Bostic Asks For A Rehearing And "But For" Causation Takes Center Stage

Kudos (despite their being a longtime and bitter foe) to Baron & Budd for doing a masterful job of demonstrating the flawed thinking behind, and absurd results implied by, Georgia-Pacific v. Bostic. As you know, the Texas Supreme Court recently denied Bostic's Petition for Review. Now Bostic has filed a Motion for Rehearing and this time has narrowed her focus to the appellate court's interpretation of "but for" causation. Here's our take.

Five years ago our supreme court authored a real gem in Borg-Warner v. Flores. The opinion recognized that while a plaintiff must prove her asbestos-related illness would not have arisen "but for" the asbestos to which she was exposed, she need not prove which among multiple sources of that exposure was the cause. However, she still had to prove that each source of exposure on which she sought to impose liability was a substantial factor in causing her illness. Because some of the exposures for which liability is nowadays sought to be imposed are very low, the court further required plaintiff to demonstrate not precisely, but rather within a reasonable range, the amount of asbestos to which she was exposed. As the risk imposed is the measure of legal causation, or substantial factor causation, and as dose is the measure of risk, the requirement allowed courts to make informed decisions when deciding, as a matter of public policy, which exposures could fairly result in the imposition of liability and which were de minimis and so could not. Then came Bostic.

The appellate court in Bostic decided that the "but for" test applies not to the question of whether the plaintiff's illness was caused by asbestos but to the question of whether each subset of the causative dose was the cause of plaintiff's illness. The problem with the latter formulation becomes clear when you consider its application to any case where there are multiple sufficient causes of plaintiff's injury. When a "but for" causation test is applied in such a case defendant X says "plaintiff can't prove she wouldn't have developed her illness 'but for'  my product because defendant Y would have caused it anyway" and defendant Y turns around and argues that it couldn't have been the "but for" cause of plaintiff's illness since defendant X would have caused it anyway. The result would be that none of the defendants could be found liable no matter how tortious their conduct.

As we've previously written, Texas' supreme court long ago recognized the absurd and unjust results that would follow from applying the "but for" test to each cause within the set of sufficient causes of a plaintiff's injury. It reaffirmed that view in Flores. Anyone interested in sound decision-making down at the courthouse should be hoping that the Texas Supreme Court reconsiders its decision not to look at Bostic. And if you're a big fan of Flores then you'll want Bostic's take on "but for" causation reversed.  Maybe then other courts, like Nevada's Supreme Court which recently decided Flores leans too heavily in favor of defendants, will see it for what it is - not an algorithm that dictates outcomes but rather a way for courts to intelligently draw a line around the outer limit of liability.  A line drawn according to each court's assessment of its impact; purely from a public policy perspective.

Next up: we'll put up a post on Holcomb v. Georgia Pacific, that Nevada Supreme Court opinion referenced above. Preview: as we've been saying for years defendants who run around asking for Lohrmann-esque standards need to think about what they're wishing for.

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