Justices backtrack in asbestos suit against Jefferson County, substitute previous opinion

By David Yates | Jan 2, 2019

HOUSTON – In August, a Texas appellate court found a Jefferson County judge, who retired in the mid ‘90s and died from mesothelioma nearly a decade later, was required to give six months notice after his last exposure before an asbestos lawsuit could be filed against the county.

On Dec. 28, the First District Court of Appeals substituted its August opinion, this time affirming a trial court order keeping Jefferson County locked in the litigation. 

The lawsuit against county stems from a complaint brought by the widow of Judge James Farris, Ellarene Farris, who alleges that her late husband was exposed to asbestos in the Jefferson County courthouse and, as a result, died from mesothelioma.

Farris, who was 72 when he died, spent almost his entire legal career in the Jefferson County courthouse, which included a period of asbestos remediation at the courthouse, court records show.

Last July, the county brought an appeal after a trial court denied its plea to the jurisdiction, arguing governmental immunity had not been waived because it did not receive notice of the claim within six months, as required by the Texas Tort Claims Act.

Jefferson County contended notice was due within six months of Judge Farris’s last exposure to the courthouse in December 1996.

Conversely, Ellarene argued that she had no claim, and no notice was required until after Judge Farris’s death on Nov. 5, 2004.

The majority of justices for the First Court did not agree, finding on Aug. 31 that the “wrongful-death claim only could be pursued if Judge Farris himself ‘would have been entitled to bring an action for the injury’ if he had lived.”

Justice Terry Jennings dissented.

“Stunningly, the majority holds that the claims asserted by Ellarene are barred by governmental immunity because she did not provide notice of them to Jefferson County within six months of Judge Farris’s final exposure to asbestos in December 1996—before the existence of any injury or damage,” the Aug. 31 dissenting opinion states.

“Based on the majority’s reasoning, Judge Farris was required to provide

Jefferson County with notice of a premature and speculative claim within six months of December 1996.

“But at that time, Judge Farris did not yet have a claim against Jefferson County for which he could provide notice because it was nearly eight years before he exhibited any symptom or was diagnosed with mesothelioma…”

The First Court’s new opinion now holds the trial court did not err by denying the plea to the jurisdiction.

Justices did, however, dismiss any claims for punitive damages.  

Jefferson County is represented by Chief Civil Attorney Kathleen Kennedy.

Ellarene is represented by Jason Beale, attorney for the Bailey Peavy Bailey Cowan Heckaman law firm in Houston.

Appeals case No. 01-17-00493-CV

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