In early December, the Texas Supreme Court released two important decisions addressing procedural issues in asbestos and silicosis claims in Texas.
In Re Global Santa Fe Corporation, _____ S.W.3d _____ (Tex. Dec. 5, 2008).
Federal maritime law (The Jones Act) preempts Chapter 90.004(b)(2) of the Texas Civil Practice & Remedies Code, which provides that a silica claim can only be litigated in Texas if the claimant has at least a Class 2 or higher impairment due to Silicosis.
In Santa Fe the plaintiff filed suit in a Texas State Court alleging that the defendant violated the Jones Act, a Federal statute applicable to his claim. The claimant asserted that Chapter 90.004(b)(2) limited his right to assert a Federal Jones Act claim by requiring a “Class 2 or higher” impairment due to Silicosis, a requirement not found in the Jones Act. The Texas MDL pretrial court and the Texas Court of Appeals agreed.
The Supreme Court concluded that in all cases filed in Texas state courts by plaintiffs asserting a violation of the Jones Act, the plaintiff will not be required to comply with Chapter 90.004(b)(2) of the Texas Civil Practice & Remedies Code in prosecuting that lawsuit.
In Re General Electric Company, _____ S.W.3d _____ (Tex. Dec. 5, 2008).
A trial court will be held to have “abused its discretion” by retaining jurisdiction in a lawsuit in which the “forum non conveniens” statute factors applicable to the dispute favor a state other than Texas (Chapter 71.051(b)(1)-(6), Texas Civil Practice & Remedies Code).
A resident of Maine sued a variety of companies in Texas for alleged asbestos injuries. The basis for jurisdiction was that some of the companies were based in Texas. The defendants moved for dismissal, arguing that the case should be brought in Maine, where the claimant lives and was employed and was allegedly exposed to asbestos containing products. The claimant resisted the motion, arguing that if forced to file the suit in Maine, the defendants would remove the case to Federal Court and ultimately to the Federal asbestos MDL court, where the case would likely become caught up in a procedural quagmire and not be tried before the critically ill claimant died. The trial court agreed, refusing to dismiss the Texas lawsuit.
The Texas Supreme Court reviewed the Texas forum non conveniens statute, Chapter 71.051(b) Texas Civil Practice & Remedies Code, which provides that a court “shall” decline to exercise jurisdiction where the court finds that “in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside the state”. The court held that a trial court lacks discretion under the statute and must decline to exercise jurisdiction whenever the applicable statutory factors “favor the conclusion that an action or claim would be more properly held in a forum outside Texas”. Because the court found Maine to be a more proper form, when applying the applicable statutory factors, the General Electric Company found that the Texas trial court abused its discretion and directed the trial court to dismiss the case.
Under General Electric, then, Texas trial judges do not have discretion to maintain jurisdiction over cases in which all of the statutory factors applicable to the dispute favor the forum outside Texas.
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U.S. SUPREME COURT EXPANDS EMPLOYERS’ LIABILITY FOR RETALIATION
CBOCS West, Inc.
v. Humphries, No. 06-1431, ___ U.S. ___ (2008).
On May 27, 2008, the United States Supreme Court issued a new
decision that affects the types of retaliation claims an employee
may assert against an employer. This new case addresses the
whether 42 U.S.C. § 1981 encompasses retaliation claims.
In CBOCS West, Inc. v. Humphries, No. 06-1431, ___ U.S. ___
(2008), the Supreme Court was asked to decide whether § 1981
encompasses retaliation claims or whether it simply prohibits
racial discrimination in the enforcement of contracts. The Court
held that § 1981 provides a cause of action for retaliation. The
Court based its decision on its prior interpretations of § 1982, a
statute designed to prohibit racial discrimination in the
ownership of property. Because § 1982 has been interpreted to
provide for a retaliation cause of action, and because courts have
interpreted § 1982 and § 1981 similarly because of their “common
language, origin, and purposes,” § 1981 is also read to provide a
retaliation cause of action. In reaching this decision, the Court
also looked to a more recent statute and its legislative history
to support the notion that Congress intended for there to be a
cause of action for retaliation.
The effect of this decision is that employees now have the ability
to assert Title VII retaliation claims and § 1981 retaliation
claims against employers. Employers should keep in mind that §
1981 does not impose the same administrative and procedural
requirements as Title VII. In short, when read in combination with
Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 63 (2006)
(expanding what actions employees can claim to be adverse
employment actions in a Title VII retaliation claim), the Supreme
Court has expanded, yet again, the ability of employees to assert
claims of retaliation against their employer.
The decision was written by Justice Breyer, and was joined by
Chief Justice Roberts and Justices Stevens, Kennedy, Souter,
Ginsburg and Alito. Justice Thomas filed a dissenting opinion that
was joined by Justice Scalia.
The employment litigation attorneys at Fanning Harper Martinson
Brandt & Kutchin are happy to provide copies of this new opinion to you and, as
always, are available to discuss with you these important cases.
To find out more about these attorneys, or more about our firm,
please visit our website at www.fhmbk.com.
