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April 3, 2009

Serious Asbestos Causation Legislation Advancing in the Texas Senate

Counsel for the American Tort Reform Association is very concerned about legislation advancing in the Texas Legislature that threatens to undermine asbestos laws.

The legislation, SB 1123, has been introduced by Republican Sen. Robert Duncan and would create insurmountable barriers for a peripheral or “low dose” asbestos defendant to be able to remove them from a mesothelioma case without having to pay a coercive settlement. Unfortunately, a substitute version of the bill was approved by the Senate State Affairs Committee Thursday afternoon. The House companion, HB 1811, sponsored by Democratic Rep. Craig Eiland is pending before the House Judiciary Committee.

NAMIC strongly encourages you to contact your state senators and urge them to oppose this ill-advised proposal.

If adopted, the proposal would overturn an important Texas Supreme Court decision, Borg-Warner Corp. v. Flores (2007), which requires quantification of exposure and proof that the dose was sufficient to be a substantial factor in causing the disease. Borg-Warner is a well-reasoned and sound opinion regarding requirements for causation testimony in asbestos cases.

ATRA believes that if the proposal becomes law settlement values of mesothelioma cases in Texas would go up and efforts to adopt a Borg-Warner type causation standard in other states would be dealt a tremendous blow. The plaintiffs' bar knows this, which is why they are going all out to pass the bill.

Included below are talking points provided by the Texas Civil Justice League. If you need more information please contact Carol Sims at the TCJL by e-mail at or by phone at (512) 320-0474.

  • Legislative tort reform and a conservative judiciary have produced fairness, predictability, and rationality to Texas civil justice. This has produced concrete results for the people of Texas: greater access to health care; an expanding economy; product innovation; job growth that far exceeds other states; a growing tax base to fund our schools, transportation network, and other essential government functions.
  • SB 1123 and HB 1811 seek to reverse a sound unanimous Texas Supreme Court decision concerning asbestos litigation (Borg-Warner). The decision is based on established causation standards and modern science. The few dozen trial lawyers who advertise for mesothelioma claimants and represent them in litigation want the Legislature to reverse this well-reasoned decision because they want to sue and collect settlements or judgments from even the most marginal defendants.
  • It is not good public policy and not good law to divorce tort liability from credible causation. In the proposed legislation, the trial bar seeks to do that. If this legislation is passed, we believe that it will undermine Texas jurisprudence that prohibits junk science from our court rooms.
  • We strongly oppose SB 1123 and HB 1811 and ask your help in defeating the legislation.