A Question for the Court

In 2001, we began assembling evidence for a defense that had long existed in asbestos litigation but was then rarely asserted in Texas cases. New research that had largely gone unnoticed supported the proposition that chrysotile, a type of asbestos used in many products, was not a cause of mesothelioma, a cancer associated with asbestos exposure. Texas law had also stiffened the requirements for proving causation in toxic tort cases. We believed these two developments made the chrysotile defense especially viable in Texas.

Where the defense had been made, it had been made to juries. We set out to put it before the court. A jury argument can be lost on any given day and has to be made again in the next case. A ruling that the causation evidence is legally insufficient disposes of the claim and can be applied again.

We began asserting the chrysotile defense in all our mesothelioma cases. Working with experts in the field, we marshaled the scientific evidence that supported the defense and created presentations that would make the science comprehensible to judges and jurors. We pressed plaintiffs’ experts on the defense and secured admissions from several long-time plaintiffs’ experts that chrysotile was not a proven cause of mesothelioma.

Our motions produced Texas trial court orders excluding evidence that chrysotile causes mesothelioma, and those orders led to summary judgment for our clients. Even when trial judges denied our motions, we successfully argued the defense to juries.

In 2014 the Texas Supreme Court reached the question. In Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 351–53 (Tex. 2014), it applied Havner to mesothelioma claims. Proof of any exposure does not suffice. The dose from the defendant’s product must be quantified, and it must be shown to have more than doubled the risk. The product in that case was a drywall joint compound containing chrysotile.