A Lone Star State Asbestos Litigation Revival?

laskerfaulkGuest Commentary

by Eric G. Lasker and Richard O. Faulk, partners, Hollingsworth LLP

In one of the most infamous – and remarkably honest – statements in American legal history, plaintiffs’ counsel Richard (“Dickie”) Scruggs once described asbestos litigation as a “search for a solvent bystander.”  When the statement was made, the asbestos litigation behemoth was plainly running amok and most courts had done little to resolve the “elephantine mass” of asbestos litigation clogging the nation’s judicial system.  Company after company turned to bankruptcy to solve a problem that the state courts could not – or would not – address.

Some courts finally recognized ways to use the common law to contain the controversy. In Borg Warner v. Flores, 232 S.W.3d 765 (Tex. 2007), Texas became one of the first states to “draw the line” against claims that “any exposure” to asbestos was capable of causing illnesses – and to require proof that the exposures to each defendant’s product were, in fact, sufficient to cause asbestos-related diseases. Flores required proof that the exposure be a “substantial factor” in causing the illness, and held that  “[d]efendant-specific evidence relating to the approximate dose to which plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease will suffice.” 232 S.W.3d at 773.

This endorsement of “but for” causation was consistent with decades of Texas law – law which has been applied to virtually every type of tort, including product liability. Coupled with legislative reforms, the Flores decision precipitated a remarkable decline in Texas asbestos litigation in Texas.  Flores remains controlling in Texas – but lightning can be seen on the horizon. Continue reading “A Lone Star State Asbestos Litigation Revival?”