Mesothelioma plaintiffs must present evidence showing amount of asbestos exposure when filing lawsuits, Texas Supreme Court rules

by Jim Orr

The Texas Supreme Court has now ruled that, in cases based on exposure to asbestos, plaintiffs suffering from mesothelioma are subject to the same basic burden of proof for causation as those suffering from asbestosis. Mesothelioma is a rare cancer of a lining of the body’s internal organs. It is well-established that asbestos, when breathed into the lungs, can cause mesothelioma.

As a result of the Texas Supreme Court’s ruling in Bostic v. Georgia-Pacific Corp., No. 10-0775 (Tex., July 11, 2014), mere proof of “some” exposure to asbestos is legally insufficient to show that exposure caused mesothelioma. Instead, plaintiffs who file a mesothelioma lawsuit must show that exposure to asbestos from the defendant’s product was sufficient to constitute a “substantial factor” in bringing about the disease.

Timothy Bostic was diagnosed with mesothelioma in 2002, when he was 40 years old. He died of the disease in 2003. His relatives filed a product liability lawsuit against Georgia–Pacific and 39 other defendants, alleging that the defendants’ products exposed Bostic to asbestos and caused his disease. Plaintiffs alleged causes of action for negligence and products liability. The lawsuit alleged that Bostic had been exposed to asbestos while using Georgia–Pacific drywall joint compound.

A jury found Georgia–Pacific liable under negligence and marketing defect theories. The jury assessed 25% of the causation to Knox Glass Company, a former employer who had settled with Bostic, and 75% to Georgia–Pacific. The trial court signed a judgment awarding Plaintiffs approximately $6.8 million in compensatory damages and approximately $4.8 million in punitive damages.

Georgia-Pacific appealed, and the court of appeals reversed the judgment. The court of appeals ruled there was insufficient evidence to support the verdict. The Texas Supreme Court has now agreed with the court of appeals and affirmed judgment in favor of Georgia-Pacific. Bostic, No. 10-0775.

According to the Texas Supreme Court, the Plaintiffs failed to present any evidence quantifying the dose resulting from Bostic’s exposure to Georgia–Pacific’s products. Instead, Plaintiffs relied on expert testimony to the effect that any exposure was sufficient to establish causation. Without evidence regarding Bostic’s actual aggregate dose assignable to Georgia–Pacific, Plaintiffs could not establish causation and thus the jury verdict was properly reversed by the court of appeals. Bostic, No. 10-0775.

In its opinion, the Texas Supreme Court wrote broadly on the standards that govern mesothelioma and other asbestos cases in Texas. As to the standards for proof of causation in all such cases involving multiple sources of exposure, including mesothelioma cases, the court explained:

  • proof of “any exposure” to a defendant’s product will not suffice and instead the plaintiff must establish the dose of asbestos fibers to which he was exposed by his exposure to the defendant’s product
  • the dose must be quantified but need not be established with mathematical precision
  • the plaintiff must establish that the defendant’s product was a substantial factor in causing the plaintiff’s disease
  • the defendant’s product is not a substantial factor in causing the plaintiff’s disease if, in light of the evidence of the plaintiff’s total exposure to asbestos or other toxins, reasonable persons would not regard the defendant’s product as a cause of the disease
  • to establish substantial factor causation in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease

Bostic, No. 10-0775.

In so holding, the court did rule in the Plaintiffs’ favor on one issue. The court of appeals opinion had suggested that the Plaintiffs were required to prove “but for” causation. The Texas Supreme Court held that a plaintiff in such a case is not required to provide they would not have contracted mesothelioma “but for” exposure to the defendant’s products:

We think the plaintiff should be required to establish more than a doubling of the risk attributable to the defendant’s product, for the reasons discussed, 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. […] Our law accepts that in cases of multiple exposure multiple defendants may be held liable for causing the plaintiff’s disease. And in multiple-exposure cases few if any plaintiffs could ever establish which particular fibers from which particular defendant caused the disease, and we do not believe the plaintiff should be required to quantify the exposure from every other conceivable source, occurring perhaps over a period of decades.

Bostic, No. 10-0775.

In summary, although mesothelioma is a unique disease in that relatively limited exposure can induce illness, the court determined that fact does not change a plaintiff’s burden of proof. It does however suggest that a plaintiff may prove causation based on lesser dosage evidence (i.e., epidemiological studies for mesothelioma will show more than a doubling of the risk at a lower dose, and plaintiffs need only show exposure comparable to this dose). See Bostic, No. 10-0775 (J. Guzman, concurring).

Heygood, Orr & Pearson and asbestos litigation

Millions of American workers were unknowingly exposed for decades to the health risks of asbestos without being warned by their employers. Besides mesothelioma, exposure to asbestos can increase an individual’s risk of asbestosis, lung cancer, pleural diseases, and other types of cancer or respiratory illness. Individuals who worked with asbestos pipes, brake pads, insulation used in the construction industry, or U.S. Navy and Merchant Marine ships that were outfitted with asbestos parts may be eligible to file a personal injury lawsuit and seek compensation for the injuries they suffered as a result of their asbestos exposure.

At the law firm of Heygood, Orr & Pearson, we have achieved settlements or verdicts for our clients totaling hundreds of millions of dollars. In 2010 alone, we negotiated wrongful death and personal injury settlements totaling more than $50 million. Our firm has the financial resources to handle asbestos injury and death cases from beginning to end. In many cases, we have invested hundreds of thousands of dollars in a single case in order to bring it to trial. Above all, we are committed to achieving justice for our clients, no matter the cost.

If you or a loved one have been serious injured due to asbestos exposure, contact our law firm for a free legal consultation about your case. You can reach us by calling our toll-free number at 1-877-446-9001, or by completing the free case evaluation form located above you on this page.

by Jim Orr

Jim Orr is a licensed attorney and a partner at HO&P focusing on business and personal injury litigation. Jim was selected multiple times to the Super Lawyers List and has tried 70+ cases to verdict.