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A Nov. 30 ruling by the Texas Supreme Court opens the door for some victims of illnesses caused by on-the-job exposure to asbestos to sue more than once over their injuries. But the ruling also could make it easier in some cases to defend companies that have been sued by victims of asbestos exposure. In Pustejovsky v. Rapid-American Corp., the court ruled 8-0 that the family of a man who received a settlement from an asbestos supplier in the 1980s after being diagnosed with a nonmalignant disease caused by inhaling asbestos fibers can pursue claims against other suppliers because he later developed an asbestos-related cancer. “This is a tremendous victory for all workers who have been stricken by asbestos disease but have no recourse in the courts for the separate injuries caused by their exposure,” says Brent Rosenthal, who represents the family of the late Henry J. Pustejovsky Jr. Rosenthal, a partner in Baron & Budd in Dallas, says individuals who develop asbestosis, which causes scarring of lung tissue, may receive small settlements for that condition. Such settlements by no means cover the costs if they later develop a catastrophic illness, such as cancer, as a result of their exposure to asbestos, he says. “The good news is the courthouse doors will be open so they can try to collect damages for their later, more catastrophic injury,” Rosenthal says. Court records indicate that Pustejovsky was exposed to asbestos from 1954 to 1979 while employed as a metal pourer at the Alcoa Aluminum plant in Rockdale, Texas. After being diagnosed in 1982 with asbestosis, Pustejovsky sued the Johns-Manville Corp., an asbestos supplier, and settled out of court for about $25,000, the records note. According to the records, Pustejovsky was diagnosed in 1994 with malignant pleural mesothelioma, a cancerous tumor of the lung, and joined three other plaintiffs in a suit against Rapid-American, Owens-Corning Fiberglass Corp., Pittsburgh Corning Corp. and other asbestos suppliers. Rosenthal says Pustejovsky died in August 1995 at the age of 60, but his family continued the legal battle. The corporations asserted that Pustejovsky’s claim was barred by the two-year statute of limitations, which began running when he was diagnosed with asbestosis. The 131st District Court in San Antonio granted the companies’ motions for summary judgment and severed the claim from the suit. The case was appealed to San Antonio’s 4th Court of Appeals, which held that Pustejovsky’s claim was barred by the statute of limitations and the single action rule, which prevents an injured person from collecting damages more than once for an injury. The appeals court ruled that the asbestosis and the cancer stemmed from the same exposure to asbestos. Rosenthal says Pustejovsky could not show in 1982 that there was a probability that he would get mesothelioma. “The plaintiff was really in a Catch-22 situation,” he says. After losing in the appeals court, the family turned to the Texas Supreme Court, which frequently rules in favor of business interests in personal-injury cases. This time the court sided with the injured party in an opinion written by Justice Al Gonzales. “We hold that a person who sues on or settles a claim for a nonmalignant asbestos-related disease with one defendant is not precluded from a subsequent action against another defendant for a distinct malignant asbestos-related condition,” Gonzales wrote. The single action rule, like statutes of limitations, is intended to discourage “stale and fraudulent claims,” but the undisputed medical evidence presented in Pustejovsky’s case shows distinctly different diseases can develop over a long period of time after an individual is exposed to asbestos, Gonzales said in the opinion. “No amount of due diligence would have allowed Pustejovsky to recover [damages] for mesothelioma when he brought his suit for asbestosis,” the opinion said. FINALITY VS. FAIRNESS Bill Powers, dean of the University of Texas School of Law, says the ruling is significant. “There was certainly support for this in the jurisdiction of other states,” says Powers, who specializes in products liability law. Powers says the problem is how to balance the need for finality in these types of cases with the need to provide a fair opportunity for seriously injured people to bring such claims. Lawyers whose firms have represented defendant companies in asbestos cases say the court’s opinion can be beneficial to the defense. Kevin Risley, a shareholder in Sheinfeld, Maley & Kay in Houston, says the justices “carved out a fairly narrow exception” in the law for individuals who suffer more than one injury over a number of years as a result of exposure to asbestos. By creating this special rule, Risley says, the court effectively has blocked people from recovering damages by claiming there is a reasonable probability they will develop asbestos-related cancer in the future. That prevents people from being overcompensated if they never get the cancer for which they collect damages, he says. “By making this exception, they’ve taken one inequity out of the system,” says Risley, who previously represented Owens-Corning in the case. “I see it as a bookend,” Marie Yeates, head of the appellate section at Vinson & Elkins in Houston, says of the opinion. While a plaintiff cannot recover damages for the fear of getting cancer, he can be compensated if he develops the disease down the road, Yeates says. Yeates says asbestos cases frequently combine people who have not been seriously injured by their exposure to asbestos with people who are gravely ill. “This case ought to give us a more powerful argument against those combinations,” she says. The ruling could pose a problem for some defendants, however. Although Pustejovsky sought claims against different companies for the maladies he suffered, the way the opinion is written opens the possibility that a plaintiff could sue the same defendant more than once, Yeates says. The court hasn’t addressed that issue, she adds. Rosenthal says the opinion allows Pustejovsky’s family to move forward with its claim for damages against Rapid-American in a San Antonio courtroom. The causes against Owens-Corning and Pittsburgh Corning are abated because both have filed for bankruptcy. Susan Hull of Dallas, whose firm, Jenkens & Gilchrist represents Rapid-American, did not return three phone calls seeking comment. Justice Deborah Hankinson did not participate in the case. Hankinson formerly was a lawyer with Thompson & Knight, which represents Pittsburgh Corning.

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