Texas SC rejects 'every exposure' theory in asbestos case

AUSTIN, Texas (Legal Newsline) - The Texas Supreme Court has ruled that an asbestos claimant failed to offer legally sufficient causation evidence, denying the "every exposure" theory on the grounds that simply offering evidence of exposure regarding a dose-related disease should not imply automatic liability.

Justice Don R. Willett delivered the Friday opinion of the court, with Chief Justice Nathan L. Hecht and justices Paul W. Green, Phil Johnson and Jeff Brown joining.

Justice Debra H. Lehrmann dissented with the majority and wrote a separate dissenting opinion. Justices Jeffrey S. Boyd and John Phillip Devine joined.

Plaintiffs Susan Elaine Bostic, individually and as personal representative of the heirs and estate of Timothy Shawn Bostic, Helen Donnahoe and Kyle Anthony Bostic alleged negligence and products liability for the decedent's development of mesothelioma and resulting death.

Defendant Georgia Pacific Corporation appealed the trial court's decision to the Court of Appeals for the Fifth District of Texas.

The Supreme Court affirmed the court of appeals' decision reversing the trial court's verdict and rendered a take-nothing judgment, but did not agree with the language of the lower court's decision.

According to the complaint, Bostic assisted his father Harold Bostic in remodeling projects for friends and family as a child and teenager in the 1960s and '70s. The two allegedly used Georgia Pacific drywall joint compound when performing the construction work.

Bostic alleged he was exposed to asbestos when he mixed the dry compound with water and then sanded the drywall material.

Bostic's father testified at trial that he used Georgia Pacific drywall compound roughly 98 percent of the time.

The decedent also alleged that he was exposed to asbestos from the Knox Glass Company, where he was employed during the summers from 1980-1982. He was required to cut asbestos cloth without respiratory protection. Additionally, he alleged take-home exposure from his father's clothing while his father worked at Knox Glass from 1962 until 1984.

Bostic also claimed he was exposed to asbestos while employed at Palestine Contractors in 1977 and 1978, where he worked with brake pads and other vehicle parts containing asbestos.

Bostic was diagnosed with mesothelioma when he was 40 years old in 2002. He died as a result of the injury in 2003.

Bostic's family filed the lawsuit against Georgia Pacific and several other defendants, alleging the decedent was injured as a result from asbestos exposure to the defendants' products.

The case went to trial in 2006 where the jury found that the defendant was liable under claims of negligence and marketing defect theories. It assessed 25 percent of the causation to Knox Glass Company and 75 percent to Georgia Pacific.

The trial court awarded the Bostics approximately $6.8 million in compensatory damages and about $4.8 million in punitive damages.

Georgia Pacific appealed.

The court of appeals concluded that the evidence of causation was legally insufficient and rendered a take-nothing judgment.

The Bostics appealed to the Texas Supreme Court, arguing that the court of appeals erred when it concluded that the evidence was insufficient.

Agreeing with the lower court, the Supreme Court cited the Flores decision to support its decision.

In Flores, the court concluded that the causation evidence was legally insufficient, holding that the plaintiffs needed to provide defendant-specific evidence relating to the approximate exposure dose and that the dose was a substantial factor in causing the injury, adding that the exposure must be of sufficient magnitude to exceed the threshold before the likelihood of causation can be inferred.

Relating to this case, Flores raises the issue of the "every exposure" theory. Willett explained that when dealing with dose-related diseases, including mesothelioma, any exposure alone will not suffice to establish causation because the likelihood of developing a disease increases with the dose.

"If any exposure at all were sufficient to cause mesothelioma, everyone would suffer from it or at least be at risk of contracting the disease," Willett wrote.

Willett explained that the every exposure theory negates the plaintiff's burden to prove causation by a preponderance of evidence because it accepts that the failure to find a safe dose means that every exposure causes the illness, even background exposure.

Furthermore, Willett stated that proof of exposure from a defendant alone "should not end the inquiry and result in automatic liability."

"[E]ven in mesothelioma cases, liability cannot be imposed on every conceivable defendant whose product exposed the plaintiff to some unquantified amount of asbestos, without proof of something more," he added.

Willett further explained that the any exposure theory is illogical in such cases where any exposure to a defendant's product above background levels impose liability while the background level itself has a range of contamination varying from location to location and should still be ignored.

"We fail to see how the theory can, as a matter of logic, exclude higher than normal background levels as the cause of the plaintiff's disease, but accept that any exposure from an individual defendant, no matter how small, should be accepted as a cause in face of the disease," he wrote.

However, Lehrmann wrote in his dissent that the plaintiffs weren't relying on the every exposure theory to begin with, stating that the majority simply misunderstood expert testimony.

"I agree with the court that evidence that the plaintiff was exposed to any quantity of the defendant's asbestos, without more, is insufficient by itself to prove the causal link between a particular defendant's product and the plaintiff's injury," he wrote. "But this is not a controversial stance - no one argues that it should."

Beyond the questionable every exposure allegation, the Bostics argued that the court of appeals erred when it required them to prove "but for causation" in addition to substantial factor causation. Attempting to clarify, the Supreme Court assumed that the appeals court required the plaintiff to satisfy a proof of requirement that but for Bostic's exposure to Georgia Pacific's products, he would not have contracted mesothelioma.

While the court agreed that a "but for causation" test is a recognized standard when proving causation in fact, it held that this case does not require such proof.

Citing Flores, the court held that proving but for causation can be humanly impossible, as it is difficult to establish which fibers from which defendant actually caused the injury.

The court concluded that while the Bostics were required to establish substantial factor causation, the Restatements addressing the "but for causation" issue do not require the plaintiffs to meet a strict "but for causation" test in this case.

Lehrmann agreed, stating that although the plaintiffs' evidence is not exact, "we do not require a plaintiff to reduce the quantity of exposure 'to mathematical precision.'"

However, Willett still held that the plaintiffs failed to establish substantial factor causation.

Citing the Havner decision, Willett explained when providing evidence of causation, the expert testimony of causation must be scientifically reliable.

Furthermore, where direct evidence of causation is lacking, the plaintiff must prove the claims by a preponderance of the evidence and epidemiological studies showing the product more than doubled the plaintiff's risk of injury.

"We think the plaintiff should be required to establish more than a doubling of the risk attributable to the defendant's product ...," Willett wrote, "but do not think it necessary or fair to require a plaintiff to track down every possible source of asbestos exposure and disprove that those other exposures caused the disease."

In Lehrmann's dissent, he disagreed with the majority, saying Havner is not useful for resolving the question of whether exposure to the product was a substantial cause of the injury.

"By disregarding this avenue of proof, the court turns substantial-factor causation on its head, requiring a toxic tort plaintiff to prove that exposure to a particular defendant's product was, by itself, the cause of his injury," he wrote.

The majority disagreed, stating that Havner was also concerned with specific causation as well as general causation.

During trial, Bostic claimed that he had used drywall compounds from seven different manufacturers but failed to indicate the duration or intensity of exposure.

In fact, Bostic's experts developed their opinions on the every exposure theory without considering the decedent's dose.

"An expert's testimony that brings no more than 'his credentials and a subjective opinion' will not support a judgment," Willett wrote.

Justice Eva M. Guzman joined in all but two parts, writing a separate concurring opinion.

She argues that the majority arrived at the correct conclusion but set the evidence bar too high and the dissent reached its "implausible" conclusion by neglecting the preponderance standard when proving causation.

In Guzman's concurring opinion, she agrees the court correctly ruled that the evidence of causation was legally insufficient. But she explains that both the majority opinion and the dissenting opinion miss the mark, arguing that the majority demands too much and the dissent "misconstrues our precedents to require too little."

"In short, I am concerned that both writings do not faithfully interpret the preponderance of the evidence standard that stands as the lodestar of civil liability in Texas," Guzman wrote. "A plaintiff must always prove his toxic tort claim by this standard: nothing less will suffice, but nothing more is required."

Guzman argues that it is not impossible to prove an occasional exposure case regarding mesothelioma with epidemiological studies as long as the litigation framework adheres to the court's "well settled precedents" as they relate to the preponderance of evidence standard.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com