“BOSTIC CAUSATION – TEXAS AND BEYOND” HARRISMARTIN’S MIDWEST ASBESTOS CONFERENCE September 18, 2014 St. Louis, Missouri Kenneth D. Rhodes Gray Reed & McGraw, P.C. 1300 Post Oak Blvd., Suite 2000 Houston, Texas 77056 (713) 986-7000 [email protected] Jason Kyle Beale Karst & von Oiste 19500 State Highway 249 Houston, Texas 77070 (281) 970-9988 [email protected]
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“BOSTIC CAUSATION – TEXAS AND BEYOND”
HARRISMARTIN’S MIDWEST ASBESTOS CONFERENCE
September 18, 2014
St. Louis, Missouri
Kenneth D. Rhodes
Gray Reed & McGraw, P.C.
1300 Post Oak Blvd., Suite 2000
Houston, Texas 77056
(713) 986-7000
Jason Kyle Beale
Karst & von Oiste
19500 State Highway 249
Houston, Texas 77070
(281) 970-9988
Page 2
KENNETH D. RHODES
Gray Reed & McGraw, P.C.
1300 Post Oak Blvd., Suite 2000
Houston, Texas 77056
(713) 986-7146
Ken Rhodes is a seasoned trial attorney with over 25 years of experience. His practice focuses on
cases involving product liability, premise liability, contractor liability, general negligence,
employer liability, business torts, contract disputes, construction defects, employment matters,
insurance disputes, toxic torts including asbestos, silica, welding rod, benzene and mold,
automobile liability and trucking liability. Ken works with clients of all sizes, across a wide variety
of industries, specifically: international, national and regional business institutions, insurers and
individuals. He has represented clients in 15 states, including Texas, Arkansas, California,
Delaware, Florida, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, New York,
Pennsylvania, West Virginia and Wisconsin. Ken serves as National Coordinating Counsel for a
product manufacturer and Regional National Trial Counsel for a premise owner-product
manufacturer.
Ken has an established reputation with the bar, judiciary and clients for honesty, integrity and trial
ability. Throughout the years, he has handled many different types of cases with extensive first
chair trial experience in cases involving wrongful death, personal injuries, property damages,
business interruption losses, product defects, premise liability, contractor liability, contract
disputes and employment matters. Further, he has served as an expert witness in cases involving
insurance coverage, settlement issues and attorney fees.
He was born in Laurel, Mississippi and has resided in Houston, Texas since 1984. Ken and his
wife are the proud parents of three sons. He is actively involved in various community, charitable,
volunteer, sporting and school activities.
Representative Experience Wrongful Death
Handled numerous wrongful death cases obtaining favorable results for clients through
summary judgments, jury verdicts and settlements. Obtained no liability jury verdicts for
product manufacturer-contractor in two wrongful death cases in Hopkins County, Texas.
Obtained defense jury verdicts for product distributor in two cases in Dallas County,
Texas. Obtained defense jury verdicts for product installer-distributor in 11 cases in Milam
County, Texas. Obtained summary judgments for product manufacturer in two wrongful death
cases in Harris County, Texas. Obtained favorable settlements in numerous cases due to proper
case development.
Personal Injury
Handled many personal injury cases based on multiple legal theories including negligence,
negligence per se, strict liability, intentional tort, conspiracy, breach of warranty and gross
Page 3
negligence. Favorable results for clients have been obtained through motions for summary
judgment, jury verdicts and settlements. Obtained favorable jury verdict for product seller-
rebrander in multi-million dollar case in Dallas, Texas. Obtained summary judgment for
product manufacturer in multi-million dollar case pending in Tarrant County, Texas. Obtained
favorable settlements in numerous cases due to proper case development.
Toxic Torts
Successfully represented product manufacturers, contractors, premise owners and researchers
in toxic tort cases pending in multiple jurisdictions throughout the United States based on
asbestos related-injuries. Serves as National Coordinating Counsel for product manufacturer
and Regional Trial Counsel for premise owner-product manufacturer. Obtained favorable jury
verdicts in multiple cases including deceased and living mesothelioma claims, deceased and
living cancer claims and non-malignant disease claims. Obtained summary judgments and
favorable settlements in multiple cases due to proper case development.
Commercial
Represented product manufacturer in breach of contract case pertaining to the construction of
a public water intake facility involving a premise owner, general contractor and component
part manufacturer.
Construction
Obtained voluntary dismissal of subcontractor in residential foundation defect case.
Employment
Successfully defended employee in a case by former employer asserting claims for breach of
non-compete agreement and theft of trade secrets in bench trial in Harris County, Texas.
Obtained summary judgments for three employers asserting the "exclusive remedy defense"
under of the Texas Workers Compensation Act in cases pending in Dallas, Tarrant and Harris
Counties, Texas.
Expert Witness
Testified in deposition and trial as an expert witness on insurance coverage pertaining to
products and non-products coverage in CPR Institute for Dispute Resolution; In the Matter of
the Arbitration between ACandS, Inc. and Travelers Casualty and Surety Co. pending in
Philadelphia, Pennsylvania. Case involved hundreds of millions of dollars of available non-
products coverage.
Retained attorney fee expert in Cause No. 2008-74658; Multi-District Litigation Docket No.
08-0725; In Re: Deep South Crane & Rigging Company – Crane Collapse Litigation; Cause
No. B182-113; Jacqueline Allen, et. al. (Intervenors) v. Deep South Crane & Rigging
Page 4
Investments, LLC, Lyondell Petro Chemical Corporation and Houston Refining LP, et al.
(Defendants); In the 60th Judicial District Court of Jefferson County, Texas. Case involved
crane collapse resulting in 4 wrongful death and 125 injury personal claims.
Arbitrations
Obtained no liability finding in favor of product manufacturer in Cause No. P109-0036-10-00;
USAA Casualty Insurance Company v. Pentair Water Treatment. Case involved property
damages due to alleged product failure.
Obtained no liability finding in favor of product manufacturer in Cause No. P109-00206-11-
00: Maryland Casualty v. Pentair Water Treatment. Case involved property and business
interruption damages due to alleged product failure.
Obtained no liability finding in favor of product manufacturer in Cause No. P109-00177-13-
00; Chubb Group of Insurance Companies v. Pentair Filtration, Inc. Case involved property
damages due to alleged product failure.
Representative Clients
Metropolitan Life Insurance Company, Wilsonart, LLC, Akzo Nobel Paints, LLC,
International Paper Company, Pentair Filtration, Inc., Hoffman Enterprise, Fisk Electric
Company, Howell Instruments, Inc., Southern Exchange Company
Professional Activities, Memberships & Affiliations
State Bar of Texas (Litigation, Consumer, Commercial and Insurance Law Sections)
State Bar of Illinois
Defense Research Institute (Trial Tactics Committee, Product Liability Committee and Toxic
Torts and Environmental Law Committee)
Texas Association of Defense Counsel
Honors
2013-2015 - Selected as The Best Lawyers in America - Product Liability Litigation
Defendants, Personal Injury Litigation-Defendants and Personal Injury Litigation-Plaintiffs.
2008-2014 - Selected as Texas Super Lawyer - Personal Injury Defense-Products.
2004 - Selected as Life Fellow in the Texas Bar Foundation.
1987 - Conferred full membership in the National Order of the Lytae.
1987 - Graduated cum laude from South Texas College of Law.
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JASON KYLE BEALE
Karst & von Oiste
19500 State Highway 249
Houston, Texas 77070
(281) 970-9988
J. Kyle Beale is a 1998 graduate of Baylor Law School, as well as a 2011 LL.M. graduate
(Intellectual Property Law) of The University of Houston Law Center. Mr. Beale is licensed to
practice law in Texas, Illinois, and Pennsylvania. Mr. Beale recently received Board Certification
in Personal Injury Trial Law by the Texas Board of Legal Specialization (TBLS). Board
Certification is a voluntary designation program certifying Texas attorneys in 21 specific areas of
law. Board Certified attorneys must be licensed for at least five years, devote a required percentage
of practice to a specialty area for at least three years, attend continuing education seminars, pass
an evaluation by fellow lawyers and judges, have significant first chair trial experience, pass a 6-
hour written examination.
Mr. Beale has prior experience with personal injury cases, coverage issues, business torts, personal
torts, toxic torts, breach of contract, trade secret, trademark, patent, and FELA and among many
other areas of law. Mr. Beale is also a FINRA certified arbitrator, which allows him to be selected
by claimants and sit as an arbitrator in the resolution of financial and securities disputes. In May
2011, Mr. Beale published an article in the Federal Bar Association Litigation Section newsletter
regarding Chapter 11 preference litigation. Mr. Beale has extensive trial experience in both federal
and state court across the country. In fact, Doug von Oiste and Mr. Beale have taken verdicts in
New York, Missouri, and Texas for Karst & von Oiste clients this year.
MARYANN ZAKI
Gray Reed & McGraw, P.C.
1300 Post Oak Blvd., Suite 2000
Houston, Texas 77056
(713) 986-7248
Ken and Kyle would like to thank Maryann Zaki for her research and efforts in drafting this paper.
Her assistance was invaluable and is greatly appreciated.
Maryann Zaki is an associate at Gray Reed, focusing on litigation matters. Maryann is a graduate
of the University of Houston Law Center, where she graduated Cum Laude, in the top 13% of her
class, and was inducted into Order of the Barons. While in law school, Maryann was named
Candidate of the Year of the Houston Journal of Health Law & Policy, and served as Senior
Articles Editor. Maryann also served as the Vice Chair of Outreach on the University of Houston
Moot Court team, and was a semi-finalist oralist in the Mercer Legal Ethics & Professionalism
Moot Court Competition as well as an oralist in the National Moot Court Competition (NMCC).
Maryann also interned for the Honorable United States District Judge Gray Miller during her final
year of law school.
Page 6
Maryann’s hard work has been rewarded with several scholarships, including the Association of
Corporate Counsel Diversity Scholarship and the Association of Women Attorneys Scholarship.
She is currently a member of the Texas Civil Rights Project, Board of Councilors; American Bar
Association, Minority Trial Lawyer Committee; Houston Bar Association, Communities in
Schools Committee; Association of Women Attorneys (AWA) Houston; State Bar of Texas;
Houston Bar Association; Texas Young Lawyers Association; and Houston Young Lawyers
Association.
Page 7
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 9
II. SUBSTANTIAL FACTOR CAUSATION UNDER TEXAS LAW.................................. 9
A. Borg-Warner Corp. v. Flores.................................................................................. 9
B. Bostic v. Georgia-Pacific Corp............................................................................. 11
III. JURISDICTIONS CITING, ADOPTING, OR REJECTING BORG-WARNER, BOSTIC
AND STEPHENS .............................................................................................................. 15
A. Borg-Warner Corp. v. Flores................................................................................ 15
1. Nevada .......................................................................................................15
2. Ohio............................................................................................................17
3. Pennsylvania ..............................................................................................20
4. Delaware ....................................................................................................22
5. Maryland ....................................................................................................24
6. New York ...................................................................................................25
7. Virginia ......................................................................................................25
8. Kentucky ....................................................................................................27
9. District of Columbia ..................................................................................28
10. Utah ............................................................................................................30
B. Georgia-Pacific Corp. v. Bostic.............................................................................32
1. Pennsylvania ..............................................................................................32
2. Delaware ....................................................................................................32
C. Georgia-Pacific Corp. v. Stephens.........................................................................32
1. Ohio............................................................................................................33
2. Pennsylvania ..............................................................................................33
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3. Delaware ....................................................................................................33
4. Utah ............................................................................................................33
5. California ...................................................................................................33
IV. CHOICE OF LAW ........................................................................................................... 34
A. Offensive Use of Choice of Law.............................................................................34
1. Illinois ........................................................................................................34
2. Missouri .....................................................................................................35
3. Minnesota ...................................................................................................36
4. Massachusetts ............................................................................................36
5. Pennsylvania ..............................................................................................37
V. DIMINISHING JURY TRIALS AND IMPLICATIONS ................................................ 38
A. Texas......................................................................................................................38
B. Nationally...............................................................................................................38
Page 9
I.
INTRODUCTION
The landscape involving asbestos litigation has changed drastically over the last forty (40)
plus years. The earlier plaintiffs tended to be textile workers, insulators, millwrights, pipefitters,
industrial carpenters, and other tradesmen who worked with raw asbestos fibers, and asbestos
containing products such as pipe covering, block, fire proofing and cement, which contained and
emitted significant amounts of respirable asbestos fibers. The manufacturers of these products
asserted various defenses including defenses related to their knowledge or lack thereof at relevant
points in time with respect to the dangers of asbestos exposures. In most cases, the manufacturers
of these products, generally, did not contest the assertion that their products emitted respirable
fibers in quantities sufficient to cause disease, assuming adequate asbestos exposure. As asbestos
litigation progressed, many plaintiffs were tradesmen who did not work directly with asbestos
containing products or did not work with traditional asbestos containing products such as pipe
covering, block, fire proofing and cement.
Many of the defendants that were actively involved in the asbestos litigation in the 1970s,
1980s, and 1990s have filed for protection under the United States Bankruptcy Code. For the last
decade or so, the asbestos litigation has transitioned to lawsuits filed against manufacturers of non-
traditional products which do not emit respirable asbestos fibers in sufficient quantities to cause
an asbestos related disease. The courts have been charged with establishing a causation standard
that balances the interest of plaintiffs’ right to recover against the interest of non-responsible
entities. The precise requirements of causation proof vary from state to state. This paper addresses,
in part, the impact of two (2) Texas causation opinions upon asbestos litigation.
II.
SUBSTANTIAL FACTOR CAUSATION UNDER TEXAS LAW
This section of the paper is a short summary of the relevant Texas cases that have created
the evidentiary road map for proving up substantial causation in asbestos cases in Texas. There are
many resources and previous papers that go into more detail regarding the specifics of each of the
cases listed below. We encourage any attorney dealing with an asbestos case in Texas or a non-
Texas case applying Texas substantive law to research the vast materials available on this subject
and go beyond the brief information contained in this section of the paper. Hopefully this will
provide you a quick overview to get you started.
A. Borg-Warner v. Flores1
The Texas Supreme Court in October 2007 dealt with causation in asbestos cases in Borg-
Warner Corp. v Flores. Borg-Warner (a/k/a the Flores decision), overruled a line of Court of
Appeal cases dealing with asbestos related personal injury and reestablished that Texas law applies
the “substantial factor” analysis in product liability cases, as previously outlined in the Union
Pump case.2 This decision changed asbestos litigation in Texas dramatically.
1 232 S.W.3d 765 (Tex. 2007). 2 Union Pump Co. v. Albritton, 898 S.W.2d 773 (Tex. 1995), abrogated by Ford Motor Co. v. Ledesma, 242 S.W.3d
32 (Tex. 2007).
Page 10
1. The Facts
Mr. Flores was a 66-year old retired brake mechanic. Mr. Flores worked as a brake
mechanic from 1966-2001. He worked with Borg-Warner asbestos containing brake pads from
1972-1975. Mr. Flores performed 5 to 7 brake jobs with Borg-Warner brakes during this time
period. He was exposed to visible asbestos dust from grinding the pads.
Mr. Flores experts were Dr. Dinah Bukowski, a board certified pulmonologist, and Dr.
Barry Castleman, Ph.D. Borg-Warner’s expert was Dr. Kathryn Hale, a board certified
pulmonologist.
After the evidence was presented to the jury, the jury found:
Mr. Flores sustained an asbestos related injury or disease;
Borg-Warner’s (as well as the other three brake defendants) negligence proximately
caused Mr. Flores’s injury or disease;
All four defendants were “engaged in the business of selling brake products”; and
The brakes products had marketing, manufacturing, and design defects, each of
which was a producing cause of Mr. Flores injury or disease.
The jury found Borg-Warner 37% and the other remaining defendants each 21% liable.
They then awarded $34,000 for future physical impairment, $34,000 for future medical care,
$12,000 for past physical pain and anguish, and $34,000 for future physical pain and mental
anguish. The jury also awarded $55,000 in exemplary damages against Borg-Warner. Borg-
Warner appealed the verdict. The Court of Appeals affirmed, holding there was legally sufficient
evidence of negligence and strict liability (specifically legally sufficient evidence to support
causation under both theories) citing the following:
Flores was a mechanic from 1964 to 2001;
as a mechanic, Flores ground new brake pads prior to installation, a process
necessary to minimize “brake squealing”;
the grinding process produced visible dust, which Flores inhaled;
from 1972 to 1975, Flores ground brake pads manufactured by Borg-Warner;
Borg-Warner’s brake pads contained between seven and twenty-eight percent
asbestos by weight;
in 1998, Flores was diagnosed with asbestosis;
Dr. Castleman testified that brake mechanics can be exposed to asbestos by
grinding brake pads, a process which produces “respirable asbestos fibers”;
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Dr. Bukowski testified that “brake dust has been shown to . . . have asbestos fibers”;
and “brake dust can cause asbestosis.”
Borg-Warner petitioned for review arguing, among other things, that a plaintiff claiming
to be injured by an asbestos-containing product must meet the same causation standards that other
plaintiffs do. The Texas Supreme Court heard argument on September 29, 2006 and issued its
opinion on June 8, 2007.
2. Decision
The Texas Supreme Court declined to adopt the Lohrmann, frequency, regularity, and
proximity test, as the standard in Texas because it would not meet the Union Pump “substantial
factor” causation test.3 The Court, stated “we agree, with Lohrmann, that a ‘frequency, regularity,
and proximity’-test is appropriate, but those terms do not, in themselves, capture the emphasis our
jurisprudence has placed on causation as an essential predicate to liability.”
The Court held that a plaintiff must prove the asbestos in a defendant’s product was a
substantial factor in bringing about his disease. Just presenting evidence of “any” or “some”
exposure to asbestos from defendant’s product is not enough. The Court stated “substantial factor
causation, which separates the speculative from the probable, need not be reduced to
mathematical precision. Defendant specific evidence relating to the approximate dose to which
the plaintiff was exposed, coupled with evidence that the dose was a substantial factor causing the
asbestos related disease, will suffice.”
The Court ultimately reversed and rendered on the judgment on Mr. Flores negligence and
strict liability claims because both required proof of substantial factor causation. The Texas
Supreme Court determined that Mr. Flores’ causation evidence was legally insufficient to support
substantial factor causation because there was no evidence dealing with the approximate dose of
asbestos that Mr. Flores was exposed to from working with Borg-Warner asbestos containing
brakes.
B. Bostic v. Georgia-Pacific4
1. Facts
In 2002 Timothy Bostic was diagnosed with mesothelioma. He was 40 years old, and died
of the disease in 2003. Bostic’s relatives, individually and on behalf of Bostic’s estate (Plaintiffs),
sued Georgia-Pacific and 39 other defendants, alleging that the defendants’ products exposed
Bostic to asbestos and caused his disease. Plaintiffs alleged causes of action for negligence and
products liability. Plaintiffs claimed that as a child and teenager, Bostic had been exposed to
asbestos while using Georgia-Pacific drywall joint compound.
Specifically, Bostic helped his father, Harold Bostic, mix and sand drywall compound from
the age of five. Plaintiffs contended that Bostic was also exposed to asbestos from exposure to
Harold’s clothing. Bostic lived with his father until his parents divorced in 1972, when he was 9,
3 Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986); see also supra note 2. 4 320 S.W.3d 588 (Tex. App.—Dallas 2010).
Page 12
and he stayed with his father thereafter on weekends, holidays, and at times during the summer.
Harold testified that he performed drywall work on various projects during the relevant period. He
testified that he used Georgia-Pacific drywall compounds “[l]ike 98% of the time.” Bostic assisted
Harold on projects during the 1967-77 time frame when Georgia-Pacific drywall compound
contained asbestos. Harold testified that he and Bostic used Georgia-Pacific compound “[m]any,
many, many times.” He was able to recall specifically eight projects during the relevant period,
although he thought there were other projects he simply could not recall. Of the specific projects
he could recall, he specifically identified one where Georgia-Pacific compound was used; a job
where he constructed a kit house for a friend. He could not recall whether Bostic was present when
drywall work was done on this project. Bostic could not recall with certainty ever using Georgia-
Pacific drywall products during the relevant 1967-77 period.
The case went to trial in 2006. Plaintiffs offered the testimony of several experts. Dr.
Richard Lemen, an epidemiologist, testified about the history of research linking asbestos in its
various forms to diseases including mesothelioma. Dr. William Longo, a material scientist,
testified about the concentrations of asbestos that would be released into the air by workers
performing typical drywall work. Dr. Arnold Brody, a pathologist, testified regarding asbestos,
including the chrysotile variety used in the drywall compound, as a recognized cause of
mesothelioma and other diseases. Dr. Samuel Hammar, a pathologist, was Plaintiffs’ expert on
specific causation.
Dr. Hammar testified that any asbestos exposure above background levels causes
mesothelioma. He testified that he had not reviewed the deposition testimony of Bostic and Harold.
He reviewed the work history sheets but conceded they did not indicate the duration or intensity
of exposure. Hammar, Brody, and Lemen repeatedly testified that each and every exposure to
asbestos was a cause of Bostic’s disease. Longo conceded that his studies did not attempt to mimic
any one person’s actual exposure to asbestos so he made no attempt to measure Bostic’s actual
aggregate dose assignable to Georgia-Pacific or any other source.
The jury found Georgia-Pacific liable under negligence and marketing defect theories, and
the jury was asked to allocate causation among numerous entities. The jury assessed 25% of the
causation to Knox Glass Company, a former employer who had settled with Bostic, and 75% to
Georgia-Pacific. The trial court signed an amended judgment awarding Plaintiffs approximately
$6.8 million in compensatory damages and approximately $4.8 million in punitive damages.
The verdict was appealed and the court of appeals concluded that the evidence of causation
was legally insufficient and rendered a take-nothing judgment against the Plaintiffs. Subsequently,
the Bostic’s petitioned for review of the court of appeals decision contending the court of appeals
erred in holding that the causation evidence was legally insufficient.
2. Texas Supreme Court Decision5
Following the Flores decision, The Texas Supreme Court agreed (6-3) with the court of
appeals decision that the Plaintiffs failed to offer legally sufficient evidence of substantial factor
causation at trial.
5 Bostic v. Georgia-Pac. Corp., No. 10-0775, 2014 WL 3797159 (Tex. July 11, 2014).
Page 13
The Court concluded that in all asbestos cases involving multiple sources of exposure,
including mesothelioma cases, the standards for proof of causation in fact are the same.6 In
reviewing the legal sufficiency of the evidence:
Proof of any exposure to a defendant’s product will not suffice and instead the
plaintiff must establish the dose of asbestos fibers to which he was exposed by his
exposure to the defendant’s product;
The dose must be quantified but need not be established with mathematical
precision;
The plaintiff must establish that the defendant’s product was a substantial factor in
causing the plaintiff’s disease;
The defendant’s product is not a substantial factor in causing the plaintiff’s disease
if, in light of the evidence of the plaintiff’s total exposure to asbestos or other toxins,
reasonable persons would not regard the defendant’s product as a cause of the
disease;
To establish substantial factor causation in the absence of direct evidence of
causation, the plaintiff must prove with scientifically reliable expert testimony that
the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s
risk of contracting the disease. A more than doubling of the risk must be shown
through reliable expert testimony that is based on epidemiological studies or
similarly reliable scientific evidence;7 and
The Plaintiffs were required to establish substantial factor causation, but were not
required to prove that but for Plaintiff’s exposure to defendant’s product, he would
not have contracted asbestos related disease.
The Plaintiff’s experts, articles relied on, and exposure evidence are summarized below.
Brody, Lemen, and Hammar relied on a report from the “Helsinki Conference” on
asbestos disease which states that while mesothelioma can occur in cases of low
exposure, very low background environmental exposures carry only an extremely
low risk.
Brody also relied on an article by Phillip Landrigan and others finding it “widely
accepted that asbestos fibers, including chrysotile fibers, increase the existing risk
6 The Flores substantial factor standard applied in Mr. Flores’ case, applies to mesothelioma cases because both
diseases (asbestosis and mesothelioma) are dose related. 7 Merrell Dow Pharamaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). In sum, Havner enunciated principles
in toxic tort cases: (1) expert testimony of causation must be scientifically reliable, (2) the plaintiff must establish the
elements of his claim by a preponderance of the evidence, (3) where direct evidence of causation is lacking,
scientifically reliable evidence in the form of epidemiological studies showing that the defendant’s product more than
doubled the plaintiff’s risk of injury appropriately corresponds to the legal standard of proof by a preponderance of
the evidence.
Page 14
of developing lung cancer in proportion to the cumulative exposure that occurred
up to a time 10 years prior to evaluation.
Hammar and Lemen testified that any exposure to asbestos should be treated as a
cause of Bostic’s mesothelioma relying on 1977 report of the Consumer Product
Safety Commission proposing to ban asbestos containing patching compounds.
The article stated “no effect level theoretically may exist, but it has not been
demonstrated. Therefore, there is no known threshold below which exposure to
respirable free form asbestos would be considered safe.”
Lemen discussed 1972 OSHA regulations concerning asbestos exposure standards
which recognized there was “controversy as to the validity of the measuring
techniques” and the controversies concerning the relative toxicity of the various
kinds of asbestos,” but concluded that “it is essential that the exposure (to asbestos)
be regulated now, on the basis of the best evidence available now, even though it
may not be as good as scientifically desirable.”
Lemen testified about his own study regarding full time Chinese asbestos plant
workers who worked over two decades. The study met Havner standards.
Lemen also relied on a study by Frank Stern regarding union plasterers and cement
masons where the authors made reference to another study of drywall construction
which found asbestos fiber concentrations “similar to those measured in the work
environment of asbestos insulation workers who “in yet another study by Irving
Selikoff” “had a sevenfold increased risk of cancer of the lung and pleura.”
Although the study found that the correlation between employment in the trades
and mesothelioma was “not statistically significant.”
Dr. Hammar also testified that Bostic’s exposure while he was employed at Knox Glass
was minimal compared to his exposure from his construction work, but the court determined this
was only conclusory because it was not supported by scientific studies or a scientific attempt to
measure the relative exposures.
The court concluded that because Bostic’s experts did not show, through reliance on
scientifically reliable evidence, that Bostic’s exposure, to Georgia Pacific asbestos containing
products, more than doubled the risk of Bostic contracting mesothelioma, and more specifically,
there was no measurement of an approximate dose at all, that Bostic’s evidence was not sufficient
to prove substantial causation to support his claims against Georgia Pacific.
In fact, the court stated “[s]o far as we can tell, none of the peer reviewed scientific studies
on which Plaintiffs’ experts relied found a statistically significant link between mesothelioma and
occasional exposure to joint compounds comparable to Bostic’s exposure, namely the occasional
exposure of a son helping his father on building renovation projects that were not the primary
occupation of either father or son, and which included drywall work as well as other construction
activities.”
Also, the court clarified that “[i]n Havner, we held that the plaintiff ‘must show that he or
Page 15
she is similar to those in the studies. This would include proof that the injured person was exposed
to the same substance, that the exposure or dose levels were comparable to or greater than those
in the studies. . . and that the timing of the onset of injury was consistent with that experienced by
those in the study.’ Without such a showing, ‘epidemiological studies are without evidentiary
significance.’ While the exposure of those in the study need not exactly match the plaintiff’s,
exposure ‘the conditions of the study should be substantially similar to the claimant’s
circumstances,’ a requirement that was not met.”
The court therefore affirmed the court of appeals decision.
III.
JURISDICTIONS CITING, ADOPTING, OR REJECTING BORG-WARNER, BOSTIC
AND STEPHENS
A. Borg-Warner Corp. v. Flores8
The Texas Supreme Court opinion has been cited in thirty-eight (38) cases nationwide,
thirteen (13) of which are cases from jurisdictions other than Texas. A description of each non-
Texas case is detailed below:
1. Nevada
i. Holcomb v. Georgia Pac., LLC9
Randy Holcomb (“Holcomb”) contracted mesothelioma, a cancer affecting the lining of
the lungs, typically caused by exposure to asbestos. Holcomb worked in the construction industry
in Florida from 1969 through 1973 performing sheetrock work using dry joint compound powder
packaged in paper bags and pre-mixed joint compound packaged in buckets. After a year of
military service, Holcomb moved to Las Vegas, Nevada around 1975, where he resumed
construction work for several years. The construction work in Florida and Nevada required
Holcomb to use Bondex, Paco, Paco Quick Set, Kelly-Moore, Kaiser Gypsum, and Georgia-
Pacific joint compounds. Holcomb did not recall using any particular product on any particular job
or at any particular time, and he could not identify in concrete terms how often his construction
duties encompass joint compound work. However, Holcomb had specific memories of using all of
the brands on a regular basis. Additionally, beginning in 1969 when he moved to Florida and
regularly thereafter, Holcomb worked as a brake mechanic in the automotive industry often
performing these jobs on the side. A lawsuit was filed alleging that these repeated exposures to
joint compounds and brake products caused Holcomb’s mesothelioma and resulting death.
The joint compound and automotive-brake defendants moved for summary judgment on
the grounds that Holcomb’s testimony did not raise triable issues of fact regarding his threshold
exposure to any asbestos contained in their products. The trial court granted summary judgment
concluding that Holcomb had failed to submit sufficient evidence of exposure to allow a jury to
8 232 S.W.3d 765 (Tex. 2007). 9 289 P.3d, 188, 195 (Nev. 2012).
Page 16
find that the defendants’ products were substantial factors in causing his mesothelioma. The trial
court certified its orders granting summary judgment as final thus, appeal followed.
The court held that while medical causation was not at issue, Holcomb had to demonstrate
that a particular defendant sufficiently exposed him to asbestos in order to establish adequate
causation to hold that defendant liable.10 The court noted that “[g]iven the often lengthy latency
period between exposure and manifestation of injury, poor record keeping, and the expense of
reconstructing such data, plaintiffs in asbestos litigation typically are ‘unable to prove with any
precision how much exposure they received from any particular defendant’s products.’”11 The
court found that “[t]o remedy this situation, which could unfairly deny deserving plaintiffs in
asbestos cases any recovery, courts have fashioned a variety of causation standards in an attempt
to balance the interest of plaintiffs with the interest of nonresponsible defendants.” Id. As a result,
the precise requirements of proof causation varies from state to state.
The court noted that “Nevada has not articulated any particular causation standard in
asbestos cases for determining whether a mesothelioma is sufficiently caused by exposure to a
defendant’s products.” Id. Therefore, the court “consider[ed] the causation standards used in three
(3) preeminent asbestos litigation cases: (1) the California Supreme Court’s ῾exposure-to-risk’ test
of Rutherford v. Owens–Illinois, Inc., 941 P.2d 1203, 1206 (1997); (2) the Texas Supreme Court’s
‘defendant-specific-dosage-plus-substantial-factor’ test in Borg–Warner Corp. v. Flores, 232
S.W.3d 765, 773 (Tex. 2007); and (3) the Fourth Circuit’s ‘frequency, regularity, proximity’ test
set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir.1986).” The
court concluded that:
in protecting the manufacturer, the Flores causation test swings too far beyond Rutherford
to the point where it overburdens the claimant, who might not be able to sufficiently
demonstrate not only the dosage quantity of exposure to a particular defendant's product
but also the total asbestos dosage to which he was exposed. We conclude that the Flores
application of the “substantial factor” test is too stringent. Id. at 773. Instead, we are
persuaded by the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986),
“frequency, regularity, proximity” test, as applied in mesothelioma cases. See Gregg v. V–
J Auto Parts, Inc., 596 Pa. 274 (2007). “The majority of the federal circuits and state courts
addressing this question have chosen to apply the Lohrmann test to determine whether the
plaintiff has satisfied his burden of showing that a specific defendant’s products caused his
disease.12
Under the Lohrmann test, the court held that Holcomb raised inferences of probable
exposure as to defendants Kelly-Moore, Kaiser Gypsum, and Georgia-Pacific, sufficient to defeat
summary judgment as to those respondents, but not as to Union Carbide. The summary judgment
was therefore reversed in part and the matter was remanded for further proceedings.
10 Id. 11 Id. at 193. 12 Id. at 195 (emphasis added).
Page 17
2. Ohio
i. Byers v. Lincoln Elec. Co.13
This case was one (1) of approximately twenty-six hundred (2,600) pending cases that are
part of In Re Welding Fume Products Liability Litigation, MDL No. 1535. Eddie Byers (“Byers”),
was raised in Texas and was forty-eight (48) years old, at the time of the lawsuit. Byers’ father
was a welder who taught Byers to weld when he was a young boy. As Byers grew older, he helped
his father on welding jobs during the summer, and eventually became a welder himself in 1978,
when he was seventeen (17) years old. Byers worked as a welder for various employers while
living in Texas until 1997. He then moved to Alabama and continued to work as a welder until
2003. Byers then quit welding because he could no longer perform the physical requirements, due
to Manganese-Induced Parkinsonism. Byers used welding consumables produced by a variety of
manufacturers. He did not have a precise recollection of which manufacturers’ welding rods he
used at each job location, the number of job sites, and the number of different welding rod products
he used.
Byers named ten (10) welding rod manufacturers as defendants in his lawsuit, but
voluntarily dismissed one (1) defendant. Byers offered testimony that he was regularly and
consistently exposed to welding rod fumes generated by products manufactured by Lincoln
Electric, Hobart Brothers, and ESAB Group, while offering vague and inconsistent testimony
regarding his use of welding rod products manufactured by BOC Group, TDY Industries, Union
Carbide, Eutectic, Sandvik, and Westinghouse Electric. However, the evidence was undisputed
that Lincoln Electric, Hobart Brothers, and ESAB Group supplied the overwhelming majority of
the welding rod products that Byers used during his career. Each of the nine (9) defendants moved
for summary judgment challenging the sufficiency of Byers’ specific causation and evidence.
Texas substantive law applied to this case.
In their motions for summary judgment, the defendants argued that Mr. Byers’ could not
prevail at trial because he had insufficient evidence regarding: (1) what level of exposure to
welding fumes, if any, caused his neurological injury; and (2) whether Byers was exposed to fumes
from each individual defendant’s products at that level. The defendants cited to Borg-Warner
Corp. v. Flores,14 and Georgia-Pac. Corp. v. Stephens15 to support their arguments. The court held
that Borg-Warner mandated that Byers provide more than just the information required by
Lohrmann; he had to also “provide evidence related to the ‘quantitative information [of his
exposure] necessary to support causation under Texas law.’” The court noted that “[w]hile this
quantitative information need not be mathematically precise, it must be sufficiently finespun to
allow a jury to determine: (1) the quantity of manganese fume to which Byers might have been
exposed, (2) whether that amount was sufficient to cause neurological injury, and (3) whether the
amount of exposure attributable to each defendant was a substantial cause of that alleged injury.”16
Byers produced the following summary judgment evidence:
Threshold Limit Values (“TLV”) promulgated by the American Conference of
13 607 F. Supp. 2d 840 (N.D. Ohio 2009). 14 232 S.W.3d 765 (Tex. 2007). 15 239 S.W.3d 304 (Tex. App.—Houston [1st Dist.] 2007). 16 Byers v. Lincoln Elect. Co., 607 F. Supp. 2d at 861.
Page 18
Governmental Industrial Hygienists and Permissible Exposure Limits (“PEL”)
promulgated by the Occupational Safety and Health Administration. Manganese
Welders who are exposed to manganese fumes at levels above the TLV or PEL are
not guaranteed to suffer adverse health consequences; however, such exposures are
unsafe and make adverse health consequences more likely;
Minutes from a 1994 meeting of the American Welding Society stating that “if the
TLV is lowered to 0.2 milligrams per cubic meter, then the overall welding fume
limit . . . would be exceeded in most work place atmospheres”;
1995 letter directed to the Ferroalloys Association arguing against the reduction of
the TLV because “approximately 50% [of Caterpillar welders] would be over[-
]exposed to manganese at [a TLV] of .02” milligrams per cubic meter;
OSHA audits of various worksites around the country indicating that welders are
experiencing manganese exposure in excess of the legal limits;
Byers’ testimony pertaining to particular welding experiences during his life long
career including long hours, enclosed areas, lack of respirators, working next to
other welders; and
Byers’s industrial hygiene expert opinion that, when assessed against the
generalized evidentiary background established by the evidence, these
circumstances leave no doubt that Byers has, over his twenty-seven (27) year
welding career, experienced exposures to manganese at various concentrations
depending on the specific work, and at levels that exceeded historical and current
regulations, and guidelines.
The court found that Byers offered sufficient evidence addressed to survive the summary
judgment motions filed by Lincoln Electric, Hobart Brothers, and ESAB Group, while the motions
for summary judgments were granted as to the other six (6) defendants. This case went to trial
before a jury on November 3, 2008 and the jury returned a verdict in favor of the defendants.
ii. Cooley v. Lincoln Elec. Co.17
Cooley v. Lincoln Elec. Co., was a product liability action that was brought by Curt and
Nancy Cooley (“Plaintiffs”) against four (4) manufacturers of welding rods due to Curt Cooley’s
(“Cooley”) contraction of manganese poisoning.18 The case was transferred to In Re Welding
Fumes Product Liability Litigation-MDL No. 1535. The case proceeded to trial under Iowa law.
The jury returned a verdict finding defendants’ liable for compensatory damages of $1.25 million
and punitive damages of $5 million.
The facts of the case were as follows: Cooley was born in 1951. He learned how to arc
weld from his father when he was sixteen (16) years old. After he graduated from high school in
1969, Cooley took a one (1) year course on automobile body repair at a vocational school and
received his first formal welding instruction. Throughout the 1970s, he worked in various
automobile body shops. The body shops routinely used arc welding to repair cars and welding was
17 776 F. Supp. 2d 511 (N.D. Ohio 2011). 18 Manganese is a heavy metal contained in welding consumables such as welding rods and wires.
Page 19
part of Cooley’s job. In 1979, Cooley made a career change and entered the ironworking trade,
where he continued to weld as part of his job. He was a union ironworker until the late 1980s,
when he went back to the automobile body business for a few years. He returned to ironworking
in 1990, and spent the rest of his working life in that trade. He retired in 2004. Further, Cooley
welded outside of work as he occasionally bought wrecked cars and repaired them in his garage,
and over the years, did artwork with metal that required welding.
At trial, Cooley’s expert industrial hygienist, Dr. David Kahane, opined that “there’s no
question in my mind that Cooley was overexposed [to manganese] above 0.2 [TLV] during his
career for sure.” The defendants’ medical expert, Dr. Watts, however testified “there is no known
safe level of exposure to manganese, and that damages due to exposure is cumulative.” Witnesses
in the case did not testify regarding an aggregate or defendant specific dose of manganese.
Although the defendant quoted to Byers v. Lincoln Elec. Co.19 in support of its argument
that Cooley’s exposure was insufficient, the court held that “[i]n Byers . . . the Court was
applying Texas law, and, specifically, the very stringent test set forth in Borg–Warner Corp.
v. Flores, 232 S.W.3d 765 (Tex. 2007). See Julie Offerman20 (characterizing the Borg–Warner
standard as one of the most stringent in the nation).” Therefore, the court held that
“[a]ccordingly, much of the Court’s analysis in Byers [wa]s not applicable here” as Iowa, not
Texas, substantive law governed the case.
In Lovick, the Iowa Supreme Court explained that in Iowa, a “plaintiff in a products liability
action must established a causal relationship between the alleged negligence and injury . . . this
requires a showing that the manufacturer’s conduct was a substantial factor in the injury.”21
Further, in City of Cedar Falls, the Iowa Supreme Court fleshed out the meaning of “substantial
factor” as follows:
“On this issue, we look to the proximity and foreseeability of the harm flowing
from the actor’s conduct. If looking back from the injury, the connection between
the negligence and the injury appears unnatural, unreasonable, and improbable in
light of common experience, such negligence would be remote rather than
proximate cause. If, however, by fair consideration of the facts based upon common
human experience and logic, there is nothing particularly unnatural or unreasonable
in connecting the injury with the negligence, a jury question would be created.”22
Considering Iowa law, and upon full review of the evidence adduced at trial, the court
found that there was substantial evidence to support the jury’s conclusion that defendant’s product
was a substantial factor in causing Cooley’s injury.
19 607 F.Supp.2d 840, 860 (N.D. Ohio 2009). 20 “The Dose Makes the Poison”: Specific Causation in Texas Asbestos Cases after Borg–Warner, 41 TEX. TECH. L.
REV. 709, 721–22 n. 118 (Winter 2009). 21 Lovick v. Wil-Rich, 588 N.W.2d 688, 700 (Iowa 1999). 22 Cedar Falls Community School Dist., 617 N.W.2d 11, 17 (Iowa 2000).
Page 20
3. Pennsylvania
i. In re Asbestos Products Liab. Litig. (No. VI)23
Joe Freeman (“Freeman”) was diagnosed with pleural mesothelioma after working thirty-
four (34) years, between 1959 and 1993, at the Du Pont Plant in Orange County, Texas (“Du
Pont”). Freeman worked as a mechanic-in-training for the first four (4) years and then as a
millwright and pipefitter for the remainder of his career. During this time, he alleged that he was
regularly exposed to asbestos from defendants’ products. Freeman filed suit in the United States
District Court for the Eastern District of Texas but the case was later transferred to the United
States District Court for the Eastern District of Pennsylvania (“MDL Court”). Texas substantive
law applied in this case.
Freeman sued numerous parties; however, John Crane and Crane Co. were the only
remaining defendants to not have settled or otherwise been dismissed. With respect to John Crane,
Freeman was exposed to its chrysotile asbestos-containing gaskets and packing while repairing
and replacing pumps. During his career, he replaced “at least 30,000 to 40,000” gaskets, a slight
majority of which were manufactured by John Crane. Further, Freeman cut John Crane sheet
gasket material “maybe ten times a year.” Freeman’s industrial hygienist, Frank Parker, III
(“Parker”), estimated that Freeman’s total quantified dose of asbestos exposure attributable to John
Crane products was .552 fiber-years/cc. With respect to Crane Co., Freeman was exposed to
chrysotile asbestos-containing gaskets and packing while performing work on Crane Co. valves.
He testified that: (1) between 1960 and 1972, he replaced gaskets in smaller Crane Co. valves “at
least three or four times a week”; (2) between 1963 and 1972, he worked on larger Crane Co.
valves “a minimum of once a month”; and (3) between 1960 and 1972, he replaced the packing in
Crane Co. valves “at least once every two months.” Parker estimated that Freeman’s total
quantified dose of asbestos exposure attributable to Crane Co. was 3.606 fiber years/cc.
John Crane and Crane Co., via motions for summary judgment, contended that Freeman
failed to meet the causation standard established by the Texas Supreme Court in Borg-Warner
Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007).24 Satisfying the Flores standard, the court found
that Freeman’s testimony met the Flores requirement that he had been exposed to a specific
product on a regular basis over some extended period of time in proximity to where the plaintiff
actually worked. The court also found that Parker quantified the approximate dose of asbestos
exposure attributable to each defendant.
23 No. 11-60070, 2012 WL 760739 (E.D. Pa. Feb. 17, 2012). 24 First, as outlined in Flores, in order to prove that a defendant’s product was a substantial factor in the contraction
of an asbestos related disease, a plaintiff must establish that he had been exposed “to a specific product on a regular
basis over some extended period of time in proximity to where the plaintiff actually worked.” 232 S.W.3d at 766.
Second, a plaintiff must produce “defendant-specific evidence relating to the approximate dose to which the plaintiff
was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos related disease.” Id.
at 773. Third, “[o]nce a plaintiff has proffered the requisite approximate dose, he or she must compare those doses
with other evidence to show that each defendant-specific dose of asbestos exposure has substantially increased the
chances of contracting the asbestos-related disease.” Id. The Texas Supreme Court has rejected the theory that every
exposure to asbestos was, de facto, a significant cause in developing the asbestos-related disease, holding instead that
there must be evidence establishing a threshold level at which exposure to asbestos significantly increases the risk of
developing the disease. Id.
Page 21
The court next discussed how epidemiology studies are not necessary to prove causation;
however, properly designed and executed epidemiology studies may be part of the evidence
supporting causation. The court further discussed how in Merrell Dow Pharmaceuticals, Inc. v.
Havner, 953 S.W.2d 706 (Tex. 1997), where the Texas Supreme Court established that in order
for epidemiology evidence to be deemed scientifically reliable, the plaintiff must proffer two (2)
or more epidemiology studies that: (1) show a doubling of the risk of contracting the disease in the
exposed population as compared to the unexposed or uncontrolled population which is statistically
significant at the 95% confidence level; and (2) concern subjects which are similar to the
plaintiff including, the exposure to the same substance and similar or lesser exposure or dose
levels than the plaintiff.25
Freeman’s causation expert, Dr. John Maddox (“Dr. Maddox”), in part, relied upon
epidemiology studies. The MDL Court found that Dr. John Maddox’s opinions failed to meet the
difficult Borg-Warner standard. Dr. Maddox opined that “all of Freeman’s nontrivial exposures
to asbestos above background levels were substantial factors in causing the development of his
malignant mesothelioma” and that “[b]ecause asbestos dust is so strongly associated with
mesothelioma, proof of significant exposure to asbestos dust is proof of specific causation.” Dr.
Maddox further opined that, based upon his experience and the vast body of research done on this
topic, it is generally accepted in the scientific community that there is no safe threshold of asbestos
exposure under which exposure does not significantly contribute to the development of
mesothelioma and that “attempts to define any such minimum level of exposure . . . have been
dismissed as ‘logical nonsense.’” Dr. Maddox compared Freeman’s approximated defendant-
specific asbestos doses to the results from the Rödelsperger, et al., Asbestos and Man-Made
Vitreous Fibers for Diffuse Malignant Mesothelioma: Results From a German Hospital-Based
Case Central Study, Am. J. Indus. Med. 39:262-275 (2001) (“Rodelsperger”) and Iwatsubo, et al.,
Pleural Mesothelioma; Dose-Response Relation at Low Levels of Asbestos in a French
Population-Based Case Study, Am. J. Epid. 148(2): 133-142 (1998) (“Iwatsubo”) epidemiology
studies.26
The court held that “[w]hile it is not entirely clear what would be sufficient evidence to
meet the Borg-Warner causation analysis,” it is clear that the opinions of Dr. Maddox and the
epidemiology studies upon which he relied were “insufficient to prove specific causation under
Texas law.” The court held that “Freeman failed to link his approximated defendant-specific
chrysotile dose numbers with a quantified dangers threshold level of chrysotile exposure shown in
two or more epidemiology studies that meet the Havner factors,” and the Rodeslperger and
Iwatsubo epidemiology studies do not sufficiently differentiate between fiber types.
Freeman therefore failed to establish that his approximated doses of chrysotile asbestos
fibers from John Crane’s and Crane Co.’s products were substantial factors in the development of
his mesothelioma, and John Crane’s and Crane Co.’s Motions for Summary Judgment were
granted.
25 Havner, 953 W.S.2d at 718-727. 26 The Fort Worth Court of Appeals in Smith v. Kelley-Moore Paint Co., Inc., 307 S.W.3d 829, 838-839 (Tex. App.—
Ft. Worth, 2010) found these studies lacking for their failure to provide minimum threshold dose and for the failure
to differentiate among fiber types.
Page 22
ii. Betz v. Pneumo Abex, LLC27
In February 2005, Charles Simikian (“Simikian”) commenced a product liability action
against Allied Signal, Ford Motor and others. He alleged that, throughout a forty-four (44) year
career as an automotive mechanic, his exposure to asbestos-containing friction products, such as
brake linings, caused his mesothelioma. Two (2) of the defendants anticipated that Simikian would
rely on expert opinion that each and every exposure to asbestos–no matter how small–contributes
substantially to the development of asbestos-related diseases; referred to as the “any exposure,”
“any breath,” or “any fiber” theory of legal substantial factor causation.28 Seeking to preclude such
opinion testimony, these defendants filed motions challenging its admissibility under the litmus of
general acceptance in the relevant scientific community applicable to novel scientific evidence.29
The defendants contended that the methodology underlying the any exposure theory is novel and
scientifically invalid. Thus, they urged that the any exposure theory should be deemed
inadmissible.
The Court held that: (1) the any-exposure theory was novel scientific evidence and, thus,
subject to a hearing pursuant to Frye v. United States, 293 F.1013 (D.C. Cir. 1923) to determine
its admissibility; (2) at the Frye hearing, manufacturers could address pathologist’s methodology
through the testimony of risk assessors, toxicologists, and epidemiologists on subjects which were
not within the particular expertise of a pathologist; and (3) the trial court did not abuse its discretion
in ruling that the any-exposure opinion was not admissible. The Betz court reiterated its holding in
Summers v. Certainteed Corp., 606 Pa. 294, 309 (2010) where it “rejected the viability of the ‘each
and every exposure’ or ‘any breath’ theory.” The court cited to other opinions where the court
reached a similar holding, including Flores. In a footnote, the Betz court listed “Borg–Warner
Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007) as a case that rejected the any-exposure opinion,
in favor of “[d]efendant-specific evidence relating to the approximate dose to which the plaintiff
was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-
related disease.”).
4. Delaware
i. Smith v. Benjamin Moore & Co.30
Mary Smith filed a lawsuit on behalf of and as the surviving spouse of Phillip Smith
(“Plaintiff”). The suit was against Benjamin-Moore, Sherwin Williams, Akzo Nobel Paints, and
Rust-Oleum Brands (“Defendants”) alleging that, during the course of his employment, Phillip
Smith (“Smith”), was exposed to various benzene-containing “lubricants, cleaners, paints,
paint thinners, paint strippers, solvents, and chemicals” distributed, marketed, and/or
manufactured by Defendants while working as a pipefitter, insulator, and painter for Valero
Energy, Texaco, and as a self-employed painter. Smith developed acute myeloid leukemia which
resulted in his death. Four (4) product identification witnesses were deposed. Each witness could
only provide general, non-specific testimony describing the manufacturer of the products. The
witnesses could not identify a specific product that contained benzene. However, one (1) product
27 615 Pa. 504, 539 (2012). 28 See Generally, Summers v. Certainteed Corp., 606 Pa. 294, 316 (2010). 29 See Commonwealth v. Topa, 471 Pa. 223, 231-33 (1977). 30 No. Civ. A. 09C-07-287BEN, 2012 WL 2914219 (Del. Super. July 18, 2012).
Page 23
identification witness identified Rust-Oleum as a product that Smith used, but could not provide
any further details. Texas substantive law applied in the case. Defendants filed motions for
summary judgment stating that Plaintiff could not satisfy the substantial factor causation
requirements set forth in Borg-Warner Corp. v. Flores, and Georgia-Pacific Corp. v. Bostic.
Plaintiff argued that product identification was the sole issue to be considered. However,
the court reiterated that the “Texas Supreme Court does not address product identification as a lone
concept.” Instead, under Texas law, the Court considers product identification under the
umbrella of causation, specifically, substantial factor causation.31 This is so because Texas
law requires the Court to consider dose. The Texas Supreme Court has noted that dose is the “single
most important factor to consider in evaluating whether an alleged exposure caused a specific
adverse effect.” Thus, to prevail at trial, the court held that Smith was faced with two (2) hurdles
that she had to overcome: (1) produce defendant-specific evidence relating to the approximate
dose of the alleged exposure; and (2) show that the dose was a substantial factor in causing Smith’s
disease. The court stated that “[i]t is not adequate to simply establish that some exposure occurred.
Because most chemically induced adverse health effects clearly demonstrate thresholds. There
must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold
before a likelihood of causation can be inferred.”
While identifying specific products, the court held that the Plaintiff could not prove the
quantity of exposure, and that simply establishing the presence of a defendant’s product is not
sufficient to show an injury. Accordingly, the Defendants’ Motions for Summary Judgment were
granted.
ii. In re Cruz32
After Victor Cruz (“Cruz”) was diagnosed with mesothelioma, Plaintiffs instituted an
action against various defendants they alleged caused Mr. Cruz’s disease by exposing him to
asbestos. Texas substantive law applied to his case. Upon review of the record, the Court agreed
with Georgia-Pacific that the Plaintiffs could not satisfy the Texas substantial-factor causation
standard under Flores. Although Plaintiffs provided epidemiological studies regarding the release
of friable asbestos associated with joint compounds generally, as well as reports addressing the
particular Georgia-Pacific Ready Mix joint compound product at issue in the case, the court found
that the Plaintiffs did not construct the necessary link between this data and any calculation of an
estimated dose particular to Cruz. The Court held that “[b]ecause Mr. Cruz’s deposition offers no
specific information regarding how frequently he assisted his father in construction work, let alone
how frequently he and his father used Georgia-Pacific Ready Mix as opposed to other products
during that work, it offers no basis for a non-speculative approximation of dose attributable to
Georgia-Pacific Ready Mix. Although Flores does not demand mathematical precision, it does
require at least quantitative approximation of dose.”33 The court therefore held that the Plaintiffs
did not meet that standard, and Georgia-Pacific’s Motion for Summary Judgment was granted.
31 Smith, 2012 WL 2914219, at *2. 32 C.A. No. 09C-10-088ASB, 2011 WL 379318 (Del. Super. Jan. 19, 2011). 33 Id. at *1.
Page 24
5. Maryland
i. John Crane, Inc. v. Linkus34
George J. Linkus, Sr. (“Linkus”) was a shipyard worker who, on April 4, 2005, was
diagnosed with pleural mesothelioma. On April 29, 2005, Linkus filed a lawsuit seeking recovery
of monetary damages naming sixty-three (63) entities as defendants. In January and February,
2008, the case was tried before a jury with John Crane, Inc. (“John Crane”) as the sole defendant.
The jury returned a verdict in favor of Linkus.
In 1952, Linkus began working at the Bethlehem Steel-Key Highway Shipyard
(“Bethlehem Steel”) and worked there until 1959. For six (6) to eight (8) months, Linkus worked
on board ships as a helper removing valves from the engine and boiler rooms. When removing the
valves, Linkus removed insulation which created dust. He was in the area when new insulation
was applied by others which created dust. Afterwards, and until 1959, Linkus worked in the
machine shop as a helper, cleaning up and disposing of debris. Ultimately, he became a specialist
on overhauling valves which required him to remove old insulation and install new “wicking or
rope” packing. The wicking and rope came from boxes with John Crane’s name. The wicking and
rope was “dry, white and powdery.” When handled or cut, these products produced “quite a bit of
dust” which according to Linkus “would get . . . all over you.” Linkus’ testimony was confirmed
by a co-worker who worked at Bethlehem Steel from 1940 until 1975. This co-worker observed
Linkus working with John Crane’s rope and wicking on a daily basis and, when handled, Linkus’
co-worker confirmed that these products produced visible dust. Linkus and John Crane stipulated
that the rope and wicking material contained sixty percent (60%) to ninety percent (90%) asbestos.
Linkus offered testimony from the following experts:
Dr. Samuel Hammar, Pathologist: Asbestos fibers are “incredibly tiny” and cannot
be seen with the naked eye. A dust cloud of asbestos fibers, represents “billions and
billions, probably trillions,” of fibers. Mesothelioma is a dose response disease,
meaning that the higher the dose, the higher the risk of developing a disease.
Further, all exposures to asbestos above background level contribute to the
development of mesothelioma.
Dr. Edward S. Gabrielson, Pathologist-Oncologist: Linkus suffers from
mesothelioma caused by asbestos exposure. There is “no recognized threshold
below which there are no mesotheliomas.” OSHA has set some levels whereby it
is believed that there is reasonable safety, but not absolute safety.
Dr. Arnold Brody, Cell Biologist: There is no known level of asbestos exposure that
is safe for mesothelioma.
Dr. Christine Oliver, Internal-Occupational Medicine: John Crane’s rope and
wicking emitted respirable asbestos fibers which were a contributing cause of
Linkus’ mesothelioma.
Dr. John Dement. Industrial Hygienist-Epidemiologist: Asbestos containing dust
34 190 Md. App. 217 (2010).
Page 25
becomes visible to the naked eye when concentrations are in the area of 15-20
billion particles per cubic foot or 45-90 million fibers per cubic meter.
John Crane argued that the “courts are increasingly rejecting sloppy reliance on generalized
expert opinions based on an ‘every fiber counts’ theory of causation.” In the context of proving
this argument, John Crane cited Borg-Warner and its quantitative requirements. The court rejected
the application of Borg-Warner and other related cases, stating that the frequency, proximity, and
regularity tests as articulated in Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179 (1992) was the
appropriate level of proof. Therefore, the court concluded that testimony describing the amount of
dust created by handling the products in question, coupled with expert testimony describing the
dose response relationship and the lack of a safe threshold of exposure above ambient air levels,
was sufficient.35
6. New York
i. In re Ephedra Products Liab. Litig.36
In In re Ephedra, the cases were governed by Texas substantive law. The defendants
argued that Flores entitled them to dismissal of the respective plaintiffs’ claims. The court held
that Ephedra “stands at the opposite end of the spectrum of toxic substances from asbestos. Its
biological effects occur within a few hours after exposure and are short-lived, so that, in studies of
ephedra, subjects were considered no longer exposed 24–72 hours after taking it. Unlike asbestos,
therefore, with ephedra the facts of a case almost always show that one specific product was
ingested within the brief relevant time before a sudden injury like stroke.” The Court therefore
found that the close “temporal proximity between the plaintiff’s stroke and her use of ephedra,
coupled with the general-causation evidence about ephedra’s rapidly acting biological effects (in
contrast to asbestos), permit a jury to infer that the dose [the plaintiff] ingested was sufficient to
be considered a substantial factor in causing her stroke. Accordingly, Borg–Warner [wa]s
inapposite” and the court denied leave to renew the summary judgment motion.
7. Virginia
i. Ford Motor Co. v. Boomer37
James D. Lokey (“Lokey”) died of pleural mesothelioma in 2007. He served as a Virginia
State Trooper for thirty (30) years. Beginning in 1965 or 1966, for approximately seven (7) to eight
(8) years, his duties required that he observe vehicle inspections where mechanics used
compressed air to blow out brake dust to allow for a visual inspection of the brakes. During these
years, Lokey observed vehicle inspections in approximately seventy (70) garages a month, five (5)
to six (6) hours a day, ten (10) days each month. Lokey stood within ten feet (10′) of the inspectors
who were blowing out brake linings with compressed air, and these blowouts were a fairly common
practice in the inspections. Lokey breathed visible dust in the garages. Lokey’s rotations included
supervising inspections at a Ford dealership that were performed on Ford automobiles. He could
35 Id. at 238. 36 No. 04 M.D. 1598 (JSR), 2007 WL 2947451 (S.D.N.Y. Oct. 9, 2007). 37 285 Va. 141 (2013).
Page 26
not identify the brand of brake linings inspected. However, at trial, circumstantial evidence was
presented that Bendix was the likely manufacturer of the brake linings.
Two (2) of Lokey’s experts, Dr. John Maddox and Dr. Laura Welch, testified that
chrysotile asbestos, the type of asbestos found in brakes, can cause mesothelioma. They opined
that the exposure to dust from Bendix brakes and brakes in new Ford automobiles were both
substantial contributing factors to Lokey’s mesothelioma. Further, they opined that there is no safe
level of chrysotile asbestos exposure above background limits in the ambient air. During the trial,
Lokey also testified that he worked as a pipefitter at the Norfolk Naval Shipyard for slightly over
one (1) year in the early 1940s. Dr. David Garabrant, an expert for the defense, testified that people
who worked around asbestos containing brakes are at no higher risk of developing mesothelioma
than those who do not, but noted documented evidence of increased risk for those who worked
around shipyards, both directly with asbestos material and also in the vicinity. Considering all the
evidence presented, the jury found in favor of Lokey’s estate and awarded damages.
Ford Motor and Honeywell International challenged the trial court’s use of the substantial
contributing factor language as contrary to prevailing Virginia law as to causation. The court
discussed the difficulty in understanding what “substantial factor” means. The court held that:
In the last several decades, with the rise of asbestos-based lawsuits, the “substantial
contributing factor” instruction has become prominent in some other jurisdictions.
See, e.g., Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162–63 (4th Cir.
1986) (upholding Maryland's substantial contributing factor standard in an
asbestosis case); Rutherford v. Owens–Illinois, Inc., 16 Cal.4th 953, 67 Cal.Rptr.2d
16, 941 P.2d 1203, 1219 (1997) (approving the substantial contributing factor test
in California); Borg–Warner Corp. v. Flores, 232 S.W.3d 765, 773–74 (Tex. 2007)
(permitting a substantial factor test in a Texas asbestosis case). “Substantial factor”
language was also utilized in the Restatement (First) and Restatement (Second) of
Torts. The “phrase ‘substantial contributing factor’ is not grounded, however, in
the jurisprudence of this Court: we have not, in the history of our case law, ever
invoked this language.
The Court therefore expressed difficulty in understanding what “substantial contributing
factor” was supposed to mean, and decided that a “reasonable juror could be confused as to the
quantum of evidence required to prove causation in the face of both a substantial contributing
factor and a proximate cause instruction.” The Court also stated that the court’s “concerns are
bolstered by the fact that variant definitions have arisen across those jurisdictions invoking
substantial contributing factor language in their asbestos litigation.” The Court considered the
application of various substantial factor tests including the requirements set forth in Flores;
however, declined to adopt the substantial factor requirement as the law of Virginia. Instead, the
Court adopted a blended proximate and concerning cause approach with some quantitative
requirements finding that “in concurring causation cases, the ‘sufficient’-to-have-caused standard
. . . is the proper way to define the cause-in-fact element of proximate cause.” Further, the court
noted, “use of the multiple-sufficient-causes approach remains appropriate whether the concurring
causes are all tortious in nature or whether some are innocent.”38
38 Ford Motor Co. v. Boomer, 285 Va. at 158.
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8. Kentucky
i. Cardinal Indus. Insulation Co., Inc. v. Norris39
Charles Norris (“Norris”) was employed by Rohm & Haas at its Louisville facility from
1967 until 1999. He performed a variety of jobs requiring him to work in many parts of the 120
acre facility. This facility was originally constructed and operated by the federal government
during and after World War II. The original construction incorporated a substantial amount of
asbestos. Rohm & Haas acquired this facility round 1960 and soon undertook its renovation. In
the 1960s, asbestos was still commonly used for purposes of insulation, and such products were
used in this renovation. There was uncertainty pertaining to who installed the asbestos insulation
used in the original World War II construction. Louisville Insulation Company installed Johns-
Manville’s products in the 1960s when the facility was renovated. Cardinal Industrial Insulation
(“Cardinal”) installed asbestos products from Phillip Carey and Johns-Manville in the late 1960s
until around 1973. Both Garlock Sealing Technologies (“Garlock”) and John Crane, manufactured
asbestos containing gaskets or packing materials installed in the facility’s machinery, pipe, valves,
and flanges.
Norris’ employment at Rohm & Haas exposed him to asbestos. After he contracted
malignant mesothelioma and died, his wife and estate brought a lawsuit against thirteen (13)
defendants. Third-party practice brought in two (2) additional parties, Norris’ employer Rohm &
Haas and Johns-Manville. Trial was commenced against four (4) defendants including Cardinal,
John Crane, Garlock, and Scientific Design. The trial court granted a directed verdict in favor of
Scientific Design. The jury found Cardinal, Johns-Manville and Rohm & Haas liable. Cardinal
appealed and argued that the jury’s verdict against it was based only upon speculation and the
possibility, not the probability, that Norris inhaled asbestos entrained in the air by Cardinal and
therefore that the trial court should have granted a directed verdict or judgment notwithstanding
the verdict. The Court of Appeals agreed.
In its discussion, the court held that “[a]sbestos litigation nationally has generated a variety
of causation tests attempting to achieve this difficult task” of “balancing the ‘needs of the plaintiff,
by recognizing the difficulties of proving contact, with the rights of the defendant-to be free from
liability predicated upon guess work.’” The court then discussed case law of different jurisdictions
discussing causation in the asbestos litigation context. In a footnote of the opinion, the court cited
to “Borg–Warner Corp. v. Flores, 232 S.W.3d 765, 772 (Tex. 2007) (finding that Texas rejected
the frequency-regularity-proximity test of Lohrmann because “proof of mere frequency, regularity,
and proximity is necessary but not sufficient, as it provides none of the quantitative information
necessary to support causation under Texas law.”).
The court adhered to its prior decision in Bailey v. North American Refractories Co.40
where the court reversed summary judgment favoring an asbestos defendant. In Bailey, the court
first considered the “frequency-regularity-proximity test” initially articulated in Lohrmann v.
Pittsburgh Corning Corporation.41 The court found that “this test has been utilized more
39 Nos. 2004-CA-000525-MR, 2009 WL 562614 (Ky. Ct. App. Mar. 6, 2009). 40 95 S.W.3d 868 (Ky. App. 2001). 41 782 F.2d 1156 (4th Cir. 1986).
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frequently than any other, having been adopted in all but three federal circuits, and many of our
sister states.” The court therefore concluded that “Bailey should be understood as re-affirming that
we already have the proper test—the substantial factor test—for determining legal causation, and
even for determining what quantum of evidence is sufficient to overcome a motion for directed
verdict.” In light of this, the court stated that as was done in Bailey, the court had to apply the
substantial factor standard to the evidence, “considering first the evidence as to the range of
asbestos fiber drift caused by Cardinal’s actions, and second the evidence as to Norris’ proximity
to that range.” In doing so, the court found that: “[t]he evidence simply does not support any
reasonable inference that Cardinal’s work was a substantial factor in causing Norris’ disease and
death. While possible, it is simply not probable. In the end, the asbestos defendant, like every tort
defendant, remains entitled to have a causative link proven between that defendant’s specific
tortious acts and the plaintiff's injuries.”
9. District of Columbia
i. Wannall v. Honeywell Int'l, Inc.42
In 2009, a lawsuit was filed in the D.C. Superior Court against thirty-six (36) defendants
alleging that John Tyler (“Tyler”) contracted a pleural mesothelioma which caused his death. The
lawsuit alleged that Tyler’s mesothelioma was caused by exposure to chrysotile asbestos fibers
contained in Bendix automobile brakes manufactured by Honeywell International (“Honeywell”).
In 2010, the case was removed to the United States District Court for the District of Columbia, and
then in 2011, the case was transferred to the Eastern District of Pennsylvania-MDL 875. In
November of 2012, the case was remanded to the United States District Court for the District of
Columbia for trial. The only remaining viable defendants at that time were John Crane and
Honeywell. It was undisputed that Tyler performed shade tree automobile repairs, which to some
extent included brake repairs. However, in dispute, was the precise extent to which Tyler was
exposed to asbestos fibers from Bendix brakes, though he testified in a deposition that he filed and
beveled “hundreds and hundreds” of Bendix brake shoes in his lifetime. Both before and during
the Tyler’s shade tree mechanic work, he was also exposed to asbestos when he served in the
United States Navy and worked as a trades helper at Fort Belvoir in Fairfax County, Virginia.
While the case was pending in the MDL 875, Honeywell moved for summary judgment. The MDL
court denied Honeywell’s Motion for Summary Judgment stating that Tyler’s deposition as well
as the expert testimony established that his exposure to Bendix brakes was a substantial cause of
his mesothelioma. Virginia substantive law applied in this case.
On January 10, 2013, after the case was remanded for trial to the United States District
Court for the District of Columbia, the Virginia Supreme Court issued its opinion in Ford Motor
Co. v. Boomer.43 The Virginia Supreme Court, “[c]onsidering it . . . for the first time,” rejected the
“substantial contributing factor” instruction primarily because “a reasonable juror could be
confused as to the quantum of evidence required to prove causation in the face of both a substantial
contributing factor and a proximate cause instruction.”44 Nevertheless, the court held that a
plaintiff could still recover from a defendant in a multiple-exposure asbestos case if the plaintiff
42 292 F.R.D. 26, (D.D.C. 2013). 43 726 S.E.2d 724 (Va. 2013). 44 Boomer, 736 S.E.2d at 730.
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could prove that a negligent [asbestos] exposure was more likely than not sufficient to have
triggered the harm.”45 On January 28, 2013–less than three (3) weeks after Boomer was decided,
Honeywell filed a motion to reconsider the denial of its motion for summary judgment. Honeywell
argued that summary judgment was appropriate in light of Boomer because the plaintiff “has failed
to provide any specific evidence that [Tyler]’s alleged exposure to Bendix brakes . . . was a
sufficient cause of his injury.” In light of Boomer, the Court granted Honeywell’s motion for
reconsideration.
Tyler offered the following evidence in opposition to Honeywell’s Motion for Summary
Judgment:
Dr. Jerrold Abraham, Pathologist: Dr. Abraham testified, via deposition, that “if
[Tyler] had only that [Navy exposure], that would have been the only cause. If he
had other exposures [i.e., brake exposures] and not that [Navy exposure], those
[brake exposures] would have been the only cause.”
Dr. Markowitz, Medical causation expert.
Dr. Markowitz testified, via declaration, that “[Tyler]’s exposure to asbestos
from Bendix asbestos-containing brake lining–as well as the non-friction
exposures identified in [his] report of November 22, 2011 (Naval and Fort
Belvoir exposures)–are each independently sufficient to cause
mesothelioma in and of themselves.”
Dr. Markowitz testified, in his January 24, 2011 deposition that “I believe
that [Tyler]’s exposures were cumulative, that he had exposures in each of
these settings that was significant and contributed to his over-all exposure,
that his mesothelioma was caused by his cumulative exposure to asbestos”
and that “I don’t believe a threshold has been–such a threshold has been
established [below which asbestos disease, specifically mesothelioma, will
not occur...]” and “[brake dust containing asbestos fibers is a cause of
mesothelioma]. . . .”
The court examined the Boomer decision. The court noted that Boomer mandated a two-
step showing that is required for a plaintiff to demonstrate liability in a multiple-exposure asbestos
case: “(1) what level of exposure is sufficient to cause mesothelioma, and (2) whether the levels
of exposure at issue in this case were sufficient.”46 Further, where a plaintiff has been exposed to
multiple sources of asbestos, each of which is potentially sufficient to cause mesothelioma,
“[e]xcluding other exposures from the pool of multiple sufficient causes will require confident
medical testimony indicating whether the timing of exposure could possibly have caused the
[mesothelioma].”47 The Court held that this construction of Boomer’s discussion fit with the rubric
of case law cited earlier in the Boomer opinion from other states, which had each articulated
“variant definitions” of the “substantial contributing factor language in their asbestos litigation.”
The Court held that:
45 Id. at 731. 46 Id. at 733. 47 Id. at 732.
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Boomer’s statement that comment g’s “dose-related approach to causation is . . .
[not] necessarily appropriate for mesothelioma,” can be construed to mean that
asbestos plaintiffs need not present scientific evidence about the exact dose of
asbestos that would be sufficient to trigger mesothelioma. Under such a
construction, evidence of dosage would be much more precise than the evidence
about a more general “level of exposure [that] is sufficient to cause mesothelioma,”
which Boomer does require. See Boomer, 736 S.E.2d at 732–33. In short, although
Boomer does not require evidence about a specific threshold carcinogenic dose of
asbestos, it does require expert evidence about the “level of exposure [that] is
sufficient to cause mesothelioma,” which must constitute more than an opinion
about heightened “risk” from exposure to asbestos.
In a following footnote, the court stated:
A Maryland case had applied a “frequency, regularity and proximity test” to
determine causation, a California case had defined “substantial contributing factor”
to include any exposure that increased the plaintiff's “risk” of developing cancer,
and a Texas case had held that specific evidence relating to dose was necessary to
determine whether exposure from a defendant was a substantial contributing factor
(citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986)
(applying Maryland law), Rutherford v. Owens–Illinois, Inc., 16 Cal.4th 953, 67
Cal.Rptr.2d 16, 941 P.2d 1203 (1997), and Borg–Warner Corp. v. Flores, 232
S.W.3d 765 (Tex.2007)). Boomer appears to reject the California and Texas
approaches in favor of an approach more similar to that applied in the
Maryland case: more than elevated “risk,” but less than precise dosage.
The court concluded that Dr. Markowitz did not “identify any ‘level of exposure [that] is
sufficient to cause mesothelioma,’ . . . in his February 8, 2013 declaration, but rather only opine[d]
that (1) the decedent’s exposures to asbestos were ‘each independently sufficient to cause
mesothelioma in and of themselves,’ and (2) ‘there has not been established a safe level of
exposure to asbestos below which individuals are not at risk for developing malignant
mesothelioma.’” Therefore, the court held that even if that declaration were admissible, the
medical opinions contained in that declaration would be insufficient to create a genuine issue of
material fact regarding causation under Boomer. Therefore, either with or without Dr. Markowitz’s
declaration, the plaintiff could not create a genuine issue of material fact on the question of factual
causation, and therefore the defendant’s motion for reconsideration regarding its motion for
summary judgment was granted.
10. Utah
i. Smith v. Ford Motor Co.48
On July 15, 2008, Ronnie and Linda Smith filed this asbestos personal injury action in the
Third District Court for the State of Utah. The lawsuit named numerous parties as defendants,
including Ford Motor, which allegedly manufactured asbestos containing products which exposed
48 No. 2:08-CV-630, 2013 WL 214378 (D. Utah Jan. 18, 2013).
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Ronnie Smith (“Smith”) to unknown doses of asbestos for unknown duration. Smith claimed that
he was exposed to asbestos containing Ford brake parts while working as a part time service station
attendant at a full service gas station in Cedar City, Utah from August 1966 to May 1968, a period
of approximately nineteen (19) months. This case was removed to the United States District Court,
District of Utah-Central Division on August 20, 2008. Smith died on November 3, 2009.
In his deposition, Smith testified that he did not know for sure with respect to the number
of times he changed brake pads on Ford vehicles. He may have changed brake pads on Ford
vehicles as many as seven (7) occasions—and on one (1) non-work related occasion in 1963 when
he changed brake pads on his personal Ford automobile. The matter was before the Court on Ford
Motor’s Daubert Motion to Exclude Expert Testimony of Samuel Hammar.
Dr. Hammar’s opinion was based on a theory of causation that has variously been described
as the “every exposure” or “every breath” theory, which holds that each and every exposure to
asbestos by a human being who is later afflicted with mesothelioma, contributed to the formation
of the disease. Ford Motor asserted that his theory was without scientific foundation, that it was
mere speculation designed for litigation, and that it was inadmissible pursuant to Federal Rule of
Evidence 702 and the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.49 The
Court agreed with Ford Motor’s position and found that Dr. Hammar’s opinion was, as a matter
of law, unsupported by sufficient or reliable scientific evidence, data, investigations or studies and
was inadmissible under Federal Rule of Evidence 702. Furthermore, the court held that even if Dr.
Hammar’s opinions were deemed admissible, the Court would exclude the opinions pursuant to
Federal Rule of Evidence 403, because the probative value of such unsupported speculation by Dr.
Hammar would be substantially outweighed by the danger of unfair prejudice, “as well as being
confusing, and presenting a danger of misleading the jury.”
Reaching this conclusion, the Court “agreed with the growing number of published
opinions from other courts that have reached a similar result: that the every exposure theory as
offered as a basis for legal liability is inadmissible speculation that this devoid of responsible
scientific support.” The court held that numerous courts have examined and rejected expert
testimony attempting to assert causation without assessing the dose and held that “every exposure
theory” lacking under Daubert and Federal Rule of Evidence 702. These decisions include Borg–
Warner Corp. v. Flores,50 Georgia–Pac. Corp. v. Stephens,51 and Smith v. Kelly–Moore Paint Co.,
Inc.52 The court thereafter agreed “with the general assessment of these various state and federal
courts that the every exposure theory does not qualify as admissible expert testimony.” The court
concluded that Butler v. Union Carbide Corp.53 “summed up expert testimony regarding the every
exposure theory accurately by stating that an expert’s ‘any exposure theory is, at most,
scientifically-grounded speculation: an untested and potentially untestable hypothesis.’”
Therefore, Ford’s Daubert motion to exclude testimony of Dr. Hammar was granted.
49 509 U.S. 579 (1993). 50 232 S.W.3d 765, 774 (Tex. 2007). 51 239 S.W.3d 304, 321 (Tex. App.—Houston [1st Dist.] 2007). 52 307 S.W.3d 829, 839 (Tex. App.—Fort Worth 2010) 53 310 Ga. App. 21, 43, (2011), cert. denied (Oct. 17, 2011).
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B. Georgia-Pacific Corp. v. Bostic54
The Texas Supreme Court opinion has not yet been cited by any other courts. The Texas
Court of Appeals opinion, however, has been cited four (4) times nationwide, three (3) of which
are cases from jurisdictions other than Texas. A description of each Non-Texas case is detailed
below:
1. Pennsylvania
i. In re Asbestos Products Liab. Litig. (No. VI)55
ii. In re Asbestos Products Liab. Litig. (No VI)56
Rose Taylor (“Taylor”) filed an asbestos personal injury action in the United States District
Court for the Western District of Texas alleging that she developed mesothelioma as a result of
her paraoccupational exposure to asbestos containing products. The case was transferred to the
United States District Court for the Eastern District of Pennsylvania (“MDL Court”). Alcatel
Lucent USA, Inc., the successor in interest to Western Electric Company, Inc., (“Lucent”) was the
only remaining defendant. Lucent filed a Motion for Summary Judgment relying, in part, on
Georgia-Pacific v. Bostic.57 After oral arguments were held, Taylor filed several Motions for
Leave to Supplement the Record in Support of her Response to Lucent’s Motion for Summary
Judgment and to File Supplemental Declarations of Jerry Lauderdale, Dr. Samuel Hammar, and
Dr. Edward Holstein. Texas substantive law applied in this case.
The supplemental declarations of Jerry Lauderdale, Dr. Hammar and Dr. Edward Holstein
“further addressed causation in light of Lucent’s argument relying on Bostic.” Lucent argued that
the supplemental declarations should not be admitted in their entirety because they are
substantially different from the original declarations. The MDL Court found that the declarations
did not contain any substantive inconsistencies; therefore, Taylor’s motions for leave were granted.
In addition, Lucent argued that Taylor’s experts’ opinions were insufficient to establish causation
under Texas law. The court held that argument had no bearing on the issue of whether Mrs. Taylor
could obtain leave to supplement. However, it may have some bearing on the admissibility of
experts at trial or on whether evidence is sufficient to survive a motion for summary judgment but
that question was not presently before the court.
2. Delaware
i. Smith v. Benjamin Moore & Co.58
C. Georgia–Pac. Corp. v. Stephens59
54 320 S.W.3d 588 (Tex. App.—Dallas 2010); Bostic v. Georgia Pacific, No. 10-0775, 2014 WL 3797159 (Tex. July
11, 2014). 55 See supra at paragraph III-A-3-i. 56 No. 09-CV-80 102, 2011 WL 338807 (E.D. Pa. Jan. 31, 2011) 57 320 S.W.3d 558 (Tex. App.—Dallas 2010). 58 See supra at III-A-4-i. 59 239 S.W.3d 304, 321 (Tex. App.—Houston [1st Dist.] 2007).
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Stephens is cited in 11 cases nationwide, 5 of which are decisions are from other states.
1. Ohio
i. Byers v. Lincoln Elec. Co.60
2. Pennsylvania
i. In re Asbestos Products Liab. Litig. (No. VI)61
3. Delaware
i. In re Cruz62
4. Utah
i. Smith v. Ford Motor Co.63
5. California
i. Behshid v. Bondex Int’l, Inc.64
Saeed Behshid, Ph.D. (“Behshid”), sued defendant Bondex International, Inc. (“Bondex”)
for personal injuries as the result of exposure to asbestos while using a joint compound
manufactured by Bondex to seal cracks between drywall. The jury found in favor of Beshid on his
causes of action for strict liability and negligence against Bondex and the five (5) other defendants
on the jury form.
On appeal, Bondex argued that there was a failure of proof because Behshid did not prove
the frequency of exposure, regularity of exposure, and proximity of asbestos coming directly from
the use of Bondex joint compound. The court stated that “[f]or this proposition, Bondex borrows
a test used in other jurisdictions and cites an opinion from a Texas Court of Appeal (Georgia–
Pacific Corp. v. Stephens (Tex. App. 2007) 239 S.W .3d 304).” The court held, however, as
explained in Rutherford, that “this test is not applied in California. California does not require
a specific link to a specific product demonstrating that a plaintiff used that product for a
specific period of time. While the evidence with regard to the frequency of exposure, regularity
of exposure, and proximity of asbestos coming directly from the use of Bondex joint compound
was relevant, it was not mandated.”
On review, the court of appeals found that there was substantial evidence to support the
jury’s findings that Bondex’s joint compound was a substantial factor in causing Beshid’s
mesothelioma, and so the judgment was affirmed.
60 See supra section III-A-2-i. 61 See supra section III-A-3-i. 62 See supra section III-A-4-ii. 63 see supra section III-A-10-i. 64 No. B194789, 2008 WL 2807226 (Cal. Ct. App. July 22, 2008).
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IV.
CHOICE OF LAW
A. Offensive Use of Choice of Law
The offensive use of choice of law may be a technique used by counsel in order to allow a
more favorable state’s law to apply to their case. Courts take into account several factors when
performing a choice of law analysis, namely where the plaintiff’s injury occurred, and which
jurisdiction has the most significant relationship to occurrence and the parties. Below is a
discussion of the choice of law analysis that courts follow in Illinois, Missouri, Minnesota,
Massachusetts, and Pennsylvania.
1. Illinois
i. Gregory v. Beazer East65
“Illinois has adopted the approach found in the Restatement (Second) of Conflict of Laws
when conducting a choice-of-law analysis in tort cases.” This approach centers on “the broad
principle that the rights and liabilities as to a particular issue are to be governed by the jurisdiction
which retains the ‘most significant relationship’ to the occurrence and the parties.”66
Section 6 of the Restatement (Second) of Conflict of Laws provides seven basic principles
for choice-of-law determinations, which include: “(a) the needs of the interstate and international
systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states
and the relevant interests of those states in the determination of the particular issue, (d) the
protection of justified expectations, (e) the basic policies underlying the particular field of law, (f)
certainty, predictability and uniformity of result, and (g) ease in the determination and application
of the law to be applied.”67 To these guiding principles, Illinois courts apply “the concept of the
‘most significant relationship’ formula to discern which state has the most significant relationship
with the parties and the dispute.”
In Gregory v. Beazer East, the court also noted that Section 145 of the Restatement
(Second) of Conflict of Laws further “provides a list of the factual contacts or connecting factors
that the forum court should consider in choosing the applicable law.”68 It states, in pertinent part:
“(2) contacts to be taken into account in applying the principles of section 6 to determine the law
applicable to an issue include: (a) the place where the injury occurred, (b) the place where the
conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation
and place of business of the parties, and (d) the place where the relationship, if any, between the
parties is centered. These contacts are to be evaluated according to their relative importance with
respect to the particular issue.”69
Illinois has also recognized that “[d]epecage is the process of cutting up a case into
65 384 Ill. App. 3d 178, 196-201, (Ill. App. Ct. 2008). 66Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45 (2007). 67 Restatement (Second) of Conflict of Laws § 6(2), at 10 (1971). 68 Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147 (2007). 69 Restatement (Second) of Conflict of Laws § 145(2), at 414 (1971).
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individual issues, each subject to a separate choice of law analysis.”70 This is in line with the
approach taken in Illinois, pursuant to the Restatement (Second) of Conflict of Laws, which
focuses on a “selective issue oriented approach to determine the choice of law for a particular issue
presented” in a cause of action.71
2. Missouri
i. Goede v. Aerojet General Corp.72
In deciding conflict of law issues relative to tort claims, Missouri courts generally adhere
to the “most significant relationship” test set forth in section 145 of the Restatement (Second) on
Conflict of Laws (1971).73 Section 145 of the Restatement provides as follows:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined
by the local law of the state which, with respect to that issue, has the most
significant relationship to the occurrence and the parties principles stated in section
6.
Missouri courts take into account four contacts in applying the principles of section 6 to
determine the applicable law to apply to issues in tort actions:
(1) “the place where the injury occurred,”
(2) “the place where the conduct causing the injury occurred,”
(3) “the domicil, residence, nationality, place of incorporation and place of business of
the parties,” and
(4) “the place where the relationship, if any, between the parties is centered.”74 These
contacts are to be evaluated according to their relative importance with respect to
the particular issue.
As the above section of the Restatement explicitly states, in weighing and interpreting the
choice of law factors set out in section 145, the court must be guided by “the principles stated in
section 6.”75
Moreover, Missouri courts do not apply these factors by “simply counting how many
factors favor a particular state.”76 Instead, courts evaluate the contacts based on their relative
importance to the particular issue. Id. “Different factors may be entitled to more weight in regard
to one issue than in regard to another.” Id.
70 Townsend, 227 Ill. 2d at 161. 71 Townsend, 227 Ill. 2d at 161; see Barbara’s Sales, 227 Ill. 2d at 61 (citing Morris B. Chapman & Associates. Ltd.
v. Kitzman, 193 Ill. 2d 560, 568 (2000), and Esser v. McIntyre, 169 Ill. 2d 292, 297(1996) (stating Illinois has adopted
the approach found in the Second Restatement of Conflict of Laws)). 72 143 S.W.3d 14 (Mo. App. E.D. 2004). 73 See Kennedy v Dixon, 439 S.W.2d 173, 184 (Mo. Banc 1969). 74 Fuqua Homes, Inc. v. Beattie, 388 F.3d 618, 621 (8th Cir. 2004) (citing Restatement (Second) of Conflict of Laws
§ 145 (1971)). 75 Goede, 143 S.W.3d at 26. 76 See Dillard v. Shaughnessy, Fickel and Scott Architects, Inc., 943 S.W.2d 711, 715 (Mo. App. W.D.1997).
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Section 6 of the Restatement provides as follows:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its
own state on choice of law. [Missouri has no such directive]
(2) When there is no such directive, the factors relevant to the choice of the applicable
rule of law include:
(a) “the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relevant interests of
those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.”77
Missouri also recognizes the doctrine of depecage, under which different issues in a single
case may sometimes be decided by the laws of different states.78 “Conflict analysis is made issue
by issue in terms of which state has the most significant relationship to the occurrence and the
parties with respect to that particular issue.”79
3. Minnesota
i. Frankie v. Best Buy Stores, L.P.80
“Minnesota applies a five-factor choice-of-law analysis to determine which state’s law
applies.”81 “The five choice-influencing considerations are: (1) predictability of result; (2)
maintenance of interstate order; (3) simplification of judicial task; (4) advancement of the forum's
governmental interests; and (5) application of the better rule of law.”82
4. Massachusetts
i. Donovan v. Philip Morris USA, Inc.83
In Massachusetts, tort law actions are governed by the law of the state where the injury
occurred unless another state has a more significant relationship to the cause of action.84 In
determining the significance of a state’s relationship to the cause of action, “Massachusetts courts
take a flexible interest-based approach . . . and will consider a wide variety of factors in choosing
77 Restatement (Second) of Conflict of Laws § 6(2), at 10 (1971). 78 Goede, 143 S.W.3d at 25. 79 Thompson v. Crawford, 833 S.W.2d 868, 870 (Mo. Banc 1992). 80 609 F. Supp. 2d 841, 846 (D. Minn. 2009). 81 Id. (citing Schumacher v. Schumacher, 676 N.W.2d 685, 690 (Minn. App. 2004)). 82 Id. See also Faegre & Benson, LLP v. Steven K. Lee, No. A10-852, 2010 WL 5293453 (Minn. Ct. App. Dec. 28,
2010). 83 268 F.R.D. 1, 18 (D. Mass. 2010). 84 Dunfey v. Roger Williams Univ., 824 F.Supp. 18, 21 (D. Mass. 1993).
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the applicable law.”85 These factors include those in the Restatement (Second) Conflict of Laws §
146: (1) the needs of the interstate and international system, (2) the policies of the forum, (3) the
policies of other interested jurisdictions, (4) the protection of justified expectations, (5) the basic
policies underlying the particular field of law, (6) certainty, predictability and uniformity of result,
and (7) ease of applicability. They also include factors proposed by conflict of laws commentators:
(1) predictability, (2) maintaining interstate and international order, (3) simplifying the judicial
task, (4) advancing the interests of the forum, and (5) applying the better legal rule.86
5. Pennsylvania
i. Giovanetti v. Johns-Manville Corp.87
When faced with choice of law questions, Pennsylvania courts have abandoned the rule of
lex loci delicti in favor of a less restrictive approach combining the methodologies of a
“government interest analysis” and the “significant relationship” approach of the Restatement
(Second) of Conflicts § 145 (1971).88 The paramount consideration under this analysis is: the
extent to which one state rather than another has demonstrated, by reason of its policies and their
connection and relevance to the matter in dispute, a priority of interest in the application of its rule
of law.89 As stated in Lewis v. Bayer AG,90 Pennsylvania choice of law analysis entails a
determination of whether the laws of the competing states actually differ. If the laws of the
competing states do not differ, no further analysis is necessary. If a conflict is present,
Pennsylvania courts utilize the approach set forth in the Restatement (Second) of Conflicts §145.91
The relevant inquiry under this standard is not the number of contacts each litigant has with a state,
but the extent to which one state rather than another has demonstrated, by reason of its policies
and their connection and relevance to the matter in dispute, a priority of interest in the application
of its rule of law.
The following factors may be considered in the analysis: (1) the place where the injury
occurred; (2) the place where the conduct causing the injury occurred; (3) domicile, residence,
nationality, place of incorporation, and place of business of the parties; (4) and the place where the
relationship between the parties is centered.92 Furthermore, in reviewing the relative interests of
each jurisdiction in a cause of action, the conflicting interests of each state must be analyzed within
the context of the specific facts at issue in a particular case, and Pennsylvania courts will weigh
their respective contacts qualitatively, rather than quantitatively.93
85 Millipore Corp. v. Travelers Indem. Co., 115 F.3d 21, 30 (1st Cir. 1997) (citing Cosme v. Whitin Mach. Works, Inc.,
417 Mass. 643, 632 N.E.2d 832, 834 (1994)). 86 Millipore Corp., 115 F.3d at 30 (citing Bushkin Associates, Inc. v. Raytheon Co., 473 N.E.2d 662, 669 (1985)). 87 372 Pa. Super. 431, 436 (1988). 88 See Griffith v. United Air Lines, Inc., 416 Pa. 1 (1964). 89 McSwain v. McSwain, 420 Pa. 86, 94 (1966). 90 70 Pa. D. & C.4th 52, 73-74 (Pa. Ct. Com. Pl. 2004). 91 Troxel v. A.I. duPont Institute, 431 Pa. Super. 464, 468 (1994). 92 Laconis v. Burlington County Bridge Commission, 400 Pa. Super. 483, 492 (1990). 93 See Cipolla v. Shaposka, 439 Pa. 563 (1970).
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V.
DIMINISHING JURY TRIALS AND IMPLICATIONS
Since the 1960s, there has been a steep decline in the actual number of civil jury trials and
the number of civil jury trials as a percentage of the cases filed in both state and federal court. It
has since been said that “[c]ivil jury trials are declining. Despite growing numbers of judges,
pending cases, and dispositions, the civil jury system in the United States is . . . ‘vanishing,’ ‘the
sickest organ of a sick system,’ and ‘all but disappeared.’ Commentators decry this as ‘the most
profound change in our jurisprudence in the history of the Republic,’ fearing results from the
disappearance of experienced trial lawyers, to the erosion of democracy.”94
The absolute number of civil trials, either to a jury or bench, continues to decline both in
Texas, as well as nationally. This increases the amount of cases that are ruled upon through the
courts and in reliance on appellate cases which discuss the various standards on proving causation.
A. Texas
Beginning in 2003, Texas began its implementation to dramatic tort reform measures.95 A
major result from this was the reduction in jury trials that soon followed.96 For example, from 1986
to 2008, civil jury trials in Texas state courts fell by 60 percent.97 “Remarkably, [in 2012], only
0.4 percent of civil cases were resolved by a jury or a directed verdict in Texas courts, an amount
lower than the national average.”98
B. Nationally
In 2010, only 2,154 jury trials were commenced in all federal district courts.99
94 Justice Scott Brister, The Decline in Jury Trials: What Would Wal-Mart Do? 47 S. Tex. L. Rev. 191 (2005) (citations
omitted). See also Joseph F. Anderson, Jr., Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament Over the
Demise of the Civil Jury Trial, 4 Fed. Cts. L. Rev. 99 (2010) (“[T]he American jury system is dying. It is dying faster
in the federal courts than in state courts. It is dying faster on the civil side than that on the criminal side, but it is
dying.”). 95 See Tort Reform, OFFICE OF THE GOVERNOR RICK PERRY, available at
http://governor.state.tx.us/priorities/economy/tax_regulatory_reform/tort_reform/ (last visited September 5, 2014)
(“In 2003, Gov. Perry led the effort to pass sweeping lawsuit reforms so that innocent employers could put their money
into job growth rather than damage awards. In 2005, Gov. Perry signed a law cracking down on junk asbestos claims
that were forcing innocent employers into bankruptcy and putting thousands of people out of work. He also signed a
law to prevent trial lawyers from suing restaurants on the charge of obesity-related health problems, and another to
stop venue-shopping which had allowed lawyers to sue dredging companies in hostile forums hundreds of miles away
from the site of their operations.”). 96 Nathan L. Hecht, “The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future,” 47 S. Tex. L.
Rev. 163, 170 (2005), available at http://www.aycocklaw.com/files/16_Hecht_47_S_Tex_L_Rev_163_Hecht.pdf. 97 David Beck, A Civil Justice System with No Trials, Texas Bar Journal (Dec. 2013) (citing Nathan L. Hecht, supra
note 96. 98 David Beck, supra note 97 at 1073 (citing Office of Court Administration, District Courts Activity Detail from Sept.
1, 2011, to Aug. 31, 2012, available at http://www.txcourts.gov/pubs/AR2012/dc/3-ActivityDetail.pdf. See also,
Galanter and Frozena, The Continuing Decline of Civil Trials in American Courts, POUND CIVIL JUSTICE INSTITUE,
available at http://poundinstitute.org/docs/2011%20judges%20forum/2011%20Forum%20Galanter-
Frozena%20Paper.pdf (“Jury trials also reached a new low in 2010 relative to total dispositions, at 0.73%.”). 99 Hon. Randy Wilson, Civil Litigation Trends in One of the Nation’s Largest Counties, 51-AUG Hous. Law 10
(July/August 2013) (citing Galanter and Frozena, supra note 98).
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Astonishingly, this averages to fewer than four civil jury trials per Article III federal judge.100 This
decline in litigation extends to all case types. On average, only about 600 tort cases are tried
nationwide in federal court and about 700 contract cases.101 The percentage of cases that is
terminated by trial continues to fall; only 0.73 percent of civil cases are terminated by trial in
federal court.102
The portion of federal civil cases resolved by trial has fallen from 11.5% in 1962 to 1.8%
in 2002, and there has been a 60% decline in the absolute number of trials since the mid-1980s
when the number of trials began dropping precipitously.103 The number of federal civil dispositions
increased from 50,000 in 1962 to 258,000 in 2002, only 1.8% are disposed of by trial today as
opposed to 11.5% in 1962.104 Further, it is widely acknowledged that the percentage of federal
civil cases currently disposed of by a judgment at trial is about 1.2%.105 The percentage of jury
trials in the state courts is similar.106
While there is no single reason for this decline, the ever increasing costs of trials, the
increased availability of alternative dispute resolution (“ADR”) methods, and clients’ loss of faith
in the jury system have all been contributing factors.107 Further, the rising cost of specialized
lawyers, the need to deploy expensive experts, jury consultants, and all the associated expenses of
trial have priced some parties out of the market.108
100 Id. 101 Id. 102 Id. 103 Tracy Walters McCormack, Christopher J. Bodnar, Honesty is the Best Policy: It’s Time to Disclose the Lack of
Jury Trial Experience, UNIVERSITY OF TEXAS SCHOOL OF LAW PUBLIC LAW AND LEGAL THEORY, No. 151 (2009),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375103. See also Galanter, supra note 98. 104 Galanter, infra note 105 (the actual number of federal civil jury trials has decreased by 5.9%, from 2,765 jury trials
in 1962 to 2,603 jury trials in 2003). For state court data, see id. at 507 (state court data showing that the actual number
of jury trials has decreased from 26,018 in 1976 to 17,617 in 2002, and that the jury trials as a percentage of the state
court dispositions have dropped by 300%, from 1.8% in 1976 to 0.6% in 2002). 105 Hon. Judge Xavier Rodriguez, The Decline of Civil Jury Trials: A Positive Development, Myth, or the End of
Justice As We Know It?, 45 St. Mary’s L.J. 333 (2014) (citing Mark Galanter, The Vanishing Trial: An Examination
of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 462-63 table 1 (2004),
available at www.marcgalanter.net/Documents/papers/thevanishingtrial.pdf (exhibiting the decline in jury trial
dispositions over time)). 106 Hon. Judge Xavier Rodriguez, supra note 105 (citing Galanter, supra note 105 (“The phenomenon is not confined
to the federal courts; there are comparable declines of trials, both civil and criminal, in the state courts, where the great
majority of trials occur.”); see also Mark Curriden, Civil Jury Trials Plummet in Texas, Dallas Morning News (Apr.
2, 2012, 11:23 PM), http://www.dallasnews.com/business/headlines/20120402-civil-jury-trials-plummet-in-texas.ece
(highlighting the one-third decrease in the number of jury trials conducted in Texas state courts since 1996, against
the increase in the number of lawsuits filed during that same time period). 107 Tracy Walters McCormack, Christopher J. Bodnar, Honesty is the Best Policy: It’s Time to Disclose the Lack of
Jury Trial Experience, The University of Texas School of Law Public Law and Legal Theory Research Paper Series
Number 151 (2009); Galanter, supra note 98. 108 Galanter, supra note 105 at 517.
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