No-proof-needed asbestos shake downs will cost jobs

By The SE Texas Record | Apr 8, 2009

The old proverb encouraging persistence, "if at first you don't succeed, try, try again," has apparently become the mantra of personal injury lawyers in Texas.

By Chip Hough

The old proverb encouraging persistence, "if at first you don't succeed, try, try again," has apparently become the mantra of personal injury lawyers in Texas.

As Texas gains national acclaim for restoring common sense and fairness to our courts, some personal injury lawyers are relentless in their pursuits to find new ways to sue and to circumvent laws to keep junk science out of our courts.

The latest anti-reform effort would rollback successful 2005 asbestos litigation reforms that are helping truly injured people receive swift and fair compensation and largely rid our courts of bogus asbestos cases based on junk science.

In the "bad old days," inventive personal injury lawyers sponsored mobile screening vans and filed lawsuits for anyone who "tested positive" for asbestos illness. Not surprisingly, nine out of 10 claims examined were based on "wrong" conclusions by the lawyers' X-ray technicians, according to a Johns Hopkins University study.

A federal judge in Corpus Christ exposed further abuse when she tossed out more than 10,000 silicosis lawsuits explaining the bogus diagnoses had been "manufactured for money."

The "bad old days" of asbestos lawsuit abuse ended in 2005 when reforms established objective medical criteria and expedited the cases of the truly sick.

The reforms struck the proper balance of fairness by ensuring that sick people's cases are heard first while preserving the right of people who were exposed to asbestos but who are not sick to file their case later should they become ill.

The current law is working to keep junk science out of our courts and to provide efficient and generous compensation for the truly injured; typically between $1.4 million and $4 million per case.

But now the "bad old days" are threatening a come-back.

Personal injury lawyers are pushing a bill that will open the floodgates for yet another onslaught of asbestos cases based on flimsy – or even non-existent – evidence. Senate Bill 1123 (and its companion House Bill 1811) would allow for lawsuits with virtually no proof required that a defendant caused an asbestos-related injury.

SB 1123 sets the level of proof so low that even incidental, brief exposure to a small amount of asbestos would be enough to find a business liable regardless of whether the amount of exposure was enough to cause harm.

Just as reforms from 2005 established medical criteria to determine which plaintiffs are actually ill, Texas must have standards to establish who is at fault for the illness. SB 1123 would do away with such "causation" standards.

Essentially, any business that ever had any product that contained any asbestos on the premises could be found liable for the illness – regardless if the amount was enough to cause harm.

People who have been injured deserve compensation and that requires actual, solid proof that a specific person or business caused the injury. A shakedown of peripheral players with little to no dealings with asbestos will only foster asbestos lawsuit abuse. Many businesses – both big corporations and small businesses like auto repair shops– are at risk.

Since so little evidence would be necessary under SB 1123, businesses would be forced to settle regardless of liability because they can't afford the cost of a lawsuit and the threat of unlimited damages.

Forced settlements and abusive lawsuits ultimately costs jobs by siphoning resources away from a company's payroll.
Now is hardly the time to jeopardize more jobs in this economic crisis.

The personal injury lawyers' motive to expand asbestos litigation is simple: Now that reforms have clamped down on junk science asbestos lawsuits, personal injury lawyers are looking to expand the pot of money up for grabs by suing anyone, even if they're not at a fault.

SB 1123 paves the way for a resurrection of the kind of lawsuit abuse that once made Texas infamous. Lawyers may try, try again to find new ways to line their pockets but Texas lawmakers would be wise to ensure they don't succeed on their watch.

Chip Hough is Chairman of the Board of Bay Area Citizens Against Lawsuit Abuse. He is managing partner with Basic Industries of South Texas which operates in South Texas, Corpus Christi and San Antonio.

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