The End of Toxic Tort Litigation in Texas?

If a plaintiff's cancer was caused by one molecule or one fiber damaging a single cell's DNA causing it to become malignant, and plaintiff was exposed to billions of molecules or fibers from multiple sources, how could he possibly prove that ,"but for" any single source of exposure or subset of exposures, he would not have developed his cancer? As stated, this is the Summers v. Tice problem traditionally resulting in burden shifting rather than dismissal so long as the conduct of each defendant was tortious.

Similarly, if plaintiff's cancer was caused by the cumulative effect of any one of several subsets of exposures from multiple sources, e.g. if three widgets were sufficient to cause cancer and plaintiff was exposed to one widget from each of A, B, C and D, she could never prove that "but for" A's widget she wouldn't have gotten cancer since the widgets of B, C and D were sufficient to have caused it; and the same would be true if she sued B, C or D. Again, the traditional answer to plaintiff's problem, assuming each defendant's conduct was tortious, has been to shift the burden of proof on causation. See Landers v. Texas Salt Water Disposal Co.

Suddenly the 5th Court of Appeals has in essence held that Borg-Warner v. Flores puts the burden of proof of causation back on plaintiff; doing so in a case in which the defendant stipulated so-called "general causation". See Georgia-Pacific v. Bostic. There's essentially no discussion of the rationale for imposing a "but for" causation proof burden on a toxic tort plaintiff nor is the impact of this monumental shift in Texas law even discussed so maybe the court didn't intend such a result. Indeed it did proceed to discuss substantial factor causation even after concluding that a "but for" burden was borne by a mesothelioma plaintiff with the result being that plaintiff's evidence was held insufficient to "provide quantitative evidence of [plaintiff's] exposure to asbestos fibers from [defendant's product] or to establish [plaintiff's] exposure was in amounts sufficient to increase his risk of developing mesothelioma."

So if you establish an increase in risk you've established substantial factor causation and that's the same as"but for" causation?! This case has a lot of lawyers scratching their heads.

It's time for a clearly articulated definition of "substantial factor" and it's time to get rid of the confusing and, in cancer cases, nonsensical "general causation" v. "specific causation" dichotomy. More on that after I get home.

Borg-Warner: Sufficient Cause or Significant Risk?

Williams Kherkher has filed their brief in Bailess v. Kaiser Gysum Company, Inc., et al. on appeal from the MDL court's granting of a summary judgment against their mesothelioma client.  According to the brief at the hearing on the motion for summary judgment the court stated that its ruling would be determined as follows:

This motion is going to be decided straight up on what Borg-Warner says and what Borg-Warner requires... If Borg-Warner requires that the dose from each defendant be enough by itself to be the substantial contributing factor, the motion must be granted.  If Borg-Warner does not require that, then the motion must be denied...

Having granted summary judgment the MDL court apparently settled on the former rather than the latter intrepretation of Borg-Warner.  In my opinion the premise doesn't reflect the true meaning of Borg-Warner.

Texas case law has refined and melded concepts of causality and culpability into a coherent and flexible scheme for determining whether or not liability ought to be imposed for the adverse consequences (negative externalities) of our actions. Essentially, a substantial contributing factor is a "but for" cause resulting from a risk imposed that was more than de minimis. The word "substantial" in "substantial contributing factor" relates, I think, to risk since any candidate cause must we know from Ford v. Ledesma be a "but for" cause and thus no more or less important than any other "but for" cause since without it, or any other such cause, the plaintiff would not have been injured.

The Bailess ruling then appears to impose a requirement that any candidate cause must be shown by plaintiff to be a sufficient cause - in other words, a cause which in and of itself, and without resort to other causes, would have brought about the plaintiff's injury. If so, this change would mark a dramatic shift in our law since in toxic tort cases, as well as in just about any other non-intentional tort case, plaintiff has always been able to recover despite the fact that her injury would not have occurred but for the actions of each of two or more tortfeasors; tortfeasors whose actions were necessary causes but not sufficient causes.  For a good discussion of the difference between sufficient cause and component "but for" causes which collectively produced the injury, see:  www.defendingscience.org/upload/Rothman-Greenland.pdf

I don't think that's where Texas case law is heading.  The question raised by Borg-Warner in a mesothelioma case is not "was defendant's asbestos a cause and if so how big a cause was it" but rather "was the exposure (i.e. the risk) from defendant's product substantial"? In other words, was the risk imposed by defendant's conduct so substantial that it can justly form the basis for liability assuming that it can never be determined which fiber or groups of fibers actually caused the plaintiff's cancer?