Texas Senate Passes Mesothelioma Causation Bill

On April 16, in what may prove to be a legislative victory for victims seeking mesothelioma legal relief, the Texas Senate passed SB 1123, which will place the burden of proof for asbestos-injury causation on defendants.

Asbestos, a substance occurring in mineralized rock formations, is the only known cause of mesothelioma, an especially lethal form of cancer. Mesothelioma typically lies dormant for decades, but once diagnosed its victims usually die within 18 months. Asbestos can also cause asbestosis and cancers of the digestive tract, ranging from the pharynx to the rectum.

Authored by state senator Robert Duncan (R-Lubbock), and passed by a 20-11 majority, the bill has critics claiming that such measures will expose thousands more businesses to asbestos lawsuits than formerly.

The bill is also opposed by a legal reform community, which just succeeded in removing "junk" lawsuits from the dockets. This new bill, and HB 1811 (introduced by state Sen. Craig Eiland, D-Texas City), which is pending in the House Committee on Judiciary & Civil Jurisprudence, look to asbestos suit reform legislators like a case of two steps back in the arena of civil jurisprudence.

Both bills are reportedly supported by trial lawyers and labor unions, which groups have seen recent legislation closing off avenues of recourse for their clients. The bills are opposed by an odd alliance of tort reform groups and business and industry - the former because such legislation puts tort suits, in effect, back on the front burner, the latter because it puts them on the defense when proving an absence of causation. It also flies in the face of American jurisprudence standards, which have formerly held plaintiffs innocent until proven guilty.

The Senate bill proposes changing the established standards by which plaintiffs calculate exposure, and requires plaintiffs to disprove that the asbestos exposure and dose was sufficient to substantively cause mesothelioma.

According to Chip Hough, chairman of the Bay Area Citizens Against Lawsuit Abuse, the legislation reopens the door for personal injury lawyers to increase asbestos litigation and "expand the pot of money" by suing anyone, even if they're not at fault.

Texans for Lawsuit Reform say the two bills reverse the established law on burden of proof, which by rights should lie with the plaintiff. Critics agree that SB 1123 will reverse the landmark decision, Borg-Warner Corp. v. Flores, which mandated that plaintiffs not only prove verifiable exposure but also demonstrate that the exposure rate was sufficient to be a substantive causative factor in mesothelioma.

Because SB 1123 mandates so little causative evidence, businesses would be forced to settle because the alternative (i.e., legal costs and the threat of unlimited damages) would be unthinkable, Hough explained in his writing. Hough also pointed out that the Texas court system, which only recently had restored some semblance of common sense and fairness, faced a loss of credibility if SB 1123 succeeded in allowing another spate of asbestos suits based on flimsy or absent evidence.

The American Insurance Association initiated a campaign to defeat the bill, claiming it would result in companies being forced to pay massive legal costs without scientific evidence of fault. This, the association argued, would further dampen the jobs climate as employers struggle with a downsizing economy, and would have a negative effect on the whole Texas insurance market, since insurance losses are passed on as higher premiums to the pool of insured.

Sources: Southeast Texas Record, American Insurance Association

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