by Eric G. Lasker, Richard O. Faulk
Washington Legal Foundation
August 13, 2014
While the Texas Supreme Court rejected a formalistic adherence to “but for” causation in mesothelioma, the essence of “but for” still survives because, “but for” legally sufficient proof of exposure to the particular defendant’s product, the defendant cannot be held liable. The requirement of legally sufficient proof applicable to exposure to each defendant’s product remains, and the challenges associated with meeting that requirement remain the same. Perhaps the cohesiveness of this holding will influence other states to define “substantial factor” similarly, or perhaps they will cleave to regrettable “solutions” that rely on fictions, as opposed to evidence. In Texas, however, the asbestos litigation floodgates remain in the same position as they were before Bostic was decided—tightly closed.