Court: Court of Appeals of Texas, Fourteenth District, Houston
In this asbestos action, a Texas Appellate Court reversed and remanded the grant of a no-evidence summary judgment motion as to defendant Howmet Aerospace Inc., f/k/a Arconic, Inc., f/k/a Alcoa, Inc. (“Alcoa”).
The surviving husband and children of decedent Carolyn Burford asserted wrongful death and survival claims against the husband’s former employer, Alcoa, alleging decedent suffered injuries and death as a result of asbestosis caused by her inhalation of asbestos fibers that her husband brought home on his work clothes. In response, Alcoa filed a no-evidence summary judgment motion.
The trial court granted Alcoa’s motion, concluding that there was no evidence of substantial-factor causation. Specifically, the trial court noted that plaintiff’s evidence regarding causation of decedent’s asbestosis did not rise to the level of direct, scientifically reliable proof of causation as required by MerrelDow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), and that plaintiffs “have not and cannot” establish that plaintiff was not exposed to asbestos from some other source. Under Havner and its prodigy, plaintiffs must show that a defendant’s negligence directly caused the disease or that, using epidemiological evidence, there is a doubling of the risk within a 95-percent statistical probability.
On appeal, plaintiffs argued that they provided the trial court with more than a scintilla of evidence constituting direct, scientifically reliable proof of causation and that the alleged dose exposure of asbestos doubled the risk of decedent developing asbestosis. In the alternative, plaintiffs argued that the current causation standard should not apply in an asbestosis case given that the mathematical equation for calculating relative risk in an asbestosis case leads to absurd results. Plaintiffs further argued that if the causation standard does not apply to an asbestosis case, the court should recognize the differences between asbestosis and mesothelioma cases in the causation context and fashion a new test for establishing causation in asbestosis cases.
Regarding proof of causation, the summary judgment evidence included testimony from decedent’s husband explaining (1) the various ways that his work clothes were exposed to dust containing asbestos, (2) how his work clothes were dirty when he returned home from work, and (3) how decedent washed his work clothes separately by shaking them out to remove the loose dust. Plaintiffs also provided expert testimony that concluded decedent was not exposed to asbestos from any other source. Ultimately, the Appellate Court determined that the summary judgment evidence raised a genuine fact issue as to whether Alcoa was the source of all asbestos to which decedent was exposed. Given that, plaintiffs were not required to provide that decedent was not exposed to asbestos from any source other than Alcoa.
Regarding Alcoa allegedly being the sole source asbestos to which decedent was exposed, the Appellate Court determined that it was not necessary for plaintiffs to show that asbestos from Alcoa more than doubled decedent’s risk of suffering from asbestosis. Specifically, “if the dose of asbestos from the defendant in question sufficiently contributed to the aggregate dose of asbestos inhaled by [decedent] from all sources, then the dose from the defendant may be considered a substantial factor in causing [decedent’s] asbestosis.” “If no other party contributed to the aggregate dose of asbestos [decedent] inhaled, then it may reliable and reasonably be concluded that defendant sufficiently contributed to the aggregate dose of asbestos the [decedent] inhaled.”
For the reasons stated above, the Appellate Court reversed the trial court’s grant of summary judgment as to Alcoa and remanded the matter for further proceedings consistent with its opinion.
Read the full decision here.
