1NO. 05-0189
Borg-Warner Corporation, now known as Burns International Services Corporation, Petitioner,
Arturo Flores, Respondent.
Motion for Rehearing
On Petition for Review from the Thirteenth Court of Appeals

No. 13-03-00058-CV To the Honorable Supreme Court of Texas:

Pursuant to Rule 64 of the Texas Rules of Appellate Procedure, respondent Arturo Flores respectfully moves for rehearing to ask the Court to reconsider its decision in this case issued on June 8, 2007 reversing the judgment below and rendering judgment for Petitioner Borg-Warner Corporation. In support of this motion, respondent would show the Court as follows:

Table Of Contents


1.Whether the Court erred in setting aside the jury’s verdict that Flores’ exposure to Borg-Warner asbestos brake pads was a producing and proximate cause of his asbestosis on the basis that the jury could not properly infer that the amount of his exposure contributed to his disease.

2.Whether, if the Court adheres to its new requirement for proving causation in asbestos litigation, the Court should remand this case for a new trial rather than rendering judgment in favor of the defendant.


The Court Erred in Holding That No Evidence Supports The Jury’s Finding That Borg-Warner’s Conduct Was a Substantial Factor in Causing Flores’ Asbestosis, Because Flores Himself Testified That He Used, and Was Exposed to Visible Dust from, Borg-Warner Asbestos-Containing Brake Pads on a “Frequent” and “Regular” Basis over a Four Year Period.

A.Flores’ Testimony Concerning Frequent and Regular Use of Borg-Warner Asbestos Brake Pads Was Enough Under Texas Law To Allow the Jury Reasonably To Conclude That Flores Inhaled Disease-Inducing Amounts of Asbestos from Those Products.

The Court’s opinion acknowledges that Flores was exposed to asbestos dust from Borg-Warner products “on a fairly regular basis for an extended period of time,” but also states that the record “reveals nothing about how much asbestos Flores might have inhaled.” Op. 10. The latter statement is true only if evidence that Flores performed at least a thousand[1] brake jobs using Borg-Warner brake pads, which contained between 7

and 28 percent asbestos by weight and which emitted visible dust when ground, does not permit the reasonable inference that Flores inhaled sufficient quantities of asbestos from that work to contribute to his illness. Previous reported decisions, both in Texas and elsewhere, indicate that general testimony of the type presented by Flores–without precise or even rough attempts to quantify the amount of exposure–allows a reasonable factfinder to infer that the amount of asbestos inhaled from the defendant’s product was indeed substantial and can be considered a legal cause of the plaintiff’s disease.

In Texas, plaintiffs have long relied on circumstantial proof of significant exposure to particular products–without anything more than the roughest estimate of “dose”–to establish that the defendant’s conduct in marketing the products was a legal cause of the plaintiff’s injuries. Almost twenty years ago, when the bulk of the asbestos litigation in Texas was in federal court, the Fifth Circuit considered the sufficiency of proof of causation in an asbestos case under Texas law in Whatley v. Armstrong World Indus., Inc., 861 F.2d 837 (5th Cir. 1988). In Whatley, the Fifth Circuit observed that under then-applicable Texas law, a non-settling defendant could reduce its liability by the percentage of responsibility attributed by the jury to a settling defendant only if the record contained evidence that the settling defendant “combined to cause” the plaintiff’s injuries sufficient to establish that party’s liability. Id. at 839. The plaintiff argued that the evidence with respect to each of the ten settling defendants was legally insufficient to establish that those parties contributed to the plaintiff’s injuries. The court agreed that the evidence was insufficient to establish the liability of two of the settling defendants, but sustained the findings of liability of the other eight based entirely on circumstantial evidence. Notably, the court upheld the jury’s finding that H.K. Porter Company shared liability for the plaintiff’s asbestos-related cancer, even though “no fiber content was stipulated for H.K. Porter’s asbestos cloth” and the only evidence of Whatley’s exposure to the cloth was a co-worker’s testimony that “a bunch” of H.K. Porter’s asbestos cloth was used on the ships on which Whatley worked. Id. at 842.

As the Fifth Circuit later noted, “Whatley was not an aberration.” Slaughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Cir. 1991). In Slaughter, the court cited several Fifth Circuit cases holding that inexact circumstantial proof of more than de minimus exposure presented a triable issue of causation, and specifically rejected the contention that Texas applies a higher standard of proof, observing that “Texas law does not contradict the relatively lenient standard of proof of causation in Whatley.” 949 F.2d at 173. In Slaughter, the plaintiffs (unlike Flores) had no direct evidence that they repeatedly used and breathed dust from the defendant’s product; instead, for their causation case they were forced to piece together evidence that (1) the defendant’s product contained 15 percent asbestos; (2) the products were installed “randomly” and “evenly” all over the plant where they worked; and (3) they worked near places where the products would have been installed. Id. at 171-72. Nevertheless, the court reversed summary judgment for the defendant, finding plaintiff’s “common sense idea” of causation to be “intuitively plausible” and consistent with Texas law. Id. at 172.

When the asbestos litigation in Texas shifted to state court, the results were the same. In Keene Corp. v. Gardner, 837 S.W.2d 224 (Tex. App.—Dallas 1992, writ denied), the Dallas Court of Appeals applied Texas law[2] in holding that a plaintiff presented sufficient evidence of exposure to the defendant’s product to allow a jury to find liability even though he presented no eyewitness testimony that he handled or even encountered the product. The plaintiff’s evidence consisted solely of a co-worker’s testimony that the co-worker was present “often” and “a lot of times” when other workers cut and used the defendant’s product at a plant where the plaintiff worked “at some point” every year over a three year period. Id. at 227. The court of appeals found that this evidence was legally sufficient proof that the plaintiff was injuriously exposed to the defendant’s asbestos product. Id. at 227-28.[3]

Later, in Click v. Owens-Corning Fiberglass Corp., 899 S.W.2d 376 (Tex. App.—Houston [14th Dist.] 1995, no writ), the Houston Fourteenth District Court of Appeals reversed a directed verdict rendered by the trial court on the issue of causation despite the lack of any direct evidence that the decedent ever used or encountered the defendant’s product. Instead, the plaintiff relied on proof that a witness worked with the decedent for many years and “saw boxes of appellant’s asbestos-containing pipe insulation products in the specific area where he and Mr. Click were working.” 899 S.W.2d at 378 (Edelman, J., concurring). This proof, according to the Houston court—without any evidence of the quantity of asbestos to which the decedent was actually exposed—supported “a strong enough inference” of causation to require a jury determination of the issue. Id.

More recently, as the parties noted in their briefs on the merits, the Corpus Christi Court of Appeals upheld findings of causation based on evidence that the defendant’s product was used in areas where the plaintiff or decedent worked. See Celotex Corp. v. Tate, 797 S.W.2d 197, 204-05 (Tex. App.—Corpus Christi 1990, writ dism’d by agr.) (upholding verdict based on co-workers’ testimony that defendant was one of three companies whose asbestos was purchased for use at the plant where decedent worked); N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 908-11 (Tex. App.—Corpus Christi 1999, pet. denied) (upholding causation findings based largely on testimony of co-workers). In neither of these decisions does the court refer to any evidence reflecting the precise amount of asbestos from the defendant’s product that the plaintiff or decedent likely inhaled.

It is inconceivable that the Fifth Circuit that authored Whatley and Slaughter, the Dallas court that issued Gardner, the Houston court that decided Click, or the Corpus Christi court that decided Tate and Easter would find in this case that Flores presented insufficient evidence that his exposure to dust generated from his work with Borg-Warner brake pads contributed to his asbestos disease. The reasoning and results of the cases cited above are simply irreconcilable with this Court’s demand that plaintiffs in asbestos cases present rough estimates of the amount of asbestos dust that they inhaled in order to carry their burden of proof on the issue of causation. The decision in this case represents a change in direction, if not a wholesale departure, from prior decisions of the courts in this state on the issue. Instead, the Court should reconsider and embrace the approach that courts in Texas have historically taken on this issue: that when a plaintiff presents evidence of more than de minimus exposure to asbestos emitted from a defendant’s product, the determination of whether (and the degree to which) that exposure contributed to the plaintiff’s injuries should be left to the factfinder.

  1. The Court’s Opinion Encourages Plaintiffs in Asbestos Cases To Attempt To Quantify Their Exposure to Particular Products Through Expert Testimony—an Expensive and Time-Consuming Exercise Deemed Unnecessary by Other Courts.

Other courts have rejected suggestions that plaintiffs in asbestos support their allegations of causation with expert testimony that the defendant’s product emitted injury-producing amounts of asbestos to which the plaintiffs were exposed. These courts, like the Fifth Circuit in Slaughter, have allowed juries to infer that dust released from products that contain asbestos itself contains asbestos, finding the inference to comport with “common sense” and to be “intuitively plausible.” Slaughter, 949 F.2d at 172. See, e.g., Fibreboard Corp. v. Pool, 813 S.W.2d 658, 688 (Tex. App.—Texarkana 1991, writ denied) (upholding jury’s finding that exposure to gaskets caused plaintiff’s injuries despite absence of expert testimony concerning the contents of the dust (and, a fortiori, the amount of asbestos in the dust), because “the jury could infer that the dust from a material containing asbestos would also contain asbestos”); In re New York Asbestos Litig., 847 F. Supp. 1086, 1095 (S.D.N.Y. 1995) (upholding finding of causation based on inference that the dust from defendant’s asbestos-containing product inhaled by the decedent contained hazardous amounts of asbestos); see also Rotondo v. Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (“although only air sampling would positively detect asbestos dust, a jury could properly infer that when covering containing asbestos is sawed and releases dust, that dust contains asbestos.”) (emphasis added).

In this case, as in most asbestos cases, it was the defendant, not the plaintiff, that was best able to test the products in question to determine their propensity to emit hazardous quantities of asbestos fibers. By exonerating the defendant for lack of a more precise approximation of exposure levels, the opinion effectively rewards the defendant for not testing its product even at a time (the late 1960’s and early 1970’s) when the hazards of asbestos were unquestionably known to industry. Under these circumstances, to take from the jury its ability—recognized by courts inside and outside Texas—to infer that a product that contains asbestos releases injury-producing amounts of asbestos when used is contrary to public policy. The Court should eliminate from its opinion its suggestion that expert testimony of the degree of the plaintiff’s amount of exposure to the defendant’s product is necessary to support a claim that the product was a substantial factor in the plaintiff’s injury, and should affirm the jury’s verdict in this case in the absence of such testimony.

Rather than Render Judgment, the Court Should Remand This Case for a New Trial in the Interest of Justice.

Prior to the Court’s decision in this case, as the opinion itself points out, the Court had “not had the occasion to decide whether a person’s exposure to ‘some’ respirable fibers is sufficient” to prove legal causation in an asbestos case governed by Texas law. Op. 1. But, as discussed in this Motion, several courts of appeal had addressed the issue and concluded, as the Corpus Christi Court of Appeals did in this case, that circumstantial evidence of exposure to unquantified amounts of asbestos released from a defendant’s products is sufficient to allow a jury to find that the defendant contributed to the plaintiff’s harm. See N. Am. Refractory, Co. v. Easter, 988 S.W.2d 904, 908-11 (Tex. App.—Corpus Christi 1999, pet. denied); Click v. Owens-Corning Fiberglass Corp., 899 S.W.2d 376, 378 (Tex. App.—Houston [14th Dist.] 1995, no writ); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 688 (Tex. App.—Texarkana 1991, writ denied); Keene Corp. v. Gardner, 837 S.W.2d 224, 227-28 (Tex. App.—Dallas 1992, writ denied); see also Slaughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Cir. 1991) (applying Texas law); Whatley v. Armstrong World Indus., Inc., 861 F.2d 837, 840-42 (5th Cir. 1988) (applying Texas law).

Rule 60.3 allows the Court, when reversing a judgment of the court of appeals, to remand a case to the trial court in the interest of justice “even if a rendition of judgment is otherwise appropriate.” Tex. R. App. P. 60.3. The Court recently applied the rule in Bulanek v. WesTTex 66 Pipeline Co., 209 S.W.3d 98 (Tex. 2006). In that case, the plaintiff presented damages in a condemnation case with expert testimony predicated on a method that this Court, in another case, subsequently held invalid. The court of appeals reversed and rendered judgment based on the defendant’s expert testimony on damages, but this Court instead ordered a new trial, noting that “[t]he most compelling case for such a remand is where we overrule existing precedents on which the losing party relied at trial.” 209 S.W.3d at 100, quoting Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992).

In this case, as in Bulanek,remand rather than rendition of judgment serves “the interest of justice.” Flores tried this case on justifiable reliance on decisions of Texas courts of appeals and of the Fifth Circuit holding that a plaintiff in an asbestos case can establish a fact issue on causation by showing more than anecdotal exposure to the defendant’s asbestos product, without more detailed quantification of exposure or expert testimony. In fairness, Flores should be allowed to retry this case against Borg-Warner under the Court’s new, more demanding, standard.


For these reasons, respondent Arturo Flores asks the Court to grant this motion for rehearing and to affirm the judgment of the court of appeals. Alternatively, respondent Flores urges the Court to remand this case for a new trial.

Respectfully submitted,

  1. This estimate of the total number of jobs on which Flores used Borg-Warner brake pads is derived by taking the average number of Borg-Warner brake jobs per week (5-7) and multiplying it by the number of weeks in the four year period in which Flores used Borg-Warner pads (208).
  2. Although the plaintiffs were citizens of Alabama and their asbestos exposure occurred there, the parties did not request application of Alabama law and the court therefore applied Texas law. 837 S.W.2d at 226, 227.
  3. It is true that the court initially stated the issue to be “exposure” rather than legal causation. See Gardner, 837 S.W.2d at 226 (defendant contends that no evidence supported the jury’s finding that the plaintiff “was exposed to” defendant’s product); id. at 228 (court concludes that “[s]ome evidence existed that, more probably than not, Derryberry actually breathed asbestos fibers from MonoBlock.”). But to interpret Gardner to address the requirements for making a legally sufficient case only of exposure and not of causation is to read the opinion too finely. For one thing, “exposure” is a fact without legal significance; the legally significant issue is whether the defendant’s product (and the defendant’s conduct in marketing the product) was a producing or proximate cause of the harm. The court, then, must have been talking about causation as well as exposure. For another, the opinion expressly described the issue raised by the defendant as one of causation, not mere exposure. Gardner, 837 S.W.2d at 227 (“In a products liability case, a plaintiff must prove that the defendants supplied the product that caused the injury.”). Gardner thus unquestionably addresses the sufficiency of the plaintiff’s proof not just of “exposure” but also of “causation.”