Texas Senate passes asbestos causation bill

By Marilyn Tennissen | Apr 17, 2009

Robert Duncan (R)

AUSTIN, Texas (Legal Newsline)-A bill that critics fear will expose thousands of additional businesses to asbestos lawsuits has passed the Texas Senate.

Senate Bill 1123, authored by state Sen. Robert Duncan, R-Lubbock, relates to the standards of causation in mesothelioma claims.

The Senate approved SB 1123 early this evening in a 20-11 vote, despite unified opposition from the business and legal reform community. The House version (HB 1811 by Craig Eiland, D-Texas City) is pending in the House Committee on the Judiciary & Civil Jurisprudence.

The Senate bill will 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.

"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," Chip Hough, chairman of the Bay Area Citizens Against Lawsuit Abuse, wrote in a recent column in the Southeast Texas Record.

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."

Critics say SB 1123 will 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.

"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," Hough wrote.

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