MDL Court Rules That Work on Two Pumps Not a Substantial Factor

By on August 26, 2014

Substantial factor?  I know it when I see it.

Many of us have struggled for quite some time in reaching a consensus on what level of exposure does, and does not, constitute a “substantial factor” when assessing causation of an asbestos-related disease.  In a recent order on a motion for summary judgment, Judge Eduardo Robreno of the asbestos MDL, applying maritime law, weighed in on the issue.  His decision gives additional guidance, if it does not end the discussion.

The case involved a former U.S. Navy sailor who testified to exposure to original asbestos-containing gaskets and packing used with two pumps found on the virtually new USS Downes.  Even while accepting that evidence as accurate, Judge Robreno granted the MSJ by determining this was a “mere minimal exposure” as described in Lindstrom v. A-C Prod. Liab. Trust, 424 F. 3d 488 at 492. Judge Robreno stated:

Although there is evidence that Plaintiff was exposed to respirable dust from the original gasket and packing used with a single Buffalo electric fire pump, and the original gasket used with a single Buffalo evaporator pump —-, maritime law requires more than a “mere minimal exposure” to support a finding of causation. (Citation omitted.)  As such, no reasonable jury could conclude from the evidence that Decedent was exposed to asbestos from a product manufactured and/or supplied by Defendant such that it was a substantial factor in the development of his illness.

Other courts have likewise relied upon Lindstrom to reject claims that minimal exposures constituted a substantial factor.  The Sixth Circuit expressed the sentiment memorably in Moeller v. Garlock Sealing Technologies, 660 F.3d 950 at 955 (6th Cir. 2011):

On the basis of the record, saying that exposure to Garlock gaskets was a substantial cause of [plaintiff’s] mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean’s volume.

From a defense prospective, this order from Judge Robreno compares favorably with other attempts to define a substantial factor.  In California, for example, we must deal with the language of Jones v. John Crane, Inc., 35 Cal. Rptr. 3d 144 (2005).  In Jones, John Crane argued that the exposures attributable to its products were comparable to ambient levels of asbestos in the community at large, and paled in comparison to the plaintiffs’ other exposures (10 fiber hours, or .005 fiber years, compared to an estimated 200 fiber years of exposure to asbestos-containing insulation and 2.8 fiber years from ambient exposures). Plaintiff experts challenged the defense calculations and offered expert testimony that every exposure contributed to the risk.  The court ruled against the defense: “[A] level of exposure that is the equivalent of that to which one might be exposed in the ambient air over a lifetime is not necessarily insignificant.”

While the order from Judge Robreno gives us at least one example of what does not constitute a substantial factor, it provides scant guidance as to how to assess future cases.  Nevertheless, at least when maritime law is applied, it is reassuring to know that there are some acknowledged exposure scenarios that do not qualify as substantial factors.

Filed under Asbestos, Maritime, MDL, Substantial Factor

Texas Supreme Court Reaffirms Standard of Proof in Mesothelioma Cases: Bostic v. Georgia-Pacific

By on July 29, 2014
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On July 11, 2014, the Texas Supreme Court released an opinion of major importance in Bostic v. Georgia-Pacific — an opinion Gordon & Rees partner William A. Ruskin recently commented on in a Law360 article.  The court’s decision reaffirmed the bedrock significance of the concept of dose in toxic tort litigation and rejected out of hand the argument that a less rigorous standard should be applied in a mesothelioma case than in an asbestosis case.  Bostic articulated that plaintiffs must prove substantial factor causation in all toxic tort litigation in general and in asbestos litigation in particular.

ETT BLOG_texasTimothy Bostic’s relatives sued Georgia-Pacific and 39 other asbestos-related product manufacturers claiming that Bostic’s fatal mesothelioma was caused by exposure to their products.  At trial in 2006, the jury allocated 25 percent of the causation to Knox Glass Co., the decedent’s former employer, and 75 percent to Georgia-Pacific. An amended judgment awarded plaintiffs over $11 million in compensatory and punitive damages. The Court of Appeals reversed the trial court’s decision holding that the plaintiffs failed to prove that the exposure to Georgia-Pacific’s asbestos was a substantial factor in bringing about Bostic’s death.
In affirming the Court of Appeals, the Texas Supreme Court held that the substantial factor causation standard applies to all asbestos cases involving multiple sources of exposure. To meet this standard, proof of “some exposure” or “any exposure” did not suffice to establish causation.  Instead, there must be defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, along with evidence that the dose was a substantial factor in causing the asbestos-related disease.

Bostic elaborates upon the Texas Supreme Court’s prior decision in Borg-Warner Corp. v. Flores, an asbestosis case. Flores addressed the issue of why the plaintiff’s causation evidence was legally insufficient in the absence of evidence of how much asbestos the plaintiff might have inhaled. Flores explained that proof of frequency, regularity, and proximity to a toxic substance alone is not sufficient to support causation, because it does not demonstrate that the defendant-specific dose was a substantial factor in causing the disease. Bostic expressly rejected the plaintiffs’ attempted distinction between a mesothelioma case and an asbestosis case. Rather, the court held the “framework for reviewing the legal sufficiency of causation evidence lends itself to both types of cases.”

Fundamentally, a plaintiff must show that the defendant supplied the product that caused the injury. Hence, the court viewed plaintiff’s “any exposure” theory as “illogical,” in part because it does not take into account a background dose of exposure.  In asbestos-related cancer cases, plaintiffs are not required to show that specific fibers from a defendant’s products were the ones that actually caused the asbestos-related cancer. Instead, it must be shown that exposure to a defendant’s product was a substantial factor in contributing to the total dose of asbestos the plaintiff inhaled, and therefore to the risk of developing asbestos-related disease.

The Supreme Court disagreed with the lower court, however, stating that the plaintiffs do not have to meet the heightened standard of “but-for” causation. Although the court recognized that “producing cause” or “but-for” is the level of causation applicable to most products liability cases, it was unwilling to apply that standard in a case with 40 defendants.

Acknowledging that causation is difficult to prove in multidefendant cases, the court referenced its prior holding in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), which offers an alternative method for establishing causation in the absence of direct proof. Havner recognized the possibility of using epidemiological studies to prove a population exposed to a toxin faces the increased risk of injury as compared to an unexposed or general population. Under Havner, the epidemiological evidence must show that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.

In essence, the Texas Supreme Court found the causation evidence in Bostic to be legally insufficient to uphold the trial verdict. The plaintiffs did not establish any approximation of dose resulting from Bostic’s exposure to Georgia-Pacific’s products. Bostic rejected the plaintiffs’ “any exposure” standard and instead reaffirmed adherence to substantial factor causation.

Alexana Gaspari is a law clerk in Gordon & Rees’s New York office.

Image courtesy of Flickr by Ray Bodden

Filed under Asbestos, Causation, Dose-Response, Mesothelioma, Substantial Factor, Texas

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