This summer, in an important case for those who have been diagnosed with mesothelioma and their family members, Bostic v. Georgia-Pacific Corporation, the Texas Supreme Court addressed causation in asbestos-disease lawsuits. The plaintiffs had sued for damages after the death of 40-year-old Timothy Bostic due to mesothelioma. Asbestos can cause mesothelioma. His relatives sued 40 defendants, claiming that exposure to their asbestos-containing products exposed him to asbestos, causing his mesothelioma. They sued on the basis of negligence and products liability. The defendant at issue in the appeal was Georgia-Pacific, which had produced drywall compound that the decedent had been exposed to as a child and teenager.
At trial, the jury found the drywall manufacturer and two other defendants liable, including a glass company and a former employer of the plaintiff. 75% liability was allocated to the manufacturer. The total damages were $6.8 million with $4.8 million in punitive damages. On appeal, the appellate court decided that the evidence of causation in the case was not sufficient, and a take-nothing judgment was rendered.
The plaintiffs asked the Court to review. The Court explained that in an earlier case it had held that to establish causation, the plaintiff had to prove the defendant’s product was a substantial factor in causing an asbestos-related disease, and just showing that a plaintiff was exposed to some respirable asbestos fibers traced to the defendant was not enough. The exposure to the defendant’s product had to be considered a substantial factor in causing the asbestos-related disease. The Court concluded there had to be reasonable evidence that the exposure was enough to exceed the threshold before it was considered likely to have caused the disease.
The plaintiffs in this case tried to differentiate Bostic’s case on the grounds that he had mesothelioma and the earlier case was an asbestosis case. They argued that relatively small quantities of asbestos can result in mesothelioma, whereas asbestosis requires heavier exposure.
The Court disagreed with the idea that this difference led to a different rule for mesothelioma cases. It explained that the likelihood of contracting either disease increased with the amount of exposure. It also explained that if only a tiny amount of asbestos could cause mesothelioma, everyone would be at risk. Background levels of it aren’t enough to cause the disease, according to the expert in the earlier case. The Court found that to conclude otherwise would be to find absolute liability, not just strict liability.
The Court ruled that proof of any exposure should not end the inquiry and result in liability. Accordingly, it extended the reasoning of the earlier asbestosis case to mesothelioma cases, although it disagreed with certain points of the appellate court.
The plaintiffs argued that the appellate court should not have required them to prove “but for” causation as well as substantial factor causation. The Court explained that the appellate court’s rule would require the plaintiff to prove “but for” the plaintiff’s exposure to Georgia-Pacific’s products he would not have contracted mesothelioma.
The Court explained that “but for” is a recognized standard of proof, but in mesothelioma cases where a plaintiff is exposed to many sources of asbestos, the proper standard of proof is substantial factor causation. Plaintiffs can prove causation in asbestos-related disease cases by showing that a plaintiff’s exposure to a defendant’s product was a substantial factor in contributing to the aggregate amount of asbestos that was inhaled and ingested. The plaintiff need not prove that a particular product’s fibers were the exact ones that actually created the growth. In this case, the plaintiff did not even establish an approximate dose from the defendant’s particular product. Instead, the plaintiff put forward expert testimony that any exposure was enough to establish causation. The court of appeal’s result was affirmed, although its reasoning was not.
If you or a loved one is injured due to asbestos, the experienced San Antonio mesothelioma attorneys at Carabin Shaw may be able to help. Call our office for more information at 1-800-862-1260.
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