Texas high court says asbestos plaintiffs can sue more than once.

A recent ruling by the Texas Supreme Court will give many workers in that state who have suffered debilitating asbestos-related injuries more than one chance to seek recovery in court. Carving out a narrow exception to the statute of limitations and the single-action rule, the court concluded that a person who files suit or settles a claim for a nonmalignant asbestos-related condition is not prohibited from filing suit to recover damages for a later-discovered malignant disease. (Pustejovsky v. Rapid-American Corp., No. 98-1128, 2000 WL 1753648 (Tex. Nov. 30, 2000).)

"At least in Texas, workers who are exposed to asbestos and develop one nonmalignant disease will not be barred in the future for claiming damages if another distinct disease develops," said Brent Rosenthal, a Dallas attorney who represented the estate of Henry Pustejovsky Jr.

Pustejovsky learned in 1982 that he had developed asbestosis from working in an asbestos-contaminated environment for more than two decades. Shortly after, he sued Johns-Mansville Corp., an asbestos supplier, and the lawsuit settled out of court.

In 1994, Pustejovsky was diagnosed as having malignant pleural mesothelioma, a cancerous tumor of the lung lining. He then joined three other plaintiffs in suing several asbestos suppliers, claiming the cancer was caused by the same on-the-job asbestos exposure. Johns-Mansville was not named as a defendant in the second suit. Pustejovsky died in 1995, but his survivors continued to press his claim.

Several defendants moved for summary judgment, claiming that Pustejovsky's claim was barred by the statute of limitations. The trial court granted the motion, and the court of appeals affirmed, finding that the second claim violated both the limitations statute and the single-action rule, which limits a plaintiff to one cause of action for all damages arising from a defendant's wrongful act.

Reversing by an 8-0 vote, the Texas Supreme Court concluded that the application of the single-action rule in cases like Pustejovsky's would be unfair. "No amount of due diligence would have allowed Pustejovsky to recover for mesothelioma when he brought his suit for asbestosis," noting that medical evidence showed that only 15 percent of people diagnosed with asbestosis later develop mesothelioma and in Texas a plaintiff must show a greater than 50 percent chance of developing cancer to recover future damages for that disease.

"Because asbestosis and mesothelioma have different latency periods, a plaintiff who suffers from asbestosis may not manifest mesothelioma for several decades, if at all. Permitting limitations to run on terminal injuries before the plaintiff knows of them is unjust," the court said.

The court limited its holding to asbestos-related diseases resulting from workplace exposure and did not reach the question whether its holding applied in cases in which both lawsuits named the same defendants.

Rosenthal thinks it is likely that the decision would have been the same. "The issue wasn't before the court, but the whole point of the decision is that more than one cause of action can arise from the same exposure. If that's true for one defendant, then that's true for all," he said.

The case received a lot of attention, according to Rosenthal, because the Texas high court has a reputation for being defense-oriented in personal injury cases against corporations. But he said the court was simply following the lead of other courts that have considered application of the single-action rule to cases involving latent asbestos-related diseases.

"A lot of people came to me and said, `What a great victory,'" Rosenthal said. "But the truth is that the weight of authority is strong in favor of allowing a separate cause of action, and this court was merely following that."

Nevertheless, Rosenthal said the decision is a victory for workers injured by asbestos exposure and serves the interests of justice. "It's very fair," he said, "and the contrary result would be grotesquely unfair."