Union Carbide Corp. v. SynatzskeUnion Carbide Corp. v. Synatzske
Lead Opinion
delivered the opinion of the Court,
This interlocutory appeal concerns an asbestos-related injury suit in which Union Carbide Corporation filed a motion to dismiss based on the plaintiffs’ alleged failure to timely serve a statutorily compliant physician report. The Multi-District Litigation pretrial court denied the motion. On interlocutory appeal the court of appeals affirmed. It held that the plaintiffs did not file a compliant report, but that the report requirement was unconstitutionally retroactive as applied to the plaintiffs’ claims.
We agree with the court of appeals that a statutorily compliant report was not filed. But we disagree that, as applied in this case, the report requirements are unconstitutional. Accordingly, we reverse the judgment of the court of appeals and render judgment dismissing the suit.
I. Background
Joseph Emmite, who died in June 2005, worked as an insulator at Union Carbide for nearly forty years before he began receiving disability in 1979. At that time, Joseph had numerous health issues including a kidney disorder that required steroid therapy, a torn biceps muscle, and chronic fatigue, weakness, and vertigo. He was hospitalized twice during the last year of his life. His last hospitalization was in May 2005, because of edema, or swelling, in his legs. His medical history reflected, among other matters, that Joseph had been unable to walk for two years because of a deteriorated hip joint, he was unable to feed himself, he had dementia, and he had previously been diagnosed as having asbestosis. X-rays, an ultra-sound, and a computerized tomography performed during his final hospitalization showed lung calcifications that were most likely due to asbestos exposure. Dr. Prince was called in as a consulting pulmonologist and diagnosed him as having pulmonary asbestosis. When Joseph died on June 15, 2005, his death certificate listed the cause of death as “Alzheimer’s disease/dementia.” In June 2007, the representatives of Joseph’s estate and his surviving children (the Em-mites)
Chapter 90 of the Texas Civil Practice and Remedies Code was enacted by the 79th Legislature in 2005, signed by the Governor in May 2005, and became effective on September 1 of that year. Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169; see
In order to meet Chapter 90’s requirements, the Emmites attached a report by Dr. Richard Kradin to their original petition. Union Carbide responded with a motion to dismiss in which it asserted that the report did not meet Chapter 90’s requirements. The Emmites, in turn, served Union Carbide with a report authored by Dr. J.D. Britton.
In September 2007, the MDL pretrial court
Union Carbide moved for reconsideration and the trial court conducted a hearing on that motion. In its motion and at
Six weeks later, the Emmites again served Union Carbide with Dr. Britton’s report and asserted for the first time that the report complied with section 90.010(f)(1) — the “safety valve” provision of Chapter 90 which provides an alternative from the report standards in section 90.003 — even though the Emmites had declined to rely upon that section at the November hearing.
Dr. McClure was injured in an automobile accident and Union Carbide was unable to depose her until September 2009. After taking her deposition, Union Carbide renewed its motion to dismiss. The Em-mites responded by arguing that the renewed motion was untimely and Union Carbide waived its right to seek dismissal by engaging in discovery after the previous hearing. They also attached a report dated October 28, 2009, from Dr. Joseph Prince, a pulmonologist who treated Joseph just before he died. The Emmites asserted that Dr. Prince’s report complied with the safety valve requirements.
The trial court held a fourth hearing in November 2009 to address the renewed motion to dismiss. Following that hearing, but before the court ruled, the Emmites
Union Carbide filed an interlocutory appeal from the denial of its motion to dismiss. See Tex. Civ. PRAC. & Rem.Code § 51.014(a)(ll). On appeal it asserted that the trial court abused its discretion by considering reports and evidence other than the initial reports of Drs. Kradin and Britton because the Emmites neither moved for nor showed good cause for an extension of time to file additional reports. It also contended that even if the trial court properly considered the later-filed report of Dr. Prince, that report failed to comply with the safety valve requirements because Joseph’s pulmonary function test results did not show that he had pulmonary function impairment, Dr. Prince testified that the tests were normal, and Dr. Prince did not utilize the test results in reaching his conclusion that Joseph demonstrated pulmonary impairment. The Emmites argued that the court of appeals did not err in considering all of the evidence presented throughout the pretrial process, that Dr. Prince’s report was fully compliant with the requirements of section 90.010(f)(1), and if that section imposed a
In an en banc decision on rehearing, the court of appeals held that the MDL court properly considered all of the Emmites’ physician reports, section 90. 010(f)(1) requires pulmonary function testing to have been performed on the person allegedly injured, and the testing must have been relevant to the physician’s diagnosis of functional pulmonary impairment. Union Carbide Corp. v. Synatzske,
We begin by reviewing the relevant provisions of Chapter 90.
II. Civil Practice and Remedies Code Chapter 90
As noted previously, Chapter 90 of the Texas Civil Practice and Remedies Code was enacted by the 79th Legislature in 2005, signed by the Governor in May 2005, and became effective on September 1 of that year. Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169; see
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 function or physical impairment from asbestos-related ... disease.
Id. § l(n). To accomplish its purpose, the Legislature
(1) adopt[ed] medically accepted standards for differentiating between individuals with nonmalignant asbestos-related ... disease causing functional impairment and individuals with no functional impairment;
(2) provided a method to obtain the dismissal of lawsuits in which the exposed person has no functional impairment, while at the same time protecting a person’s right to bring suit on discovering an impairing asbestos-related ... injury; and
(3) creat[ed] an extended period before limitations begin to run in which to bring claims for injuries caused by the inhalation or ingestion of asbestos ... to preserve the right of those who have been exposed to asbestos ... but are not yet impaired to bring a claim later in the event that they develop an impairing asbestos-related ... injury.
Id.
Chapter 90 created physician report requirements for claimants.
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.
Chapter 90 includes an alternative safety valve impairment provision for situations in which an exposed person can demonstrate asbestos-related impairment, but cannot satisfy the criteria in
(i) the physician making the report has a physician-patient relationship with the exposed person;
(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 person has radiographic, pathologic, or computed tomography evidence establishing bilateral pleural disease or bilateral paren-chymal disease caused by exposure to asbestos or silica; 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 inSection 90.003 .
Id. § 90.010(f)(1)(B) (emphasis added).
There are additional requirements for claimants proceeding under section 90.010(f): the MDL court must find that
(A) the report and medical opinions offered by the claimant are reliable and credible;
(B) due to unique or extraordinary physical or medical characteristics of the exposed person, the medical criteria set forth in Section! ] 90.008 do[es] not adequately assess the exposed person’s physical impairment caused by exposure to asbestos ...; and
(C) the claimant has produced sufficient credible evidence for a finder of fact to reasonably find that the exposed person is physically impaired as the result of exposure to asbestos ... to a degree comparable to the impairment the exposed person would have had if the exposed person met the criteria set forth inSection 90.003 .
Id. § 90.010(f)(2). The MDL court must permit a reasonable time for discovery and conduct an evidentiary hearing before considering whether the requirements of section 90.010(f)(2) have been met. Id. § 90.010(g). The court is required to make written findings and to specifically identify “(1) the unique or extraordinary physical or medical characteristics of the exposed person that justify the application of this section; and (2) the reasons the criteria set forth in Section! ] 90.003 ... do not adequately assess the exposed person’s physical impairment caused by exposure to asbestos.” Id. § 90.010(h).
Chapter 90 imposes timing requirements for claimants to serve the required physician reports as well as a procedural structure for defendants to move for dismissal if a compliant report is not filed. A claimant proceeding under
If the court determines that the motion to dismiss is meritorious, dismissal by written order is mandatory, “except as provided by section 90.010(d) or (e).” Id. § 90.007(c). Section 90.010(e) in turn requires dismissal for failure to serve a report that complies with
As is readily apparent from the foregoing in Chapter 90, the Legislature focused on physical, functional impairment and sought to preserve resources for those persons who could demonstrate such impairment due to asbestos exposure. Act of May 16, 2005, 79th Leg., R.S., ch. 97, § l(n), 2005 Tex. Gen. Laws 169, 170. To achieve this goal it adopted medically accepted standards for differentiating between individuals with nonmalignant asbestos-related disease causing functional pulmonary physical impairment and individuals exposed to asbestos but who did not have such impairment. Id. The Legislature selected functional pulmonary impairment as the dividing line between those who could pursue asbestos-related injury claims
Having reviewed the statutory construct, we move to the merits. We begin by considering whether the Emmites timely filed physician reports.
III. Timeliness of the Reports
Union Carbide argues that the trial court erred by considering any of the Em-mites’ reports other than the two reports filed before the September 14, 2007 hearing. We disagree.
Union Carbide does not dispute the timeliness of the physician reports of Dr. Kradin, attached to the Emmites’ original petition, or the initial report of Dr. Britton, served in response to Union Carbide’s initial motion to dismiss. Rather, it argues that any further reports were untimely because they were filed more than fifteen days after the motion to dismiss was filed, and the Emmites never moved for an extension of time. See id. §§ 90.007(b), (e).
Union Carbide’s initial motion to dismiss was premised on the lack of a report meeting
In its motion for reconsideration, Union Carbide argued, among other things, that the absence of references to pulmonary function testing in the Emmites’ physician reports made them noncompliant with both
The Emmites argue, and the en banc court of appeals held, that the Emmites’ request for leave to seek amendment of Joseph’s death certificate amounted to a motion to extend Chapter 90’s time limits for serving reports.
We need not address the question of whether a motion to extend time existed and whether it was supported by good cause because Union Carbide did not secure a written ruling on either its motion for reconsideration or the underlying motion to dismiss, nor did it object to the trial court’s failure to sign a written order. Thus, both motions remained pending be
In construing a statute our primary objective is to ascertain the Legislature’s intent, and we do that, if possible, through the words the Legislature selected. City of Rockwall v. Hughes,
Among the findings a court must make under section 90.010(f)(2) is that the exposed person has impairment comparable to the impairment criteria set forth in
It follows that because the Emmites invoked the safety valve provisions of section 90.010(f) at a time when the court was still
We now turn to the issue of whether Dr. Prince’s report complied with the safety valve requirements of section 90.010(f)(1).
IV. Compliance with Section 90.010(f)(1)
In lieu of pulmonary function testing demonstrating a specified threshold of functional impairment, the safety valve provisions in section 90.010(f) require pulmonary function testing to have been performed on the exposed person and the physician making the report to have inter-' preted that testing.
The Emmites contend
As previously noted, our primary objective in construing a statute is to give effect to the Legislature’s intent. City of Rockwall,
The language of
First, as to context,
A
Moreover, absent the pulmonary function test required by
In his dissent, Justice Boyd argues that the pulmonary function testing requirement in
Justice Boyd also argues that it is unnecessary for the safety valve’s pulmonary function test to be relevant to the physician’s diagnosis of pulmonary function impairment because of the other safety valve requirements. But if the required pulmonary function test is inconsequential as to the determination of functional pulmonary impairment, then there is no need for it to be part of the safety valve requirements at all. Chapter 90 is too detailed and carefully constructed to achieve the Legislature’s specified purpose — preserving scarce assets for those who have functional pulmonary impairment — to attribute to the Legislature an intent for the statute to contain a random, inconsequential, arbitrary hurdle for claimants to overcome.
Finally, Justice Boyd speculates that legislators might have made a mistake and simply missed adding the requirement to the safety valve section that the pulmonary function test must demonstrate some impairment or other relevance to a physician’s diagnosis of functional pulmonary impairment. And they may have. But we presume legislators intended to enact legislation fulfilling their clearly stated purpose rather than presuming they made a mistake that both diminishes the result they were seeking to obtain as well as arbitrarily distinguishing among persons claiming asbestos-related impairment.
In sum, applying the construction urged by the Emmites would result in the statute at least partially failing its intended purpose, and would attribute to the Legislature an intent to require pulmonary function testing and interpretation of that testing as a meaningless, arbitrary procedural hurdle instead of an objective method for differentiating between persons exposed to asbestos and who have functional pulmonary impairment from that exposure and those exposed to asbestos but who
We conclude that forty-year-old tests that do not show some level of functional pulmonary impairment, or are not otherwise relevant to the diagnosis of functional pulmonary impairment, do not fulfill the requirements of
Our conclusion that
V. Constitutionality of
A. Retroactivity Generally
The Texas Constitution provides that “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”
Union Carbide notes that because a wrongful death cause of action is purely statutory, its legislative restriction does not violate the open courts provision of the Texas Constitution. See Moreno v. Sterling Drug, Inc.,
In Robinson, Barbara and John Robinson sued Crown Cork & Seal, the successor to John’s former employer, alleging that John contracted mesothelioma due to asbestos exposure. Id. at 129. After the lawsuit had proceeded to the discovery stage, the Legislature enacted Chapter 149 of the Texas Civil Practice and Remedies Code which altered the choice of law rules in successor-liability asbestos cases. Id. at 130. The statute functioned to absolve Crown Cork & Seal of liability for John’s mesothelioma and barred the Robinsons’ claims. Id. at 132-38. The trial court granted summary judgment to Crown Cork & Seal based on Chapter 149’s limitation of liability. Id. at 133. The Robin-sons appealed, arguing that Chapter 149 was a retroactive law in violation of the Texas Constitution. Id.
We determined that classifying a right or interest as “vested” in order to determine whether it has been retroactively diminished or impaired in violation of the constitution has not yielded an efficient and predictable framework. See id. at 145 (“Robinson’s argument that [three different rights] are somehow vested differently for purposes of determining unconstitutional retroactivity establishes the fundamental failure of the ‘impairs vested rights’ test.”). After extensively reviewing our jurisprudence concerning the ‘vested rights’ analysis as to retroactivity and noting its shortcomings, we explained that
[0]ur 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 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 [the validity of] retroactive laws.
Id. at 145-46 (emphasis added) (citations omitted). After clarifying the framework for determining whether a statute is unconstitutionally retroactive, we applied the three factors we enumerated to the facts of the case.
Addressing the nature of the right impaired and the extent of that impairment, we first recognized that although it did so indirectly, Chapter 149 extinguished the Robinsons’ common law claims. Id. at 148. We also recognized that the Robinsons’ claims had matured, discovery in the case showed the claim was substantially based in fact, and recovery was predictable. Id. We further noted the Robinsons’ reasonable, settled expectation that the rule of law permitting their recovery would not be altered after they had already filed and proceeded with their lawsuit. Id. Thus we concluded that Chapter 149 had the effect of abrogating the Robinsons’ claims and benefitting Crown Cork & Seal. Id. at 149.
B. Chapter 90 as Applied to the Emmites
1. Nature and Strength of the Public Interest Served
The Emmites assert that requiring them to show Joseph had a pulmonary function test showing impairment as a prerequisite for maintaining their claim does not serve a compelling public interest. They say that, as applied to them, only Union Carbide would benefit from imposition of the requirement — an improper legislative abuse of power prohibited by the Constitution. We disagree.
To overcome the presumption that laws with retroactive effects are unconstitutional, the public interest a statute serves must be compelling. Id. at 146. The statute in Robinson was ostensibly enacted for the sole benefit of Crown Cork & Seal. Id. The only public benefit achieved by the statute was the reduction of Crown Cork & Seal’s liability due to asbestos litigation-a benefit we declined to find sufficiently compelling to overcome the presumption that retroactive laws are unconstitutional. See id. at 149. But the statutory provision at issue here stands in stark contrast to the one we addressed in Robinson. The Legislature provided extensive findings to support Chapter 90’s enactment and its effects. Act of May 16, 2005, 79th Leg., R. S., ch. 97, § 1, 2005 Tex. Gen. Laws 169. Those findings identified a litigation crisis in which more asbestos-related suits were filed in Texas than in any other state, negatively affecting the financial resources available for compensating persons with asbestos-related injuries and the judicial resources available for allocating those financial resources. Id. § 1(d), (e). The findings in part attributed the crisis to lawsuits filed by persons who had been exposed to asbestos, but who were not suffering from asbestos-related impairment. Id. § 1(f). The Legislature noted the onslaught of asbestos litigation had negative effects on employers, employees, and the court system. Id. § 1(g). Because of those effects, the Legislature acted
to protect the right of people with impairing asbestos-related and silica-related injuries to pursue their claims for compensation in a fair and efficient manner through the Texas court system, while at the same time preserving scarce judicial and litigant resources from being misdirected by the claims of individuals who have been exposed to asbestos or silica but have no functional or physical impairment from asbestos-related or silica-related disease.
Id. § l(n) (emphasis added). To achieve its purpose the Legislature adopted standards to differentiate between persons exposed to asbestos who were functionally impaired and those who had been exposed but were not functionally impaired, even though they may have been diagnosed with asbestosis. Id.; see also
We conclude that Chapter 90 serves a compelling public interest.
2. Nature of the Right Impaired by the Statute and Extent of the Impairment
We next consider the other two Robinson factors: the nature of the right impaired by Chapter 90 and the extent of that impairment. In Robinson, we held that at the time the Legislature enacted the statute being considered there, the Robinsons’ right to pursue their common law personal injury claim had matured, recovery was predictable, and discovery had demonstrated their claims to have a substantial basis in fact. Robinson,
The present situation is markedly different. Until September 1, 2005, a claim for an asbestos-related injury by or on behalf of Joseph, or by his beneficiaries, would not have been subject to the pulmonary function testing requirement in Chapter 90. When the Emmites filed suit in June 2007, they could not satisfy the requirement of pulmonary function testing showing that Joseph had impairment, so undoubtedly their right to pursue a statutory wrongful death claim was detrimentally affected by Chapter 90. However, in light of the compelling public interest we have identified, and as we explain below, Chapter 90 did not impair the Emmites’ right to recovery in such a manner as to be unconstitutionally retroactive.
As noted above, the situation before us is different from the one we addressed in Robinson. First, the timing of events is different. In Robinson the statute was enacted after the Robinsons filed their lawsuit. Id. at 155. In this case, Chapter 90 had been signed into law before Joseph died, it allowed a grace period for suits to be filed under the law as it previously existed, and it had been the law for more than a year before the Emmites filed suit. Also unlike Robinson, the Emmites’ recovery was not yet predictable when Chapter 90 became effective. See id. at 148. In Robinson, John Robinson had been diagnosed with mesothelioma and the facts developed in discovery as of the time the
The Emmites recognize that it has long been the law in Texas that the Legislature may repeal a statute and immediately eliminate any right or remedy that the statute previously granted. See Quick v. City of Austin,
First, as we have discussed above, the Emmites do not assert that they were contemplating a wrongful death suit before Chapter 90 became effective, nor have they demonstrated that before they filed suit they otherwise had expectations that the law as it existed prior to the enactment of Chapter 90 would govern their claim. Further, Chapter 90 did not purport to eliminate all wrongful death causes of action based on asbestos-related injuries. Rather, it was narrowly designed to address the documented crisis. See Act of May 16, 2005, 79th Leg., R.S., ch. 97, § 1, 2005 Tex. Gen. Laws 169. Its adoption of functional pulmonary impairment as a threshold requirement for maintaining a cause of action was not an arbitrary legislative invention or standard, but a medically accepted standard for measuring asbestos-related effects.
In sum, Chapter 90 did not upset settled expectations of the Emmites in the constitutional sense to the extent that it outweighs the compelling public interest found and addressed by the Legislature— even though, under these facts, Chapter 90 effectively bars their claim. Accordingly, Chapter 90 and
VI. Conclusion
We reverse the judgment of the court of appeals and render judgment dismissing the Emmites’ suit.
Notes
. The plaintiffs are 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.
. The other defendants are no longer parties. They were AMF Incorporated; The Anchor Packing Company; Aqua-Chem, Inc. (d/b/a Cleaver-Brooks Division); A.W. Chesterton Company; Bondex International, Inc.; Carborundum Company, n/k/a Industrial Holdings Corporation; Certainteed Corporation;
. See
. A
veriffy] that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing;
(i) forced vital capacity below the lower limit of normal or below 80 percent of predicted and FEV 1/FVC ratio (using actual values) at or above the lower limit of normal or at or above 65 percent; or
(ii) total lung capacity, by plethysmogra-phy or timed gas dilution, below the lower limit of normal or below 80 percent of predicted.
. To comply with the “safety valve” provision a claimant must serve a report that:
(A) complies with the requirements ofSections 90.003(a)(2)(A) , (B), (E), and (F) and 90.003(b) or Sections 90.004(a)(1), (2), and (4) and 90.004(e); and
(B) verifies that:
(i) the physician making the report has a physician-patient relationship with the exposed person;
(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 or silica; and
(iv)the physician has concluded that the exposed person has asbestos-related or silica-related physical impairment comparable to the impairment the exposed person would have had if the exposed person met the criteria set forth inSection 90.003 or 90.004.
. In support of its ruling, the MDL court found that:
(1) Joseph worked as an insulator for approximately 39 years at the Union Carbide Texas City facility:
(2) The autopsy findings revealed asbestosis that had resulted in severe pulmonary fibrosis and the cause of death was the combined effects of retained asbestos fibers;
(3) Texas Civil Practice and Remedies Codesections 90.003 and 90.004 do not adequately assess Joseph's pulmonary impairment due to physical and mental limitations from which he suffered;
(4) Shordy before his death Joseph suffered from physical and mental limitations, which made it impossible for him to take a pulmonary function test;
(5) Had Joseph been physically and mentally capable of performing a pulmonary function test, the results would have demonstrated pulmonary impairment greater than that required under Texas Civil Practice and Remedies Codesection 90.003 ;
(6) Due to Joseph’s physical and mental limitations, severe asbestosis, and death, the medical criteria set forth in Texas Civil Practice and Remedies Codesection 90.003 do not adequately assess Joseph’s physical impairment caused by exposure to asbestos;
(7) Dr. Prince is a qualified, board-certified pulmonary specialist who served Joseph as his last treating physician;
(8) In his report and testimony, Dr. Prince verified that pulmonary function testing had been previously performed on Joseph, and that he interpreted the results;
(9) Other than cross-examination of Dr. Prince at his deposition, Union Carbide offered no evidence, either by way of live expert testimony, depositions, or fact witnesses to contradict the findings of Dr. Prince;
(10) Dr. Prince had no history of working as a litigation consultant. The testimony and opinions offered by Dr. Prince were at all times credible, reliable and uncontro-verted;
(11) Joseph’s case presents unique and extraordinary physical and medical characteristics justifying denial of Union Carbide's Motion to dismiss;
(12) Joseph’s family produced sufficient credible evidence to allow a finder of fact to reasonably find that his asbestos impairment was comparable to the impairment that an exposed person would have had if the exposed person met the criteria set forth insection 90.003 .
.
(2) a report by a physician who is board certified in pulmonary medicine, internal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:
(A) verifies that the physician or a medical professional employed by and under the direct supervision and control of the physician:
(i) performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person’s medical condition:
(ii) took a detailed occupational and exposure history from the exposed person or, if the exposed person is deceased, from a person knowledgeable about the alleged exposure or exposures that form the basis of the action; and
(iii) took a detailed medical and smoking history that includes a thorough review of the exposed person’s past and present medical problems and their most probable cause;
(B) sets out the details of the exposed person’s occupational, exposure, medical, and smoking history and verifies that at least 10 years have elapsed between the exposed person’s first exposure to asbestos and the date of diagnosis;
(C) verifies that the exposed person has:
(i) a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing:
(a)bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/1 or higher, for an action filed on or after May 1, 2005;
(b) bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/0 or higher, for an action filed before May 1, 2005; or
(c) bilateral diffuse pleural thickening graded b2 or higher including blunting of the costophrenic angle; or
(ii) pathological asbestosis graded 1(B) or higher under the criteria published in "Asbestos-Associated Diseases,” 106 Archives of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982);
(D) verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:
(i) forced vital capacity below the lower limit of normal or below 80 percent of predicted and FEV 1/FVC ratio (using actual values) at or above the lower limit of normal or at or above 65 percent; or
(ii) total lung capacity, by plethysmogra-phy or timed gas dilution, below the lower limit of normal or below 80 percent of predicted;
(E) verifies that the physician has concluded that the exposed person’s medical findings and impairment were not more probably the result of causes other than asbestos exposure revealed by the exposed person’s occupational, exposure, medical, and smoking history; and
(F) is accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician’s conclusions.
. "FEV 1” means forced expiratory volume in the first second, which is the maximal volume of air expelled in one second during performance of simple spirometric tests.
. "Asbestos-related injury” means personal injury or death allegedly caused, in whole or in part, by inhalation or ingestion of asbestos.
. We previously considered Chapter 90’s purpose in the silica context. See In re GlobalSanteFe Corp.,
Dissenting Opinion
dissenting.
I join Justioe 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.
“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.,
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
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 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)(ll). The court of appeals, sitting en banc, held that Chapter 90 was unconstitutionally retroactive as applied to the Emmites.
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.,
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 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, § l(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
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 whose exposure did not so result. Ante at 43. 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,
B. The Nature of the Right
In Robinson, we also considered the nature of the plaintiffs right to recover that the challenged law impedes or extinguishes.
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 Ro bin-son, in which the applicable statute was signed into law after the Robinsons’ cause of action accrued.
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 Em-mites 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. Prao. & Rem.Code
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 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.
xii. 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.
Justice BOYD, joined by Justice GUZMAN, Justice LEHRMANN, and Justice DEVINE, dissenting.
In deciding this case, the Court rewrites an unambiguous statute to achieve the result the Court believes the Legislature must have intended. Because I would hold that the statute means what it says, I must respectfully dissent.
I. Statutory Construction
“In lieu of pulmonary function testing demonstrating a specified threshold of impairment,”
First, the Court concludes that the only sensible way to interpret
The Court rejects these justifications for the test requirement and the interpretation requirement because “nothing in this record or the legislative findings supports” them, but in doing so the Court confuses our role in applying the absurdity doctrine. When determining whether we should ignore a statute’s language because it reaches an absurd result, we consider whether “a rational Legislature could have intended” that result. Combs v. Health Care Servs. Corp.,
Maybe, as the Court contends, requiring that the claimant was exposed, sick, or concerned enough to have had pulmonary function testing at some time in the past, and ensuring that the claimant’s physician and opposing counsel are aware of the test, are not very good reasons to impose the test requirement and the interpretation requirement, and maybe there are better reasons to impose the impairment requirement and the basis requirement, but “not very good” and “not better” are a far cry from the kind of “unreasonable” that allows us to ignore a statute’s language. We cannot ignore a statute’s unambiguous language unless its meaning is so unreasonable that it “would lead to absurd results.” Combs,
It is not our role to make statutes “more reasonable.” That is why “the [absurdity] bar for reworking the words our Legislature passed into law is high, and should be.” Combs,
Second, the Court reads the impairment and basis requirements into the statute because it concludes that, without them, the statute would “at least partially fail[ ] its intended purpose” to ensure that claimants have “physical, functional impairment.” Ante at 49. In light of the numerous alternative requirements that section 90.012(f) imposes on those who rely on the statute’s safety valve, I do not agree.
We must be very careful when we endeavor to construe statutes based on our perception of the Legislature’s “purpose.” For one thing, “[w]hat motivates one legislator to vote for a statute is not necessarily what motivates scores of others to enact it.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,
But even when armed with knowledge of a statute’s purpose, we must still determine the manner in which the statute aims to achieve that purpose. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice.” Rodriguez v. United States,
So we must look to the plain language of
In short,
We know that these are the means by which the Legislature intended to achieve the statute’s stated purposes because the statute’s text tells us so. To “assume that whatever furthers the statute’s primary objective must [also] be the law,” as the Court does in this case, only “frustrates rather than effectuates” the Legislature’s intent. Rodriguez,
Finally, the Court concludes that it must read the impairment and basis requirements into the statute because, otherwise, we would “attribute to the Legislature an intent” to impose the test and interpretation requirements “as a meaningless, arbi
The truth is, we do not and cannot know all that the 79th Texas Legislature intended when it enacted
II. Conclusion
“Only truly extraordinary circumstances showing unmistakable legislative intent should divert us from enforcing the statute as written.” Fitzgerald v. Advanced Spine Fixation Sys., Inc.,