Texas Supreme Court Refuses to Get Carried Away with Take Home Toxic Tort Cases
December 10, 2008
Matt Martin, Keith Kodosky and Sarah Reise
On November 21, 2008, Texas became the latest state to take a position on the so-called take home toxic tort cases, when the Texas Supreme Court declined to review an appeals court decision that threw out a $15.6 million jury award, based in negligence, to a homemaker whose mesothelioma was linked to laundering her husband's asbestos-laden work clothes in the 1950s (Behringer v. Alcoa Inc., Tex., No. 07-0956, petition for review denied 11/21/08). Without comment, the state's high court left in place the ruling of the Texas Court of Appeals for the Fifth District that the employer, Alcoa Inc., owed no duty to protect a worker's spouse from intermittent, non-occupational exposure to asbestos fibers because the resulting injury was not foreseeable in the 1950s. The holding applied to an employer's duty, not a manufacturer's, the appeals court said. The strict-liability analysis applicable to manufacturers does not require proof of foresee ability, according to the appeals court.