Court of Appeals of Texas, First District, Houston, July 13, 2021
The plaintiff, Thelma Mullins, alleged that the decedent, Donald Mullins, was exposed to asbestos while working at ARCO’s petrochemical plant. The plaintiff claimed that the asbestos exposure caused the decedent to develop mesothelioma, which led to his death. The trial court granted a no-evidence summary judgment in favor of ARCO, which the plaintiff appealed.
By way of background, the plaintiff alleged that the decedent had worked at ARCO’s plant from approximately 1967 to 1983 and had been exposed to asbestos-containing products while working there. The plaintiff generally alleged that (1) ARCO and the other defendants knew that the decedent was being exposed to airborne asbestos fibers at ARCO’s plant; (2) the defendants knew that asbestos caused respiratory illnesses, including asbestosis and mesothelioma; (3) the defendants failed to warn the decedent about the risks of asbestos exposure or to protect him from it, and (4) the decedent’s exposure to asbestos at ARCO’s plant caused him to develop mesothelioma, leading to his death. The plaintiff asserted numerous causes of action against ARCO and the other defendants, including the negligence theories of premises liability and gross negligence.
After answering the suit, ARCO filed a no-evidence motion for summary judgment. Among its summary-judgment grounds, ARCO asserted that the plaintiff could produce no evidence regarding the element of causation, an element common to all of the plaintiff’s causes of action. ARCO asserted that proof of causation is an essential element in a negligence/premises liability case. ARCO claimed that the plaintiff “[did] not have the evidence necessary to permit any expert to opine that [the decedent] was exposed to asbestos on any of ARCO’s premises in sufficient quantities to have increased his risk of developing mesothelioma; thus, [the plaintiff had] no evidence to prove specific causation.”
The plaintiff filed a response to ARCO’s motion for summary judgment. In it, the plaintiff stated that she “[did] not bring any claims against ARCO based on strict liability.” She also withdrew all claims against ARCO except those based on negligence theories, which she continued to pursue. The plaintiff’s evidence, offered in response to the motion for summary judgment, included three work history sheets, verified by the decedent under oath in 2002. The work history sheets contained information regarding the decedent’s work history from 1965 to 1983. The information included the location of the decedent’s worksites, the name of his employers, the job duties he had performed, and the type of asbestos materials used at the worksites. In addition, the plaintiff offered the opinions of two experts, including a 2009 letter written by Dr. Jerry Abraham, a pathologist and the affidavit of Dr. David Goldsmith, an occupational epidemiologist.
The trial court granted ARCO’s no-evidence motion for summary judgment without specifying the basis for the ruling. On appeal, the plaintiff presented one issue with four subpoints challenging the no-evidence summary judgment in ARCO’s favor. Among the sub-points raised by the plaintiff was her contention that she presented more than a scintilla of evidence regarding the element of causation. The appellate court noted that its review of the trial court’s decision is de novo and a no-evidence summary judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements.
As ARCO did not dispute general causation, that is, that exposure to asbestos fibers causes mesothelioma, the court focused its analysis on specific causation. The court analyzed if the decedent’s exposure to asbestos at ARCO’s plant proximately caused his mesothelioma according to Borg-Warner Corporation. v. Flores, 232 S.W.3d 765 (Tex. 2007) and Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).
In Flores, the supreme court determined that to establish causation under Texas law, the plaintiff must offer quantitative evidence about his approximate dose of asbestos fibers associated with the defendant from which he seeks to recover. Relying on Dr. Goldsmith’s affidavit, the plaintiff contends that she provided sufficient evidence regarding the decedent’s approximate dose of asbestos fibers. In his affidavit, Dr. Goldsmith stated that “ambient asbestos air pollution can also exist at concentrations on the order of 0.000,001 – 0.000,5 fibers/cc depending mainly on human activity (such as building demolition) affecting the geographic region in question.” As sufficiently establishing the decedent’s dose of asbestos fibers at ARCO’s plant, the plaintiff points to Dr. Goldsmith’s conclusion that the decedent “incurred asbestos exposures that ranged from hundreds to millions of times greater than (and in addition to) ambient pollution levels in even the most polluted areas of the U.S.”
However, the court notes that while mathematical precision is not required in determining dose, a plaintiff must offer an approximate quantum of dose associated with the defendant from whom he seeks to recover. The court found that Dr. Goldsmith’s determination regarding the decedent’s quantum dose of exposure to asbestos fibers at ARCO’s plant was more a guess than an approximation of exposure. By stating that the decedent’s dose “ranged from hundreds to millions of times greater than (and in addition to) ambient pollution levels,” Dr. Goldsmith used a multiplier covering four orders of magnitude (“hundreds to millions of times greater”) and a multiplicand covering two orders of magnitude (ambient asbestos pollution levels, ranging from 0.000,001 – 0.000,5 fibers/cc), thus producing such a wide range of exposure that it is too speculative to be considered the decedent’s approximate dose of asbestos fibers from ARCO’s plant.
The plaintiff was required to offer scientifically reliable expert testimony that the decedent’s asbestos exposure at ARCO’s plant more than doubled his risk of contracting mesothelioma as she was unable to provide any direct evidence of causation. The plaintiff did not offer any doubling-of-the-risk evidence. For this reason, and because she did not offer competent evidence of dose, the appellate court concluded that the plaintiff failed to offer more than a scintilla of evidence of causation, an element required for her negligence theories of recovery. Accordingly, the appellate court ruled that the trial court properly granted ARCO’s no-evidence motion for summary judgment.