Bostic v. Ga.-Pac. Corp.

• Citation: 439 S.W.3d 332
• Decision Date: 11 July 2014
• Docket Number: No. 10–0775.,10–0775.
• Parties: Susan Elaine BOSTIC, Individually and as Personal Representative of the Heirs and Estate of Timothy Shawn Bostic, Deceased; Helen Donnahoe; and Kyle Anthony Bostic, Petitioners, v. GEORGIA–PACIFIC CORPORATION, Respondent.
• Court: Texas Supreme Court

439 S.W.3d 332

Susan Elaine BOSTIC, Individually and as Personal Representative of the Heirs and Estate of Timothy Shawn Bostic, Deceased; Helen Donnahoe; and Kyle Anthony Bostic, Petitioners

v.GEORGIA–PACIFIC CORPORATION, Respondent.

No. 10–0775.

Supreme Court of Texas.

July 11, 2014.

Donald D. Evans, Eric G. Lasker, Richard O. Faulk, Hollingsworth LLP, Thomas J. Graves, Washington, DC, for Amicus Curiae American Coatings Association, Inc.

Manuel Lopez, Shook Hardy & Bacon L.L.P., Houston, TX, for Amicus Curiae Coalition for Litigation Justice, Inc.

Richard Barrett Phillips Jr., Thompson & Knight LLP, Dallas, TX, Stuart A. Raphael, Hunton & Williams, McLean, VA, for Amicus Curiae Honeywell International, Inc.

Kay Andrews, Hawkins Parnell Thackston & Young LLP, Austin, TX, for Amicus Curiae Kelly–Moore Paint Company, Inc.

Deborah J. La Fetra, J. David Breemer, Pacific Legal Foundation, Sacremento, CA, for Amicus Curiae Pacific Legal Foundation.

James M. Beck, Reed Smith, LLP, Philadelphia, PA, Ruth G. Malinas, Plunkett & Griesenbeck, Inc., San Antonio, TX, for Amicus Curiae Product Liability Advisory Council, Inc.

George S. Christian, Texas Civil Justice League, Austin, TX, for Amicus Curiae Texas Civil Justice League.

Macey Reasoner Stokes, Baker Botts LLP, Sharla J. Frost, Wilson Elser Moskowitz Edelman & Dicker LLP, Houston, TX, for Amicus Curiae Union Carbide Corporation.

Karen K. Maston, Johnson Spalding Doyle West & Trent, Houston, TX, for Other interested party Amtek, Inc.

Nancy Bell Scales, Jones Gill, Houston, TX, for Other interested party Anchor Hocking, Inc.

Clay M. White, White–Shaver, Tyler, TX, for Other interested party Aqua–Chem Congoleum Corp.

Robert Mark Willingham, Willingham Fultz & Cougill LLP, Houston, TX, for Other interested party Asten Johnson, Inc.

Gary D. Elliston, Jennifer Judin, DeHay & Elliston LLP, Paul Edward Hamilton, Law Office Of Paul E Hamilton PLLC, Dallas, TX, for Other interested party Babcock Borsig Power, Inc.

Raul Calderon, Attorney at Law, Austin, TX, for Other interested party Champlain Cable Co.

Charles Josef Blanchard, Carrington Coleman Sloman & Blumenthal LLP, Dallas, TX, for Other interested party Crane Co.

Robert E. Thackston, Hawkins Parnell Thackston & Young LLP, Austin, TX, for Other interested party Daimler Chrysler Corp.

Dawn Marie Wright, Thompson & Knight, Tammy Holt Cole, Rose Walker, L.L.P., Dallas, TX, for Other interested party Ford Motor Co.

James R. Old Jr., Germer & Gertz, LLP, Beaumont, TX, for Other interested party Foster Wheeler.

Laurel A. Fay, Schachter Harris LLP, Irving, TX, for Other interested party Garlock Sealing Technologies, LLC.

Raymond P. ‘Ray’ Harris Jr., Schachter Harris LLP, Irving, TX, for Other interested party Garlock, Inc.W. Neil Rambin, Sedgwick, LLP, Dallas, TX, for Other interested party General Refractories.

Robert W. Wilkinson, Dogan & Wilkinson, Pascagoula, MS, for Other interested party Guard–Line, Inc.

J. Frank Kinsel Jr., Cantey & Hanger LLP, Fort Worth, TX, for Other interested party Henry Vogt Machine Co.

Kyle C. Steele, Laura A. Frase, Forman Perry Watkins Krutz & Tardy, Dallas, TX, for Other interested party Ingersoll–Rand Co.

Jeffrey Luke Larson, Jill McCarthy Arntz, Kasowitz Benson Torres & Friedman LLP, Houston, TX, for Other interested party Maremont Corp.

Jack Thomas Jamison, Godwin Ronquillo, PC, Dallas, TX, for Other interested party Mid–Valley, Inc.

Joseph Blizzard, Andrews Kurth LLP, Dallas, TX, for Other interested party Rapid American Corp.

Charla G. Aldous, Aldous Law Firm, Christopher J. Panatier, Simon, Eddins & Greenstone, L.L.P., Denyse Ronan Clancy, Eric Asher Policastro, John Lacoste Langdoc, Michael Shane Mills, Christine Tamer, Baron & Budd, P.C., Dallas, TX, for Petitioners.

Deborah G. Hankinson, Rick Thompson, Hankinson LLP, Katherine Mary Warne Ross, Hankinson Levinger LLP, James Bachman Greer, Kane Russell Coleman & Logan, P.C., Melvin David Bailey, Bailey Crowe & Kugler, LLP, Dallas, TX, for Respondent.

Justice WILLETT delivered the opinion of the Court, in which Chief Justice HECHT, Justice GREEN, Justice JOHNSON, and Justice BROWN joined, and in all but Parts II.A.3 and II.B of which Justice GUZMAN joined.

Opinion

DON R. WILLETT, Justice.

In Borg–Warner Corp. v. Flores,¹ we addressed standards imposed by Texas law for establishing causation in asbestos-disease cases. Flores concerned a plaintiff suffering from asbestosis

. In today's case, the plaintiffs sued for damages resulting from the suffering and death of a family member, Timothy Bostic (Bostic), who succumbed to mesothelioma. We hold that the standard of substantial factor causation recognized in Flores applies to mesothelioma cases, and write on the meaning of substantial factor causation in this context. We further hold that the plaintiffs were not required to prove that but for Bostic's exposure to Defendant Georgia–Pacific Corporation's asbestos-containing joint compound, Bostic would not have contracted mesothelioma. In this regard, we disagree with language in the court of appeals' decision. However, we agree with that court that the plaintiffs failed to offer legally sufficient evidence of causation, and accordingly affirm the court of appeals' judgment.

I. Background

In 2002 Bostic was diagnosed with mesothelioma

. He was 40 years old, and died of the disease in 2003. Mesothelioma is a rare cancer of a lining of the body's internal organs. There is no dispute that asbestos, when breathed into the lungs, can cause mesothelioma. Bostic's relatives, individually and on behalf of Bostic's estate (Plaintiffs), sued Georgia–Pacific and 39 other defendants, alleging that the defendants' products exposed Bostic to asbestos and caused his disease. Plaintiffs alleged causes of action for negligence and products liability. Plaintiffs claimed that as a child and teenager Bostic had been exposed to asbestos while using Georgia–Pacific drywall joint compound.

The case went to trial in 2006. The jury found Georgia–Pacific liable under negligence and marketing defect theories, and was asked to allocate causation among numerous entities. The jury assessed 25% of the causation to Knox Glass Company, a former employer who had settled with Bostic, and 75% to Georgia–Pacific.

The trial court signed an amended judgment awarding Plaintiffs approximately $6.8 million in compensatory damages and approximately $4.8 million in punitive damages. The court of appeals concluded that the evidence of causation was legally insufficient and rendered a take-nothing judgment.²

II. Discussion

A. Proof of Causation in Mesothelioma

Cases

The Plaintiffs contend the court of appeals erred in holding that the causation evidence was legally insufficient. In conducting a legal sufficiency review, the final test “must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.”³ “We must view the evidence in the light most favorable to the verdict and ‘must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.’ ”⁴

1. Flores

Flores concerned proof of causation in a case where Flores, a brake mechanic, allegedly suffering from asbestosis

, sued Borg–Warner, a brake pad manufacturer. The jury found that Flores suffered from asbestos-related disease and apportioned to Borg–Warner 37% of the causation.⁵ We concluded that the causation evidence was legally insufficient.⁶ We held, consistent with section 431 of the Restatement Second of Torts, that to establish causation in fact the plaintiff must prove that the defendant's product was a substantial factor in causing the disease, and that mere proof that the plaintiff was exposed to “some” respirable fibers traceable to the defendant was insufficient.⁷ “The word ‘substantial’ is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.”⁸ We held the evidence legally insufficient because the record revealed “nothing about how much asbestos Flores might have inhaled.”⁹ We held that “while some respirable fibers may be released upon grinding some brake pads, the sparse record here contains no evidence of the approximate quantum of Borg–Warner fibers to which Flores was exposed, and whether this sufficiently contributed to the aggregate dose of asbestos Flores inhaled, such that it could be considered a substantial factor in causing his asbestosis

.”¹⁰

On further analysis, we held that “proof of mere frequency, regularity, and proximity is necessary but not sufficient, as it provides none of the quantitative information necessary to support causation under Texas law.”¹¹ While the plaintiff was not required to establish causation with “mathematical precision,” we required “[d]efendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease.”¹² In rejecting a standard that “some” exposure would suffice, the Court recognized: “As one commentator notes, ‘[i]t is not adequate to simply establish that ‘some’ exposure occurred. Because most chemically induced adverse health effects clearly demonstrate ‘thresholds,’ there must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold before a likelihood of ‘causation’ can be inferred.”¹³

Plaintiffs urge that the standards established in Flores are not fully applicable because today's case is a mesothelioma

case and Flores was an asbestosis case. They contend that a key factual distinction between the two diseases is that relatively minute quantities of asbestos can result in mesothelioma. In Flores...