Discovery -- 2015

In re Allied Chemical Corp.   (Texas Supreme Court)

Whether discovery should be compelled to prevent abuse of the legal system

This case involves discovery abuse in South Texas. The trial judge refused to require that the plaintiffs answer discovery demands in a mass tort case involving alleged exposure to hazardous materials. The case has been pending for over a decade, and the product defendants have been unable to get even the most basic discovery identifying the products involved, claimed exposures, and basic causation.

On February 12, 2010, the NAM joined with the American Chemistry Council, the Texas Chemical Council and the U.S. Chamber of Commerce in an amicus brief that highlighted the mass tort problem in Texas, and particularly in South Texas, where plaintiffs delay discovery and raise litigation costs in order to pressure settlements.

We argued that, "A true adversary justice system must require a claimant to shoulder the burden of proof, determine whether the claimant’s burden has been satisfied, and then subject the determination to review. Cases such as this one appear to follow different rules that require correction."

By not requiring plaintiffs to answer discovery requests, "in large part cases are seldom tried. When they are tried, judgment is seldom reached because the goal is not a judgment, but an ambush, by which “the parties are ‘deprived of any just defense . . . .’"

Our brief urged the Texas Supreme Court both to order the lower court to act and to change the rules of procedure to prevent other courts from continuing to behave this way in the future. "Society cannot tolerate a system of justice in which the value of a claim is based upon the ability to drive up risk and avoid resolution on the merits rather than on the defendant’s fault for the plaintiff’s injury." Failure to resolve this problem undermines public confidence in the courts, violates constitutional rights, and prevents a defendant from clearing his name in court. We offered the court a variety of solutions.

This case was held in abatement for several years while the parties worked out a settlement of the claims. It was dismissed in 2015.

Related Documents:
NAM brief  (February 12, 2010)


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