COURT OF APPEALS AFFIRMS SUMMARY JUDGMENT IN ASBESTOS-RELATED WRONGFUL-DEATH CLAIM

Last week, the Court of Appeals, Houston, concluded that the plaintiff did not establish that the asbestos exposure was a substantial factor in causing the decedent’s mesothelioma and death.  Thus, the court affirmed the trial court’s grant of summary judgment. In Mullins v. Atlantic Richfield Company, No. 01-20-00013-CV, 2021 WL 2931355 (Tex. App.—Houston, July 13, 2021), Mullins filed a wrongful death and survivor suit against Atlantic Richfield Company (“ARCO”), alleging that her deceased husband was exposed to asbestos while working at ARCO's petrochemical plant, which caused her husband to develop mesothelioma, which led to his death. In response, ARCO filed a no-evidence motion for summary judgment, arguing that Mullins failed to produce evidence to show that her husband’s exposure to asbestos at ARCO's plant was a substantial factor in causing his mesothelioma.  

Mullins’ summary-judgment evidence included the following: (1) work history sheets showing her husband’s work history from 1965 to 1983, including the location of his worksites and the type of asbestos materials used at the worksites; (2) opinions of an expert pathologist, including that the husband’s asbestos exposure was the cause of his mesothelioma and death; and (3) opinions of an occupational epidemiologist, including that the husband had frequent, regular exposure to asbestos dust products at ARCO, and that these exposures were of such a dose that they were a substantial factor in the cause of his mesothelioma and death.  

The trial court granted ARCO’s motion, which Mullins appealed.  

The Court of Appeals began its analysis by thoroughly discussing Texas law governing asbestos-related claims: “Although evidence of the frequency, regularity, and proximity of exposure is required to establish causation, it is not alone sufficient to establish causation. To establish causation, the plaintiff must offer quantitative evidence about the dose or level of asbestos exposure. A plaintiff must produce 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.  In the absence of direct proof of causation, establishing causation in fact against a defendant in an asbestos-related disease case requires scientifically reliable proof that the plaintiff's exposure to the defendant's product more than doubled his risk of contracting the disease. A more than doubling of the risk must be shown through reliable expert testimony that is based on epidemiological studies or similarly reliable scientific testimony.”

The Court of Appeals affirmed the trial court’s judgment. “Because [Mullins] offered no direct evidence of causation, she was required to offer scientifically reliable expert testimony that her husband’s asbestos exposure more than doubled his risk of contracting mesothelioma”, which she did not. “Although harsh, this result is compelled by the asbestos-liability framework established by the Supreme Court of Texas, which has been recognized as ‘the most stringent’ of any state.”