A recent decision in Texas could create a new pool of asbestos premises plaintiffs, not previously recognised under Texan law.

The verdict reached in Behringer -vs- Alcoa in February 2006 in the 160th Judicial District Court of Dallas County, Texas, may create a new pool of asbestos premises plaintiffs that were not previously recognised under Texas law. Barbara Behringer and her current husband sued Alcoa and several other defendants claiming that they were liable for mesothelioma she allegedly developed as a result of second hand exposure more than forty years after her divorce from a former Alcoa employee.

Alcoa, the lone defendant when the case went to trial, asserted that by seeking to hold a premises owner liable for an unforeseeable off-premises injury, Behringer sought to create a new legal duty in Texas. The jury found that Alcoa owed a duty to Behringer, breached that duty and the breach was the proximate cause of Behringer's mesothelioma. The jury awarded her $12.2 million in actual damages and $10 million in exemplary damages and another $1.5 million in actual damages and $2 million in exemplary damages to Mr Behringer for his claim of loss of consortium. Alcoa has appealed and argues that a premises owner owes no duty of care to a non-employee who has never been on its premises but who claims to have been exposed to asbestos fibers carried off of the premises on the clothing of another. 

Limitless possibilities
In decisions beginning in late 2005, the highest courts in New York and Georgia have declined to create a duty owed by premises owners to remote plaintiffs based on second hand asbestos exposure. The New York courts reasoned that creating a new duty would create the potential for “limitless liability to an indeterminate class.”

A decision by the Texas Court of Appeals affirming the trial court's verdict will start the trickle that could grow into a massive flood of “limitless plaintiffs.” The impact to premises owners and insurers could be enormous. A reversal of the trial court's verdict would send a clear signal that Texas courts are not interested in fashioning new law to bring solvent defendants to the table. Additionally, it will add credence to the growing number of similar decisions around the country.

The appeal will be closely followed by both the plaintiff and defendant asbestos bars as it will dictate how second hand exposure cases are litigated in the future in Texas..

This Feature item appeared in issue 110 of JTW News - November 2006

Author: Norman Vermette - Alay Gray