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Two former justices on the Texas Supreme Court will square off against each other Feb. 7 in arguments before the high court. The case they’re sparring over raises constitutional challenges to a provision in H.B. 4, the state Legislature’s major tort reform bill of 2003. Former Chief Justice Tom Phillips says he and former Justice Deborah Hankinson, his opponent in Robinson v. Crown Cork & Seal Inc., are good friends and have never had an argument against each other before the Supreme Court. “Our previous arguments were confined to the Supreme Court conference room,” says Phillips, now a partner in Baker Botts in Austin and lead counsel for Crown Cork. “We argued around the conference table, but we also agreed a lot,” says Hankinson, Barbara Robinson’s lead attorney and owner of the Law Offices of Deborah Hankinson in Dallas. “We disagree here,” Hankinson adds. Phillips served as chief justice on the state Supreme Court from 1988 until September 2004. Hankinson served as an associate justice on the court from 1997 through 2002. The controversy in Robinson focuses on the state’s innocent-successor statute, Texas Civil Practice & Remedies Code ��149.001-149.006. The statute provides an affirmative defense to liabilities a company incurred as a result of merging or consolidating with another company that manufactured products containing asbestos. Under the statute, a successor corporation may limit its asbestos liability to the total gross asset value of the predecessor company at the time of the merger. To benefit from the statute, the successor corporation must have discontinued manufacturing, distributing or installing asbestos-containing products. In addition, the merger giving rise to the successor’s liability must have occurred before May 13, 1968, the date when the American Conference of Governmental Industrial Hygienists first recommended a significant reduction in its previous workplace-exposure limits for asbestos. Robinson argues in her brief to the Supreme Court that the statute, as applied to her case, retroactively deprived her of vested property rights in violation of Article 1, �16 of the Texas Constitution. That constitutional provision in the state Bill of Rights provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligations of contracts, shall be made.” Robinson further contends in the brief that “the statute is so narrowly drawn as to plainly encompass a class of one,” Crown Cork. She argues the provision violates Article 3, �56 of the Texas Constitution, which prohibits legislation granting special privileges to a particular class for the advancement of personal rather than public interests. In a motion filed Jan. 31 with the Supreme Court, the Texas Office of the Attorney General asked that the court allow Ted Cruz, the state’s solicitor general, to argue in Robinson in defense of the innocent-successor statute. Asbestos Exposure According to Robinson’s brief, she and her husband John sued Crown Cork and other companies in September 2002 after discovering he had developed mesothelioma as a result of his exposure to products containing asbestos during the two decades he served aboard vessels in the U.S. Navy. Robinson alleged in her brief that her husband remembered working with large amounts of asbestos-containing insulation products manufactured by Mundet Cork Corp., Crown Cork’s predecessor. As alleged in Robinson’s brief, she and her husband moved for partial summary judgment to establish Crown Cork’s liability as corporate successor to Mundet. In its response to the Robinsons’ motion, Crown Cork did not contest its liability for actual damages as Mundet’s successor but argued that it was not liable for punitive damages, Robinson alleges. As noted in Crown Cork’s brief, it was the successor to Mundet’s liability for compensatory damages under the law in effect when the Robinsons sued. Crown Cork purchased a majority of Mundet’s stock in 1963, and the two companies merged in 1966 after Mundet sold its thermal insulation division to another company. Crown Cork alleged in the brief that it paid about $7 million for the Mundet assets it purchased between 1963 and 1966 but has paid more than $413 million to settle asbestos claims. The innocent-successor provision in H.B. 4 took effect immediately after the Legislature passed the bill on June 2, 2003. Armed with a new defense, Crown Cork moved for summary judgment in the Robinsons’ suit, and the 55th District Court in Houston granted the motion, severing the Robinsons’ claims against Crown Cork from the suit. The Robinsons appealed to the 14th Court of Appeals in Houston. John Robinson died on Nov. 16, 2003, while the appeal was pending at that court. On May 4, 2006, the 14th Court affirmed the trial court’s judgment in a 2-1 decision. Justice Wanda McKee Fowler wrote for the majority that there is “no clear answer” to the question of whether Robinson’s allegedly vested right to her accrued tort claims was altered retroactively in an unconstitutional way. Rather than using a vested-rights analysis to assess the constitutionality of the innocent-successor statute, the majority looked to the Legislature’s police power to find authority for the statute’s enactment and its validation, in spite of its retroactivity, McKee wrote. Joined by Chief Justice Adele Hedges, McKee concluded that the innocent-successor statute “is a reasonable exercise of the Legislature’s police power.” [ See the court's 2006 opinion .] The statute benefits the state’s entire economy, which, according to the opinion, is “an appropriate purpose for which to exercise the police power.” Jeffery Mundy, another of Robinson’s attorneys, says the Legislature’s police power gives it authority to deal with public health, welfare and safety issues. “If Crown Cork prevails in this, the essence of it means the Legislature is unrestrained to pass retroactive laws,” says Mundy, a partner in Austin’s Mundy & Singley. Justice Kem Thompson Frost of the 14th Court wrote in her dissenting opinion in Robinson: “The people of the State of Texas, in emphatic and compelling language set forth in section 29 of the Texas Bill of Rights, have expressly withheld from the Legislature the authority to enact retroactive laws in violation of section 16 of the Texas Bill of Rights.” “The dissent in this case is right on,” says James C. “Jim” Harrington, author of “The Texas Bill of Rights: A Commentary and Litigation Manual.” Harrington, director of the Texas Civil Rights Project in Austin, says Robinson’s case “goes to the heart and soul of what is the purpose of the Texas Constitution.” During the Populist Movement of the 1870s, the people in the southern and western part of the country put restrictions on government’s power, Harrington says, because they were tired of abuses by government. The people’s desire to restrict the Legislature’s power is one reason the Texas Constitution is so long, he adds. According to the Texas Legislative Reference Library’s Web site, the Texas Constitution is “one of the longest in the nation and is still growing.” Texas voters have amended the constitution 456 times since its adoption in 1876. Vested Right? Daniel B. Rodriguez, a University of Texas School of Law professor and state constitutional law scholar, says the 14th Court’s dissenting opinion in Robinson is correct about the sequence of the analysis a court should conduct in this case. As Rodriquez points out, the dissent determined that the court first should consider to what extent Robinson has a vested right before considering the Legislature’s power to extinguish that right. Rodriguez, who is not involved in Robinson, says the Legislature’s police powers, while broad, are limited by the Texas Constitution. “The restriction on the Legislature’s right to enact retroactive law is specific in the Texas Constitution,” he says. Article 1, �16 of the state constitution prohibits the enactment of retroactive laws, and Article 1, �29 provides that provisions of the Texas Bill of Rights are “excepted out of the general powers of government; to remain inviolate.” Robinson argues in her brief to the Supreme Court that Article 1, �16 of the Texas Constitution “was designed to protect individuals from precisely the kind of legislative overreaching caused here by the Legislature’s retroactively extinguishing the Robinsons’ legitimate and settled expectation of having their accrued claims heard.” Phillips says Crown Cork’s position is that Robinson has no vested right. “Vested rights come about on a claim against the person who is the wrongdoer,” he says. Crown Cork alleged in its brief to the Supreme Court that the innocent-successor statute affects only Robinson’s attempt to collect against a faultless third party for alleged torts committed by another. The Product Liability Advisory Council (PLAC) contended in an amicus curiae brief it submitted to the Supreme Court in Robinson that the Legislature created the successor-liability statutes at issue in the case. “If the Legislature creates a right, it can change that right,” says Vincent Walkowiak, a senior partner in Fulbright & Jaworski in Dallas who is one of the attorneys representing PLAC in the amicus brief. Hankinson says Crown Cork must overcome 100 years of Texas law to show that an accrued cause of action is not a right. Among other cases, Hankinson cites the state Supreme Court’s majority opinion in City of Tyler v. Likes (1997) in which Phillips wrote that the Legislature can affect a plaintiff’s remedy without violating the Texas Constitution’s retroactivity provision “if it affords a reasonable time or a fair opportunity to preserve a claimant’s rights under the former law.” Mundy says Crown Cork won passage of similar laws limiting the liability of successor corporations for asbestos-related claims in a number of other states. The only state Supreme Court that has looked at the law struck it down, he says. In a 4-3 decision in 2004′s Ieropoli v. AC&S Corp., et al., the Pennsylvania Supreme Court held that the innocent-successor statute enacted in that state in 2001 � 15 Pennsylvania Consolidated Statutes �129.1 � is unconstitutional under Article 1, �11 of the Pennsylvania Constitution. “Under Article 1, Section 11 . . . a statute may not extinguish a cause of action that has accrued,” then-Chief Justice Ralph J. Cappy wrote for the majority in Ieropoli. Crown Cork is incorporated in Pennsylvania, where the company has its headquarters. Phillips says Robinson presents challenges under the Texas Constitution, while the Ieropoli decision is based on the open-courts provision in the Pennsylvania Constitution. “It wouldn’t be controlling,” he says of Ieropoli.

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