April 9, 2015
(http://www.texaslawyer.com/id=1202723116206/Asbestos-Litigation-Bill-Births-Tort-Reform-Battle?kw=Asbestos%20Litigation%20Bill%20Births%20Tort%20Reform%20Battle&et=editorial&bu=Texas%20Lawyer&cn=20150410&src=EMC-Email&pt=AM%20Alert&slreturn=20150310105247)
by Angela Morris
Tort reform groups are backing a bill to reform asbestos litigation procedures, while Bryan Blevins, president of the Texas Trial Lawyers Association, is criticizing it for creating a mismatch between plaintiffs and defendants.
House Bill 1492 author Rep. Doug Miller, R-New Braunfels, told members of the House Judiciary and Civil Jurisprudence Committee there is a loophole in current law: Some asbestos plaintiffs first file a lawsuit, and, after that suit is resolved, they file a compensation claim with bankruptcy trusts. The practice creates an opportunity for fraud and “double dipping,” said Miller, adding that his bill would address the issue by requiring a plaintiff to file a bankruptcy claim first.
The Senate State Affairs Committee scheduled a public hearing on April 13 for a similar bill, Senate Bill 491, by Sen. Charles Schwertner, R-Georgetown.
Nathan Horne of the U.S. Chamber of Commerce Institute for Legal Reform represents defendants in asbestos litigation. He said that if a defendant knew the amount a plaintiff stood to collect from bankruptcy trusts, the defendant would use the information in settlement talks. The defendant would also learn the plaintiff’s exposure history, helping to show the defendant wasn’t totally responsible for an injury.
But Blevins, who represents asbestos plaintiffs, said some asbestos victims die within six to 18 months of diagnosis. If a client is dying, his lawyer’s focus is to get his day in court, he said.
The bill would allow a defendant to stop the trial, force a plaintiff to produce evidence in the bankruptcy trust claims and allow the defendant to use that evidence against the plaintiff, said Blevins.
According to the National Cancer Institute at the National Institutes of Health, asbestos comes from naturally occurring minerals and is found in construction products like insulation and ceiling tiles. Asbestos exposure can cause cancer and lung disorders, among other ailments.
Companies responsible for creating asbestos or silica products that have gone bankrupt create trusts to compensate people who became ill due to exposure.
Bill’s Provisions
Under Committee Substitute House Bill 1492, a claimant would have to give notice of trust claims and documentation to each party in a lawsuit. If a plaintiff had already won a judgment but didn’t give the notice, then the defendant could ask a court for a sanction, “including vacating the judgment and ordering a new trial.”
The bill would authorize a defendant to file a motion to stay proceedings in a court if he thought the claimant could make a trust claim instead. If a plaintiff were to argue it would cost more to make that claim than he stood to recover, the bill would allow the court to order the plaintiff to “provide the court with a verified statement of the exposed person’s exposure history.”
The bill provides that a defendant can use a trust claim and documentation to argue that something else caused the injury and that others were responsible.
In cases where a claimant had already won a judgment in court, a defendant could file a motion for the court to modify the judgment to subtract any later trust payments, according to the bill.
Testimony
Committee members called for testimony from Multidistrict Litigation Judge Mark Davidson, who sat in the audience waiting for another bill’s hearing. He said he would answer questions but he did not take any position on CSHB 1492.
Committee member Rep. Travis Clardy, R-Nacogdoches, who represents defendants in asbestos litigation, said he’s practiced before Davidson. In his experience, Clardy said, if Davidson wanted a party to produce certain evidence, it happened. Clardy asked Davidson whether there was a problem that the bill would solve.
Davidson said state law mandates a trial within six months for asbestos cases. To comply, he created a 40-page case management order requiring a plaintiff to disclose his work and health records to start the clock for the six-month trial. The plaintiff must also disclose trust claims, he added.
Davidson said that allowing a defendant to stay a proceeding might conflict with the six-month trial requirement.
Part of the bill that allows claims information to prove what caused an injury seems to overrule a Texas Supreme Court ruling, BorgWarner v. Flores, which requires plaintiffs to prove their dose of asbestos exposure. Davidson said if lawmakers were trying to overrule BorgWarner, he would appreciate more details and commentary.
“I will follow your policy but I would simply ask you to give me some clarification,” said Davidson.
Blevins took issue with the same provision in the bill.
He explained that BorgWarner makes a plaintiff prove a very high standard: the number of asbestos fibers that he breathed in from the defendants’ product. Defendants currently must meet the same standard to bring in a responsible third party, he said.
But the bill would change the standard for defendants by allowing them to use trust claims to prove causation, while plaintiffs would still have to meet the higher standard, said Blevins. It would create a great mismatch in the asbestos litigation system, he said.
Texans for Lawsuit Reform and the Texas Civil Justice League also supported the bill in the hearing.
