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Tort reform: two perspectives

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The first is from the Wall Street Journal’s Opinion page for Saturday, July 13. The second was sent to me, unsolicited, by a reader, Mary Silbert, a woman whose husband died of mesothelioma five years ago and who worked for the passage of the bill this session. I am publishing it with her permission. Texas Tort Victories The plaintiffs-lawyer lobby blows $9 million and gets nowhere. Texas recently finished its legislative session, and the best news is what didn’t pass. Namely, some 900 bills put forward by the tort bar. The plaintiffs-lawyer lobby spent $9 million in last year’s state legislative elections to help smooth the way for these bills, which were designed to roll back tort reforms passed in recent years, or to create new ways to sue. Yet that money wasn’t enough to convince most Texas legislators to give up two-decades of hard-won legal progress, which ranges from class-action clean-up to medical liability reform. Among the more notable failed proposals were a bill that would have shifted the burden of medical proof away from plaintiffs and on to defendants in asbestos and mesothelioma cases; an attempt to rip up Texas’s successful system of trying multidistrict litigation in a single court; and legislation to allow plaintiffs to sue for “phantom” medical expenses. Part of this success was due to the legislature’s gridlock over a controversial voter ID bill. Yet Republicans who run the Senate and House also did yeoman’s work to keep many bills from ever reaching the floor. Republicans also got a helping hand from a number of brave, antilawsuit Democrats, many of them from South Texas, where litigation has exacted more of an economic toll. Speaking of the economy, it’s notable that Texas created more new jobs last year than the other 49 states combined. Texas’s low tax burden is one reason. But also important is a fairer legal environment in which companies are less likely than they were a generation ago to face jackpot justice. * * * * Tales from the Texas Legislature This is the story of two men who sought and won public office in the state of Texas, one became a senator in the Texas Legislature and the other, a representative in the same body. Though they both became chairmen of powerful committees and had active legal careers the similarity between the men ends here. This is also the story of a group of Texas families who have faced a horrific battle with one of the most devastating occupational diseases imaginable and then have had to battle for the chance to have their voices heard in Texas courts. What brings these seemingly unconnected people together is a bill that was brought forward in the 81st Legislature and would have provided a measure of justice for those families whose lives would never be the same after their loved ones were stricken with mesothelioma. Finally, this is a story about the state government in Texas, who controls it, and how life and death issues are decided in Austin. What this story should be about is the sense of justice and fairness that most Texans believe is their birthright, part of the very nature of life in Texas. Sadly, it is not, it is about politics which does not deal in fairness or justice but in expedience and self-interest. Texas ranks in fifth in the nation for states whose workers die from asbestos related diseases, including mesothelioma, a cancer that invades the tissue lining the lungs or abdomen. Mesothelioma is caused almost exclusively by exposure to asbestos. No other cause has been established though several have been suggested. As early as the 1930s, asbestos was suspected of causing cancer and in 1960 two doctors from Port Arthur, Texas, published an article concerning two cases of mesothelioma in men who had been exposed to asbestos as refinery workers. It was not until 1972 that the newly formed OSHA finally sought to regulate the use and handling of asbestos in the workplace in order to ensure the safety of workers. Until OSHA most companies did not have safety programs to protect workers from exposure to asbestos. The truth is that these regulations were not initially effective and many workers continued to be exposed for decades. Thanks to the ingenuity of asbestos producers and the unique properties of the mineral, asbestos fibers were used in everything from insulation and joint compound for drywall work to Santa’s beards and oven mitts. After WWII, asbestos use increased dramatically as the post-war building boom developed. Tons of asbestos was used in construction, so anyone who has lived in a house or gone to a school built before 1980, has been exposed. Asbestos is a naturally occurring mineral and although Texas does not have any asbestos outcroppings, Texans have been exposed to asbestos, through thousands of industrial and commercial uses. Asbestos is in our air and water and its use is still not completely banned in the U.S. Mesothelioma can strike any profession if there is exposure to asbestos, but it most often strikes military service personnel, construction related workers, plumbers and pipe fitters, refinery workers, and firemen – the essential people who build and protect our society. Mesothelioma is a stealth disease; the lethal changes in cell structure take years to develop. The mesothelioma victim lives a seemingly normal life and then, 20 to 40 or even 60 years later, the cancer emerges. It is an aggressive, rapidly growing cancer that is considered universally fatal, and has very few treatment options. There are some who live for a while with the disease but five-year survival statistics are grim. It is a difficult diagnosis to make, but when mesothelioma is suspected the first question a doctor asks the patient is; “Were you ever exposed to asbestos?” In 80% of cases, a significant exposure can be identified. Approximately 3,000 cases of mesothelioma are diagnosed each year in the United States; 300 of them are Texas workers or family members of workers who brought asbestos home on their work clothes and in doing so exposed their family members. In addition to the medical, financial and emotional struggles, mesothelioma brings an exhausting series of legal challenges for victims and families as well. At one time bringing a mesothelioma claim to court in Texas was relatively easy, some would argue too easy. Awards were generous and mesothelioma victims and their families were able to receive compensation for their losses. Controversy surrounding the number of claims, the claims of workers with asbestosis but no functional breathing impairment, and the size of the awards created a furor among the various business interests in the state. The 2003 campaign for Tort Reform, largely brought about by a concern for medical malpractice rates in the state, changed all that. The insurance companies and other business interests in the state formed political action groups, raised campaign funds, sponsored candidates and eventually won the reforms they spent so much time and money to obtain. A special bill was passed to prevent people from bringing claims when the victim had symptoms of asbestosis but no impairment. The proponents of the bill had argued that resources should be preserved for those victims who had cancer, including mesothelioma instead of the non-malignant cases. The Legislature thought that they had protected resources for mesothelioma victims who had already died from asbestos-related disease or were very ill and that their cases would go to the front of the line. Little did they realize that once they got to the front of the line they would find the courtroom door closed. Not only did business interests work to get candidates [favorable to business] elected to the Legislature and into the Governor’s Mansion, but they worked to get judges sympathetic to their concerns elected throughout the judiciary, especially in the Texas Supreme Court. The Supreme Court in Texas is comprised of nine elected justices, all conservatives, who have delivered a nearly perfect record in favor of corporate defendants in mesothelioma cases. In June of 2007 the Texas Supreme Court’s ruling in the Borg-Warner decision took Texas from a state which was considered favorable for plaintiffs in mesothelioma cases to the most strict in regards to the level of proof needed to bring a mesothelioma claim to court. Prior to Borg-Warner, a person diagnosed with mesothelioma it was sufficient for them to show “exposure” to a company’s asbestos containing product to prove that the product was “a cause” of the mesothelioma. The Texas Supreme Court’s decision in Borg-Warner now requires the plaintiff to provide an “approximate dose” of asbestos fibers from the product of a particular defendant and to establish that the dose was a “substantial factor” in causing the mesothelioma. The judge in charge of all of the asbestos cases in Texas (a multi-district litigation court) has ruled that “substantial factor” means the exposure from each defendant’s product has to be in and of itself enough to double the risk of contracting mesothelioma. Proving the “approximate dose” is very difficult. The asbestos exposure occurred 20, 30, 40, or even 50 years ago. Memories fade, records are destroyed and people die. Often mesothelioma victims do not live long enough to give testimony about when and how they were exposed. In these situations the family is left with trying to track down co-workers, who often have moved out of the state or have died. Even in cases where there is information on work history and exposure, evidence of how much asbestos was released from a particular product may not exist. Many companies never tested their products to see how much asbestos fiber was released during its normal use. In a perverse twist of irony, the companies that never tested their products, may, if no studies on comparable products exist, have a “get-out-of-jail-free-card,” thanks to Borg-Warner. The result of the new causation standard is that corporate defendants seek to have the mesothelioma claims against them dismissed in summary judgments. These judgments are granted because the plaintiffs cannot meet the new Borg-Warner standard. As a consequence of the new Borg-Warner causation standard many Texans have had to file their cases in other states in hopes of getting more favorable treatment. If this wasn’t bad enough, cases that do make it to a jury and prevail have been consistently reversed by the state appellate courts and Texas Supreme Court. The effect of all this judicial activism is that corporate defendants have no pressure to settle and no fear of going in front of a jury to explain their part in exposing people to the deadly effects of asbestos, because they know, even if they lose in the trial court, they have the appellate courts and Supreme Court on their side. Today, Texas is one of the worst states in the country for victims to receive compensation for asbestos related disease. There are over 200 families currently trying to bring their cases before the MDL court in Texas. Several lawmakers and mesothelioma advocates recognized that there need to be a more moderate approach taken in these cases. The most common causation standard, which prevails in the courts of 22 states across the country, is known as the Lohrmann standard. In contrast with Borg Warner the Lohrmann standard requires the person be exposed to a company’s asbestos product with “frequency, regularity, and in proximity to its use.” Texas lawmakers introduced a bill that incorporated the Lohrmann standard of causation in Texas to replace the Borg-Warner standard. The result, if the bill passed would be that Texas would neither be overly favorable to plaintiffs nor would it be at the strictest end of the judicial spectrum in terms of causation standards. The group sought a balanced approach to the problem of plaintiffs getting their cases certified for trial and setting rational standards for causation. The stage is now set for the legislative drama of the 81st Legislature. The hero of the piece is a Republican senator from Lubbock who has served in the Legislature since 1996 and is currently the Chairman of the State Affairs Committee. Senator Robert Duncan has been named by Texas Monthly to the “Ten Best Legislators” list three times and the same publication has also named him a “Texas Super Lawyer.” Duncan has written several pieces of legislation to protect the fairness of the legal system, so the obvious unbalanced approach of the courts dealing with mesothelioma cases became the impetus for his decision to sponsor SB 1123. This legislation proposed establishing the Lorhmann standard of causation for mesothelioma cases in Texas. So, here is a Republican who has been criticized for often being on the side of the insurance companies sponsoring a bill that most businesses, especially insurance companies, would oppose. In a truly Frank Capra moment for the Texas legislature, Duncan introduces the bill, debates all comers, answers all objections and the bill passes his committee and the entire Senate. It seems that finally mesothelioma victims have won a victory. The bill is then sent to the House Committee on the Judiciary and Civil Jurisprudence and the villain of the piece, Todd Hunter, Republican Representative from Corpus Christi takes center stage. Todd Hunter was once a Democrat and served in the House till 1996. After leaving the House, Hunter became a registered lobbyist and continued to represent clients as a registered lobbyist until 2007. Hunter decides to seek election to the House again in 2008 and this time he campaigns as a Republican. Stories abound about his backers and his ties to big business and his involvement in several organizations that lobby for Tort Reform. With the backing and financial support of business interests and Texans for Tort Reform, Hunter wins the election and becomes Chairman of the Committee on the Judiciary and Civil Jurisprudence. After passing the Senate, SB 1123 becomes HB 1811, and is debated in Hunter’s committee. Hunter then bottles up the bill in committee so that it cannot come to a vote on the House Floor. Questions of conflicts of interest and political self interest arise from Hunter’s actions on HB1811 and even though his actions would look suspect to a Jr. High class on Civics, Texas legislators have no waiting period when they move from lobbying activities to holding office in the state of Texas. You can represent an industry or special interest group one day, get elected to the Legislature the next and you don’t have to excuse yourself from voting on a bill that favors your former client, even if he is also a contributor to your recent campaign. Hunter sits on the bill for 44 days and the hopes of 200 Texas families are left to hang in the balance. Over the next three weeks the bill languishes in the House committee and as the deadline for bringing bills out of committee to the Floor of the House for a vote comes and goes prospects for the bill begin to fade. There are very few options for a bill once it has been killed in committee and a last ditch effort for passage of the bill is made by its backers. The Speaker of the House and Representative Hunter decide to kill the bill as the 81st session of the Texas Legislature draws to a close. There will be no relief for mesothelioma victims in Texas. Those victims who can take their cases out of state will do so. Most of those who cannot go out of state to another jurisdiction will not have the chance to make their case to a jury. The grief of lost family members and the burden of dealing with a devastating disease will continue without the hope that there will justice for the harm done to their families. Every Texan should remember when they watch the late night ads for mesothelioma victims to contact attorneys that most of the ads are for out of state attorneys who look for cases in Texas that can be moved elsewhere. Texans should think about the system that elects judges who are overly beholden to the industries of the state. This same system also allows people to run for the Legislature who have been paid lobbyists for the very interests their legislation will affect without so much as a two year moratorium between the lobbying and their service in the Legislature. Most of all, everyone should remember that when you see those ads, the families of over 300 mesothelioma victims a year see those ads too and feel the pain of being forgotten by the very state their loved ones worked so hard to build and nurture. — Mary Silbert * * * * I am not going to make any editorial comment on these two articles. They speak for themselves. What is interesting to me is the difference between those for whom tort reform is a matter of intellectual interest, and those for whom it is intensely personal. In the hothouse atmosphere of a legislative session, it is too easy to overlook the ordinary Texans who bring their hopes to the Capitol, and what they think about what goes on here.

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