Business, trial bar at odds over pending Texas asbestos bills

By Marilyn Tennissen | Apr 6, 2009

Robert Duncan (R)

AUSTIN, Texas (Legal Newsline)--A battle between trial lawyers and business leaders is heating up in Austin over two pending bills in the Texas Legislature that could affect who could be named as a defendant in a malignant mesothelioma case.

Senate Bill 1123 and its mirror in the Texas House, House Bill 1811, would change established standards regarding the amount of a plaintiff's asbestos exposure and requirement that the plaintiff prove that the dose was sufficient enough to be a substantial factor in causing mesothelioma.

Support for the bills is coming from trial lawyers and labor unions, whose clients and members are usually lawsuit plaintiffs claiming asbestos exposure in the workplace.

In opposition are tort reform groups and a broad spectrum of the state's businesses and industries, which usually find themselves named as defendants in asbestos litigation.

According to a statement from Texans for Lawsuit Reform, "In effect, SB 1123 and HB 1811 reverse established law on the burden of proof, which does and should lie with the plaintiff.

"The new statute, instead, will place the burden of proof on a defendant to prove that a limited exposure to asbestos attributable to the defendant did not cause the plaintiff's mesothelioma."

While both bills were authored by attorneys, a look at the writers indicates the legislation may be getting bi-partisan support.

State Sen. Robert Duncan, a Republican attorney from Lubbock, authored SB 1123 and brought his bill proposal to the Senate Committee for State Affairs, of which he chairs.

A graduate of Texas Tech law school, Duncan served in the House before winning a special election to the Senate in 1996.

According to his Senate profile, "During the past 10 years, he has written bills to protect fairness in the legal system, ensure quality education, and enhance the economic viability of West Texas."

Duncan also serves on committees for jurisprudence, finance, higher education and natural resources. He was named a "Super Lawyer" by Texas Monthly magazine.

Cary Roberts, a spokesperson for TCJL, said the organization fundamentally disagrees with Duncan about the causation standard, which was established by a 2007 Texas Supreme Court decision, Borg-Warner Corp. v. Flores.

"He thinks Borg-Warner is too high, despite being based on the best scientific evidence," Roberts said.

The author of the House bill is state Rep. Craig Eiland, a Democrat from Texas City. Eiland is a trial lawyer with a private practice in Galveston. The Baylor law school graduate was first elected in 1994, and serves as vice chair of the Insurance Committee and is a past president of the National Conference of Insurance Legislators.

Opponents say time is critical for stopping the bills, and both the TCJL and TLR urge businesses to write to state lawmakers to vote against the bills.

As of March 30, HB 1811 was left pending in the House Committee on the Judiciary and Civil Jurisprudence.

On April 2, SB 1123 (now CSSB 1123) made its way out of the Senate committee by a 6 to 1 vote, with Sen. Troy Fraser casting the lone "no."

Fraser is a businessman and inventor from central Texas, whose district includes the city of Abilene and the Hill Country towns of Fredericksburg and Kerrville as well as Fort Hood near Killeen.

The Republican is considered one of the most conservative members of the state Senate and has been a strong advocate for civil justice reforms. Fraser chairs the Senate Business and Commerce Committee.

Other members of the Senate State Affairs committee who supported the bill are Republicans Bob Deuell, John Carona, Chris Harris and Mike Jackson; and Democrats Rodney Ellis, Eddie Lucio Jr. and Leticia Van de Putte.

When the time came for testimony before the respective committees, the lead witnesses were experienced attorneys from opposing sides of asbestos litigation.

In support, testimony was led by Beaumont plaintiff's attorney Bryan Blevins - from the grand-daddy of all asbestos litigation firms, Provost Umphrey - who represented the Texas Trial Lawyers Association.

According to the Provost Umphrey Web site, Blevins has been responsible for the firm's asbestos litigation, negotiation and administration since 1995.

"Provost Umphrey represents approximately 15,000 plaintiffs in asbestos litigation nationwide," the site states. "Mr. Blevins manages Provost Umphrey's trial dockets for both manufacturers and premise cases in Jefferson, Orange, Harris and Nueces Counties in Texas."

A call to Blevins had not been returned as of this writing.

In both chambers, Blevins was joined by representatives of the American Federation of Labor-Congress of Industrial Organizations in Texas Rick Levy or Joe Arabie.

On the registered list of non-testifying supporters were representatives of the state transportation union, firefighters union and the federation of teachers.

Leading testimony against the bills was Kay Andrews, managing partner of the Houston office of Brown McCarroll LLP, who represented the Texas Civil Justice League and Texans for Lawsuit Reform.

The firm's Web site says Andrews specializes in asbestos defense, mass torts and personal injury defense and that she has served as national and regional counsel for multiple large corporate clients.

Other opposition witnesses were Richard Faulk, a corporate defense attorney with Gardere Wynne Sewell LLP's Houston office, who is known for his experience with mass tort procedures, and Shannon Ratliffe, an Austin attorney recognized as an advocate of tort reform.

Representing the companies and businesses in Texas that would be hurt by the passage of the bills were dozens of leaders from the fields of insurance, energy, oil and gas, manufacturing, construction, retail and more.

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