Historically, in order to prevail in an asbestos personal injury suit in Texas, a plaintiff has only been required to establish: (1) a recognized asbestos related disease; (2) exposure generally to levels of asbestos above levels recognized as sufficient to cause the particular disease; and (3) that the plaintiff was exposed to the defendant’s asbestos-containing product. In essence, Texas plaintiffs relied upon the “one fiber” theory that provides every exposure to every asbestos fiber increases the risk that the plaintiff would get cancer, and thus each fiber is a contributing cause of the plaintiff’s injury.1

On June 8, 2007, the Texas Supreme Court issued its opinion in Borg-Warner Corp. v. Flores, No. 05-018, 2007 WL 1650574 (Tex. June 8, 2007), which addresses the requisite level of proof for causation in an asbestos personal injury case. Following Borg-Warner, in order to carry the burden of proof on causation, a plaintiff must now provide both quantitative evidence of the “dose” of the alleged asbestos exposure to each defendant’s product and evidence that such “dose” is a significant contributing factor to the cause of the plaintiff’s disease. This ruling has, it appears, put an end to the “one fiber” theory. However, the extent to which the ruling will preclude plaintiffs from creating a fact issue on the issue of causation is uncertain.2

 

I. Background of the Borg-Warner Decision

Arturo Flores sued Borg-Warner and several other defendants for negligence and strict liability, alleging he developed asbestosis from his life-long work as an automobile mechanic. Flores presented evidence that he used asbestos-containing brake pads manufactured by Borg-Warner on five to seven of the approximately 20 brake jobs he performed each week, and that the Borg-Warner brakes contained between 7-28 percent chrysotile asbestos by weight. The evidence also showed that part of Flores’ job duties included grinding brake pads, and that grinding the pads generated dust that contained an indeterminate amount of asbestos, which Flores inhaled.

Flores presented evidence from two experts, Dr. Dinah Bukowski and Barry Castleman, Ph.D. Dr. Bukowski diagnosed Flores with asbestosis based on Flores’ x-rays (which allegedly showed interstitial lung disease) and history of asbestos exposure (based upon Flores’s testimony). Dr. Castleman testified that brake mechanics can be exposed to some friable asbestos fibers while grinding brake pads, and that the level of exposure can be “significant.” Based on this evidence, the jury found that:

(1) Flores sustained an asbestos-related injury or disease; (2) Borg-Warner’s negligence proximately caused Flores’s asbestos-related injury or disease; (3) all four defendants were “engaged in the business of selling brake products”; and (4) the brake products had marketing, manufacturing, and design defects, each of which was a producing cause of Flores’s injury.3

The Court of Appeals affirmed, citing, among other things, Dr. Castleman’s testimony that mechanics can be exposed to respirable asbestos fibers through the process of grinding brakes and Dr. Bukowski’s testimony that brake dust can cause asbestosis. Borg-Warner appealed, challenging, in part, the legal sufficiency of the evidence supporting causation.

 

II. The Texas Supreme Court Adopts a “Substantial Factor” Test

The Texas Supreme Court reversed the trial court and appellate court, explaining that:

[T]he court of appeals erred in holding that “[i]n the context of asbestos litigation, if there is sufficient evidence that the defendant supplied any of the asbestos to which the plaintiff was exposed, then the plaintiff has met the burden of proof.”4

Instead, the Supreme Court explained that a plaintiff must prove the asbestos in a defendant’s product was a substantial factor in causing their injuries. The Court further advised that this could be shown by proffering “defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease.”5

The Supreme Court relied heavily upon the frequently cited case of Lohrmann v. Pittsburg Corning Corp., 782 F.2d 1156 (4th Cir. 1986), and its “frequency, regularity, and proximity” test for causation. Several amici urged the Court to adopt the Lohrmann test as the standard for Texas asbestos claimants; however, the Court declined to adopt this test as Texas law. Instead, the Court explained that the “frequency, regularity, and proximity” test is appropriate, but did not fully capture the essential elements of causation under Texas jurisprudence. The Court held that the test under Texas law is whether “the asbestos in the defendant’s product was a substantial factor in bringing about the plaintiff’s injuries.”6

The Court explained that while Flores demonstrated that he was exposed to “some” asbestos on a “frequent” basis, he had no evidence of the “dose” to which he was exposed and, therefore, his case failed as a matter of law. In short, Flores simply did not produce a legally sufficient amount of evidence that his exposure to asbestos from the defendant’s product was at such a level that it could be considered to have been a substantial factor in causing his aggregate dose to exceed the scientifically recognized threshold, above which one is at an increased risk of contracting asbestosis.

 

III. Lower Courts in Texas Must Now Try to Apply Borg-Warner

A. Borg-Warner is Already Having an Effect on Summary Judgments in the Multi-District Litigation (MDL) Court

Almost immediately following the Borg-Warner opinion, defendants in Texas filed motions for summary judgment before the Texas Asbestos MDL Court (the 11th Judicial District of Texas, Hon. Mark Davidson). Judge Davidson was initially presented with three mesothelioma cases and issued a combined opinion on July 18, 2007 (hereinafter, “Opinion”). All three cases involved motions by joint compound manufacturers who asserted that the plaintiffs lacked proper evidence of the level of exposure to asbestos from the defendants’ joint compounds to establish causation under the new Borg-Warner standard.

The plaintiffs responded that Borg-Warner should be limited to asbestosis cases, which require a showing of a high level of exposure, and should not apply to mesothelioma cases where it is generally recognized that asbestos causes disease at significantly lower levels (for mesothelioma, there is no known safe level of exposure other than the fact that “background” levels of exposure do not appear to increase the risk of contracting mesothelioma).

In rejecting this argument, Judge Davidson reasoned that the Borg-Warner holding should not be limited to asbestosis cases because the Supreme Court used the term “asbestos-related disease” rather than “asbestosis” throughout the body of its opinion, signaling its intent for the Borg-Warner ruling to have broader application. Judge Davidson further held that “while the amount of dose to which a plaintiff was exposed will be less in mesothelioma cases than asbestos [sic] cases, the legal requirements set out by the [Borg-Warner] court for proof of causation in asbestos related disease, will be the same.”7 He explained that his reading of the Supreme Court’s ruling is that evidence a plaintiff was exposed to “some asbestos” is not sufficient to establish causation, and instead a plaintiff must provide:

Defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease . . . .8

B. Three Summary Judgments Highlight the Changes in Texas Law

The effect of Judge Davidson’s ruling is best illustrated by the factual context of the cases upon which he ruled. First, in Pena, Judge Davidson granted the joint compound manufacturer defendant’s motion. In that case, the summary judgment evidence was that the plaintiff worked as an electrician in close proximity to drywall workers for a number of years. The plaintiff passed away before he was deposed, and the sole evidence of his exposure came from his sons who visited the plaintiff on his job-sites during school breaks and weekends. The sons recalled three brands of joint compounds being used, but did not know how often the plaintiff worked around joint compounds in total, nor the percentage of time he worked around any specific joint compound. Judge Davidson ruled that the absence of any evidence of the plaintiff’s total career exposure, or the approximate dosages to which he claimed he was exposed, left it more speculative than probable that any particular defendant’s product caused the plaintiff’s injuries.

Judge Davidson denied the defendants’ motions in the Shake and Parker cases. In Shake, the plaintiff testified as to which specific joint compounds he used, and how often he used them. The plaintiff then offered the expert testimony of Dr. William Longo to show the approximate level of asbestos exposure that a person would have while performing the specific activities the plaintiff described, and that the exposure would be above toxicity levels necessary to cause mesothelioma. Dr. Longo based his affidavit on the plaintiff’s testimony, combined with asbestos-emissions tests he had performed that simulated the plaintiff’s activities. Judge Davidson held that this was sufficient evidence of “dose,” coupled with evidence that the dose was at a level that was a significant contributing factor to the plaintiff’s disease.

In Parker, the plaintiff again testified as to the specific joint compounds he used and how often he used them. However, the plaintiff offered a generic expert affidavit that gave opinions only as to the approximate amount of fibers the activities described by the plaintiff would emit. The affidavit did not provide a specific analysis of the plaintiff’s exposure. Judge Davidson held that the Parker evidence, based on the generic affidavit, presented a “close call,” but that a fact issue existed as to dose and causation.9

C. A Texas Appellate Court Recently Applied Borg-Warner

On July 26, 2007, the Texas First District Court of Appeals (Harris County) issued its opinion in Georgia-Pacific Corp. v. Stephens, No. 01-05-00132, 2007 WL 2137801 (Tex. App.--Houston [1st Dist.] July 26, 2007). In Stephens, the defendant, Georgia-Pacific, appealed from a $1.9 million verdict in favor of Fred Stephens, who asserted that he had been exposed to joint compounds manufactured by Georgia-Pacific, as well as nine other joint compound manufacturers, during his career as a painter from 1954-1977, which caused him to develop mesothelioma.10 The plaintiffs presented evidence from Stephens and his co-workers that he was exposed to Georgia-Pacific asbestos on “a substantial number of jobs.” Plaintiffs also presented evidence that Georgia-Pacific’s joint compounds contained between 2-8 percent chrysotile asbestos by weight during the relevant time-period.

The Stephens Court noted that prior to Borg-Warner, no Texas court had expressly adopted the “frequency, regularity, and proximity” test under Lohrmann. The Court then explained that following Borg-Warner:

[A] plaintiff must show both frequent, regular, and proximate exposure to the product and reasonable quantitative evidence that such exposure increased the risk of developing the asbestos-related injury. It is not adequate to simply establish that “some” exposure occurred.11

Plaintiff’s experts, Jerry Lauderdale, an industrial hygienist, and Dr. Samual Hammar, testified that based upon the testimony in the case, it was not possible to estimate Stephens’ exposure to Georgia-Pacific joint compounds.12 Instead, the experts opined that every exposure to an asbestos-containing product contributes to cause mesothelioma. The Court rejected this reasoning, explaining that the plaintiff’s experts failed to show that the “any exposure” theory was generally accepted in the scientific community—i.e., “that any exposure to a product that contains asbestos results in a statistically significant increase in the risk of developing mesothelioma.”13

 

IV. Plaintiffs and Defendants are Reacting to the Borg-Warner Decision

Prior to the Supreme Court’s ruling in Borg-Warner, the Texas Asbestos MDL Court rarely granted defendants’ no-evidence motions for summary judgment due to Texas’ low evidentiary standard. Judge Davidson’s Opinion appears to signal a shift to a higher burden of proof on plaintiff’s evidence of causation. The Pena plaintiffs presented summary judgment evidence that would likely have been sufficient to overcome a pre-Borg-Warner motion for summary judgment, but was deemed insufficient under the newer standard.

Defendants reacted to Judge Davidson’s Pena ruling by filing motions for summary judgment under Borg-Warner in most, if not all, of the asbestos cases currently set for trial in Texas. It is likely that the Stephens opinion will spur even more summary judgment filings, and may result in some defendants choosing to take marginal cases to trial, and betting our victory at trial or on appeal versus giving in to “buy-out” settlement demands. Plaintiffs have reacted to Judge Davidson’s rulings by moving for continuances of the defendants’ upcoming summary judgment hearings (which Judge Davidson has indicated he will freely give until the Borg-Warner standards become better established), and in many cases by filing motions to remove their cases from the Texas MDL’s active trial docket, thereby passing on their trial settings.14

 

V. What’s Next In Texas?

Two “next steps” are likely to occur in Texas aside from additional defense motions for summary judgment under Borg-Warner. The most obvious next step for defendants is to begin asserting Daubert challenges to the reliability of the plaintiff’s expert witnesses who may offer causation opinions. Judge Davidson’s Opinion did not deal with this issue because no defendant raised it. Instead, the ruling places the burden on the plaintiff to present sufficient summary judgment evidence, based on reliable science, that the level of the plaintiff’s exposure to each defendant’s product was sufficient to be a significant contributing factor in causing the plaintiff’s disease. However, the Stephens Court expressly found that the plaintiffs’ experts’ “any exposure” opinions were not supported by the scientific literature, and that there was no scientific basis in the appellate record to conclude that exposure to “some” asbestos could cause mesothelioma.

For plaintiffs, the next likely step is to appeal Judge Davidson’s rulings (or a ruling in another, more “appropriate” case) in order to seek further clarification of the Supreme Court’s holding in Borg-Warner. Judge Davidson stated in open court that he invites appeal on this issue so that he might gain more clarification on the law. Additionally, most plaintiffs’ firms have begun postponing the depositions of their key fact and expert witnesses while they reassess how to properly prepare their witnesses so that their testimony will withstand the Borg-Warner analysis.

VI. Conclusion

Borg-Warner signals a shift in Texas jurisprudence away from the “one fiber” theory of causation in asbestos cases. Instead, plaintiffs must now present evidence of the approximate “dose” to which they were exposed and that the dose was a “significant factor” in causing their disease. Plaintiffs and defendants alike will need to reevaluate their litigation tactics in light of the recent and rapid changes in Texas law.

 

Andrew K. Meade is an associate at Hicks, Thomas & Lilienstern, LLP, where he has a general civil litigation practice with a focus on product liability and mass torts. Meade is a 1998 graduate of the University of Nebraska and earned his law degree from the University of Houston Law Center. He is a former law clerk for the Hon. Henry A. Politz, U.S. Court of Appeals for the Fifth Circuit.

 

Endnotes

1. Cigarette smoking is often used as an analogy.  If a man smokes two packs per day for 50 years, he is considered to have a 100 pack/year history of smoking.  It is generally accepted in the medical community that a 100 pack/year history of smoking is sufficient to associate smoking as the cause of the lung cancer.  However, it is impossible to determine which specific cigarette was the one that caused the cancer to initially manifest itself.  Thus, one must presume that each cigarette contributed equally to increase the risk of lung cancer.   2. It is expected that once Judge Davidson and/or the courts of appeals have refined what the requisite burden of proof is, plaintiffs will be able to extract the necessary evidence from their clients and expert witnesses to, in most cases, create a fact issue on causation.   3. Borg-Warner v. Flores, No. 05-018, 2007 WL 1650574, at *3 (Tex. June 8, 2007).   4. Id. at *7.   5. Id. (emphasis added).   6. Id. at *4.   7. Opinion, p. 3.   8. Id. (citing Borg-Warner, 2007 WL 1650574, at *12).   9. Judge Davidson noted that without more precise evidence, the case could properly be dismissed on directed verdict but not on a no-evidence motion for summary judgment.   10. Stephens claimed that he was exposed to asbestos-containing products while working in the Navy from 1944-1946 (boilers, pipe covering, insulation, gaskets, packing, and pumps), while performing construction on the Grand Coulee Dam from 1946-1954 (turbines, generators, insulation, gaskets, and pumps), and while working as a painter from 1954-1977.   11. Id. at *8 (emphasis in original) (citations omitted).   12. During trial, Georgia-Pacific sought to exclude plaintiffs’ experts’ testimony due to their failure to quantify the amount of Stephens’ exposure to Georgia-Pacific joint compound.  The trial court denied the motion.   13. Id. at *15.  The First Court of Appeals took care to note that their opinion does not suggest that the Stephens plaintiffs could never have shown causation based upon Stephen’s levels of exposure given the right scientific evidence:

This is not to suggest that the levels of exposure evidence in this case could never be proved to increase the risk of developing mesothelioma . . . Here . . . the experts and studies upon which they relied did not attempt to correlate low exposures with increased risk, but used instead the “any exposure” test.  If any exposure leads to an increased risk of Mesothelioma, then the testimony in this case proved that [Mr. Stephens] was sufficiently exposed.  The studies admitted in this trial record, however, do not link “any exposure” to asbestos with an increased risk of developing mesothelioma.

Georgia-Pacific Corp. v. Stephens, No. 01-05-00132, 2007 WL 2137801, at *15 n. 3 (Tex. App.--Houston [1st Dist.] July 26, 2007).   14. The Texas MDL maintains two dockets:  the largest is the inactive docket, comprised of cases that have been filed, but in which plaintiffs have not filed necessary medical reports and motions for trial certification.  No party is permitted to file any motion, other than a motion for trial certification, in a case placed on the inactive docket.  The other is the active docket.  To remove a case from the inactive docket, a plaintiff must file certain medical reports and must file a Motion for Conditional Certification and Trial Setting.  If the Motion for Certification is granted, the plaintiff is given a trial setting and the case proceeds under the MDL Court’s Third Amended Docket Control Order.  Average time from certification to trial is 6-8 months.