Three lawsuits representing a total of approximately 1700 plaintiffs against more than 50 San-Jacinto-River-Basin sand mines have been joined in Multi-District Litigation (MDL). The lawsuits each arose out of flooding during Hurricane Harvey. Particulars of each suit vary slightly, but they all have common elements.

Basis for Lawsuits

At a high level, plaintiffs allege that the sand mines failed to take steps that reduced discharge of sediment, silt and sand. Floodwaters then carried sediment from the mines downstream, they say, where it clogged the river, backed water up, and contributed to flooding of plaintiffs’ homes and businesses.

The three lawsuits include:

• Ellisor et al filed by Spurlock and Webster (Cause No. 2018-66557)
• Del Pino et al filed by Arnold & Itkin (Cause No. 2020-08901)
• Nelson et al filed by The Potts Law Firm (Cause No. 2020-10361)

Plaintiffs allege negligence, gross negligence, negligence per se and nuisance. They seek exemplary damages.

First Suit Filed in 2018; Two More Intervene in 2020

Spurlock and Webster filed the Ellisor Lawsuit in 2018. The Potts Firm, and Arnold and Itkin intervened in the Ellisor suit in August of 2019 just before the statute of limitations ran out, but due to some procedural rulings later re-filed separate suits in February of this year.

The Ellisor suit had been in the works for 18 months when the Del Pino and Nelson cases were filed. In law, “intervening” means obtaining the court’s permission to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit. 

However, the other suits had some plaintiffs from jurisdictions other than Harris County. So instead of just consolidating the lawsuits, defendants filed a motion with the Texas Supreme Court requesting multi-district litigation. Defendants and plaintiffs also wrestled over procedural issues such as jurisdiction, venue, dismissal, the judge, and more.

Supreme Court Mandates Multi-District Litigation

As usually happens with multiple suits in different counties, the Supreme Court ordered one judge to oversee all of the cases to ensure rulings were consistent. A “stay order” put everything on hold for months. Webster and Spurlock have not been able to move their case forward until these other issues were worked out.

The Texas Supreme Court appointed former Judge Sylvia Matthews to hear pretrial motions on all the cases.

Judge Matthews has reportedly ordered a status conference with all parties after Labor Day to discuss outstanding issues. If and when the cases go to trial, they go back to the original trial court.

“Now that the stay has been lifted, we’re hoping that we’ll be able to start moving forward with discovery,” said Kim Spurlock, one of the lawyers in the Ellisor case.

New Case Number

The three cases in the Multi-District Litigation have been consolidated under a new Master File for those seeking information about them in the future.

See: Harvey Sand Litigation, Harris County 281st District Court, MDL 19-0500, Cause No. 2020-48333.

Posted by Bob Rehak on 8/17/2020

1084 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.