Texas SC to decide whether to reinstate $2.6M asbestos verdict against Dow Chemical

An issue of a property owner’s liability for independent contractors is presently before the Texas Supreme Court and could determine whether a $2.64 million asbestos verdict against Dow Chemical stands.

Justices heard oral arguments Wednesday in the case of Magdalena Abutahoun et al v. Dow Chemical and were asked to decide whether Chapter 95 of the Texas Civil Code prevents Dow Chemical’s alleged liability.

Chapter 95 states a property owner is not liable for injury, death, or property damage to a contractor for failure to provide a safe workplace, unless the property owner exercises or retains some control or had actual knowledge of the danger and failed to adequately warn.

The case stems from a suit brought by Robert Henderson, now deceased.

Court records show that on June 11, 2010, Henderson, 68 at the time of his death, filed suit in Dallas County District Court against more than a dozen defendants, including Dow Chemical.

Henderson, an insulator helper contractor, alleged he was exposed at Dow Chemical’s Freeport facility from 1967-1968 while tearing off asbestos insulation.

At trial, a jury found Dow Chemical was 30 percent at fault for Henderson’s asbestos-related cancer, levying a $9 million verdict. On Aug. 16, 2011, the trial court entered a second amended final judgment of $2.64 million.

The Fifth District Court of Appeals reviewed the award and reversed the judgment, finding that Chapter 95 barred the plaintiffs’ claim based on Dow Chemical’s alleged negligence as the premise owner.

Now that the case is before Texas’ highest court, the outcome could become a landmark decision on the effectiveness of Chapter 95 defenses going forward.

In their appellate brief, the plaintiffs contend that even though Chapter 95 was enacted 18 years ago, the Texas Supreme Court has never analyzed the scope of Chapter 95’s applicability.

“Commentators on both sides of the bar have remarked on the need for this Court’s review and the increasing unlimited expansion of the applicability of Chapter 95 by the courts of appeal,” the brief states.

Justices will ultimately determine whether Chapter 95, under specified circumstances, not only limits a property owner’s liability for premises defects but also for its contemporaneous negligent activities.

Baron & Budd attorneys Denyse Clancy, John Langdoc and Christine Tamer are representing the plaintiffs.

Dow is represented in part by Stephen Tipps, attorney for the Houston law firm Baker Botts.

Case No. 13-0175