Supreme Court of Texas Issues Opinion in Bostic v. Georgia-Pacific Corporation
On July 11, 2014, The Supreme Court of Texas issued its opinion in Bostic v. Georgia-Pacific Corp. The opinion by Justice Willett rejects the “any exposure” theory of liability, and holds that the standard of substantial factor causation recognized in Borg-Warner Corp. v. Flores applies to mesothelioma cases. The opinion further holds that Flores does not require plaintiffs in asbestos lawsuits involving multiple sources of asbestos exposure to meet a strict but for causation test. Justice Guzman issued a concurring opinion, and Justices Lehrman, Boyd, and Divine dissented.
In Bostic, the plaintiffs sued for damages resulting from the death of a family member due to mesothelioma. At trial, Plaintiffs’ experts, Dr. Hammar, Dr. Lemen, and Dr. Brody testified that mesothelioma can result from very small amounts of asbestos exposure and described mesothelioma as a dose response disease. The jury found Georgia-Pacific, a joint compound manufacturer, liable under negligence and marketing defect theories. The trial court signed an amended judgment awarding Plaintiffs $6.8 million in compensatory damages and $4.8 million in punitive damages. The court of appeals rendered a take-nothing judgment on grounds that the evidence of causation was legally insufficient.
On appeal to the Supreme Court of Texas, Plaintiffs urged that the Flores substantial factor causation standard applied only to asbestosis cases because asbestosis requires heavy exposure to asbestos while mesothelioma results from relatively minute exposure. The Supreme Court declined to treat asbestosis and mesothelioma cases differently. In particular, the Court rejected the any exposure theory asserted by Plaintiffs’ experts because it “effectively accepts that a failure of science to determine the maximum safe dose of a toxin necessarily means that every exposure, regardless of amount, is a substantial factor in causing the plaintiff’s illness.” The Court held that “even in mesothelioma cases proof of ‘some exposure’ or ‘any exposure’ alone will not suffice to establish causation.” To hold otherwise, would result in absolute liability against any company whose asbestos-containing product crossed paths with the plaintiff during his lifetime. The Court found the any exposure theory in irreconcilable conflict with the assertion that mesothelioma is a dose response disease. The Court adopted the reasoning of the Pennsylvania Supreme Court: “Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.” Rather, proof of substantial factor causation requires plaintiffs to quantify the plaintiff’s dose of defendant-specific asbestos exposure, but not with mathematical precision. The plaintiff’s exposure to a defendant’s product must be shown to more than double his risk of contracting the disease using scientifically reliable proof (epidemiological studies or similarly reliable scientific testimony).
The Court further recognized that the nature of mesothelioma renders it nearly impossible for plaintiffs to establish which defendant’s asbestos fibers caused their disease. Moreover, in multiple-exposures cases it is equally difficult, if not impossible, to show that a plaintiff would not have become ill but for the exposure to one particular defendant’s product. The Supreme Court concluded that plaintiffs must satisfy substantial factor causation in cases involving exposures to multiple sources of asbestos, but are not also required to meet a strict but for causation test.