Plaintiff Linda Shake, Individually and as Representative of the Estate of Robert S. Shake, submits this Response to the No-Evidence Motion for Summary Judgment filed by Defendant KELLY-MOORE PAINT COMPANY, INC. (“Kelly-Moore”) and would respectfully show the Court as follows:

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From approximately 1961 through 1978, Robert Shake worked as an electrician on residential and commercial construction projects. While working on these construction projects, Mr. Shake was repeatedly exposed to dust released during the preparation and sanding of joint compounds, including the Paco Quick Set Joint Compound manufactured by Kelly-Moore. Testing of these joint compounds has demonstrated that the operations described by Mr. Shake release significant quantities of asbestos fibers. As a result of his prolonged exposure to asbestos from Kelly-Moore’s joint compound and other asbestos-containing products, Mr. Shake developed mesothelioma, a rare and fatal form of cancer caused by asbestos. Mr. Shake died from mesothelioma in 2004.


Summary Judgment Must Be Denied If Reasonable Minds Can Differ as to Causation.

In considering a no-evidence motion for summary judgment under Rule 166a(i), a court views “all the evidence in the light most favorable” to the non-movant, “disregarding all contrary evidence and inferences.” Caldwell v. Curioni, 125 S.W.3d 784, 789-90 (Tex. App.–Dallas 2004, pet. denied). The motion must be denied if the non-movant “produces more than a scintilla of evidence that raises a genuine issue of material fact.” Id. (citations omitted). The non-movant “is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).

Causation is an issue for the jury if the evidence enables “reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1996) ); see also Texas Dep’t of Transportation v. Olson, 980 S.W.2d 890, 892-93 (Tex. App. – Fort Worth 1998, no pet.) (explaining that causation is a fact issue“particularly within the province of a jury” if there is any evidence “on which reasonable minds may reach different conclusions”). There may be more than one proximate or producing cause of an injury, and “[a]ll persons who contributed to the injury are liable.” El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987); see also Berly v. D & L Sec. Services and Investigations, Inc., 876 S.W.2d 179, 182 (Tex. App. – Dallas 1994, writ denied) (“[I]t is sufficient to prove that the greater probability is that the defendant’s conduct, alone or in contribution with others, was the cause of the harm.”) (emphasis added).

A Defendant May Be Held Liable If Asbestos Fibers From Its Product Can Reasonably Be Considered a “Substantial Factor” in Contributing to the Plaintiff’s Risk of Cancer.

In cases involving asbestos exposure, the Supreme Court of Texas recently explained that the central issue is “whether the asbestos in the defendant’s product was a substantial factor in bringing about the plaintiff’s injuries.” Borg-Warner v. Flores, ___ S.W.2d ___ (Tex. June 8, 2007), slip op. attached as Exhibit 1, at 8. The term “substantial,” as used in the Restatement (Second) of Torts § 431 “is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Id.; see also Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997) (explaining that the “substantial factor” test “is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical”).

While not explicitly adopting the “frequency-regularity-proximity” test set out in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), the Court found that the “de minimis rule espoused in Lohrmann” was “required by our precedent.” Borg-Warner, slip op. at 14. In order to conclude that asbestos exposure was more than “de minimis,” the evidence must reflect not only the circumstances of exposure but also “the approximate quantum” of fibers to which a plaintiff was exposed. Id. at 11.

In Borg-Warner, the Court held that the “sparse record” was not sufficient to determine whether the Defendant’s brake linings were a “substantial factor” in causing the Plaintiff’s asbestosis. Borg-Warner, slip op. at 11. The Plaintiff’s expert witness testified that he “had not researched Borg-Warner products and did not have any specific knowledge about them.” Id. at 4. Without evidence of the “approximate quantum of Borg-Warner fibers to which Flores was exposed,” the evidence was insufficient to support a finding of causation. Id. at 11; see also id. at 14.

The Court emphasized the fact that asbestosis has a recognized “threshold,” a level of asbestos exposure considered necessary to cause disease. See Borg-Warner, slip op. at 10. The Court contrasted asbestosis with mesothelioma, which occurs at “low levels of asbestos exposure.” Id. at 9-10. This contrast illustrates the tenet that the requisite dose per disease is a disease-specific inquiry. Quoting the federal Reference Manual on Scientific Evidence (“Reference Manual”), the Court noted that “[o]ne of toxicology’s central tenets is that ‘the dose makes the poison.’” Id. at 8. The Reference Manual goes on to explain that this principle is not applicable to the analysis of carcinogens, which involve a different disease process. In discussing the calculation of “thresholds” below which adverse health effects do not occur, the Manual explains:

For agents that produce effects other than through mutations, it is assumed that there is some level that is incapable of causing harm. If the level of exposure was below this no observable effect, or threshold, level, a relationship between the exposure and disease cannot be established. . . . This analysis, however, is not applied to substances that exert toxicity by causing mutations leading to cancer. Theoretically, any exposure at all to mutagens may increase the risk of cancer, although the risk may be very slight and not achieve medical probability.

Reference Manual at 426.

It is generally accepted that the risk of mesothelioma increases with exposure to asbestos but that the disease does not have a “threshold.” See, e.g., Pathology of Asbestos-Associated Diseases 107 (Roggli, et al., eds. 2d ed. 2004), excerpt attached as Exhibit 2 (“A threshold level of exposure below which mesothelioma will not occur has not been identified.”); World Health Organization, Environmental Health Criteria 203: Chrysotile Asbestos (1998) (“EHC 203”), excerpt attached as Exhibit 3, at 144 (“No threshold has been identified for carcinogenic risks.”); Antman, Malignant Mesothelioma, New England J. Med. 303:200-202 (1980), attached as Exhibit 4, at 200; Mesothelioma: Has Patient Had Contact With Even Small Amount of Asbestos? 257 J. Am. Med. Ass’n 1569 (Mar. 27, 1987), attached as Exhibit 5, at 1569 (“To date, there has been no threshold level defined for asbestos-induced mesothelioma.”). In fact, the available data indicate that the risk for pleural mesothelioma increases “relatively more steeply at low exposures but less steeply at high exposures.” Coggon, et al., Differences in Occupational Mortality from Pleural Cancer, Peritoneal Cancer, and Asbestosis, Occup. Envtl. Med. 52: 775-777 (1995), attached as Exhibit 6, at 777.

In the absence of a “threshold” dose, the question is whether, in medical probability, the exposure contributes substantially to the cancer risk. Reference Manual at 426. In Borg-Warner, the Court quoted Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997) for the proposition that “plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.” Borg-Warner, slip op. at 12 (quoting Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219 (Cal. 1997)) (emphasis in original).

In discussing the analysis set out in Rutherford, the Court observed that proof of “substantial-factor causation,” which “separates the speculative from the probable, need not be reduced to mathematical precision.” Id.; cf. Rutherford, 941 P.2d at 1220 (noting the “irreducible uncertainty” regarding the formation of an asbestos-related cancer”). Paraphrasing Rutherford, the Court concluded that “[d]efendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease, will suffice.” Borg-Warner, slip op. at 12.

Although the Court did not repeat the words “reasonable medical probability” in its subsequent discussion of the Rutherford analysis, it is unlikely that the Court intended to dispense with this important qualification. The requirement of “reasonable medical probability” is deeply rooted in Texas law. See, e.g., Tex. Civ. Prac. & Rem. Code § 90.003(a)(1)(B) (requiring expert report to state that “to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma or other cancer in the exposed person”); Havner, 953 S.W.2d at 712 (expert testimony must be based on “reasonable medical probability”) (citing Schaefer v. Texas Emp. Ins. Ass’n, 612 S.W.2d 199 (Tex. 1980)); Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 37 (Tex. App. – Houston [1st Dist.] 2004, pet. denied) (explaining that an expert’s opinion must “demonstrate scientific indicia that evidences reasonable medical probability before the opinion can be accorded evidentiary value”).

In Rutherford, the California Supreme Court upheld a jury’s finding that Owens-Illinois was responsible for 1.2 percent of the decedent’s damages. While concluding that the exposure to Owens-Illinois products “contributed a relatively small amount to decedent’s cancer risk,” the jury rejected the argument “that such a small contribution should be considered insubstantial.” Rutherford, 941 P.2d at 1225. A defendant “cannot escape liability simply because it cannot be determined with medical exactitude the precise contribution that exposure to fibers from defendant’s products made to plaintiff’s ultimate contraction of asbestos-related disease . . . .” Id. at 1207.

Significantly, the Rutherford analysis cited in Borg-Warner “does not require that each exposure be sufficient to independently cause” the plaintiff’s cancer. Jones v. John Crane, Inc., 132 Cal.App.4th 990, 1000 (2005). “To the contrary, the exposure need only be ‘a substantial factor in contributing to the aggregate dose of asbestos the plaintiff … inhaled.’” Id. Applying Rutherford, the court in Jones upheld a jury’s finding on causation with respect to gaskets and packing material products that reportedly released between 0.01 to 0.1 asbestos fibers per cubic centimeter during use. While the manufacturer argued that such amounts were “trivial,” the court noted that they were significantly higher than background levels in the ambient air. See id. at 999-1000. Such exposures may reasonably be considered a “substantial factor” contributing to the plaintiff’s risk of cancer. See id.

As discussed above, mesothelioma does not exhibit an exposure “threshold,” and the available data indicate that the risk increases “relatively more steeply at low exposures . . . .” See Coggon, et al., supra, at 777. Consequently, brief or low-level exposures above the “background” level can contribute significantly to the increased risk. Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, Scand. J. Work Envtl. Health 23:311-316 (1997) (“Helsinki Criteria”), attached as Exhibit 7, at 313 (explaining that an occupational history of “brief or low-level exposure should be considered sufficient for mesothelioma to be designated as occupationally related”); see also Iwatsubo, et al., Pleural Mesothelioma: Dose-response Relation at Low Levels of Asbestos Exposure in a French Population-based Case-control Study, Am. J. Epidemiology 148:133-142 (1998), attached as Exhibit 8, at 139 (Table 5) (reporting more than four-fold increase in mesothelioma risk for low-level occupational exposures); Affidavit of Samuel P. Hammar, M.D., attached as Exhibit 9 (“Hammar Affidavit”), at 14-15. In assessing the causation of mesothelioma, it is therefore necessary to distinguish “significant occupational, domestic or environmental exposure” from “background environmental exposures,” which carry “only an extremely low risk.” Helsinki Criteria, supra, at 313.

The ability of low level exposures to cause mesothelioma affects the legal analysis significantly. In evaluating Lohrmann’s “frequency, regularity and proximity” factors, courts must consider the fact that “mesothelioma can result from minor exposures to asbestos products . . . .” Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th Cir. 1992). As the court noted in Kurak v. A.P. Green Refractories Co., 689 A.2d 757 (N.J. Super. App. Div. 1997), the “amount of evidence needed to establish the regularity and frequency of exposure will differ from case to case. . . . This case would have been easier had plaintiff been able to testify that he often found himself covered with dust. But that is not a legal requirement, at least where mesothelioma is concerned.” Id. at 765-66.

More recently, a Utah court considered the Lohrmann “frequency-regularity-proximity” analysis in a mesothelioma case. In declining to adopt a rigid causation standard, the court noted the Plaintiffs’ argument that unlike asbestosis, mesothelioma “can be caused by very low, infrequent, and irregular exposures to asbestos and that there is no safe threshold of exposure.” Memorandum Opinion, Sortor v. Asbestos Defendants, Case No. 040909899 (3rd Jud. Dist. Ct., Salt Lake County, Utah, March 10, 2006), attached as Exhibit 10, at 3. The court observed that “while Lohrmann may provide guidance in establishing whether exposure was a ‘substantial factor,’ the nature of the disease, the quality of the evidence presented, the types of asbestos involved, the location, how they were handled, as well as if and how they were released into the air, are just some of the considerations which must be taken into account.” Id. at 4. The court concluded that “[t]he applicability of the Lohrmann considerations in the substantial factor analysis depends upon the facts in evidence and, presumably, will vary from case to case.” Id.

The Evidence in This Case Supports a Finding that Exposure to Asbestos from Kelly-Moore Products Was a Substantial Factor Contributing to Mr. Shake’s Mesothelioma.

The summary judgment evidence demonstrates that Mr. Shake sustained significant occupational exposure to asbestos from Kelly-Moore products. The asbestos content of Kelly-Moore’s joint compound products was approximately 8 percent. See Affidavit of William E. Longo, Ph.D. (“Longo Affidavit”), attached as Exhibit 11, at 2-3. In tests of Kelly-Moore joint compound, Dr. Longo reported that the average concentration of asbestos fibers for a “bystander” during mixing was 1.2 fibers/cc. Longo Affidavit at 2. For purposes of comparison, a “conservative estimate of background asbestos fiber levels is approximately 0.0005 fibers/cc. Id. at 1.

These results are consistent with published, peer-reviewed studies of joint compounds. Verma and Middleton reported that mixing dry powdered joint compounds produced airborne asbestos concentrations ranging from 9.0 to 12.4 fibers/cc, with an overall time-weighted average between 2.1 and 4.5 fibers/cc for all joint compound work activities. See id. at 2 (citing Verma & Middleton, Occupational Exposure to Asbestos in the Drywall Taping Process, J. Am. Indus. Hygiene J. 41:264 (1980), attached as Exhibit 3 to Longo Affidavit). Fischbein et al. reported asbestos fiber levels for mixing at a range of 0.5 to 13.1 fibers/cc for bystander exposure. Id. (citing Fischbein, et al., Drywall Construction and Asbestos Exposure, Am. Indus. Hygiene J. 40:402-407 (1979), attached as Exhibit 4 to Longo Affidavit). Rohl et al. measured concentration levels of 2.1 to 3.1 fibers/cc in a room adjacent to one in which joint compounds were mixed. Id. (citing Rohl, et al., Exposure to Asbestos in the Use of Consumer Spackling, Patching and Taping Compounds, Science 189:551-553 (1975), attached as Exhibit 5 to Longo Affidavit). These results are also confirmed by internal studies conducted by the Gypsum Association and individual manufacturers. See Longo Affidavit at 3-4.

The 1975 study by Rohl et al. confirmed that “bystanders” were exposed to significant levels of asbestos from joint compounds and that the exposure continued long after the direct application of the product had ceased:

Fiber counts measured during mixing were found to be from 7 to 12 times greater than the current occupational standard. Detectable fiber concentrations were found in adjacent rooms during mixing, and fibers were still suspended in the room air at least 15 minutes after mixing had ceased.

Rohl, et al., supra, at 553. The authors explain that the “discontinuous nature of these operations suggests that the 8-hour sampling is inappropriate in that peak exposures in the present instance, under a range of application and cleanup operations, greatly exceed the maximum allowable excursions of 10 fibers per milliliter for a 15-minute interval.” Id.

Mr. Shake inhaled the asbestos fibers released by Kelly-Moore joint compound regularly over a period of years. While working as an electrician installing electrical equipment for Fairbairn Electric, George Marek, and Mathieu Electric Company, N.R. Johnston Electric, Inc., Bodine Electric Company, W.D. Lowe, Jr., Scott Electric Company, Vibbert Electric, Kern Electric, and Clements Electric, Inc. during the 1960’s and 1970’s, Mr. Shake was exposed to asbestos dust from other tradesmen working around him. Specifically, Mr. Shake testified that he worked side by side next to drywallers and sheetrockers applying asbestos-containing patching compounds. See Deposition of Robert Shake (“Shake Dep.”) at 207, excerpts attached as Exhibit. 12.

The mixing of the Paco Quick-Set joint compound “made it dusty all over the place.” Id. at 92. Mr. Shake testified that he was around laborers mixing Paco Quick-Set joint compound “practically every day” for an aggregate total of three to four years. Shake Dep. at 90-93; 210-216. Mr. Shake testified about approximately equal exposure to several asbestos-containing joint compounds, including Paco Quick-Set joint compound. Id. at 208. Additionally, Mr. Shake was exposed to asbestos from Paco Tex-Wall texture when it was prepared for use to spray on walls. Id. at 96.

Samuel P. Hammar, M.D., an expert on asbestos-related diseases, reviewed Mr. Shake’s occupational history. See Hammar Affidavit at 1-2. Based on his history and the types of products involved, Dr. Hammar noted that Mr. Shake was exposed to “levels of asbestos well above background/ambient levels of exposure” while working around asbestos-containing joint compounds. Id. at 11. Mr. Shake’s exposures to asbestos from different joint compounds, including those manufactured by Kelly-Moore, were each a “significant contributing factor in the development of his mesothelioma.” Id. at 12.

Dr. Hammar’s opinions in this case are consistent with generally accepted standards for the diagnosis and attribution of mesothelioma. Specifically, Dr. Hammar’s opinions reflect the scientific consensus that brief or low-level asbestos exposures above the “background” level contribute significantly to the increased risk of mesothelioma. See, e.g., Hammar Affidavit at 12; Helsinki Criteria, supra, at 313 (explaining that an occupational history of “brief or low-level exposure should be considered sufficient for mesothelioma to be designated as occupationally related”); Hodgson & Darton, The Quantitative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure, Ann. Occup. Hyg. 44(8):565-601 (2000) (attached to Hammar Affidavit); Hillerdahl, Mesothelioma: Cases Associated with Non-occupational and Low Dose Exposures, Occup. Envtl. Med. 56:505-513 (1999) (attached to Hammar Affidavit).[1] The evidence related to the levels of asbestos released by Kelly-Moore joint compound, coupled with evidence that this exposure was a substantial factor contributing to his cancer, raises a fact issue as to causation. See Borg-Warner, slip op. at 12.

The Evidence Raises a Fact Issue as to Kelly-Moore’s Gross Negligence.

Kelly-Moore also asserts that there is no evidence of its gross negligence. Gross negligence is defined as “the breach of duty involving an extreme degree of risk, considering the probability and magnitude of the potential harm to others (an objective element) when the actor has actual awareness of the risk involved but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others (a subjective element).” General Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex. 1999). “Circumstantial evidence is sufficient to prove either element of gross negligence.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). The evidence need not show a “a recorded, contemporaneous decision to act with indifference . . . Rather, the evidence need only be such that reasonable inferences of a conscious decision could be made.” Brown & Root, Inc. v. Shelton, ___ S.W.3d ___, 2003 WL 21771917 (Tex. App.–Tyler 2003, no pet.), at *9.

Although asbestos has been recognized as a hazardous substance since the 1930s, Kelly-Moore never budgeted any money to investigate the health effects of the asbestos used in its joint compounds and textures. See Kelly-Moore Paint Co., Inc.’s Answers to Master Discovery, In re: All Asbestos-Related Injury or Death Cases filed by Baron & Budd, P.C. or to be filed by Baron & Budd, P.C. in El Paso County, May 17, 1996, Interrogatory 48(a), attached as Exhibit 13. Despite Kelly-Moore’s best efforts to avoid learning about the hazards associated with its products, the evidence continued to mount.

In 1972, Kelly-Moore’s Paco Division received a letter from the Drywall Industry Trust Fund, directly informing Kelly-Moore about the results of Dr. Selikoff’s “three-year study on the [e]ffects of dust to a worker in the sheetrock taping industry.” Letter from B.W. Spence, Safety Committee, June 6, 1972, attached as Exhibit 14. Kelly-Moore was told that “[t]he study showed that persons who have worked as a taper for seven or more years are quite susceptible to cancer of the lung within the next ten year period.” Id. (emphasis added).

In 1972, Kelly-Moore was informed that it was “exceeding the exposure limit, set by the Occupational Safety and Health Act, for asbestos” in its manufacturing operations. Memorandum from Doug Merrill, July 25, 1972, attached as Exhibit 15. In 1974, an occupational injury report indicates that Kelly-Moore’s own employees had developed “dust diseases of the lungs.” Summary of Occupational Injuries and Illnesses, Kelly-Moore Paco Plant, 1974, attached as Exhibit 16.

In 1974, Kelly-Moore was alerted that end users were also exposed to hazardous levels of asbestos. “OSHA Warns That Dry-Wall Spackling Contains Dangerous Asbestos Hazard,” (“OSHA Alert”) attached as Exhibit 17; Memorandum from Bob Miller, dated April 29, 1974, attached as Exhibit 18. Kelly-Moore and other manufacturers were informed that “[e]mployees sanding these spackling and taping joints smooth before painting may expose themselves to three to 13.7 asbestos fibers per cubic centimeters of air.” OSHA Alert, supra. Kelly-Moore took no action in response to the OSHA Alert, concluding that continuing to give the mandated warning was “all that is required at this point in time.” Memorandum dated April 29, 1974, supra.

Despite its knowledge of the risks, Kelly-Moore did not include any asbestos-related warning on any of its asbestos-containing products until it was required by OSHA. See Paco Production Meeting Minutes, October 30, 1972, attached as Exhibit 19. Notably, the company decided not to label ready-mix even though it did contain asbestos that would be released during the sanding of the material. Id. Kelly-Moore opted to increase the amount of asbestos used in ready-mix joint compound formulas. Memorandum from Doug Merrill to Bob Miller, August 31, 1973, attached as Exhibit 20.

In the months before the ban on asbestos-containing joint compounds went into effect, Kelly-Moore continued to put profits over health and safety. Kelly-Moore worked to sell its remaining inventory of asbestos-containing products to customers as soon as possible. See Kelly-Moore Memorandum, June 1, 1978, attached as Exhibit 21 (“The attached shows the current inventory in you district by store of materials containing asbestos. These products must be sold prior to June 16, 1978. These materials can probably be sold at regular price . . . . However, you may discount as necessary to sell the products within the prescribed time.”) (emphasis added); Paco Production Meeting Minutes, November 2, 1977, attached as Exhibit 22 (“There have also been requests to extend [the] compliance period [for the ban on the sale of asbestos-containing joint compounds] since . . . it would be almost impossible everyone to deplete their inventories within thirty days.”); Kelly-Moore Memorandum, January 23, 1978, attached as Exhibit 23 (“We now have less than 6 months to dispose of asbestos-containing joint compounds at our stores.”).

The summary judgment evidence supports a finding that Kelly-Moore was aware of a serious risk and chose to ignore it. Such conduct certainly constitutes conscious disregard for the rights and safety of others, and Kelly-Moore is not entitled to summary judgment on the issue of gross negligence.

Respectfully submitted,

  1. If this Court concludes that additional expert testimony is required to meet the standards set out in Borg-Warner, the Plaintiff would respectfully request that the Court order a continuance to permit additional expert depositions or affidavits to be obtained. See Tex. R. Civ. P. 166a(g).