A Preview of Bostic Argument?
Last Friday at the Texas asbestos MDL hearings Judge Davidson addressed arguments that preview what may be argued in the Bostic case currently pending in the Supreme Court of Texas.
At the hearing one of the defendants argued in essence that Ford Motor Co. v. Ledesma, a case that defined producing cause in a product liability case, overruled Borg-Warner v. Flores and requires that a plaintiff prove that but-for the defendant’s fiber inhaled by plaintiff, the plaintiff wouldn’t have developed mesothelioma. Ledesma stated that producing cause requires a defendant’s act or omission be a substantial factor in bringing about an injury and without which the injury would not have occurred. Ledesma was not a toxic tort case nor did it involve multi-tortfeasors. The central issue was whether a manufacturing defect triggered an axle displacement and caused the accident or whether the axle detached as a result of an accident. In Ledesma there was a causal chain of events which could be fairly tracked for a determination of which of the actions was or wasn’t a but-for cause.
Judge Davidson disagreed with this interpretation and stated that substantial contributing factor as annunciated by the Supreme Court of Texas in Borg-Warner didn’t require that a plaintiff prove but-for a defendant’s exposure the mesothelioma would not have developed. The proposed interpretation would require that but-for causation in asbestos cases must be shown by proving that a defendant’s product was a link in the actual chain of causation, i.e. the fiber that started or actually contributed to uncontrolled cell growth.
We believe the Supreme Court of Texas may reach the same result if it grants the petition for review in Bostic. Strict but-for causation is simply not possible in a classic Summers v. Tice, multi-tortfeasor scenario. The high court in Borg-Warner clarified that in those situations which often arise in asbestos cases you need to examine the risk imposed on the plaintiff by the defendant’s conduct. Because in a toxic tort case with multiple exposures, it is practically impossible to determine which fiber or set of fibers are in the actual causal chain, risk becomes a proxy for cause. A but-for cause can then be proven by showing that an exposure increased the plaintiff’s risk to a point that it was likely a but-for cause. This is done in the first instance by quantifying the dose of exposure through an industrial hygienist. However, that is not the end of the inquiry. The Supreme Court of Texas in Borg-Warner also recognized that a defendant’s conduct must have been a substantial factor, which is shown by evidence that the risk imposed on the plaintiff by the defendant’s conduct was itself substantial.
Ledesma is of course important. An exposure must be a but-for cause, however, in toxic torts with multiple exposures, a strict factual set of causal links is pragmatically impossible. Risk has long been the proxy and should continue to be the necessary proxy.
