Texas Supreme Court Enforces Medical Criteria for Claims Involving Asbestos and Declares the Application of Chapter 90 Constitutional

by Wilson Elser
Contact

In a 5–4 opinion issued in Union Carbide Corporation v. Daisy E. Synatzske et al. No. 12-0617 (Tex. July 3, 2014), the Texas Supreme Court held that Chapter 90 of the Texas Civil Practices and Remedies Code as applied to the plaintiffs does not violate the Texas Constitution’s prohibition against retroactive laws and the medical requirements were applicable.

BACKGROUND

Chapter 90
In 2005, the Texas Legislature enacted Civil Practice and Remedies Code, Title 4, Liability in Tort, Chapter 90, Claims Involving Asbestos and Silica, which took effect on September 1, 2005. Cases filed after the effective date, such as the case filed by the family of Joseph Emmite, were subject to dismissal if a claimant fails to present a physician’s report that establishes asbestos-related pulmonary function impairment through pulmonary function tests. Chapter 90 contains safety valve provisions for “exceptional and limited circumstances.” However, claimants invoking the safety valve provisions were not relieved from the obligation to demonstrate that the exposed person underwent pulmonary function testing. Cases filed before September 1, 2005, may not proceed unless and until the claimant satisfied the statutory criteria.

Synatzske, et al. v. Union Carbide Corporation, et al.
Joseph Emmite worked as an insulator at Union Carbide for nearly 40 years before he died in 2005 from Alzheimer’s disease/dementia, among other causes. In 2007, the family of Mr. Emmite filed a wrongful death lawsuit against Union Carbide and 37 other defendants claiming that their negligence and gross negligence caused his death. The Emmites alleged that exposures to asbestos at Union Carbide caused Mr. Emmite to develop asbestosis, which was a cause of his death. When Mr. Emmite died in 2005, it was before Chapter 90 took effect. When his family filed their wrongful death lawsuit in 2007, Chapter 90 was the law in Texas. 

Union Carbide moved to dismiss the lawsuit because the plaintiffs did not present a physician’s report supported by pulmonary function tests demonstrating Mr. Emmite’s pulmonary function impairment. Mark Davidson, the presiding judge over Texas’s statewide asbestos multidistrict litigation (MDL) pretrial court, denied Union Carbide’s motion to dismiss. Judge Davidson found that the plaintiffs satisfied Chapter 90’s safety valve provisions because (1) Mr. Emmite was physically and mentally unable to perform a pulmonary function test before he died, (2) autopsy findings revealed asbestosis that had resulted in severe pulmonary fibrosis, (3) a cause of death was the combined effects of retained asbestos fibers, and (4) the report presented by the Emmites referred to pulmonary function tests administered decades earlier. Those tests, however, did not show an impairment that satisfied Chapter 90.

DECISION
The First Court of Appeals affirmed the order from the MDL pretrial court, but on grounds different from those articulated by Judge Davidson. The panel opinion from the First Court of Appeals held that while the Emmites had failed to satisfy Chapter 90’s requirements for bringing suit, those requirements, as applied to the facts of the Emmite case, violated the Texas Constitution’s Retroactivity Clause.

Union Carbide petitioned to the Texas Supreme Court. The Texas Supreme Court majority reversed the First Court of Appeals and rendered judgment dismissing the plaintiffs’ lawsuit. The majority held that the plaintiffs failed to comply with Chapter 90’s safety valve provisions and rejected their argument that Chapter 90 as applied was unconstitutionally retroactive.

Plaintiffs Failed to Present a Compliant Medical Report
The Court first addressed the question of whether the plaintiffs satisfied the safety valve provisions found in Chapter 90. The plaintiffs argued that the safety valve provisions require only that the physician providing the report refer to the results of pulmonary function tests; the physician is not required to rely on or find the pulmonary function tests relevant to the exposed person’s ultimate diagnosis. The fact that the pulmonary function tests conducted in 1979 showed no functional impairment was irrelevant.

The majority disagreed. Accepting the plaintiffs’ argument, the court reasoned, would yield results completely at odds with the rest of Chapter 90’s testing requirements. If a plaintiff could meet the safety valve criteria by offering inconsequential pulmonary function tests, the requirement of testing would be superfluous. Requiring tests that do not support the diagnosis, the court noted, would be akin to adopting some other irrelevant criteria, such as a requirement that the plaintiff be born on a certain day of the week.

Constitutionality of §90.010(f)(1)(B)(ii)
The majority next held that Chapter 90 did not violate the Texas constitution because it was retroactive. The Court noted that Chapter 90 served the compelling public interest of combating the asbestos litigation crisis and ensuring that resources are used to compensate truly injured plaintiffs. Given this compelling public interest, the Court explained that Chapter 90 did not unconstitutionally impair the Emmites’ right to recovery. The Court noted that Chapter 90 became law before Mr. Emmite’s death. Any impact on the plaintiffs’ settlement expectations did not outweigh the public interest the Legislature sought to achieve by enacting Chapter 90.

Two Dissents
The first of two dissents criticized the majority for looking beyond the plain text of Chapter 90 to create a requirement that the pulmonary function testing be medically relevant to the diagnosis. Chapter 90 is straightforward. It requires pulmonary function testing and a claimant’s physician to interpret a pulmonary function test. Despite what the majority opined, it does not require that the pulmonary function test demonstrate any level of impairment or serve as the basis for the physician’s opinion that the claimant is impaired. The safety valve provisions are precisely for those claimants, such as Mr. Emmite, whose pulmonary function tests are medically unreliable as an indicator of impairment. Because this is not an absurd result, the court should enforce the statute as written and it should not rewrite the statute or add language to cover what some may perceive as policy gaps.

The second dissent would have held that Chapter 90 was unconstitutionally retroactive because the public interest furthered by the statute would not be served by its application to Mr. Emmite. The stated purpose of Chapter 90 was to allow people with asbestos-related injuries to pursue claims for compensation through the Texas court system. However, the mechanism the Legislature chose to effect that goal, pulmonary function testing, seems overly broad, especially as applied to the case of Mr. Emmite – who was too ill to undergo pulmonary function testing. According to the dissent, a plaintiff should not be prevented from recovering for an injury caused by exposure to asbestos because that exposure made him too sick to complete a pulmonary function test.

COMMENT
The Texas Supreme Court’s decision is significant in two ways. First, the Court continued to enforce the medical criteria created under Chapter 90. The safety valve, already used rarely, is likely to be a non-factor in Texas litigation. Second, the Court held that Chapter 90 is constitutional as applied to claims that arose before it took effect. An opposite decision on either issue could have reopened the floodgates of asbestos litigation in Texas.

 

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.