Texas Supreme Court opinions (7/11/14)

In its final scheduled release of opinions until late August, the Texas Supreme Court issued opinions in two cases this week. Click here to read the order list. Click here to access the opinions.1. No. 10-0775, Bostic v. Georgia-Pacific Corp. — This is a mesothelioma case. The overarching issue is whether the causation standard announced in Borg-Warner Corp. v. Flores (which was an asbestosis case) also applies to mesothelioma cases. The Court held that it does. Here is the Court’s recap of its legal holdings:We conclude that in all asbestos cases involving multiple sources of exposure, including mesothelioma cases, the standards for proof of causation in fact are the same. In reviewing the legal sufficiency of the evidence:proof of “any exposure” to a defendant’s product will not suffice and instead the plaintiff must establish the dose of asbestos fibers to which he was exposed by his exposure to the defendant’s product;the dose must be quantified but need not be established with mathematical precision;the plaintiff must establish that the defendant’s product was a substantial factor in causing the plaintiff’s disease;the defendant’s product is not a substantial factor in causing the plaintiff’s disease if, in light of the evidence of the plaintiff’s total exposure to asbestos or other toxins, reasonable persons would not regard the defendant’s product as a cause of the disease;to establish substantial factor causation in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.2. No. 11-0425, Petroleum Solutions, Inc. v. Head — The plaintiff owned a truck stop and hired the defendant to install an underground fuel system, from which there was later a large diesel leak. The defendant’s expert later lost the flex connector that the defendant blamed for the leak. The trial court granted a spoliation sanction against the defendant, including striking the defendant’s statute-of-limitations defense and giving the jury a spoliation instruction. Applying the new spoliation rules from Brookshire Brothers, Inc. v. Aldridge, the Supreme Court reversed, because there was no proof that the defendant intentionally concealed evidence or that the alleged spoliation irreparably deprived the plaintiff of any meaningful ability to present its claim (since the plaintiff’s theory of liability was unrelated to the flex connector). In a second holding, the Court ruled that the alleged manufacturer of the flex connector was entitled to indemnity from the defendant under Civil Practice and Remedies Code section 82.002.–  Scott Stolley, Thompson & Knight