Asbestos justice in Austin

By The SE Texas Record | Jun 16, 2007

If nothing else, the case of Arturo Flores was remarkable for its result.

Flores, a lifelong smoker who spent 30 years with Sears as an auto mechanic, blamed brake pad maker Borg-Warner for his breathing problems. He said asbestos dust he inhaled grinding down the pads-- they are partially made with the naturally fire-retarding mineral-- poisoned him.

A doctor for Borg-Warner examined Flores and found his lungs fine. She said his x-rays showed "no asbestos disease." But Flores' doctor disagreed. He told the jury Flores had "interstitial lung disease." It has nearly 100 different documented causes, including cigarettes, but Flores' was caused by brake pad asbestos dust, he claimed.

If you think you've heard this tale before, that's because you have, time and time again. Virtually every single week on our news pages, we report on a new lawsuit filed in Jefferson County by a plaintiff like Mr. Flores.

They're smokers, but they charge their lung problems are attributable to their past work with asbestos. Or at least that's what their lawyers say. Their employer of 40 years ago, or the maker of some product they vaguely remember using way back when (Flores thinks he used Borg-Warner pads from 1972-75) is always to blame.

But in this case, that's where the similarities end.

Rather than settling out of court like most companies-- they would rather cut their losses than take the risk of a giant verdict-- Flores' case went to trial. And a South Texas jury bought his blame game. It demanded Borg-Warner pay Flores $169,000 for his troubles.

The company appealed and lost, then appealed again to the Texas Supreme Court, and won. Our state's highest court overturned the verdict last week, holding that Flores and his lawyers never proved he inhaled enough asbestos to get sick, much less that Borg-Warner should be culpable if he had.

"In asbestos cases.. we must determine whether the asbestos in the defendant's product was a substantial factor in bringing about the plaintiff's injuries," wrote Chief Justice Wallace B. Jefferson.

You don't say.

Justice Jefferson and the Texas Supreme Court deserve credit for injecting some much-needed common sense into the asbestos litigation morass. But we'll reserve our highest praise for Borg-Warner, which no doubt spent many multiples of $169,000 on legal fees just to see this case through to its conclusion.

Here's hoping the precedent emboldens more undeserving targets to vigorously defend themselves all the same. Asbestos justice deserves to be served.

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