                 IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                            NO . 12-0617
                                          444444444444



                        UNION CARBIDE CORPORATION, PETITIONER,
                                                  v.


         DAISY E. SYNATZSKE AND GRACE ANNETTE WEBB, INDIVIDUALLY
        AND AS REPRESENTATIVES AND CO -EXECUTRIXES OF THE ESTATE OF
          JOSEPH EMMITE, SR., JOSEPH EMMITE, JR., DOROTHY A. DAY,
           VERA J. GIALMALVA AND JAMES R. EMMITE, RESPONDENTS

            4444444444444444444444444444444444444444444444444444
                               ON PETITION FOR REVIEW FROM THE
                        COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
            4444444444444444444444444444444444444444444444444444


        JUSTICE LEHRMANN , dissenting.


        I join JUSTICE BOYD in concluding that Chapter 90’s safety valve provision does not require

a plaintiff to produce a pulmonary function test showing impairment. However, because the Court

arrives at the opposite holding, I write separately to consider whether the application of Chapter 90

as construed and applied here violates the Texas Constitution’s prohibition on retroactive laws. TEX .

CONST . art. I, § 16.

        “A retroactive statute is one which gives to preenactment conduct a different legal effect from

that which it would have had without the passage of the statute.” Charles B. Hochman, The Supreme

Court and the Constitutionality of Retroactive Legislation, 73 HARV . L. REV . 692, 692 (1960). In
this case, the Court holds that Chapter 90 bars the claim of a plaintiff who failed to adhere to its

requirements. Because the statute imposes a penalty for preenactment conduct, which the evidence

shows the plaintiff was incapable of avoiding, I ultimately conclude that the statute fails the three-

factor test we set forth in Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (Tex. 2010). For

that reason, I respectfully dissent.

                                           I. Background

        On May 19, 2005, the governor signed into law Chapter 90 of the Texas Civil Practice and

Remedies Code. Act of May 17, 2005, 79th Leg., R.S., ch. 97, § 2, 2005 Tex. Gen. Laws 169,

171–82 (codified at TEX . CIV . PRAC. & REM . CODE §§ 90.001–.012). In broad terms, Chapter 90

requires a claimant asserting an asbestos-related injury to serve on the defendant a physician’s report

meeting certain requirements. Id. §§ 90.003, .006. Among many other prerequisites, the report must

verify that the exposed person experienced a certain level of asbestos-related pulmonary impairment.

Id. § 90.003(a)(2)(D). The impairment must be shown by a particular method, pulmonary function

testing. Id. However, in “exceptional and limited circumstances,” Chapter 90 allows a claimant to

demonstrate asbestos-related impairment when he cannot satisfy all of section 90.003’s

requirements. Id. § 90.010(f)(1), (j). Even in this instance, though, the statute does not relieve the

claimant of his obligation to demonstrate that the exposed person underwent pulmonary function

testing. Id. § 90.010(f)(1)(B). On September 1, 2005, three-and-a-half months after Chapter 90 was

signed into law, it became effective.

        For decades, Joseph Emmite worked as an insulator at Union Carbide. By the time he was

eighty-five, he suffered from a number of maladies, including osteoarthritis and dementia. When

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Joseph was hospitalized in May 2005, Dr. Joseph Prince conducted a physical examination, during

which he discovered that Joseph had “diminished breath sounds at the right lung base.” A chest CT

revealed “extensive pleural and diaphragmatic calcifications, right pleural effusion with compressive

subsegmental atelectasis, and bilateral interstitial fibrotic pattern.” After further testing, Dr. Prince

diagnosed Joseph with pulmonary asbestosis. Dr. Prince later stated that, due to Joseph’s failing

health and inability to support his own weight, pulmonary function testing would have been

“difficult or even prohibitive” at the time of the diagnosis. Joseph died on June 15, 2005, one month

after Chapter 90 was signed into law, and two-and-a-half months before the statute became effective.

        Joseph’s family brought suit two years later, on June 7, 2007. Union Carbide filed a motion

to dismiss based primarily on Joseph’s lack of pulmonary function testing. After multiple hearings,

the MDL pretrial court made numerous findings of fact, including that “[s]hortly before his death

[Joseph] suffered from physical and mental limitations, which made it impossible for him to take

a pulmonary function test,” and that “[h]ad Joseph Emmite been physically and mentally capable of

performing a pulmonary function test, the results would have demonstrated pulmonary impairment

greater than required under [section] 90.003.” As a result, the MDL judge denied Union Carbide’s

motion to dismiss, and Union Carbide filed an interlocutory appeal. TEX . CIV . PRAC. & REM . CODE

§ 51.014(a)(11). The court of appeals, sitting en banc, held that Chapter 90 was unconstitutionally

retroactive as applied to the Emmites. 386 S.W.3d 278, 302. I agree with the court of appeals and

would hold that Chapter 90 is unconstitutional as applied.




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                                          II. Retroactivity

        “[T]he ‘principle that the legal effect of conduct should ordinarily be assessed under the law

that existed when the conduct took place has timeless and universal appeal.’” 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., concurring)). This “has long been a solid foundation of American law.”

Kaiser Aluminum & Chem. Corp., 494 U.S. at 855 (Scalia, J., concurring). Indeed, the Texas

Constitution states plainly that “[n]o bill of attainder, ex post facto law, retroactive law, or any law

impairing the obligation of contracts, shall be made.” TEX . CONST . art. I, § 16. However, “[w]hile

statutory retroactivity has long been disfavored, deciding when a statute operates ‘retroactively’ is

not always a simple or mechanical task.” Landgraf, 511 U.S. at 268. Rather, the question is a

complex one, and “the constitutional prohibition against retroactive laws does not insulate every

vested right from impairment, nor does it give way to every reasonable exercise of the Legislature’s

police power.” Robinson, 335 S.W.3d at 145. To provide guidance in determining when a statute

is unconstitutionally retroactive, we developed a three-factor test in Robinson, under which we

consider “the nature and strength of the public interest served by the statute as evidenced by the

Legislature’s factual findings; the nature of the prior right impaired by the statute; and the extent of

the impairment.” Id. I take each of these factors in turn.

                                       A. The Public Interest

        “The perceived public advantage of a retroactive law is not simply to be balanced against its

relatively small impact on private interests, or the prohibition would be deprived of most of its

force.” Id. at 145–46. Instead, “[t]here must be a compelling public interest to overcome the heavy

                                                   4
presumption against retroactive laws.” Id. at 146. In contrast to the law at issue in Robinson,

Chapter 90 was enacted for a legitimate public purpose. The Legislature has stated that it designed

Chapter 90 to protect the right of people with asbestos-related diseases “to pursue their claims for

compensation in a fair and efficient manner through the Texas court system, while at the same time

preventing scarce judicial and litigant resources from being misdirected by the claims of individuals

who have been exposed . . . but have no functional or physical impairment.” Act of May 17, 2005,

79th Leg., R.S., ch. 97, § 1(n), 2005 Tex. Gen. Laws 169, 170. The Court correctly notes that this

public interest is an important one. However, that characterization does not end our inquiry.

       The Court fails to acknowledge that the Legislature’s aim is entirely thwarted by the

retroactive application of Chapter 90 to the Emmites’ case. This is not an instance in which a

plaintiff who had “no functional or physical impairment” sought to misdirect valuable judicial

resources. Id. Instead, this case presents the opposite scenario. Dr. Prince concluded that “the

clinical history and other diagnostic testing, coupled with meticulous postmortem analysis of

pulmonary tissue” demonstrated that Joseph suffered from “significant, advanced pulmonary

asbestosis.” The pretrial MDL court agreed, finding that “[h]ad Joseph Emmite been physically and

mentally capable of performing a pulmonary function test, the results would have demonstrated

pulmonary impairment greater than required under Texas Civil Practice and Remedies Code

§ 90.003.” In light of the evidence the Emmites adduced, I fail to see how applying Chapter 90 to

their claims serves the public interest the Legislature sought to vindicate.

       The Court maintains that, through Chapter 90, the Legislature adopted “an objective method”

to distinguish between those whose asbestos exposure resulted in functional impairment and those

                                                  5
whose exposure did not so result. Ante at ___. But the Court forgets that the pulmonary function

testing the statute mandates is not an end in itself. Again, the stated purpose of Chapter 90 is to

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

resources. The Emmites demonstrated by credible evidence that Joseph was not one of those

individuals.

       We do not consider retroactivity in a vacuum. Instead, we consider the application of a

particular law to the facts of a particular case, and then determine whether the law, as applied, is

unconstitutional. See Robinson, 335 S.W.3d at 147. We ought to assess public interest with this in

mind. On the facts presented here, because Joseph does not fall into the category of persons whom

the Legislature intended to prevent from bringing suit, the public interest the statute was intended

to further is not at all served by the application of Chapter 90 to the Emmites’ claims.

                                   B. The Nature of the Right

       In Robinson, we also considered the nature of the plaintiff’s right to recover that the

challenged law impedes or extinguishes. 335 S.W.3d at 148. We reasoned that “claims like the

Robinsons’ [involving injury from asbestos exposure] have become a mature tort, and recovery is

more predictable, especially when the injury is mesothelioma, a uniquely asbestos-related disease.”

Id. We also observed that “the Robinsons’ claims had a substantial basis in fact.” Id. The same

conclusions can be drawn here. Like the Robinsons’ claims, the Emmites’ claims have become a

mature tort. Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 765 (Tex. 2007) (“Nearly ten years ago,

we observed that asbestos litigation had reached maturity.”). Like mesothelioma, asbestosis is a

uniquely asbestos-related disease, for which recovery is generally predictable. See id. at 766. And,

                                                 6
finally, like the Robinsons’ claims, the Emmites’ claims have a substantial basis in fact, reflected

in the favorable factual findings made by the MDL pretrial court. There can be little doubt, then, that

the Emmites’ right to recover is a substantial one, and should not be easily disturbed.

                                 C. The Extent of the Impairment

       But the principal question in this case is not whether the right is a substantial one, but rather

whether the application of Chapter 90 impairs the Emmites’ ability to exercise that right to an

unconstitutional degree. In today’s opinion, the Court holds that the Emmites’ rights were not so

impaired as to offend the Texas Constitution for two reasons. First, the Court argues that because

Chapter 90 was signed into law before Joseph died, the case at bar is distinguishable from Robinson,

in which the applicable statute was signed into law after the Robinsons’ cause of action accrued.

335 S.W.3d at 129–30. But this argument dissolves the distinction between the date upon which a

statute is signed into law and the date upon which a statute becomes effective. Contrary to the

Court’s assertion, at the time Joseph died and the Emmites’ cause of action accrued, Texas law did

not require a plaintiff to produce pulmonary function testing–this change occurred after the

Emmites’ cause of action accrued, just as it did in Robinson. Nor is it of any moment that the

Emmites had notice that the law would change, as Joseph would have been unable to engage in

pulmonary function testing in any event; the statute was signed into law one month before his death,

and the MDL pretrial judge stated in his findings of fact that “[s]hortly before his death [Joseph]

suffered from physical and mental limitations, which made it impossible for him to take a pulmonary

function test.” The case at bar cannot be distinguished from Robinson, then, on the basis that

Chapter 90 was signed into law before Joseph died.

                                                  7
        Second, the Court notes that, because the Emmites had an opportunity to bring their claims

before Chapter 90 went into effect, their claims were not completely extinguished. While I agree

that the Emmites had a brief window during which they could have filed suit without the need for

a pulmonary function test, I do not agree that two-and-a-half months is a sufficient period of time

to tip the constitutional balance. Ordinarily, the statute of limitations for a wrongful death action is

two years. TEX . CIV . PRAC. & REM . CODE § 16.003(b). However, the enactment of Chapter 90 had

the effect of shortening that statute of limitations to two-and-a-half months in the Emmites’ case.

One purpose of the prohibition on retroactive laws is to ensure that the settled expectations of

litigants are not upset. Landgraf, 511 U.S. at 265–66. In my view, it is not reasonable to expect the

Emmites, particularly when they were mourning the loss of a family member, to have known that

they would be required to investigate and file a lawsuit in only two-and-a-half months’ time. In this

instance, I cannot conclude that “the heavy presumption against retroactive laws” has been

overcome. Robinson, 335 S.W.3d at 126.

        Finally, I feel compelled to call the Legislature’s attention to a problem this case presents:

though the stated purpose of Chapter 90 is to allow people with asbestos-related injuries “to pursue

their claims for compensation in a fair and efficient manner through the Texas court system,” the

mechanism the Legislature has chosen to effect that goal, pulmonary function testing, seems overly

broad. The testimony in today’s case indicates that pulmonary function testing may be impossible

for plaintiffs who are very ill. A plaintiff should not be prevented from recovering for an injury

caused by exposure to asbestos because that exposure has made him too sick to complete a

pulmonary function test. I respectfully urge the Legislature to reconsider the wisdom of requiring

                                                   8
pulmonary function testing even in Chapter 90’s “safety valve” provision, at least in those cases in

which a doctor has concluded that such testing would be prohibitive. TEX . CIV . PRAC. & REM . CODE

§ 90.010(f)(1), (j).

                                          III. Conclusion

        In the case at bar, I conclude that the Emmites’ wrongful death claims were substantial and

had accrued before Texas law required asbestos plaintiffs to produce a pulmonary function test. The

Emmites’ claims were also significantly impaired because they had only two-and-a-half months’

time during which they could have brought those claims before the statute came into effect. Finally,

the public interest furthered by the statute would not be served by its application to Joseph’s case.

Accordingly, I would hold that the application of Chapter 90 to the Emmites’ claims is

unconstitutionally retroactive. TEX . CONST . art. I, § 16. I would affirm the judgment of the court

of appeals.



                                                      _________________________________
                                                      Debra H. Lehrmann
                                                      Justice


OPINION DELIVERED: July 3, 2014




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