Earlier this month, the Texas Supreme Court heard oral arguments in a closely watched case addressing whether plaintiffs in asbestos lawsuits must demonstrate that but for exposure to a particular defendant’s asbestos products, the plaintiff would not have developed mesothelioma.
A Texas appellate court set aside a $12.3 million jury verdict awarded to Susan Bostic, the wife of Timothy Bostic, who was diagnosed with mesothelioma on October 31, 2002, at the age of 40. Mr. Bostic died less than one year after his diagnosis of the fatal asbestos cancer on September 5, 2003.
The appellate court held that the Texas Supreme Court’s Borg-Warner v. Flores decision of 2007 requires proof that the defendant’s asbestos product is the “but for” cause of the disease.
Plaintiff Exposed to Asbestos by Working as a Child with His Father
As alleged in the lawsuit, one of Mr. Bostic’s primary exposures to asbestos came from working as a child with his father around Georgia-Pacific asbestos joint compound for ten years from 1967 to 1977. Mr. Bostic was also exposed to asbestos while working in the “hot section” of a glass plant and while working with gaskets and insulation as a welder’s helper. In addition, Mr. Bostic alleged that he was exposed to asbestos by his father’s clothes when he was a child.
The appellate court held that the plaintiff must demonstrate that he would not have developed mesothelioma if not for his exposure to Georgia-Pacific joint compound. Requiring but for causation would effectively bar any recovery in the lawsuit because Mr. Bostic was exposed to a number of different products containing asbestos, as well as from his father’s work clothes when he was a child.
Court Should Not Abandon “Substantial Factor” Test Traditionally Applied to Asbestos Cases
As pointed out by attorneys for the plaintiff, the Texas Supreme Court in Borg-Warner “recognized the scientific impossibility of proving ‘but for’ causation in asbestos claims” due in part to “the long latency period for asbestos-related diseases, coupled with the inability to trace precisely which fibers caused disease and from whose product they emanated, make this process inexact.”
Mesothelioma has a latency period of thirty to forty years, meaning that the cancer will develop thirty to forty years after exposure to asbestos.
In Borg-Warner, the Texas Supreme Court held that in an asbestos case proof of causation does not require that one “demonstrate that fibers from the defendant’s product were the ones, or among the ones, that actually produced the malignant growth.”
Under Borg-Warner, the Texas Supreme Court adopted a causation standard whereby, according to attorneys for the plaintiff, defendant-specific evidence regarding the approximate asbestos exposure, as well as evidence that the exposure was a substantial factor in causing the asbestos-related disease, will suffice to demonstrate causation.
In arguing that Mr. Bostic satisfied his burden in proving causation, the attorneys for the plaintiff wrote in a brief filed with the Texas Supreme Court that “[w]hat the Court of Appeals discredits entirely is Harold Bostic’s testimony that in his lifetime of work as a handyman, he used Georgia-Pacific asbestos joint compound with Timothy for 98 percent of the time, or more, and that between the time that Timothy was five years old, to 15 or 16 years old, he used Georgia-Pacific asbestos joint compound on a continual basis and many, many times.”
By requiring proof of “substantial factor” causation instead of “but for” causation in lawsuits involving asbestos, courts have struck a careful balance between the limits of science and the requirements of showing that the defendant’s actions caused the plaintiff’s injuries. It remains to be seen how the Texas Supreme Court will rule on this important issue.
Author Bio: Christopher M. Placitella is a shareholder of Cohen Placitella & Roth, P.C . and has established a national asbestos litigation group dedicated to successfully and effectively representing individuals suffering from asbestos-related diseases. An experienced litigator, Mr. Placitella served as trial counsel in the largest consolidated asbestos trial in New York City history and also obtained the largest punitive damage verdict against an asbestos company in New Jersey’s history. As part of the 9/11 Victims Compensation Fund, Mr. Placitella helped organize a national pro bono effort to provide legal assistance for families who lost loved ones in the 9/11 tragedy.
Originally published on LawyerCentral by Christopher M. Placitella on September 26, 2013 Read the original (Internet Archive).