## IN THE SUPREME COURT O F TEX AS

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. 12-0617

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

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J U S T I C E L E H R M A N N , dissenting.

I join J U S T I C E B O Y D in concluding that Chapter 90’s safe ty valve provision does not require

a plaintiff to produce a pulmonary function test showing impairment. Howeve r, beca use the Court

arr ives at the opposite holding, I write separ ately to consider whether the application of Chapter 90

as construed and applied here violates the Texas Constit ution’s prohibition on retroa ctive laws. T E X
. C O N S T . art. I , § 16. “A retroa ctive statute is one which g ives to pree nactment conduct a differ ent le g a l e f f e ct from that which it would have had without the passag e of the statute.” Charles B. Hochman, The Supreme Court and the Constit utionalit y of Retroactive Legislation , 73 H A R V
. L

. R E V . 692, 692 (1960). I nthis case , the Court holds that Chapter 90 bars the claim of a plaintiff who failed to adher e t o its

require ments. Be cause the statute imposes a penalty for pree nactment conduct, which the evidenc e shows the plaintiff was incapa ble of avoiding , I ultimately conclude that the statute fails the three

fac tor test we se t forth in Robinson v. C rown Cork & Seal C o. , 335 S.W .3d 126 (Tex. 2010). For that rea son, I respe ctfully dissent. I. Background On May 19, 2005, the g overnor signe d into law Chapter 90 of the Texas Civil Practice and Remedies Code. Act of May 17, 2005, 79th L eg ., R.S., ch. 97, § 2 , 2 0 0 5 T ex . Gen. L aws 169, 171–82 (codifie d at T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 90.001–.012). I n broad terms , C h apter 90 require s a claimant asser

ting an asbestos-r elated injury to serve on the defe ndant a phy sician’s repor t meeting cer

tain require ments. Id

. §§ 90.003, .006. Among many other prer equisites, the repor t must verify that the exposed person experience d a cer ta in le v e l o f a s b e s to s - r e la

ted pulmonary impairment. Id. § 90.003(a) (2)( D). The impairment must be shown by a particula r method, pulmonary function testing. Id. Howeve r, in “exceptional and limit ed circ umstances,” Chapter 90 allows a claimant to d em o nstrate asbestos-r elated impairment when he cannot satisfy all of section 90.00 3 ’s require ments. Id. § 90.010(f) (1), (j). Even in this instance, though, the statute does not r elieve the claimant of h i s o b l i gat ion to demonstrate that the exposed person underw ent pulmonary function testing. Id

. § 90.010(f) (1)( B)

. On September 1, 2005, three -and- a-ha lf months afte r Chapter 90 was signe d into law, it became eff ective. For deca des, J oseph Emmite w orked as an insulator at Union Carbide. By the time he was eig hty -five, he s uffe red from a number of m aladies, including osteoarthriti s and dementia. When
2J oseph was hospitaliz ed in May 2005, Dr. J oseph Prince conducte d a phy sical examination, during

which he discovere d that J oseph had “diminished brea th sounds at the rig ht lung base.” A chest CT

reve aled “extensive pleura l and diaphra g matic c a lc if ic a ti o n s , r ig h t p le u r a l eff usion with compre ssive subseg mental atelec tasis, and bilatera l interstitial fibrotic pattern.” After further testing, Dr. Prince diag nosed J oseph with pulmonary asbestosis. Dr. Prince later stated that, due to J oseph’s failing health and inability to support his own weig ht, pulmonary function testing wo u ld have been “diffic ult or even prohibitive” at the time of the diag nosis. J oseph died on J une 15, 2005, one month afte r Chapter 90 was signe d into law, and two-and- a-ha lf months befor e the statute beca me eff ective. J oseph’s family broug ht suit two y ear s later, on J une 7, 2007. Union Carbide filed a motion
to dismiss based primarily on J oseph’s lack of pulmonary function testing. After multipl e hear ings, the M DL pretria l court made numerous findings of fac t, including that “[s] h o rt l y befor e his death [J oseph] suffe red from phy sical and mental l imitations , which m ad e i t i mpossible for him to take

a pulmonary function test,” and that “[h] ad J oseph Emmite been phy sically and mentally capa ble of perf orming a pulmonary function test, the results would have demonstrated pulmonary impairment
g rea ter than require d under [section] 90.003.” As a result, the MDL judge denied Union Carbide’ s motion to dismiss , and Union Carbide filed an interlocutory appea l. T E X
. C I V
. P R A C
. & R E M
. C O D E § 51.014(a) (11). The court of appea ls, sitti ng en banc , held that Chapter 90 was unconstitutionally
retroa ctive as applied to the Emmites. 386 S.W .3d 278, 302. I ag ree with the court of appea ls a nd would hold that Chapter 90 is unconstitutional as applied.

3II. Retr oactivity

“[T] he ‘principle that the leg al eff ect of conduct should ordinarily be assessed under the law that exis ted when the conduct took place has timeless and universal appea l.’” Landgraf v. USI Film Prods. , 511 U.S. 244, 265 (1994) (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno , 494 U.S. 827, 855 (1990) (Scalia, J ., concur ring )). This “has long been a solid foundation of Americ an law.” Kaiser Aluminum & Chem. Corp. , 494 U.S. at 85 5 (S ca l ia, J ., concur ring ). I ndeed, the Texas Constit ution states plainly that “[n] o bill of attainder , ex post fac to law, retroa ctive law, or any law impairing the obliga tion of contra cts, shall be made.” T E X
. C O N S T
. art. I , § 16. Howeve r, “[w]hi le statutory retroa ctivity

has long been disfavore d, deciding when a statute ope rate s ‘re troac tively ’ is
not alway s a s i m p l e o r mecha nical task.” Landgraf

, 511 U.S. at 268. Rather, the question is a complex one, and “the constitutional prohibition ag ainst retroa ctive laws d o es n o t insulate ever y vested rig ht from impairment, nor does it g ive way to ever y rea sonable exercise of the L eg islature’s police power .” Robinson , 335 S.W .3d at 145. To provide g uidance in deter mining when a statute is unconst itutionally retroa ctive, we develope d a three -fa ctor test in Robinson , under which we

co n s i d er “the nature and streng th of the public interest serve d by the statute as evidenc ed by th e L eg islature’s fac tual finding s; the nature of the prior rig ht impaired by the statute; and the extent of the impairment.” Id. I take e ach of these fa ctors in turn. A. The P ubl ic Intere st “The perc eived public advanta g e of a retroa ctive law is not simply to be balanc ed ag ainst its rela tively small impact on private interests, or the prohibition wo u l d b e deprive d of most of its forc e.” Id. at 145–46. I nstead, “[t] here must be a compelling public interest to overc ome the heavy
4presumption ag ainst retroa ctive laws.” Id. at 1 4 6

. I n contra st to the law at issue in Robinson ,

Chapter 90 was enac ted for a leg itimate public purpose. The L eg islature has stated that it desig ned Chapter 90 to protect the rig ht of people w ith asbestos-re lated disea ses “to pursue their claims for
compensa tion in a fair and eff icient manner throug h the Texas court sy stem, while at the same time
preve nting scar ce judicial and litigant resour ces from being misdirected by the claims of individuals who have been exposed

. . . but have no functional or phy sical impairment.” Act of May 17, 2005, 79th L eg ., R.S., ch. 97, § 1( n), 2005 Tex. G en. L aws 169, 170. The Court c orre ctly notes that this public interest is an important one. H oweve r, that cha rac terization does not end our inquiry

. T h e Court fails to acknow ledg e that the L eg islature’s aim is entirely thwarte d by t h e
retroa ctive app l i ca t i on of Chapter 90 to the Emmites’ case . This is not an instance in which a plainti ff wh o h ad “no functional or phy sical impairment” soug ht to misdirect valuable judicial

resour ces. Id. I nstead, this cas e p re s en t s the opposite scena rio. Dr. Prince conclude d that “the clinical history and other diag nostic testing, coupled wi t h m eticulous postmortem analy sis of pulmonary tissue” demonstrated that J o s ep h suffe red from “sig nificant, advanc ed pulmonary asbestosis.” The pretria l MDL court ag ree d, finding that “[h] ad J oseph Emmite been phy sically and mentally capa

ble of p er forming a pulmonary function test, the results would have demonstrated pulmonary impairment g rea ter than require d under Texas Civil Prac t i ce an d Remedies Code § 90.003.” I n light of the evidenc e the Emmites adduced, I fail to see how

apply ing Cha

pter 90 to their cla ims serves the public inter est the L eg islature soug ht to vindicate. The Court maintains that, throug h Chapter 90, the L eg islature adopted “an o b je c ti v e method”
to distinguish betwee n those whose asbestos exposure resulted in functional impairment and those

5whose e x posure did not so result. Ante at ___. But the C ourt forg ets that the pul monary function testing the statute mandates is n o t an end in itself. Ag ain, the stated purpose of Chapter 90 is to

ensure that individuals with “no functional or phy sical impairment” do not misdirect scant judicial

resour ces. The Emmites demonstrated by cre dible evide nce that J oseph was not one of those individuals. We do not consider retroa ctivity in a vacuum. I n s t ea d , we consider the application of a particula r l aw t o t he fac ts of a particula r case , and then deter

mine whether the law, as applied, is unconstitutional. See Robinson , 335 S.W .3d at 147. We oug ht to assess public interest with this in mind. On the fac ts prese nted here , beca use J oseph does not fall into the cate g ory of persons whom the L eg islature int ended to preve nt from bringingsuit, the public interest the statute was int ended to further is not at all served by

the applica tion of Chapter 90 to the Emmites’ cla ims. B. Th e Nat ure of the Right I n Robinson , we also considere d the nature of the plaintiff’s rig ht to rec over t h at t h e challeng ed law impedes or exti ng uishes. 335 S.W .3d at 14 8

. We rea soned that “cla ims like the Robinsons’ [i nvolving injury from asbe stos ex posure] have be come a mature tort, and rec overy is

more predic table, espec ially when the injury is mesothelioma, a uniquely asbestos-r elated disease.” Id. We also observe d that “the Robinsons’ claims had a substantial basis in fac t

. ” Id. The same conclusions can be drawn he re. L ike t he R obinsons’ claims, the Em mites’ claims have become a
mature tort. Borg-W

arner Corp. v. Flores , 232 S.W .3d 765, 765 (Tex. 2007) (“N ear ly ten y ear s ag o,

we observe d that asbestos litigation had rea ched maturity .”). L i k e m es o t helioma, asbestosis is a uniquely asbestos-r elated disease, for which rec overy is g ener ally predic table. See id. at 766. And,
6fi nally , like the R obinsons’ claims, the Em mites’ claims have a s ubstantial basis in fac t, ref l ec t ed in the favor able fac tual finding s made by the MDL pretria l court. There can be littl e doubt, then, that the Emmites’ rig ht to recove r is a substantial one, a nd should not be easily

disturbed. C. The Extent of the Im pairm ent But the principal question in this case is not whether the rig ht is a substantial one, but rathe r whether the applicati o n o f C h apter 90 impairs the Emmites’ ability to exercise that rig ht to an unconstitutional deg ree . I n today ’s opi nion, the C ourt holds that the E m m i t es ’ rights wer e not so impaired as to of

fend the Texas Consti tution for two rea sons. First, the Court ar g ues that beca use Chapter 90 was signe d into law befor e J oseph died, the case at bar is distinguishable from Robinson , in which the applicable statute was signed into law after the R obinsons’ cause of action acc ru ed

. 335 S.W .3d at 129–30. But this arg ument dissolves the distinction betwee n the date upon which a
statute is signe d into law and the date upon which a statute bec o m es ef fe ct ive. Contrary to the Court’s asser

tion, at the time J oseph died and the Emmites’ cause of action acc rued, Texas law did
not require a plaintiff to produce pulmonary function testing–th i s ch an g e occur red after the Emmites’ cause of action acc rued, just as it did in Ro b i n s o n . Nor is it of any moment that the Emmites had notice that the law would ch an g e, as J oseph would have been unable to eng ag e in pulmonary function testing in any event; the statute was signe d into law one month befor e his death, and the MDL pretria l judge stated in his finding s of fac t that “[ s ] hortly befor e his death [J oseph] suffe red from phy sical and mental limit ations, which made it impossibl e for him to take a pulmonary fu n ct i o n t es t

. ” The case at bar cannot be distinguished from Robinson , then, on the basis that Chapter 90 wa s signe d into law befor e Joseph died.

7Second, the Court notes that, beca use the Emmites had an opportunity to bring their claims befor e C hapter 90 went int o eff ect, their claims wer e not completely exti ng uished. W h i l e I ag ree that the Emmites had a br ief window dur ing w hich they could have filed sui t without the nee d for a pulm onary function t est, I do not ag ree that two-and- a-ha lf months is a sufficient period of time
to tip the constitutional balanc e. Ordinar ily , the statute of limit ations for a wrong ful death action is
two y ear s. T E X
. C I V
. P R A C
. & R E M
. C O D E § 16.003(b). Howeve r, the enac tment of Chapter 90 had the ef fec t of shorteningthat statute of limitations t o two-and- a-ha lf months in the Emmi tes’ ca se. One purpose of the prohibition on retroa ctive laws is to ensure that the settle d ex p ec t at i o ns of litigants are not upset. Landgraf , 511 U.S. at 265–66. I n my view, it is not rea sonable to expect the
E m mites, particula

rly when they wer e mourning t he los s of a family member, to have known that they would be require d to investiga te and file a lawsuit in only two-and- a-ha lf months’ time. I n this instance, I cannot conclude that “the heavy presumpt i o n against retroa ctive laws” has been

overc ome. Robinson , 335 S.W .3d at 126. Finally , I fee l compelled to call the L eg islature’s attention to a problem this case pre sents: though the stated purpose of Chapter 90 is to allow people with asbestos-r elated injuries “to pursue their claims for compensa tion in a fair and eff icient manner throug h the Texas court sy stem , ” the mecha nism the L eg islature has chosen to eff ect that g oal, pulmonary function testing, seems overly broad. The testimony in toda y ’s case indicates that pulmonary function testing may be impossibl e for p l ai n t i ff

s who are very ill. A plaintiff should not be preve nted from rec overing for an injury

cause d b y ex p osure to asbestos beca use that exposure has made him too sick to complete a pulmonary

function test. I

respe ctfully

urg e the L eg islature to re consider the wisdom of requiring

8pulmonary function testing even in Chapter 90’s “saf ety valve” provision, at least in those case s in which a doctor has conclude d that such testing would be prohibitive. T E X
. C I V
. P R A C
. & R E M
. C O D E § 90.010(f) (1), (

j). III. Conclusi on I n the case at bar, I conclude that the Emmites’ wrong ful death claims wer e substantial and had acc rued befor e Texas law require d asbestos plaintiffs to produce a pulmonary function test. The Emmites’ claims wer e also signific an t ly impaired beca use they had only two-and- a-ha lf months’ time during which they could have broug ht those claims befor e the statute came into eff ect. Finally , the public interest further ed by the statute would not be serve d by its a pplication to J oseph’s case . Acc ording ly , I would h o l d that the application of Chapter 90 to the Emmites’ claims is unconstitutionally retroa ctive. T E X
. C O N S T
. art. I , § 16. I would aff irm the j udg ment of t he court of appe als.

_________________________________ Debr a H. L ehrma

nn J ustice

OP INION DELIVERED: J uly 3, 2014

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