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