Charlotte Hearn v. Kathryn Snapka ( 2012 )

NUMBER 13-11-00332-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLOTTE HEARN, Appellant,
v.
KATHRYN SNAPKA, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
DISSENTING MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Dissenting Memorandum Opinion by Justice Vela
The majority holds that Hearn failed to raise fact issues on the “suit-within-a-suit”
requirement and the amount of damages that would have been recoverable and
collectible had the suit been properly prosecuted. The majority also refers to the motion
filed by Snapka as a hybrid motion for summary judgment. Because I believe Hearn’s
summary judgment evidence was sufficient to raise fact issues that should have negated
the granting of a summary judgment, I respectfully dissent.
The record shows that Hearn was diagnosed with papillary mesothelioma related
to asbestos exposure in 2004. The record is undisputed that Hearn suffered from well
differentiated papillary mesothelioma ("WDPM"), which is a rare form of mesothelioma.
By July 2004, Hearn had retained Snapka to represent her with respect to her
asbestos-related claims. On January 23, 2006, Snapka filed an asbestos lawsuit
against Alcoa, Inc., Hearn's former employer. The lawsuit was removed to federal court,
and in 2009, summary judgment was granted in favor of Alcoa because Hearn's claims
were barred by the exclusivity provision of the workers' compensation statute.
Snapka moved for a no-evidence motion for summary judgment, urging that Hearn
had produced no evidence that "but for" Snapka's alleged negligence, Hearn would have
successfully proved the liability of Alcoa and the companies or entities that manufactured
or supplied the asbestos products to which Hearn was exposed. The motion also stated
that Hearn had not provided a scintilla of evidence that she could prove and obtain
findings with respect to the amount of damages that would have been recoverable and
collectible if the case had been prosecuted in the manner Hearn alleged would have been
proper.
At the outset, I note that the majority treats Snapka’s motion for summary judgment
as a hybrid motion; however, the motion was called a “No Evidence Motion for Summary
Judgment” and should be reviewed accordingly. I would then hold that the affidavit of
Mark Iola was sufficient to raise a fact issue that but for Snapka’s alleged negligence,
Hearn would have received substantial damages from settlement of her tort claims and
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from resolution of Hearn’s administrative bankruptcy claims. Iola's affidavit established
that in 2004 and 2005, claims for mesothelioma, including WDPM, survived summary
judgment as long as there was evidence of occupational exposure to the product or
equipment manufactured by the defendant. Iola opined that administrative claims
should have been filed on Hearn’s behalf with several bankruptcy trusts and, if that had
happened, Hearn would have received substantial sums as a result. Specifically, Iola
opined: "In fact, I am aware that, merely by averring Ms. Hearn worked at the Alcoa
Point Comfort facility (and showing that she has mesothelioma), Ms. Hearn would have
qualified to receive compensation from several bankruptcy trusts, including: Owens
Corning, Fibreboard, Manville and J.T. Thorpe."
In 1994, Congress statutorily dealt with asbestos-related bankruptcies. A
reorganization plan, under the statute, created trusts, which processed claims through
procedures voted on by the claimants and approved by the bankruptcy court. Medical
and exposure criteria were set forth in documents called the "Trust Distribution
Procedures." Lester Brickman, Ethical Issues in Asbestos Litigation, 33 HOFSTRA L. REV.
833, 869 (2005). The trust distribution procedures allowed "substantial portions of trusts'
assets to be paid out irrespective of whether claimants are actually injured or were
sufficiently exposed to defendants' products for that to have been a substantive factor in
causing their injury." Id. at 870.
Iola's affidavit is evidence that if Snapka had met the standard of care and filed
administrative claims with the various bankruptcy trusts, Hearn would have recovered a
settlement. His affidavit was based upon his personal knowledge and experience with
respect to how those particular claims were handled at the relevant period of time. Thus,
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I would hold that Hearn created a fact issue with respect to whether Hearn could have
recovered under the bankruptcy trusts, precluding a no-evidence summary judgment.
I would not apply Borg-Warner to this case. Borg-Warner Corp.v. Flores, 232
S.W.3d 765 (Tex. 2007). Several legal articles, written after Borg-Warner, noted it as a
change in the law. See, e.g., Thomas L. Arnold, Toxic Tort—Causation in Asbestos
Claims—The Texas Supreme Court Creates New Causation Requirement and Leaves
Numerous Victims Without a Remedy, 61 SMU L. REV. 487 (2008); Julie Offerman, "The
Dose Makes the Poison": Specific Causation in Texas Asbestos Cases After
Borg-Warner, 41 TEX. TECH. L. REV. 709, 721 (2009); John S. Gray, "Some" is no Longer
Enough in Toxic Tort Cases, 45 HOU. LAWYER 54 (October 2007). Thus, I would agree
with Hearn that the requirements, as stated in Borg-Warner, would not have applied to her
underlying case that was filed before Borg-Warner was issued. I would reverse and
remand the case to the trial court.
ROSE VELA
Justice
Delivered and filed the 28th
day of December, 2012.
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