In a case of first impression, the Houston [14th] Court of Appeals has reversed an Asbestos MDL pre-trial court order granting a no-evidence summary judgment in an asbestosis case.
Frank Burford, Individually and as Representative of the Heirs and Estate of Carolyn Burford, Deceased; Wesley Burford, Individually, and Leslie Schell, Individually v. Howmet Aerospace, Inc., f/k/a Arconic, Inc., f/k/a Alcoa, Inc.(No. 14-22-00417-CV; February 27, 2024) was brought by the surviving children of Carolyn Burford, who was diagnosed with asbestosis in 2006 and died in 2015. Her husband worked for Alcoa at its aluminum smelter in Rockdale from 1963 to 1993, where he was exposed to asbestos fibers. Plaintiffs filed wrongful death and survival claims in a Dallas County court-at-law in 2017, alleging that their mother’s was exposed to asbestos on her husband’s clothing and body at a dose sufficient to cause her disease. The MDL panel transferred the case to Judge Mark Davidson’s pre-trial court shortly thereafter. Alcoa filed a no-evidence summary-judgment motion, arguing that there was no evidence of substantial-factor causation. It also filed a motion to exclude certain opinions of Plaintiffs’ experts. Judge Davidson granted summary judgment but “announced that it was . . . doing so reluctantly and with the hope that its ruling would be reversed on appeal.” Plaintiffs appealed.
In an opinion by Justice Wilson, the court of appeals reversed. The court first determined that reliable expert testimony and other evidence established that Alcoa was the sole source of all the asbestos to which Carolyn was exposed. Plaintiffs, consequently, “had no burden to prove that Carolyn was not exposed to asbestos from any source other than Alcoa” (citing Helena Chem. Co. v. Cox, 664 S.W.3d 66, 80 (Tex. 2023); Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 350 (Tex. 2014); and Havner v. Merrell Dow Pharmaceuticals, Inc., 953 S.W.2d 706, 720 (Tex. 1997)).
The court then turned to the central question: “In a case in which a defendant was the source of all the asbestos to which the plaintiff was exposed, allegedly causing the plaintiff’s asbestosis, what must the plaintiff show to raise a fact issue as to substantial-factor causation through direct, scientifically reliable proof?” Justice Wilson observed that dicta in Bostic suggested that “[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 amount to direct proof of causation and the alternative approach embraced in Havner[i.e., by inference from a demonstrably greater risk of exposure in the general public, which SCOTX defined as more than a doubling of the risk of contracting the disease] might be unnecessary.” But Bostic was not a single-exposure case, leaving the court with “this issue of apparent first impression.”
Taking its cue from Havner and Bostic, the court held that “one way for [Plaintiffs] to raise a fact issue as to whether asbestos from Alcoa was a substantial factor in causing Carolyn’s asbestosis through ‘direct, scientifically reliable proof of causation’ is by presenting (1) evidence that Carolyn was exposed to and inhaled asbestos that came from Alcoa; (2) reliable expert testimony that Carolyn’s exposure to asbestos is the only possible cause of asbestosis; and (3) proof that Alcoa was the source of all the asbestos to which Carolyn was exposed. . . . If no other party contributed asbestos fibers to the air that plaintiff inhaled, then it may reliably and reasonably be concluded that the defendant sufficiently contributed to the aggregate dose of asbestos the plaintiff inhaled.” Consequently, Plaintiffs did not have show “that the asbestos from Alcoa more than doubled Carolyn’s risk of suffering from asbestosis.”
Turning to the evidence presented by Carolyn’s treating physician and experts, the court concluded that the summary-judgment evidence raised a genuine fact issue as to whether: (1) Carolyn suffered from asbestosis; (2) Carolyn’s exposure to asbestos was the only possible cause of her asbestosis; and (3) Alcoa was the source of all the asbestos to which Carolyn was exposed. Plaintiffs thus cleared the summary judgment bar with “direct, scientifically reliable proof of causation” under Havner.
This outcome has an important feel to it, though we have no idea how many asbestosis cases still pending in Judge Davidson’s court have a similar fact pattern of long-term single-source exposure to an exposed person.
