Attorney, reformers fear pending Texas legislation would reverse asbestos litigation standards

By Marilyn Tennissen | Apr 2, 2009


Two bills pending in the Texas legislature could open the litigation floodgates to mesothelioma plaintiffs with only a minimum amount of exposure to asbestos, said a Washington, D.C., attorney speaking in Austin recently.

The bills, Senate Bill 1123 introduced by Republican Sen. Robert Duncan of Lubbock and House Bill 1811 by Democrat Rep. Craig Eiland of Texas City, would overturn an important Texas Supreme Court decision regarding standards for asbestos exposure in mesothelioma cases, said attorney Mark Behrens.

Behrens, a partner in the Public Policy Group of Shook, Hardy & Bacon LLP in Washington, D.C., appeared as a resource witness before the Texas House Committee on Judiciary and Civil Jurisprudence on March 30.

He said that HB 1811 would "significantly lower the standard for providing causation in mesothelioma litigation."

Behrens said he had a number of concerns about the bill.

"First, I believe that this legislation is not needed to provide compensation to deserving claimants," he said. "Second, the bill does not reflect sound scientific or legal principles."

The attorney said the bill is poorly timed with employers and small businesses facing difficult economic challenges.

The legislation would impose "near absolute liability on the most peripheral of asbestos defendants," Behrens said, and force those defendants to pay "coercive settlements" to avoid the cost of defending cases in which they do not even belong.

HB 1811 would undo the 2007 Texas Supreme Court decision, Borg-Warner Corp. v. Flores, which required plaintiffs to not only prove exposure to the defendant's product but also prove that the dose was sufficient to be a substantial factor in causing mesothelioma, he said.

During testimony, Behrens said that over the years "asbestos litigation has morphed into a tort world of its own," and some courts permitted plaintiffs to demonstrate merely that they were exposed to a defendant's product, rather than require proof that any particular exposure was high enough to cause the disease.

"Some courts stretched the concept so far that virtually any exposure, regardless of degree or frequency, sufficed," he said.

To deal with the extreme results, some courts adopted at least minimum standard for exposure based on Lohrmann v. Pittsburgh Corning Corp. in 1986.

In the Borg-Warner decision 20 years later, the state Supreme Court rejected the theory that each and every exposure to asbestos is a substantial factor in the disease.

Behrens said that not only would HB 1211 reverse Borg-Warner, it would not reflect Lohrmann either and would return Texas standards to "some of the most liberal" standards in the country.

On April 2, SB 1123 passed the Texas Senate State Affairs Committee and heads to the Senate floor as CSSB 1123.

A statement from Texans for Lawsuit Reform said the two bills are being pushed by "a few dozen trial lawyers who advertise for mesothelioma claimants and represent them in litigation."

"(They) want the Legislature to reverse the well-reasoned (Borg-Warner) decision because they want to sue and collect settlements or judgments from even the most marginal defendants," TLR stated.

"If this legislation is passed, we believe that it will undermine Texas jurisprudence that prohibits junk science from our court rooms."

The Texas Civil Justice League said the bills will have a "devastating effect on Texas job creators" and result in solvent defendants being forced to pay massive legal costs "without evidence of fault."

"(The bills) will roll back successful 2005 asbestos and silica reform, which elminated meritless lawsuits clogging Texas courts and kept legitimately injured plaintiffs from receiving swift justice and fair compensation."

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