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Click here for the full text of this decision FACTS:Pearlie Bailey, individually and as administratrix of the estate of James E. Bailey, deceased, James Thibodeaux, Kevin Bailey, Paul Bailey, and Carolyn Bailey sued Mobil Oil Corp., Mobil Oil Refining Corp. and Mobil Chemical Company Inc. for the wrongful death of James Bailey from lung cancer. The Baileys’ suit alleged James’ death was caused by his exposure to asbestos on Mobil’s premises. The jury found Mobil’s negligence caused James’ death and awarded $350,000 in actual damages (most of the actual damages were offset by settlement credits). Further, the jury found the harm to James resulted from malice and awarded $500,000 in exemplary damages. The trial court denied Mobil’s post-trial motions and entered judgment on the verdict. James worked at Mobil’s Beaumont facilities sporadically from the years 1966 to 1972. James’ work assignments on Mobil’s premises subjected him to asbestos exposure. His work history also indicated he had been exposed to asbestos at other work sites. James was a longtime smoker, and that for the last 40 to 50 years of his life, he smoked a full pack of cigarettes per day. There was no evidence at trial of asbestos exposure, such as the presence of asbestos bodies in James’ lungs, scarring of his lung tissue, or pleural thickening. HOLDING:Reversed and rendered. Mobil’s theory was that James’ heavy smoking history alone caused his lung cancer because of the complete absence of asbestos-related indicators in his lungs. As the proponent of expert testimony, the Baileys had the burden to raise a fact issue as to specific causation, i.e., to offer competent evidence that asbestos exposure, more likely than not, caused James’ lung cancer, and also to negate with reasonable certainty James’ heavy smoking history as the other plausible cause of his lung cancer. The Baileys’ medical causation experts were Dr. Gary Friedman and Dr. Richard Lemen. “In support of their causation experts’ testimony, the Baileys direct our attention to certain “scientific literature” upon which Drs. Friedman and Lemen relied for their respective opinions. Some of this scientific literature we have been able to locate as exhibits in the record and some we have not. “In none of the exhibits to which the Baileys have directed us is the employed methodology entirely clear, given that the authors of the studies admit to knowledge of studies reaching the opposite results.” The court notes that in one article, the authors suggest that the theory that asbestos causes lung cancer in the absence of asbestosis is not settled. The court finds that a study published in the April 29, 1995, issue of the British medical journal “The Lancet” is the only one representative of the type of epidemiological study sufficiently reliable under the Havner/Robinson standards. Merrell Dow Pharmaceuticals Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 550 (Tex. 1995). However, the Havner court noted that it was not holding a single reliable epidemiological test is legally sufficient evidence of causation. The court finds that the testimony from the Baileys’ causation experts does not include any careful exploration and explication of what is reliable scientific methodology in the context of epidemiological studies linking asbestos exposure to a subsequent lung cancer diagnosis in a heavy smoker who is otherwise asymptomatic with regard to additional “typical” asbestos-related maladies. Neither of plaintiffs’ two causation experts made a sufficient showing that the relevant scientific community had generally accepted the theory of synergism between cigarette smoke and asbestos, or even if accepted, that the scientific community had generally accepted the theory that there were no physical prerequisites to this heavy smoking/asbestos exposure synergism. “Furthermore, what are we to make of the fact that each of the Baileys’ causation experts made James’ heavy smoking history at least equally responsible for his lung cancer as his asbestos exposure? Recall that Havner admonishes reviewing courts that, if other plausible causes exist that could be negated, plaintiffs must offer evidence excluding those other plausible causes of the injury or condition”with reasonably certainty.’” OPINION:Kreger, J.; McKeithen, C.J., Kreger and Gaultney, JJ.

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