A judge in Harris County who ended an asbestos-related wrongful death lawsuit by granting a no-evidence motion for summary judgment — but did so “reluctantly” and with the hope that the “ruling would be reversed on appeal” — got his wish Tuesday morning.
A three-justice panel of the Fourteenth Court of Appeals issued an opinion that revived the lawsuit brought by the family of Carolyn Burford against Alcoa Inc. Judge Mark Davidson, who presides over the asbestos multidistrict litigation court in Harris County, had dismissed the lawsuit in June 2022.
Judge Davidson issued an order explaining that in his view the evidence the Burford family presented about the cause of Carolyn’s asbestosis failed to “rise to the level of direct, scientifically reliable proof of causation as required by Merrell Dow Pharmaceuticals, Inc. v. Havner,” referencing the Texas Supreme Court’s 1997 ruling involving whether the drug Bendectin caused a child’s birth defect.
“[The Burford Parties] have not and cannot establish that [Carolyn] was not exposed to asbestos from some other source,” Judge Davidson wrote. “Havner requires either that a defendant’s negligence directly caused the disease OR that, using epidemiological evidence that there is a doubling of the risk within a 95 percent statistical probability.”
The Fourteenth Court of Appeals wrote that the Burford family had presented “reliable expert testimony that Carolyn’s exposure to asbestos is the only possible cause of her asbestosis.”
“Thus, we conclude that through direct, scientifically reliable proof of causation, the summary-judgment evidence raises a genuine fact issue as to whether asbestos from Alcoa was a substantial factor in causing Carolyn’s asbestosis and death.” Justice Randy Wilson wrote for the court. “To the extent the Burford Parties assert in their sole issue that the trial court erred in granting the No Evidence Motion because the Burford Parties provided the trial court with more than a scintilla of evidence constituting direct, scientifically reliable proof of causation, we sustain their issue.”
According to court documents, Carolyn’s husband Frank worked at Alcoa’s plant in Rockdale from 1963 until 1993 and Carolyn washed his clothes that were exposed to dust containing asbestos for the first 25 years he worked there. Prior to her marriage, Carolyn Burford lived at her parent’s home where her father, who also worked at the Alcoa plant and was exposed to asbestos fibers, lived as well.
The Fourteenth Court of Appeals panel wrote that it was error for Judge Davidson to place on the Burford family the burden of establishing that Carolyn Burford “was not exposed to asbestos from any source other than Alcoa.”
“Considering all the summary-judgment evidence in the light most favorable to the Burford Parties, crediting evidence favorable to them if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not, the summary-judgment evidence would allow reasonable and fair-minded jurors to find that Alcoa was the source of all the asbestos to which Carolyn was exposed,” the panel wrote in its 24-page opinion. “Thus, the summary-judgment evidence raises a genuine fact issue as to whether Alcoa was the source of all the asbestos to which Carolyn was exposed.”
There was one amicus brief filed in the case jointly by several groups: The U.S. Chamber of Commerce, the Coalition for Litigation Justice, the National Federation of Independent Business Small Business Legal Center, the Alliance for Automotive Innovation, the American Coatings Association and American Property Casualty Insurance Association.
The groups were supporting Alcoa’s petition and warned the court of a return to the “chaos of the past” if it overturned the summary judgment ruling. Judge Davidson correctly tossed the case because, the amici argued, the exposure and causation evidence presented by the Burford family is “contrary to the requirements of science and Texas law, and this case falls well outside the realm of a possible asbestos-induced pulmonary fibrosis.”
“Texas courts have led the way in correcting the many abuses in asbestos litigation during the 1980s and 1990s. In fact, dozens of other courts have followed Texas in requiring legitimate diagnoses and dose-based causation evidence, consistent with general principles of causation and expert testimony,” the brief argues. “This appeal threatens to upend the stability that has existed for many years in Texas. The Texas asbestosis docket could return to the chaos of the past if the trial court’s grant of summary judgment is reversed.”
Justices Ken Wise and Jerry Zimmerer also sat on the panel.
The Burford family is represented by Timothy R. Cappolino, Richard A. Dodd and Valerie S. Farwell of Cappolino, Dodd & Krebs and Kirk Pittard and Rick Thompson of Durham, Pittard & Spalding.
Alcoa is represented by Robert B. Gilbreath of Hawkins Parnell & Young.
The amici are represented by Kathleen Frazier and Mark A. Behrens of Shook, Hardy & Bacon and William L. Anderson.
The case number is 14-22-00417-CV.