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Texas Supreme Court applied unique approach to ‘every exposure’ theory in asbestos cases

By Heather Isringhausen Gvillo | Aug 7, 2014

AUSTIN (Legal Newsline) – While several states across the country have rejected the “every exposure” theory in asbestos cases, the recent Texas Supreme Court Bostic decision stands out due to its “Lohrmann Plus Standard.”

According to Bostic, which was decided on July 11, the court concluded that offering evidence of exposure regarding a dose-related disease alone should not imply automatic liability for asbestos claimants. Rather, plaintiffs must satisfy causation standards for their allegations to survive.

The Bostic court held that the every exposure theory negates the plaintiff’s burden to prove causation by a preponderance of evidence because it accepts that the failure to find a safe dose means every exposure causes the illness, even background exposure.

“If any exposure at all were sufficient to cause mesothelioma, everyone would suffer from it or at least be at risk of contracting the disease,” the court stated.

Typically, courts require the plaintiff to satisfy a substantial factor causation standard, meaning the product was a substantial factor in causing the asbestos-related injury and the exposure was more than de minimus.

In an effort to provide a more thorough definition of what qualifies as substantial factor, the U.S. Court of Appeals for the Fourth Circuit issued the Lohrmann ruling in 1986. As a result, plaintiffs were then required to show frequency, proximity and regularity of exposure.

In other words, a plaintiff must be around the asbestos-containing product often enough and close enough to get sick.

The Lohrmann standard may have been appropriate before the first wave of asbestos bankruptcies because the amphibole asbestos fibers were more potent and involved claimants who had lengthy, concentrated exposures.

However, the standard is considered weak by Texas courts when assessing asbestos cases today, because most current exposure allegations include weaker exposures to less potent chrysotile asbestos fibers that were encapsulated inside metal products.

In an effort to make the causation standard more precise, the Texas Supreme Court released its Flores andHavner decisions, which required plaintiffs to bring quantitative evidence of causation in addition to the qualitative evidence of Lohrmann.

In addition to the frequency, proximity of regularity evidence, plaintiffs are required to show how much of the dose of the defendant’s products was inhaled, as well as studies supporting that the dose is sufficient to cause the asbestos-related disease.

However, the studies must be precise based on the circumstances of the case. For example, if the case involves an auto mechanic who works on brakes, the study must be about other mechanics who work on brakes in the same situations and developed the same asbestos-related disease.

Because of the additional burden of proof on plaintiffs, the new approach was dubbed the “Lohrmann Plus Standard.”

In other words, plaintiffs may be able to meet all of the Lohrmann requirements, but the science needs to show that the claimant could have been injured from the alleged exposure.

The Bostic court held that when proving evidence of causation, the plaintiff’s expert testimony of causation must be scientifically reliable and must include epidemiological studies showing the product more than doubled the plaintiff’s risk of injury.

“An expert’s testimony that brings no more than ‘his credentials and a subjective opinion’ will not support a judgment,” the court held.

Plaintiffs oppose the Lohrmann Plus Standard because studies aren’t available for all alleged asbestos exposures. Most studies are focused on circumstances applicable to millions of claimants rather than thousands, such as exposures aboard Navy ships.

Regardless, Bostic was an extension of the court’s prior decisions, in which the court made it clear that the Lohrmann Plus Standard would apply to all asbestos cases in Texas.

As part of the Bostic decision, three separate opinions were delivered, reflecting the wide range of approaches to the every exposure theory. One opinion was strict, one was relaxed and one was a mix of both.

Justice Don R. Willett delivered the opinion of the court, with justices Nathan L. Hecht, Paul W. Green, Phil Johnson and Jeff Brown joining. They held that plaintiffs must meet the strict Lohrmann Plus Standard.

Justice Debra H. Lehmann dissented from the majority and wrote a separate dissenting opinion, with Justices Jeffrey S. Boyd and John Phillip Devine joining.

“[T]he court turns substantial-factor causation on its head, requiring a toxic tort plaintiff to prove that exposure to a particular defendant’s product was, by itself, the cause of his injury,” Lehmann wrote.

Justice Eva M. Guzman joined in part and dissented in part, providing a separate concurring opinion.

She argues that the majority arrived at the correct conclusion but set the evidence bar too high, and the dissent reached its “implausible” conclusion by neglecting the preponderance standard when proving causation.

The three separate preferences on appropriate causation standards mirror the argument surrounding the every exposure theory in courts across the country.

While Texas has adopted additional, stricter requirements for proving asbestos causation, most courts have found that the Lohrmann standard alone is a reasonable middle ground approach.

Several states have, in fact, rejected the every exposure theory, holding that the idea of “anything goes” is too relaxed and exposure allegations must be held to a higher standard.

In other words, Bostic is the strict approach, the every exposure theory is the relaxed approach and Lohrmann is the middle ground.

Whether other states are preparing to accept the Bostic approach, some are still rejecting the every exposure theory by adopting the Lohrmann standard – because the theory, in general, doesn’t meet the Lohrmann requirements.

At least 13 states have rejected the every exposure theory, holding that sufficient evidence is necessary when establishing causation for a dose-related injury.

The states that have rejected the theory include Texas, Louisiana, Kentucky, Pennsylvania, Virginia, Utah, California, Arkansas, Florida, Washington, Delaware, Mississippi and Tennessee.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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