Asbestos litigation is a horrid corner of tort litigation in Texas. It’s a rote practice. Every case looks pretty much like every other case. The facts are all the same, the witnesses are interchangeable, and there’s generally no creativity exercised by anyone on either side of the counsel table. It’s a business, not a profession, and you can pretty much mark it as “Exhibit A” in the case of Why People Hate Lawyers. It probably has more in common with direct mail advertising than law practice. Everyone established a long time ago that it’s much cheaper to settle cases than to try them, and defendants long ago quit asking for real proof. The cases became a cash cow and very little else. Consequently, any new lawyer who found himself heavily involved in asbestos litigation came out five years later with no marketable skills to speak of, despite having attended hundreds or even thousands of depositions. The only way anything of interest happens in the area is if the Legislature or an appellate court—preferably the Texas Supreme Court—takes some sort of action. Otherwise, the machine just keeps humming along.
Some years ago, the Legislature did take action. It introduced new statutory requirements for proof in asbestos litigation and laid the foundation for an inactive docket for plaintiffs who claim exposure to asbestos but who have not developed any sort of symptoms, as a result. And, thus, asbestos litigation took a step toward normalcy as Texas adopted the rule that you actually have to be sick to sue someone for giving you a disease. Granted, previously statutes of limitation created problems for plaintiffs because, as soon as you know about exposure, limitations begins to run, whether you’re sick or not. But plaintiff’s lawyers trolling for new clients didn’t help the situation. They established mass “screenings” where hundreds of plant workers would file through a mobile x-ray lab to be checked for evidence “consistent with” asbestos exposure, even though asymptomatic. It did little for the workers–asbestosis being acknowledged as an untreatable condition–but it kept the flow of clients into the machine.
In 2007, the Texas Supreme Court issued its opinion in Borg-Warner Corp. v. Flores. Flores was a landmark case in that it held that the causation standard—substantial factor—that applies to every other product liability case in Texas also applies to asbestos cases. Thus, Flores confirmed that, in order to prove his case against a defendant, a plaintiff would have to show that the defendant’s activities or products were a substantial factor in causing asbestos-related disease. This makes sense because asbestosis—the disease most plaintiffs claim—is based on the amount of exposure, but previously, defendants were unable to get out of a case without paying a settlement, even where a plaintiff might allege or be able to prove only an hour or two’s worth of exposure to a defendant’s products, worksite, or asbestos workers. An hour’s worth of exposure over the course of a forty or fifty year career was enough to push a defendant to trial.
About a week ago, the Court took the next step, applying the Flores causation standard to mesothelioma cases in Bostic v. Georgia-Pacific Corp. Now, mesothelioma is a different animal from asbestosis. It is a cancer and a truly horrible, inevitably fatal one. It might not rear its head for forty years after exposure, and, while even experts for plaintiffs will tell you that there is a “safe” level of asbestos exposure vìs-a-vìs asbestosis, no such level exists with regard to mesothelioma. And, as a result, plaintiff’s experts for years testified that any exposure—any exposure at all, even a single fiber – caused by a defendant was a factor in causing mesothelioma. Bostic put the brakes on that. Despite their “one fiber” evidence, mesothelioma plaintiffs have to meet the same standard as any other.
The Court’s decision might appear fundamentally non-scientific, if not for one fact. As virtually every expert in this sort of litigation regularly testifies, asbestos fibers are everywhere, particularly in urban environments. That means that there is always a level of “background” asbestos in the air, and everyone inhales it. So to suggest that one asbestos fiber from a product manufacturer caused mesothelioma when none of the background fibers were sufficient to do it seems non-scientific to a fault.
Justice Lehrmann, joined by two others, dissented from the majority opinion, and the rejection of science was her main criticism of the majority. (I’m quite a fan of Justice Lehrmann, as anyone who has read my writings on SCOTX has likely noticed, and she makes a good point here, just not good enough, in my opinion.) But, ultimately, this was more a case about Texas evidentiary standards and whether expert testimony—scientific or not—is going to allow parties to fudge those standards. The Court held “no,” and it’s pretty hard to argue with the policy if not with the some of the details. The quest for the “next asbestos” is always underway (and there have been some notable false starts in recent years), so it can hardly hurt to establish standards and stick with them. Justice requires some principles that are not always “real world” ones. Law is more than a mail-order service.