More than a dozen states, wading through asbestos litigation and mesothelioma lawsuits, have made it clear they will not accept the “any exposure theory” from plaintiffs. This is the theory holding that because no amount of asbestos exposure is safe, every encounter must therefore be considered dangerous. Courts have decided plaintiffs need to show more than minimal exposure to win a case. This is especially true for newer claimants, who more often assert exposure to asbestos fibers contained in metal products.

Now, it seems courts may be making it even tougher for mesothelioma plaintiffs. An example was seen with the July 2014 decision by the Texas Supreme Court in Bostic v. Georgia-Pacific Corp. Here, the court determined evidence of exposure alone would not automatically imply liability, and that certain causation standards must be met, such as those set forth in Borg-Warner Corp. v. Flores. By this standard, plaintiffs have to prove the dose of fibers to which they were exposed as a result of using the defendant’s product. This standard requires a reliable scientific expert to testify that a plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.

Initially, survivors of a mesothelioma decedent won $13.5 million in compensatory and punitive damages, with defendant Georgia-Pacific being 75 percent responsible. However, that verdict was later challenged by the defendant, who moved for a mistrial (which was granted) due to alleged misconduct on the part of the judge, the bailiff, and a juror. A year later, the plaintiffs filed a motion to vacate and enter a judgment. The trial court entered an amended final judgment against the defendant for a total of $12 million in damages. The defendant appealed.

The appellate court reversed, finding there was not enough to legally support evidence of specific causation. The court ruled the plaintiffs hadn’t proven the decedent’s exposure to the defendant’s product was a “substantial factor” in the development of his injury. The panel cited the plaintiff’s expert witness testimony, which at no point indicated the plaintiff would not have developed the disease but for exposure to the defendant’s product.

Upon review by the Texas Supreme Court, that ruling was affirmed. The state high court ruled that any time there is a case involving multiple sources of exposure, which is most mesothelioma cases, the standard of “substantial factor causation” set forth in Borg-Warner must apply. Evidence in these cases must be defendant-specific, detail the approximate dose to which the plaintiff was exposed, and present expert witness testimony or studies indicating this exposure was a substantial cause of the illness.

This new standard is a higher one than what Texas courts had previously followed, in the wake of the 1986 decision by the U.S. Court of Appeals for the Fourth Circuit in Lohrmann. By the previous standard, plaintiffs needed only to show that exposure was more than minimal.

The Bostic decision toughens the hurdles plaintiffs must face. It’s been dubbed the “Lohrmann Plus Standard,” because plaintiffs still have to prove everything they did under Lohrmann, plus also showing scientific proof that exposure to the defendant’s product specifically greatly increased the risk of disease.

Since the standards of proof in these cases are ever increasing, it’s imperative for plaintiffs to secure a law firm with extensive experience and proven success.

Additional Resources:
Texas Supreme Court applied unique approach to ‘every exposure’ theory in asbestos cases, Aug. 7, 2014, By Heather Isringhausen Gvillo, The Southeast Texas Record

More Blog Entries:
Rost v. Ford Motor Co. – Court Upholds Plaintiff Award, Clarifies “Any Exposure”, June 2, 2014, Florida Mesothelioma Lawyer Blog