laskerfaulkGuest Commentary

by Eric G. Lasker and Richard O. Faulk, partners, Hollingsworth LLP

In one of the most infamous – and remarkably honest – statements in American legal history, plaintiffs’ counsel Richard (“Dickie”) Scruggs once described asbestos litigation as a “search for a solvent bystander.”  When the statement was made, the asbestos litigation behemoth was plainly running amok and most courts had done little to resolve the “elephantine mass” of asbestos litigation clogging the nation’s judicial system.  Company after company turned to bankruptcy to solve a problem that the state courts could not – or would not – address.

Some courts finally recognized ways to use the common law to contain the controversy. In Borg Warner v. Flores, 232 S.W.3d 765 (Tex. 2007), Texas became one of the first states to “draw the line” against claims that “any exposure” to asbestos was capable of causing illnesses – and to require proof that the exposures to each defendant’s product were, in fact, sufficient to cause asbestos-related diseases. Flores required proof that the exposure be a “substantial factor” in causing the illness, and held that  “[d]efendant-specific evidence relating to the approximate dose to which plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease will suffice.” 232 S.W.3d at 773.

This endorsement of “but for” causation was consistent with decades of Texas law – law which has been applied to virtually every type of tort, including product liability. Coupled with legislative reforms, the Flores decision precipitated a remarkable decline in Texas asbestos litigation in Texas.  Flores remains controlling in Texas – but lightning can be seen on the horizon.

In Georgia-Pacific Corp. v. Bostic, 320 S.W.3d 588 (Tex. App.—Dallas 2010, pet. granted), the Dallas court of appeals followed Flores and held that asbestos plaintiffs failed to demonstrate that “but for” exposure to the defendant Georgia Pacific’s product, the decedent’s mesothelioma would not have occurred.  The plaintiffs appealed to the Texas Supreme Court, which initially denied review without comment.  When plaintiffs moved for rehearing, however, the Court changed course and granted review of the lower court’s decision.

The arguments raised by the Bostic plaintiffs are creative, but unavailing.  They argue that Bostic is controlled by “alternative liability” cases like Summers v. Tice. 199 P.2d 1 (Cal.1948).  But those cases rest on the necessary predicate that the actions of each defendant alone would have been sufficient to cause injury.  In Bostic, the plaintiffs failed to show that Mr. Bostic’s exposure to Georgia Pacific’s products alone was sufficient to cause or contribute to his injury.  On this basis, the Summers rule cannot apply.

Of equal importance, the Bostic plaintiffs also failed to appreciate that the Texas Supreme Court has already rejected the “alternative liability” rule in asbestos personal injury cases. In Gaulding v. Celotex Corp., 772 S.W.2d 66, 68-69 (Tex. 1989), plaintiffs sought to hold defendants liable even though they could not prove that any particular defendant manufactured the product that actually caused the decedent’s mesothelioma.  As in Bostic, the Gaulding plaintiffs relied on Summers and other authorities, such as Landers v. East Texas Salt Water Disposal Co., 248 S.W.2d 731 (Tex. 1952), to excuse their lack of proof.  The Gaulding Court rejected plaintiffs’ attempt to escape their causation burden for two reasons.

First, the Court explained that the issue in Landers was not causation, i.e., whether each of the defendants’ actions were “but for” causes of injury to the plaintiff. The Landers Court was reviewing a dismissal on the pleadings, and it “was unequivocally alleged” that each of the two defendants released of large volumes of salt water that had contaminated the plaintiffs’ land and “contributed to the overall injury.” Gaulding, 772 S.W.2d at 68; see Landers, 248 S.W.2d at 731-32.  The issue in Landers was proof of damages – whether the defendants could escape liability because the plaintiff could not prove each defendant’s allocated share of damages. See Landers, 248 S.W.2d at 734.

Second, the Gaulding Court stressed that “[a] crucial element to alternative liability is that all possible wrongdoers must be brought before the court.” Id. at 69.  In Bostic, there are numerous possible defendants not before the court, and plaintiffs cannot negate the possibility that Mr. Bostic’s mesothelioma resulted of idiopathic causes unrelated to any workplace or bystander asbestos exposures.  Under these circumstances, “alternative liability” is completely inapposite.

Still, despite these clear precedents, the Texas Supreme Court is now poised to review Bostic – and the decision to do so seems inevitably tied to questions regarding continued allegiance to Flores. 

Questions abound:

  • Is Texas preparing to resume the search for the next “solvent bystander?”
  • Is the Court considering a departure not only from Flores, but also decades of settled Texas law regarding causation in tort cases?
  • Is the Court preparing to carve an “exception” to those principles in asbestos litigation, particularly mesothelioma cases?
  • Is the Court prepared to renew Texas as a “magnet” jurisdiction for asbestos litigation, much like states with far more liberal views of causation requirements?

Hopefully, the history of asbestos litigation will persist – and rational common law limits will not be sacrificed to resurrect a demonstrably abusive system.