1st District Court of Appeals of Texas Finds Medical Criteria Bill Unconstitutional When Retroactively Applied

Union Carbide Corp. v. Synatzske

June 30, 2011

On June 30, 2011, the First Court of Appeals of Texas issued an opinion on the constitutionality of section 90.010(f)(1)(B)(ii)'s requirement of a pulmonary function test for plaintiffs claiming non-malignant asbestos-related injuries. The opinion is fairly narrow and tied to the unusual facts of the case.

The court held the statutory requirement is unconstitutional as applied retroactively to this claimant, whose asbestos-related impairment was undisputed, and sufficiently supported by other medical evidence.    

The plaintiffs' decedent died before Chapter 90 became effective. He therefore could not submit to a pulmonary function test to comply with the new requirements of Chapter 90. Thus, applying section 90.010(f)(1)(B)(ii)'s requirement of a pulmonary function test would have extinguished his family's asbestos-related injury claims. 

The court held there was no compelling reason for retroactively applying section 90.010(f)(1)(B)(ii) because, in this case, a pulmonary function test was not necessary to establish the decedent's asbestos-related impairment. Other medical evidence was available. Retroactive application of section 90.010(f)(1)(B)(ii), which would necessarily defeat any claim of Mr. Emmite, was therefore unconstitutional. 

The opinion relied heavily on the recent opinion in Robinson, the decision finding the "Crown Cork" statute unconstitutional.  The First Court of Appeals noted "an application of the Texas Supreme Court's newly articulated test for determining whether a statute is unconstitutionally retroactive compels our conclusion that  section 90.010(f)(1)(B)(ii)'s requirement of a verification [that claimant had a pulmonary function test] in order for the Emmites to assert their asbestos-related injury claims is unconstitutional as applied to them." The court then considers the public interest served by the statute (is it compelling?), and the nature and extent of the "prior" rights that were impaired by the statute.  

The opinion does contain some broad statements.  Others may argue it supports a conclusion that the medical criteria provisions of Chapter 90 are unconstitutional when they have the effect of eliminating tort liability "for conduct that occurred before the enactment of the statute."  Opinions are susceptible to many interpretations, and we will continue to review this opinion and the developments that follow.

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