Texas appeals court: More evidence needed in asbestos case

John O'Brien Mar. 1, 2010, 3:18pm

FORT WORTH, Texas (Legal Newsline) - A Texas appeals court has agreed with a lower court's ruling that the plaintiffs in an asbestos suit could not show that Kelly-Moore Paint Co. helped cause a deceased man's mesothelioma.

Kelly-Moore is the only remaining defendant in the case of Dorman Smith, a self-employed drywaller who used the company's chrysotile-containing joint compound and was diagnosed with the disease in 2005. He passed away shortly after.

The case was transferred to the state's 11th District Court, a multidistrict litigation pretrial court. There, the company was granted a no-evidence summary judgment which was affirmed Friday by the Court of Appeals for the Second District.

"It appears well-established in the scientific literature presented by the Smiths that there is a threshold dose above which a person has an elevated risk of developing asbestosis from chrysotile-only exposure," the opinion says.

"But that same evidence does not support a minimum threshold dose for chrysotile only exposure thatwould increase one's risk of developing mesothelioma."

The state Supreme Court has ruled that asbestos plaintiffs must show that a product was a substantial factor in causing injury. To prove that substantial factor, a plaintiff has to show frequent, regular and proximate exposure to the product and produce evidence that the exposure increased the risk of injury.

The other defendants in the lawsuit had already settled or been dismissed from the suit.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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