On November 5, 2026, in the first Texas ruling on the question, the Fifth District Court of Appeals in Dallas held that asbestos exposure before 1971 does not bar a mesothelioma negligence claim against an employer under the Texas workers’ compensation law. DuBose Law Firm represents the family of Louie Scudder, the former La Gloria refinery worker whose case produced the ruling in Scudder v. Tyler MD Holdings LLC, No. 05-24-01078-CV.
Before August 30, 1971, the workers’ compensation law barred negligence lawsuits against employers only for certain listed injuries, and mesothelioma was never one of them. The court sent the case back to the trial court so the Scudder family can have their day in court on Mr. Scudder’s negligence claims. “This is a great win for the Scudder family and for future Texas mesothelioma victims seeking justice,” said Ben K. DuBose, who represents the family with Greg W. Lisemby of DuBose Law Firm, Sean Cox of the Law Office of Sean Cox, and co-counsel Allen Hossley of Hossley Embry.
What did the court decide?
Louie Scudder worked at the La Gloria refinery from 1958 to 1964 and again from 1966 until he retired in 1998. As a maintenance helper and insulator helper, he drilled through and cut asbestos pipe covering, mixed dry insulating cement, and swept up the dust. He was diagnosed with pleural mesothelioma in November 2019 and died in June 2022 at age 83. His son sued Tyler MD Holdings LLC, the company now responsible for the refinery’s liabilities.
Before trial, the court handling Texas asbestos cases ruled that the workers’ compensation law barred every claim except gross negligence. A jury then found that asbestos at the refinery caused Mr. Scudder’s death and that his death resulted from the company’s gross negligence.
On appeal, the court reversed the pretrial ruling. Mr. Scudder’s exposure before 1971 came at a time when mesothelioma was not covered by the workers’ compensation law, and the company never showed it had coverage for mesothelioma during those years. The insurance papers it offered after 1971 also did not prove coverage either. The negligence claims that had been dismissed now return to the trial court.
Why does 1971 matter for Texas asbestos claims?
Texas workers’ compensation is a trade off. Injured workers get benefits without having to prove their employer was at fault, and in exchange they generally cannot sue the employer. Lawyers call this the exclusive remedy rule. The law makes one exception for death cases: a surviving spouse and children can still recover exemplary damages if the employer’s gross negligence caused the death.
Which diseases the law covered has changed over time. Before 1947, no asbestos disease was covered at all. A 1947 amendment added asbestosis but not mesothelioma. The 1971 amendment broadened coverage to occupational diseases in general, and the Legislature wrote into it that rights connected to injuries before that date would not be affected.
The company argued that Mr. Scudder’s mesothelioma was a single injury that could not be divided into years before and after 1971. The court disagreed. Mr. Scudder was exposed from 1958 to 1970, when mesothelioma was not a covered disease, so the company had to prove it carried coverage for mesothelioma during those years before it could claim the protection of the exclusive remedy rule. It offered no such proof.
Does staying under OSHA limits protect an employer from a gross negligence finding?
No. The company argued it could not have been grossly negligent because Mr. Scudder’s exposure in the 1970s was a small fraction of what OSHA allowed. The court rejected that argument. It explained that OSHA limits set a minimum standard and are not a level below which asbestos is safe, particularly for mesothelioma, which can develop after low levels of exposure.
The jury also heard that before 1980, Mr. Scudder was never warned about asbestos, never given safety training or a respirator, and never saw the refinery test its air for asbestos. He did not receive asbestos training until 1989. The court upheld the jury’s findings that the company’s asbestos caused his death and that the company was grossly negligent.
What happens next in the Scudder case?
Either side may still ask the Supreme Court of Texas to review the decision. If the decision stands, the case returns to the 192nd District Court in Dallas County for a trial on Mr. Scudder’s common law negligence claims.
What does this ruling mean for former Texas workers and their families?
Refineries, chemical plants, and power plants across Texas used asbestos insulation heavily in the 1950s and 1960s, and mesothelioma often appears decades after exposure. Families of workers from that era have often been told that workers’ compensation closes off any lawsuit against the employer. This decision holds that exposure before August 30, 1971 does not bar a mesothelioma negligence claim unless the employer proves it actually had coverage for mesothelioma, and that for later years an employer has to prove its coverage with satisfactory evidence to establish it was a subscriber.
Many former workers may be at an increased risk for mesothelioma and asbestos-related lung cancer. While the Scudder decision was specific to Mr. Scudder’s case, for workers whose exposure began before 1971, they may still have a negligence claim against their employer.
