Today TCJL filed an amicus brief with the Texas Supreme Court urging the Court to uphold the Dallas Court of Appeals’ decision in Bostic v. Georgia-Pacific Corporation (No. 10-0775) to apply Borg-Warner to a mesothelioma claim. This case has enormous implications for the determination of legal causation in asbestos-related and other toxic tort claims. The Petitioners have asked the court to adopt the less stringent Lohrmann standard of substantial causation test for mesothelioma claims, as opposed to the quantitative dose requirement laid down in its 2007 decision in Borg-Warner Corp. v. Flores. Legislation introduced during the 2009 session seeking to codify the Lohrmann standard failed in the face of intense opposition from TCJL and numerous other business and industry groups.
The Petitioners argue that the legislative event in 2009 demonstrates “confusion” over the proper causation standard to apply in mesothelioma cases and that the application of Borg-Warner should be limited to asbestosis claims. In short, TCJL’s brief contends that the Petitioner is asking the Supreme Court to do something the Legislature consciously declined to do when it failed to adopt the Lohrmann test. In other words, the policy decision in favor of Borg-Warner has already been taken.
The Bostic case is one of the most important to come before the Court in the post-Borg-Warner era. At issue is whether a mesothelioma claimant must prove exposure to a quantitative dose of asbestos fibers from the defendant’s product. If Texas law falls back to the Lohrmann cumulative exposure standard, it will once again subject defendants whose products did not substantially cause the claimant’s asbestos-related mesothelioma to significantly disproportionate liability in these cases.
