By: Duncan S.B. No. 1123
(In the Senate - Filed February 25, 2009; March 13, 2009,
read first time and referred to Committee on State Affairs;
April 6, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 2; April 6, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1123 By: Duncan
A BILL TO BE ENTITLED
AN ACT
relating to the standard of causation in claims involving
mesothelioma caused by exposure to asbestos fibers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 90, Civil Practice and Remedies Code, is
amended by adding Section 90.013 to read as follows:
Sec. 90.013. STANDARD OF CAUSATION FOR CLAIMS INVOLVING
MALIGNANT MESOTHELIOMA. (a) To recover damages for malignant
mesothelioma allegedly caused by exposure to asbestos or asbestos
containing products, the claimant must prove, among other elements
of the claim, that a defendant's product or conduct was a
substantial factor in causing the claimant's injury.
(b) A defendant's product or conduct was a substantial
factor in causing the exposed claimant's injury if the claimant
presents qualitative proof that the asbestos exposure attributed to
the defendant was substantial, and not merely de minimis, when
considering:
(1) the frequency of the exposure;
(2) the regularity of the exposure; and
(3) the proximity of the claimant to the source of the
asbestos fibers.
(c) A defendant who seeks a determination of the percentage
of responsibility of another person under Section 33.003(a) must
present qualitative proof in the same manner as is required of a
claimant under Subsection (b).
(d) Neither a claimant nor a defendant seeking a
determination under Section 33.003(a) shall be required to prove
numerically the dose, approximate or otherwise, of asbestos fibers
to which the claimant was exposed that are attributable to the
defendant or another person under Section 33.003(a).
(e) Nothing in this section modifies the general legal
requirements for the admissibility of expert testimony with respect
to the issue of causation.
SECTION 2. Section 90.013, Civil Practice and Remedies
Code, as added by this Act, applies to an action commenced on or
after the effective date of this Act or pending on the effective
date of this Act and in which the trial, or any new trial or retrial
following motion, appeal, or otherwise, has not commenced on or
before the effective date of this Act. An action commenced before
the effective date of this Act in which trial has commenced on or
before the effective date of this Act or in which there has been a
final, unappealable disposition by order, judgment, voluntary
dismissal, or otherwise is governed by the law applicable to the
action immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 3. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are declared to be severable.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.
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