In Re: Asbestos Litigation. Victor Cruz.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY IN RE: ASBESTOS LITIGATION Limited to: Cruz, Victor : : : : C.A. No. 09C-10-088ASB UPON DEFENDANT GEORGIA-PACIFIC LLC S MOTION FOR SUMMARY JUDGMENT GRANTED This19th day of January, 2011, it appears to the Court that: 1. After Plaintiff Victor Cruz ( Cruz ) was diagnosed with mesothelioma, Plaintiffs instituted this action against various defendants they allege caused Cruz s disease by exposing him to asbestos. Defendant GeorgiaPacific LLC ( Georgia-Pacific ) has moved for summary judgment on the basis that Plaintiffs have not produced evidence sufficient to prove under Texas law that exposure to its products constituted a substantial factor in causing Cruz s mesothelioma. 2. Plaintiffs claims against Georgia-Pacific are based upon Cruz s use of Georgia-Pacific Ready Mix joint compound during summers and certain weekends from 1968 to 1972, when he worked with his father on construction projects while a high school student. During deposition testimony, Cruz was unable to offer any particular estimate as to how often he worked with his father on weekends or during the summer, although he recalled that he did not work every weekend or every summer work day. He also could not specify whether GeorgiaPacific was the only brand of joint compound his father used. 3. In Borg-Warner Corp. v. Flores, the Texas Supreme Court held that a plaintiff in an asbestosis case can establish substantial-factor causation by presenting [d]efendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease. 1 In meeting this standard, proof of . . . frequency, regularity, and proximity [of exposure to a defendant s asbestos-containing product] is necessary but not sufficient, as it provides none of the quantitative information necessary. 2 Although the Flores court emphasized that mathematical precision is not required (nor generally achievable), it nonetheless found that mere evidence of some exposure to asbestos is insufficient. 3 In the absence of any evidence as to dose, a plaintiff proceeding under Texas law has not presented a triable question as to substantialfactor causation. 4 In subsequent decisions, Texas courts have applied the principles of Flores to mesothelioma cases. 5 1 232 S.W.3d 765, 773 (Tex. 2007). 2 Id. at 772. 3 Id. at 773 4 Id. at 771-72. 5 See, e.g., Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304 (Tex. App. 2007). 2 4. Upon review of the record, the Court agrees with Georgia-Pacific that Plaintiffs cannot satisfy the Texas substantial-factor causation standard under Flores. Although Plaintiffs have provided epidemiological studies regarding the release of friable asbestos associated with joint compounds generally, as well as a report authored by Dr. William Longo and others addressing the particular Ready Mix product at issue in this case, Plaintiffs have not constructed the necessary link between this data and any calculation of an estimated dose particular to Cruz. Because Cruz s deposition offers no specific information regarding how frequently he assisted his father in construction work, let alone how frequently he and his father used Georgia-Pacific Ready Mix as opposed to other products during that work, it offers no basis for a non-speculative approximation of dose attributable to Georgia-Pacific Ready Mix. Although Flores does not demand mathematical precision, it does require at least quantitative approximation of dose. Plaintiffs have not met that standard, and Georgia-Pacific s Motion for Summary Judgment must therefore be GRANTED. IT IS SO ORDERED. Peggy L. Ableman, Judge Original to Prothonotary cc: All counsel via File & Serve 3
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