No Asbestos Decision Review By Texas High Court

The Texas Supreme Court has rejected a request to revisit its finding that asbestos injury plaintiffs must prove substantial harmful exposure to an asbestos product to successfully sue a manufacturer.

Notice that the petition for a rehearing in the case of Borg-Warner v. Flores, was denied was posted on the court's Web site today.

The case at issue was brought in 2001 by brake mechanic Arturo Flores, who claimed that he had developed work-related asbestosis from asbestos in brake pads.

Mr. Flores sued contending his exposure came from brake pads manufactured by Borg-Warner between 1972 and 1975 that he used five to seven times per week. Borg-Warner is now known as Burns International Services Corp.

The high court in a June 8 decision tossed out a jury verdict finding the manufacturer had acted with negligence and malice and was strictly liable for Mr. Flores' illness.

“While science has confirmed the threat posed by asbestos, we have not had the occasion to decide whether a person's exposure to 'some' respirable fibers is sufficient to show that a product containing asbestos was a substantial factor in causing asbestosis,” the court said, adding that “we conclude that it is not.”

Effectively, the court said, Mr. Flores was not able to provide evidence that any asbestos exposure he suffered while working on Borg-Warner brake pads played a substantial role in his illness.

“This record,” Chief Justice Wallace Jefferson wrote of the evidence presented at trial, “reveals nothing about how much asbestos Flores might have inhaled.”

Mr. Flores, he said, performed roughly fifteen to twenty brake jobs per week for over thirty years, and had certainly been exposed to “some asbestos” on a regular basis during that time period.

“Nevertheless, absent any evidence of dose, the jury could not evaluate the quantity of respirable asbestos to which Flores might have been exposed or whether those amounts were sufficient to cause asbestosis,” he said. “Nor did Flores introduce evidence regarding what percentage of that indeterminate amount may have originated in Borg-Warner products.”

In seeking the rehearing, Mr. Flores' attorneys contended the court erred by holding there was no evidence to support the verdict that Borg-Warner conduct was a substantial factor in causing Mr. Flores' asbestosis. Mr. Flores, they noted, testified he used, and was exposed to visible dust from Borg-Warner brake pads on a “frequent” and “regular” basis over four years.

The plaintiff's testimony was enough to allow the verdict, the plaintiff's motion argued.

His court papers also contended that the court's opinion if allowed to stand would mean plaintiffs in asbestos cases would have to present expert testimony, which it was argued would be an expensive and time consuming exercise that other courts had found to be unnecessary.