Court: Court of Appeals of Texas, Fourteenth District, Houston
Carolyn and Frank Burford were married from November 1962 until Carolyn’s death in 2015. While married, Frank Buford worked for Alcoa at its aluminum smelter in Rockdale, Texas. As a potlining helper, Mr. Burford regularly worked with and around asbestos-containing materials. Mrs. Burford (Carolyn, or decedent) washed his work clothing every day for a period of 25 years. In 2006, she sought medical care after developing shortness of breath. Her pulmonologist diagnosed her with asbestosis and she later died of “hypoxic respiratory failure” as a result of the condition.
Mrs. Burford’s estate (plaintiffs) brought this action against Alcoa and other defendants, claiming wrongful death, strict products liability, and negligence per se. They alleged the decedent inhaled large quantities of asbestos fibers as she laundered her husband’s work clothes. Alcoa filed a no-evidence summary judgment motion asserted there was no evidence of substantial-factor evidence. The trial court ruled for Alcoa, finding plaintiffs’ evidence “[did] not rise to the level of direct, scientifically reliable proof of causation as required by Merrell Dow Pharmaceuticals, Inc v. Havner, 953 S.W.2d 706 (Tex. 1997).” Burford v. Howmet Aero, Inc. 2024 Tex. App. LEXIS 1416 [Tex Ct App Feb. 27, 2024, No. 14-22-00417-CV].
The appellate court reversed finding the plaintiffs presented direct, scientifically reliable proof of causation. Plaintiffs asserted the trial court erred because
(1) The Burford parties provided the trial court with more than a scintilla of evidence constituting direct, scientifically reliable proof of causation as required by Havner,
(2) The Burford parties provided the trial court with more than a scintilla of evidence establishing the dose of asbestos that doubles the risk of developing asbestosis, as required by Bostic;
(3) The Bostic causation standard should not apply in asbestosis cases given that the mathematical equation for calculating relative risk in an asbestosis case leads to absurd results; and
(4) If the causation standard set forth in Bostic does not apply to an asbestosis case, this court should recognize the difference between asbestosis and mesothelioma cases in the causation context, fashion a new test for establishing causation in asbestosis cases, and conclude that evidence submitted by the Burford parties satisfies the test.
Burford, 2024 Tex. App. LEXIS 1416 at *10.
The court concluded that plaintiffs could raise a fact issue as to whether asbestos from Alcoa was a substantial factor in causing Carolyn’s asbestosis through
“[D]irect, scientifically reliable proof of causation” [] by presenting (1) evidence that Carolyn was exposed to and inhaled asbestos that came from Alcoa; (2) reliable expert testimony that Carolyn’s exposure to asbestos is the only possible cause of asbestosis; and (3) proof that Alcoa was the source of all the asbestos to which Carolyn was exposed.
Burford, 2024 Tex. App. LEXIS 1416 at *10
The appellate court determined plaintiffs succeeded in raising a genuine issue of fact. Plaintiffs presented reliable expert testimony stating the sole cause of asbestosis was asbestos exposure. Further, plaintiffs submitted nearly 3,000 pages of evidence including deposition transcripts from parties and expert witnesses, the decedent’s death certificate, expert reports, expert affidavits, medical records, and various articles, publications, and reports concerning asbestos. The court found this evidence, combined with critical expert testimony represented more than a scintilla of evidence constituting direct, scientifically reliable proof of causation. As such, it was enough to raise a genuine fact issue as to whether asbestos from Alcoa was a substantial factor in causing the decedent’s death. The appellate court subsequently reversed the trial court’s decision and remanded the case for further proceedings.
Read the full decision here.