Justice Evan Young
In an opinion concurring with SCOTX’s denial of review of an asbestos case from the Houston [14th] Court of Appeals, Justice Young, joined by Justices Sullivan and Hawkins, called for the Court to clarify that the proof-of-dose requirement for establishing substantial causation in asbestos cases applies in single-source-exposure cases.
Howmet Aerospace, Inc. f/k/a Arconic, Inc., f/k/a Alcoa, Inc. v. Frank Burford, Individually and as Representative of the Heirs and Estate of Carolyn Burford, Deceased; Wesley Burford, Individually; and Leslie Schell, Individually (No. 24-0411; pet. denied April 17, 2026) arose from an asbestos exposure lawsuit. Plaintiff worked for Defendant’s aluminum-smelting plant in Rockdale for more than 25 years. His wife alleged that she contracted asbestosis in 2006 as a result of shaking out and washing his work clothes. She died in 2015. Her family brought a lawsuit, which the MDL panel transferred to the Harris County 11th District Court, home of the In re: Asbestos Litigation pretrial court. Howmet moved for no-evidence summary judgment on the basis that Plaintiffs failed to produce sufficient evidence of substantial-factor causation. The trial court granted the motion.
The Houston [14th] Court of Appeals reversed, holding that the Burfords presented evidence of substantial-factor causation sufficient to defeat a no-evidence MSJ because they showed single-source exposure and, consequently, weren’t required to produce epidemiological evidence. The court of appeals stated that it didn’t have to apply the “proof of dose” requirement of Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014), treating it as “nonbinding obiter dicta.” The court held that a jury could infer proof of dose because “whatever the dose or amount of asbestos to which [the deceased] was exposed, that dose or amount must have been sufficient to cause asbestosis.” Defendant sought review, asserting that “the court of appeals created a new exception for single-source-exposure asbestos cases and that, regardless of whether the defendant is the only source of exposure, a proper epidemiological study is always required in every case.” SCOTX denied review.
Justice Young, joined by Justices Sullivan and Hawkins, concurred in the denial of the petition although “with some reluctance.” Beginning with Havner, Justice Young wrote that a toxic-tort plaintiff produces legally sufficient evidence of substantial-factor causation in two ways: (1) “direct, scientifically reliable proof,” and (2) epidemiological studies showing that the risk of an injury or condition in the exposed population (similar to plaintiff) “was more than double the risk of an unexposed or control population.” Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) followed, supplanting the old Lohrmann standard in asbestos-related litigation of “frequency, regularity, and proximity.” Borg-Warner held that “dose matters” and required “[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.”
In Bostic, the Court reiterated the dose requirement and held that in a single-source exposure case, “‘[i]f the plaintiff can establish with reliable expert testimony that (1) his exposure to a particular toxin is the only possible cause of his disease, and (2) the only possible source of that toxin is the defendant’s product,’ this proof might establish ‘direct proof of causation,’ and resort to Havner’s alternative approach ‘might be unnecessary.’” Even so, the Court stated further that “even in single-exposure cases, we think that proof of dose would be required.”
For Justice Young, “the question that this Court must eventually address is whether we really meant what we said in Bostic—that proof of dose is required in every case. More specifically, the Court should analyze whether any of the distinctions between cases like this one and cases like Havner, Flores, and Bostic matter, including whether the lack of any quantitative evidence of dose is fatal to a plaintiff’s attempt to create a fact question that would defeat summary judgment on substantial-factor causation in a single-source-exposure case.” Put another way, just because a plaintiff may have been exposed to asbestos from a single source does not show that “the amount of exposure (the dose) was more than insignificant.” Justice Young warned that the court of appeals’ dispensation with the proof-of-dose requirement constitutes a step backwards in time toward the old Lohrmann standard. Additionally, he stated his doubts as to whether “lower courts are free to disregard Bostic’s statements as mere dicta, as the court of appeals did below.”
The irony of the court of appeals’ decision, as Justice Young points out, was that the court didn’t have to say anything about Bostic because it determined that Plaintiffs adduced evidence of dose. Nevertheless, Justice Young called for the Court to address the question in the future because “there is confusion and conflict among the court of appeals on the proof-of-dose issue ….” We agree wholeheartedly with Justices Young, Sullivan, and Hawkins that any potential, judicially-created loophole in Bostic should be closed at the earliest opportunity.
