Texas Follows Pennsylvania’s Lead And Rejects “Any Exposure” Theory In Mesothelioma Case

Science

In asbestos injury cases, plaintiffs typically advance the theory that any exposure, no matter how slight, is a substantial contributing factor in causing the plaintiff’s asbestos-related disease. This is known as the “any exposure” or “each and every exposure” theory. If this argument is successful, it allows the Plaintiff to pursue numerous defendants simultaneously without having to quantify the amount of asbestos to which an individual defendant’s product caused him to be exposed. Not too long ago, the Texas Supreme Court has joined the list of Courts which have rejected the theory.

The Texas Supreme Court previously held that the theory was insufficient to establish causation in asbestosis cases. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). In response to attempts by plaintiffs to distinguish the holding to avoid its application in mesothelioma cases, the Texas high court has recently held that the theory is insufficient to show specific causation in mesothelioma cases. Bostic v. Georgia-Pac. Corp., 10-0775 (Tex. July 11, 2014) (holding that “even in mesothelioma cases proof of some exposure or any exposure alone will not suffice to establish causation.”) (quotations omitted). In Bostic, the appeal followed a jury verdict of $11.6 million with an allocation of 75 percent of the fault to a joint compound manufacturer. Id. In affirming the ruling of the Court of Appeals, which reversed and rendered a defense verdict, the Texas Supreme Court found that the Plaintiff had not sufficiently established specific causation with respect to the joint compound manufacturer where the Plaintiff: (1) relied on experts who testified that any exposure to asbestos should be considered a cause of his mesothelioma; (2) failed to quantify the aggregate dose, (3) failed to quantify the dose attributable to the joint compound manufacturer, and (4) failed to show that the dose fairly assignable to the joint compound manufacturer “more than doubled [the plaintiff’s] chances of contracting mesothelioma.” Id. at *19 (“And even in a single-exposure case, we think that proof of dose would be required . . . ‘One of toxicology’s central tenets is that the dose makes the poison.’”).

The Bostic court joins the growing number of state courts which have struck down the each and every exposure theory. See, e.g., Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56 (Pa. 2012) (holding that the theory was inadmissible after finding that “Dr. Maddox’ any-exposure opinion is in irreconcilable conflict with itself”); Free v. Ametek, No. 07-2-04091-9 SEA (Wash. Super. Ct. King County Feb. 29, 2009) (applying the Frye standard and holding that the theory “is not a scientifically proved proposition that is generally accepted in the field of epidemiology, pulmonary pathology, or any other field relevant to this case.”); Butler v. Union Carbide Corp., 712 S.E.2d 537, 549 (Ga. Ct. App. 2011) (affirming the lower court’s ruling that the theory did not “properly utilize[] the scientific method to make scientifically valid decisions in reaching his specific causation opinions as required by Daubert.”).

Happy Labor Day!

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As we often do, we were scouring the Internet for an appropriate comic book cover to use for today. There are not many comic book covers dedicated to Labor Day. However, the above comic book, Batman: Li’l Gotham #9, may suffice. Published earlier this year, this issue features a story which takes place on Labor Day (if you can believe it). Here’s the summary from the indispensable Comicvine website:

When Batman and Robin chase the cunning Clayface into Gotham City’s biggest Comic-Con, they run into security, other heroes, and trouble! And on Labor Day, Jenna Duffy—carpenter to Gotham City’s criminal class—takes the day off. But will interruptions doom her personal project?

Who knew?

On another note, we hope everyone is enjoying the Labor Day weekend. We here at Abnormal Use wrote this post far in advance and set it to run this morning so that we could celebrate the occasion. Although some of us here are a little disappointed with the results of the South Carolina football game on Thursday, we have mostly recovered. We trust that you have taken some time for yourself and your family and don’t overly dread the return to work tomorrow.

For our past Labor Day posts (including some other efforts to find labor related comics), please see here, here, here, and here.

By the way, this is our 1,250th post! How about that?