Document b597JE869xpbjxRraMKy1abY3

proceeded to trial against the remaining defendant* a relatively small company- The verdict was $3*000,000. If the ruling in Borel is followed, the plaintiff would recover $2,600,000 from the litigating defendant, but if the pro rata rule is followed, he would recover only 1/14 of the verdict or $214,285 or about 2.4 million less. At the moment of this writing no decision has been made by the Trial Court. I personally am firmly of the 19/ opinion that the pro rata rule should be applied. I cannot close without some comments on the true nature of the so-called "sales defect" case, or warning case. As I have indicated, there are a number of decisions from the appellate courts holding that a defendant may not defend on the basis of the State of the Art at the time the product was manufactured. This might be justified in a case involving a manufacturing 20/ defect, or even a design defect. I do not see how this can be justified in a warning case, which actually is a case involving a sales defect. In an asbestosis case, we are not dealing with 19/ Palentlne Contractors, Inc, v. Perkins, 386 S.W.2d 764 (Tex. Sup. Ct. , 1964). See too Petco Corporation y. Plummer, 292 S.W.2d 163 (Civ. App.--Dallas, l965). See 25 American University Law Review 236 (1975). 20/ A recent Texas case has held that State of the Art is no defense in a design case. Bailey v. Bootland of Houston, Inc., 585 S.W.2d 805 (Civ. App.'Houston, 1979). Application for Writ of Error has been granted by the Supreme Court of Texas, and we can expect a ruling by the Supreme Court late this fall. See too Cunningham v. MacNeal Memorial Hospital, 266 NE (2d) 8976 (111.',' 1970)': -18- 8P01 JCOO PRODUCED BY FORD