Texas court says tort reform law doesn't apply to case

John O'Brien Jul. 7, 2011, 8:55am


HOUSTON (Legal Newsline) - A Houston appeals court has ruled asbestos plaintiffs who were too sick to undergo the required testing set forth in a 2005 law shall not have that held against them.

In a June 30 opinion, the Court of Appeals for the First District of Texas ruled against Union Carbide in its appeal in the case of Joseph Emmite, who died in 2005 and was never able to take the pulmonary function test required by reforms passed later that year.

A lawsuit wasn't filed on Emmite's behalf until 2007. He had worked at Union Carbide, which argued the case should have been dismissed because of the lack of the test, for 35 years.

"Here, the requirement of a pulmonary function test under (the law) would serve only to relieve Union Carbide of tort liability for its conduct -- i.e. exposing Joseph to asbestos - which, the Emmites allege, was committed before the enactment of (the law)," Justice Terry Jennings wrote.

"In this case, the application of (the law) would act on 'things which are past,' disrupt 'settled expectations' and 'change the rules' in regard to tort liability 'after the game has been played.'"

Jennings also wrote there is no compelling reason for the retroactive application of the law, chapter 90. Also, no public interest would be served by doing so, he wrote.

Pulmonary function tests measure how well the lungs take in and release air and how well they move gases such as oxygen from the atmosphere into the body's circulation.

Chapter 90 set forth other criteria for asbestos and silica plaintiffs in order for their cases to move forward. A 2010 brief showed that only 1 percent of more than 5,000 silica plaintiffs had offered that criteria.

"Given the circumstances presented in this case, requiring a pulmonary function test under (the law) would have the opposite effect of what the legislature actually intended - i.e. the protection of 'the right of people with impairing' asbestos-related injuries 'to pursue their claims for compensation in a fair and efficient manner,'" Jennings wrote.

A doctor who testified said that if Emmite had been able to undergo pulmonary function testing, the results would have backed up the diagnosis of pulmonary asbestosis.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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