Texas = Judiciary Online

O P I N I O N

=20 In this=20 asbestos case, Georgia-Pacific Corporation seeks reversal of a = judgment on=20 a jury verdict against it and in favor of appellees, Fred and = Betty=20 Stephens. The = Stephenses sued=20 Georgia-Pacific and other defendants after Fred developed = mesothelioma,=20 alleging that he contracted the disease in part as a result of his = exposure to Georgia-Pacific joint compound during the years he = worked as a=20 commercial painter. = On=20 appeal, Georgia-Pacific contends (1) the evidence is legally = insufficient=20 to support the jury finding of causation, (2) the trial court = erred in=20 excluding an affidavit from Fred detailing his exposure to = asbestos gloves=20 manufactured by codefendant Guard-Line, (3) the evidence is = legally and=20 factually insufficient to support the jury award of mental anguish = damages, and (4) the evidence is legally insufficient to support = the jury=20 finding of malice. = In a=20 cross-issue, the Stephenses contend that the trial court erred in=20 calculating prejudgment interest. =20 Following the Texas Supreme Court=92s decision in Borg-Warner Corporation v. = Flores,=20 we conclude that the expert testimony presented in this case is = legally=20 insufficient to support the jury=92s causation finding. See No. 05-0189, 2007 WL = 1650574,=20 at *4=965 (Tex. June 8, 2007). We therefore reverse and = render.

I.=20 FACTS

=20 For over thirty years, Fred was employed in occupations = that=20 exposed him to asbestos and asbestos-containing materials. Fred served in the Navy = from 1944=20 to 1946. During his = service,=20 he was exposed to asbestos and asbestos-containing products, = including=20 boilers, pipe covering, insulation, gaskets, packing, and = pumps. He subsequently worked = for the=20 Washington State Bureau of Reclamation on the Grand Coulee Dam, = from 1946=20 to 1954, where he was further exposed to asbestos and = asbestos-containing=20 products, including turbines, generators, insulation, gaskets, and = pumps. =

=20 After finishing work on the dam, Fred became a commercial=20 painter. He worked = for Finrow=20 Painting from 1954 until 1977 and then started his own business, = Stephens=20 Painting. Fred = painted=20 various commercial buildings, including schools, universities, = hospitals,=20 paper mills, saw mills, grocery stores, and automobile = dealerships. At each of these sites, = he was=20 responsible for painting the entirety of the building, including = the=20 exterior and interior walls, the boiler room and pipes, and any = equipment=20 located within the building. =20 During these years, Fred was exposed to asbestos and = asbestos=20 containing products. =20

=20 Some of the buildings Fred painted were new or were under=20 renovation. Before = Fred and=20 his crew began to paint the interior walls in a new building or = one under=20 renovation, sheetrockers and tapers applied joint compound to = connect=20 adjoining pieces of sheetrock. =20 The joint compound usually came in a powdered form that the = workers=20 mixed with water before applying it to the walls. Once the compound dried, = the=20 sheetrockers sanded it to smooth the walls in preparation for=20 painting. The = mixing and=20 sanding processes created a great deal of dust, and Fred was often = present=20 in the room while the sheetrockers performed their tasks. Once the sheetrockers = finished=20 sanding, Fred swept the dust from the walls and floor and = proceeded to=20 paint. = Occasionally, Fred=20 mixed and sanded joint compound himself.

=20 Bestwall = Company manufactured the joint compound at issue in this = case. Georgia-Pacific acquired = Bestwall=20 via merger in 1965. = The=20 Georgia-Pacific/Bestwall joint compound contained between two and = eight=20 percent chrysotile asbestos. =20 Georgia-Pacific began manufacturing an asbestos-free joint = compound=20 in 1977. As = discussed further=20 below, Fred and his coworkers from Finrow Painting = recalled=20 seeing the Georgia-Pacific brand of joint compound, among other = brands, at=20 some of their job sites.

=20 Asbestos exposure is a commonly recognized factor that = increases=20 the risk of developing mesothelioma, a form of lung cancer. In January 2003, doctors = diagnosed=20 Fred with a right pleural biphasic mesothelioma. He died of the disease = shortly=20 after this trial. =

II.=20 PROCEDURAL HISTORY

=20 The Stephenses sued 106 named defendants and 100 John Doe=20 defendants in Brazoria County,=20 alleging, among other things, negligence, gross negligence, and = strict=20 liability. By the = time of=20 trial, the Stephenses, who reside in Washington State, had=20 settled their claims with all but three defendants: = Georgia-Pacific (a=20 Georgia corporation), = Kaiser-Gypsum (a Washington = corporation),=20 and Guard-Line (a Texas corporation). Kaiser-Gypsum settled = after=20 opening statements, leaving complete diversity of = citizenship. Georgia-Pacific removed = the case=20 to federal court, alleging that Guard-Line, the Texas = defendant,=20 was fraudulently joined because the Stephenses had no evidence = against=20 it. See 28 = U.S.C.=20 =A7 1441(b) (2000) (prohibiting removal based on diversity = jurisdiction=20 when defendant is resident of forum state). Fred responded with an = affidavit=20 averring that he had breathed the dust from Guard-Line=92s = asbestos gloves=20 =93repeatedly and continuously throughout [his] career as a = painter which=20 spanned over thirty years.=94 =20 After finding that Georgia-Pacific had failed to show = fraudulent=20 joinder, the federal court remanded the case back to state court.=20

=20 When trial resumed, Georgia-Pacific moved to strike the = Stephenses=92=20 experts, contending that their opinions were insufficiently = reliable=20 because they did not show that =93Mr. Stephens=92 exposures to=20 Georgia-Pacific=92s joint compound increased his risk of = developing=20 mesothelioma to at least twice the risk that he would have had = otherwise=20 if not exposed to Georgia-Pacific compound.=94 After conducting a Robinson hearing,[1]=20 the trial court overruled Georgia-Pacific=92s motion and allowed = the experts=20 to testify. =20

=20 At the close of the evidence, the court directed a verdict = for=20 Guard-Line. The = court then=20 submitted a jury charge inquiring about marketing defects and = negligence=20 as to the joint compound sold by Georgia-Pacific, together with = the=20 products of ten settling defendants. =20 The jury found six of the eleven defendants, including=20 Georgia-Pacific, liable for both a marketing defect and for=20 negligence. It = apportioned=20 responsibility at twenty percent for Georgia-Pacific and sixteen = percent=20 for each of the other five liable settling defendants. The jury awarded Fred = $1.5 million=20 for past and future physical pain and impairment and $1 million = for past=20 and future mental anguish. = It=20 awarded Betty $1 million for loss of consortium and household=20 services. It also = found that=20 Georgia-Pacific acted with malice and awarded $2.5 million in = exemplary=20 damages.

=20 After making appropriate settlement credits and applying = the=20 punitive damages cap, the trial court signed a final judgment = against=20 Georgia-Pacific for $1,903,878. =20 This appeal followed.

III.=20 CAUSATION ANALYSIS

=20 Georgia-Pacific contends that the evidence is legally = insufficient=20 to support a finding of specific causation. Georgia-Pacific relies = on the=20 general rule that, in a products liability case, the plaintiff = must prove=20 that the defendant=92s product caused his injury. See Gaulding v. = Celotex=20 Corp., 772 S.W.2d 66, 68 (Tex. 1989). Georgia-Pacific notes = that the=20 Stephenses do not know=97and did not prove=97which asbestos = product caused=20 Fred=92s mesothelioma or contributed to an increased risk of his = developing=20 it; rather, they relied on expert testimony that any exposure to = asbestos=20 contributes to cause mesothelioma. =20 Georgia-Pacific challenges this expert testimony on the = ground that=20 it does not comport with the requirements for expert testimony set = forth=20 by the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. = v.=20 Havner, and the general jurisprudence of the Texas Supreme = Court that=20 requires that exposure to a defendant=92s product be a = =93substantial factor=94=20 in causing a plaintiff=92s injury. See 953 S.W.2d 706, 717=20 (Tex.=20 1997).

A. = Standard of=20 Review

=20 The=20 test for legal sufficiency is =93whether the evidence at trial = would enable=20 reasonable and fair-minded people to reach the verdict under = review.=94 City of Keller = v. Wilson, 168=20 S.W.3d 802, 827 (Tex. 2005). In making this = determination, we=20 credit favorable evidence if a reasonable fact-finder could, and = disregard=20 contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence = falls=20 within the zone of reasonable disagreement, we may not substitute = our=20 judgment for that of the fact-finder. Id. at 822. The trier of fact is the = sole=20 judge of the credibility of the witnesses and the weight to give = their=20 testimony. = Id. at=20 819. Although we = consider the=20 evidence in the light most favorable to the challenged findings, = indulging=20 every reasonable inference that supports them, we may not = disregard=20 evidence that allows only one inference. Id. at=20 822.

B. = Specific=20 Causation in an Asbestos = Case

=20 1. =20 General versus Specific Causation

=20 Causation in toxic tort cases is often discussed in terms = of=20 general and specific causation. =20 See = Havner, 953=20 S.W.2d at 714. = =93General=20 causation is whether a substance is capable of causing a = particular injury=20 or condition in the general population, while specific causation = is=20 whether a substance caused a particular individual=92s = injury.=94 Id.

=20 Georgia-Pacific=20 does not mount a general causation challenge. That is, for the = purposes of this=20 appeal, Georgia-Pacific does not dispute that inhalation of = chrysotile=20 asbestos fibers (the type of fibers found in Georgia-Pacific joint = compound) can lead to the development of mesothelioma. Rather, Georgia-Pacific = asserts=20 that the Stephenses produced no evidence of specific = causation. Georgia-Pacific asserts = that=20 =93[t]he plaintiffs did not prove that Georgia-Pacific joint = compound, or=20 any comparable joint compound, caused mesothelioma in Mr.=20 Stephens.=94

=20 2. =20 Competing=20 Specific Causation Standards

=20 =93A fundamental principle of traditional products = liability law is=20 that the plaintiff must prove that the defendants supplied the = product=20 which caused the injury.=94 =20 Gaulding, 772 S.W.2d at 68. In Gaulding, the=20 petitioners conceded that they were unable to identify the = specific=20 manufacturer of an asbestos-containing board that caused their = mother=92s=20 mesothelioma. = Id. at=20 67. Their father = had=20 purchased the board at a salvage yard and had converted it into a = vanity=20 cabinet for their mother. =20 Id. Because the petitioners = did not=20 know who had manufactured the board, they sued five companies that = allegedly =93=91dominated the market of asbestos-containing = wallboard=92 at the=20 time of [their mother]=92s exposure.=94 =20 Id. at 68. The Texas Supreme = Court=20 rejected each of the collective liability theories advanced by the = petitioners, including the concert of action, enterprise, = alternative, and=20 market share liability theories. =20 Id. at 68=9671.

The=20 Stephenses do not ask that we adopt any of the collective = liability=20 theories rejected by the Texas Supreme Court in Gaulding. Thus, the parties here = agree that=20 Texas=20 law requires that a plaintiff must prove that the defendant=92s = product=20 specifically caused his asbestos-related injury. The parties disagree = about the way=20 in which a plaintiff can prove specific causation in an asbestos = case.=20

=20 3. =20 Celotex Corp. v. Tate: The =93Any Exposure=94 = Test

=20 Until June 2007, the Texas Supreme Court had not considered = specific causation standards in an asbestos case since Gaulding, but a few of = our sister=20 courts had. In = Celotex=20 Corp. v. Tate, the Corpus Christi Court of Appeals recognized = that an=20 asbestos case in which the plaintiff alleges that the products of = several=20 defendants caused his injury presents a unique situation. 797 S.W.2d 197, 203=9605 = (Tex. App.=97Corpus Christi 1990, writ = dism=92d by=20 agr.). In = Tate, the plaintiff knew = which=20 three defendants had supplied the raw asbestos to which he was = exposed=20 while working at a wallboard and plaster plant for nearly thirty=20 years. Id. at=20 200, 204. Tate=92s = problem was=20 that none of his medical experts could determine which particular = exposure=20 to asbestos dust had resulted in his mesothelioma. Id. at=20 204.

=20 The Tate court devised the following causation rule = for=20 multi-defendant asbestos cases: =93If there was sufficient = evidence=20 presented by appellees showing that [appellant] supplied = any of the=20 asbestos to which Tate was exposed, then appellees have adequately = met=20 their burden of proof.=94 =20 Id. (emphasis in = original). In other words, = evidence of any exposure to a = defendant=92s=20 product, no matter the amount, was legally sufficient evidence to = support=20 a causation finding. =20 Id. =20 This causation standard presumes harm from exposure to = the=20 product, with the burden of apportioning that harm then placed = among the=20 defendant manufacturers. See id. The Corpus=20 Christi court reaffirmed the=20 applicability of this asbestos causation principle in = Borg-Warner=20 Corporation v. Flores. = See 153 S.W.3d 209, = 213=9614 (Tex.=20 App.=97Corpus Christi 2004), rev=92d, 2007 WL = 1650574, at *8. The Texarkana Court of = Appeals also=20 adopted the Tate rule. =20 See Fibreboard Corp. v. Pool, 813 S.W.2d 658, = 691=9692=20 (Tex. App.=97Texarkana 1991, = writ=20 denied).

=20 4. =20 Lohrmann:=20 The Frequency-Regularity-Proximity=20 Test

=20 But not all courts agreed that =93any exposure=94 = sufficiently proved=20 causation under Texas law. One year after the = Corpus Christi=20 Court of Appeals issued the Tate decision, the United = States Court=20 of Appeals for the Fifth Circuit considered the asbestos causation = issue. See Slaughter v. S. Talc = Co., 949=20 F.2d 167, 170 (5th Cir. 1991). =20 In Slaughter, the court applied =93the most = frequently used=20 test for causation in asbestos cases[:] the=20 =91frequency-regularity-proximity=92 test,=94 first announced by = the United=20 States Court of Appeals for the Fourth Circuit in Lohrmann v.=20 Pittsburgh Corning Corp., as the appropriate causation test = under=20 Texas law. = Id. at 171; see also = Lohrmann v.=20 Pittsburgh Corning Corp., 782 F.2d 1156, 1162=9663 (4th Cir. = 1986).=20 Under the=20 frequency-regularity-proximity test, a plaintiff must prove that, = =93more=20 probably than not, he actually breathed asbestos fibers = originating in=20 defendants=92 products. = This=20 proof can be made by showing that plaintiff frequently and = regularly=20 worked in proximity to defendants=92 products such that it is = likely that=20 plaintiffs inhaled defendants=92 asbestos fibers.=94 Slaughter, 949 F.2d at = 171.

=20 The Dallas Court of Appeals considered the=20 frequency-regularity-proximity test in Keene Corp. v. = Gardner. See 837 S.W.2d = 224, 227=20 (Tex. App.=97Dallas 1992, writ denied). The court declined to = expressly=20 adopt the test because it found no case in which a Texas = state court=20 had applied the test. =20 Id. The court nonetheless = relied on it=20 to find that appellees had produced some evidence of = causation. Id. at=20 227=9628. =20

Several=20 years later, the Fourteenth Court of Appeals similarly considered = the=20 frequency-regularity-proximity test, in Click v. Owens-Corning=20 Fiberglass Corp. = See 899 S.W.2d = 376, 378=20 (Tex. App.=97Houston [14th Dist.] 1995, no = writ). It noted that the Dallas = Court of=20 Appeals had =93applied=94 the test, while specifically declining = to =93adopt=94=20 it. Id. The Fourteenth=20 Court reversed a directed = verdict=20 because the evidence showed that Click had insulated pipes for an = extended=20 period of time; appellees=92 products, which contained asbestos, = were used=20 by his company for many years to insulate pipes; and appellees=92 = products=20 were seen near Click. =20 Id. The court held that it = was=20 possible for a reasonable jury to conclude that Click more = probably than=20 not inhaled asbestos fibers from appellees=92 products, which led = to his=20 mesothelioma. = Id. Hence, although our = sister court=20 did not expressly adopt the frequency-regularity-proximity test, = it=20 effectively applied the test in reaching its disposition. Id.

5. = ; =20 Havner: Epidemiological Studies and = Specific=20 Causation Requirements

=20 Meanwhile, in toxic tort cases not involving asbestos, the = Texas=20 Supreme Court set forth guidelines for assessing the adequacy of=20 exposure in Merrell Dow Pharmaceuticals, = Inc. v.=20 Havner. See 953 S.W.2d at = 714=9615. In Havner, the Texas = Supreme Court=20 held that, in cases in which no direct evidence of specific = causation=20 exists, plaintiffs may rely on studies showing an increased risk = of their=20 particular injury resulting from exposure to the substance at = issue to=20 raise a fact question on causation. =20 Id. Specifically, the court=20 held:

=20 In the absence of direct, scientifically reliable proof of=20 causation, claimants may attempt to demonstrate that exposure to = the=20 substance at issue increases the risk of their particular injury = [by=20 relying on epidemiological studies]. =20 The finder of fact is asked to infer that because the risk = is=20 demonstrably greater in the general population due to exposure to = the=20 substance, the claimant=92s injury was more likely than not caused = by that=20 substance. Such a = theory=20 concedes that science cannot tell us what caused a particular = plaintiff=92s=20 injury. It is based = on a=20 policy determination that when the incidence of a disease or = injury is=20 sufficiently elevated due to exposure to a substance, someone who = was=20 exposed to that substance and exhibits the disease or injury can = raise a=20 fact question on causation.

Id.=20 at=20 715.

=20 Use of an increased risk to prove causation comes with an = important=20 caveat: when a = plaintiff=20 relies on epidemiological studies to prove specific causation, he = must=20 show that he is =93similar=94 to the individuals in the = study. Id. at=20 720. This=20 includes:

proof=20 that the injured person was exposed to the same substance, that = the=20 exposure or dose levels were comparable to or greater than those = in the=20 studies, that the exposure occurred before the onset of injury, = and that=20 the timing of the onset of injury was consistent with that = experienced by=20 those in the study. = Further,=20 if there are other plausible causes of the injury or condition = that could=20 be negated, the plaintiff must offer evidence excluding those = causes with=20 reasonable certainty.

Id.=20 (citation omitted); see = also=20 Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, = 602 n.21=20 (Tex. App.=97Houston=20 [1st Dist.] 2002, pet. denied) (=93The supreme court recognizes = that it is=20 possible that a toxic-tort plaintiff may not be able to find = reliable=20 direct evidence of specific causation. A plaintiff in such a = situation=20 may be able to prove specific causation circumstantially by taking = general-causation evidence, such as epidemiological studies, and = showing=20 he is similar to the studies=92 subjects.=94 (citation omitted)). =

=20 Thus, in the years since Gaulding, Texas courts developed = different=20 tests for specific causation=97each an effort to strike an = appropriate=20 balance between the competing concerns in an asbestos = case=97namely, on the=20 one hand, the difficulties encountered by plaintiffs with = asbestos-related=20 diseases, who were exposed to multiple asbestos-containing = products, in=20 proving which products caused their injury, and, on the other, = =93the=20 concept deeply imbedded in our jurisprudence that a defendant = cannot be=20 found liable for an injury unless the preponderance of the = evidence=20 supports cause in fact.=94 = Havner, = 953 S.W.2d=20 at 718; see also Jackson v. Anchor Packing Co., 994 = F.2d=20 1295, 1301 (8th Cir. 1993) (=93Courts across this country have = struggled=20 with the appropriate quantum of proof that asbestos plaintiffs = should be=20 required to produce in order to submit the issue of causation to a = jury. The courts = have=20 recognized that, given the nature of asbestos exposure in large = industrial=20 settings and the long latency periods for asbestos-related = diseases,=20 plaintiffs (especially bystanders) face a formidable task in = showing,=20 after many intervening years, exposure to a particular = defendant=92s=20 asbestos product and that exposure=92s causation of the = plaintiff=92s=20 injuries. On the = other hand,=20 the courts have also recognized the countervailing interest that = states=20 and defendants have in retaining the longstanding requirement of = proximate=20 cause in tort law.=94 (citations=20 omitted)).[2]

6. = The=20 Texas Supreme Court Settles the = Issue:=20 Borg-Warner=20 v. Flores

It=20 is within this framework that the Texas Supreme Court decided Borg-Warner, rejecting the =93any = exposure=94 test=20 for specific causation and adopting a Lohrmann/Havner = substantial-factor=20 causation standard. = See 2007 WL 1650574, at=20 *4=965.

The=20 asbestos containing product in Borg-Warner was brake = pads. Id. at = *1. Flores was a retired brake mechanic who = developed=20 asbestosis. = Id. During his thirty-five = year=20 career, Flores used Borg-Warner = brake=20 pads on five to seven of the roughly twenty brake jobs he = performed per=20 week. Id. The Borg-Warner brake = pads=20 contained seven to twenty-eight percent asbestos fibers. Id. Grinding the brake pads = generated=20 clouds of dust that Flores = inhaled while=20 working in an eight by ten-foot room. Id.

Flores=92s=20 experts opined that Borg-Warner brake pads caused Flores=92s asbestosis due to the asbestos = dust he=20 inhaled while grinding the brake pads. Id. First, Flores=92s = pulmonologist=20 noted that Flores=92s lungs = showed scarring=20 associated with asbestos fibers. =20 Id. Second, Flores=92s expert as to exposure level = noted that=20 research involving the brake industry showed that =93levels of = exposure [to=20 asbestos fibers] . . . could be significant,=94 and pointed to = OSHA studies=20 and warnings regarding increased levels of asbestos exposure among = brake=20 mechanics. = Id. at=20 *2. Yet, Flores=92s experts conceded that = =93everyone is exposed=20 to asbestos in the ambient air=94 and that they did not research=20 Borg-Warner=92s brake pads in particular to determine whether = grinding them=20 resulted in an increased risk of exposure to asbestos. Id. at *1=962. The jury found for = Flores, apportioning thirty-seven percent = of the=20 liability for his asbestos-related injury to Borg-Warner. Id. at = *3. The Corpus Christi Court = of=20 Appeals, applying the =93any exposure=94 test announced in Tate, affirmed. Id.

The=20 Texas Supreme Court reversed and rendered, concluding that = Flores=92s expert testimony was legally = insufficient=20 proof of substantial-factor causation. Id. at = *8. First, the Texas Supreme = Court=20 adopted the Lohrmann=20 =93frequency, regularity, proximity=94 standard but noted = that, at its=20 inception, the Lohrmann court=92s=20 analysis went further than this tripartite test: the essence of Lohrmann is that the = exposure must=20 =93be a =91substantial factor=92 in causing the disease.=94 Id. at = *4. Thus, a plaintiff must = not only=20 show that he was exposed to the asbestos-containing product on a = regular=20 basis, but also that such exposure was in sufficient amounts so as = to=20 increase his risk of developing an asbestos-related disease. Id. at *4=965. As the court observed,=20 toxicologists agree that it is the dose of a potentially toxic = substance=20 that makes it poison. =20 Id. at = *5. As asbestosis is a = dose-responsive=20 disease, =93so that the more one is exposed, the more likely the = disease is=20 to occur,=94 the record must contain evidence as to the quantity = of=20 respirable asbestos for the jury to evaluate. Id. Relying on its Havner decision, the = court=20 reaffirmed the principle that =93epidemiological studies are = without=20 evidentiary significance if the injured person cannot show that = =91the=20 exposure or dose levels were comparable to or greater than those = in the=20 studies.=92=94 = Id. (quoting Havner, 953 S.W.2d at=20 720=9621).

The=20 court thus concluded that the Lohrmann=20 frequency-regularity-proximity test is necessary to prove = causation, but=20 alone is not sufficient. =20 Id. at = *4=965. To prove = substantial-factor=20 causation, a plaintiff must show both frequent, regular, and = proximate=20 exposure to the product and=20 reasonable quantitative evidence that such exposure increased the = risk of=20 developing the asbestos-related injury. Id. at = *4=967. It is not adequate to = simply=20 establish that =93some=94 exposure occurred. Id. at *8. =

B. = Application=20 of the Borg-Warner = Specific=20 Causation Analysis

With=20 the principles set forth in Borg-Warner in mind, we = turn now=20 to an analysis of the lay and expert testimony that the Stephenses = presented at trial regarding the Georgia-Pacific joint compound as = a cause=20 of Fred=92s mesothelioma.

=20 1. = The=20 Lay Testimony

=20 We first clarify the relevant timeframe for our = analysis. Georgia-Pacific began=20 manufacturing an asbestos-free joint compound in 1977. Thus, the relevant = timeframe for=20 our analysis is 1965, the year Georgia-Pacific acquired Bestwall, = through=20 1977, the year Fred stopped working as a painter, and = Georgia-Pacific=20 removed all asbestos from its joint = compound.

=20 Fred testified live at trial and through a videotaped = deposition=20 played for the jury. = During=20 his deposition, Fred initially testified that he did not think he = had=20 personally worked with any Georgia-Pacific products, and that the = only=20 Georgia-Pacific product he ever worked around was sheetrock. = Unlike Georgia-Pacific = joint=20 compound, Georgia-Pacific sheetrock did not contain asbestos. Later in the deposition, = however,=20 Fred clarified that he personally used Georgia-Pacific joint = compound=20 during the 1960s and 1970s: =93Well, I have used that = [Georgia-Pacific joint=20 compound] quite a bit on jobs. =20 In fact, I=92ve gone into some small jobs and done the = taping=20 [applying joint compound] myself in a=20 room. . . . I never was classified as a = taper=20 myself, but I=92ve done quite a bit of taping.=94 He also testified that = after other=20 workers applied and sanded Georgia-Pacific joint compound, he and = his crew=20 cleaned up by sweeping the dust off the floor with a broom, which = =93put=20 dust up into the air where you could see it.=94 Moreover, during his = live trial=20 testimony, Fred responded in the affirmative to counsel=92s = question, =93[D]o=20 you remember seeing Georgia-Pacific joint compound on a = substantial number=20 of jobs you worked on?=94 =20

Several=20 of Fred=92s coworkers also testified regarding Fred=92s exposure = to joint=20 compound. Roger = Lenius=20 testified by videotaped deposition that he worked with Fred from = 1968=20 until 1977. He = stated that=20 fifty to seventy-five percent of their job duties involved = painting new=20 construction and being around sheetrock work. When asked which joint = compound=20 products he observed during those years, he testified as follows: = =93Kaiser=20 Gypsum. There was a = Best Wall=20 or Better Wall. I = think later=20 they were using=97it was Georgia-Pacific. And then there was = Flintkote and=20 Gold Bond, but=97these were some of the ones that seemed to be = used more=20 prevalently than others.=94 =20 When asked whether he noticed any particular brand more = than=20 another, he responded that =93the jobs that seemed to have more of = the=20 particular products would be Kaiser Gypsum and Gold Bond. I noticed a lot of = those. Flintkote was a fair = amount . . .=20 .=94

Lenius=20 testified that he and Fred were often in the same room, probably = twenty to=20 thirty feet away from the workers who mixed the dry joint compound = with=20 water. He testified = that the=20 mixing process was dusty, as was the sanding process: =93When they = sand a=20 wall, of course, there=92s a big cloud of dust and a lot of times = it drifts.=20 . . . And then, of = course, it=20 falls to the ground, lays on the wall. So there=92s . . . quite = a bit of=20 dust everywhere.=94 = Lenius=20 stated that he and Fred were =93generally pretty close=94 to the = sanders=20 because they painted =93right behind=94 them. When they spray painted, = they=20 stood a maximum of six feet away from the wall, and the pressure = from the=20 spray paint would reintroduce the asbestos dust into the air=97in = fact, it=20 would =93raise clouds of dust.=94 =20 Lenius stated that he and Fred did =93a little bit of = taping but not=20 very much. Very=20 little.=94

Mack=20 Stephens, Fred=92s brother, worked with Fred at Finrow Painting = from 1964=20 until 1977. He = testified via=20 videotape that twenty percent of their jobs involved painting = pipes,=20 one-third involved painting the outside of buildings, fifteen to = twenty=20 percent involved painting concrete walls, twenty percent involved = painting=20 equipment, and the remainder (seven to twelve percent) involved = painting=20 interior walls. He = further=20 testified that seventy percent of those jobs involved sheetrock = work. He recalled the = following brands=20 of joint compound at their job sites: Georgia-Pacific Ready-mix,=20 Georgia-Pacific dry powder, Flintkote patching, Kelly Moore = patching, and=20 Bestwall. Mack did = not=20 personally observe Fred using any Georgia-Pacific dry powder = product. =

Mack=20 testified that he and Fred were often in the same room with the = workers=20 who mixed and sanded the joint compound. Both of these processes = caused=20 dust to fly everywhere. =20 Before Fred and his crew could paint, Fred cleaned the = floor by=20 sweeping the dust with a broom. =20 It would be =93so dusty you couldn=92t hardly see the = room.=94 Mack also testified = that, although=20 it was not a regular part of their job to do sheetrock patch work, = he=20 observed Fred personally apply and sand joint compound while at=20 Finrow. He recalled = seeing=20 Fred sand the joint compound more than once, but could not recall = how=20 often. =20

Michael=20 Stephens, Fred=92s son, worked at Finrow Painting during the = summers of 1968=20 through 1970, full-time starting in 1971 until the end of 1972, = and then=20 again from 1975 until 1977. =20 During the summers of 1964 through 1968, Michael visited = Fred at=20 job sites a couple of times each week for a few hours. Michael recalled seeing = the=20 following joint compounds at job sites: =93I can remember = Bestwall, I can=20 remember Flintkote. = Those=20 two, I can remember them in the dry. =20 I can remember Georgia-Pacific, I can remember Paco. There=92s some others I = can=20 remember, like Durabond, USB. =20 Those are the ones I can remember.=94 Michael testified that = his father=20 personally used Bestwall joint compound at a Safeway job = site. Specifically, Fred = mixed, applied,=20 and sanded the Bestwall compound and breathed the resulting = dust. Bestwall was the product = that the=20 crew carried in their vehicle, so they used it for patch work at = other job=20 sites, as well. =20

Michael=20 also testified that Fred and his crew were often in the same areas = where=20 sheetrock work was being done. =20 They were around the workers who mixed and sanded the joint = compound, and there would be dust in the air and on their persons = from=20 these processes. = Fred cleaned=20 the dust with a broom before spray painting. Both the cleaning and = painting=20 processes were dusty, as well. =20

2. = The=20 Expert Testimony

=20 The Stephenses called Jerry Lauderdale, an industrial = hygienist,=20 Samual Hammar, M.D., a pathologist, and Alice Boylan, M.D., a=20 board-certified specialist in pulmonary disease, internal = medicine, and=20 critical care, as expert witnesses on the causation issue. Lauderdale opined, = =93with respect=20 to Georgia-Pacific joint compounds . . . [Fred=92s] exposures were = at a=20 level and of the type that are known by industrial hygienists to=20 contribute to the development of asbestos-related disease.=94 He based his opinion on = a review=20 of the deposition testimony of the lay witnesses, Fred=92s medical = records,=20 and literature relating to asbestos exposure. The literature upon = which=20 Lauderdale relied, as discussed in greater detail below, detected = asbestos=20 fibers in excess of OSHA=92s permissible exposure limits during = joint=20 compound mixing and sanding operations.[3] Lauderdale thus = concluded, =93it is=20 possible to say . . . that [Fred] would have from time to time = been=20 exposed to concentrations above permissible exposure limits . . . = .=94 Lauderdale conceded, = however, that=20 he could not =93come up with a range of likely doses that Mr. = Stephens would=20 have had to joint compound asbestos.=94 With respect to = estimating dosage,=20 Lauderdale testified, =93It is my opinion that in a scientific = sense, I=20 don=92t believe that it can be done due to the fact there is not = enough=20 information about [Fred=92s] exposures; and it would be involving = more=20 guesswork than science to come up with estimates or guesses for = those type=20 of numbers.=94 Nor = could=20 Lauderdale estimate the amount of time Fred was exposed to joint = compound=20 generated asbestos dust in excess of OSHA permissible levels. =

=20 Lauderdale did not testify as to the minimum level of = exposure to=20 asbestos dust from joint compound that could lead to an increased = risk of=20 mesothelioma. = Instead, he=20 observed that =93asbestos-related diseases are based on cumulative = exposures=20 and there is no way to separate out what exposure, in fact, causes = development of the disease.=94 =20 It was Lauderdale=92s opinion =93that every exposure does = contribute to=20 the development of=97potential to develop=20 mesothelioma.=94

=20 Dr. Hammar opined that chrysotile asbestos, the kind found = in the=20 Georgia-Pacific joint compound, =93cause[s] dose-related asbestos = disease,=20 which means that you can see cases of all types caused by = chrysotile=20 asbestos at different doses in different individuals.=94 He further opined that = the level=20 of exposure it takes to cause mesothelioma =93could be any level = above what=20 is considered to be background, which, from my definition, would = be=20 anything greater than .1 fiber cc years.=94 In sum, he stated: = =93I=92m going to=20 express an opinion that each and every exposure that an individual = has in=20 a bystander occupational setting causes their = mesothelioma.=94 Like Lauderdale, Dr. = Hammar relied=20 upon various studies concerning asbestos exposure and = asbestos-related=20 disease as the foundation for his opinion. Dr. Hammar also = testified that=20 mesothelioma is a dose-responsive disease, and that a threshold = exists=20 =93above which you may be at risk, below which you may not be at = risk=94 for=20 developing the disease.

=20 Dr.=20 Boylan testified that Fred=92s mesothelioma developed as a result = of=20 asbestos exposure, but had no information about the particular=20 asbestos-containing products to which Fred was exposed. She did not express an = opinion =93as=20 to which of those specific products . . . actually caused his=20 disease.=94 Dr. = Boylan=20 testified that people who live in a normal urban environment will = have=20 asbestos fibers in their lungs as a result of breathing asbestos = in the=20 air. In her = opinion,=20 mesothelioma, like other asbestos diseases, is a dose-responsive=20 disease=97the lower one=92s exposure to asbestos, the less likely = one is to=20 develop mesothelioma. = She=20 could not offer an opinion as to the level of exposure that would = be low=20 enough such that the exposure could not be considered a cause of=20 mesothelioma in an individual. =20 Similar to Dr. Hammar, Dr. Boylan observed that =93our = understanding=20 of the development of cancer as it stands today is that all = exposures to a=20 carcinogen contribute to the development of a malignancy, and you = can=92t=20 say just one because it isn=92t just a one-hit injury that will = cause=20 cancer. You have to = have=20 multiple genetic alterations to lead to a malignant cell, so I = would say=20 all [exposures] do.=94

=20 Georgia-Pacific objected that the literature relied upon by = Lauderdale and Hammar does not support an =93any exposure=94 link = between=20 Georgia Pacific=92s asbestos-containing joint compound and=20 mesothelioma. Thus, = we=20 examine the literature presented in connection with this=20 trial.[4]

a. =20 Quantitative Evidence of Increased Risk=20

The=20 Stephenses=92 experts relied on numerous studies showing that = chrysotile=20 asbestos is capable of causing mesothelioma generally, thus = providing some=20 evidence of general causation. =20 For example, Dr. Hammar cited one study that concluded as=20 follows:

In=20 contrast to amphibole forms of asbestos, chrysotile asbestos is = often=20 claimed to be only a minor cause of malignant pleural mesothelioma = . . .=20 . Reported data[, = however,]=20 do[es] not support widely quoted views regarding the relative = inertness of=20 chrysotile fibers in mesothelioma causation. In fact, examination of = all=20 pertinent studies makes it clear that chrysotile asbestos is = similar in=20 potency to amphibole asbestos. =20 Since asbestos is the major cause of mesothelioma, and = chrysotile=20 constitutes 95% of all asbestos use world wide, it can be = concluded that=20 chrysotile asbestos is the main cause of pleural mesothelioma in=20 humans.

In=20 another study, Dr. Yasunosuke Suzuki examined the lung and = mesothelial=20 tissues of 151 individuals diagnosed with mesothelioma and found = that in=20 sixty-eight percent of the cases, the mesothelial tissue contained = only=20 chrysotile fibers=97that is, there was a complete absence of = amphibole=20 fibers. This = observation led=20 Dr. Suzuki to conclude that =93chrysotile fibers [a]re capable of = inducing=20 human malignant mesothelioma.=94 Georgia-Pacific did not = call any=20 expert witnesses, or rely on any studies reaching the opposite=20 conclusion.

To=20 support their claim of specific causation, the Stephenses=92 = experts relied=20 on four studies addressing occupational exposure to joint compound = among=20 tapers and sheetrock workers. =20 Three of these studies measured the average levels of = airborne=20 asbestos fibers from joint compound products to which sheetrock = workers=20 are exposed on a daily basis. =20 For example, one study found that the mean asbestos fiber=20 concentration during pole sanding, which typically consumes ten to = fifteen=20 percent of a worker=92s day, was ten fibers per cubic=20 centimeter.[5] The same study found = that a worker=20 standing eight feet away from the individual doing the pole = sanding would=20 be exposed to 8.6 fibers per cubic centimeter on average, while a = worker=20 standing twenty-five feet away would be exposed to 4.8 fibers per = cubic=20 centimeter. The = study also=20 found that a worker mixing dry joint compound, which typically = takes sixty=20 to ninety seconds, would be exposed to 47.2 fibers per cubic = centimeter on=20 average. Someone = standing ten=20 to twenty feet away would be exposed to 5.8 fibers per cubic = centimeter,=20 while someone standing sixteen to thirty-five feet away would be = exposed=20 to 2.6 fibers per cubic centimeter. =20 Finally, the study found that, fifteen minutes after a = worker=20 finished sweeping dust from joint compound off the floor, he would = be=20 exposed to 41.4 fibers per cubic centimeter on average. The average exposure = decreased to=20 26.4 fibers per cubic centimeter thirty-five minutes after = sweeping. The study authors noted = that many=20 of these exposures exceeded the then-existing OSHA =93threshold = limit value=94=20 of five fibers per cubic centimeter.[6]

A=20 second study found similar, but generally lower, mean asbestos = fiber=20 concentrations. For = instance,=20 it found that a worker mixing dry joint compound would be exposed = to 11.2=20 fibers per cubic centimeter on average. An individual pole = sanding would=20 be exposed to 4.6 fibers per cubic centimeter, while an individual = hand=20 sanding would be exposed to 11.5 fibers per cubic centimeter. A worker sweeping would = be exposed=20 to 19.6 fibers per cubic centimeter. =20 The third study reached similar conclusions. These three exposure = studies,=20 however, dealt solely with potential exposures during the mixing = and=20 sanding processes=97they did not attempt to correlate the = exposures to any=20 incidence of mesothelioma or asbestos-related disease among the = study=20 subjects.

While=20 the fourth study investigates mesothelioma among workers exposed = to=20 asbestos, the authors did not measure exposure levels=97rather, = they=20 undertook a mortality analysis involving 12,873 deceased members = of the=20 Operative Plasterers=92 and Cement Masons=92 International = Association, a=20 union composed of plasterers, cement masons, and shophands. The study described = plasterers=92=20 job duties as follows:

Plasterers,=20 in general, are responsible for all interior and exterior = plastering of=20 drywall, cement, stucco, and stone imitation as well as the=20 taping[7] and=20 pointing of all joints, nail holes and bruises on wallboard or=20 drywall. Plasterers = are also=20 responsible for the preparation, installation, and repair of all = interior=20 and exterior insulation systems, and the fireproofing of steel = beams and=20 columns. = Approximately 10% of=20 the plasterers=92 duties involve insulation=20 work . . . .

The=20 study thus noted that plasterers are = exposed to=20 asbestos from a variety of sources, including spray insulation,=20 plastering, taping, asbestos removal during demolition projects, = and=20 fireproofing mixture. Plasterers=20 comprised about one-third of the study=20 population.

The=20 authors conducted a proportionate mortality ratio (=93PMR=94) = analysis by=20 comparing the number of deaths in the study population = attributable to a=20 certain disease with the number of deaths expected from that = disease. For example, there were = 1,157=20 observed deaths from diseases of the respiratory system generally, = compared with 1,155 expected deaths, leading to a PMR of 100. For asbestosis = specifically, there=20 were fifteen observed deaths, compared with only two expected, = leading to=20 a PMR of 693.

With=20 respect to mesothelioma, the study concluded as follows:=20 =93Mesothelioma, a = relatively=20 rare cancer death, was observed for four members and the risk was=20 elevated, PMR=3D188, but not statistically significant.=94 The authors later = explained,=20 however, that mesothelioma is frequently misdiagnosed. Consequently, the = authors=20 =93manually reviewed all hard copy death certificates in [thei]r = possession=20 (N=3D9,449) to obtain a more accurate assessment of = mesothelioma-related=20 deaths in this cohort. = [They]=20 identified 40 mesothelioma deaths; even though only one-third of = [the]=20 cohort were plasterers, 50% of those who died of mesothelioma = worked in=20 this trade.=94

The study=92s = ultimate conclusion=20 is that the PMR for mesothelioma resulting from the cohort=92s = exposure to a=20 variety of asbestos-containing products is 188 (which we assume is = synonymous with a relative risk of 1.88),[8]=20 but the study authors observed that such an increase is not = statistically=20 significant.[9] And, although the study = authors=20 manually reviewed 9,449 death certificates and identified = thirty-six=20 additional cases of mesothelioma, they did not calculate a new PMR = (i.e.,=20 relative risk) using this revised data or discuss its statistical=20 significance.[10] They noted, however, = that =93deaths=20 [due to mesothelioma] are considered to be quite rare in the = general=20 population.=94 =20

=20 b. =20 Evidence of Frequent-Regular-Proximate Contact=20

=20 The Stephenses=92 expert witnesses were unable to estimate = Fred=92s=20 exposure to Georgia-Pacific joint compound. For example, Jerry = Lauderdale, the=20 Stephenses=92 industrial hygiene expert, testified that Fred = =93was exposed to=20 joint compounds, including Georgia-Pacific, on numerous = occasions. As far as how much, I = can=92t give=20 you a quantitative estimate of how much he was exposed to. . . = . It=92s not = scientifically possible=20 to come up with a meaningful estimate of what that was.=94 In fact, he conceded = that =93it=20 would be a guess rather than a scientific exercise=94 to determine = =93how many=20 times [Fred] was actually exposed to joint=20 compound.=94

Fred=20 and his crew painted interior walls about seven to twelve percent = of the=20 time, and other workers were doing sheetrock work on about fifty = to=20 seventy-five percent of these jobs. =20 They worked in close proximity to the sheetrock workers, = who mixed=20 and sanded joint compound, both of which were dusty = processes. Before Fred and his crew = could=20 paint, they had to sweep dust off the floor. Moreover, the spray = painting=20 process itself stirred up asbestos dust. The record does not = reveal,=20 however, how frequently this dust came from Georgia-Pacific=92s = joint=20 compound, as opposed to one of the other joint compound products = Fred=92s=20 coworkers recalled seeing on their job sites. Fred=92s coworkers = recalled seeing=20 ten different joint compound products: Kaiser Gypsum, Bestwall, = Flintkote,=20 Gold Bond, Georgia-Pacific Ready-mix, Georgia-Pacific dry powder, = Kelly=20 Moore patching, Paco, Durabond, and USB. Lenius testified that = Kaiser=20 Gypsum, Gold Bond, and Flintkote were used most frequently. =

=20 In this record, there is no evidence concerning the = percentage of=20 Georgia-Pacific joint compound used in comparison to the quantity = of other=20 products used on Fred=92s job sites, nor any quantitative estimate = of the=20 number of times Georgia-Pacific joint compound was used on = Fred=92s job=20 sites. On the other = hand,=20 there is evidence that three other joint compounds were used more=20 frequently than Georgia-Pacific=92s product. Thus, although there was = evidence=20 that Fred was exposed to asbestos-containing joint compound = generally,=20 there was no quantitative evidence presented upon which Fred=92s = experts=20 could rely to determine that he was exposed to Georgia-Pacific=92s = product=20 in sufficient quantities to have increased his risk of developing=20 mesothelioma. See Borg-Warner, 2007 WL = 1650574,=20 at *6 (=93[A]bsent any evidence of dose, the jury could not = evaluate the=20 quantity of respirable asbestos to which Flores might have been = exposed or=20 whether those amounts were sufficient to cause asbestosis. Nor did Flores introduce evidence regarding what = percentage=20 of that indeterminate amount may have originated in Borg-Warner=20 products.=94).

Other=20 courts that have considered similar factual scenarios have reached = the=20 same conclusion. = For example,=20 the Eastland Court of Appeals recently decided a case in which a = brake=20 worker had inhaled asbestos dust from installing the brake = products of six=20 different manufacturers. = Vaughn v. Ford Motor = Co., 91=20 S.W.3d 387, 393 (Tex. App.=97Eastland 2002, pet. denied). When Vaughn was asked = whether he=20 had used the various products equally, one more than another, or = one less=20 than another, he replied that he did not know. Id. The court, applying = Illinois law=20 regarding the frequency-regularity-proximity test, concluded that, = =93[a]lthough there was evidence from which a jury could have = found that=20 Vaughn=92s exposure to asbestos-containing brake products was a = cause of his=20 [mesothelioma] and evidence that each exposure contributed to his = disease,=20 there was no evidence from which a jury could have found that = Vaughn was=20 frequently exposed to any particular defendant=92s brake = product.=94 Id. at 392,=20 394.

Likewise,=20 the United States Court of Appeals for the Eighth Circuit decided = a case=20 in which several witnesses testified that they had either seen or=20 installed Owens-Corning Kaylo insulation at a tire plant. See Jackson, 994 = F.2d at=20 1304. The evidence = indicated=20 that numerous other insulation products were also in use at the=20 plant. See id. at 1299. The court found that the = plaintiffs had failed to meet the frequency-regularity-proximity = test,=20 stating as follows:

With=20 respect to the bystander plaintiffs, we find that the evidence . . = . is=20 insufficient to support a jury finding that Owens-Corning=92s = products were=20 more likely than not a proximate cause of the plaintiffs=92 = injuries. The plaintiffs=92 = witnesses have not=20 stated how much Kaylo insulation was used at the Mohawk plant, how = often=20 it was used, and where in the plant it was used. They have not given an = estimate as=20 to the amount of Kaylo used in relation to the other insulation = products=20 installed in the plant. = They=20 have, therefore, failed to show the frequency and regularity of = the use of=20 Kaylo insulation.

Id.=20 at 1305.

Other=20 products at issue in the case were gaskets and packing materials=20 manufactured by a company called Chesterton. Id. at = 1307. With respect to a = particular=20 plaintiff=92s frequency and regularity of exposure, the Eighth = Circuit=20 observed as follows:

Carr=20 testified that he had worked with gaskets and packing =93many = times=94 during=20 his years as a mechanic. =20 Thus, it appears at first glance that Carr has satisfied = the=20 =93frequency, regularity and proximity=94 test. Carr=92s case has a = missing link,=20 however. Although = Carr said=20 that he had used gaskets and packing many times, the record = contains no=20 evidence that he used Chesterton gaskets and packing many = times. We have no way of = knowing whether=20 Carr selected Chesterton products for two jobs or two hundred=20 jobs.

Id.=20 at 1308; compare Robertson v. Allied Signal, Inc., 914 F.2d = 360,=20 378 (3d Cir. 1990) (frequency-regularity-proximity=20 test not met where, although several witnesses were able to place=20 defendant=92s asbestos-containing product in plant, no witness was = able to=20 say how much of product was used and how many times it was used in = given=20 area), and Lohrmann, 782=20 F.2d at 1163 (exposure to asbestos-containing pipe = covering=20 on ten to fifteen occasions of between one and eight hours = duration=20 insufficient to satisfy frequency-regularity-proximity test), = with=20 Rotondo v. Keene Corp., 956=20 F.2d 436, 442 (3d Cir. 1992) = (frequency-regularity-proximity test=20 met where evidence showed that plaintiff worked in boiler room at = least=20 two days per week for at least three to four months, and = pipecoverers used=20 defendant=92s asbestos-containing product in boiler room fifty = percent of=20 time), and Goss v. Am. Cyanamid, Co., 650 A.2d 1001, 1006 (N.J. = Super. Ct.=20 App. Div. 1994) (frequency-regularity-proximity test met = where=20 plaintiff testified that =93most=94 asbestos pipe covering he used = was=20 manufactured by defendant, and coworker testified that he used = defendant=92s=20 pipe covering approximately ninety percent of time and installed = it in=20 areas where plaintiff regularly worked). But cf. Owens-Corning = Fiberglas=20 Corp. v. Garrett, = 682 A.2d=20 1143, 1156=9657 (Md. 1996) (holding that=20 frequency-regularity-proximity test was satisfied by coworkers=92 = general=20 testimony that they used variety of asbestos-containing products = at plant,=20 including defendant=92s product, and their testimony was = corroborated by=20 invoices showing purchase of defendant=92s=20 product).

3. = Legal=20 Sufficiency of the Evidence = Presented

=20 Borg-Warner requires=20 that, for a plaintiff to prove specific causation by relying on=20 epidemiological studies showing an increased risk of developing=20 mesothelioma, he must show that the frequency and regularity of = his=20 exposure to the asbestos-containing product is comparable to or = greater=20 than that of the individuals in the studies upon which he = relies. See 2007 WL 1650574, at = *5. As discussed above, the = evidence=20 of Fred=92s exposure to Georgia-Pacific=92s joint compound is = legally=20 problematic because it lacks the quantitative element that Lohrmann and Borg-Warner = require. See id. at *6. Without quantifying = Fred=92s=20 exposure to Georgia-Pacific joint compound, the Stephenses=92 = experts=20 inferred causation by opining that every exposure to an=20 asbestos-containing product =93contributes to cause=94 = mesothelioma. That is, the experts = posited that=20 all asbestos fibers cause mesothelioma because all asbestos fibers = have=20 the ability to cause cancer-inducing mutations in cells and it is = not=20 possible to pinpoint which particular fibers actually caused the=20 mutations. Dr. = Hammar=20 summarized the theory as follows: =93I think you would have to say = that . .=20 . any exposure that [Fred] had to asbestos from when he first = started=20 working up until, say, 1986, is causative of his = mesothelioma.=94 =

The=20 Stephenses=92 experts failed to show, however, that the =93any = exposure=94=20 theory is generally accepted in the scientific community=97that any exposure to a = product that=20 contains asbestos results in a statistically significant increase = in the=20 risk of developing mesothelioma. =20 Each of the experts acknowledged at trial that = mesothelioma, like=20 asbestosis, is dose responsive=97some non de minimus occupational = exposure=20 must occur to increase one=92s risk of developing the = disease. Although the lay = testimony=20 presented at trial is sufficient to show that Fred worked in close = proximity to asbestos-containing joint compound generally, it is = legally=20 insufficient to show that Fred frequently and regularly worked in = close=20 proximity to Georgia-Pacific joint compound so as to be = exposed to=20 enough of its asbestos to increase his risk of developing = mesothelioma.=20 The record does not = contain=20 any quantitative estimate of Fred=92s exposure to = Georgia-Pacific=92s joint=20 compound, as the Stephenses=92 experts conceded.[11] Moreover, although the = literature=20 and scientific studies the Stephenses=92 experts relied upon = support a=20 reasonable inference that exposure to chrysotile asbestos can = increase a=20 worker=92s risk of developing mesothelioma, none of the studies = undertake=20 the task of linking the minimum exposure level (or dosage) of = joint=20 compound with a statistically increased risk of developing of the=20 disease. The = experts in this=20 case, which was tried before the Borg-Warner decision, = instead=20 relied upon the =93any exposure=94 theory of causation that the = Texas Supreme=20 Court has rejected.[12] Without quantitative = evidence of=20 exposure and any scientific evidence of the minimum exposure level = leading=20 to an increased risk of development of mesothelioma, we hold that = the=20 opinions offered by the Stephenses=92 experts in this case lack = the factual=20 and scientific foundation required by Borg-Warner and thus are = legally=20 insufficient to support the jury=92s causation=20 finding.

IV.=20 CONCLUSION

=20 Applying the Texas Supreme Court=92s test in Borg-Warner for specific = causation=20 in asbestos cases, we conclude that the expert testimony regarding = causation presented at trial is legally insufficient proof of=20 substantial-factor causation necessary to support the jury=92s = negligence=20 and strict liability marketing defect verdicts against=20 Georgia-Pacific. We = therefore=20 reverse and render.

&nbs= p; = ; = &= nbsp; =20 =20 Jane Bland

&nbs= p; = ; = &= nbsp; =20 =20 Justice

Panel consists of = Justices=20 Alcala, Hanks, and Bland.