CSSB 1123 The Facts About Asbestos Litigation in Texas

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1 April 14, 2009 CSSB 1123 The Facts About Asbestos Litigation in Texas A. Mesothelioma and Asbestos What is mesothelioma? Mesothelioma is a rare form of cancer in which cancerous cells are found in the mesothelium, a protective lining that covers most of the body s internal organs. Typically, it is a cancer of the lining surrounding the lung (pleural membrane) or abdominal cavity (the peritoneum). What causes mesothelioma? According to the National Cancer Institute, [w]orking with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure at work is reported in about 70 percent to 80 percent of all cases. However, mesothelioma has been reported in some individuals without any known exposure to asbestos. How many cases of mesothelioma occur each year? There are approximately 2,500-3,000 reported cases of mesothelioma each year in the United States. The Texas Cancer Registry reported 854 mesothelioma cases in the five-year period from 2002 to 2006, which is an average of 171 cases per year. Almost 80 percent of individuals diagnosed with mesothelioma in Texas during that period were male. Some recent studies indicate that the rate of mesothelioma occurrence has peaked in the United States, and for persons born in 1965 or after, the incidence of asbestos-related mesothelioma has essentially abated. What is asbestos? Asbestos is the name given to a number of naturally occurring fibrous minerals with high tensile strength, the ability to be woven, and superior resistance to heat and chemicals. Because of these properties, asbestos fibers were used to protect ships from fire hazards and used in a wide range of manufactured goods, including roofing shingles, ceiling and floor tiles, paper and cement products, textiles, coatings, and friction products (such as automobile clutch, brake and transmission parts) before the use of asbestos in the United States declined dramatically in the mid-1970s due to the health risks and government regulation. texans for Lawsuit Reform session

2 There are six forms of asbestos: chrysotile (serpentine); crocidolite; amosite; anthophyllite; tremolite; and actinolite. Chrysotile asbestos was the most widely used type of asbestos in commercial applications in the United States and it is the least carcinogenic type of asbestos. Chrysotile asbestos is still used in a few limited applications in the United States today. Both OSHA s and EPA s regulations specifically set a level at which asbestos exposure is regarded as safe. If asbestos is removed from an old school building, for example, there likely will be some asbestos fibers remaining in the air after the abatement is completed. The school is not closed forever. Instead, children are allowed to return to the building after the amount of asbestos in the air is reduced to what is regarded as a safe level. OSHA and EPA are charged with protecting the safety of workers and the public, so they warn about the hazards of asbestos exposure and set standards at the lowest possible level based on the most-cautious view of scientific knowledge about the most-toxic form of asbestos. This does not mean that the government has concluded that there is no safe level of exposure to asbestos. It means that the government has concluded that, for regulatory purposes, it is going to presume that there is no safe level of exposure to asbestos. The agencies then make policy decisions based on this presumption. The fact that there is a safe level of asbestos exposure is proven by the fact that asbestos is found in the ambient air (i.e., the air that surrounds us). Concentrations of asbestos fibers in the ambient air are measured at to fibers per milliliter of air, which is far below the.1 fibers per milliliter of air exposure limit set by OSHA for workplaces. B. Single Fiber Theory and Latency Period Won t a single fiber of asbestos cause mesothelioma? This is a misleading assertion. The development of the disease is not fully understood. It is possible that it is a single asbestos fiber that actually causes a cell to become cancerous and to begin to grow aggressively. But there is no scientific evidence supporting the assertion that inhaling or ingesting a single fiber of asbestos has ever caused a disease in anyone. Is it true that the origin of the fiber that caused the disease cannot be known? If one were to assume that a single asbestos fiber could cause a cell to become cancerous, it is true that it is not possible in many cases to know the source of that single fiber from the millions of fibers the person with mesothelioma probably inhaled. Can the exposure that causes mesothelioma have occurred a long time before the disease appears? Yes. Latency period is the time between exposure and onset of a disease. Asbestos-related diseases have a very long latency period. For mesothelioma, the exposure that triggers the disease may have occurred 20 to 40 or more years ago. texans for Lawsuit Reform session

3 What role does the long latency period play in litigation? The long latency period for mesothelioma, coupled with the fact that it may be only one of many fibers that actually triggers the onset of the disease, create unique issues in asbestos litigation. This combination gives rise to the argument that every defendant that produced an asbestos-containing product to which the plaintiff was exposed might be the defendant that produced the single fiber that caused the plaintiff s injury. Therefore, plaintiff attorneys assert that each such defendant is potentially culpable and should not be allowed out of the case before trial. American law, however, does not and should not allow liability to be based on mere speculation, surmise, or guesswork. The law has always required real proof of an actual link between the defendant s conduct and the plaintiff s injury. C. Dose What is dose? Dose is the amount of a substance to which a person is exposed over time and, in regard to asbestosrelated diseases, is the amount of asbestos in the person s environment (not a person s body) over a period of time (usually, an occupational environment throughout plaintiff s working career). Dose is the single most important factor to consider in evaluating whether an alleged exposure caused a specific adverse effect. In fact, one of toxicology s central tenets is that the dose makes the poison. This notion was first attributed to sixteenth century Greek philosopher-physician who stated that [a]ll substances are poisonous-there is none which is not; the dose differentiates a poison from a remedy. Even water, in sufficient doses, can be toxic, as was proven in early 2007 when a woman died from water intoxication after participating in a radio contest to win a video-game system. What role does dose play in asbestos-caused diseases. Scientific studies are virtually unanimous in concluding that mesothelioma is a dose-responsive disease the more a person is exposed to asbestos, the more likely it is that mesothelioma will afflict that person. The National Cancer Institute lists dose as the first factor in determining whether a person is at risk for developing an asbestos-related disease. And, as with all dose-responsive diseases, there is a dose at which no harm will occur. In other words, even with mesothelioma, the dose makes the poison. At what dose level is asbestos likely to cause disease? This is a complicated question because a number of factors are relevant. Scientific studies strongly suggest, for example, that both the type of fiber (whether it is curly or needlelike) and the length of fiber affect the dose that is required to increase the risk of having the disease. Studies have shown an increased occurrence of mesothelioma from relatively low doses of the most-toxic kinds of asbestos. On the other hand, there are no studies showing an increased occurrence of mesothelioma from low doses of chrysotile asbestos. In fact, some studies have found that chrysotile asbestos does not cause mesothelioma. texans for Lawsuit Reform session

4 Furthermore, it is basically impossible to prove conclusively that low doses of asbestos will not cause mesothelioma because no one is going to prove the hypothesis by testing it on humans (for good reason). The inability to conclusively prove that low doses of asbestos will not cause disease gives plaintiff lawyers license to continue to say to judges, juries, and legislators that it has never been proven that low doses of asbestos cannot cause disease. Then they flip this proposition to reach the logically unsupported but jury friendly conclusion that there is no safe level of exposure to asbestos, which is not a proven fact. D. HB 4 and SB 15 What did HB 4 (2003) and SB 15 (2005) do that make a difference in the current discussion? In 2003, HB 4 created the Judicial Panel on Multidistrict Litigation and gave the Panel authority to transfer all cases having one or more common question of fact to a single trial court for pretrial proceedings. The Panel determined that asbestos cases pending in Texas met the common question of fact standard and, therefore, were appropriate for transfer to a single district court in Harris County for pretrial proceedings. Under the standard procedure, cases were not automatically transferred, but would be transferred at the request of any party to the case. At the time HB 4 was enacted, there were tens of thousands of asbestos cases pending in Texas courts. Almost all of these cases had dozens or even hundreds of plaintiffs and defendants. The plaintiffs were often bundled so that most of the cases had a few plaintiffs alleging mesothelioma or lung cancer and hundreds of plaintiffs alleging asbestosis or another non-malignant disease. The thousands of asbestosis cases that had been filed in Texas courts were generated by what was widely regarded as abusive (if not fraudulent) litigation screening sponsored by plaintiff lawyers, who worked in cooperation with a handful of doctors to generate litigation. Many of the lawyers and law firms that could benefit from enactment of CSSB 1123 were involved in or beneficiaries of this litigation screening. Virtually all of the thousands of non-malignant asbestos cases pending in Texas were transferred to the Harris County MDL pretrial court after HB 4 passed. And after HB 4 became effective, all newly filed cases have been routinely transferred to the MDL pretrial court. In 2005, SB 15 (codified as Chapter 90 of the Civil Practice and Remedies Code) created medical criteria for use in asbestos and silica litigation. There was one basic concept behind SB 15: To unclog the court system of plaintiffs showing no signs of an asbestos-related impairment so that truly sick plaintiffs could have their day in court. SB 15: (1) moved all pending non-malignant asbestos cases to an inactive docket, (2) created medical criteria to be used by the courts to determine whether each individual plaintiff could move from the inactive docket to the active docket by demonstrating an actual asbestos-caused impairment, and (3) required the unbundling of the plaintiffs. texans for Lawsuit Reform session

5 Did SB 15 adopt the three-part Lohrmann standard for use in mesothelioma litigation? No, SB 15 did not adopt Lohrmann s three-part standard in relation to mesothelioma cases. SB 15 did not deal with causation standards in asbestos litigation. It was noted at the Senate Committee hearing on CSSB 1123 that SB 15 requires a report by a physician in asbestos cases that must include details about the nature, duration, and frequency of the exposed person s exposure to asbestos. It was then suggested that this provision applies to mesothelioma cases and that these three elements (nature, duration, and frequency of exposure) are essentially equivalent to the three elements of causation found in the Lohrmann opinion (frequency, regularity, and proximity of exposure). In other words, it was implied that SB 15 basically adopted Lohrmann. This is not accurate. The physician s report required by SB 15 that must include details about the nature, duration, and frequency of the exposed person s exposure to asbestos does not apply to mesothelioma cases; it applies only to non-malignant cases. What does SB 15 require? For a plaintiff alleging a non-malignant disease, SB 15 requires that a qualified physician diagnose an asbestos-related disease based on medically accepted criteria set-out in the statute before the case will be moved to the active docket. For a plaintiff alleging a malignant asbestos-related disease (mesothelioma or other cancer), SB 15 requires only a diagnosis of the disease by a qualified physician. The statute does not provide medical criteria for the diagnosis of a malignant disease, but does require that malignant disease cases be expedited. The vast majority of lawsuits brought by the thousands of plaintiffs alleging a non-malignant disease have remained pending on the inactive docket because the plaintiff lawyers have made no effort to meet the medical criteria to show that their clients have an actual asbestos-related impairment. As for the malignancy cases pending before the effective date of SB 15 on September 1, 2005, the plaintiff lawyers in most of those cases filed the necessary diagnosis to have the cases unbundle and moved to the active docket. What kinds of cases are being filed after 2005? Almost all cases filed in Texas after September 1, 2005, have alleged a malignant disease. Cases alleging a non-malignant asbestos-related disease have virtually disappeared. texans for Lawsuit Reform session

6 E. Commencing Mesothelioma Litigation If a person is diagnosed with mesothelioma, how do they get into the legal system? Individuals suffering with mesothelioma and their families do not have a difficult time finding a lawyer to represent them in court. In fact, there is stiff competition among plaintiff lawyers nationwide for mesothelioma cases. If you type mesothelioma into Google, it turns up about 7,320,000 results. Pages and pages of these results are websites that are sponsored by attorneys hoping to represent individuals afflicted with mesothelioma. Cable television advertisements for mesothelioma cases are ubiquitous. Many of these advertising lawyers are merely gatherers. They do not represent the clients themselves, but gather the clients and refer them to other lawyers who file the suit and pay a referral fee for the cases. The strength of competition for mesothelioma cases is an indicator of the value of these cases to plaintiff lawyers. In fact, these cases are probably the most valuable kind of litigation for plaintiff law firms because the cases always settle for a substantial amount of money, so there is little risk to filing the lawsuit. And, with a 40% contingent fee, a substantial pay-day for the lawyer is always expected. What is the process for bringing an asbestos lawsuit? The process can best be described as sue first; ask questions later. Each case is filed in a county of proper (and preferred) venue; then transferred to the MDL pretrial court. In mesothelioma and other cancer cases (all or virtually all cases filed after 2005 have been cancer cases), the medical diagnosis required by SB 15 must be provided within 30 days of filing their answer to the suit. The lawyers who file mesothelioma cases typically sue many defendants, without stating the specific factual basis for the plaintiff s claim against each defendant. If the injured person tells the attorney that he or she worked at a particular facility, that disclosure results in a group of defendants being named in the suit. If the injured person tells the attorney that he or she remodeled a house or worked at construction sites, those disclosures result in groups of defendants being named in the suit. Using this method of selecting defendants, it is not unusual for 40 to 80+ defendants to be named in a mesothelioma suit. There are numerous examples of suits filed by Texas lawyers in Texas courts on behalf of Texans in which dozens of defendants were named. Here are a few: On July 16, 2007, plaintiff lawyer Lou Thompson Black (Brent Coon & Assoc.) sued 100 defendants. On March 27, 2008, plaintiff lawyer Michael Hissey (Hissey, Kientz & Herron) sued 60 defendants. On May 2, 2008, plaintiff lawyer James Ferrell (R.G. Taylor, II, PC & Assoc.) sued 46 defendants. On May 7, 2008, plaintiff lawyer Joseph McMullen (The Lanier Law Firm) sued 77 defendants. On August 8, 2008, plaintiff lawyer Brian Blevins (Provost * Umphrey) sued 72 defendants. texans for Lawsuit Reform session

7 What are the typical allegations made against the defendants? These mesothelioma plaintiff lawyers use the same basic pleading over and over. They merely change the names of the plaintiffs and insert different groups of defendants. It seems likely that the process of filing suit is wholly managed by paralegals, with the lawyer doing little more than signing his or her name to the document. The pleadings are always general. Here is an example from one of the petitions referenced above: Decedent was engaged in the course of his employment as chief operator and/or laborer, and in other various roles and capacities where he was required and caused to work with, and/or around asbestos and asbestos containing products and materials, which caused him to suffer from asbestosrelated diseases and other industrial dust diseases caused by breathing the asbestos-containing products. During the time the Decedent worked he was exposed to asbestos-containing products. Defendants manufactured and/or sold and/or distributed asbestos-containing products which were unreasonably dangerous and defective. Such products were a producing cause of the injuries and damages suffered by the Plaintiffs and Decedent. Not a single one of the petitions noted above sets forth facts by which a defendant can determine exactly how its product or conduct is connected to the plaintiff s injury. Doesn t anything prevent lawyers from filing suits without stating facts to support the case? You would think that repeatedly naming dozens of defendants in a lawsuit without having developed the facts to support the pleading would expose a plaintiff attorney to the possibility of a court-ordered fine or other penalty. Unfortunately, that is not the case. Texas Rule of Civil Procedure 13 and Texas Civil Practice and Remedies Code Chapter 10 both allow a court to penalize a lawyer for filing a pleading that lacks evidentiary support, yet no one has ever heard of a lawyer being penalized in Texas for repeatedly suing 70 or 80 defendants in mesothelioma cases without having a factual basis for doing so. How does the MDL Pretrial Court Handle the Cases? Civil Practice and Remedies Code section (c) provides that the MDL pretrial court shall expedite an action in which the exposed person is living and has been diagnosed with a malignant disease. The MDL pretrial court should, as far as reasonably possible, ensure that such action is brought to trial or final disposition within six months from the date the action is transferred to the MDL pretrial court. Because of section s requirement for expedited treatment for cases in which a malignancy is alleged and the injured person is alive, the MDL pretrial court has provided that the plaintiff lawyer can put these cases on a fast track in compliance with the terms of a standing case management order (CMO). The CMO provides that fast-track cases are to be remanded to the originating court for trial within 120 days (4 months) from the date the case is certified as ready for trial, while normal-track cases are to be remanded 180 days (6 months) from certification. texans for Lawsuit Reform session

8 In either a fast or normal-track case, the plaintiff s attorney controls the pace of discovery and the speed with which a case is prepared for trial under the CMO. The speed with which a case is prepared for trial depends on by how effectively and quickly the plaintiff complies with the discovery requirements in the CMO. A defendant has no control of when a plaintiff activates a case in the MDL, and little control over how quickly the case is prepared for trial. Do all cases get a trial setting within 6 months of the date they are transferred to the MDL pretrial court? No. In fact, that standard is unrealistic and almost never met. But cases can move through the MDL pretrial court very rapidly. For example, see the four examples shown below. The first two were filed before the Borg-Warner decision in June 2007; the last two were filed after. Filing Date Trial Date Total Time Brassfield, Phillip 01/19/ /04/ months Parker, Bill 10/30/ /06/ months St. John, Roger 11/09/ /04/ months Nelius, James 06/18/ /27/ months Is the MDL pretrial court succeeding in getting cases ready for trial? Yes. In fact, it is increasing the pace at which it is certifying cases as ready for trial. 106 cases were certified for trial in cases were certified for trial in cases were certified for trial in cases were certified for trial in first three months of What happens after a case is certified for trial? After a case is certified for trial, it is remanded to the original court for trial on the merits, unless it is fully resolved while pending in the MDL pretrial court. F. Number of Cases Filed Hasn t the number of mesothelioma cases filed in Texas fallen dramatically since the Supreme Court handed down Borg-Warner v. Flores in June 2007? This is an issue clouded with misinformation. In the Senate hearing on SB 1123 on March 23, 2009, the Committee was told by a prominent witness: The number of mesothelioma cases being filed in Texas courts has dropped. I have the numbers here. We were running an average of about 150 a month, and it s since the Borg-Warner opinion came down, it s been about 20 now. That includes cancer cases and it includes well, it doesn t really include asbestosis cases because there have been none of those filed in Texas since texans for Lawsuit Reform session

9 A week later, in the House committee hearing on the companion bill, HB 1811, the same witness told the Committee a somewhat different story: Once the bill went into effect, the number of mesothelioma cases, or, uh, asbestos cases being filed in Texas courts dropped and dropped dramatically. I have here a chart that I ll be glad to leave with the committee showing the number of asbestos cases filed by month starting with the creation of the asbestos MDL. In 2004, there were 22,792 cases brought to the MDL. In 2005, there were 3661 cases. This is cases not claimants. There is a distinction between the two of them, because in some counties people would file 20, 30, 50, 1000, 2000 claimants within one case; you with me? But that sort of, that changed with the adoption of SB 15 in 2005 where you prohibited that. So pre-2005, the number of cases isn t necessarily reflective of the number of claimant. In 2006, we were at 1363, for the year. In 2007, the year Borg-Warner was announced, it was 520. In 2008, it was 358. The witness was later asked, and agreed, that the numbers he was providing included both asbestosis and mesothelioma cases. And he plainly concedes that the number of cases being filed in Texas courts dropped dramatically because of SB 15, not because of the Borg-Warner decision. Is the claim of 150 mesothelioma case filings per month before Borg-Warner true? The 150 per month testimony given in the Senate does not match any testimony given in the House. HB 4, which took effect on September 1, 2003, created the MDL panel that, in 2004, designed the asbestos MDL pretrial court. The MDL pretrial court then received 22,792 already pending asbestosis cases in Because of bundling of plaintiffs, no one knows the number of mesothelioma plaintiffs who were part of the almost 23,000 cases transferred to the MDL pretrial court in The 150 per month testimony surely is not based on 2004 data. SB 15, which took effect on September 1, 2005, put medical criteria in place. According to the House testimony, there were 3,661 asbestos cases transferred to the MDL pretrial court in Before September 1, 2005, bundling of plaintiffs was still possible. Consequently, no one knows the number of mesothelioma plaintiffs who were part of the cases transferred to the MDL pretrial court in It seems unlikely that the 150 per month testimony is based on 2005 data either. In the House hearing, the witness stated that 1363 asbestos (not just mesothelioma) cases were filed in This is an average of 114 cases per month. Obviously, it is impossible to have 150 mesothelioma cases filed each month in 2006 when the total number of all asbestos cases filed each month was only 114. There simply is no credible evidence before the Legislature that the number of mesothelioma cases filed in Texas was ever equal to 150 cases per month. Furthermore, it doesn t make sense. If only 2,500 to 3,000 mesothelioma cases are diagnosed each year nationwide, and only 80% of those are alleged to be related to asbestos exposure, there should be no more than 2,000 to 2,400 mesothelioma cases filed nationwide each year. Surely Texas was not receiving 1,800 (75 to 90 percent) of the cases filed nationwide each year. texans for Lawsuit Reform session

10 Are there other sources of information about the number of asbestos cases filed each year? Yes, LexisNexis shows a total of 1,160 cases filed in the MDL in 2006 (which is somewhat lower than the House testimony of 1,363 cases), but a close examination of the data shows only 229 were new cases. The other 931 resulted mostly from post-sb 15 severances of bundled plaintiffs. LexisNexis shows 414 asbestos case filings in the MDL pretrial court in 2007 (an average of 34 per month), and 316 asbestos case filings in the MDL pretrial court in 2008 (an average of 26 per month), the year after Borg-Warner was decided. Thus, the number of asbestos cases filed per month in the year before the Borg-Warner decision (19) is approximately equal to the number filed per month in the year after the Borg-Warner decision (26). Furthermore, if, as noted above, an average of 171 mesothelioma cases are reported in Texas each year and occupational asbestos exposure is present in 70 to 80 percent of those cases; and if every Texan having occupational exposure filed suit in Texas, you would expect, at most, 120 to 137 legitimate mesothelioma cases to be filed in Texas each year. Finally, it must be noted that the lawyers who are trying to change causation law in Texas are the same lawyers who control the number of cases being filed in Texas. For the purpose of affecting legislation, these lawyers can create the reality that fewer cases are being filed in Texas. G. Cases Being Filed in Other States Why would Texas lawyers file cases for Texas residents in other states? Mesothelioma litigation is nationwide litigation. Plaintiff attorneys involved in mesothelioma litigation file their cases in the venue that is the most advantageous to them and their clients. The truth of this statement was recently confirmed by an article in the AmericanLawyer.com, which reported on asbestos lawyer Mark Lanier s planned expansion of his Houston office to handle more asbestos cases. According to AmericanLawyer.com: In asbestos, Lanier s firm handles only mesothelioma cases, which he said have not slowed even though it s been decades since asbestos has been widely used. We asked whether the complaints by tort reformers that Delaware has become a haven for asbestos litigation were true, and, somewhat to our surprise, Lanier said that indeed, Delaware had become a frequent forum. But not, he hastened to add, because it s particularly friendly to plaintiffs. It s not a home run forum for us, Lanier said. It s a one-stop shop. You have jurisdiction over most defendants there. We couldn t let that comment pass without asking what were still home run jurisdictions for asbestos claimants. There aren t a lot, Lanier said: Baltimore; New York; some parts of California, though that s beginning to change; and West Virginia, if you can get jurisdiction there. Lanier told us he s hoping to revive Texas asbestos litigation and is making a new push to file cases in Boston. Plaintiff lawyers file cases for Texans in other states because they are looking for home run jurisdictions in which to file their cases. texans for Lawsuit Reform session

11 Are Texans filing their cases in other states? We have found no way to definitively answer this question. In the House Committee hearing on HB 1811, a California lawyer testified that a study of asbestos cases filed in California in 2007 and 2008 showed that 373 mesothelioma cases were filed in California during that two-year period. In 193 of those cases, the plaintiff revealed his or her state of residence. Only eight of those 193 plaintiffs (about 4%) revealed that they were residents of Texas, with only four of those represented by a Texas-based law firm. The study also showed that mesothelioma plaintiffs in California were from 31 different states. As far as we can tell, all other information about mesothelioma case filings in other jurisdictions is purely anecdotal, and is mostly provided by the lawyers who are supporting passage of CSSB 1123 and who hope to revive Texas asbestos litigation. H. Causation What is the relationship between causation and CSSB 1123? CSSB 1123 attempts to create a causation standard to be used by courts in mesothelioma cases filed in Texas. What does causation mean? Causation is a reference to the legal concept requiring that a plaintiff prove that a defendant s actions actually have caused the plaintiff s injury. As the Texas Supreme Court s 1989 decision in Gaulding v. Celotex Corp. shows, it is deeply imbedded in our law that causation is never presumed, but, instead, must be proved by the plaintiff. In Gaulding, the plaintiffs were unable to identify the particular manufacturer of a product containing asbestos that allegedly caused disease. The Court refused to accept the notion that the plaintiffs could simply join the five companies that dominated the market for that particular asbestos-containing product and then let the jury guess as to the liability of each. The Court held that [a] fundamental principle of traditional products liability law is that the plaintiff must prove that the defendants supplied the product which caused the injury. What is a causation standard? A causation standard is nothing more than a group of words that are supposed to describe the connection that is necessary between the defendant s conduct and the plaintiff s injury before the defendant will be held liable for that injury. To establish a claim of negligence under Texas law, for example, a plaintiff historically was required to prove the existence of proximate cause, which was defined by the Texas Supreme Court to mean that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. texans for Lawsuit Reform session

12 Producing cause is the causation standard historically used to establish strict or product liability in Texas. The basic claim in all asbestos litigation is that the product (asbestos) is defective and is an inherently dangerous product. In other words, it is a product liability claim that is governed by the producing cause standard. Traditionally, producing cause differed from proximate cause in that it had no forseeability element. How does substantial factor enter the discussion? Although it first mentioned substantial factor in relation to causation standards in 1951, the Texas Supreme Court really began to rely on the term substantial factor to describe causation standards in Texas in 1991, in the case Lear Seigler, Inc. v. Perez. The Court defined the substantial factor causation standard in Lear Seigler as follows: In order to be the legal cause of another s harm, it is not enough that the harm would not have occurred had the actor not been negligent. This is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff s harm. The word substantial is used to denote the fact that the defendant s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility.... In the 2007 case of Ford Motor Co. v. Ledesma, the Texas Supreme Court redefined producing cause, so that it mirrors the substantial-factor causation inquiry of proximate cause: Defining producing cause as being a substantial factor in bringing about an injury, and without which the injury would not have occurred, is easily understood and conveys the essential components of producing cause that (1) the cause must be a substantial cause of the event in issue and (2) it must be a but-for cause, namely one without which the event would not have occurred. Consequently, the two causation standards used in Texas are proximate cause and producing cause, both of which require that the plaintiff prove that the defendant s conduct was a substantial factor in bringing about the plaintiff s injury. The substantial factor test is used in many states. I. Borg-Warner What is Borg-Warner and what does it have to do with CSSB 1123? Borg-Warner is a shorthand reference to the Texas Supreme Court s 2007 decision in Borg-Warner Corp. v. Flores. It is relevant because CSSB 1123 seeks to limit the application of the Borg-Warner decision. The importance of Borg-Warner is that it establishes the evidence needed to meet the substantial factor causation test in asbestos-disease cases. Borg-Warner does not create a new causation standard. It only makes clear that the substantial factor test is applicable in asbestos litigation in Texas and describes the evidence necessary to fulfill the causation standards already existing in Texas. texans for Lawsuit Reform session

13 The plaintiff, Flores, was a retired brake mechanic who sued Borg-Warner claiming that asbestos in the brake linings manufactured by that company had caused him to develop asbestosis. A jury rendered a verdict in Flores favor, finding that Borg-Warner s conduct was both the proximate and producing cause of Flores asbestosis. On appeal to the Texas Supreme Court, the Court considered adopting the frequency, regularity, and proximity causation test set out in Lorhmann v. Pittsburgh Corning Corp., a 1986 decision from the United States Fourth Circuit Court of Appeals (which applied Maryland law.) Although the Texas Supreme Court agreed that the Lorhmann test was appropriate, a literal application of Lohrmann leaves questions unanswered in cases like this. The Court noted that Flores evidence that he was grinding brake pads in a small room five to seven times per week over a four-year period seemingly satisfies Lohrmann s frequency-regularity-proximity test. But, proof of mere frequency, regularity, and proximity is not sufficient as it provides none of the quantitative information necessary to support causation under Texas law. Lohrmann s three terms do not, in themselves, capture the emphasis our jurisprudence has placed on causation as an essential predicate to liability. The Court held that in asbestos cases, we must determine whether the asbestos in the defendant s product was a substantial factor in bringing about the plaintiff s injuries. According to the Court, substantial-factor causation separates the speculative from the probable but it need not be reduced to mathematical precision. Defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease, will suffice. It is not adequate to simply establish that some exposure occurred. Because most chemically induced adverse health effects clearly demonstrate thresholds, there must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold before a likelihood of causation can be inferred. Borg-Warner establishes the requirement that, to satisfy the substantial factor causation test, a plaintiff must prove the approximate quantum of a defendant s asbestos fibers to which the plaintiff was exposed. Should Borg-Warner apply only to asbestosis cases? It is being argued that Borg-Warner should apply to asbestosis cases, not mesothelioma cases. Borg-Warner should apply to all asbestos-disease cases. The scientific literature on asbestos-related diseases is virtually unanimous in concluding that all asbestos-caused diseases are dose-responsive diseases. While it is generally regarded as true that it takes more asbestos exposure (a higher dose) to cause asbestosis than it takes to cause mesothelioma, the fact remains that both diseases are dose responsive. The dose makes the poison. Because asbestos diseases (like the diseases caused in all other toxic tort cases) are dose responsive, it makes sense that the evidence required to prove that the defendant s product caused the plaintiff s disease should include evidence of the approximate dose of the defendant s product the plaintiff received. Furthermore, within two months of the date the Borg-Warner opinion was handed down, two Texas courts decided that it should be applied to mesothelioma cases. In July 2007, the MDL pretrial court handed down an opinion rejecting the argument that Borg-Warner should apply to asbestosis cases, but not mesothelioma cases. The MDL pretrial court stated that it could not divine a reason the Texas Supreme Court texans for Lawsuit Reform session

14 would have trial courts apply a different standard of causation in one asbestos-related disease case than in another. A month later, in Georgia-Pacific Corp. v. Stephens, Texas s First Court of Appeals (Houston), in an exhaustive opinion, also applied Borg-Warner in a mesothelioma case. Is Borg-Warner an example of the axiom that bad facts make bad law? Borg-Warner is an example of a thoughtful and serious court faithfully applying its precedent to the facts presented. Borg-Warner appropriately recognizes the current state of scientific knowledge about asbestos-related diseases. The decision recognizes that asbestos-related diseases are dose-responsive diseases and affirms that reliable expert evidence showing approximate dose is necessary to prove that it is more likely than not that the disease was caused by the asbestos fibers from a particular defendant s product or conduct. Borg-Warner is good law. J. Lohrmann What is Lohrmann and what does it have to do with CSSB 1123? Lohrmann is a shorthand reference to the federal Fourth Circuit Court of Appeals 1986 decision in Lohrmann v. Pittsburgh Corning Corp. The relevance of Lohrmann is that some proponents of CSSB 1123 are saying that Texas should adopt the Lohrmann causation ruling for use in mesothelioma cases in Texas, and legislatively overrule the Borg-Warner ruling. What is the Lohrmann standard? Lohrmann, like Borg-Warner, is a decision rendered in an asbestosis case, not a mesothelioma case. The plaintiff, Lohrmann, worked as a shipyard pipefitter for 39 years. He claimed to have been exposed to asbestos dust from insulating materials throughout his career. He was diagnosed with chronic obstructive pulmonary disease. He sued 19 defendants, all but four of which settled or were let out of the case before trial. Lohrmann tried to prove that his injury was caused by the defendants products using circumstantial evidence. All he could really show was evidence that the defendants products were present at the very large shipyard where he worked. The Lohrmann court reasoned that a plaintiff must introduce evidence which allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result in order to establish proximate causation. The court devised a three-pronged test to determine sufficient causation for an asbestos-related disease: To support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of [1] exposure to a specific product [2] on a regular basis over some extended period of time [3] in proximity to where the plaintiff actually worked. texans for Lawsuit Reform session

15 Is Lohrmann the most-often-used causation standard in asbestos litigation? Lohrmann certainly has been referenced by a number of courts in many states since it was handed down in But these courts have referred to Lohrmann over the past 23 years for different reasons. Borg- Warner, for example, specifically references Lohrmann and adopts its three-part test, yet the proponents of CSSB 1123 argue that Texas has not followed Lohrmann. In other words, it is an over-simplification to say that Lohrmann is followed by some number of other states. Shouldn t Texas follow Lohrmann? No, Texas should not retreat from Borg-Warner to Lohrmann. The standards from the Lohrmann decision, standing alone, are not sufficient for modern litigation and fail to acknowledge the current state of scientific knowledge. Lohrmann s three-part test lacks any quantification, making it subject to inconsistent application and abuse. How frequent is frequent? How regular is regular? How proximate is proximate? Lohrmann does not answer these questions. Because Lohrmann does not require any quantification for its three-part test, it is difficult for defendants who should not have been sued in the first place to extricate themselves from litigation without paying a coerced settlement or incurring defense costs all the way through expensive and time-consuming discovery or through trial. For example, in In re: Baltimore City Asbestos Litigation, the Circuit Court for Baltimore City applied Lohrmann and denied summary judgment motions on facts indicating that the Lohrmann test is not very exacting. Plaintiff Kellum in the Baltimore City case claimed direct exposure to several defendants asbestos-containing brake dust over a six-month period. According to the court: During those six months he worked on machines with brakes manufactured by [three defendants] on five (5) or six (6) occasions. The courts conclusion: [T]his Court cannot say that this exposure, though brief in duration, was not of sufficient frequency, regularity and proximity. The defendant s summary judgment motion was denied. Plaintiff Thompson in the Baltimore City case relies completely on general product identification testimony regarding the presence of Defendants products [in] the parts of the plant where he worked. This evidence says little about frequency and regularity of exposure to specific products. This creates a serious evidentiary problem for the trier of fact. It will be highly problematic for a judge or jury to be asked to decide frequency and regularity to exposure of a specific Plaintiff to the product of each individual Defendant based solely on general testimony that products were among those of the type worked on in the area where Plaintiff worked. The court s conclusion: Nevertheless, this Court believes that indulging all inferences in favor of Thompson, a jury could conclude that various brakes were present in sufficient numbers to establish frequency and regularity. The defendant s summary judgment motion was denied. Lohrmann provides much less useful guidance to trial courts than does Borg-Warner. Furthermore, the state of scientific knowledge has advanced in the 23 years since Lohrmann was decided. It is now accepted in the scientific literature, for example, that mesothelioma is a dose-responsive disease, and the distinction between fiber types is significant. To adopt Lohrmann, without more, would be to ignore today s science. texans for Lawsuit Reform session

16 K. Stephens What is Stephens and what does it have to do with CSSB 1123? Stephens is shorthand for Georgia-Pacific Corp. v. Stephens, a 2007 decision by Texas s First Court of Appeals (Houston). It is relevant because it applies Borg-Warner in a mesothelioma case. The plaintiff, Stephens, was diagnosed with mesothelioma. In his early life, he had been in the Navy for two years in the 1940s, had worked on the Grand Coulee Dam for eight years, and worked as a commercial painter (not a dry-waller ) from 1954 until During all of this time he was exposed to asbestos. Stephens sued 106 named defendants (including Georgia-Pacific) and 100 John Doe defendants. All but three defendants settled prior to trial. Bestwall, a company Georgia-Pacific acquired in 1965, manufactured an asbestos-containing joint compound by people who hang sheetrock in buildings (drywallers). Initially in his deposition testimony, Stephens said he had not been exposed to Bestwall compound, but later changed his mind. He testified at trial that Bestwall compound was present on sites where he worked as a painter, along with three other types of compounds made by other companies. Other witnesses confirmed that while Bestwall compound was present at the sites, so were ten other brands of compound. The jury returned a verdict in favor of Stephens and the court awarded him $1.9 million. Georgia-Pacific appealed on grounds that the evidence was insufficient to show which product caused his disease and that Stephens had improperly relied on expert testimony to the effect that any exposure can cause mesothelioma. The court of appeals applied Borg-Warner s rule that Stephens needed to have presented evidence of dose so the jury could evaluate whether the quantity of respirable asbestos to which Stephens might have been exposed was sufficient to cause the injury. The court of appeals reversed the trial court s judgment because there was no evidence of Stephens exposure to Georgia-Pacific s product in sufficient quantities to have increased his risk of getting mesothelioma. Stephens is an example of how a weak causation standard can force defendants to go through a costly trial and suffer a substantial judgment even though the defendant s product had no real connection to the plaintiff s disease. L. Tate What is Tate and what does it have to do with CSSB 1123? Tate is shorthand for Celotex Corp. v. Tate, a 1990 decision by Texas s Thirteenth Court of Appeals (Corpus Christi). It is relevant because it held that evidence of any exposure to a defendant s asbestos-containing product was sufficient to support a causation finding against the defendant. It is regarded as setting a very low standard for causation in asbestos litigation. Was Texas using the Tate standard before Borg-Warner? Clearly Tate s any exposure rule had been used by some Texas trial courts before all asbestos cases were transferred to the MDL pretrial court in But it is also clear that not all courts accepted the any exposure rule. texans for Lawsuit Reform session

17 A year after Tate, in Slaughter v. Southern Talc Co., the United States Fifth Circuit Court of Appeals decided that the Texas Supreme Court probably would use Lohrmann s three-prong asbestosis causation standard in asbestos cases, and applied that standard in the case before it. In 1992 in Keene Corp. v. Gardner and in 1995 in Click v. Owens-Corning Fiberglass Corp., Texas s Fifth and Fourteenth Courts of Appeals (Dallas and Houston) referenced and appeared to use the Lohrmann three-factor test in asbestos cases. Additionally, in 1997, the Texas Supreme Court handed down Merrell Dow Pharmaceuticals, Inc. v. Havner, in which the Court held that in toxic tort cases, a plaintiff must establish causation using reliable expert testimony based on established science. The MDL pretrial judge had applied Havner in mesothelioma cases long before Borg-Warner was handed down. Thus, while it is a common belief that Tate s any exposure rule was used in all mesothelioma cases filed in Texas before Borg-Warner, it is not really so. M. Havner What is Havner and what does it have to do with CSSB 1123? Havner is shorthand for Merrell Dow Pharmaceuticals, Inc. v. Havner, a 1997 decision by the Texas Supreme Court. It is an important case about proof of causation in toxic tort cases. Borg-Warner is a natural extension and application of Havner. In Havner, the plaintiff brought suit on behalf of her daughter, alleging that her daughter s birth defect was caused by the mother s ingestion of the anti-morning sickness medication, Bendectin. The Court noted that thirty studies had previously been conducted on the drug and none concluded that Bendectin caused birth defects. The plaintiff introduced evidence from five expert witnesses who offered opinion evidence to the effect that the girl s injury was caused by Bendectin. All of the plaintiff s expert witnesses had sufficient experience, training, expertise, and knowledge to qualify as true experts. A jury found in favor of the plaintiff. On appeal to the Texas Supreme Court, the Court held that an expert s bare opinion evidence will not suffice to prove causation. In other words, the mere fact that a person is an expert does not make any opinion he or she cares to offer admissible into evidence. The court stated that it must look past the proffered opinion to determine whether it is fundamentally supported. In addition, an averment by the expert that his or her opinion testimony is based on sufficient data is not enough either. The court reaffirmed its holding in E.I. du Pont de Nemours & Co. v. Robinson that an expert s opinion must be reliable. 1 The court also held that epidemiological studies, if properly designed and executed, may be part of the evidence showing causation in a toxic tort case if such studies show a doubling of the risk. In other words, the studies must show that the substance in question doubles the risk that a person exposed to the substance will suffer a particular injury, and, therefore, is more likely than not the cause of the plaintiff s 1 The factors indicating reliability are: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and publication; (4) the technique s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the theory or technique. texans for Lawsuit Reform session

18 disease. However, the court also held that a plaintiff must do more than introduce [studies] that show a substantially elevated risk. A claimant must show that he or she is similar to those in the studies. This means similarity in regards to the substance, the exposure level, injury onset timing, and the fact that the exposure preceded the injury. A plaintiff must negate other, plausible sources of the injury, lest the opinion be reduced to mere speculation. In a nutshell, Havner requires that expert witnesses provide a reliable scientific basis for their testimony and that causation in toxic tort cases (asbestos litigation is toxic tort litigation) must be based on reliable scientific studies. It is not enough for an expert to opine that a defendant s product caused a plaintiff s injury. N. Briefing in Borg-Warner Was the Borg-Warner case the result of briefing that was not fully developed? No. The case was pending in the Texas Supreme Court for over two years, during which time the Court received briefs from the parties and at least five amici (friends of the court). The level of briefing and the time the case was under consideration both indicate that this was an important case that received considerable attention by the Court. Didn t all the companies that filed briefs in Borg-Warner ask the Texas Supreme Court to adopt Lohrmann? No. Some of the briefs filed in Borg-Warner merely mention Lohrmann, others urge the adoption of Lohrmann, and one specifically discusses the relevance of dose in asbestos cases and urges a strict application of Havner in asbestos cases. In its briefs filed in the Texas Supreme Court, the defendant, Borg-Warner, argued that the causation standard in asbestos cases should be no different than in any other case. In keeping with the general rules governing causation, a plaintiff must prove that the defendant s product actually caused or contributed to the injury in order for the defendant to be liable. Accordingly, the exposure to the defendant s asbestos must be a substantial factor in the injury. Lohrmann is cited once as containing a test which is often used to evaluate whether substantial cause can be reasonably inferred from circumstantial evidence. However, Borg-Warner s predominant argument was that the Court did not need to rule on the causation standard because there was no evidence of causation under any test. Goodyear Tire and Rubber Co. filed a friend-of-the-court brief endorsing a uniform application of products liability law with no exception for asbestos cases. It argued that exposure to a company s asbestos must be shown to be a substantial factor in the injury. Nothing in Goodyear s briefs endorsed the adoption of Lohrmann as the standard for causation in Texas. Owens-Illinois, Inc. Union Carbide Corp, and Dow Chemical Co. jointly filed a friend-of-the-court brief that came close to asking for the adoption of Lohrmann as the standard. They described Lohrmann as a sounder approach to establishing legal causation, but left it up to the Court, saying: This case presents a good opportunity for the Court to clarify the proper standard for establishing causation in asbestos litigation under Texas law whether it be the same standard governing other tort litigation in Texas, the Lohrmann test, or some other standard. texans for Lawsuit Reform session

19 ExxonMobil Corp. filed a friend-of-the-court brief that did not reference Lorhmann. Rather, their brief endorsed the adoption of the standard set forth in a cases called In re R.O.C., that a plaintiff must demonstrate sufficient exposure to a form of asbestos capable of causing the complained of injury. Centerpoint Energy, Inc. and Eastman Chemical Co. are the only entities filing a brief in the Borg-Warner case to expressly ask the Court to clarify that the Lohrmann factors are, in fact, the standard of causation for asbestos cases in Texas. Finally, the Coalition for Litigation Justice, Inc. filed a brief focused on liability issues in asbestos and mass tort litigation. Lohrmann is cited only once in the brief as an example of how some courts have crafted a liability standard in asbestos cases that required some minimum standard of exposure to asbestos without requiring proof that the particular exposure actually caused the injury. The main thrust of the brief was to question the validity of the science behind low dose asbestos cases, especially relating to auto mechanics. It urged a strict application of the scrutiny of expert testimony set forth in the Supreme Court s Havner case, requiring epidemiologic evidence of causation at exposure and dose levels similar to the facts of the case. O. Motions for Summary Judgment What is a summary judgment? A summary judgment is a judgment rendered by a trial court during the pretrial stages of a case. A motion for summary judgment spells out the reasons a party believes it should prevail in a case as a matter of law. In Texas there are two forms of summary judgment motions: no-evidence motions and traditional motions. A no-evidence motion allows a party (typically a defendant) to assert that the plaintiff does not have evidence necessary to prove her case against the defendant. In response, the plaintiff must present some evidence ( more than a scintilla ) that would establish her case. A traditional motion is used when the party filing the motion believes he can prove that he is entitled to a judgment as a matter of law, such as when the statute of limitations expired before the case was filed. When is a summary judgment motion typically filed in a mesothelioma case? No-evidence motions for summary judgment are the common method used by defendants in mesothelioma cases to extricate themselves from the case. For the dozens of blameless defendants named in a typical mesothelioma case filed in Texas, the process of trying to get out of the case begins with pretrial discovery, including taking the deposition of the injured person and other plaintiffs in the case. Through discovery, the defendants attempt to ascertain whether the plaintiffs have any information supporting a claim of exposure to the defendant s product. If the plaintiffs cannot present any evidence that the injured person has seen or been around the defendant s product, the defendant will file what is commonly called a product ID motion for summary judg- texans for Lawsuit Reform session

20 ment in which the defendant will assert that the plaintiff has no-evidence that he was exposed to the defendant s asbestos-containing product. If the plaintiffs in a mesothelioma case provide some evidence ( more than a scintilla of evidence ) of use of or exposure to asbestos fibers from a defendant s product, a product ID motion for summary judgment cannot be granted. Both before and after Borg-Warner, hundreds of product ID motions were properly granted by the MDL pretrial court. Testimony provided to the Senate Committee that hundreds of motions for summary judgment have been granted since Borg-Warner omitted the important fact that a great majority of these motions were product ID motions. What happens if the plaintiffs can identify a defendant s product? If a plaintiff identifies a particular product, the causation standard becomes critical because it can make the difference in whether a defendant who probably has no actual responsibility for the plaintiff s injury can get out of the case without paying a settlement or going to trial. An easily met causation standard like Tate s any exposure standard makes it functionally impossible for defendants to get out of the case unless the plaintiff failed to identify the defendant s product. The Stephens case, discussed above, is proof of how the any exposure standard is basically meaningless. A standardless standard like Lohrmann s frequency, regularity and proximity test gives trial courts a great deal of discretion, which can result in inconsistent rulings. As was discussed above, whether a defendant can get out of a case under Lohrmann as it has been applied in other jurisdictions is almost wholly within the discretion of the individual trial judges. A standard with objective criteria like Borg-Warner affords defendants a reasonable opportunity to get out of a case if the plaintiff fails to show sufficient exposure to the defendant s product for it to be likely that the defendant s product caused the plaintiff s injury. There certainly is empirical evidence that causation standards matter. As noted above, asbestos plaintiff lawyer Mark Lanier recently listed his home run forums in an article published in an on-line magazine. What causation standards are in use in Lanier s home run forums? In Baltimore, the Lohrmann causation standard is used. California and New York courts use some form of the substantial factor causation test, but without requiring quantification of exposure. West Virginia appears to have a strict liability standard under which a defendant is liable if the plaintiff can show that he was exposed to any of the defendant s asbestos. The common thread among these states is that they do not require quantification of dose, thus leaving their standards open to inconsistent and litigationinviting interpretations. The easiest way to revive Texas asbestos litigation so that Texas will again be a home run forum for asbestos plaintiff lawyers is to declare, as CSSB 1123 does, that a plaintiff cannot be required to provide defendant-specific estimated quantifications of dose. texans for Lawsuit Reform session