”
To the extent that Jones Act jurisprudence recognizes a special standard for proving causation, federal
cases have held that this causation standard does not exempt Jones Act cases from the general rules for
admission of expert testimony. We see no basis for holding that Texas law generally governing the
admission of expert testimony, which draws so heavily from federal law, is preempted by the Jones Act. This law
does not clearly conflict with federal maritime law. Under Miller and Jensen, the jurisprudence requiring reliable
expert testimony has developed in tandem in the federal and Texas courts, and is a body of law of general
application; the use of these general standards does not work material prejudice to a characteristic feature of
general maritime law. Nor do we see how the use of such standards, which apply to Jones Act cases proceeding
in federal court, would interfere with the proper harmony and uniformity of federal maritime law.
Therefore, the provisions of Chapter 90 directed at assuring reliable expert confirmation of the existence of one
of the medically recognized forms of silica-related illness are not preempted. Most of the expert-report
requirements of section 90.004 can be so characterized. Section 90.004 tracks widely if not universally
recognized criteria for reliably diagnosing the existence of silica-related illnesses by (1) conducting a physical
examination by a trained professional that includes an appropriate occupational and exposure history under
section 90.004(a)(1), (a)(2), and (e); (2) identifying a silica-related condition based on established radiographic
methods and tests employed by medical science under section 90.004(a)(3) and (a)(4); and (3) ruling out other
causes of the observed condition under sections 90.004(b) through (d). The failure to establish these
criteria is grounds for rejecting expert testimony under Daubert.
As examples, the requirement of section 90.004(a)(1) that a board-certified physician conduct a detailed
occupational and exposure history is directed at assuring—early in the litigation so as to conserve judicial and
litigant resources—that the claim of silica-related injury is supported by medically reliable expert review. “In
order to rule out the multitude of other causes of the radiographic findings, it is vitally important for a physician
to take a thorough occupational/exposure history and medical history.” The requirement of section 90.004
(a)(3)(A), that the expert observe bilateral nodular opacities categorized as p, q, or r primarily in the upper
lungs, is a standardized method of medical science to identify chronic or classic silicosis and distinguishing it
from asbestosis. The requirements specifying a minimal latency period, such as section 90.004(b)(1)’s
requirement that the report for a claimant alleging silicosis verify that “there has been a sufficient latency period
for the applicable type of silicosis,” are also intended to assure that the claimant is in fact suffering from a silica-
related disease under established medical science. The requirement that a qualified reader find a profusion
grading of 1/0 or 1/1, found in section 90.004(a)(3)(A), assures that the reader has found at least some
abnormality in the x-ray. All of these requirements represent the Legislature’s attempt to require a medically
valid demonstration of silica-related disease as opposed to mere exposure to silica or some other substance or
mere concern that a disease may develop in the future.
Nor are Chapter 90's provisions for consolidating silica-related cases in a single court for pretrial disposition
preempted by the Jones Act. These provisions serve an important state purpose, recognized by the
Legislature, of streamlining the resolution of silica cases in the state court system and thus conserving judicial
and litigant resources. Moreover, as discussed above, Jones Act preemption principles recognize that
Jones Act cases can be brought in federal or state courts and that adherence to precisely the same rules of
procedure and practice are not required. Texas courts are not expected to abandon all their regular rules of
practice and procedure and to adopt federal rules in a case simply because a Jones Act claim is alleged. On
the contrary, maritime law recognizes a “reverse-Erie” principle that generally leaves state courts hearing
maritime suits to their regular procedures. American Dredging recognized that matters of venue have long been
the province of state law in Jones Act cases brought in state court. As with the doctrine of forum non
conveniens analyzed in American Dredging, the transfer of silica-related Jones Act cases to the MDL pretrial
court is a “supervening venue provision” where state court procedures can be followed. The transfer of
silica-related cases to an MDL court for consolidated pretrial proceedings does not work material prejudice to a
characteristic feature of maritime law.
In short, the principles of Jones Act preemption are flexible enough to accommodate general Texas rules
governing the admission of expert testimony, and also accommodate the Chapter 90 rules specific to expert
testimony in cases involving silica-related injuries and the consolidation of silica cases in the MDL pretrial court
for pretrial proceedings. These Texas rules and standards are not preempted.
2. Preemption of Minimal-Impairment Provision
The Jones Act imposes no requirement for a minimal threshold of physical injury, nor any limitation that only
lung diseases that have progressed to a specified level of physical impairment are covered. GSF concedes
that Chapter 90 cannot impose a requirement that the plaintiff suffer from a minimal level of physical impairment
before he can obtain relief on his Jones Act claim. Accordingly, section 90.004(b)(2), providing that claimants
alleging silicosis must have sustained “at least Class 2 or higher impairment” cannot be applied to Jones Act
claims. We further conclude that Chapter 90 must not be interpreted to impose a higher standard of proof
for causation than the federal standard applicable to Jones Act cases.
The preemption of section 90.004(b)(2) does not mean that the remaining expert-report requirements of
Chapter 90 and its provisions for pretrial proceedings in the MDL pretrial court are preempted. We hold that
these non-preempted provisions should be followed in all applicable suits alleging silica-related injuries and
including a cause of action under the Jones Act. The MDL pretrial court therefore erred in remanding this case
to the trial court.
We conditionally grant the writ of mandamus and direct the MDL pretrial court to vacate its remand order, and
to conduct further proceedings in a manner consistent with this opinion. We are confident the court will
comply, and the writ will issue only if it does not.
Don R. Willett
OPINION DELIVERED: December 5, 2008
 The Jones Act provides a cause of action to seamen injured in the course of their employment. 46 U.S.C. § 30104.
 Under the “saving to suitors” clause of 28 U.S.C. § 1333(1), a Jones Act claim can be brought in state court. See Engel v.
Davenport, 271 U.S. 33, 37 (1926); Stier v. Reading & Bates Corp., 992 S.W.2d 423, 428–29 (Tex. 1999).
 See Act of May 16, 2005, 79th Leg., R.S., ch. 97, § 12, 2005 Tex. Gen. Laws 169, 182 (adopting September 1, 2005 effective
 Tex. Civ. Prac. & Rem. Code §§ 90.001–90.012.
 Although Lopez alleged injuries from both asbestos and silica, GSF filed a notice of transfer to the silica MDL pretrial court,
and this mandamus action concerns that court’s decision to remand the case to the trial court where it was originally filed. We
focus, therefore, on the Chapter 90 components relating to silica-related injuries.
 The report must be prepared “by a physician who is board certified in pulmonary medicine, internal medicine, oncology,
pathology, or, with respect to a claim for silicosis, occupational medicine and whose license and certification were not on inactive
status at the time the report was made.” Id. § 90.004(a).
 Id. §§ 90.004(a)(1)–(2), (e).
 Id. § 90.004(a)(3).
 Id. § 90.004(a)(4).
 Id. §§ 90.004(b)–(d).
 Id. For example, section 90.004(d) states, “If the claimant is asserting a claim for any disease other than silicosis and lung
cancer alleged to be related to exposure to silica, the report required by Subsection (a) must also verify that the physician has
diagnosed the exposed person with a disease other than silicosis or silica-related lung cancer and has concluded that the
exposed person’s disease is not more probably the result of causes other than silica exposure.”
 See Tex. Gov’t Code §§ 74.024, 74.163.
 See In re Silica Prods. Liab. Litig., 166 S.W.3d 3 (Tex. M.D.L. Panel 2004) (granting motion to establish Silica MDL pretrial
court); Tex. Gov’t Code § 74.162 (authorizing judicial panel on multidistrict litigation to transfer cases to MDL pretrial court).
 See Tex. Gov’t Code § 74.162; Tex. R. Jud. Admin. 13.6, 13.7, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (Vernon).
 Tex. Civ. Prac. & Rem. Code § 90.007(a).
 Id. § 90.010(a)(2).
 Id. Section 90.010(a)(3) separately provides that the MDL rules do not apply to actions filed before September 1, 2003, if the
claimant “has been diagnosed with malignant mesothelioma, other malignant asbestos-related cancer, or malignant silica-
 Id. § 90.010(b).
 See Tex. R. Jud. Admin. 13.11(e).
 Tex. Civ. Prac. & Rem. Code § 90.010(b).
 Id. § 90.010(d). Besides the provisions concerning expert reports and proceedings before an MDL court, Chapter 90 has
other miscellaneous provisions. For example, section 90.009 provides, “Unless all parties agree otherwise, claims relating to
more than one exposed person may not be joined for a single trial.”
 ___ S.W.3d ___,___.
 Act of May 16, 2005, 79th Leg., R.S., ch. 97, §§ 1(d),(f), 2005 Tex. Gen. Laws 169; see also Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 597 (1997) (also noting an “asbestos-litigation crisis” confronting the nation).
 Act of May 16, 2005, 79th Leg., R.S., ch 97, § 1(e), 2005 Tex. Gen. Laws 169.
 Id. § 1(f).
 Id. §§ 1(g)–(h), 2005 Tex. Gen. Laws 169–70.
 Id. §§ 1(l)–(m), 2005 Tex. Gen. Laws 170.
 Id. § 1(n).
 See Tex. Civ. Prac. & Rem. Code §§ 90.003–90.004.
 See id. § 90.010.
 Tex. Gov’t Code § 74.162.
 In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 6 (Tex. M.D.L. Panel 2004).
 See Tex. Civ. Prac. & Rem. Code § 90.004(b)(2).
 Some causation provisions of Chapter 90 may also be preempted. See infra note 79 and accompanying text.
 In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
 In re McAllen Med. Ctr., ___S.W.3d___,___(Tex. 2008) (orig. proceeding); Prudential Ins. Co. of Am., 148 S.W.3d at 136.
 Prudential Ins. Co. of Am., 148 S.W.3d at 136.
 ___ S.W.3d at ___.
 Id. at ___.
 46 U.S.C. § 30104.
 The Arizona v. Anelich, 298 U.S. 110, 123 (1936).
 See supra note 2. We have noted that preemption cases arising under admiralty law typically do not even mention the more
general line of preemption authority under the Supremacy Clause. Stier v. Reading & Bates Corp., 992 S.W.2d 423, 428 (Tex.
 Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 373 (1959).
 David W. Robertson, Displacement of State Law by Federal Maritime Law, 26 J. Mar. L. & Com. 325, 327 (1995).
 Askew v. Am. Waterways Operators, 411 U.S. 325, 341 (1973).
 Am. Dredging Co. v. Miller, 510 U.S. 443, 452 (1994).
 See Engel v. Davenport, 271 U.S. 33, 39 (1926) (holding that the Jones Act statute of limitations is a “provision affecting the
substantive right” created by the Jones Act and must prevail over inconsistent state statute of limitations).
 Am. Dredging Co., 510 U.S. at 453 (characterizing the state doctrine of forum non conveniens as “procedural rather than
substantive” and noting that “[u]niformity of process (beyond the rudimentary elements of procedural fairness) is assuredly not
what the law of admiralty seeks to achieve, since it is supposed to apply in all the courts of the world”).
 See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23 (1986) (“Stated another way, the ‘savings to suitors’ clause
allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state law may be
used to remedy maritime injuries is constrained by a so-called ‘reverse-Erie’ doctrine which requires that the substantive
remedies afforded by the States conform to governing federal maritime standards.”).
 Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998).
 Texaco Ref. & Mktg., Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex. 1991).
 Stier v. Reading & Bates Corp., 992 S.W.2d 423, 425 (Tex. 1999); see also Robertson, supra note 46, at 348 (“Anyone who
began studying law after 1940 will have been brought up on two rather intimidating notions about drawing the substance-
procedure distinction: it is done differently in different contexts, and in all contexts it is hard to do.” (footnotes omitted)).
 244 U.S. 205 (1917).
 Id. at 216.
 Id. at 218.
 510 U.S. 443 (1994).
 Id. at 450.
 Id. at 450-53.
 Id. at 451.
 Id. at 453.
 Id. at 457 (discussing Bainbridge v. Merch. & Miners Transp. Co., 287 U.S. 278 (1932)).
 Id. at 453.
 509 U.S. 579 (1993).
 See, e.g., Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 579 (Tex. 2006) (applying Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999)); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720–28 (Tex. 1998) (applying Daubert and Gen. Elec. Co. v.
Joiner, 522 U.S. 136 (1997), and recognizing that relevancy and reliability requirements under Daubert’s interpretation of Federal
Rule of Evidence 702 are also applicable to Texas Rule of Evidence 702); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
712 (Tex. 1997) (stating that reliability of expert testimony under Texas law “is determined by looking at numerous factors
including those set forth in Robinson and Daubert”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556–58 (Tex.
1996) (stating that “[w]e are persuaded by the reasoning in Daubert” and adopting standards for admission of expert testimony
consistent with Daubert’s focus on relevance and a reliabile foundation).
 Robinson, 923 S.W.2d at 557 (quoting Daubert, 509 U.S. at 590).
 See infra note 79.
 See Wills v. Amerada Hess Corp., 379 F.3d 32, 47 (2d Cir. 2004) (holding that even though a Jones Act “plaintiff faces a
relaxed burden of proof with regard to causation, the district court’s admission of expert testimony is nonetheless governed by the
strictures of [Evidence] Rule 702 and Daubert,” and noting that the Sixth and Ninth Circuits have reached the same conclusion).
 See In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 622 (S.D. Tex. 2005) (“A diagnosis [of silicosis] requires (1) an
adequate exposure to silica dust with an appropriate latency period, (2) radiographic evidence of silicosis, and (3) the absence of
any good reason to believe that the radiographic findings are the result of some other condition . . . . [T]hese three criteria are
universally accepted, as demonstrated by learned treatises and experts in the field.”).
 See id. at 624–25:
In the absence of an appropriate work/exposure history, there is no way for the diagnosing doctors to have known the potential
intensities of respirable silica exposure, the duration of the exposure, information as to dosage . . . as well as information as to
possible alternative causes of the radiographic findings . . . . Looking no further than the first criterion, virtually all of the diagnoses
fail to satisfy the minimum, medically-acceptable criteria for the diagnosis of silicosis, and therefore, the testimony of the
challenged doctors cannot be admissible under the standards set by Rule 702 and Daubert.
(footnote omitted). See also Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 771–72 (Tex. 2007) (“[A]bsent any evidence of dose,
the jury could not evaluate the quantity of respirable asbestos to which Flores might have been exposed or whether those
amounts were sufficient to cause asbestosis.”).
 In re Silica Prods. Liab. Litig., 398 F. Supp. 2d at 593 (also noting that “it is imperative that the diagnosing physician take at
least some portion of the histories”).
 See id. at 591–92 (noting that chronic or classic silicosis is characterized by small round nodules, primarily in the upper
lungs, indicated by a p, q, or r rating under the International Labour Office (ILO) system standardizing the interpretation of chest x-
rays, and that asbestosis is characterized by linear scarring primarily in the lower lungs, characterized by irregular opacities
indicated by an s, t, or u rating in the ILO system); see also id. at 603 (noting that one testing company “managed to generate”
6,757 MDL silicosis plaintiffs, of which 4,031 had previously made asbestosis claims, and that “[t]he magnitude of this feat
becomes evident when one considers that many pulmonologists, pathologists and B-readers go their entire careers without
encountering a single patient with both silicosis and asbestosis”). Sections 90.003(a)(2)(C) and 90.003(c)(2), applicable to
asbestos-related claims, therefore specify that asbestosis can be verified by an x-ray showing irregular opacities indicated by an
s, t, or u rating, among other requirements.
 See id. at 569 (“Chronic or classic silicosis, the most common form, typically requires at least 15–20 years of moderate to
low exposure of respirable silica.”).
 See id. at 591 (explaining that 1/0 and 1/1 ILO designations indicate some abnormality, while a first number of “0” indicates
no abnormality found, and first numbers greater than “1” indicate increasingly abnormal readings).
 Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994).
 We do not mean to suggest that the Jones Act dispenses entirely with a requirement of physical injury, only that we are
unaware of a minimal level of physical impairment under the Act. See Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 141, 159 (2003)
(holding that in a case brought under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51–60, a plaintiff already suffering
from asbestosis can recover emotional distress damages associated with fear of developing cancer, but a disease-free plaintiff
merely exposed to asbestos cannot recover emotional distress damages); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406
(Tex. 1998) (“The Jones Act expressly incorporates FELA and the case law developing that statute.”).
 We again note that we have not examined the provisions of Chapter 90 relating to asbestos-related claims, and express no
opinion on whether any such provisions are preempted.
 See Mar. Overseas Corp., 971 S.W.2d at 406 (stating that the Jones Act requires use of a relaxed causation standard, one
that asks whether “employer negligence played any part, even the slightest, in producing the injury”) (quoting Rogers v. Mo. Pac.
R.R. Co., 352 U.S. 500, 506 (1957)); but see Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 172–77 (2007) (Souter, J., concurring)
(concluding, in FELA case, that Rogers has been misinterpreted and did not alter the common-law causation standard, but
instead merely rejected a sole causation requirement); see also id. at 178 (Ginsburg, J., concurring in the judgment) (“Today’s
opinion leaves in place precedent solidly establishing that the causation standard in FELA actions is more ‘relaxed’ than in tort
 Lopez contends in the pending mandamus action, apparently for the first time, that he filed a physician report that complied
with the non-preempted provisions of Chapter 90. GSF contends otherwise. The MDL pretrial court and the court of appeals did
not consider this issue, and instead based their analysis on Lopez’s argument that Chapter 90 was entirely inapplicable to
Jones Act cases. We leave resolution of this issue to the MDL pretrial court.
IN RE GLOBALSANTAFE CORPORATION; from Harris County; 14th district (14-06-00625-CV, ___ SW3d ___,
In Re Global Santa Fe Corp. No. 14-06-00625-CV, ___ SW3d ___, (Tex.App.- Houston [14th
Dist.] Dec. 19, 2006) (mandamus denied)
O P I N I O N
In this original proceeding, relator GlobalSantaFe Corporation (AGSF@) challenges an order signed
by respondent, the Honorable Tracy Christopher, presiding judge of the 295th Judicial District
Court, the silica multidistrict litigation pretrial court (AMDL pretrial court@), in which real party=s
Jones Act claims were remanded to the 55th Judicial District Court of Harris County. GSF claims that
the MDL pretrial court must retain the case pursuant to chapter 90 of Texas=s Civil Practice and
Remedies Code. For the reasons set forth below, we deny GSF=s petition for a writ of mandamus.
On May 29, 2003, real party in interest John Lopez filed his Jones Act claims in the 55th District
Court against GSF, alleging that it had failed to provide a safe and seaworthy vessel, resulting in his
exposure to silica.
On December 5, 2005, GSF filed a ANotice of Transfer under Section 90.010(b),@ whereby Lopez=s
case was transferred to the MDL pretrial court. See Tex. Civ. Prac. & Rem. Code Ann. ' 90.010(b)
(Vernon Supp. 2006); Tex. R. Jud. Admin. 13.11(c), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. F
app. (Vernon Supp. 2006). Lopez filed a motion to remand and, in his pleadings, argued that the
case should be remanded to the 55th District Court because section 90.010 was preempted by the
Jones Act. GSF argued that because the MDL rules applied to all silica related claims, they all were
to be transferred to the MDL pretrial court.
A hearing was held on Lopez=s motion in the MDL pretrial court. His counsel argued that by
transferring the case to the MDL pretrial court, Lopez is required to provide an expert report
complying with the provisions of chapter 90; the report requirement is a substantive one not found
in the Jones Act; therefore, the provisions of chapter 90 are preempted by the federal law. GSF, in
contrast, characterized the issue as one of venue. Arguing that the provisions by which Lopez=s
case was transferred to the MDL pretrial court are merely procedural provisions, GSF asserted that
federal law did not preempt the state=s procedural provision. After Judge Christopher signed an
order on January 10, 2006, remanding the case to the 55th District Court, GSF filed its petition for
writ of mandamus in this court.
Mandamus Standard of Review
Under the MDL rules, an order or judgment of the pretrial court may be reviewed by the appellate
court regularly reviewing orders of the court in which the case is pending at the time review is
sought. See Tex. R. Jud. Admin. 13.9(b); see, e.g., In re Fluor Enters., Inc., 186 S.W.3d 639, 642 (Tex.
App.CAustin 2006, orig. proceeding [mand. denied]) (concluding that the intermediate appellate
court had mandamus jurisdiction to review an order of the MDL pretrial court under rule 13.9(b)); In
re Union Carbide Corp., 145 S.W.3d 805, 806B07 (Tex. App.CHouston [14th Dist.] 2004, orig.
proceeding) (reviewing order of MDL pretrial court in mandamus proceeding).
Mandamus is an extraordinary remedy that will issue to correct a clear abuse of discretion and,
generally, only when the relator lacks an adequate appellate remedy. See In re Nitla S.A. de C.V., 92
S.W.3d 419, 422 (Tex. 2002). A clear failure to correctly analyze or apply the law constitutes an abuse
of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Accordingly, we review the remand
order under an abuse of discretion standard. See In re Fluor, 186 S.W.3d at 643.
To determine whether a party has an adequate remedy by appeal, we balance jurisprudential
considerations implicating both public and private interests. In re Prudential Ins. Co. of Am., 148 S.
W.3d 124, 136 (Tex. 2004). When the benefits of mandamus review outweigh its detriments,
appellate courts must consider whether the appellate remedy is adequate. Id. GSF contends that it
has no adequate remedy by appeal because A[o]nce the pretrial phase of the case is over, and trial
has occurred, [GSF] will have lost the benefits of efficiency and fairness conveyed by Section 90.
In its mandamus petition, GSF argues that the remand order is an abuse of discretion because (1) it
is contrary to the express language of section 90.010 and (2) the MDL pretrial court misinterpreted
federal preemption law.
At issue here is Texas Civil Practice and Remedies Code section 90.010(b), which enables a
defendant, in a suit for personal injury or death resulting from asbestos or silica exposure, to file a
notice of transfer to the MDL pretrial court should the claimant fail to serve an expert report that
complies with the statute. See Tex. Civ. Prac. & Rem. Code Ann. ' 90.010 (Vernon Supp. 2006). The
Jones Act, in contrast, does not contain a report requirement.
GSF characterizes section 90.010(b) and the related MDL rules as venue provisions and argues that
because federal law is not concerned with venue, section 90.010(b) is not preempted by the Jones
Act. GSF contends that, even if section 90.010 provisions are substantive, Congress has not
explicitly or implicitly occupied the field; therefore, we must give effect to the procedural portions
of chapter 90 because they do not conflict with federal law. GSF also asserts that whether the
report provisions in chapter 90 are preempted under the Jones Act is premature because section
90.010(b) is the only provision applied to Lopez=s claims at this point. It states that many of the
chapter=s provisions will not apply to Lopez=s suit because it was filed before September 1, 2003;
GSF concedes, however, that Athe Jones Act probably preempts the portion of Section 90.010 that
imposes a >minimum injury= requirement on silica plaintiffs.@ Further, GSF contends that some of
the report requirements merely dictate the way in which a plaintiff must prove the reliability of his
expert, similar to Rule of Evidence 702.
Lopez argues that chapter 90 is preempted by the Jones Act because the statute substantially
impairs the substantive rights of Jones Act plaintiffs and precludes a uniform application of the
federal maritime law. He asserts that Jones Act plaintiffs transferred to the MDL pre-trial court
pursuant to chapter 90 are held there in Asuspended animation@ without a remedy until complying
with the minimum injury, reporting, and causation requirements set out in chapter 90, requirements
not found in the Jones Act. He also contends that the report requirements under chapter 90
directly conflict with the negligence standard for recovery under the Jones Act.
We must decide whether transfer to the MDL pretrial court, pursuant to the provisions of chapter
90, of Lopez=s Jones Act claims is precluded by the preemption doctrine. This is an issue of first
impression, chapter 90 having been only recently enacted. We begin with preemption analysis
under maritime law.
GSF frames its preemption argument as follows: (1) courts must be reluctant to find preemption; (2)
because Congress has not intended to Aoccupy the field@ in this area, preemption should be found
only if it is impossible to comply with both the state and federal laws, that is, if they Aconflict@; and
(3) the provisions here do not conflict with the Jones Act. Therefore, GSF reasons chapter 90=s
procedural provisions must be enforced.
Congressional intent determines whether a federal statute preempts state law. Gade v. Nat=l Solid
Wastes Mgmt. Ass=n, 505 U.S. 88, 96 (1992); Am. Cyanamid Co. v. Geye, 79 S.W.3d 21, 23B24 (Tex.
2002). AThe purpose of Congress is the ultimate touchstone@ and is discerned by examining the
statute=s language, its structure, and its purpose. Gade, 505 U.S. at 96. We must determine
whether the state law is Aconsistent with the structure and purpose of the [federal] statute as a
whole. . . . and to its object and policy.=@ Id. at 98.
Generally, absent express preemptive language, preemption may be implied if the statute=s scope
indicates congressional intent to Aoccupy the field@ or when the state law actually conflicts with
the federal statute. Am. Cyanamid Co. 79 S.W.3d at 24. GSF recites this preemption principle,
asserting that federal law is not concerned with a state=s procedural rules. However, whether
procedural or substantive, a state=s law will be preempted when it interferes or restricts remedies
under a federal statute. See Felder v. Casey, 487 U.S. 131, 138 (1988). A[W]here state courts
entertain a federally created cause of action, the >federal right cannot be defeated by the forms of
local practice.=@ Id. (quoting Brown v. Western Ry. Co. of Al., 338 U.S. 294, 296, (1949)). The
Supreme Court stated in Gade:
We can no longer adhere to the aberrational doctrine . . . that state law may frustrate the operation
of federal law as long as the state legislature in passing its law had some purpose in mind other
than one of frustration. . . . such a doctrine would enable state legislatures to nullify nearly all
unwanted federal legislation by simply publishing a legislative committee report articulating some
state interest or policyBother than frustration of the federal objectiveBthat would be tangentially
furthered by the proposed state law . . . . Any state legislation which frustrates the full effectiveness
of federal law is rendered invalid by the Supremacy Clause.
505 U.S. at 106B07 (quoting Perez v. Campbell, 402 U.S. 637, 651B52 (1971)).
2. Jones Act
The Jones Act provides a cause of action for a seaman injured in the course of his employment by
the negligence of his employer. See 46 U.S.C.A. ' 688(a); see also Am. Dredging Co. v. Miller, 510 U.
S. 443, 455 (1994) (describing the Jones Act as legislation that Aestablishes a uniform federal law
that state as well as federal courts must apply to the determination of employer liability to seamen.
@). Its purpose is to provide for the benefit and protection of Aseamen who are peculiarly the
wards of admiralty.@ The Arizona v. Anelich, 298 U.S. 110, 123 (1936); see also Stier v. Reading &
Bates Corp., 992 S.W.2d 423, 429 (Tex. 1999) (AProviding a remedy to an injured seaman is a
>characteristic feature= of admiralty,@ quoting S. Pac. Co. v. Jensen, 244 U.S. 205, 216 (1917)). The
Jones Act is liberally construed to enlarge the protection afforded to seamen under general
maritime law. See Arizona, 298 U.S. at 123; see also Kernan v. Am. Dredging Co., 355 U.S. 426, 432
(1958) (A[I]t is clear that the general congressional intent was to provide liberal recovery for injured
workers@ under the Jones Act).
In passing the Jones Act, Congress granted the same rights to seamen as it granted to railway
employees by the Federal Employers= Liability Act (AFELA@). Cox v. Roth, 348 U.S. 207, 208 (1955).
Therefore, interpretations of FELA are instructive in deciding issues under the Jones Act. See
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 178 (5th Cir. 2005) (AJones Act cases follow
cases under the FELA.@). The Jones Act adopts the Auniformity requirement@ of FELA, and state
courts are required to apply a uniform federal law. Am. Dredging, 510 U.S. at 456; see Yamaha Motor
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 211 (1996).
Under the Jones Act, a state court may A>adopt such remedies, and . . . attach to them such
incidents, as it sees fit= so long as it does not attempt to make changes@ in the substantive
maritime law. Am. Dredging Co., 510 U.S. at 447 (quoting Madruga v. Superior Court of Cal., County
of San Diego, 346 U.S. 556, 561 (1954)). Also, when considering preemption under the Jones Act, we
consider whether the state law concerns Aa >characteristic feature= of admiralty or a doctrine
whose uniform application is necessary to maintain the >proper harmony= of maritime law.@ See
Stier, 992 S.W.2d at 428B29. Uniformity in maritime law is important to the availability of
unseaworthiness as a basis of liability. See Yamaha, 516 U.S. at 211.
Whether the Jones Act preempts provisions of chapter 90 depends on the impact of those
provisions on the rights and remedies provided under the federal statute. If it Astands as an
obstacle to the accomplishment and execution of the full purposes and objectives of Congress,@
chapter 90 will be preempted. See Gade, 505 U.S. at 98.
3. Chapter 90
Effective September 1, 2003, the Texas Legislature established the multi-district litigation panel
concept to coordinate pretrial handling of asbestos-related claims. See In re Union Carbide, 145 S.
W.3d at 806 n.1; see also Tex. Gov=t Code Ann. ' 74.161B.164 (Vernon 2005). In 2005, Senate Bill 15
was signed into law, which established the method for handling a pretrial docket for asbestos and
silica related claims and set forth reporting requirements and medical criteria by which impaired
and unimpaired plaintiffs are identified. See Tex. Civ. Prac. & Rem. Code Ann. ' 90.001 cmt. (Vernon
Supp. 2006) [Acts of 2005, 79th Leg., R.S., ch. 97, ' 1, 2005 Tex. Gen. Laws 169, 170]. The 2005
legislation applies to any action pending on September 1, 2005, unless exempted by one of several
exceptionsBBnot at issue hereBBfor cases filed prior to September 1, 2003. See id. ' 90.010(a).
Section 90.010(b) provides as follows:
If the claimant fails to serve a report complying with . . . 90.004 on or before the 90th day after
[September 1, 2005] under Subsection (a)(2), the defendant may file a notice of transfer to the MDL
pretrial court. . . . If the MDL pretrial court determines that the report was not served on or before
the 90th day after the date this chapter becomes law or that the report served does not comply with
. . . 90.004, the MDL pretrial court shall retain jurisdiction over the action pursuant to the MDL rules.
Id. ' 90.010(b). GSF relied on this provision to request transfer of Lopez=s claims.
Examining the impact of section 90.010(b), the result is that a pre-September 1, 2003 Jones Act silica
related claim is transferred to the MDL pretrial court if the claimant fails to file a report complying
with chapter 90; however, once there, other provisions in section 90.010 dictate that the case
remain there until a report complying with chapter 90 is served or, presumably, until the claimant is
diagnosed with a malignant silica-related cancer. See Tex. Civ. Prac. & Rem. Code Ann. '' 90.010(a)
(3), (b), (d), (f). If section 90.010 is applied to a pre-September 1, 2003 Jones Act claimant, he or she
is free to pursue federal remedies only by satisfying the report requirements contained in chapter
90. There is no such report requirement in the Jones Act. Consequently, because applying the
provisions to the pre-2003 Jones Act claimant thwarts federal remedies, it is preempted. See, e.g.,
Norfolk S. Ry. Co. v. Bogle, 850 N.E.2d 1281 (Ohio Ct. App. 2006); see also Gade, 505 U.S. at 105B06
(noting that preemption is, in part, Adefined by the state law=s actual effect.@).
GSF acknowledges that there is no report requirement under the Jones Act, and states the Jones
Act Aprobably@ preempts the portions of section 90.010 that impose a Aminimum injury@
requirement on those claimants. GSF reasons, however, that while some provisions in section
90.010 may be preempted, other provisionsBBsuch as section 90.010(b)BBwhich do not Aconflict@
with the Jones Act, must be enforced. We disagree. Parsing the statute in this manner results in
the provisions within section 90.010 deemed Aprocedural@ applying to permit transfer, while the
substantive provisions, i.e., report requirements, will not apply and the claimant must therefore be
transferred back to the court of origin. This resulting Atransfer-retransfer@ procedure is a waste of
resources and is incompatible with the purposes of both the federal and state laws.
GSF also asserts that the Afeatherweight@ causation burden applied in Jones Act cases is not
offended by chapter 90=s provisions. The Afeatherweight@ causation burden is defined as
A>whether the proofs justify with reason the conclusion that employer negligence played any part,
even the slightest, in producing the injury or death for which damages are sought.@ Diamond
Offshore Mgmt. Co. v. Horton, 193 S.W.3d 76, 79 (Tex. App.CHouston [1st Dist.] 2006, pet. denied)
(quoting Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506 (1957)) (emphasis added); see also Johnson v.
Offshore Express, Inc., 845 F.2d 1347, 1352 (5th Cir. 1988). GSF claims the report requirements
affect only the manner in which the proof is presented. Again, we disagree.
A report under section 90.004 must contain a history of the claimant=s past and present medical
problems and Atheir most probable cause.@ Tex. Civ. Prac. & Rem. Code Ann. ' 90.004(a)(1). If a
claim for silicosis is made, the report must verify that Athe physician has concluded that the
exposed person=s medical findings and impairment were not more probably the result of causes
other than silica exposure revealed by the exposed person=s occupational, exposure, medical, and
smoking history.@ Id. ' 90.004(b)(3). If claiming silica-related lung cancer, the report must include
that Ainhalation of silica was a substantial contributing factor to that cancer.@ Id. ' 90.004(c)(1). The
remaining provisions of section 90.004 provide as follows:
(d) If the claimant is asserting a claim for any disease other than silicosis and lung cancer alleged to
be related to exposure to silica, the report required by Subsection (a) must also verify that the
physician has diagnosed the exposed person with a disease other than silicosis or silica‑related
lung cancer and has concluded that the exposed person=s disease is not more probably the result
of causes other than silica exposure.
(e) The detailed occupational and exposure history required by Subsection (a)(1)(B) must describe:
(1) the exposed person=s principal employments and state whether the exposed person was
exposed to airborne contaminants, including silica and other dusts that can cause pulmonary
(2) the nature, duration, and frequency of the exposed person=s exposure to airborne
contaminants, including silica and other dusts that can cause pulmonary impairment.
Id. ' 90.004(d),(e). Thus, a report under section 90.004 for any silica-related injury requires a defined
level of causation between the claimant=s exposure and his illness; while perhaps not a direct
causative relationship, it is at least one blurring the line between substance and procedure.
Indeed, even GSF states A[t]he line between >substance= and >procedure= must be drawn more
finely@ in this case than others and, at one point, refers to the doctor=s report under chapter 90 as
a Acausation report.@
Likening chapter 90=s report requirements to Texas=s Rule of Evidence 702, GSF argues that Lopez
will be required to establish the reliability of his medical experts and meet normal standards of
proof even if the case proceeds in 55th District Court. GSF=s argument suggests that transfer to an
MDL pretrial court would not alter Lopez=s obligation with regard to medical reports or reliability of
4. Other Case Law
Both parties rely on Norfolk S. Ry. Co. v. Bogle, 850 N.E.2d 1281 (Ohio Ct. App. 2006), a case similar to
the facts before us. In Norfolk, the plaintiffs filed claims for injuries caused by occupational
exposure to asbestos. See id. at 1283. The trial court concluded that the state=s law, House Bill
292, a statute similar to chapter 90, was preempted by the FELA and/or the Locomotive Boiler
Inspection Act (ALBIA@). See id. at 1283, 1286. After setting out the principles of preemption and
examining the report requirements of H.B. 292, the Ohio appellate court stated:
We hold that this requirement would >gnaw= at the FELA/LBIA claimants= substantive rights to
assert a cause of action under federal law in a state court. FELA claimants would essentially be
indefinitely precluded from asserting their federal rights until they complied with these
requirements. This would not further Congress=s intent of creating >uniformity throughout the
Union with respect to railroads= financial responsibility for injuries to their employees.=
Id. at 1289 (quoting Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 493 (1980)). This is the reasoning
expressed by Lopez.
GSF argues that Bogle is instructive because the features of Ohio=s law are not an issue in this
case. GSF claims that H.B. 292 is more harsh than chapter 90, because the plaintiff=s claim under H.
B. 292 is dismissed without prejudice, and A[t]hus, Ohio simply does not permit asbestos plaintiffs
with minor injuries to maintain a lawsuit.@ However, under chapter 90, assuming the pre-
September 1, 2003 plaintiff does not meet the report requirements, the result is that his suit
languishes in the MDL pre-trial court, precludingBBor, at least, delayingBBpursuit of his federal
remedies. See Tex. Civ. Prac. & Rem. Code Ann. ' 90.010(d),(f)B(h).
GSF also cites American Dredging Company v. Miller as directly on point. See 510 U.S. at 445B46. In
that case, the defendants had argued that the forum non conveniens defense available to them
under federal law was not available under Louisiana=s statute, and, therefore, Louisiana=s law was
preempted. Id. at 450B51. The Court examined whether the forum non conveniens doctrine Ais
either a >characteristic feature= of admiralty or a doctrine whose uniform application is necessary
to maintain the >proper harmony= of maritime law.@ Id. at 447. It concluded that the doctrine
neither originated in admiralty law nor had exclusive application there; consequently, Louisiana=s
statute did not Awork material prejudice to a characteristic feature of the general maritime law,@
and was not preempted. Id. at 450.
American Dredging is inapposite to the subject case. AThe Jones Act has the effect of bringing into
the maritime law . . . all appropriate statutes relating to employers= liability for personal injury or
death@ for the benefit of seamen. Bainbridge v. Merchants= & Miners= Transp. Co., 287 U.S. 278,
282 (1932). Thus, the Jones Act claim here is not comparable to a procedural doctrine. Uniformity in
the application of federal law plays a larger role in the preemption analysis when an
unseaworthiness claim is involved. See Yamaha, 516 U.S. at 211.
In short, GSF=s argument rests on the conclusion that section 90.010(b) is procedural and can be
construed apart from chapter 90=s remaining provisionsBBin fact, from other provisions in that
section. We disagree with GSF that section 90.010(b) is merely procedural and susceptible to
segregation from other chapter 90 provisions. Section 90.010(b) is an integral part of the larger
MDL design and cannot be isolated from it. Even so, by applying only section 90.010(b), Lopez is
precluded from pursuing his rights under the Jones Act. Whether procedural or substantive,
chapter 90 is preempted by federal law. See Gade, 505 U.S. at 98; Felder, 487 U.S. at 138.
Because we conclude that application of chapter 90=s provisions to Lopez=s Jones Act claims
interferes with or restricts his remedies under the federal statute, whether substantive or
procedural, the state law is preempted. Accordingly, we deny GSF=s petition for writ of
/s/ Adele Hedges
Petition denied and Opinion filed December 19, 2006.
Panel consists of Chief Justice Adele Hedges, Justices Yates and Seymore.
 See 46 U.S.C.A. ' 688 (2000).
 In its Notice, GSF stated that as an Ainjurious exposure to silica@ case, it was addressed by the
November 10, 2004 MDL Panel decision as a Atag-along@ case.
 GSF filed a motion to reconsider with the MDL Panel. The panel concluded its jurisdiction to
review remand orders was limited to those in which remand was based on deciding whether a case
was a Atag along.@ See Tex. R. Jud. Admin. 13.5(e) (stating a remand order of the pretrial court
based on the ground that the case remanded is not a tag-along case may be appealed to the MDL
 See Tex. Civ. Prac. & Rem. Code Ann. '' 90.001B.012 (Vernon Supp. 2006) (setting out the pretrial
handling of claims involving asbestos and silica).
 To date, it appears that only one state has directly addressed the impact of its MDL statute on a
Jones Act claim. E.g., Norfolk S. Ry. Co. v. Bogle, 850 N.E.2d 1281 (Oh. Ct. App. 2006), appeal allowed
by, 852 N.E.2d 1213 (Oh. 2006) (unpublished table opinion No. 2006-1025).
 In Stier, a case involving a nonresident seaman injured in the territorial waters of another
nation, the court concluded that under either standard, the seaman=s state law tort claims were
impliedly preempted. 992 S.W.2d at 429.
 Preemption analysis under maritime law is somewhat different than preemption in other areas of
the law. See Stier, 992 S.W.2d at 428. For example, while preemption under the Supremacy Clause
starts with the basic assumption that Congress did not intend to displace state law, in Stier the
court noted that decisions addressing preemption issues under admiralty law typically have not
applied or even mentioned the Supremacy Clause. Id. Also, preemption under maritime law has
historically recognized that state laws must yield to the needs of an area of law which requires
Aharmony and uniformity.@ S. Pac. Co. v. Jensen, 244 U.S. 205, 216 (1917). Currently, there is no
bright line rule to determine when a state law is preempted under federal maritime law. See Stier,
992 S.W.2d at 429 (noting that Jensen may be overruled); see also Am. Dredging Co., 510 U.S. at 452
(AIt would be idle to pretend that the line separating permissible from impermissible state
regulation is readily discernible in our admiralty jurisprudence, or indeed is even entirely
consistent within our admiralty jurisprudence.@).
 The MDL panel designated Judge Mark Davidson of the 11th Judicial District Court of Harris
County as the pretrial judge to whom the asbestos cases would be transferred. In re Union Carbide,
145 S.W.3d at 806 n.1.
 Section 90.004 sets out the report requirements for silica-related injuries, and section 90.003
pertains to asbestos-related injuries. See Tex. Civ. Prac. & Rem. Code Ann. '' 90.003, 90.004 (Vernon
Supp. 2006). Because Lopez=s claims are for silica-related injuries, our citation to report
requirements is to section 90.004 only.
 As noted in the subsequent discussion concerning the causation burden under the Jones Act,
various report requirements in chapter 90 impose a certain level of impairment, caused by
exposure to asbestos or silica, before a claimant may proceed with his claim.
 The case was accepted for appeal by the Ohio Supreme Court, 852 N.E.2d 1213, on August 23,
 The Court also noted the disparity within its decisions concerning state regulations and
maritime law, but decided that where those boundaries may lie was not a question it had to decide
in that case. Id. at 453. Instead, the Court concluded that the doctrine was procedural rather than
substantive; as such, its application would not produce uniform results, and the doctrine under
federal law was not applicable to the states. Id. at 457.