Union Carbide Corporation v. Daisy E. Synatzske and Grace Annette Webb, Individually and as Representatives and Co-Executrixes of the Estate of Joseph Emmite, Sr., Joseph Emmite, Jr., Dorothy A. Day, Vera J. Gialmalva and James R. Emmite

Summary

Justice Lehrmann dissents from the Texas Supreme Court’s decision concerning whether Texas Civil Practice and Remedies Code Chapter 90 requires asbestos plaintiffs to produce pulmonary function testing. The dissent argues that applying the requirement to the Emmites’ wrongful-death claims would violate the Texas Constitution’s prohibition on retroactive laws because the claims accrued before the statute took effect and the required testing was medically impossible. The dissent would affirm the court of appeals’ holding that Chapter 90 was unconstitutional as applied.

Holdings

1. Justice Lehrmann would hold that applying Chapter 90 to the Emmites' claims was unconstitutionally retroactive under article I, section 16 of the Texas Constitution.
2. Justice Lehrmann would hold that the existence of a two-and-a-half-month period between Emmite's death and Chapter 90's effective date did not prevent unconstitutional impairment of the claims.

Questions Presented

1. Whether applying Chapter 90 of the Texas Civil Practice and Remedies Code to the Emmites' asbestos-related wrongful-death claims violated the Texas Constitution's prohibition on retroactive laws.
2. Whether the retroactive application of Chapter 90 substantially impaired the Emmites' accrued right to recover by requiring pulmonary function testing that Joseph Emmite was medically incapable of undergoing.

Disposition

affirmed