Texas Supreme Court Decision Sets High Bar for Asbestos Claimants

The Supreme Court of Texas recently handed down a decision that is a major blow to asbestos exposure litigants. In its recent decision in the case Bostic v. Georgia-Pacific, a new and higher standard of causation was presented for determining whether a defendant can be found liable in asbestos exposure litigation claims. This new holding presents a standard of causation so high that it could inevitably have the effect of preventing occupational asbestos exposure sufferers and their families from receiving the justice that they deserve.

Asbestos Litigation in Texas

Those suffering from mesothelioma, asbestosis and other serious diseases caused by occupational asbestos exposure have it rough in the Texas courts. In particular mesothelioma, a fatal and somewhat rare cancer, poses significant risk to those who were exposed to even small amounts of asbestos-containing materials. In North America, asbestos exposure has been found to be the only environmental cause that is responsible for mesothelioma. In Texas specifically, from the period from 1988 to 2000, the state had more asbestos litigation claims filed in its courts than in any other state.

In 2005, corporate lobbyists in Texas helped push through the passage of Texas Senate Bill 15 (SB 15). This bill greatly limits how and in what manner asbestos litigation claims can be brought and won in the Texas court system. Proponents for SB 15 believe that it helps remove the instances of frivolous asbestos litigation claims so that the real sufferers have greater access to justice by being able to go to the “front of the line,” so to speak. In order to pursue an asbestos litigation claim in a Texas court, SB 15 requires plaintiffs to present a medical report issued by a board-certified physician. SB 15 also sets a two-year statute of limitations that tolls the claim accrual period following the earlier of either the service of the SB 15 complaint medical report, or the claimant’s death. SB 15 interpretations by the Texas Supreme Court played a big role in the Bosticdecision.

The Recent Texas Supreme Court Decision

The Bostic case revolves around a man who died from mesothelioma at the relatively young age of 40. The plaintiff had first been exposed to asbestos when he was 5 years old and visited his father at his residential construction job; he then went on to be employed at facilities that also forced him to be exposed to asbestos. In this case, the jury found that the plaintiff’s expert witnesses and other evidence had met the burden of proof regarding the asbestos fibers he was exposed to and the effects they had on the his body. However, the Texas Supreme Court’s final holding in the case barred recovery from the defendant Georgia-Pacific, one of his past employers.

The court in the Bosticcase found that Georgia-Pacific could not be held liable because the plaintiff was unable to prove that the plaintiff’s mesothelioma was the result of exposure to each of the defendant’s products, and that each product exposure was alone sufficient enough to cause mesothelioma. This extremely high standard of proof goes against years of scientific research regarding the issue. Mesothelioma can be caused by exposure to very small amounts of different types of asbestos. Requiring mesothelioma sufferers to specifically prove the levels of asbestos exposure and which company is responsible asks plaintiffs to exhibit a level of specificity that science does not currently permit. Furthermore, some argue that the presence of asbestos at a site, especially after the 1970s, should be enough to support a claim. This is because even if the specific fibers cannot be attributed to have caused mesothelioma, by the 1970s it was common knowledge that asbestos exposure could cause significant health risks, and thus those facing exposure should have at least been warned by their employers. This lack of warning has been enough to support a claimants of liability in other states.

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