BOSTIC CAUSATION TEXAS AND BEYOND HARRISMARTIN S MIDWEST ASBESTOS CONFERENCE. September 18, 2014 St. Louis, Missouri

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1 BOSTIC CAUSATION TEXAS AND BEYOND HARRISMARTIN S MIDWEST ASBESTOS CONFERENCE September 18, 2014 St. Louis, Missouri Kenneth D. Rhodes Gray Reed & McGraw, P.C Post Oak Blvd., Suite 2000 Houston, Texas (713) krhodes@grayreed.com Jason Kyle Beale Karst & von Oiste State Highway 249 Houston, Texas (281) jkb@karstvonoiste.com

2 KENNETH D. RHODES Gray Reed & McGraw, P.C Post Oak Blvd., Suite 2000 Houston, Texas (713) Ken Rhodes is a seasoned trial attorney with over 25 years of experience. His practice focuses on cases involving product liability, premise liability, contractor liability, general negligence, employer liability, business torts, contract disputes, construction defects, employment matters, insurance disputes, toxic torts including asbestos, silica, welding rod, benzene and mold, automobile liability and trucking liability. Ken works with clients of all sizes, across a wide variety of industries, specifically: international, national and regional business institutions, insurers and individuals. He has represented clients in 15 states, including Texas, Arkansas, California, Delaware, Florida, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, New York, Pennsylvania, West Virginia and Wisconsin. Ken serves as National Coordinating Counsel for a product manufacturer and Regional National Trial Counsel for a premise owner-product manufacturer. Ken has an established reputation with the bar, judiciary and clients for honesty, integrity and trial ability. Throughout the years, he has handled many different types of cases with extensive first chair trial experience in cases involving wrongful death, personal injuries, property damages, business interruption losses, product defects, premise liability, contractor liability, contract disputes and employment matters. Further, he has served as an expert witness in cases involving insurance coverage, settlement issues and attorney fees. He was born in Laurel, Mississippi and has resided in Houston, Texas since Ken and his wife are the proud parents of three sons. He is actively involved in various community, charitable, volunteer, sporting and school activities. Representative Experience Wrongful Death Handled numerous wrongful death cases obtaining favorable results for clients through summary judgments, jury verdicts and settlements. Obtained no liability jury verdicts for product manufacturer-contractor in two wrongful death cases in Hopkins County, Texas. Obtained defense jury verdicts for product distributor in two cases in Dallas County, Texas. Obtained defense jury verdicts for product installer-distributor in 11 cases in Milam County, Texas. Obtained summary judgments for product manufacturer in two wrongful death cases in Harris County, Texas. Obtained favorable settlements in numerous cases due to proper case development. Personal Injury Handled many personal injury cases based on multiple legal theories including negligence, negligence per se, strict liability, intentional tort, conspiracy, breach of warranty and gross Page 2

3 negligence. Favorable results for clients have been obtained through motions for summary judgment, jury verdicts and settlements. Obtained favorable jury verdict for product sellerrebrander in multi-million dollar case in Dallas, Texas. Obtained summary judgment for product manufacturer in multi-million dollar case pending in Tarrant County, Texas. Obtained favorable settlements in numerous cases due to proper case development. Toxic Torts Successfully represented product manufacturers, contractors, premise owners and researchers in toxic tort cases pending in multiple jurisdictions throughout the United States based on asbestos related-injuries. Serves as National Coordinating Counsel for product manufacturer and Regional Trial Counsel for premise owner-product manufacturer. Obtained favorable jury verdicts in multiple cases including deceased and living mesothelioma claims, deceased and living cancer claims and non-malignant disease claims. Obtained summary judgments and favorable settlements in multiple cases due to proper case development. Commercial Represented product manufacturer in breach of contract case pertaining to the construction of a public water intake facility involving a premise owner, general contractor and component part manufacturer. Construction Obtained voluntary dismissal of subcontractor in residential foundation defect case. Employment Successfully defended employee in a case by former employer asserting claims for breach of non-compete agreement and theft of trade secrets in bench trial in Harris County, Texas. Obtained summary judgments for three employers asserting the "exclusive remedy defense" under of the Texas Workers Compensation Act in cases pending in Dallas, Tarrant and Harris Counties, Texas. Expert Witness Testified in deposition and trial as an expert witness on insurance coverage pertaining to products and non-products coverage in CPR Institute for Dispute Resolution; In the Matter of the Arbitration between ACandS, Inc. and Travelers Casualty and Surety Co. pending in Philadelphia, Pennsylvania. Case involved hundreds of millions of dollars of available nonproducts coverage. Retained attorney fee expert in Cause No ; Multi-District Litigation Docket No ; In Re: Deep South Crane & Rigging Company Crane Collapse Litigation; Cause No. B ; Jacqueline Allen, et. al. (Intervenors) v. Deep South Crane & Rigging Page 3

4 Investments, LLC, Lyondell Petro Chemical Corporation and Houston Refining LP, et al. (Defendants); In the 60th Judicial District Court of Jefferson County, Texas. Case involved crane collapse resulting in 4 wrongful death and 125 injury personal claims. Arbitrations Obtained no liability finding in favor of product manufacturer in Cause No. P ; USAA Casualty Insurance Company v. Pentair Water Treatment. Case involved property damages due to alleged product failure. Obtained no liability finding in favor of product manufacturer in Cause No. P : Maryland Casualty v. Pentair Water Treatment. Case involved property and business interruption damages due to alleged product failure. Obtained no liability finding in favor of product manufacturer in Cause No. P ; Chubb Group of Insurance Companies v. Pentair Filtration, Inc. Case involved property damages due to alleged product failure. Representative Clients Metropolitan Life Insurance Company, Wilsonart, LLC, Akzo Nobel Paints, LLC, International Paper Company, Pentair Filtration, Inc., Hoffman Enterprise, Fisk Electric Company, Howell Instruments, Inc., Southern Exchange Company Professional Activities, Memberships & Affiliations State Bar of Texas (Litigation, Consumer, Commercial and Insurance Law Sections) State Bar of Illinois Defense Research Institute (Trial Tactics Committee, Product Liability Committee and Toxic Torts and Environmental Law Committee) Texas Association of Defense Counsel Honors Selected as The Best Lawyers in America - Product Liability Litigation Defendants, Personal Injury Litigation-Defendants and Personal Injury Litigation-Plaintiffs Selected as Texas Super Lawyer - Personal Injury Defense-Products Selected as Life Fellow in the Texas Bar Foundation Conferred full membership in the National Order of the Lytae Graduated cum laude from South Texas College of Law. Page 4

5 JASON KYLE BEALE Karst & von Oiste State Highway 249 Houston, Texas (281) J. Kyle Beale is a 1998 graduate of Baylor Law School, as well as a 2011 LL.M. graduate (Intellectual Property Law) of The University of Houston Law Center. Mr. Beale is licensed to practice law in Texas, Illinois, and Pennsylvania. Mr. Beale recently received Board Certification in Personal Injury Trial Law by the Texas Board of Legal Specialization (TBLS). Board Certification is a voluntary designation program certifying Texas attorneys in 21 specific areas of law. Board Certified attorneys must be licensed for at least five years, devote a required percentage of practice to a specialty area for at least three years, attend continuing education seminars, pass an evaluation by fellow lawyers and judges, have significant first chair trial experience, pass a 6- hour written examination. Mr. Beale has prior experience with personal injury cases, coverage issues, business torts, personal torts, toxic torts, breach of contract, trade secret, trademark, patent, and FELA and among many other areas of law. Mr. Beale is also a FINRA certified arbitrator, which allows him to be selected by claimants and sit as an arbitrator in the resolution of financial and securities disputes. In May 2011, Mr. Beale published an article in the Federal Bar Association Litigation Section newsletter regarding Chapter 11 preference litigation. Mr. Beale has extensive trial experience in both federal and state court across the country. In fact, Doug von Oiste and Mr. Beale have taken verdicts in New York, Missouri, and Texas for Karst & von Oiste clients this year. MARYANN ZAKI Gray Reed & McGraw, P.C Post Oak Blvd., Suite 2000 Houston, Texas (713) mzaki@grayreed.com Ken and Kyle would like to thank Maryann Zaki for her research and efforts in drafting this paper. Her assistance was invaluable and is greatly appreciated. Maryann Zaki is an associate at Gray Reed, focusing on litigation matters. Maryann is a graduate of the University of Houston Law Center, where she graduated Cum Laude, in the top 13% of her class, and was inducted into Order of the Barons. While in law school, Maryann was named Candidate of the Year of the Houston Journal of Health Law & Policy, and served as Senior Articles Editor. Maryann also served as the Vice Chair of Outreach on the University of Houston Moot Court team, and was a semi-finalist oralist in the Mercer Legal Ethics & Professionalism Moot Court Competition as well as an oralist in the National Moot Court Competition (NMCC). Maryann also interned for the Honorable United States District Judge Gray Miller during her final year of law school. Page 5

6 Maryann s hard work has been rewarded with several scholarships, including the Association of Corporate Counsel Diversity Scholarship and the Association of Women Attorneys Scholarship. She is currently a member of the Texas Civil Rights Project, Board of Councilors; American Bar Association, Minority Trial Lawyer Committee; Houston Bar Association, Communities in Schools Committee; Association of Women Attorneys (AWA) Houston; State Bar of Texas; Houston Bar Association; Texas Young Lawyers Association; and Houston Young Lawyers Association. Page 6

7 TABLE OF CONTENTS I. INTRODUCTION... 9 II. SUBSTANTIAL FACTOR CAUSATION UNDER TEXAS LAW... 9 A. Borg-Warner Corp. v. Flores... 9 B. Bostic v. Georgia-Pacific Corp III. JURISDICTIONS CITING, ADOPTING, OR REJECTING BORG-WARNER, BOSTIC AND STEPHENS A. Borg-Warner Corp. v. Flores Nevada Ohio Pennsylvania Delaware Maryland New York Virginia Kentucky District of Columbia Utah...30 B. Georgia-Pacific Corp. v. Bostic Pennsylvania Delaware...32 C. Georgia-Pacific Corp. v. Stephens Ohio Pennsylvania...33 Page 7

8 3. Delaware Utah California...33 IV. CHOICE OF LAW A. Offensive Use of Choice of Law Illinois Missouri Minnesota Massachusetts Pennsylvania...37 V. DIMINISHING JURY TRIALS AND IMPLICATIONS A. Texas...38 B. Nationally...38 Page 8

9 I. INTRODUCTION The landscape involving asbestos litigation has changed drastically over the last forty (40) plus years. The earlier plaintiffs tended to be textile workers, insulators, millwrights, pipefitters, industrial carpenters, and other tradesmen who worked with raw asbestos fibers, and asbestos containing products such as pipe covering, block, fire proofing and cement, which contained and emitted significant amounts of respirable asbestos fibers. The manufacturers of these products asserted various defenses including defenses related to their knowledge or lack thereof at relevant points in time with respect to the dangers of asbestos exposures. In most cases, the manufacturers of these products, generally, did not contest the assertion that their products emitted respirable fibers in quantities sufficient to cause disease, assuming adequate asbestos exposure. As asbestos litigation progressed, many plaintiffs were tradesmen who did not work directly with asbestos containing products or did not work with traditional asbestos containing products such as pipe covering, block, fire proofing and cement. Many of the defendants that were actively involved in the asbestos litigation in the 1970s, 1980s, and 1990s have filed for protection under the United States Bankruptcy Code. For the last decade or so, the asbestos litigation has transitioned to lawsuits filed against manufacturers of nontraditional products which do not emit respirable asbestos fibers in sufficient quantities to cause an asbestos related disease. The courts have been charged with establishing a causation standard that balances the interest of plaintiffs right to recover against the interest of non-responsible entities. The precise requirements of causation proof vary from state to state. This paper addresses, in part, the impact of two (2) Texas causation opinions upon asbestos litigation. II. SUBSTANTIAL FACTOR CAUSATION UNDER TEXAS LAW This section of the paper is a short summary of the relevant Texas cases that have created the evidentiary road map for proving up substantial causation in asbestos cases in Texas. There are many resources and previous papers that go into more detail regarding the specifics of each of the cases listed below. We encourage any attorney dealing with an asbestos case in Texas or a non- Texas case applying Texas substantive law to research the vast materials available on this subject and go beyond the brief information contained in this section of the paper. Hopefully this will provide you a quick overview to get you started. A. Borg-Warner v. Flores 1 The Texas Supreme Court in October 2007 dealt with causation in asbestos cases in Borg- Warner Corp. v Flores. Borg-Warner (a/k/a the Flores decision), overruled a line of Court of Appeal cases dealing with asbestos related personal injury and reestablished that Texas law applies the substantial factor analysis in product liability cases, as previously outlined in the Union Pump case. 2 This decision changed asbestos litigation in Texas dramatically S.W.3d 765 (Tex. 2007). 2 Union Pump Co. v. Albritton, 898 S.W.2d 773 (Tex. 1995), abrogated by Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). Page 9

10 1. The Facts Mr. Flores was a 66-year old retired brake mechanic. Mr. Flores worked as a brake mechanic from He worked with Borg-Warner asbestos containing brake pads from Mr. Flores performed 5 to 7 brake jobs with Borg-Warner brakes during this time period. He was exposed to visible asbestos dust from grinding the pads. Mr. Flores experts were Dr. Dinah Bukowski, a board certified pulmonologist, and Dr. Barry Castleman, Ph.D. Borg-Warner s expert was Dr. Kathryn Hale, a board certified pulmonologist. After the evidence was presented to the jury, the jury found: Mr. Flores sustained an asbestos related injury or disease; Borg-Warner s (as well as the other three brake defendants) negligence proximately caused Mr. Flores s injury or disease; All four defendants were engaged in the business of selling brake products ; and The brakes products had marketing, manufacturing, and design defects, each of which was a producing cause of Mr. Flores injury or disease. The jury found Borg-Warner 37% and the other remaining defendants each 21% liable. They then awarded $34,000 for future physical impairment, $34,000 for future medical care, $12,000 for past physical pain and anguish, and $34,000 for future physical pain and mental anguish. The jury also awarded $55,000 in exemplary damages against Borg-Warner. Borg- Warner appealed the verdict. The Court of Appeals affirmed, holding there was legally sufficient evidence of negligence and strict liability (specifically legally sufficient evidence to support causation under both theories) citing the following: Flores was a mechanic from 1964 to 2001; as a mechanic, Flores ground new brake pads prior to installation, a process necessary to minimize brake squealing ; the grinding process produced visible dust, which Flores inhaled; from 1972 to 1975, Flores ground brake pads manufactured by Borg-Warner; Borg-Warner s brake pads contained between seven and twenty-eight percent asbestos by weight; in 1998, Flores was diagnosed with asbestosis; Dr. Castleman testified that brake mechanics can be exposed to asbestos by grinding brake pads, a process which produces respirable asbestos fibers ; Page 10

11 Dr. Bukowski testified that brake dust has been shown to... have asbestos fibers ; and brake dust can cause asbestosis. Borg-Warner petitioned for review arguing, among other things, that a plaintiff claiming to be injured by an asbestos-containing product must meet the same causation standards that other plaintiffs do. The Texas Supreme Court heard argument on September 29, 2006 and issued its opinion on June 8, Decision The Texas Supreme Court declined to adopt the Lohrmann, frequency, regularity, and proximity test, as the standard in Texas because it would not meet the Union Pump substantial factor causation test. 3 The Court, stated we agree, with Lohrmann, that a frequency, regularity, and proximity -test is appropriate, but those terms do not, in themselves, capture the emphasis our jurisprudence has placed on causation as an essential predicate to liability. The Court held that a plaintiff must prove the asbestos in a defendant s product was a substantial factor in bringing about his disease. Just presenting evidence of any or some exposure to asbestos from defendant s product is not enough. The Court stated substantial factor causation, which separates the speculative from the probable, 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 causing the asbestos related disease, will suffice. The Court ultimately reversed and rendered on the judgment on Mr. Flores negligence and strict liability claims because both required proof of substantial factor causation. The Texas Supreme Court determined that Mr. Flores causation evidence was legally insufficient to support substantial factor causation because there was no evidence dealing with the approximate dose of asbestos that Mr. Flores was exposed to from working with Borg-Warner asbestos containing brakes. B. Bostic v. Georgia-Pacific 4 1. Facts In 2002 Timothy Bostic was diagnosed with mesothelioma. He was 40 years old, and died of the disease in Bostic s relatives, individually and on behalf of Bostic s estate (Plaintiffs), sued Georgia-Pacific and 39 other defendants, alleging that the defendants products exposed Bostic to asbestos and caused his disease. Plaintiffs alleged causes of action for negligence and products liability. Plaintiffs claimed that as a child and teenager, Bostic had been exposed to asbestos while using Georgia-Pacific drywall joint compound. Specifically, Bostic helped his father, Harold Bostic, mix and sand drywall compound from the age of five. Plaintiffs contended that Bostic was also exposed to asbestos from exposure to Harold s clothing. Bostic lived with his father until his parents divorced in 1972, when he was 9, 3 Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986); see also supra note S.W.3d 588 (Tex. App. Dallas 2010). Page 11

12 and he stayed with his father thereafter on weekends, holidays, and at times during the summer. Harold testified that he performed drywall work on various projects during the relevant period. He testified that he used Georgia-Pacific drywall compounds [l]ike 98% of the time. Bostic assisted Harold on projects during the time frame when Georgia-Pacific drywall compound contained asbestos. Harold testified that he and Bostic used Georgia-Pacific compound [m]any, many, many times. He was able to recall specifically eight projects during the relevant period, although he thought there were other projects he simply could not recall. Of the specific projects he could recall, he specifically identified one where Georgia-Pacific compound was used; a job where he constructed a kit house for a friend. He could not recall whether Bostic was present when drywall work was done on this project. Bostic could not recall with certainty ever using Georgia- Pacific drywall products during the relevant period. The case went to trial in Plaintiffs offered the testimony of several experts. Dr. Richard Lemen, an epidemiologist, testified about the history of research linking asbestos in its various forms to diseases including mesothelioma. Dr. William Longo, a material scientist, testified about the concentrations of asbestos that would be released into the air by workers performing typical drywall work. Dr. Arnold Brody, a pathologist, testified regarding asbestos, including the chrysotile variety used in the drywall compound, as a recognized cause of mesothelioma and other diseases. Dr. Samuel Hammar, a pathologist, was Plaintiffs expert on specific causation. Dr. Hammar testified that any asbestos exposure above background levels causes mesothelioma. He testified that he had not reviewed the deposition testimony of Bostic and Harold. He reviewed the work history sheets but conceded they did not indicate the duration or intensity of exposure. Hammar, Brody, and Lemen repeatedly testified that each and every exposure to asbestos was a cause of Bostic s disease. Longo conceded that his studies did not attempt to mimic any one person s actual exposure to asbestos so he made no attempt to measure Bostic s actual aggregate dose assignable to Georgia-Pacific or any other source. The jury found Georgia-Pacific liable under negligence and marketing defect theories, and the jury was asked to allocate causation among numerous entities. The jury assessed 25% of the causation to Knox Glass Company, a former employer who had settled with Bostic, and 75% to Georgia-Pacific. The trial court signed an amended judgment awarding Plaintiffs approximately $6.8 million in compensatory damages and approximately $4.8 million in punitive damages. The verdict was appealed and the court of appeals concluded that the evidence of causation was legally insufficient and rendered a take-nothing judgment against the Plaintiffs. Subsequently, the Bostic s petitioned for review of the court of appeals decision contending the court of appeals erred in holding that the causation evidence was legally insufficient. 2. Texas Supreme Court Decision 5 Following the Flores decision, The Texas Supreme Court agreed (6-3) with the court of appeals decision that the Plaintiffs failed to offer legally sufficient evidence of substantial factor causation at trial. 5 Bostic v. Georgia-Pac. Corp., No , 2014 WL (Tex. July 11, 2014). Page 12

13 The Court concluded that in all asbestos cases involving multiple sources of exposure, including mesothelioma cases, the standards for proof of causation in fact are the same. 6 In reviewing the legal sufficiency of the evidence: Proof of any exposure to a defendant s product will not suffice and instead the plaintiff must establish the dose of asbestos fibers to which he was exposed by his exposure to the defendant s product; The dose must be quantified but need not be established with mathematical precision; The plaintiff must establish that the defendant s product was a substantial factor in causing the plaintiff s disease; The defendant s product is not a substantial factor in causing the plaintiff s disease if, in light of the evidence of the plaintiff s total exposure to asbestos or other toxins, reasonable persons would not regard the defendant s product as a cause of the disease; To establish substantial factor causation in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff s exposure to the defendant s product more than doubled the plaintiff s risk of contracting the disease. A more than doubling of the risk must be shown through reliable expert testimony that is based on epidemiological studies or similarly reliable scientific evidence; 7 and The Plaintiffs were required to establish substantial factor causation, but were not required to prove that but for Plaintiff s exposure to defendant s product, he would not have contracted asbestos related disease. The Plaintiff s experts, articles relied on, and exposure evidence are summarized below. Brody, Lemen, and Hammar relied on a report from the Helsinki Conference on asbestos disease which states that while mesothelioma can occur in cases of low exposure, very low background environmental exposures carry only an extremely low risk. Brody also relied on an article by Phillip Landrigan and others finding it widely accepted that asbestos fibers, including chrysotile fibers, increase the existing risk 6 The Flores substantial factor standard applied in Mr. Flores case, applies to mesothelioma cases because both diseases (asbestosis and mesothelioma) are dose related. 7 Merrell Dow Pharamaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). In sum, Havner enunciated principles in toxic tort cases: (1) expert testimony of causation must be scientifically reliable, (2) the plaintiff must establish the elements of his claim by a preponderance of the evidence, (3) where direct evidence of causation is lacking, scientifically reliable evidence in the form of epidemiological studies showing that the defendant s product more than doubled the plaintiff s risk of injury appropriately corresponds to the legal standard of proof by a preponderance of the evidence. Page 13

14 of developing lung cancer in proportion to the cumulative exposure that occurred up to a time 10 years prior to evaluation. Hammar and Lemen testified that any exposure to asbestos should be treated as a cause of Bostic s mesothelioma relying on 1977 report of the Consumer Product Safety Commission proposing to ban asbestos containing patching compounds. The article stated no effect level theoretically may exist, but it has not been demonstrated. Therefore, there is no known threshold below which exposure to respirable free form asbestos would be considered safe. Lemen discussed 1972 OSHA regulations concerning asbestos exposure standards which recognized there was controversy as to the validity of the measuring techniques and the controversies concerning the relative toxicity of the various kinds of asbestos, but concluded that it is essential that the exposure (to asbestos) be regulated now, on the basis of the best evidence available now, even though it may not be as good as scientifically desirable. Lemen testified about his own study regarding full time Chinese asbestos plant workers who worked over two decades. The study met Havner standards. Lemen also relied on a study by Frank Stern regarding union plasterers and cement masons where the authors made reference to another study of drywall construction which found asbestos fiber concentrations similar to those measured in the work environment of asbestos insulation workers who in yet another study by Irving Selikoff had a sevenfold increased risk of cancer of the lung and pleura. Although the study found that the correlation between employment in the trades and mesothelioma was not statistically significant. Dr. Hammar also testified that Bostic s exposure while he was employed at Knox Glass was minimal compared to his exposure from his construction work, but the court determined this was only conclusory because it was not supported by scientific studies or a scientific attempt to measure the relative exposures. The court concluded that because Bostic s experts did not show, through reliance on scientifically reliable evidence, that Bostic s exposure, to Georgia Pacific asbestos containing products, more than doubled the risk of Bostic contracting mesothelioma, and more specifically, there was no measurement of an approximate dose at all, that Bostic s evidence was not sufficient to prove substantial causation to support his claims against Georgia Pacific. In fact, the court stated [s]o far as we can tell, none of the peer reviewed scientific studies on which Plaintiffs experts relied found a statistically significant link between mesothelioma and occasional exposure to joint compounds comparable to Bostic s exposure, namely the occasional exposure of a son helping his father on building renovation projects that were not the primary occupation of either father or son, and which included drywall work as well as other construction activities. Also, the court clarified that [i]n Havner, we held that the plaintiff must show that he or Page 14

15 she is similar to those in the studies. This would include proof that the injured person was exposed to the same substance, that the exposure or dose levels were comparable to or greater than those in the studies... and that the timing of the onset of injury was consistent with that experienced by those in the study. Without such a showing, epidemiological studies are without evidentiary significance. While the exposure of those in the study need not exactly match the plaintiff s, exposure the conditions of the study should be substantially similar to the claimant s circumstances, a requirement that was not met. The court therefore affirmed the court of appeals decision. III. JURISDICTIONS CITING, ADOPTING, OR REJECTING BORG-WARNER, BOSTIC AND STEPHENS A. Borg-Warner Corp. v. Flores 8 The Texas Supreme Court opinion has been cited in thirty-eight (38) cases nationwide, thirteen (13) of which are cases from jurisdictions other than Texas. A description of each non- Texas case is detailed below: 1. Nevada i. Holcomb v. Georgia Pac., LLC 9 Randy Holcomb ( Holcomb ) contracted mesothelioma, a cancer affecting the lining of the lungs, typically caused by exposure to asbestos. Holcomb worked in the construction industry in Florida from 1969 through 1973 performing sheetrock work using dry joint compound powder packaged in paper bags and pre-mixed joint compound packaged in buckets. After a year of military service, Holcomb moved to Las Vegas, Nevada around 1975, where he resumed construction work for several years. The construction work in Florida and Nevada required Holcomb to use Bondex, Paco, Paco Quick Set, Kelly-Moore, Kaiser Gypsum, and Georgia- Pacific joint compounds. Holcomb did not recall using any particular product on any particular job or at any particular time, and he could not identify in concrete terms how often his construction duties encompass joint compound work. However, Holcomb had specific memories of using all of the brands on a regular basis. Additionally, beginning in 1969 when he moved to Florida and regularly thereafter, Holcomb worked as a brake mechanic in the automotive industry often performing these jobs on the side. A lawsuit was filed alleging that these repeated exposures to joint compounds and brake products caused Holcomb s mesothelioma and resulting death. The joint compound and automotive-brake defendants moved for summary judgment on the grounds that Holcomb s testimony did not raise triable issues of fact regarding his threshold exposure to any asbestos contained in their products. The trial court granted summary judgment concluding that Holcomb had failed to submit sufficient evidence of exposure to allow a jury to S.W.3d 765 (Tex. 2007) P.3d, 188, 195 (Nev. 2012). Page 15

16 find that the defendants products were substantial factors in causing his mesothelioma. The trial court certified its orders granting summary judgment as final thus, appeal followed. The court held that while medical causation was not at issue, Holcomb had to demonstrate that a particular defendant sufficiently exposed him to asbestos in order to establish adequate causation to hold that defendant liable. 10 The court noted that [g]iven the often lengthy latency period between exposure and manifestation of injury, poor record keeping, and the expense of reconstructing such data, plaintiffs in asbestos litigation typically are unable to prove with any precision how much exposure they received from any particular defendant s products. 11 The court found that [t]o remedy this situation, which could unfairly deny deserving plaintiffs in asbestos cases any recovery, courts have fashioned a variety of causation standards in an attempt to balance the interest of plaintiffs with the interest of nonresponsible defendants. Id. As a result, the precise requirements of proof causation varies from state to state. The court noted that Nevada has not articulated any particular causation standard in asbestos cases for determining whether a mesothelioma is sufficiently caused by exposure to a defendant s products. Id. Therefore, the court consider[ed] the causation standards used in three (3) preeminent asbestos litigation cases: (1) the California Supreme Court s exposure-to-risk test of Rutherford v. Owens Illinois, Inc., 941 P.2d 1203, 1206 (1997); (2) the Texas Supreme Court s defendant-specific-dosage-plus-substantial-factor test in Borg Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007); and (3) the Fourth Circuit s frequency, regularity, proximity test set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir.1986). The court concluded that: in protecting the manufacturer, the Flores causation test swings too far beyond Rutherford to the point where it overburdens the claimant, who might not be able to sufficiently demonstrate not only the dosage quantity of exposure to a particular defendant's product but also the total asbestos dosage to which he was exposed. We conclude that the Flores application of the substantial factor test is too stringent. Id. at 773. Instead, we are persuaded by the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), frequency, regularity, proximity test, as applied in mesothelioma cases. See Gregg v. V J Auto Parts, Inc., 596 Pa. 274 (2007). The majority of the federal circuits and state courts addressing this question have chosen to apply the Lohrmann test to determine whether the plaintiff has satisfied his burden of showing that a specific defendant s products caused his disease. 12 Under the Lohrmann test, the court held that Holcomb raised inferences of probable exposure as to defendants Kelly-Moore, Kaiser Gypsum, and Georgia-Pacific, sufficient to defeat summary judgment as to those respondents, but not as to Union Carbide. The summary judgment was therefore reversed in part and the matter was remanded for further proceedings. 10 Id. 11 Id. at Id. at 195 (emphasis added). Page 16

17 2. Ohio i. Byers v. Lincoln Elec. Co. 13 This case was one (1) of approximately twenty-six hundred (2,600) pending cases that are part of In Re Welding Fume Products Liability Litigation, MDL No Eddie Byers ( Byers ), was raised in Texas and was forty-eight (48) years old, at the time of the lawsuit. Byers father was a welder who taught Byers to weld when he was a young boy. As Byers grew older, he helped his father on welding jobs during the summer, and eventually became a welder himself in 1978, when he was seventeen (17) years old. Byers worked as a welder for various employers while living in Texas until He then moved to Alabama and continued to work as a welder until Byers then quit welding because he could no longer perform the physical requirements, due to Manganese-Induced Parkinsonism. Byers used welding consumables produced by a variety of manufacturers. He did not have a precise recollection of which manufacturers welding rods he used at each job location, the number of job sites, and the number of different welding rod products he used. Byers named ten (10) welding rod manufacturers as defendants in his lawsuit, but voluntarily dismissed one (1) defendant. Byers offered testimony that he was regularly and consistently exposed to welding rod fumes generated by products manufactured by Lincoln Electric, Hobart Brothers, and ESAB Group, while offering vague and inconsistent testimony regarding his use of welding rod products manufactured by BOC Group, TDY Industries, Union Carbide, Eutectic, Sandvik, and Westinghouse Electric. However, the evidence was undisputed that Lincoln Electric, Hobart Brothers, and ESAB Group supplied the overwhelming majority of the welding rod products that Byers used during his career. Each of the nine (9) defendants moved for summary judgment challenging the sufficiency of Byers specific causation and evidence. Texas substantive law applied to this case. In their motions for summary judgment, the defendants argued that Mr. Byers could not prevail at trial because he had insufficient evidence regarding: (1) what level of exposure to welding fumes, if any, caused his neurological injury; and (2) whether Byers was exposed to fumes from each individual defendant s products at that level. The defendants cited to Borg-Warner Corp. v. Flores, 14 and Georgia-Pac. Corp. v. Stephens 15 to support their arguments. The court held that Borg-Warner mandated that Byers provide more than just the information required by Lohrmann; he had to also provide evidence related to the quantitative information [of his exposure] necessary to support causation under Texas law. The court noted that [w]hile this quantitative information need not be mathematically precise, it must be sufficiently finespun to allow a jury to determine: (1) the quantity of manganese fume to which Byers might have been exposed, (2) whether that amount was sufficient to cause neurological injury, and (3) whether the amount of exposure attributable to each defendant was a substantial cause of that alleged injury. 16 Byers produced the following summary judgment evidence: Threshold Limit Values ( TLV ) promulgated by the American Conference of F. Supp. 2d 840 (N.D. Ohio 2009) S.W.3d 765 (Tex. 2007) S.W.3d 304 (Tex. App. Houston [1 st Dist.] 2007). 16 Byers v. Lincoln Elect. Co., 607 F. Supp. 2d at 861. Page 17

18 Governmental Industrial Hygienists and Permissible Exposure Limits ( PEL ) promulgated by the Occupational Safety and Health Administration. Manganese Welders who are exposed to manganese fumes at levels above the TLV or PEL are not guaranteed to suffer adverse health consequences; however, such exposures are unsafe and make adverse health consequences more likely; Minutes from a 1994 meeting of the American Welding Society stating that if the TLV is lowered to 0.2 milligrams per cubic meter, then the overall welding fume limit... would be exceeded in most work place atmospheres ; 1995 letter directed to the Ferroalloys Association arguing against the reduction of the TLV because approximately 50% [of Caterpillar welders] would be over[- ]exposed to manganese at [a TLV] of.02 milligrams per cubic meter; OSHA audits of various worksites around the country indicating that welders are experiencing manganese exposure in excess of the legal limits; Byers testimony pertaining to particular welding experiences during his life long career including long hours, enclosed areas, lack of respirators, working next to other welders; and Byers s industrial hygiene expert opinion that, when assessed against the generalized evidentiary background established by the evidence, these circumstances leave no doubt that Byers has, over his twenty-seven (27) year welding career, experienced exposures to manganese at various concentrations depending on the specific work, and at levels that exceeded historical and current regulations, and guidelines. The court found that Byers offered sufficient evidence addressed to survive the summary judgment motions filed by Lincoln Electric, Hobart Brothers, and ESAB Group, while the motions for summary judgments were granted as to the other six (6) defendants. This case went to trial before a jury on November 3, 2008 and the jury returned a verdict in favor of the defendants. ii. Cooley v. Lincoln Elec. Co. 17 Cooley v. Lincoln Elec. Co., was a product liability action that was brought by Curt and Nancy Cooley ( Plaintiffs ) against four (4) manufacturers of welding rods due to Curt Cooley s ( Cooley ) contraction of manganese poisoning. 18 The case was transferred to In Re Welding Fumes Product Liability Litigation-MDL No The case proceeded to trial under Iowa law. The jury returned a verdict finding defendants liable for compensatory damages of $1.25 million and punitive damages of $5 million. The facts of the case were as follows: Cooley was born in He learned how to arc weld from his father when he was sixteen (16) years old. After he graduated from high school in 1969, Cooley took a one (1) year course on automobile body repair at a vocational school and received his first formal welding instruction. Throughout the 1970s, he worked in various automobile body shops. The body shops routinely used arc welding to repair cars and welding was F. Supp. 2d 511 (N.D. Ohio 2011). 18 Manganese is a heavy metal contained in welding consumables such as welding rods and wires. Page 18

19 part of Cooley s job. In 1979, Cooley made a career change and entered the ironworking trade, where he continued to weld as part of his job. He was a union ironworker until the late 1980s, when he went back to the automobile body business for a few years. He returned to ironworking in 1990, and spent the rest of his working life in that trade. He retired in Further, Cooley welded outside of work as he occasionally bought wrecked cars and repaired them in his garage, and over the years, did artwork with metal that required welding. At trial, Cooley s expert industrial hygienist, Dr. David Kahane, opined that there s no question in my mind that Cooley was overexposed [to manganese] above 0.2 [TLV] during his career for sure. The defendants medical expert, Dr. Watts, however testified there is no known safe level of exposure to manganese, and that damages due to exposure is cumulative. Witnesses in the case did not testify regarding an aggregate or defendant specific dose of manganese. Although the defendant quoted to Byers v. Lincoln Elec. Co. 19 in support of its argument that Cooley s exposure was insufficient, the court held that [i]n Byers... the Court was applying Texas law, and, specifically, the very stringent test set forth in Borg Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). See Julie Offerman 20 (characterizing the Borg Warner standard as one of the most stringent in the nation). Therefore, the court held that [a]ccordingly, much of the Court s analysis in Byers [wa]s not applicable here as Iowa, not Texas, substantive law governed the case. In Lovick, the Iowa Supreme Court explained that in Iowa, a plaintiff in a products liability action must established a causal relationship between the alleged negligence and injury... this requires a showing that the manufacturer s conduct was a substantial factor in the injury. 21 Further, in City of Cedar Falls, the Iowa Supreme Court fleshed out the meaning of substantial factor as follows: On this issue, we look to the proximity and foreseeability of the harm flowing from the actor s conduct. If looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable, and improbable in light of common experience, such negligence would be remote rather than proximate cause. If, however, by fair consideration of the facts based upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created. 22 Considering Iowa law, and upon full review of the evidence adduced at trial, the court found that there was substantial evidence to support the jury s conclusion that defendant s product was a substantial factor in causing Cooley s injury F.Supp.2d 840, 860 (N.D. Ohio 2009). 20 The Dose Makes the Poison : Specific Causation in Texas Asbestos Cases after Borg Warner, 41 TEX. TECH. L. REV. 709, n. 118 (Winter 2009). 21 Lovick v. Wil-Rich, 588 N.W.2d 688, 700 (Iowa 1999). 22 Cedar Falls Community School Dist., 617 N.W.2d 11, 17 (Iowa 2000). Page 19

20 3. Pennsylvania i. In re Asbestos Products Liab. Litig. (No. VI) 23 Joe Freeman ( Freeman ) was diagnosed with pleural mesothelioma after working thirtyfour (34) years, between 1959 and 1993, at the Du Pont Plant in Orange County, Texas ( Du Pont ). Freeman worked as a mechanic-in-training for the first four (4) years and then as a millwright and pipefitter for the remainder of his career. During this time, he alleged that he was regularly exposed to asbestos from defendants products. Freeman filed suit in the United States District Court for the Eastern District of Texas but the case was later transferred to the United States District Court for the Eastern District of Pennsylvania ( MDL Court ). Texas substantive law applied in this case. Freeman sued numerous parties; however, John Crane and Crane Co. were the only remaining defendants to not have settled or otherwise been dismissed. With respect to John Crane, Freeman was exposed to its chrysotile asbestos-containing gaskets and packing while repairing and replacing pumps. During his career, he replaced at least 30,000 to 40,000 gaskets, a slight majority of which were manufactured by John Crane. Further, Freeman cut John Crane sheet gasket material maybe ten times a year. Freeman s industrial hygienist, Frank Parker, III ( Parker ), estimated that Freeman s total quantified dose of asbestos exposure attributable to John Crane products was.552 fiber-years/cc. With respect to Crane Co., Freeman was exposed to chrysotile asbestos-containing gaskets and packing while performing work on Crane Co. valves. He testified that: (1) between 1960 and 1972, he replaced gaskets in smaller Crane Co. valves at least three or four times a week ; (2) between 1963 and 1972, he worked on larger Crane Co. valves a minimum of once a month ; and (3) between 1960 and 1972, he replaced the packing in Crane Co. valves at least once every two months. Parker estimated that Freeman s total quantified dose of asbestos exposure attributable to Crane Co. was fiber years/cc. John Crane and Crane Co., via motions for summary judgment, contended that Freeman failed to meet the causation standard established by the Texas Supreme Court in Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). 24 Satisfying the Flores standard, the court found that Freeman s testimony met the Flores requirement that he had been exposed to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. The court also found that Parker quantified the approximate dose of asbestos exposure attributable to each defendant. 23 No , 2012 WL (E.D. Pa. Feb. 17, 2012). 24 First, as outlined in Flores, in order to prove that a defendant s product was a substantial factor in the contraction of an asbestos related disease, a plaintiff must establish that he had been exposed to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. 232 S.W.3d at 766. Second, a plaintiff must produce 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. Id. at 773. Third, [o]nce a plaintiff has proffered the requisite approximate dose, he or she must compare those doses with other evidence to show that each defendant-specific dose of asbestos exposure has substantially increased the chances of contracting the asbestos-related disease. Id. The Texas Supreme Court has rejected the theory that every exposure to asbestos was, de facto, a significant cause in developing the asbestos-related disease, holding instead that there must be evidence establishing a threshold level at which exposure to asbestos significantly increases the risk of developing the disease. Id. Page 20