Another voice on meso
Tue June 16, 2009 5:43 pm

This discussion on mesothelioma was submitted by Austin attorney Lee Parsley. It may be read in conjunction with my earlier post, "Tort Reform: Two Perspectives," posted on June 14.

Mesothelioma is a terrible disease. Everyone I know has great sympathy for those suffering from the disease and for their families. But, as with many other things, the Legislature must make decisions about its role, if any, in regulating mesothelioma litigation based on the facts, without being swayed unduly by emotion.

It is established in our jurisprudence—and is a matter of common sense—that for a person to be required to compensate another person for an injury, the injured person must prove that the person to be held liable actually caused the injury. In almost every kind of civil case, this causal link will not be presumed, but must be proved by the plaintiff by a preponderance of the evidence.

Toxic tort litigation presents a challenge to this rule because it may be difficult or impossible for a plaintiff to show that a particular defendant’s product caused the injury. This is true for asbestos-related injuries, like mesothelioma.

At this point, I need to take a short detour. Many people believe—probably because mesothelioma plaintiff lawyers want everyone to believe—that asbestos is the only cause of mesothelioma. In fact, while mesothelioma is often caused by inhaling asbestos fibers, many occurrences of mesothelioma cannot be traced to asbestos exposure. For example, approximately 50% of mesothelioma cases in women cannot be traced to asbestos exposure. In other words, asbestos exposure can cause of mesothelioma, but science has not established that it is the only cause of mesothelioma. Indeed, scientific studies suggest that there may be a number of other causes.

As the letter correctly states, mesothelioma may be caused by exposure to asbestos occurring 20 to 50 years ago, and the asbestos fibers to which a person was exposed may have come from many different sources. Practically speaking, it is impossible to know the origin of the fiber or fibers that triggered the disease. Consequently, if the historic causation rule is applied, a typical mesothelioma plaintiff could not recover from any defendant because he could not prove the origin of the fiber or fibers that triggered the disease.

The Texas Supreme Court, which is criticized in the letter, has provided an exception to the historic causation rule through which a plaintiff can recover in a toxic tort case, like a mesothelioma case. Under the Supreme Court’s decision in Borg-Warner v. Flores (following its prior precedent), a plaintiff in an asbestos-injury case must show only that he was exposed to the defendant’s asbestos-containing product and that the amount of the defendant’s asbestos fibers to which the plaintiff probably was exposed doubled the plaintiff’s risk of contracting the asbestos-related disease. So, in lieu of proving that one defendant actually caused the plaintiff’s injury, the Supreme Court’s decision allows a plaintiff to show that multiple defendants may have caused his injury, and to recover from all of those defendants. Obviously, this represents a substantial relaxation of the historic causation rule.

Before Borg-Warner, as the letter notes, some Texas courts had held that if a mesothelioma plaintiff could show any exposure—no matter how slight—to a defendant’s asbestos-containing product, the plaintiff could recover damages from that defendant. Consequently, a plaintiff might allege exposure to asbestos encased in a ceiling tile or brake pad even though scientific studies showed that it was nearly impossible for that encased asbestos to have caused the plaintiff’s injury.

The Borg-Warner decision rejects the incredibly lax “any exposure” rule and requires instead that a plaintiff show, using published scientific studies, that it is more likely than not that the defendant’s asbestos could have caused the plaintiff’s injury. In practical terms, Borg-Warner allows a few defendants the opportunity to extricate themselves from litigation without paying a settlement. Then, as I have already said, multiple other defendants may be liable even though only one defendant actually caused the injury.

There is nothing unfair about the Borg-Warner rule. It does not close the courthouse doors but, instead, continues to allow mesothelioma plaintiffs to recover from multiple defendants, many of which are not actually responsible. Furthermore, through the Borg-Warner decision, plaintiffs alleging an asbestos-related disease are in the same position as plaintiffs alleging diseases caused by other toxic substances—all must present scientifically reliable evidence that exposure to a defendant’s product doubled the plaintiff’s risk of a particular disease.

Mesothelioma litigation also must be viewed from a practical perspective. Almost 80% of people diagnosed with mesothelioma file suit. As far as we can tell, every person who has filed suit in Texas since 2003 claiming mesothelioma caused by occupational exposure to asbestos has recovered damages. Compare that to any other kind of cancer. Many kinds of cancer are believed to be caused by environmental factors, yet very few other cancer victims recover anything through litigation.

And the assertion that Texans suffering from mesothelioma are no longer able to bring suit in Texas is plainly false. If you go to the Harris County courthouse and look at the publically available files, you will quickly see that many, many Texans continue to file suit in Texas alleging mesothelioma caused by companies operating all over world.

For the mesothelioma plaintiff lawyers, the litigation is a “numbers game.” These lawyers routinely sue 40 to 100 defendants in each case, alleging only that the plaintiff has mesothelioma and that he may have been exposed to the defendant’s product at some time over a 40 or 50-year work history. They leave it to the defendants to sort themselves out.

In every suit, a number of defendants will pay a settlement, with the total amount recovered through litigation settlements in each case ranging from hundreds of thousands of dollars to a million or more dollars. Then, in addition, the plaintiff will recover hundreds of thousands of dollars to a million or more dollars from bankruptcy compensation trusts set up by bankrupt manufacturers of asbestos-containing products. The plaintiff lawyer typically takes 40% or more of the total amount recovered.

Let’s do some math: If the Legislature reversed Borg-Warner and, as a result, three more defendants on average remained in each case that otherwise would have extricated themselves, and each of those defendants paid $25,000 in settlement, the total additional recovery would be $75,000. With a 40% contingent fee, the plaintiff would recover an additional $45,000 and the plaintiff lawyer would be paid an additional $30,000. A plaintiff attorney who files 30 mesothelioma cases a year would increase his income by $900,000, with almost no additional expenditure of energy. Obviously, there is a reason the plaintiff attorneys want to reverse Borg-Warner.

If, however, the goal of the Borg-Warner legislation was to increase compensation to mesothelioma claimants, wasn’t there a better way to achieve that goal than by forcing settlements from defendants who probably had no actual responsibility? If the average recovery through litigation settlements and bankruptcy trust payments is $1.5 million, and the plaintiff lawyers’ fees are capped at 25%, each mesothelioma plaintiff, on average, will recover an additional $225,000. That is a great deal more money to the victim than the $45,000 per plaintiff that hypothetically could be recovered by reversing Borg-Warner, and the plaintiff lawyers still would make more than a third of a million dollars per case. At the very least, this alternative solution should be the topic of debate.

I apologize for the length of this letter, but some topics require more than a few sentences to explain. -- Lee Parsley

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