In Georgia Pac. Corp. v. Stephens, 239 S.W.3d 304, 308 (Tex. App.--Houston 1st Dist. 2007, pet. denied), a jury trial case, the plaintiff not only failed to provide legally sufficient evidence of frequent, regular, and proximate exposure to Georgia Pacific's product, but he also failed to show a minimum dose at which an increased risk of mesothelioma from chrysotile-only asbestos exposure would occur. Id. at 321.
Stephens's experts testified instead that there is no minimum level of exposure to chrysotile asbestos below which an increased risk of injury does not occur, despite acknowledging that asbestos fibers are present in the ambient air we breathe, especially in urban areas; in other words, the experts testified that any exposure to chrysotile asbestos increases the risk of injury. Id. at 314-15.
The court of appeals held that Borg-Warner Corporation v. Flores, requires proof of more than "any exposure" as a minimum level to which the aggregate dose can be compared; otherwise, there is no way to determine whether the product was a substantial factor in causing the plaintiff's mesothelioma as opposed to it being attributable to asbestos exposure in the ambient air. Id. at 321.
Dr. Hammar "expressed an opinion that each and every exposure that an individual has in a bystander occupational setting causes their mesothelioma." Stephens, 239 S.W.3d at 315.
Dr. Hammar testified that any exposure the deceased commercial painter had throughout the time he worked was causative of his mesothelioma. Id. at 320.
The plaintiffs in Stephens relied on the testimony of Jerry Lauderdale, an industrial hygienist. Id. at 314.
Lauderdale testified that asbestos-related diseases are based on cumulative exposures and that there is no way to isolate a particular exposure that caused development of the disease. Id. at 315.
It was Lauderdale's opinion "that every exposure does contribute to the development of--potential to develop mesothelioma." Id.
The court noted that the experts failed to show that "the 'any exposure' theory is generally accepted in the scientific community--that any exposure to a product that contains asbestos results in a statistically significant increase in the risk of developing mesothelioma." Id. at 320-21.
The "each and every exposure" theory was rejected in Stephens. Id. at 314-15, 320-21.
In Stephens, there was no quantitative evidence of the plaintiff's exposure to Georgia-Pacific asbestos-containing joint compound, the product also at issue there. Id. at 321.
Although the literature and scientific studies the experts relied upon supported a reasonable inference that exposure to chrysotile asbestos can increase a worker's risk of developing mesothelioma, none of those studies undertook the task of linking the minimum exposure level (or dosage) of joint compound with a statistically significant increased risk of developing of the disease. Id.