Bostic v. Georgia-Pacific: The Texas Supreme Court Extends And Refines Substantial Factor Causation

MEALEY S TM LITIGATION REPORT Asbestos Bostic v. Georgia-Pacific: The Texas Supreme Court Extends And Refines Substantial Factor Causation by Patrice Pujol Forman Perry Watkins Krutz & Tardy, LLP Houston, Texas and Laura A. Frase Forman Perry Watkins Krutz & Tardy, LLP Dallas, Texas A commentary article reprinted from the August 13, 2014 issue of Mealey s Litigation Report: Asbestos

MEALEY S LITIGATION REPORT: Asbestos Vol. 29, #13 August 13, 2014 Commentary Bostic v. Georgia-Pacific: The Texas Supreme Court Extends And Refines Substantial Factor Causation By Patrice Pujol and Laura A. Frase [Editor s Note: Patrice Pujol is an appellate and litigation attorney in the Houston Office of Forman Perry Watkins Krutz & Tardy, LLP. Laura A. Frase is a litigation partner in the Dallas Office of Forman Perry Watkins Krutz & Tardy, LLP. Both authors have practiced extensively in asbestos litigation and other toxic tort litigation and work as national counsel for several defendant companies. Copyright # 2014 by Patrice Pujol and Laura A. Frase. Responses are welcome.] Introduction Over the last ten years, Texas asbestos litigation has undergone a sea change, beginning with sweeping tort reform legislation under House Bill 4, which was passed in 2003, and continuing through the Legislature subsequent fine-tuning of these statutes. Along the way, the Texas appellate courts and particularly the Texas Supreme Court have been called upon to interpret these statutes, as well as clarify the level of proof needed to establish substantial factor causation in an asbestos case. On June 8, 2007, the Texas Supreme Court issued its landmark opinion in Borg-Warner Corp. v. Flores. 1 There, a unanimous 2 Supreme Court ruled that the plaintiff must prove the asbestos in a defendant s product was a substantial factor in bringing about his disease. 3 In addition, to make such a showing, the plaintiff must present defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed. 4 Following this opinion, several intermediate appellate courts applied the Flores standard, finding the claimants proof of substantial factor causation was legally insufficient. For example, in Georgia-Pacific Corp. v. Stephens, a mesothelioma case, the First Court of Appeals in Houston reversed a jury verdict because the record did not contain any quantitative estimate of Fred [Stephens s] exposure to Georgia-Pacific s joint compound. 5 Likewise, the Fort Worth Court of Appeals in Smith v. Kelly-Moore Paint Co., Inc., another mesothelioma case, affirmed a no-evidence summary judgment in favor of defendant Kelly Moore. 6 The court so ruled because the Smiths failed to provide sufficient evidence that their decedent was exposed to asbestos from Kelly-Moore s joint compounds in a dose sufficient to have been a substantial factor in causing his mesothelioma. 7 In another case, Georgia-Pacific Corp. v. Bostic, the Dallas Court of Appeals reversed the jury s verdict in favor of the Bostics, finding that their proof of substantial factor causation was legally insufficient. 8 But unlike Stephens and Smith, the Texas Supreme Court granted review of the court of appeals decision. 9 On July 11, 2014 more than seven years after the Flores opinion emerged the Supreme Court issued its opinion in Georgia-Pacific Corp. v. Bostic. 10 Distilled to its essence, Bostic extends Flores s substantial factor causation standard to a multiple-exposure scenario. In addition, Bostic announces a new variable to consider 1

Vol. 29, #13 August 13, 2014 MEALEY S LITIGATION REPORT: Asbestos when determining whether a particular source of asbestos exposure is truly a substantial factor of a claimant s disease when compared to the other sources of exposure. This article addresses the Bostic opinion and its potential impact on asbestos litigation in Texas. Part I discusses the Court s holding, including the concurring and dissenting opinions, and examines the Court s analysis and application of Flores and Merrell Dow Pharmaceuticals, Inc. v. Havner in resolving the particular multiple-exposure issues arising in the case. Part II of this article turns to several unique aspects of the opinion, particularly as to the Court s application of Flores, its perspective on dose, and Havner s impact on substantial factor causation. I. The Court s Opinion In Bostic The Majority, Concurrence, And Dissent In 2002, 40-year-old Timothy Bostic ( Bostic ) was diagnosed with mesothelioma and died the following year. 11 His relatives, individually and on behalf of his estate ( Plaintiffs ), sued Georgia-Pacific and 39 other defendants for negligence and products liability, alleging that the defendants products exposed Bostic to asbestos and caused his disease. 12 Regarding Georgia-Pacific specifically, Plaintiffs claimed that as a child and teenager, Bostic was exposed to asbestos while using Georgia-Pacific joint compound. 13 After an apparent error in the jury charge eliminated the first trial s findings for Plaintiffs, the second trial s jury found Georgia-Pacific liable under negligence and marketing defect theories, and assessed 75% of the causation to Georgia-Pacific and 25% to Knox Glass Company, a former employer who settled with Bostic. 14 The trial court signed an amended judgment awarding Plaintiffs approximately $6.8 million in compensatory damages and approximately $4.8 million in punitive damages. 15 Concluding that the evidence of causation was legally insufficient, the Dallas Court of Appeals reversed and rendered judgment that Plaintiffs take nothing. 16 A. The Majority Opinion In a 6-3 opinion, the Texas Supreme Court affirmed, agreeing with the court of appeals that Plaintiffs failed to offer legally sufficient evidence of causation. 17 The Majority s holding can be summed up as follows: 1. The standard of substantial factor causation recognized in Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007), as asbestosis case, applies to mesothelioma cases because both diseases are dose-related. 2. The Plaintiffs were not required to prove that but for Bostic s exposure to Defendant Georgia-Pacific s asbestos-containing joint compound, Bostic would not have contracted mesothelioma. Such a but-for causation requirement unnecessarily elevates the substantial factor causation announced in Flores. 3. In analyzing the issue of substantial factor causation and the implications of Havner in the context of a multiple exposure case, the Supreme Court held that [I]n the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestos-related disease case requires scientifically reliable proof that the plaintiff s exposure to the defendant s product more than doubled his 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 testimony. 4. Finally, because Plaintiffs experts did not show, through reliance on scientifically reliable evidence, that Bostic s exposure to asbestos from Georgia-Pacific s products more than doubled his risk of contracting mesothelioma and more importantly, there was no measurement of dose their evidence was not legally sufficient. Thus, relying on Flores and Havner, the Supreme Court affirmed the court of appeals judgment. The Court began its analysis by revisiting the Flores opinion. In that case, the Court held Flores s evidence of some exposure was legally insufficient because the record revealed nothing about how much asbestos Flores might have inhaled. 18 Ultimately, the Court required [d]efendant-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. 19 Afterlayingthisgroundwork,theCourtaddressed Plaintiffs argument that Flores did not apply because 2

MEALEY S LITIGATION REPORT: Asbestos Vol. 29, #13 August 13, 2014 it involved asbestosis, which required heavy asbestos exposure, as opposed to Bostic s disease of mesothelioma, which can result from relatively minute quantities of asbestos. 20 The Court rejected this argument and held that even in mesothelioma cases proof of some exposure or any exposure alone will not suffice to establish causation. 21 Generally speaking, the likelihood of developing asbestosis or mesothelioma increases as the dose increases. 22 Because both diseases are dose-related, the Court held that a different analysis for each disease was not warranted. 23 The Court reasoned that if it were to adopt a less demanding standard for mesothelioma cases and accept that any exposure to asbestos was sufficient to establish liability, then absolute liability would result against any company whose asbestos-containing product crossed paths with the plaintiff throughout his entire lifetime. 24 As a result, every exposure, even a de minimis exposure, would be a substantial factor in causing the plaintiff s illness, thus negating the plaintiff s burden to prove causation by a preponderance of the evidence. 25 Aside from contradicting established precedent, the Court also noted that such a theory is illogical because it asserts that any exposure from a defendant s product above background levels should impose liability, while the background level of asbestos should be ignored. 26 Therefore, because Plaintiffs evidence did not quantify Bostic s approximate dose from Georgia-Pacific joint compound or show that it was a substantial factor in causing Bostic s mesothelioma, the Supreme Court affirmed the court of appeals judgment. 27 However, the Court disagreed with the appellate court s holding that Plaintiffs were required to show Bostic would not have developed mesothelioma absent exposure to Georgia-Pacific asbestos-containing joint compound. 28 In its holding, the court of appeals applied Flores, but then included a but for causation requirement, stating In asbestos cases, then, we must determine whether the asbestos in the defendant s product was a substantial factor in bringing about the plaintiff s injuries and without which the injuries would not have occurred. 29 Ultimately, the appellate court concluded that the testimony of Plaintiffs specific causation expert was insufficient because he could not opine that Timothy would not have developed mesothelioma absent exposure to Georgia-Pacific asbestos-containing joint compound. 30 Although the Supreme Court noted that but for causation plays a role in the general causation standard applicable to tort cases, the Court nevertheless followed various provisions of the Restatements of Torts and, in particular, its controlling decision in Flores, whose holding did not require proof of this elevated but for causation. 31 The Court concluded that, in products liability cases where the plaintiff was exposed to multiple sources of asbestos, substantial factor causation is the appropriate basic standard of causation without including as a separate requirement that the plaintiff meet a strict but for causation test. 32 Thus, Plaintiffs were required to establish substantial factor causation, but were not required to prove that but for Bostic s exposure to Georgia-Pacific s products, he would not have contracted mesothelioma. 33 In applying its analysis in Flores, the Supreme Court also dissected substantial factor causation under its opinion in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). 34 In Havner, thecourt previously acknowledged that epidemiological studies showing that the population exposed to a toxin faced more than double the risk of injury facing the unexposed or general population could be used to establish causation. 35 In the portion of the Court s opinion joined by five justices, the Court observed that Havner provides useful insights that should be integrated with the Court s analysis in multiple-exposure cases like Bostic. 36 Among these toxic tort insights are that 1. expert testimony of causation must be scientifically reliable, 37 2. the plaintiff must establish the elements of his claim by a preponderance of the evidence, 38 and 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 3

Vol. 29, #13 August 13, 2014 MEALEY S LITIGATION REPORT: Asbestos to the legal standard of proof by a preponderance of the evidence. 39 4. According to the Court, these principles apply to asbestos cases. 40 In applying these Havner principles, the Court held that to establish substantial factor causation in the absence of direct evidence of causation, a plaintiff must prove with scientifically reliable expert testimony that his exposure to the defendant s product more than doubled his risk of contracting the disease. 41 As to the potential difficulty arising from Havner s statement that the plaintiff must offer evidence excluding other plausible causes with reasonable certainty, the Court relaxed this requirement: We think the plaintiff should be required to establish more than a doubling of the risk attributable to the defendant s product,... but do not think it necessary or fair to require a plaintiff to track down every possible source of asbestos exposure and disprove that those other exposures caused the disease. 42 The Court reasoned that ruling out all other possible causes of disease would in effect re-introduce the strict but for requirement it rejected when analyzing the court of appeal s judgment. 43 Likewise, the Court left open the possibility that a defendant whose product was the source of exposure that more than doubled the plaintiff s risk of disease may still fall short of substantial factor causation: However, when evidence is introduced of exposure from other defendants or other sources, proof of more than a doubling of the risk may not suffice to establish substantial factor causation. 44 *** Suppose a plaintiff shows that his exposure to a defendant s product more than doubled his chances of contracting a disease, but the evidence at trial also established that another source of the toxin increased the chances by a factor of 10,000. In this circumstance, a trier of fact or a court reviewing the sufficiency of the evidence should be allowed to conclude that the defendant s product was not a substantial factor in causing the disease. 45 Thus, a doubling of the risk does not end the inquiry. 46 Instead, the Court allows some leeway with respect to the evidence of exposure and the factfinder s eventual decision based on that evidence. 47 Ultimately, the Court held that the Plaintiffs causation evidence was legally insufficient to uphold the jury s verdict at trial. Proof of substantial factor causation required Plaintiffs to provide some quantification of the dose resulting from Bostic s exposure to Georgia- Pacific s products. Instead, Plaintiffs did not establish even an approximate dose because their expert testimony was to the effect that any exposure was sufficient to establish causation a theory the Court rejected in Flores. Moreover, Plaintiffs experts did not show, through reliance on scientifically reliable evidence, that Bostic s exposure to asbestos from Georgia- Pacific s products more than doubled his risk of contracting mesothelioma. Thus, the Supreme Court affirmed the court of appeals judgment that Plaintiffs take nothing. B. Justice Guzman s Concurrence Although Justice Guzman agreed with the Majority s holding as to its application and clarification of Flores, she did not agree with the Court s explanation of Havner or the dissent s holding that would reverse the court of appeals judgment. 48 In her concurrence, Justice Guzman expressed the concerns that: 1. the Majority incorrectly heightened the preponderance of the evidence standard set forth in its Havner analysis; and 2. the dissent proposed an asbestos litigation framework that fails to adhere to our well-settled precedents as they relate to the preponderance of evidence standard. 49 As to the Majority s analysis of Havner,Justice Guzman criticized the Court s holding that Plaintiffs epidemiological studies were insufficient because they were not the occasional exposure of a son helping his father on building renovation projects which were not the primary occupation of either father or son, and which included drywall work as well as other construction activities. 50 As Justice Guzman clarifies, the Court 4

MEALEY S LITIGATION REPORT: Asbestos Vol. 29, #13 August 13, 2014 has only required substantially similar not completely identical epidemiological studies. 51 And although a plaintiff must resolve any differences between the studies and the specific pattern of exposure, there must be a scientific basis for the extrapolation something Plaintiffs here failed to do. 52 As Justice Guzman opined: The thrust of Havner is that we will allow a plaintiff to recover if science can bridge the gap in proof of causation. Requiring perfectly congruent epidemiological studies when science can fill potential analytical gaps undercuts the very purpose of Havner. 53 Therefore, the Majority s opinion should not be interpreted to foreclose recovery in a mesothelioma case based on occasional exposure to asbestos. 54 Further, Justice Guzman perceived a potential conflict between the Majority s articulation of substantial factor causation and the Texas comparative fault statute. 55 According to the Majority, substantial factor causation means that a defendant whose toxin more than doubled the plaintiff s risk of injury may not be liable if exposure to another defendant s toxin was at a factor 10,000 times more. 56 To Justice Guzman, this was an unnecessary, superfluous statement that not only has no application to the circumstances of this case, but also conflicts with the Court s long-standing tradition that a plaintiff can recover the percentage attributable to the defendant after carrying his burden by a preponderance of the evidence. 57 In other words, if a plaintiff proves substantial factor liability by a preponderance of the evidence, then the factfinder will assign the percentage of fault to each defendant, even in a case where one defendant s fault is much lower than another defendant s. 58 Thus, substantial factor causation should not be confused with comparative fault. As to the dissent, Justice Guzman observed that it significantly and errantly eased the burden of proof requirement to something below a preponderance of the evidence. 59 First, the dissent misapprehends Havner, suggesting that the case need not apply because Plaintiffs offered sufficient direct evidence of exposure, thus eliminating the need for alternative methods of proving causation. 60 In Justice Guzman s view, Plaintiffs introduced evidence of exposure to Georgia- Pacific products that contained asbestos, but that evidence lacked sufficient specificity. 61 In addition, she believed the dissent overstated the scientific hurdles confronting a mesothelioma plaintiff attempting to prove Havner causation. 62 On the contrary, Havner permits a mesothelioma plaintiff to prove causation and recover in tort, and at least one scientific study may exist as a benchmark. 63 Finally, the dissent created confusion in future asbestos cases by diluting the preponderance of the evidence standard that has stood as a hallmark of toxic tort litigation in order to make mesothelioma cases easier to prove. 64 In affirming the court of appeals judgment, Justice Guzman articulated that the Majority correctly declined to weaken the preponderance of the evidence standard as it relates to scientific proof of causation. 65 C. The Dissent Of Justices Lehrmann, Boyd, And Devine In her dissenting opinion, Justice Lehrmann, joined by Justices Boyd and Devine, argued that the Court, by ignoring scientific proof that low levels of asbestos exposure can cause mesothelioma, misconstrues Havner s alternative measure of proof and Flores s substantial-factor causation. 66 According to the dissent, Plaintiffs showed by direct, scientifically reliable evidence that Bostic s mesothelioma was caused by exposure to asbestos, and that he was exposed to Georgia-Pacific s asbestos-containing products in substantial quantities. 67 The dissent began its analysis by crafting a highly detailed presentation of Plaintiffs evidence of causation. 68 In arguing that, under the facts of this multipleexposure, mesothelioma case, Plaintiffs evidence was legally sufficient to uphold the jury s verdict, the dissent pointed to the Court s misreading and misapplication of Havner and Flores. 69 First, the dissent asserted that Havner s alternative standard of proof is only useful for resolving general and specific causation, but not substantial factor causation whether exposure to one of several defendants products was a substantial cause of the plaintiff s harm. 70 Indeed, because Havner involved only a single source of exposure, it did not contemplate a factual scenario involving multiple manufacturers. 71 Thus, the Majority erred in applying Havner to answer all three causation questions. 72 Ultimately, by applying Havner s alternative standard of proof to determine substantial-factor causation, the Majority effectively renders Havner the exclusive measure of proof in all toxic tort cases, which ignores 5

Vol. 29, #13 August 13, 2014 MEALEY S LITIGATION REPORT: Asbestos precedent allowing a plaintiff to prove his case by direct, scientifically reliable proof of causation. 73 This, according to the dissent, was error. In addition, the dissent found fault in the Majority s holding that in multiple-exposure cases, a plaintiff must show that his exposure to each defendant s products, individually, more than doubled his risk of developing a disease: This transforms a substantial-factor inquiry into a singular-factor inquiry. Rather than require a plaintiff to prove that exposure to each defendant s product was, relative to his exposure from other sources, a substantial factor in causing his mesothelioma, the Court now requires the plaintiff to prove that exposure to each defendant s product was sufficient by itself to cause his mesothelioma. It is a foundation of tort law, and of substantialfactor causation in particular, that the actions of multiple defendants may converge to cause a plaintiff s harm. 74 As for the concurrence, the dissent criticized Justice Guzman s opinion for the same reasons as the Majority opinion, and disapproved of the statement that Bostic could not tie a specific manufacturer s asbestos fiber to his ailment. 75 This statement, like the Majority s opinion, misunderstands the nature of mesothelioma, and suggests that a plaintiff must identify the particular fibers that contributed to the development of his mesothelioma should he opt to prove causation by direct, scientifically reliable evidence. 76 Such a requirement replaces substantial-factor causation with the equivalent of but-for causation, insofar as it requires a plaintiff to identify the fibers without which he would not have developed mesothelioma. 77 Ultimately, the dissent found Plaintiffs evidence legally sufficient to uphold the jury s verdict and would therefore reverse the court of appeals judgment and reinstate the trial court s judgment in favor of the Bostics. 78 II. Commentary A. Flores Is The Mass Tort Model The Supreme Court s opinion in Bostic leaves no doubt that Flores is the gold standard for substantial factor causation in asbestos exposure cases regardless of the disease. The key to resolving the factual disparity between these two cases Flores involved asbestosis while Bostic involved mesothelioma was that both diseases are dose-related: With both asbestosis and mesothelioma, the likelihood of contracting the disease increases with the dose. As to asbestosis, we noted in Flores that this disease appears to be doserelated, so that the more one is exposed, the more likely the disease is to occur, and the higher the exposure the more severe the disease is likely to be. As to asbestos-related cancer, in Flores we discussed the California Supreme Court s decision in Rutherford v. Owens-Illinois, Inc. That case described how expert testimony was presented from both sides establishing that the plaintiffs asbestosrelated disease was dose-related i.e., that the risk of developing asbestos-related cancer increased as the total occupational dose of inhaled asbestos fibers increased. 79 Consequently, the Flores standard applies to all asbestos exposure cases, regardless of disease, and very likely applies to all dose-related diseases that could arises in the context of a toxic tort case. Indeed, the Court s discussion of the importance of dose in determining a causative link between exposure and disease and in rejecting the any exposure theory, the Court cited an Ohio opinion that similarly rejected the one-hit theory of exposure in a benzene exposure case. 80 Therefore, the application of the Flores and Bostic principles to non-asbestos cases appears probable. B. Dose Matters In both Flores and Bostic, plaintiffs respective lack of dose evidence sounded the death knell for their claims. In Flores, the evidence was that Flores was exposed to some asbestos on a fairly regular basis foranextendedperiodoftime. 81 Ultimately, the Court held that, [W]hile some respirable fibers may be released upon grinding some brake pads, the sparse record here contains no evidence of the approximate quantum of Borg-Warner fibers to which Flores was exposed, and whether this sufficiently contributed to the aggregate dose of asbestos Flores inhaled, such that it could be considered a substantial factor in causing his asbestosis. 82 6

MEALEY S LITIGATION REPORT: Asbestos Vol. 29, #13 August 13, 2014 Likewise, in Bostic, Plaintiffs experts testified that each and every exposure to asbestos was a cause of Bostic s disease, which was insufficient: Proof of substantial factor causation requires some quantification of the dose resulting from Bostic s exposure to Georgia-Pacific s products. Plaintiffs did not establish even an approximate dose. Instead, the expert testimony was to the effect that any exposure was sufficient to establish causation, a theory we rejected in Flores. 83 Interestingly, the dissent pointed out that Plaintiffs expert, Dr. William Longo, provided a variety of information as to Bostic s dose: He estimated that a twenty-five pound bag of Georgia-Pacific joint compound contained an average of 11.4 quadrillion asbestos fibers. 84 He detailed the average concentrations of asbestos released when a person performed tasks related to the use of joint compound. 85 His study measured a background level of.0002 asbestos fibers per cubic centimeter of air (f/cc), an average concentration of 4.97 f/cc after sanding joint compound, and an average concentration of 4.7 f/cc when cleaning up after sanding. 86 He testified that Bostic s exposure to Georgia- Pacific s product was significant and that he was exposed to Georgia-Pacific s asbestos at levels ten to twenty times the average background level. 87 Nevertheless, the Majority still held that this was insufficient, in part because Plaintiffs experts never testified that this exposure more than doubled Bostic s risk of contracting mesothelioma. 88 Ultimately, a necessary component of a claimant s dose evidence is the aggregate dose, in addition to the dose attributable to a specific defendant, so that the plaintiff can satisfy this doubling-of-the-risk element. In the words of the Majority, The essential teaching of Flores is that dose matters and this requirement applies to mesothelioma cases. 89 C. Substantial Factor Causation Incorporates Havner In addition to its application of Flores, the Court analyzed Havner in the context of the case presented: a multiple exposure case involving a dose-related disease, mesothelioma. But this analysis was not performed or even attempted by the Dallas Court of Appeals. In fact, Havner is mentioned only twice in that opinion in the context of general and specific causation, not in the context of substantial factor causation. 90 Instead, when addressing this latter causation, the Dallas appellate court relied heavily on the Supreme Court s opinion in Flores. 91 To bridge this gap and address the dissenting opinion s criticism of its reading of Havner the Majority observed Havner s focus on proof of more than a doubling of risk, as established by scientifically reliable studies, is premised on fundamental principles of tort law that have application here, even if there are differences between the circumstances of Havner and those of Bostic. 92 Ultimately, these principles have applied to a variety of toxic tort cases since Havner wasissuedover15yearsago.moreover,havner s discussion of specific causation is linked to substantial factor causation. Even though they are different concepts, substantial factor is a term the Majority uses to describe the level of proof required to establish specific causation, which is always an element of a plaintiff s case. 93 Ultimately, the Majority concluded that [I]n the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestos-related disease case requires scientifically reliable proof that the plaintiff s exposure to the defendant s product more than doubled his 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 testimony. 94 This holding embraces the Havner requirements of scientifically reliable proof and a doubling of the risk, and necessarily implements the preponderance of the evidence standard applicable to asbestos cases, including multiple-exposure asbestos cases. Because of Havner s longevity in Texas cases involving a variety 7

Vol. 29, #13 August 13, 2014 MEALEY S LITIGATION REPORT: Asbestos of circumstances and exposure types, it remains to be seen if the difficulties predicted by the dissent will actually arise. Conclusion The Supreme Court s opinion in Bostic v. Georgia- Pacific Corp. represents a new, refined element in the continuing evolution of Texas asbestos litigation. Although largely based on the Court s opinion in Borg-Warner Corp. v. Flores, Bostic examines the precise contours of substantial factor causation, the particular elements comprising legally sufficient evidence in a multiple-exposure case, and the factors to consider in determining whether a specific source of asbestos exposure is a substantial factor of a claimant s disease when that source is compared to the other sources of exposure. Based on the frequency with which cases involve multiple defendants and sources of exposure, the precise application of the Bostic approach to the varying case scenarios should be of great interest as the legal theory continues to develop. Endnotes 1. 232 S.W.3d 765 (Tex. 2007) (hereafter Flores ). 2. Chief Justice Wallace Jefferson delivered the opinion of the Court; Justice Harriet O Neill did not participate. 3. Flores, 232 S.W.3d at 773. 4. Id. 5. Georgia-Pac. Corp. v. Stephens, No. 01-05-00132-CV, 2007 Tex. App. LEXIS 10193, at *46 (Tex. App. Houston [1st Dist.] Aug. 13, 2007, pet. denied). 6. Smith v. Kelly-Moore Paint Co., 307 S.W.3d 829, 839 (Tex. App. Fort Worth 2010, no pet.). 7. Id. 8. Georgia-Pac. Corp. v. Bostic, 320 S.W.3d 588, 595 (Tex. App. Dallas 2010). 9. The Bostics sought review in the Texas Supreme Court and filed their petition for review on November 12, 2010. The Supreme Court initially denied the petition on October 26, 2012, with Chief Justice Jefferson and Justice Lehrmann noting their dissent from the denial of review. On December 12, 2012, the Bostics filed their motion for rehearing. The Supreme Court later withdrew its denial of the petition for review on February 15, 2013. 10. Bostic v. Georgia-Pac. Corp., No. 10-0775, 2014 Tex. LEXIS 578, 57 Tex. Sup. J. 1091 (Tex. July 11, 2014). 11. Id. at *6. 12. Id. 13. Id. 14. Id. at *7; see Pet rs Br. on the Merits at x, Bostic v. Georgia-Pac. Corp., No. 10-0775 (Tex. July 11, 2014), http://www.search.txcourts.gov/search Media.aspx?MediaVersionID=beebdff7-5238-47eab82a-aa3867d48a9a&coa=cossup&DT=BRIEFS& MediaID=f48bb347-ac6b-4a3f-b002-1b73c538c342. 15. Bostic at *7. 16. Id. at *7. 17. Id. at *5, 6, 8-20. 18. Id. at *9, quoting Flores at 771. 19. Id. at *9-10, quoting Flores at 773. 20. Id. at *10. 21. Id. at *11. 22. Id. 23. Id. at *11-12. 24. Id. at *14. 25. Id. at *17. 26. Id. at *20. 27. Id. at *8-20; *53 (...[D]ose was not established in this case ). 28. Id. at *21-35. 8

MEALEY S LITIGATION REPORT: Asbestos Vol. 29, #13 August 13, 2014 29. Id. at *21 (emphasis added), quoting Bostic, 320 S.W.3d at 596 (quoting Flores at 770). 30. Id. at *22, citing Bostic, 320 S.W.3d at 596. 31. Id. at *23-27, 29 ( In Flores we keyed on substantial factor causation, and did not require proof of but for causation. The absence of but for language in Flores was not inadvertent. ); *30-35. 32. Id. at *23-27. 33. Id. at *35. 34. Id. at *35-54. 35. Id. at *36-37, citing Havner at 717-18. 36. Id. at *36. 37. See id. at *40-41 ( Despite differences between Havner and today s case, Havner s focus on proof of more than a doubling of risk, as established by scientifically reliable studies, is premised on fundamental principles of tort law that have application here. Havner s discussion of epidemiological studies was based on the tenet in our law that expert testimony on causation must be scientifically reliable. ). 38. See id. at *41 ( Havner also held that, notwithstanding competing policies of deterrence, riskavoidance, or compensating innocent injured parties, [o]ur legal system requires that claimants prove their cases by a preponderance of the evidence, and we rejected all rationales for adopting a lesser burden of proof. ) (quoting E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995), in which the Supreme Court analyzed the issue of expert reliability). 39. Id. at *44. 40. Id. 41. Id. at *54; see id. at *45 ( We therefore conclude that in the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestosrelated disease case requires scientifically reliable proof that the plaintiff s exposure to the defendant s product more than doubled his 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 testimony. ). 42. Id. at *46. 43. Id. 44. Id. at *46-47. 45. Id. at *47-48. 46. See id. at *46-48. 47. See id. at *48. 48. Id. at *76. 49. Id. at *76-77. 50. Id. at *77, quoting Bostic at *70. 51. Id. at *78. 52. Id. 53. Id. at *91. 54. Id. at *83. 55. Id. at *91. 56. Id., referring to Bostic at *47-48. 57. Id. at *92. 58. Id. 59. Id. at *93. 60. Id. 61. Id. 62. Id. at *94. 63. Id. at *94-95. 9

Vol. 29, #13 August 13, 2014 MEALEY S LITIGATION REPORT: Asbestos 64. Id. at *95. 65. Id. at *95-96. 66. Id. at *97. 67. Id. 68. Id. at *97-105. 69. Id. at *105-22, *124-35. 70. Id. at *106. 71. Id. at *109. 72. Id. at *106. 73. Id., quotinghavner at 715. 74. Id. at *114. 75. Id. at *122, referring to Bostic at *93. 76. Id. at *122-23. 77. Id. at *123. 78. Id. at *133-37. 79. Id. at *11-12, citing Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997) (discussed in Flores at 772-73). 80. Id. at *14, citing Baker v. Chevron USA, Inc., 680F. Supp. 2d 865, 878 n.9 (S.D. Ohio 2010), aff d, 533 F. App x 509 (6th Cir. 2013). 81. Flores at 771. 82. Id. at 772. 83. Bostic at *61-62. 84. Id. at *104. 85. Id. 86. Id. at *104-05. 87. Id. at *105. 88. Id. at *72. 89. Id. at *75. 90. Bostic, 320 S.W.3d at 595. 91. Id. at 595-98. 92. Bostic at *40. 93. Id. at *50. 94. Id. at *45. 10

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