Case Law Tort Reform: The New Asbestos Causation Standard That Is Extremely Difficult to Meet
The causation standard set forth by the Texas Supreme Court on June 8, 2007 in their Borg-Warner Corp. v.s. Flores opinion has been adopted in a mesothelioma case which was recently published, on July 26, 2007, by the Texas Court of Appeals for the First District, Houston, cause number 01-05-00132-CV, Georgia-Pacific Corp. v.s. Fred Stephens and Betty Stephens.
The issue in the Stephens’ case was the way in which a plaintiff can prove specific causation in an asbestos case as to his mesothelioma.
The standard for causation — specific causation as to each abestos defendants’ asbestos product causing the plaintiffs asbestosis, asbestos-related disease, or mesothelioma, has been set so high that it will be extremely difficult to overcome it. The test appears to be an Lohrmann plus test standard, and the “plus” seems to require dose reconstruction evidence to prove causation. It has also been described in the Stephens case as a Lohrmann/Havner substantial-factor causation standard. See 2007 WL (West Law) 1650574, at 4-5.
Although, even if you had been wearing an air-monitor when you were exposed to the asbestos products, how could you reconstruct a dose as to each defendants’ asbestos product(s)?
How do you get reasonable quantitative (asbestos fiber counts in the air around Plaintiff) evidence that such exposure increased the risk of developing the asbestos-related injury for events that happened many many years ago, at best? Is this asinine?
By way of analogy, it seems that the Pro Tort Reform Republicans have let the White Witch back into Narnia and it will be winter for a long long time, but never xmas.