Lawyer Mucks Up Asbestos Case; Gets Away with It

A Texas lawyer who botched a tragic mesothelioma asbestos case will get off scot-free according to the Court of Appeals of Texas for, well, reasons that escape me.

Briefly here are the facts. In July 2004, meso victim hires a lawyer to pursue her asbestos claims. Plaintiff had a rare form of meso called well-differentiated papillary mesothelioma. The lawyer waited until January, 2006, to file her lawsuit against various defendants that included negligence, strict liability, and premises liability. The case was removed to federal court.

Plaintiff found a lawyer for her malpractice action against her original lawyer. This new lawyer in turn hired another lawyer – annoyed yet? – who was set to testify that plaintiff would have recovered settlements from multiple tort defendants and asbestos bankruptcy trusts, totaling at least $2,000,000. Plaintiff’s malpractice expert then took the next leap of faith and concluded that these settlements should have been finalized by no later than the end of 2005. Anyone who follows the asbestos docket has now rolled their eyes in the back of their head.

In spite of the fact that the expert went out on a little bit of a limb, it is hard to argue that there was not a screw up here. Missing the statute of limitations is missing the statute of limitations. But a majority of the Court of Appeals of Texas found that plaintiff did not raise fact issues on the “suit-within-a-suit” requirement and – this is the part that shocks me – plaintiff’s future recovery was speculative. I get that that many of these companies were in bankruptcy. But this woman has mesothelioma.

In fairness, the affidavits submitted in the case may have been a little flawed and the court also based its ruling on these deficiencies. Why they were not modified after defendant’s objections is a mystery to me.

I suspect the Texas Supreme Court will get a look at that one. You can read the entire opinion in Hearn v. Snapka here.

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