A Victory for Asbestos Patients in Texas

Austin, TXBusiness and industry may not like it, but victims of asbestos mesothelioma and other asbestos-related illnesses are cheering the passage of a bill in the Texas Senate that will make it easier for plaintiffs to pursue damages for health-related asbestos cancers triggered by asbestos exposure in the workplace.

Critics of the legislation claim that it will expose thousands of additional businesses to asbestos lawsuits. They're not happy.

Victims of asbestos mesothelioma—an incurable disease that almost inevitably results in death—say, "Too bad". For the privilege of getting up and going to work every day in an environment that was toxic without their knowledge, affected works can look forward to a slow, horrid and early death.

The primary characteristic of SB 1123 shifts the burden of proof from the plaintiff, to the defendant in asbestos lawsuits. "In effect, SB 1123 and HB 1811 reverse established law on the burden of proof, which does and should lie with the plaintiff," reads a statement from Texans for Lawsuit Reform.

"The new statute, instead, will place the burden of proof on a defendant to prove that a limited exposure to asbestos attributable to the defendant did not cause the plaintiff's mesothelioma."

Sponsored by state Senator Robert Duncan (R-Lubbock), SB 1123 passed in the Texas Senate April 16th by a vote of 20-11. The House version of the same legislation (HB 1811) is presently pending in the House Committee on the Judiciary & Civil Jurisprudence.

The effect of the new Senate bill will also impact the established standards with regard to the amount of asbestos exposure admissible when bringing these types of lawsuits to trial.

Asbestos, once regarded as a miracle fiber for the manufacture of hundreds of products and second only to plastic, has over the decades been revealed as a killer. While the dangers of asbestos didn't really arrive at the gateway of widespread public awareness until the late 1970s, the risks of asbestos were known to scientists, as far back as the early 1900s.

Once the dangers of asbestos became known, it's use in products such as insulation, wallboard and ceiling tile was slowly phased out. Responsible employers took pains to better protect their employees from asbestos exposure as a precaution, but those proved to be in the minority. For most it was business as usual.

Part of the problem is the horrifically long lag time between the start of prolonged exposure to asbestos and the onset of diseases such as asbestos mesothelioma, which can take decades to appear. Works have been known to retire from a job for 20 years or more, only to discover symptoms emerging decades after last setting foot into the workplace.

Such a long 'incubation' of asbestosis, if you will, fooled many an employer into thinking all was well. If there were a problem with this stuff, workers would be dropping like flies—would they not? No, they seem fine…so what's the big deal?

Critics say SB 1123 will undo the 2007 Texas Supreme Court decision, Borg-Warner Corp. v. Flores, which required plaintiffs to not only prove exposure to the defendant's product but also prove that the dose was sufficient to be a substantial factor in causing mesothelioma.

However, tell that to the husband of a woman who died from asbestos mesothelioma, even though she never once set foot into an asbestos plant. Rather, all she did to seal her fate was to dutifully launder her husband's work clothes—garments he wore home from the factory that contained asbestos fibers. The poor woman handled those garments all those years, without protection.

Doing the laundry killed her.

In a related development, a recent published study has revealed a substantive link between chrysotile asbestos—a popular form of the fiber—and asbestos mesothelioma. Researchers studied the case histories of more than 5,000 workers at three manufacturing facilities in North Carolina using chrysotile asbestos over a 20-year period and found the mesothelioma incidence rate about 80 percent higher than the general population.

And while asbestos is vilified in most circles, it is still used in some manufacturing sectors and there remains a healthy asbestos lobby.

This was recently evident in Canada, where chrysotile asbestos is still mined and exported throughout the world to any country that hasn't banned the stuff. Even though the World Health Organization has concluded definitively that asbestos causes cancer, the asbestos industry in Canada continues to maintain that chrysotile asbestos can be used safely.

In 2007 the Canadian government commissioned a group of international scientists to study the issue. They reported back a year later that chrysotile asbestos, the most common form used in the manufacturing of products, did indeed present a link to asbestos mesothelioma. Health Canada promised to publish their findings on the official Health Canada web site.

That was in March of 2008. A year later, the report had yet to be published. It wasn't until a newspaper reporter from Montreal got his hands on the report through the Freedom of Information Act, that the findings were finally made public.

And yet, the pro-asbestos lobby continues to push back, suggesting that the scientist's findings were inconclusive.

In Texas, at least, victims of asbestos mesothelioma and other asbestos cancers won't be made to work quite so hard to prove that they are sick. Or dying. The onus of proof is now on the employer who may have been responsible for their demise. The bill will make the process of pursing fair justice and compensation that much easier, for those stricken.