Jennings Dissent in In Re Wilhite asbestos case re: judge's disqualification   

In Re Wilhite (Tex.App.- Houston [1st Dist.] Sep. 25, 2009)(majority opinion by Taft) (mandamus to remove judge
on claim of disqualification denied,
judge not disqualified in asbestos case based on his prior firm having handled such cases)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala     
Before Justices Jennings, Alcala and Higley   
01-09-00387-CV    In Re Edward and Margie Wilhite   
Appeal from 11th District Court of Harris County  
Trial Court Judge:  
Judge Mark D. Davidson
Dissenting Opinion by Justice Jennings    


The En Banc Court holds that a trial judge is not disqualified from sitting in an asbestos exposure case in
which the defendant is represented by the judge's former law firm even though the firm had, when the judge
was a partner there, represented the same defendant in an asbestos exposure case involving the same
facility, the same time period, and similar allegations, defenses, and issues.

The Texas Constitution commands that no judge shall sit in any case in which a lawyer, with whom the judge
previously practiced law, served, during the time of their association, as a lawyer in the same matter in
controversy. See Tex. Const. art. V, §11; Tex. R. Civ. P. 18b(1)(a); Tesco Am., Inc. v. Strong Indus., Inc., 221
S.W.3d 550, 553 (Tex. 2006); In re O'Connor, 92 S.W.3d 446, 448 (Tex. 2002). The Texas Supreme Court
has clearly explained that the Texas Constitution requires the vicarious disqualification of judges because an
attorney's knowledge about a matter is "imputed by law to every other attorney in [his] firm." Nat'l Med.
Enters., Inc. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996). Moreover, it has also clearly explained that
constitutional disqualification is required when the "same matter in controversy" is involved, not only when the
exact same lawsuit is involved, O'Connor, 92 S.W.3d at 449, i.e., not only when, as suggested by the En Banc
Court, the pertinent plaintiffs are not "strangers" to each other and are "legally joined in their lawsuits," their
injuries arise out of the exact same incident, and they sue the same co-defendants.

Here, by a petition for writ of mandamus, relators, Edward and Margie Wilhite, challenge the multidistrict
pretrial court's (1) order denying their motion to disqualify the trial court judge, the Honorable Edward P.
Magre, from sitting in the underlying lawsuit. (2) The Wilhites contend that Judge Magre is disqualified from
presiding over the underlying lawsuit because his former law firm, Ellet, Camp, Magre & Glasser, P.C. (the
"law firm"), represented the real party in interest, Alcoa, in two similar asbestos lawsuits while Judge Magre
was a partner at the law firm. Because the underlying lawsuit and one of the asbestos lawsuits in which the law
firm provided counsel involve the same matter in controversy, I would conditionally grant mandamus relief.
Accordingly, I respectfully dissent.

Background Over a decade ago, Judge Magre was a partner at the law firm along with attorney Emory Camp.
While Judge Magre worked at the firm, Camp, on behalf of the firm, twice represented Alcoa, the defendant in
the underlying lawsuit. Judge Magre was not personally involved in either matter. The law firm first
represented Alcoa in 1996, when the estate of former Alcoa employee, Glenn Whatley, sued a variety of
defendants, including Alcoa, for negligently exposing him to asbestos at Alcoa's plant in Rockdale, Texas. In
that lawsuit, the plaintiffs alleged that Whatley developed mesothelioma after Alcoa and the other defendants
exposed him to asbestos dust. Alcoa was later dismissed from the lawsuit. The law firm next represented Alcoa
in 1997, when Bernice and Floyd Cavitt sued Alcoa and other defendants. The Cavitts alleged that Bernice
developed mesothelioma after being exposed to asbestos by her husband, Floyd Cavitt, who had been
negligently exposed to asbestos while working for Alcoa at an unspecified plant. The Cavitts obtained a $2.11
million judgment against Alcoa.

In 2008, the Wilhites brought the underlying lawsuit, alleging that Alcoa and other defendants negligently
exposed Edward to asbestos when he worked at Alcoa's Rockdale plant. The Wilhites filed the underlying
lawsuit in Dallas County Court at Law Number 2, and it was transferred to the multidistrict pretrial court for
pretrial proceedings. The pretrial court granted Alcoa's motion to transfer venue to Milam County and set a
trial date. The Wilhites then moved to disqualify Judge Magre on the ground that when he was a partner at the
law firm, the firm had represented Alcoa in the Whatley and Cavitt lawsuits, which involve the same matter in

The multidistrict pretrial court, after confirming that Judge Magre would not remove himself from sitting in the
case, denied the Wilhites' motion to disqualify Judge Magre. At the hearing on the motion, the multidistrict
pretrial court, after overruling Alcoa's hearsay objections concerning the Wilhites' evidence, concluded that
the underlying lawsuit differs factually from the Whatley and Cavitt lawsuits.

Constitutional Disqualification The Wilhites argue that Judge Magre, in accordance with the Texas Constitution
and the Texas Rules of Civil Procedure, is vicariously disqualified from sitting in the case because the Whatley
and Cavitt lawsuits, in which Camp served as counsel for Alcoa, share the same issues with and concern the
same matter in controversy as the underlying lawsuit. See Tex. Const. art. V, § 11; Tex. R. Civ. P. 18b(1)(a).
Alcoa argues that Judge Magre should continue to preside over the case because the three suits concern
different matters in controversy.

Mandamus relief is proper when a trial court erroneously denies a motion to disqualify. See In re O'Connor, 92
S.W.3d at 450. In Texas, a judge may be removed from a case because he is constitutionally disqualified,
subject to a statutory strike, or recused. See In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998).
The grounds and procedures for each type of removal are fundamentally different. Id. Here, the issue is one
concerning only the disqualification of Judge Magre.

Unlike statutory recusal, disqualification cannot be waived, and may be raised at any time. McElwee v.
McElwee, 911 S.W.2d 182, 186 (Tex. App.--Houston [1st Dist.] 1995, orig. proceeding). "[I]f an error is ever
made as to disqualification, it should be in favor of the disqualification rather than against it." Cotulla State
Bank v. Herron, 202 S.W. 797, 798 (Tex. Civ. App.--San Antonio 1918, no writ).

The Texas Constitution, which establishes the grounds for judicial disqualification, provides, in relevant part,
that "[n]o judge shall sit in any case . . . when the judge shall have been counsel in the case." Tex. Const. art.
V, § 11. Judicial disqualification is also addressed in the Texas Rules of Civil Procedure, which provide that

Judges shall disqualify themselves in all proceedings in which:

(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced
law served during such association as a lawyer concerning the matter . . . .

Tex. R. Civ. P. 18b(1)(a). Rule 18b(1)(a) "was intended to expound rather than expand the Constitution."
Tesco Am., 221 S.W.3d at 553. Consequently, "the case," as referenced in the Texas Constitution, is
synonymous with the "same matter in controversy," referenced in Rule 18b(1)(a). See id.; Slaven v. Wheeler,
58 Tex. 23, 25 (1882).

Vicarious disqualification is explicitly required under Rule 18b(1)(a). Tesco Am., 221 S.W.3d at 553-54.
Although the Texas Constitution does not expressly mention vicarious disqualification, it, too, requires
vicarious disqualification. Id. As explained by the Texas Supreme Court, an attorney's knowledge about a
matter is "imputed by law to every other attorney in the firm." Nat'l Med. Enters., 924 S.W.2d at 131. When
considering disqualification, it is irrelevant if the judge, while an attorney, had no part in the civil litigation
pending before him if he had been a member of the law firm that gave counsel as to the pending litigation. (3)
See State v. Burks, 82 Tex. 584, 585, 18 S.W. 662, 662 (1891).

Thus, under Texas law, a judge is constitutionally disqualified when (1) the judge or the judge's law firm was
the attorney for a party in the case, and (2) the matter before the judge is the same matter that was before
the judge or judge's law firm. See In re O'Connor, 92 S.W.3d at 448 (citing Lade v. Keller, 615 S.W.2d 916,
920 (Tex. Civ. App.--Tyler 1981, no writ)) ("[I]t is necessary that the judge acted as counsel for some of the
parties in [the] suit before him in some proceeding in which the issues were the same as in the case before
him."). The same "matter in controversy" must be involved, regardless of whether the same lawsuit is involved.
In re O'Connor, 92 S.W.3d at 448-49 ("By its own terms, rule 18b(1)(a) is not limited to disqualifying a trial
judge only when the 'same lawsuit' is involved. Rather, in plain language, rule 18b(1)(a) requires
disqualification when the same 'matter in controversy' is involved.") (citing Tex. R. Civ. P. 18b(1)(a)). However,
the "fact that the two suits might have some facts in common" alone does not mean that they concern the
same "matter in controversy." Dixie Carriers, Inc. v. Channel Fueling Serv., Inc., 669 F. Supp. 150, 152 (E.D.
Tex. 1987) (referring to similar federal rule).

Here, no one disputes that Judge Magre was a partner at the law firm when the law firm represented Alcoa in
the Whatley and Cavitt asbestos lawsuits. Accordingly, Judge Magre is vicariously disqualified from sitting in
the underlying lawsuit if the firm previously represented Alcoa concerning the same "matter in controversy."
See In re O'Connor, 92 S.W.3d at 448. Thus, the critical question is whether the matter now before Judge
Magre involves the same matter in controversy as did the Whatley or Cavitt lawsuits. See id. at 449 ("Thus,
the issue here is whether the divorce and modification proceedings involved the 'same matter in

The Wilhites argue that the underlying lawsuit concerns the same matter in controversy as did the Whatley
and Cavitt lawsuits because all of the lawsuits involve claims of asbestos exposure at Alcoa plants and,
specifically, Edward Wilhite and Glen Whatley worked at the Alcoa Rockdale plant during the same
approximate time period. The Wilhites assert that "the pleadings in all three lawsuits include negligence claims
and intentional tort claims which raise the following issues: (1) whether asbestos exposure poses a heath risk;
and, (2) whether and when Alcoa knew that asbestos exposure poses a heath risk." Alcoa filed a general
denial in all three suits, contesting the allegations that asbestos exposure posed health risks and Alcoa had
knowledge of such health risks. Also, Alcoa pleaded the same affirmative defense in all three lawsuits--that
the plaintiffs' claims are barred by the Workers' Compensation Act.

The Whatley and Wilhite lawsuits share many similarities. First, both cases involve the issue of whether Alcoa
knew of the risk of harm posed by asbestos exposure. The Whatley plaintiffs alleged,

Specific intentional acts and acts constituting negligence committed by the Alcoa defendants that proximately
caused Plaintiff's injuries and damages resulting from the Decedent's death include: . . . Failure to provide
adequate safety measures and protection against deadly and life-threatening asbestos dust, all despite
Defendant's knowledge of the extreme risk of harm inherent to asbestos exposure.

The Wilhites allege,

Alcoa, Inc., knew of the serious health hazards, including asbestosis, lung cancer, and death resulting
therefrom, associated with asbestos exposure, at least as early as 1955.

Second, both cases involve the issues of whether Alcoa failed to warn its employees about the hazards of
asbestos exposure and failed to ensure a safe work environment. The Whatley plaintiffs alleged,

The Defendants failed to properly remove and/or abate said asbestos at this facility during the time Decedent
was employed there

. . . . [Additionally, Alcoa failed] to provide safe equipment for Decedent to use . . . [failed] to adequately warn
Decedent of the inherent dangers of asbestos contamination . . . [and failed] to provide Decedent a safe
place to work . . . .

The Wilhites allege,

Alcoa, Inc. took absolutely no action to warn employees such as Edward Wilhite of these serious health
hazards and in fact, made a deliberate and calculated choice to keep this known information from its
employees. Furthermore, Alcoa, Inc. intentionally failed to implement and follow the few policies and
procedures it finally instituted in the 1970s to protect employees such as Edward Wilhite from health hazards
related to asbestos exposure, even though Alcoa, Inc. was required to do so by state and federal law, and
even though at the corporate level, Alcoa, Inc. knew that its local plants, including the Rockdale plant, were
not following asbestos regulations and internal policies related to asbestos exposure. Alcoa, Inc. intentionally
chose to maintain unsafe working conditions at the Rockdale plant . . . .

Third, both cases involve the issue of whether the plaintiffs' mesothelioma was proximately caused by
exposure to asbestos at the Rockdale plant. The Whatleys alleged,

In particular, Plaintiff would show that the Alcoa Defendants demonstrated such an entire want of care as to
establish that their acts and omissions were the result of actual conscious indifference to the rights, safety,
and welfare of the Decedent, and that such intentional acts and omissions proximately caused the Decedent's

The Wilhites allege,

Alcoa, Inc.'s intentional conduct resulted in Edward Wilhite's asbestos-related injuries, including
mesothelioma, and these injuries are intentional in nature.

Fourth, both cases involve the issue of whether Alcoa knew or should have known that its actions would cause
injury or death. The Whatleys alleged:

The Defendants knew or should have known that its individual actions would combine to cause the injuries
and/or deaths of Plaintiff's Decedent.

The Wilhites allege,

Alcoa, Inc., knew with a substantial certainty that employees such as Edward Wilhite would be exposed to
asbestos through their job duties; and knew with a substantial certainty that employees such as Edward
Wilhite would contract an asbestos related illness, including mesothelioma, by reason of their job and job
duties at the Rockdale location. In fact, based on the extent of Alcoa, Inc.'s knowledge of the health hazards of
asbestos exposure and the ubiquitous use of asbestos during Edward Wilhite's years of employment, it is
impossible that Alcoa, Inc. was not substantially certain of these facts.

Finally, the plaintiffs in both suits alleged that Alcoa acted with intent, malice, or both. The Whatleys alleged,

The actions and omissions of all Defendants as specifically alleged hereinabove, whether taken separately or
together, were of such a character as to constitute a pattern or practice of intentional wrongful conduct and/or
malice resulting in damages, injuries and/or death to the Plaintiff's Decedent.

The Whilhites allege,

Because Alcoa, Inc., was substantially certain . . . that an employee such as Edward Wilhite would contract an
asbestos-related illness, including mesothelioma, Alcoa, Inc.'s actions rise to the level of an intentional tort.

The reasoning of In re O'Connor is applicable here. O'Connor, the ex-wife of O'Brian, was first represented by
Kyle Hawthorne when the trial court ordered temporary orders regarding the custody of O'Connor's and
O'Brian's child. In re O'Connor, 92 S.W.3d at 447. In its temporary orders, the trial court appointed O'Brian as
sole managing conservator, with primary custody and the exclusive right to determine the child's residence. Id.
O'Connor's attorney-client relationship with Hawthorne then ended. Id. O'Connor later petitioned to increase
her time periods of possession of the child and to have the right to determine the child's residence. Id. Judge
Michel, a former law partner of Hawthorne, presided over the modification proceeding. Id. O'Connor moved to
disqualify Judge Michel under Rule 18b(1)(a). Id. at 448. O'Connor contended that, because both of the
proceedings involved possession of the child, they concerned the same "matter in controversy." Id. O'Brian
asserted that Rule 18(1)(a) was inapplicable because it applies only when the issues in the two lawsuits are
identical. Id. The supreme court pointed out that, when assessing disqualification, whether two proceedings
share the same matter in controversy is determinative, not whether each proceeding involved the same
lawsuit. Id. at 449. Because the temporary orders and modification proceeding both dealt with the same matter
in controversy--"custody, visitation, and the right to determine the child's residence"--Judge Michel was
disqualified. Id. at 449-50. Although the lawsuits were different, the judge was disqualified because the same
matter in controversy was involved. Id.

Here, likewise, the underlying lawsuit and the Whatley lawsuit are not identical. However, they concern the
same matter in controversy, which involves the same defendant in similar asbestos litigation stemming from
asbestos exposure at the same location over a significant, overlapping period of time. Id. at 449. The
underlying lawsuit and the Whatley lawsuit each involve the plaintiffs' similar claims that they were exposed to
asbestos by Alcoa at the same plant during the same approximate time period, that asbestos poses a health
risk, and that Alcoa was aware of the health risk. Specifically, Whatley worked at Alcoa's Rockdale plant from
1954 to 1990, and Wilhite worked there from 1955 to 1982.

Accordingly, I would hold that the underlying lawsuit and the Whatley suit involve the same matter in
controversy. Both lawsuits share (1) similar essential facts leading up to the alleged asbestos exposure by the
same company at the same location during the same period of time, (2) similar causes of action, and (3)
similar responses and defenses by Alcoa. Id. Because the Whatley suit involved the same matter in
controversy currently at issue in the underlying suit, I would further hold that Judge Magre is disqualified from
sitting in the underlying suit and that mandamus relief should be conditionally granted. Id.

The Texas Supreme Court has emphasized that

[W]e must construe any ambiguity in the constitutional [disqualification] provision here to effectuate its
purpose. Repeatedly, the people of Texas have insisted on constitutional protection against "counsel in the
case" becoming a judge in the case[.]

Tesco Am., 221 S.W.3d at 554. Here, the En Banc Court holding eviscerates the constitutional protection. To
hold that two lawsuits do not involve the same "matter in controversy" merely because they concern different
plaintiffs who are "strangers" to each other and not "legally joined in their lawsuits," their injuries do not arise
out of the same incident, and they did not sue the same co-defendants is inconsistent with the Texas
Supreme Court's emphasis on the meaning of "matter in controversy" and its broad interpretation as
something encompassing more than a "case" for purposes of disqualification. See In re O'Connor, 92 S.W.3d
at 449.

As recognized by the supreme court, the vanquishing power of vicarious disqualification is of serious concern.
Tesco Am., 221 S.W.3d at 554. Here, however, as in Tesco American, "no supine surprise was sprung" on the
defendant. See id. None know better of the previous representation of Alcoa by the trial judge's former law
firm than Alcoa. See id.

Terry Jennings


Panel consisted of Justices Jennings, Alcala, and Higley.

En banc consideration was requested. Tex. R. App. P. 41.2(c).

A majority of the justices of the Court voted in favor of considering the case en banc.

The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Alcala, Hanks, Higley,
Bland, Sharp, and Massengale.

Justice Alcala, writing for the majority of the en banc court, joined by Chief Justice Radack and Justices Keyes,
Hanks, Bland, and Massengale.

Justice Jennings, dissenting, joined by Justices Higley and Sharp.

1. See Tex. R. Jud. Admin. 13; Tex. Gov't. Code Ann. §§ 74.161-.164 (Vernon Supp. 2008).

2. The underlying lawsuit is titled Edward Wilhite Individually and Margie Wilhite, Individually, v. Able Supply
Co., Alcoa, Inc., Ametek, Inc., Aqua-Chem, Inc., A.W. Chesterton Co., Certainteed Co., Coltec Industries, Inc.,
Garlock Inc., Garlock Sealing Technologies, LLC, Guard-Line, Inc., LGS Technologies, LP, Rapid American
Co., Sepco Co., and Uniroyal Holding, Inc., No. 2008-15687, in the 11th Judicial District Court of Harris
County, Texas, the Hon. Mark Davidson, presiding.

3. Similarly, in federal courts, a judge must disqualify himself "where in private practice he served as a lawyer
in the matter in controversy, or a lawyer with whom he previously practiced law served during such association
as a lawyer concerning the matter." 28 U.S.C. § 455(b)(2). The "deliberate choice by congress demonstrates
an intent that the words 'matter in controversy' mean something other than what we commonly refer to as a
'case' . . . so we do not rely on this technical distinction." Little Rock Sch. Dist. v. Armstrong, 359 F.3d 957,
960 (8th Cir. 2004). The federal standard that a judge must "disqualify himself in any proceeding in which his
impartiality might reasonably be questioned--is established when a reasonable person, knowing the relevant
facts, would expect that a judge knew of circumstances creating an appearance of partiality, notwithstanding a
finding that the judge was not actually conscious of those circumstances." Liljeberg v. Health Serv. Acquisition
Corp., 486 U.S. 847, 848, 108 S. Ct. 2194, 2196 (1988). However, "a judge's prior representation of a witness
or a party in an unrelated matter does not automatically require disqualification." David v. City of Denver, 101
F.3d 1344, 1351 (10th Cir. 1996) (citing United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)). Where
a case "involves remote, contingent, indirect or speculative interests, disqualification is not required."
Lovaglia, 954 F.2d at 815 (referring to federal rule).