Asbestos chrysotile fibers that cause lung disease, COPD, lung cancer, mesothelioma. Photo: shutterstock

Houston’s First Court of Appeals has rejected a wrongful death claim filed by the widow of a longtime trial court judge who was allegedly exposed to asbestos during remediation at the Jefferson County Courthouse in the mid-1990s.

The case, Jefferson County v. Farris, concerns the death of James Farris, who served as judge of the 317th District Court from 1977 until his retirement in 1996. Farris’ widow, Ellarene Farris, provided written notice to the county in 2005 that she intended to sue, less than six months after her husband first showed symptoms of mesothelioma, a lung disease associated with asbestos exposure from which he ultimately died.

Judge James Farris.

Jefferson County opposed Farris’ efforts to recover for the death of her husband, arguing for the first time on appeal that her claim should be dismissed because governmental immunity had not been waived in the case. Specifically, the county alleged that it did not receive notice within six months of Judge Farris’ last exposure to asbestos in December 1996, as required by the Texas Tort Claims Act.

In a split decision, the court agreed with Jefferson County’s argument.

“Mrs. Farris does not dispute that the county did not receive notice before July 1997. Instead, she contends that she had no claim, and thus no notice was required, until after Judge Farris’ death on November 5, 2004. She thus contends that her written notice delivered on April 4, 2005 satisfied the statute,” Justice Michael Massengale wrote in the majority opinion.

“We agree with Jefferson County. The Tort Claims Act specifies that the event triggering the notice requirement is ‘the incident giving rise to the claim.’” Massengale wrote. “The wrongful-death claim only could be pursued if Judge Farris himself ‘would have been entitled to bring an action for the injury’ if he had lived.”

In a dissenting opinion, Justice Terry Jennings wrote that the majority had misconstrued Texas Supreme Court precedent in dismissing Ellarene Farris’ case for failing to provide “timely” notice in 1997 of a “nonexistent” claim.

“Stunningly, the majority holds that the claims asserted by Ellarene are barred by governmental immunity because she did not provide notice of them within six months of Judge Farris’s final exposure to asbestos in December 1996—before the existence of any injury or damage,” Jennings wrote.

“Based on the majority’s reasoning, Judge Farris was required to provide Jefferson County with notice of a premature and speculative claim within six months of December 1996,” Jennings wrote. “But at that time, Judge Farris did not yet have a claim against Jefferson County for which he could provide notice because it was nearly eight years before he exhibited any symptom or was diagnosed with mesothelioma, i.e., before any damage or injury to him had come into existence.”

Kyle Beale, an associate in Houston’s Bailey Peavy Bailey Cowan Heckaman who represents Farris, said his client will appeal the decision.

“The ruling imposes a notice burden on those with latent injuries like Judge Farris that is legally and factually impossible to meet. It closes the courthouse doors to those with latent diseases that would never manifest themselves within the six-month notice period upheld by the court of appeals,” Beale said.

Quentin Price, an assistant Jefferson County district attorney who represented Jefferson County on appeal, declined to comment on the decision.

Beale believes the decision essentially restricts all Texas judges from filing workplace asbestos exposure lawsuits.

“Whatever exposure they have that doesn’t cause cancer or some kind of injury for six months, they can’t bring a claim,” Beale said. “The reality is that Texas judges have denied themselves the ability to access courts.”