June 14, 2013

Even asbestos plaintiffs must prove causation

By Deborah J. La Fetra Senior Attorney

Plaintiffs suffering from asbestos-related diseases typically sue dozens of defendants: the manufacturers and distributors of every asbestos-containing product to which they were ever exposed, their employers, and more.  As a matter of course, the vast majority of these defendants either settle the plaintiffs’ claims, or, if they can prove that the plaintiff was never exposed to their products, the court will dismiss them from the case.  In Bostic v. Georgia-Pacific, pending in the Texas Supreme Court, Timothy Bostic followed this pattern.  When he was diagnosed with mesothelioma, he sued 48 defendants, 47 of whom settled or were dismissed.  Georgia-Pacific chose to fight, arguing that Bostic failed to prove that he was exposed to asbestos-containing Georgia-Pacific products at such a level that those products could be deemed the legal cause of his illness.

Today, PLF filed an amicus brief arguing that the court should reaffirm its 2007 case that restored more traditional causation standards in place of the formerly lax causation standards that had been created specifically for asbestos cases.  In Borg-Warner Corp. v. Flores, the Texas Supreme Court emphasized that circumstantial evidence of frequency, regularity, and proximity of exposure cannot wholly substitute for a plaintiff’s burden to prove causation-in-fact, that is, “but for” causation; the plaintiff also needs to provide evidence of the dose.  Moreover, PLF urges the court to reject “alternative liability” theories that shift the burden of causation to defendants, demanding that each defendant prove it did not cause the plaintiff’s injury.  As other courts have noted, such a reversal of the burden of proof is wholly unworkable in a case involving dozens of defendants, who created different products with different uses and divergent risks.

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