The case arose from a no-evidence summary judgment Howmet won in the 11th District Court of Harris County, where it had been transferred as a tag-along to In re: Asbestos Litigation. The Houston Fourteenth Court of Appeals reversed, ruling the Burfords did not need to produce quantitative dose evidence because the plaintiffs showed Howmet was the sole source of the decedent's asbestos exposure.
In doing so, the court of appeals set aside the Texas Supreme Court's statement in Bostic v. Georgia-Pacific Corp. that "even in a single-exposure case, we think that proof of dose would be required," calling it "nonbinding obiter dicta" and saying the Bostic court had been "pointing out possibilities rather than making very deliberate statements."
Justice Young called that approach "troubling." He wrote that "absent evidence that he was exposed to a minimum disease-causing quantum of asbestos from the defendant, how could a jury reasonably conclude that the defendant caused him to incur a compensable asbestos-related injury?"
"At some point, this Court will need to take a case to examine this issue," Young wrote, noting the court has "not yet directly ruled upon questions concerning the quantitative evidence of dose with respect to single-source-exposure asbestos cases."
Young said he would nonetheless concur in denying review because the petition "ultimately would not allow us to resolve the issue." The court of appeals held in a footnote that even if dose proof were required, the Burfords had produced sufficient evidence to survive summary judgment. The trial court had found that the Burfords' expert cited published literature showing dose levels at which asbestos exposure has been determined to cause asbestosis and that Carolyn Burford's alleged dose was consistent with those levels.
Howmet's petition primarily argued that a proper epidemiological study is always required regardless of whether the defendant is the only source of exposure. Young wrote that he took "no position on that assertion" and focused instead on "the court of appeals' jettisoning of our considered statement in Bostic."
Young devoted a section of the concurrence to the court of appeals' authority to treat Bostic's statement as dicta. Citing Seger v. Yorkshire Insurance Co., he wrote that judicial dictum — "a statement made deliberately after careful consideration and for future guidance" — is "at least persuasive and should be followed unless found to be erroneous." The Bostic statement, he said, "likely falls on the judicial side" because it was made in direct response to a dissent focused on single-exposure cases.
"Courts of appeals are not free to disregard pronouncements from this Court," Young wrote, quoting In re K.M.S. He added that by dispensing with the proof-of-dose requirement, the court of appeals "may have inched dangerously close to a mutated 'frequency, regularity, and proximity' test, one not unlike what we said was 'necessary but not sufficient' for substantial-factor causation" in Borg-Warner Corp. v. Flores.
The concurrence identified a split among intermediate courts. The Corpus Christi–Edinburg court in Union Carbide Corp. v. Torres recognized that single-source-exposure cases may require proof of dose, and the Houston First Court in Mullins v. Atlantic Richfield Co. rejected a plaintiff's argument that the requirement did not apply where only a single source exposed the decedent.
Young wrote that "by denying this petition, the Court expresses no view — certainly not approval — of the court of appeals' assertion that proof of dose is not required in a single-exposure case," quoting Loram Maintenance of Way, Inc. v. Ianni for the proposition that "declining to review a case is not evidence that the Court agrees with the law as decided by the court of appeals."
Frank Burford worked for 30 years at Howmet's aluminum-smelting plant in Rockdale, Texas. According to facts recounted in the opinion in the light most favorable to the plaintiffs, Carolyn Burford shook out and washed his work clothes nearly every day for 25 years. She was diagnosed with asbestosis in 2006 and died nine years later.