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Texas Court of Appeals raises the causation bar for asbestos plaintiffs and their national experts.

news | July 26, 2007

On July 26, 2007, the Court of Appeals for the First District of Texas (Houston) issued a major opinion confirming the requirement of science-based evidence of specific causation in asbestos bodily injury claims. Georgia-Pacific Corp. v. Stephens, No. 01-05-00132. The Firm represented Georgia-Pacific in several cases pending in Texas state courts and elsewhere, and developed the scientific defense to causation that was the framework of the successful appellate strategy. Georgia-Pacific is now owned by Koch Industries, which has been a client of the Firm since 1982. Georgia-Pacific argued that the plaintiff’s expert testimony was legally insufficient to support a finding of specific causation as required under the “substantial contributing factor” test of Lohrman v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), which has been adopted by numerous state and federal courts around the country, including most recently by the Supreme Court of Texas in Borg-Warner Corp. v. Flores, —S.W. 3d—, 2007 WL 1650574. The First District is the first lower Texas court to apply Borg-Warner to an asbestos bodily injury case.

In Georgia-Pacific, the First District concluded that Borg-Warner requires asbestos plaintiffs to present quantitative evidence of the dose of asbestos fibers inhaled and scientific evidence (epidemiology) of the minimum exposure level associated with an increased risk of developing mesothelioma. The plaintiff’s experts, who have testified nationally in hundreds of cases, opined at trial that “every exposure” to asbestos contributes to cause mesothelioma in an individual. The Court of Appeals rejected this testimony and plaintiff’s argument that evidence of exposure generally was a sufficient basis to establish causation, concluding “there was no quantitative evidence presented upon which [plaintiff’s] experts could rely to determine that he was exposed to Georgia-Pacific’s product in sufficient quantities to have increased his risk of developing mesothelioma.” Without such evidence, “the opinions offered by [plaintiff’s] experts in this case lack the factual and scientific foundation required by Borg-Warner and thus are legally insufficient to support the jury’s causation finding.” The Georgia-Pacific opinion is an important victory for companies defending asbestos claims where plaintiffs’ experts, lacking scientifically reliable evidence of exposure and dose, previously were allowed to infer specific causation under the theory that “any” or “every” exposure to asbestos contributes to cause a disease in an individual plaintiff.