Texas Supreme Court Rejects “Any Exposure” Theory and Tweaks Havner for Toxic Tort Cases
Flores Decision Applied to Meso Cases
In a decision issued, Friday July 11 2014, the Texas Supreme Court held that: (1) the substantial factor causation recognized in Borg-Warner Corp. v. Flores, applies to mesothelioma cases; and (2) Plaintiffs were not required to prove that but for Bostic’s exposure to Georgia-Pacific Corporation’s asbestos-containing joint compound, Bostic would not have contracted mesothelioma. With these holdings, the Court affirmed the decision of the Fifth District Court of appeals, though it disagreed with some language of the appellate court. The Court went on, in a 45-page opinion, to elaborate on the meaning of substantial factor causation in the context of this mesothelioma case, and provide guidelines for what proof will be required in such cases in the future.
The Plaintiffs sued for damages for the suffering and death of Timothy Bostic, who was only 40 when he died of mesothelioma in 2003. Of the 39 initial defendants, only Georgia-Pacific remained at the time of verdict. Plaintiffs claimed that Bostic was exposed to asbestos from Georgia-Pacific drywall joint compound. The jury found Georgia-Pacific liable and allocated to it 75% percent of the causation. The judgment signed by the trial court awarded Plaintiffs $11.6 million in combined compensatory and punitive damages. On appeal, the Court of Appeals found the evidence of causation legally insufficient and rendered a take nothing judgment.
Any Exposure Theory
In its decision, the Texas Supreme Court reviewed the causation holding in Flores then stated:
While Flores left open the prospect of treating asbestosis and mesothelioma cases differently, we decline to do so. We believe the Flores framework for reviewing the legal sufficiency of causation evidence lends itself to both types of cases. In particular, we hold that even in mesothelioma cases proof of “some exposure” or “any exposure” alone will not suffice to establish causation. While the experts in this case testified that small amounts of asbestos exposure can result in mesothelioma, that fact alone does not merit a different analysis. With both asbestosis and mesothelioma, the likelihood of contracting the disease increases with the dose.
Plaintiffs’ experts – Drs. Brody, Lemen, and Hammar – repeatedly testified that “each and every exposure” to asbestos was a cause of Bostic’s disease. Yet the Court referenced testimony of the Plaintiffs’ experts for the proposition that background levels of asbestos in the ambient air are sufficiently low that they do not cause disease. Thus the Court reasoned that accepting an “any exposure theory” would contradict the expert testimony offered by Plaintiffs and ignore the importance of dose. Liability could be imposed even where the plaintiff may have become ill from background exposure or some other reason. The Court also called the any exposure theory “illogical in mesothelioma cases” because it ignores the variance in background asbestos levels in various locales. Adoption of a less demanding standard would result in “absolute liability against any company whose asbestos-containing product crossed paths with the plaintiff throughout his entire lifetime.” The any exposure theory would negate a plaintiff’s burden to prove causation by a preponderance of the evidence, a principle to which the Texas Supreme Court has “held firm”.
But For Causation
In their appeal, Plaintiffs complained that the Court of Appeals erred in requiring them to prove but for causation in addition to substantial factor causation. The Texas Supreme Court agreed that the language in the Court of Appeals decision appears to require such proof. In the Bostic ruling, however, the Court followed Flores and 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 causation test.” The Court noted that proving but for causation regarding a specific product could be impossible in a latent disease case involving multiple exposures. Accordingly, the Court held that Plaintiffs had to establish substantial factor causation, but not but for causation.
Havner Applied to Asbestos Cases
The Court elaborated on the meaning of substantial factor causation in asbestos cases, using insights provided by Merrell Dow Pharmaceuticals, Inc. v. Havner, “a foundational part of our jurisprudence”. Despite differences between Havner and Bostic, the Court found applicability of some Havner principles to this case, including the basic tenet that expert testimony on causation must be scientifically reliable.
Havner enunciated principles in toxic tort cases that (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, 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 to the legal standard of proof by a preponderance of the evidence. These principles should apply to asbestos cases.
We therefore conclude that in 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.
Bostic, p. 26.
The Court noted that asbestos-related disease has been researched for many decades, but made an exception to the Havner analysis as applied to cases involving “multiple sources of exposure to the same toxin”, as occurs in the typical asbestos case. In such cases, it is not “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. Strict application of Havner’s requirement of ruling out other possible causes of plaintiff’s disease would essentially create the but for causation requirement which has been held inappropriate in these cases.
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. The Restatement of Second of Torts, as quoted in Flores, was again referenced for the principle that substantial factor causation includes the idea that “reasonable men … regard it as a cause.” Some discretion lies with the trier of fact to determine if Plaintiff has met the substantial causation standard.
Finally, the Court reviewed the evidence in the Bostic case, and found it lacking. The Plaintiffs did not quantify exposure dose to Georgia-Pacific products, as required by Flores, and did not demonstrate with reliable scientific evidence that Bostic’s exposure to asbestos from those products more than doubled his risk of contracting mesothelioma. “The essential teaching of Flores is that dose matters, and this requirement applies to mesothelioma cases”. Bostic, p. 45.
Justice Willett wrote the majority opinion, in which Chief Justice Hecht, Justice Green, Justice Johnston and Justice Brown joined. Justice Guzman joined in all but Parts II.A.3 (Havner application) and II.B. (proof of causation in this case). Justice Guzman filed a concurring opinion. Justice Lehrmann filed a dissenting opinion, in which Justice Boyd and Justice Devine joined.