• Causation Hurdles Continue for Toxic Tort Plaintiffs in Texas
  • September 13, 2010 | Author: David Craig Landin
  • Law Firm: Hunton & Williams - Richmond Office
  • Just two short months ago we discussed the continuing causation hurdles mounting for Texas asbestos plaintiffs as a result of the Fort Worth Court of Appeals’ opinion in Smith v. Kelly-Moore Paint Company, Inc.  The Dallas Court of Appeals recently joined the fray in Georgia-Pacific Corporation v. Bostic.

    Timothy Bostic was diagnosed with mesothelioma in 2002 at the age of 40, and he died a year later.  His survivors brought suit in 2003, alleging that he was exposed to Georgia-Pacific joint compound, among a number of other asbestos-containing products.  The evidence showed that he was exposed to asbestos while accompanying and assisting his father with drywall work since the age of five.  There was also evidence presented at trial showing that he had numerous other occupational, household and bystander exposures: his father’s welding work at Knox Glass (where asbestos and asbestos-containing products were used to insulate against heat); Timothy’s own janitorial and mechanical work at Knox Glass; Timothy’s work as a welder’s assistant for Palestine Contractors; Timothy’s own remodeling projects as an adult; and automobile mechanic work that both Timothy and his father had performed.

    The case has had an unusual procedural history: an initial jury trial in 2005 returned a jury verdict of actual and punitive damages for Timothy’s survivors.  But the trial judged ordered them to either elect a new trial on all issues or agree to remit a misallocated award of future lost wages and the award of punitive damages.  They chose a new trial.  A second jury also awarded more than $7 million in compensatory damages and more than $6 million in punitive damages.  That jury found Georgia-Pacific 75% liable and Knox Glass 25% liable.  Georgia-Pacific subsequently moved for a new trial.  The motion was granted, but after a period of judicial shuffling and following a motion to vacate the order granting a new trial by the survivors, the verdict was reinstated and the survivors were awarded more than $6 million in compensatory damages and more than $4 million in punitives.

    Georgia-Pacific appealed that final judgment, arguing that the evidence was legally insufficient to show that its asbestos-containing joint compound caused Timothy’s mesothelioma.  The Court of Appeals agreed, finding that although there was extensive testimony from Timothy and his father Harold regarding their work and use of G-P joint compound, the evidence did not show that Georgia-Pacific’s conduct was a “cause-in-fact” of his mesothelioma.  The critical finding was that the survivors’ expert could not opine that Timothy would not have developed mesothelioma had he not been exposed to G-P’s product.  This was fatal to his case.

    As in Smith, the Court emphasized that the survivors’ claims failed because they could not show “reasonable quantitative evidence” that his exposures to G-P products increased his risk of developing mesothelioma.  The Court emphasized that Borg-Warner, Smith and Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304, 311, 314-15 (Tex. App. Houston [1st Dist.] 2007) mandate that a plaintiff show (1) frequency, regularity and proximity of exposure to the product, and (2) reasonable quantitative evidence that the exposure increased the risk of developing the asbestos-related injury, in order to prove substantial factor causation.  The survivors attempted to rely on material practice simulation studies performed by a general causation expert to show the amounts of asbestos fibers released during mixing, sanding and sweeping of Georgia-Pacific’s asbestos-containing joint compound -- the products that Timothy would have used.  But the expert acknowledged that such tests could not establish an exposure level or dose for Timothy because of the “many variables in the circumstances of a given work activity and location of the activity.”  This was fatal to the survivors’ efforts to provide the necessary quantitative evidence, and so the Court concluded that the evidence was legally insufficient to establish Flores substantial-factor causation.

    This holding is important because such re-enactments or simulation studies by experts of the type of work performed by asbestos plaintiffs can have a significant impact on juries.  But Bostic should encourage defense lawyers to emphasize this high standard before a trial court allows such evidence goes before the jury, especially when the evidence fails to account for the many actual variables in the workplace.  If these simulation studies are legally insufficient to provide quantitative evidence of exposure, then they are not much good for anything.