The Texas Supreme Court recently heard oral arguments for an asbestos lung cancer case that will determine whether, under Texas law, independent contractors can hold property owners liable for injuries related to asbestos exposure.

The asbestos lung cancer lawsuit was brought to federal court by plaintiff Robert H., now deceased, back in June 2010 and named 10 different defendants in a Dallas County District Court who allegedly contributed to the plaintiff’s asbestos exposure. One of those 10 defendants was Dow Pharmaceuticals.

A jury found Dow Pharmaceuticals 30 percent at fault for Robert’s asbestos related cancer and awarded him and his family a $9 million dollar verdict. However, the court entered an amended judgment holding Dow Chemical liable for $2.64 million. During the asbestos lung cancer trial, the jury found that between 1967-1968, Robert was exposed to asbestos while working as an independent contractor at Dow Chemical’s Freeport facility. As a hired independent contractor, Robert’s job at Dow Chemical required him to install insulation (containing asbestos) on pipes while Dow’s own employees worked a few feet away tearing old insulation off the pipes.

Although the plaintiff won this asbestos lung cancer lawsuit at the trial level, the 5th U.S. District Court of Appeals reversed the judgment. The Texas Supreme Court’s decision was based on chapter 95 of the Texas Civil Code. According to the civil code, Texas law prevents property owners (like Dow Chemical) from being held liable for the injury or death of contractor (like Robert) due to the property owner’s failure to provide a safe workplace, unless the property owner exercises control over how the work was performed or had actual knowledge of the danger and failed to adequately warn the contractor. A key distinction between employees and independent contractors lies in an employer’s ability to direct the means and manner in which an employee performs their work, while independent contractors are allowed to choose how their tasks are accomplished.

This decision by the Texas Supreme Court regarding the rights of contractors could have substantial effects on Dow Chemicals and similar companies’ abilities to use chapter 95 of the Texas Civil Code as a liability defense for property defects and negligence claims. If the court determines that chapter 95 of the Texas Civil Code does prevent Robert from recovering money, this would mean that the employees of Dow Chemical, working feet away from Robert, would be allowed to recover damages if they developed asbestos related lung cancer. However, Robert, as an independent contractor, would be left without any means of legal recourse for his alleged asbestos lung cancer condition.

What is Asbestos and Asbestos Lung Cancer?

Asbestos is a toxic fibrous mineral found in many construction materials prior to 1990. In many patients, asbestos related illnesses may take 20–50 years before an individual presents with physical symptoms, and for many, the asbestos-related diagnosis comes too late for any successful lung cancer treatment. Certain professions carry a higher risk of developing asbestos lung cancer. These professions include shipyard workers, construction workers, and many others professions that require an individual to work in small spaces with little to no protection from potential asbestos exposure.

Lung cancer is the one of the most common forms of cancer in the United States with nearly 200,000 cases diagnosed annually. Each year over 4,800 deaths occur due to asbestos lung cancer alone. The causes of lung cancer are often due to multiple factors. However, the majority of asbestos lung cancer cases are connected to tobacco smoke inhalation, a connection that many companies who use asbestos-containing machinery or produce asbestos-containing products attempt to exploit in order to shift responsibility for the asbestos exposure from themselves to tobacco users. But regardless of this connection, many attorneys have successfully argued asbestos lung cancer cases and won substantial awards and settlements for their clients who were unknowingly exposed to asbestos while on the job.

The Asbestos Lung Cancer Lawsuit is Case No. 13-0175, filed in the Texas Supreme Court.