Opinion issued June 28, 2012




                                    In The
                             Court of Appeals
                                   For The
                         First District of Texas
                          ————————————
                      NO. 01-09-01141-CV
                     ———————————
            UNION CARBIDE CORPORATION, Appellant
                              V.
DAISY E. SYNATZSKE AND GRACE ANNETTE WEBB, INDIVIDUALLY
   AND AS REPRESENTATIVES AND CO-EXECUTRIXES OF THE
ESTATE OF JOSEPH EMMITE, SR., JOSPEH EMMITE, JR., DOROTHY
  A. DAY, VERA J. GIAMALVA AND JAMES R. EMMITE, Appellees


                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2007-43950



                          DISSENTING OPINION
     I respectfully dissent from this Court’s en banc judgment affirming the trial

court’s order denying Union Carbide Corporation’s (“Union Carbide”) motion to
dismiss1 the claims of Daisy E. Synatzke and Grace Annette Webb, individually

and as representatives and co-executrixes of the estate of Joseph Emmite, Sr.,

Joseph Emmite, Jr., Dorothy Day, Vera J. Gialmalva, and James R. Emmite

(collectively, “the Emmites”), in the Emmites’ wrongful-death suit against Union

Carbide for the death of Joseph Emmite, Sr. (“Joseph”).

      I join parts I, II, III, and IV of the En Banc Opinion. I agree with the

plurality’s construction of Civil Practice and Remedies Code Chapter 90, set out in

part IV of the plurality opinion, and I disagree with the concurring justices’

construction of Chapter 90. However, I disagree with the plurality’s conclusion

that Chapter 90 is unconstitutional as applied to the Emmites’ claims in this case. I

believe that the statute is constitutional as applied here and that it worked in this

case exactly as the Texas Legislature intended it to work: to bar a suit for damages

for wrongful death brought by the heirs of an asbestos worker who remained

functionally and physically unimpaired from undiagnosed asbestosis until his death

at the age of eighty-five.

      Thus, I agree with the plurality’s holding that the trial court erred in finding

that the Emmites satisfied Civil Practice and Remedies Code section 90.0102

through the provision of Dr. Prince’s reports. This is because, as stated in the


1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 90.007 (Vernon 2011).
2
      See id. § 90.010 (Vernon 2011).
                                          2
plurality opinion, I conclude that section 90.010(f)—which the parties refer to as

the “safety valve”—may only be reasonably interpreted as requiring a plaintiff

claiming non-cancerous asbestos-related impairment to substantiate his claim of

impairment with pulmonary function testing that is relevant to his diagnosis. I,

therefore, disagree with the concurring opinion, which reads each subparagraph of

section 90.010(f) separately and finds its requirements satisfied by a pulmonary

function test that was performed forty years before Joseph’s death from “possible

asbestosis” and that showed no impairment at that time.

      When the statute is read as a whole, it is obvious to me that a plaintiff cannot

meet any of the statutory reporting requirements of section 90.010, including the

relaxed requirements under the safety-valve provision, by providing “historic”

results from a test that was performed forty years prior to any allegation of

impairment and an accompanying diagnosis. Simply put, when the results of

“historic” or “ancient” pulmonary function testing submitted by a plaintiff are

completely and indisputably irrelevant to the impairment for which a plaintiff is

seeking recovery, a plaintiff has not satisfied the safety-valve provision.

      However, I cannot join the plurality’s holding that, because section 90.010(f)

requires a plaintiff to undergo pulmonary function testing that is relevant to a

diagnosis of impairment and Joseph was too weak to take such a test a month

before his death, section 90.010(f) is unconstitutional as applied to bar the

                                          3
Emmites’ wrongful-death claims retroactively. Rather, I would hold that, properly

applied, the statute would function under the circumstances presented by this case

exactly as the legislature intended: namely, to bar claims against limited asbestosis

funds by the heirs of an asbestos worker who suffered no functional or physical

disability during his lifetime due to a diagnosed pulmonary disease shown by a

pulmonary function test and other evidence to be asbestos-related. I believe, in

accord with recent, controlling precedent from the Texas Supreme Court, that the

legislature enacted Chapter 90 to serve the “compelling public interest” of

protecting limited funds available to compensate the victims of asbestos-related

diseases, as evidenced by its detailed findings, and that this compelling public

interest, under the circumstances presented in this case, overcomes “the heavy

presumption against retroactive laws.” See Robinson v. Crown Cork & Seal Co.,

335 S.W.3d 126, 146 (Tex. 2010). Therefore, I would hold that section 90.010(f)

is constitutional as applied in this case.

      A.     Safety-Valve

      Although I agree with and fully join the reasoning set forth by the plurality

concerning its interpretation of the pulmonary function testing requirement in the

safety-valve provision, I write separately to emphasize one point with respect to

the requirements of Chapter 90.




                                             4
      Section 90.003 prescribes the filing of a report when a claimant asserts an

asbestos-related injury, and it requires, among other things, a report by a physician

that “verifies that the exposed person has asbestos-related pulmonary impairment

as demonstrated by pulmonary function testing” that shows certain objective

measurements. TEX. CIV. PRAC. & REM. CODE ANN. § 90.003(a)(2)(D) (Vernon

2011).      Section 90.010, the safety-valve provision, prescribes an alternative

method to satisfy Chapter 90’s report requirement for a claimant asserting an

asbestos-related injury. Id. § 90.010(f)(1) (Vernon 2011). Although the safety-

valve provision omits some of the specific objective measurements that must be

shown in a report pursuant to section 90.003,3 it still requires many of the same

things required by section 90.003, including the performance of a relevant

pulmonary function test. See id. § 90.010(f)(1)(B)(ii). Specifically, even the less-

stringent safety-valve provision requires a report by a physician verifying that:

      (i)      the physician making the report has a physician-patient
               relationship with the exposed person;




3
      For example, under section 90.003, the report must verify that the exposed person
      has asbestos-related pulmonary impairment as demonstrated by pulmonary
      function testing and the testing must show “forced vital capacity below the lower
      limit of normal or below 80 percent of predicted and FEV1/FVC ratio (using
      actual values) at or above the lower limit of normal or at or above 65 percent” or
      “total lung capacity, by plethysmography or timed gas dilution, below the lower
      limit of normal or below 80 percent of predicted[.]” Id. § 90.003(a)(2)(D)
      (Vernon 2011).
                                          5
      (ii)    pulmonary function testing has been performed on the exposed
              person and the physician making the report has interpreted the
              pulmonary function testing;

      (iii)   the physician making the report has concluded, to a reasonable
              degree of medical probability, that the exposed person has
              radiographic, pathologic, or computed tomography evidence
              establishing bilateral pleural disease or bilateral parenchymal
              disease caused by exposure to asbestos . . . ; and

      (iv)    the physician has concluded that the exposed person has
              asbestos-related . . . physical impairment comparable to the
              impairment the exposed person would have had if the exposed
              person met the criteria set forth in Section 90.003 or 90.004[.]

Id. § 90.010(f)(1)(B) (emphasis added).

      When the statute is considered as a whole, it is clear that, although the

legislature relaxed a number of objective measurements required in a section

90.003 report, the legislature retained in the safety-valve provision the requirement

that pulmonary function testing be performed on the plaintiff claiming impairment

and, necessarily, that such testing be relevant to the impairment diagnosis.

Although our concurring colleagues state that “[p]ro forma compliance with the

statute is undisputedly present,” this proposition is certainly disputed by Union

Carbide, as well as by the original panel. I agree with the original panel. In my

view, allowing a plaintiff to satisfy the safety-valve’s pulmonary function testing

requirement by referring to testing results obtained over forty years before the

plaintiff made any claim of an asbestos-related impairment disregards the plain
                                          6
language of the statute and frustrates the unmistakable purpose of Chapter 90, to

which I now turn. See id. § 90.010(f)(1)(B)(ii) (requiring physician to perform

pulmonary function testing on exposed person).

      B.     Constitutionality

      While I agree with the plurality that section 90.010(f) was applied

retroactively in this case, I specifically disagree with the plurality’s reasoning and

conclusion with respect to the constitutionality of section 90.010(f) as applied

because I believe this case fully satisfies the criteria for finding retroactive

applications of the law to be constitutional as set out in the Texas Supreme Court’s

recent opinion in Robinson. See 335 S.W.3d at 147–50 (holding that Civil Practice

and Remedies Code Chapter 149, limiting certain corporation’s successor liability

for personal injury claims based on asbestos exposure, violated prohibition against

retroactive laws contained in Texas Constitution article I, section 16 when applied

to bar suit by worker diagnosed with mesothelioma seeking to recover for damages

caused by exposure to asbestos).

      In Robinson, the supreme court, after reviewing its prior vested rights

jurisprudence, stated,

      We think our cases establish that 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; it protects settled expectations that rules are to govern
      the play and not simply the score, and prevents the abuses of

                                          7
      legislative power that arise when individuals or groups are singled out
      for special reward or punishment.             No bright-line test for
      unconstitutional retroactivity is possible. Rather, in determining
      whether a statute violates the prohibition against retroactive laws in
      article I, section 16 of the Texas Constitution, courts must consider
      three factors in light of the prohibition’s dual objectives: 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. 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. There must be a
      compelling public interest to overcome the heavy presumption against
      retroactive laws. To be sure, courts must be mindful that statutes are
      not to be set aside lightly. This Court has invalidated statutes as
      prohibitively retroactive in only three cases, all involving extensions
      of statutes of limitations. But courts must also be careful to enforce
      the constitutional prohibition to safeguard its objectives.

Id. at 145–46 (citations omitted) (emphasis added). The court emphasized that,

under the above test, “changes in the law that merely affect remedies or procedure,

or that otherwise have little impact on prior rights, are usually not

unconstitutionally retroactive.” Id. at 146.

      In this case, with respect to the first Robinson factor—the nature and

strength of the public interest served by the statute—the legislature’s statement of

purpose and factual findings make it clear that the legislature enacted Chapter 90

specifically in response to an “asbestos litigation crisis,” which it found to be

“costly to employers, employees, litigants, and the court system.” Act of May 16,


                                          8
2005, 79th Leg., R.S., ch. 97, § 1(f)–(g), 2005 Tex. Gen. Laws 169, 169. The

legislature cited the fact that “hundreds of thousands of lawsuits alleging asbestos-

related disease have been filed throughout the United States” and that “[i]n the

period from 1988 to 2000, more lawsuits alleging asbestos-related disease were

filed in Texas than in any other state.” Id. § 1(c)–(d). The legislature also noted

that “[t]housands of asbestos lawsuits are pending in Texas courts today,” and it

contended that the “crush of asbestos litigation has been costly to employers,

employees, litigants, and the court system.” Id. § 1(e)–(f). The legislature found

that “more than 70” companies had declared bankruptcy “due to the burden of

asbestos litigation,” and the legislature cited estimates that “between 60,000 and

128,000 American workers” had “lost their jobs as a result of asbestos-related

bankruptcies and that eventually 423,000 jobs” would “be lost due to asbestos-

related bankruptcies.” Id. § 1(g).

      The legislature stated that it enacted Chapter 90 not only to protect

companies that are commonly sued for asbestos-related injuries and their

employees, but also to protect “the right of people with impairing asbestos-

related . . . injuries 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 to asbestos . . . but have no functional or physical

                                          9
impairment from asbestos-related . . . disease.” Id. § 1(n), 2005 Tex. Gen. Laws at

170 (emphasis added).       The legislature found that persons who were not

“functionally or physically impaired by any asbestos-related illness” and who had

brought asbestos-related lawsuits had “severely hamper[ed] the ability of seriously

ill claimants to seek redress in the courts.” Id. § 1(h), 2005 Tex. Gen. Laws at 169.

The court stated that “[t]hose claimants who have had their day in court often find

that the value of their recovery is seriously reduced when the company against

whom the judgment was rendered files bankruptcy due to the weight of asbestos

litigation brought by unimpaired claimants.” Id., 2005 Tex. Gen. Laws 169–70.

Thus, in contrast to Chapter 149, the Texas Legislature made clear its intent in

enacting Chapter 90 through extensive legislative findings.       Significantly, the

supreme court in Robinson acknowledged the legislative findings made in support

of Chapter 90 in distinguishing Chapter 90 from Chapter 149, at issue in Robinson.

See 335 S.W.3d at 149 (“The Legislature has recognized the severity of [the

asbestos litigation] crisis in another context [Chapter 90], but it did not do so in

enacting House Bill 4 and Chapter 149.”).

      Thus, I would conclude that, as evidenced by the Texas Legislature’s

findings, the legislature enacted Chapter 90 to serve a “compelling public interest”

that overcomes “the heavy presumption against retroactive laws.” Id. at 146.

Consideration of the remaining Robinson factors—the nature of the prior right

                                         10
impaired by the statute and the extent of the impairment—does not alter my

conclusion that the Emmites’ prior right to sue Union Carbide for damages for

Joseph’s wrongful death was not insulated from impairment by the constitutional

prohibition against retroactive laws and that the legislature’s exercise of its police

power to bar recovery by heirs of a decedent for wrongful death in a case such as

this was reasonable. See id. at 145–46.

      Chapter 90 became effective on September 1, 2005, three months after

Joseph’s death but over one year before the Emmites filed suit. Accordingly, the

Emmites were required to file a complying report once they filed their wrongful-

death lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 90.006 (Vernon 2011)

(requiring, in action filed after effective date of Chapter 90, claimant to serve

report complying with section 90.003 not later than 30th day after defendant

answers or enters appearance). It is undisputed that, during the last month of his

life, Joseph could not undergo pulmonary function testing and that Joseph was

deceased at the time that Chapter 90 became effective.4 It is also undisputed that,

prior to the enactment of Chapter 90, and at the time of Joseph’s death, the

Emmites would not have been required to file a report including pulmonary

4
      In its briefing, Union Carbide “does not dispute that [Joseph] had a diagnosis of
      asbestosis; . . . and that, given his advanced dementia” and other conditions,
      “pulmonary function testing during [Joseph’s] last few months of life was likely
      unobtainable.” The record before us also establishes that at the time Joseph died,
      breathing tests were not required to bring claims like those asserted by the
      Emmites.
                                          11
function testing results to pursue their wrongful-death claims. Thus, I recognize

that the enactment of Chapter 90 impaired the Emmites’ right to pursue their

wrongful-death claims.

      However, many of the factors considered by the supreme court in Robinson

in regard to the nature of the claimants’ rights are not present in the instant case.

For example, in Robinson, the supreme court specifically noted that the legislature

had enacted Chapter 149 with the specific intent to extinguish pending claims

against a single defendant. See 335 S.W.3d at 148. The court also noted that, at

the time the legislature enacted Chapter 149, the Robinsons had already filed suit.

See id. at 130. Thus, in Robinson, Chapter 149 operated to strip litigants of their

right to pursue “mature” claims that were already filed and pending. See id. at 148.

The court also characterized the Robinsons’ recovery as “more predictable,”

emphasizing that the injury at issue was “mesothelioma,” such an injury was a

“uniquely asbestos-related disease,” and the record evidence reflected that the

“claims had a substantial basis in fact.” Id.

      Here, although it is not a dispositive consideration, the Emmites’ claims

were not yet pending on the date that Chapter 90’s reporting requirements became

effective. See Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 207–08

(Tex. App.—Austin 2008, no pet.) (“[T]he Legislature may not retroactively

extinguish or eliminate accrued and pending causes of action, either by procedural

                                          12
changes such as shortening statutes of limitation, or by substantive changes, such

as creating new affirmative defenses”) (emphasis added).

      More significantly, the Emmites’ wrongful-death claims are based on statute

rather than common law. See Robinson, 335 S.W.3d at 135 (recognizing that “an

analysis of the retroactive effect” of particular statute “on common law claims and

statutory claims presents different considerations”). And, under the facts of this

case, the wrongful death statute upon which the Emmites rely is invoked here to

provide only for recovery by the heirs of a deceased asbestos worker who showed

no functional or physical impairment even colorably due to asbestosis while

showing significant impairment due to the disabilities of old age; who had no

shortened life span as a provider for his family due to asbestosis; and who had no

medical bills attributable to asbestosis at the time of his death, in direct

contravention of the purpose of the statute as stated by the Texas Legislature in its

findings. Specifically, Chapter 90 was enacted to protect persons “with impairing

asbestos-related . . . injuries” by “preventing scarce judicial and litigant resources

from being misdirected by the claims of individuals who . . . have no functional or

physical impairment from asbestos-related disease.” Act of May 16, 2005, § 1(n),

2005 Tex. Gen. Laws at 170. Thus, I am compelled to conclude that this suit falls

into the category of those lawsuits that “severely hamper[] the ability of seriously

ill claimants to seek redress in the courts.” Id. § 1(h), 2005 Tex. Gen. Laws at 169.

                                         13
In my mind, therefore, allowing this suit to proceed undermines the precise

compelling state purpose for which Chapter 90 was enacted.

      I also note that, in contrast with the record evidence in this case, the claimant

in Robinson suffered from mesothelioma, a fatal disease invariably associated with

exposure to asbestos, while Joseph suffered from multiple infirmities attributable

to his advanced age, his history of smoking, and other causes, as well as “possible

asbestosis,” diagnosed only a month before his death. He had never been treated

for any pulmonary disease that called into question his past work with asbestos or

indicated the need for a pulmonary function test, nor is there any indication that he

was functionally or physically impaired by asbestos-related disease until, at the

earliest, one month before his death at age eighty-five. Thus, although asbestosis

is an asbestos-related impairment, I do not share the plurality’s view that the record

before us demonstrates that the Emmites’ claims have a substantial basis in fact.

Rather, I believe that the record raises legitimate questions as to whether the

Emmites, if allowed to proceed with their claims, would ultimately prevail. At a

minimum, I think that, unlike the record considered by the supreme court in

Robinson, the record before us does not demonstrate that the Emmites’ wrongful-

death claims have “a substantial basis in fact” for which their ultimate recovery is

“predictable.” See 335 S.W.3d at 148.




                                         14
      Finally, I believe that the reporting requirements imposed by Chapter 90 can

be fairly characterized as a change in law that “merely affect[s] remedies or

procedure,” namely the right of heirs of an asbestos worker to recover damages for

the functional or physical impairment of the deceased, rather than substantive

vested rights.   Id. at 146.    In sum, I do not think that section 90.010(f)’s

requirements that persons claiming functional or physical impairment due to an

asbestos-related disease be required to show (1) that “pulmonary function testing

has been performed on the exposed person,” (2) that the testing has been

interpreted by the physician making the report, (3) that the physician has concluded

the exposed person has “bilateral pleural disease or bilateral parenchymal disease

caused by exposure to asbestos,” and (4) that the physician making the report has

“concluded that the exposed person has asbestos-related . . . physical impairment

comparable to the impairment the exposed person would have had if the exposed

person met the criteria set forth in Section 90.003” place an unconstitutional hurdle

on claimants seeking asbestos funds simply because the law is applied retroactively

to bar the damage claims of heirs of a claimant who showed no functional or

physical impairment ascribable to asbestosis until immediately prior to his death,

who had no medical bills more than colorably due to asbestosis, and whose ability

to provide for his family was not hindered by a shortened lifespan or by lingering

disease due to asbestos exposure.      See TEX. CIV. PRAC. & REM. CODE ANN.

                                         15
§ 90.010(f). Nor do I think the application of section 90.010(f) in this case to bar

the Emmites’ wrongful death suit “disturbs settled expectations” in the same way

that the application of Chapter 149 extinguished any and all pending claims against

a single corporate defendant in Robinson, including those of the plaintiff, an

asbestos worker suffering from mesothelioma who had filed suit prior to the

enactment of the law. See Robinson, 335 S.W.3d at 148–49. In my view, at the

time of Joseph Emmite’s death, his family had no reasonable expectation of

recovering damages under Chapter 90, as he had not been diagnosed with

asbestosis at any time during his long life prior to his diagnosis of “possible

asbestosis” one month before his death and he suffered many of the infirmities of

old age.




                                        16
      I would hold that Chapter 90, as applied to the Emmites’ claims, does not

violate article 1, section 16 of the Texas Constitution. Accordingly, I would

overrule the constitutional challenge raised by the Emmites in their appellees’ brief

and reverse the order of the trial court.




                                                 Evelyn V. Keyes
                                                 Justice

Panel consists of Justices Jennings and Sharp.

A majority of the justices of the Court voted in favor of reconsidering the case en
banc. TEX. R. APP. P. 49.7.

The en banc court on reconsideration consists of Chief Justice Radack and Justices
Jennings, Keyes, Higley, Bland, Sharp, and Brown.

Justice Jennings, writing for the En Banc Court, joined by Justices Higley and
Sharp.

Justice Keyes joins parts I, II, III, and IV of the En Banc Opinion.

Justice Bland, concurring in the judgment, joined by Chief Justice Radack and
Justice Brown.

Justice Keyes, dissenting from the judgment.

Justices Massengale and Huddle not sitting.




                                            17
