The Texas Supreme Court recently ruled that a law requiring that plaintiffs alleging exposure to asbestos or silica demonstrate more than a minimal level of impairment is a substantive change in the law and is preempted by federal law with respect to cases subject to the Jones Act (admiralty). The NAM and other groups filed a brief 2/3/09 urging that court to be careful during reconsideration of the case to limit its ruling to Jones Act cases, since it might be wrongly interpreted as weighing against the constitutionality of the law when applied to other asbestos and silica claims. A variety of considerations, including Texas common law, the strong public interest expressed by the state legislature, and the presumption in favor of constitutionality should lead the court to limit the breadth of its ruling.
In February, 2009, the court declined to rehear the case and said nothing about limiting the scope of its decision to Jones Act cases. The constitutionality of the asbestos and silica reforms are the subject of further litigation at the trial level in Texas.