[ Report Home | Previous Page ] TEXAS SUPREME COURT JUSTICE PRISCILLA OWEN Appendix Memorandum to Senate Judiciary Committee: Judicial Criticism of Owen’s “Most Significant Opinions”

MEMORANDUM

To:    Members of the Senate Judiciary Committee
From:    Texans for Public Justice
Re:       Judicial Criticism of Priscilla Owen’s “Most Significant Opinions”
Date:     June 30, 2002

Question No. 15 on the Senate Judiciary Committee questionnaire for federal judicial nominees asks nominees to identify their “10 most significant opinions.” It then asked nominees to summarize “all appellate opinions where your decisions were reversed or where your judgment was affirmed with significant criticism of your substantive or procedural rulings.” Justice Owen responded, “None of my decisions have been reversed or criticized by the United States Supreme Court.” While Owen’s response is correct, it is telling that eight of her top-10 opinions have sparked criticism from her fellow Texas Supreme Court justices or by other judicial bodies.

Judicial Critiques of Owen’s “Most Significant Opinions”

1. Merrell Dow Pharm. v. Havner, 953 S.W.2d 706 (Tex. 1997)
The Havner family’s lawsuit alleged that the morning sickness drug Bendectin caused their daughter, Kelly, to be born with severe birth defects. Owen’s majority opinion used extremely strict limits on the admissibility of expert testimony to overturn a jury award of $3.75 million in actual and $30 million in punitive damages (the trial court reduced the punitive damages to $15 million).

Critique:
Justice Spector said in her concurring opinion that she was “uncomfortable with the majority’s ambitious scientific analysis and unnecessarily expansive application of the Daubert standard,” which governs the admissibility of expert evidence. Subsequently, the Texas Supreme Court has limited Owen’s Merrell Dow decision twice. In Maritime Overseas Corp. v. Ellis the court affirmed a less-stringent standard to admit expert evidence in a Jones Act case involving an injury at sea. In General Motors Corp. v. Sanchez, the court again adopted a more inclusive standard for expert testimony. In this case—involving a man who was killed when his truck spontaneously slipped out of gear—the court admitted unpublished, non-peer-reviewed expert testimony on whether or not GM negligently failed to use a safer transmission.

2. In re City of Georgetown, 2001 TX. LEXIS 10, 44 Tex. Sup. J. 434
Owen’s controversial majority opinion interpreting the Texas Public Information Act blocked the media from seeing an engineering report that a city commissioned in response to a lawsuit that it faced over sewage plant discharges. Owen’s opinion overruled the Texas Attorney General and the trial court, which both ruled in favor of disclosing this taxpayer-financed report.

Critique:
Noting that the legislature expressly indicated that the Public Information Act “shall be liberally construed in favor of granting a request for information,” Justice Abbott’s dissent concluded, “[t]oday, the Court abandons strict construction and rewrites the statute.” Abbott complained that Owen’s opinion usurped the legislature’s law-making authority.
 

3. Stier v. Reading & Bates Corp., 922 S.W.2d 423 (Tex. 1999)
Owen wrote this majority opinion that held that the federal Jones Act (which provides broad remedies to injured seamen) preempted the state claims of German worker Hans-Henning Stier. Stier was injured near Trinidad on an off-shore drilling rig owned by a Texas company.

Critique:
“The Court reaches the result it wants by avoiding a plain reading of the statute,” Justice Baker wrote in dissent. Baker said the applicable section of the Jones Act “does not say anything about state tort laws, state procedural laws, or the availability of state courts as a forum.” Nonetheless, Federalist Society member Owen used this Federal act to preempt state law.

4. HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1999)
After HECI Oil sued a neighboring oil operator for overproducing from a common reservoir, it failed to inform the Neel family, which had royalty claims on this oil. The Neels won a trial court judgment that forced HECI to pay them proceeds from its earlier judgment. Owen’s majority opinion reversed the trial court on the grounds that the Neels had exceeded the statute of limitations when they filed suit four years after HECI won its judgment. The trial court had ruled differently on the statute of limitations because it held that HECI broke an implied covenant to inform the Neels about the earlier lawsuit. Owen’s opinion ruled that HECI owed no such duty. Instead, her opinion held that the Neels should have monitored records at the Texas Railroad Commission (the oil regulatory agency) to learn about royalty infringements. “The information that the Railroad Commission maintains regarding fields in which there is competing production indicates that injury to a common reservoir by an adjoining operator is not inherently undiscoverable,” she wrote.

Critique:
In a subsequent case, a state court of appeals admitted to “being somewhat bewildered” by Owen’s HECI ruling that royalty owners should monitor these complicated records. “Rather than bringing predictability and consistency to this area of the law,” wrote the San Antonio-based 4th Court of Appeals, “we fear that placing the onus on royalty owners to hire the experts necessary to investigate whether the Railroad Commissions records reveal that they are being cheated is inherently unfair and unworkable.” (See Advent Trust Co. v. Hyder, 12 S.W.3d 534).

5. In Re Ethyl Corp., 975 S.W.2d (Tex. 1998)
This Owen decision denied a writ of mandamus that sought to block a trial court’s consolidation of disparate asbestos claims into a single class-action lawsuit against five defendants. The 22 asbestos workers whose cases were consolidated had been exposed to differing levels of asbestos for different amounts of time. These plaintiffs also suffered from several illnesses that were at varying stages of development. Owen’s majority decision denied the petition, allowing the consolidation to proceed.

Critique:
Justice Hecht dissented to Owen’s court-sanctioned consolidation of vastly differing claims. “As important as efficiency has become to the justice system, it is not as important as justice itself,” Hecht wrote in dissent.

6. In Re Bristol-Myers Squibb Co., 975 S.W.2d 601 (Tex. 1998)
Owen’s majority opinion in this breast-implant case came down the same day as her similar decision in In Re Ethyl Corp (above).  In this case the majority also denied a writ of mandamus seeking to block consolidation of nine breast-implant lawsuits. Owen’s decision upheld this consolidation despite the fact that the trial court admitted that it arbitrarily combined the cases of plaintiffs who had different symptoms, doctors and implant manufacturers. Owen’s decision, which held that consolidation would not prejudice these claims, said, “we cannot plumb the subjective reasoning of the trial court.”

Critique:
Justice Nathan Hecht’s dissent quoted a unanimous Owen opinion (Goode v. Shoukfeh, 943 S.W.2d 441) that said “a trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles.” “When judged by this standard,” Hecht wrote, “the record before us shows a clear abuse of discretion.”

7. Austin v. Healthtrust, Inc., 967 S.W.2d 400 (Tex. 1998)
Owen wrote this majority decision that declined to recognize a common-law cause of action for a nurse who got fired after she blew the whistle on a co-worker who illegally abused and distributed prescription drugs. Owen argued that the court did not have the discretion to modify existing employment-at-will doctrine.

Critique:
Justice Gonzalez’s concurring opinion (joined by Justice Spector) reminded the majority that, since the employment-at-will doctrine was judicially created, the court had authority to amend it. Justice Gonzalez was concerned that this majority opinion might dissuade the court in the future from modifying this doctrine when such adjustments were needed to protect public safety.

8. Board of Trustees of Bastrop ISD v. Toungate, 958 S.W.2d 365 (Tex. 1997)
Owen’s majority opinion upheld school rules that prohibited boys from growing their hair below their shirt collars. The opinion relied heavily on workplace-rule cases without probing the differences between workplaces and schools. Owen also quoted cases from other jurisdictions to support her finding that such rules are constitutional.

Critique:
Arguing that the courts owed long-haired Zach Toungate protection, Justice Spector’s dissent concluded that, “This Court has failed to give that protection.” The dissent noted that the cases that Owen quoted to support the constitutionality of her ruling involved workplace grooming rules but ignored contrary case law that had found similar school rules unconstitutional.