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What a difference two years can make. An effort to pass legislation limiting asbestos exposure claims stumbled in the Texas Legislature’s 2003 session after a senator, whom supporters counted on to vote for the bill, withdrew his support. Although Texas Gov. Rick Perry strongly backed S.B. 496, the bill died late in the session after its sponsor, Texas state Sen. Kyle Janek, R-Houston, fell one vote shy of the 21 needed to suspend the Senate’s rules so that senators could vote on the bill. Fast-forward to the 2005 session. Janek’s S.B. 15 — a bill that would establish new requirements for claimants who bring personal injury and wrongful death suits for exposure to asbestos or silica — cleared the Senate on April 27 with a unanimous vote and flew through the House Civil Practices Committee on May 3 without being amended. So what made the difference this year? “I think the Senate really understood that the House was going to pass out a bill,” says state Rep. Joe Nixon, a Houston Republican who chairs the Civil Practices Committee. Nixon, a partner in Beirne, Maynard & Parsons, had filed H.B. 8, a bill that opponents feared would cause the dismissal of numerous asbestos and silica suits. The Civil Practices Committee heard testimony on Nixon’s bill on March 16 but left it pending while the Senate worked on its bill. In an unusual move during the Senate debate, Janek pledged to his colleagues that he would bring essentially the same bill back to the Senate for approval if the House made changes that would require the bill to go to a conference committee. If he can’t do that, Janek says, there will be no bill. “It’s a little bit of guts ball,” Janek says of his pledge. However, Janek says he’s certain the House will pass a good bill and that a conference committee made up of House and Senate members will agree on the measure. State Rep. Craig Eiland, a Democrat and Galveston solo who represents plaintiffs in asbestos-related cases, says he doesn’t expect House Democrats to try to make many changes to the bill. “We can count, and we know what we can accomplish and can’t accomplish,” Eiland says. According to House Speaker Tom Craddick’s office, Republicans outnumber Democrats in the House by 87 to 63. S.B. 15 is the product of intensive negotiations in which lawmakers worked with proponents and opponents of the bill to draft many of its provisions. Bryan Blevins, the Texas Trial Lawyers Association’s liaison in those negotiations, says TTLA didn’t get everything it wanted. But Blevins says he believes S.B. 15, as passed by the Senate, is an improvement over the original version of the bill. “There are certain political realities in Austin. Against those realities, I believe [TTLA] was able to make a bad bill significantly better,” says Blevins, a partner in Beaumont’s Provost & Umphrey. Blevins says S.B. 15, as filed, could have caused the dismissal of pending cases in which claimants did not meet higher medical criteria that the bill establishes for showing they are ill. “We were able to protect present cases from being dismissed,” he says. EXTRAORDINARY CIRCUMSTANCES S.B. 15 amends the Civil Practice & Remedies Code, adding a Chapter 90 to address asbestos and silica claims. Under 90.003 and 90.004, anyone asserting such a claim must provide the defendants with a report by a physician that verifies the person is ill as a result of exposure to asbestos or silica. As required by the bill, the physician must have an active license and be board certified in pulmonary medicine, occupational medicine, internal medicine, oncology or pathology. The bill requires the report to verify the extent of a claimant’s impairment through pulmonary function testing and X-rays. However, negotiations in the Senate led to a concession for claimants already in the civil justice system. Janek says the bill sets a lower hurdle with regard to the X-ray readings on exposure for persons who filed their suits before May 1 of this year. Janek says the two-year statute of limitations for asbestos and silica claims begins running when a claimant files a report that meets the medical criteria. Making that change in the law would end the necessity to file a suit if a person has been exposed to asbestos or silica but has not yet become ill, he says. “If they don’t get sick for five years, 10 years or 15 years, that statute is still there for them,” Janek says. The bill also applies multidistrict litigation (MDL) rules to cases in which claimants seek damages for asbestos-related or silica-related injuries. While an MDL court will decide pretrial matters in most cases, negotiators agreed that some cases need not go through that process. Under 90.010, MDL rules don’t apply to cases in which a trial is set to begin within 90 days after the bill’s Sept. 1, 2005, effective date. MDL rules don’t apply to cases filed before May 1, 2005, if the claimant files the required medical report within 90 days after the bill takes effect. Also, MDL rules don’t apply to a case filed prior to Sept. 1, 2003, if the claimant is diagnosed with a cancer stemming from exposure to asbestos or silica. Former state Sen. Bill Ratliff, a lobbyist who represents Texas Civil Justice League, says a last-minute change made during the negotiations established a “safety valve” for exposed persons who don’t meet the medical criteria but can show extraordinary circumstances. As an example, Ratliff says a person who has had two lung transplants technically would pass a pulmonary function test, but is still impaired. Under 90.010, the MDL court can allow a case to go to trial if the court finds that due to “unique or extraordinary physical or medical characteristics” the medical criteria in S.B. 15 don’t adequately assess the claimant’s impairment. The negotiations over S.B. 15 didn’t make all sides happy. Ratliff says some in the business community think negotiators gave away too much, and some plaintiffs lawyers think the bill is a bad bill. But, he adds, “I’d be surprised if either side tries to make substantive changes.”

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