Drywall Mud and Muddy Doctrine: How Not to Decide a Multiple-Exposure Mesothelioma Case

Abstract

In a tort case, the element of factual causation is supposed to be just that -- factual. When proof of factual causation is difficult, however, as in toxic tort cases, policy considerations often creep into judicial opinions where they do not belong. Mesothelioma cases in which the plaintiff or decedent has been exposed to asbestos from multiple sources, especially if the individual exposures are relatively small, have presented particularly difficult proof problems and particularly powerful temptations for the expression of judicial policy preferences. This paper explores these phenomena by analysis of a 2014 decision by the Supreme Court of Texas, Bostic v. Georgia-Pacific Corp. The paper argues that Bostic created a test for factual causation that is internally inconsistent and undermines traditional and coherent tort doctrine. The paper also discusses insights that can be gleaned from Bostic concerning the evolution of common-law doctrine and the dialogue between courts and legal scholars.