Second Court of Appeals' Interpretation of Borg-Warner
In a perplexing opinion the Second Court of Appeals affirmed a summary judgment granted in favor of a manufacturer of asbestos-containing joint compound in a mesothelioma case. As we mentioned in our prior posting on this case, the appeal involved the review of the Texas asbestos MDL pre-trial court’s ruling that qualitative testimony of Dorman Smith’s use of a Kelly-Moore product “on a regular basis” was insufficient.
In Rosemary Smith, et al v. Kelly-Moore Paint Company, the appellate court first addressed and rejected plaintiffs’ contention that Borg-Warner only applied to asbestosis cases and did not apply to mesothelioma cases.
Second, in contrast to the pre-trial court’s ruling that plaintiffs’ qualitative evidence was insufficient, the appellate court reviewed the exposure testimony of fact witnesses, the opinions of plaintiff’s expert, and the opinion of a defense expert that opined that Dorman’s cumulative total exposure to asbestos amounted to 9 to 15 fibers/cc years over the course of his career and stated that “the Smiths at least raised a genuine issue of material fact as to the aggregate dose of Kelly-Moore asbestos-containing joint compound (and total asbestos fibers) to which Dorman was exposed.” The appellate court held that “the Smiths raised a genuine issue of material fact as to the Lohrmann factors.”
This holding is puzzling as the Texas Supreme Court made it clear in Borg-Warner that “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.
Next, the appellate court considered whether the total dose of chrysotile asbestos to which Dorman was exposed exceeded a minimum dose above which mesothelioma does not occur. The appellate court refined the issue presented as whether plaintiffs had specific causation evidence for Dorman’s exposure to chrysotile that demonstrated an increased risk of developing mesothelioma. The court reviewed the opinions of plaintiffs’ expert Dr. Maddox that “proof of significant exposure to asbestos dust is proof of specific causation” for mesothelioma and that there is no minimum level of exposure to asbestos “above background levels” below which adverse effects to not occur.
The appellate court noted that the epidemiological studies upon which the experts relied were inconclusive regarding the effect of exposure to only chrysotile fibers and that those were “mixed dust” studies that hypothesized as to the effect of other fiber types to which the workers were exposed. Furthermore the studies that did show an increased incidence of mesothelioma did not attempt to extrapolate any minimum dose of chrysotile to which the populations were exposed. The court dismissed the expert’s reliance on the Selikoff studies which measured the amount of fibers for activities similar to Dorman because those studies failed to correlate the exposure to any incidence of mesothelioma among the subjects. The court then rejected studies by Iwatsubo and Rodelsperger cited by plaintiffs expert because the cumulative exposures in those studies (0.0 and .15 fibers/cc year) failed to provide the minimum dose evidence required under Borg-Warner and neither study differentiated among fiber types.
In conclusion, the appellate court stated that “even though the Smiths raised a fact issue as to the Lohrmann factors (whereas evidence as to those factors was lacking in Stephens), the Smiths’ evidence ultimately suffers the same defect as the plaintiff’s in Stephens: “[w]ithout . . . scientific evidence of the minimum exposure level leading to an increased risk of development of mesothelioma” from exposure to chrysotile-only asbestos, such as that contained in Kelly-Moore’s joint compound, Dr. Maddox’s opinion lacks “the factual and scientific foundation required by Borg-Warner” and, thus, is insufficient to raise a fact issue as to specific causation. Consequently, the appellate court affirmed the summary judgment.
We’ll keep you posted on this case as it works its way up to the Texas Supreme Court.
