Court of Appeals of Texas, Fourteenth District, Houston, March 2, 2021
In this instant take-home exposure matter, the trial court granted defendant Union Carbide’s motion for summary judgment and the plaintiff now appeals the trial court’s order. The appellate court affirms the lower court’s decision. In response to Union Carbide’s motion, appellants offered several pieces of evidence including the decedent’s medical records, the deposition of all three of the decedent’s children (Ronda, Michelle, and Royce), Royce’s affidavit, and an expert affidavit from Dr. Richard Cohen.
Royce’s affidavit noted that he worked with and around asbestos drilling mud additives while living with his mother from 1975 to 1979 and in 1986. Royce stated that his mother, the decedent, would wash his work clothes two or three times a week in a small laundry room. She first would shake the asbestos -covered clothes out, which “would create a huge dust cloud in the laundry room.” This evidence established the decedent’s exposure to specific Union Carbide products on a regular basis over an extended period of time in close proximity to where she was working. In other words, this evidence suffices to pass the frequency, regularity, and proximity test. However, Texas jurisprudence requires more than that; it requires quantitative evidence regarding the level of exposure, i.e., “defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos related disease.” Moreover, in cases involving exposure from multiple sources, a plaintiff also must produce evidence of aggregate or cumulative exposure and the ratio or percentage of that aggregate exposure attributable to the specific defendant’s products. Union Carbide argues that appellants’ evidence was lacking in that it did not specifically quantify Janet’s exposure to asbestos from Union Carbide products—the dose amount—and failed to account for the ratio of that exposure to Janet’s aggregate or cumulative exposure to asbestos. Union Carbide thereby challenges both the specific factual statements Royce made regarding Janet’s exposure level and the calculations of their expert, Cohen, based on those statements.
The decedent’s children noted in their deposition that their mother would complain about how dusty Royce’s clothes were and that it was ruining her wash machine. Turning to Dr. Cohen’s affidavit which notes that decedent was diagnosed with mesothelioma in 2005 and her death certificate from 2006 lists mesothelioma as the underlying cause of her death. Cohen highlights details from Royce’s deposition and affidavit about the work he did with the asbestos additives and concludes that Royce “encountered heavy, significant and repeated exposure to airborne asbestos and clothing contamination. Cohen further explained that “mesothelioma is a low dose disease, with no known threshold of asbestos exposure below which there is no risk. Even an exposure below 0.2 fiber-cc/years can be a substantial factor in the development of the disease.” Cohen concluded that Janet’s exposures, as described by her children, “were substantial contributing factors for increasing [her] risk for asbestos -related disease” and, in fact, “more than doubled her risk of developing mesothelioma.” He supported these conclusions by reference to epidemiological studies that he says, show a greater than doubling of the risk of malignant mesothelioma with cumulative asbestos exposures well below the 2.63 f-cc/years experienced by the decedent.
First, the parties disputed which of the six products Royce identified by name as ones he worked with were actually shown to be Union Carbide products. Evidence, of course, showed that Janet was exposed to the same products as Royce when she washed his work clothes. Royce mentioned six asbestos drilling mud additives by name: Flosal, Visquik, Visbestos, IMCO Superbest, IMCO Shurlift, and Super Visbestos. Evidence showed that Flosal was produced by other defendants that are no longer in the lawsuit. Union Carbide does not contest that the appellants timely presented evidence that Visbestos, IMCO Superbest, IMCO Shurlift, and Super Visbestos were Union Carbide products. Union Carbide asserts, however, that the evidence submitted to show that Union Carbide produced Visquik (i.e., Union Carbide’s answers to interrogatories) was untimely filed with the trial court and therefore should not be considered on appeal.
Next turning to Cohen’s affidavit, the court noted that Cohen did not provide copies of one of five studies on which he relied. Cohen cited no studies to support his assertion that “it has been repeatedly and consistently demonstrated in the medical and scientific literature that family members whose sole asbestos exposure resulted from asbestos dust brought into the home on another family member’s clothing have developed mesothelioma.” The court also noted that Cohen failed to account for the fact that not all of the decedent’s exposure to asbestos traced to Union Carbide products.
Therefore, the court noted that the appellants failed to present scientifically reliable expert testimony or epidemiological evidence demonstrating that the decedent’s exposure to Union Carbide asbestos products more than doubled her risk of developing mesothelioma. Accordingly, the trial court did not err in granting summary judgment for Union Carbide.