Friday, August 31, 2018

TTCA: Did Asbestos in the Courthouse Kill a Long-time Judge?

Justice Terry Jennings parts ways with colleagues in suit by widow of Jefferson County judge over asbestos exposure in the Jefferson County Court House. Jefferson County sought dismissal of widow's claims against county but MDL Judge Mark Davidson denied the County's bid to squash her wrongful death action. On appeal to the First Court of Appeals, panel majority (consisting of Massengale and Caughey) vacates the denial and dismisses the widow's case, faulting her for not giving timely notice of claim under the Tort Claims Act before anyone knew that the deceased judge suffered from mesothelioma. Ellarene Farris, Individually and as Personal Representative of the Heirs and Estate of James Farris No. 01-17-00493-CV (Tex.App. – Houston [1st Dist.] August 31, 2018).

You have to be a Texas lawyer to understand the logic of it all, if any. How can you give notice of claim when the ill effects of the asbestos exposure have not yet manifested themselves?

Justice Jennings' dissent makes much more sense.


Opinion issued August 31, 2018
In The
Court of Appeals
For The
First District of Texas
NO. 01-17-00493-CV

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2005-09580


[Judge James] Farris, who was 72 when he died, spent almost
his entire legal career[, until retiring in 1996,] in the Jefferson County
courthouse[, which included a period of asbestos remediation at the
courthouse, during which he was allegedly exposed to the deadly
fibers] . . . .
. . . .
“He had just given a speech in Idaho in October 2004,” Ellarene
Farris said. “He came home and said he couldn’t do it anymore. He
went into the hospital and nine days later, he was dead.”
She said her husband had no idea he suffered from
mesothelioma, a cancer of the lining of the lungs. The symptoms
began as an abdominal pain that wouldn’t quit and ended soon after
with a struggle to breathe.1
1 Dan Wallach, Death Suit Blaming Asbestos in Jefferson County Courthouse Could End, BEAUMONT ENTERPRISE, Sept. 12, 2016, (emphasis added) (Exhibit 3 to Jefferson County’s Amended Plea to the Jurisdiction and Amended Motion for Summary Judgment and Amended No Evidence Motion for Summary Judgment). 

Because the majority errs in misconstruing Texas Supreme Court precedent and dismissing the wrongful death and survival action of appellee, Ellarene Farris, against appellant, Jefferson County, Texas, for failure, pursuant to the Texas Tort Claims Act, to provide “timely” notice in 1997 of a non-existent claim, I respectfully dissent.

The Texas Tort Claims Act waives governmental immunity to suit in certain specified circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021–.29 (Vernon 2011). And the statute provides:

A governmental unit is entitled to receive notice of a claim against it
under this chapter not later than six months after the day that the
incident giving rise to the claim occurred. The notice must reasonably

(1) the damage or injury claimed; 
(2) the time and place of the incident; and
(3) the incident.

Id. § 101.101(a) (Vernon 2011) (emphasis added). 

Clearly, the statute “does not require notice of a nonexistent claim.” Hous. Auth. of Beaumont v. Landrio, 269 S.W.3d 735, 745 (Tex. App.—Beaumont 2008, pet. denied) (citing Univ. of Tex.
Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004), superseded by statute on other grounds, Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783 (codified at TEX. GOV’T CODE ANN. § 311.034)).

Judge Farris died of mesothelioma on November 5, 2004, a mere nine days
after exhibiting his first symptoms of illness and nearly eight years after his last
exposure to asbestos in the Jefferson County courthouse and annex in December
1996. His widow, Ellarene, provided, pursuant to the Texas Tort Claims Act,
Jefferson County with written notice of her claims against it on April 4, 2005, less
than six months after the emergence of Judge Farris’s first symptoms and,
ultimately terminal, diagnosis. Stunningly, the majority holds that the claims
asserted by Ellarene are barred by governmental immunity because she did not
provide notice of them to Jefferson County within six months of Judge Farris’s
final exposure to asbestos in December 1996—before the existence of any injury
or damage. See TEX. CIV. PRAC. & REM. CODE § 101.101(a). 

Based on the majority’s reasoning, Judge Farris was required to provide
Jefferson County with notice of a premature and speculative claim within six
months of December 1996. See Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex.
1998) (“Requiring plaintiffs to file suit based only upon their suspicions about
causal connections is . . . undesirable in latent occupational disease cases because,
among other things, plaintiffs would be compelled to file premature, speculative
claims.”). But at that time, Judge Farris did not yet have a claim against Jefferson
County for which he could provide notice because it was nearly eight years before
he exhibited any symptom or was diagnosed with mesothelioma, i.e., before any
damage or injury to him had come into existence. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.101(a). Instead, his claim relating to a malignant
asbestos-related condition arising from his employment with Jefferson County did
not accrue until his diagnosis or the manifestation of symptoms that put him on
notice of his condition. See Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653
(Tex. 2000); see also Childs, 974 S.W.2d at 33 (accrual of damages in latentdisease
cases not until “plaintiff’s symptoms manifest themselves to a degree or for
a duration that would put a reasonable person on notice”).

Here, as previously explained by the Texas Supreme Court, Judge Farris’s
exposure to asbestos in the Jefferson County courthouse and annex “was only an
incident—one of two—giving rise to [any] claim” he might have against Jefferson 
County. Loutzenhiser, 140 S.W.3d at 356 (emphasis in original). In Loutzenhiser,
a mother, individually and on behalf of her child, brought suit against the
University of Texas Southwestern Medical Center at Dallas, alleging that a
chorionic villus sampling (“CVS”), a prenatal diagnostic test, performed by the
Medical Center caused her child to be born with birth defects. Id. at 354. The
court held that section 101.101(a)’s six-month-notice period ran from the birth of
the child, not the date that the Medical Center performed the CVS. Id. at 356. The
court explained:

The Medical Center argues that “the incident giving rise to the claim”
was the CVS, but the CVS was only an incident—one of two—giving
rise to the claim. The other such incident, and one equally necessary
to the existence of the claim, was [the child’s] live birth. If the notice
period ran from the CVS, the statute required notice of a nonexistent
claim. “Courts should not read a statute to create such an absurd
result.” We decline to do so here when there is a reasonable
alternative construction of the statutory language. Because [the
child’s] live birth was an incident giving rise to his claim, and one
essential to the existence of the claim, we hold that the six-month
period for giving notice began when [the child] was born.[2]
Id. at 356–57 (quoting Barshop v. Medina Cty. Underground Water Conservation
Dist., 925 S.W.2d 618, 629 (Tex. 1996)).

2 The baby, until born, legally had no claim because of “the longstanding common
law rule . . . that the rights of a fetus [are] contingent on live birth.” Univ. of Tex.
Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004)
(second alteration in original) (internal quotations omitted).

As in Loutzenhiser, if the notice period in this case runs from Judge Farris’s
last exposure to asbestos, it would require “notice of a nonexistent claim.” See id.
at 356. Thus, section 101.101(a)’s notice period must run from the date that Judge
Farris’s injuries and damages arose, nine days before his death.

In reaching the opposite conclusion, the majority misconstrues
well-established Texas Supreme Court precedent, including Loutzenhiser. Because
Judge Farris had not suffered any damage or injury, and did not even arguably
have a claim against Jefferson County, until nine days before his death, I would
hold that Ellarene’s notice, provided within six months of Judge Farris’s first
symptoms and, ultimately terminal, mesothelioma diagnosis, was timely.

The majority’s conclusion to the contrary should be corrected by our high
court. See TEX. GOV’T CODE ANN. § 22.001(a) (Vernon Supp. 2017) (“The
supreme court has appellate jurisdiction . . . if the court determines that the appeal
presents a question of law that is important to the jurisprudence of the state.”).

Terry Jennings

Panel consists of Justices Jennings, Massengale, and Caughey.
Jennings, J., dissenting

Order denying Jefferson County's motions for dismissal of widow's case signed by Judge Mark Davidson
Order denying Jefferson County's motions for dismissal of widow's case
signed by Judge Mark Davidson
Also see Beaumont Enterprise article: Death suit blaming asbestos in Jefferson County courthouse could end. By Dan Wallach Published 9:45 am CDT, Monday, September 12, 2016.

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