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Click here for the full text of this decision FACTS:Arturo Flores, 66, was a retired brake mechanic. Flores spent much of his working life from 1966 until his retirement in 2001 in the automotive department at Sears in Corpus Christi. While there, Flores handled several brands of brake pads, including those manufactured by Borg-Warner. Flores used Borg-Warner pads from 1972 to 1975, on five to seven of the roughly 20 brake jobs he performed each week. Borg-Warner disk brake pads contained chrysotile asbestos fibers. Flores’ job involved grinding the pads so that they would not squeal. The grinding generated clouds of dust that Flores inhaled while working in a room that measured roughly 8 feet by 10 feet. Flores sued Borg-Warner and others, alleging that he suffered from asbestosis caused by working with brakes for more than three decades. At the week-long trial, Flores presented the testimony of two experts, Dr. Dinah Bukowski, a board-certified pulmonologist, and Dr. Barry Castleman, Ph.D., an “independent consultant in . . . the field of toxic substance control.” Bukowski examined Flores on a single occasion in May 2001. She reviewed Flores’ X-rays, which revealed interstitial lung disease. Although there were more than 100 causes (including smoking) of such disease, Bukowski diagnosed Flores with asbestosis, based on his work as a brake mechanic coupled with an adequate latency period. According to Bukowski, asbestosis is “a form of interstitial lung disease, one of the scarring processes of the lungs caused from the inhalation of asbestos and found on biopsy to show areas of scarring in association with actual asbestos bodies or asbestos fibers.” Bukowski noted that asbestosis can be fatal and is progressive, meaning that the scar tissue increases over time. Once inhaled, the fibers cannot be expelled, and there is no known cure for asbestosis. She asserted that Flores’ asbestosis could worsen; that he could suffer stiffening of his lungs, loss of lung volume, and difficulty with oxygenation. She acknowledged that everyone is exposed to asbestos in the ambient air; “it’s very plentiful in the environment, if you’re a typical urban dweller.” She conceded that Flores’ pulmonary function tests showed mild obstructive lung disease unrelated to asbestos exposure. Castleman testified that he wrote numerous articles in peer-reviewed journals, as well as a book titled “Asbestos: Medical and Legal Aspects.” Chapter 8 of the book, titled “Asbestos Disease in Brake Repair Workers,” discussed asbestos-related risks to brake mechanics and reviewed the published and some unpublished literature on asbestos as a hazard to brake mechanics. Castleman did not conduct independent research regarding the brake industry; instead, his research involved “look[ing] at what was publicly available.” Castleman testified that brake mechanics can be exposed to asbestos during brake servicing and brake repair jobs. He described a conference on the hazards of brake repair held by Ford of Britain in 1969 and published in 1970 in the Annals of Occupational Hygiene. That conference evaluated the levels of exposure to asbestos fiber in the air from brake servicing jobs, and “it showed that the levels of exposure could be . . . significant.” This and other evidence led Castleman to conclude “that the hazards to brake mechanics were effectively accepted by the asbestos manufacturers” when Flores allegedly became injured by the asbestos. Flores admitted to smoking from the time he was 25 until three weeks before trial. Flores’ cardiologist reported a 50-pack-a-year smoking history for Flores, greater than the 15- to 20-pack per year history that Flores reported to Bukowski. At the time of trial, Flores’ chief medical complaint was shortness of breath, which he testified manifested itself primarily after he had been mowing the lawn for 35-40 minutes. Flores also suffered from coronary artery disease and high cholesterol. Borg-Warner’s expert, pulmonologist Dr. Kathryn Hale, examined Flores and testified that, in her opinion, he did not have asbestosis and that his X-rays did not show “any asbestos disease.” She also testified that she had reviewed the literature, including epidemiological studies involving brake mechanics, and had not seen any articles indicating that auto mechanics suffered an increased risk of lung cancer or mesothelioma. The jury found that: 1. Flores sustained an asbestos-related injury or disease; 2. Borg-Warner’s negligence (as well as that of three other settling defendants) proximately caused Flores’ asbestos-related injury or disease; 3. all four defendants were “engaged in the business of selling brake products”; and 4. the brake products had marketing, manufacturing and design defects, each of which was a producing cause of Flores’ injury. The jury apportioned to Borg-Warner 37 percent of the causation and 21 percent to each of the other three defendants. The jury awarded Flores $34,000 for future physical impairment, $34,000 for future medical care, $12,000 for past physical pain and mental anguish, and $34,000 for future physical pain and mental anguish. In the second phase of the bifurcated trial, the jury found, by clear and convincing evidence, that Flores’ injury resulted from malice and awarded $55,000 in exemplary damages against Borg-Warner. The trial court signed a judgment in conformity with the verdict, and Borg-Warner appealed. The 13th Court of Appeals affirmed. Borg-Warner petitioned for review arguing, among other things, that a plaintiff claiming to be injured by an asbestos-containing product must meet the same causation standards that other plaintiffs do. The Texas Supreme Court granted the petition. HOLDING:Reversed and rendered. In analyzing the legal sufficiency of Flores’ negligence claim, the court held that the 13th Court erred in holding that “[i]n the context of asbestos-related claims, if there is sufficient evidence that the defendant supplied any of the asbestos to which the plaintiff was exposed, then the plaintiff has met the burden of proof.” Instead, the court held that a plaintiff must prove that the defendant’s product was a substantial factor in causing the alleged harm. Such proof of causation, the court stated, may differ depending on the product at issue. In some products, the court noted, the asbestos is embedded and fibers are not likely to become loose or airborne, while in other products the asbestos becomes airborne. “That is not the situation here,” the court stated, because “the asbestos at issue was embedded in the brake pads.” Castleman, the court stated, testified that brake mechanics could be exposed to some respirable fibers when grinding pads or blowing out housings, and Flores testified that the grinding generated dust. Without more, the court stated it did not know “the contents of that dust, including the approximate quantum of fibers to which Flores was exposed.” In keeping, the court stated, with the de minimis rule required by its precedent, the court concluded that legally insufficient evidence of causation supported the judgment. OPINION:Jefferson, C.J. delivered the opinion of the court. O’Neill, J., did not participate in the decision.

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