Georgia-Pacific's Response in Bostic
It really will be The End of Toxic Tort Litigation in Texas (at least for any case involving multiple sources of exposure) if the Texas Supreme Court adopts the position on substantial factor causation urged by Georgia-Pacific in its recently filed Response in Georgia-Pacific Corporation v. Bostic. Let's hope the court begins and ends its analysis with exposure/risk as Bostic never proved more than a de minimis exposure to Georgia-Pacific's product.
Georgia-Pacific first says about substantial factor causation that the court's Flores opinion requires plaintiff to establish that "but for" his exposure to Georgia-Pacific's product he would not have developed mesothelioma if he's to carry his burden of proving substantial factor causation. To support this argument Georgia-Pacific says that the court adopted section 431 cmt. a (1965) of the Restatement (Second) of Torts when it decided the substantial factor causation issue in Flores. Georgia-Pacific quotes the comment emphasizing "it is not enough that the harm would not have occurred had the actor not been negligent ... [T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff's harm." Georgia-Pacific argues then that "under Flores, to prove substantial factor causation, a plaintiff must prove that the harm would not have occurred "but for" the defendant's conduct."
I think Georgia-Pacific has it wrong. "Substantial factor" causes are a subset of "but for" causes and not the other way around - a vital distinction when we get to what constitutes a "but for" cause in a toxic tort case.
Under the Restatement's formulation (and that of every other court that has put some thought into it) causes that are substantial factors are clearly a subset of all "but for" causes. In essence, some "but for" causes are not "substantial factors" as they are, for whatever reason, beyond the limits of liability. Think for example of Ms Palsgraf's case. If we make a set of all non-trivial "but for" causes of her injury we find within it (a) a running, stumbling passenger; (b) defective fireworks; (c) overly vigorous guards who jostle the passenger; and, (d) an unsecured scale. Remove any one of (a) - (d) and the accident would not have occurred. Each is thus a "but for" cause. However, we know that (c) at least is not a "substantial factor" or "legal cause" or "proximate cause" (depending on your jurisdiction) and thus not all "but for" causes are substantial causes.
Asbestos presents a very different problem. What, according to the parties in Bostic, are the non-trivial members of the set of "but for" causes of Mr. Bostic's mesothelioma? There's only one - (a) asbestos exposure. Asbestos exposure is the "but for" cause.
Now, since the identity of the fiber or group of fibers actually responsible for a plaintiff's disease is unknowable, the questions to be answered are: (a) do you impose liability for every fiber; and, (b) if not, how do distinguish between those for which a jury can reasonably impose liability and those for which they cannot? Flores answered those questions (a) "no"; and, (b) not by requiring that a plaintiff do the impossible - i.e. prove which subset of his asbestos exposure was responsible and that without it he would not have become ill - but rather by requiring that a plaintiff merely prove that the exposure complained of was more than de minimis and to do so not by his expert's ipse dixit but rather by some estimation of the range within which the particular dose fell along with evidence that exposure to such a dose posed more than a de minimis risk. A substantial factor in the toxic tort context in Texas is thus an exposure that was more than de minimis and so one that posed more than a de minimis risk.
Georgia-Pacific then goes even further. It argues that "a plaintiff must show that his exposure to a defendant's asbestos-containing product was sufficient to cause his injury ..." A sufficient cause is a complete cause. In other words, Georgia-Pacific is taking the position that plaintiff must show not only that the dose was more than de minimis but also that the dose for which it was allegedly responsible was sufficient, without any other exposures, to have caused the illness complained of. Think of it this way, if it took 100 fibers to cause mesothelioma and three defendants each exposed a plaintiff to 99 fibers for a total of 297 fibers no defendant could be held accountable because none supplied at least 100 fibers. Combine that with Georgia-Pacific's argument that all sufficient causes must also be "but for" causes and a plaintiff who could prove a defendant's product was more likely than not the cause of his illness would never win so long as there was another sufficient cause of exposure within his set of all asbestos exposures. To so hold the Texas Supreme Court would have to overturn decades of precedent as it has for half a century held that such a rule would make it "impossible for a plaintiff, though gravely injured, to secure relief in the nature of damages through a joint and several judgment by joining in one suit as defendants all wrongdoers whose independent tortious acts have joined in producing an injury to the plaintiff, which, although theoretically divisible, as a practical matter and realistically considered is in fact but a single indivisible injury." Demanding an obviously wronged plaintiff do something that logically cannot be done in order to recover from those undoubtedly at fault doesn't seem very fair and so I'm pretty sure the current Texas Supreme Court won't be overturning Landers.
In the end Georgia-Pacific should prevail because Bostic never proved more than a de minimis risk from Georgia-Pacific's products. That's enough. I just hope the court doesn't buy into those other arguments discussed above because if adopted they'd place insurmountable hurdles between many wrongly and preventably injured plaintiffs and the courtroom.
