Over the last two or three years, the asbestos plaintiffs bar and the litigation has been thrown a curve ball by tort reform groups and defendants who have brought their relief pitcher to bear in statehouses to correct the perceived problems in the litigation that arose out of the "elephantine" mess started in the courthouses. 

Now, in Texas as at least, its appears that the plaintiffs have taken the field:  The Texas Legislature currently has before it two bills, SB 1123 & HB 1811, that are of interest to the asbestos crowd.

Back in June 2007 I reported in the Mealey Publications Asbestos Litigation Report about Borg-Warner v. Flores (No. 05-0189; 2007 Tex. LEXIS 528).  In Flores the Texas Supreme Court applied the frequency, regularity and proximity test for causation. 

But the court also held that the standard failed to provide the proper emphasis that Texas places on causation as a repdicate to liability.  And so the court also found that in addition, the exposures at issue must be shown to be a substantial factor giving rise to the disease.

The bills currently working their way through the Texas legislature could do in the statehouse what plaintiffs couldn't do in the courts:  reverse Flores.  The bills would require that plaintiffs bringing a claim for mesothelioma to show that the product was a substantial factor in causing their disease; would require foreseeability, when it is an element of causation; would require that plaintiffs prove cumulative exposure was a cause of their disease; and would require proof that the specific product or conduct at issue was a substantial factor based on the frequency, regularity and proximity of the exposure.

The law specifies that it take effect immediately if it receives a two-thirds vote and on Sept. 1, 2009, if it doesn't.

Stay tuned.