Asbestos ruling in Texas gives hope for future mesothelioma plaintiffs

22 Jul 2014 by under Legal

Gavel Scales of Justice American flag square 100x100 Asbestos ruling in Texas gives hope for future mesothelioma plaintiffsThe Supreme Court just pushed back against asbestos plaintiffs by raising the burden of proof to show that the defendant’s products caused mesothelioma; however, the plaintiffs avoided a situation that attorneys believed would have voided all asbestos lawsuits.

Georgia-Pacific Corp., a paper chemicals company, was released by Georgia’s highest court from having to pay a $12.3 million mesothelioma settlement that the plaintiff Susan Elaine Bostic initially won. The setback was due to the burden of proof standards put in place by an case in 2007, which involved the rare lung cancer Bostic’s husband had fallen to – mesothelioma.

Arguing against the high bar of proof for mesothelioma, Bostic said that mesothelioma could be caused by far lower levels of exposure than asbestosis; however, the court’s July 11 opinion declared the “substantial-factor” test used in the asbestosis case from 2007. The test will prove whether or not the accused product was a significant factor in causing Bostic’s husband’s diagnosis.

Although this ruling could have been problematic for future mesothelioma plaintiffs due to the lower court of appeals’ burden of proof, state justices reasoned that it may not be “humanly possible” to confirm which fibers of asbestos caused the plaintiff’s ailment. Some attorneys are saying that this ruling could give future plaintiffs an advantage in the courtroom.

“If I could write the headline for this story, it would be: ‘Plaintiffs in toxic tort cases live to fight another day,'” said David Oliver of Vorys Sater Seymour and Pease LLP. “The reasoning from the lower court of appeals would have made it nearly impossible for plaintiffs to win in a multiple-defendant case about these types of illnesses.”

Despite the good news for future asbestos plaintiffs, the Dallas Court of Appeals threw out Bostic’s verdict from 2001, saying that if she had proof that her husband would not have developed the deadly lung cancer if he had not been using Georgia-Pacific’s product, the outcome would have been different.

“I think that at the outset, the most important thing you can say about this ruling is that it reaffirms the bedrock importance of the concept of dose in toxic tort litigation,” said Bill Ruskin of Gordon & Rees LLP. “It rejects out of hand the argument that the court should apply a different standard in a mesothelioma case than in an asbestosis case because the disease entity is so different. The court really imposes a very high standard on plaintiffs in all toxic tort litigation in general and all asbestos litigation in particular.”



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