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Texas High Court Mulls Liability Tests In Asbestos Cases
By Jess Davis

Law360, Dallas (September 09, 2013, 6:22 PM ET) — Georgia-Pacific Corp. on Monday told the Texas Supreme Court not to apply different liability standards to mesothelioma and other asbestos cases than the state uses for all other torts, as it defended an appellate win throwing out a $12.3 million verdict against the company.

During oral arguments in the closely-watched case, the justices probed both sides on the nuances of what’s required to prove liability for mesothelioma, a cancer linked to asbestos exposure. Georgia-Pacific, which for a decade manufactured a drywall joint compound containing asbestos fibers, said intermediate appeals courts across Texas have correctly required plaintiffs to prove that but for their exposure to the Georgia-Pacific product, they wouldn’t have contracted the disease.

Arguing for the family of Timothy Bostic, who died from mesothelioma in 2003, Denyse F. Clancy of Baron & Budd PC said “but-for causation” isn’t an adequate or appropriate test in situations where asbestos from multiple defendants could have been sufficient to cause the harm — as she said happened with Bostic.

Instead, she argued that the court should look to the “substantial factor” test, which she said measures whether the exposure to asbestos from any one defendant was sufficient to cause the disease.

“This isn’t a lessening of the standard or an opening of the floodgates; it’s a very balanced compromise,” Clancy said.

The plaintiffs allege Bostic was exposed to Georgia-Pacific’s asbestos joint compound while performing remodeling and construction jobs with the company’s product, and in 2008, a Dallas judge awarded them about $12.3 million in damages.

The company admitted Bostic was present during use of the joint compound, but claimed there was no evidence he was exposed to fibers from the compound at levels that would have caused the disease, especially in light of his exposure to asbestos from other sources.

An intermediate appeals court reversed the award in 2010, rendering a take-nothing judgment after it found the evidence insufficient to meet the but-for standard.

Clancy argued applying the but-for test under the appeals court’s model would have the “perverse effect” of absolving every wrongdoer if a plaintiff contracted the cancer after exposure to more than one company’s products.

Georgia-Pacific attorney Deborah Hankinson of Hankinson LLP argued Texas law already provides room for multiple defendants to be held responsible under the but-for test so long as each one could independently have caused the disease, and said tort law treats the substantial factor test as a limitation on causation, not an entirely different standard.

“If we start having the court carve out different tests for different kinds of toxic torts, the court’s going to be in the business of micromanaging, and we’re going to have un-uniform laws,” Hankinson said.

The parties also clashed on what measure of proof the court should require to support a finding of liability and what level of exposure creates a risk that can be considered tantamount to cause.

Clancy argued the court should set a very low threshold for what qualifies as “substantial” exposure in mesothelioma cases because of the nature of the disease, and said requiring evidence of an exact dosage or the percentage of asbestos exposure from a specific source is scientifically impossible.

She said the law requires evidence the source of the asbestos be sufficient in and of itself to have caused the harm, even if other sources also may have contributed.

Georgia-Pacific argued that standard could theoretically impose liability on a company whose products contributed only 1 percent of a plaintiff’s exposure to asbestos, and told the court it should require plaintiffs to prove with scientific evidence that the exposure to a certain product actually caused the plaintiff’s development of mesothelioma.

Bostic is represented by John Langdoc and Denyse F. Clancy of Baron & Budd PC.
Georgia-Pacific is represented by Deborah G. Hankinson and Rick Thompson of Hankinson Levinger LLP.
The case is Bostic v. Georgia-Pacific Corp., case number 10-0775, in the Supreme Court of Texas.

–Editing by Andrew Park.
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