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  • Writer's pictureKirk Hartley

Defense Groups Submit Amicus Brief Seeking “But for” Causation Ruling in TexasTexas

What should defendants in cancer cases seek as an “appropriate” rule of law on proving causation? More extreme defense arguments on “but for” proof for cancer causation issues are nicely flagged in a press release from the Hollingsworth firm on a recent amicus brief the firm’s lawyers filed with the Texas Supreme Court in an asbestos case known as Bostic. The Bostic case involves issues first addressed by the Texas Supreme Court in an asbestos case known as Flores.

The amicus brief speaks broadly and seeks to cover proof of causation in any cancer case. The brief’s authors include Richard Faulk, who recently  left Gardere to join the faculty at George Mason University and the Hollingsworth firm.

A less extreme defense view on “but for” causations was aired late last year in this post by a defense lawyer, David Oliver, on his blog, Mass Torts: State of the Art. As I explained back then, my take is that defendants need to be careful about what they wish for, and everyone needs more science translated into law by the appellate courts. It will be interesting to see the outcome.

Set out below is the Hollinsgworth press release on the brief it filed for the American Chemistry Council, the American Coatings Association, and the IADC.

“In Bostic v. Georgia Pacific Corp., the Texas Supreme Court will be revisiting its seminal 2007 ruling in Borg-Warner v. Flores, in which the court rejected the “every fiber” theory of causation in asbestos litigation.  Plaintiffs in Bostic falsely contend that by requiring plaintiffs to establish “but for” causation, the Flores decision has led Texas courts to require plaintiffs to trace their injuries back to individual asbestos fibers and make causation all but impossible to prove in cases of concurrent causation. 

In our coalition amicus brief, Hollingsworth LLP demonstrates that the “but for” causation requirement set forth in Flores and the intermediate appellate opinion in Bostic is firmly rooted in Texas jurisprudence.  The amicus brief begins with a historical review of the “elephantine mass of asbestos litigation” that has led to the bankruptcy of 96 companies to date and is projected to continue for another 35 to 50 years.  The brief then reviews the Flores court’s rejection of the “every fiber” theory, explaining that the reasoning there applied in asbestos litigation is fully applicable to mesothelioma cases as well, as shown by similar rulings rejecting no threshold theories in cancer cases involving alleged exposures to benzene, radiation, ethyl oxide, and creosote.  The brief directly rebuts plaintiffs’ argument that asbestos plaintiffs should not be required to establish that their injury would not have occurred without exposure to a particular defendant’s asbestos-containing product, showing that this “but for” causation requirement is set forth in a long line of Texas jurisprudence and is incorporated in the Texas model jury instructions.

Finally, the coalition amicus brief takes aim at plaintiffs’ reliance on “alternative liability” cases like Summers v. Tice, 1999 P.2d 1 (Cal. 1948).  We explain that the Texas Supreme Court squarely rejected the “alternative liability” rule in asbestos personal injury cases in Gaulding v. Celotex Corp., 772 S.W.2d 66, 68-69 (Tex. 1989):

“Gaulding rejected application of Summers because “[a] crucial element to alternative liability is that all possible wrongdoers must be brought before the court.”  Id. at 69.  “When a plaintiff fails to join all possible defendants, alternative liability does not apply.”  Id.

In asbestos personal injury litigation, there almost always are numerous possible defendants not before the court, and plaintiffs also cannot negate the possibility that their mesotheliomas were among the estimated 20-30% that are the result of idiopathic causes unrelated to any workplace or bystander asbestos exposures.” 

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