IADC amicus brief program.

• Position: AMICUS

The International Association of Defense Counsel has an active amicus curiae program, submitting briefs on issues of importance to IADC members and their clients. Through its amicus participation, the IADC has helped shape the law surrounding product liability, arbitration, class actions, attorney client privilege, punitive damages, civil discovery, standing, jurisdiction, and tort reform. This section of the Defense Counsel Journal is dedicated to highlighting recent amicus briefs filed by the IADC so that the Journal's readers can benefit from the insights presented therein.

In its brief in Bostic v. Georgia Pacific Corp. (No. 10-0 7 75), IADC and its coalition partners American Coatings Association and American Chemistry Council urged the Texas Supreme Court to uphold in the mesothelioma context its seminal 2007 ruling in Borg-Warner v. Flores, in which the Court rejected the "every fiber" theory of causation in asbestos litigation. Plaintiffs in Bostic falsely contended that by requiring plaintiffs to establish "but for" causation, the Flores decision led Texas courts to require plaintiffs to trace their injuries back to individual asbestos fibers and make causation all but impossible to prove in cases of concurrent causation. The amici brief was drafted by IADC members Eric G. Lasker and Richard O. Faulk, partners in the law firm Hollingsworth LLP, and IADC member Tom Graves of the American Coating Association.

The brief demonstrates that the "but for" causation causation requirement set forth in Flores and the intermediate appellate opinion in Bostic is firmly rooted in Texas jurisprudence. IADC also rebuts plaintiffs' reliance on "alternative liability" cases like Summers v. Tice, 1999 P.2d I (Cal. 1948), explaining that the Texas Supreme Court had already rejected the "alternative liability" rule in asbestos personal injury cases in Gaulding v. Celotex Corp., 772 S.W.2d 66, 68-69 (Tex. 1989).

The Texas Supreme Court sided with the IADC's position on July 11, 2014, affirming the decision of the appellate court to sustain Flores.

FILED

IN THE SUPREME COURT

OF TEXAS

13 August 22 A9:57

BLAKE. A. HAWTHORNE

CLERK

NO. 10-0775

In the Supreme Court of Texas

Susan Elaine Bostic, Individually and as Personal Representative of the Heirs and Estate of Timothy Shawn Bostic, Deceased; Helene Donnahoe, and Kyle Anthony Bostic,

Petitioners,

v.

Georgia Pacific Corporation,

Respondent.

From the Fifth Court of Appeals, Dallas, Texas

Brief of Amici Curiae American Coatings Association, Inc., American Chemistry Council, and International Association of Defense Counsel

Thomas J. Graves

American Coatings Association, Inc .

1500 Rhode Island Ave., N.W.

Washington, DC 20005

(202) 462-8743

OF COUNSEL FOR AMERICAN COATINGS ASSOCIATION, INC.

Eric G. Lasker

elasker@hollingsworthllp.com

Richard O. Faulk

Texas Bar No. 06854300

Hollingsworth LLP

1350 I St., N.W.

Washington, D.C. 20005

(202) 898-5843

(202) 682-1639 (fax)

COUNSEL FOR ALL AMICI

Donald D. Evans

American Chemistry Council

700 Second St., NE

Washington, DC 20002

(202) 249-6100

OF COUNSEL FOR AMERICAN CHEMISTRY COUNCIL

TABLE OF CONTENTS INTEREST OF AMICUS ARGUMENT I. The Asbestos Crisis Continues Unabated and, Without Proper Controls, Threatens the Bankruptcies of Many Companies Whose Products Were Only Minimally Involved II. The Policy Behind Flores Extends to All Toxic Tort Cases, Including Those Involving Mesothelionma and Other Forms of Cancer III. The Fifth Court of Appeals Faithfully Applied the Causation Standard Set Forth in Flores IV. Petitioners' Summers v. Tice Argument is Directly Contrary to This Court's Ruling in Gaulding v. Celotex Corp. CONCLUSION INTEREST OF AMICUS

The American Coatings Association ("ACA") is a voluntary, nonprofit trade association representing some 300 manufacturers of paints, coatings, adhesives, sealants and caulks, raw materials suppliers to the industry, and product distributors. Collectively, ACA represents companies with greater than 95% of the country's annual production of paints and coatings, which are an essential component to virtually every product manufactured in the United States.

The American Chemistry Council ("ACC") represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make people's lives better, healthier and safer. The business of chemistry is a $770 billion enterprise and a key element of the nation's economy.

A number of ACA's and ACC's members acquired companies that at one time sold products containing asbestos. ACA and ACC member companies have a vital interest in assuring that defendants in asbestos cases are held liable only for injuries for which they are actually responsible and not merely because of limited, non-causative contact between the products that they once sold and plaintiffs.

The International Association of Defense Counsel ("IADC") is an organization of corporate and insurance attorneys whose practice is concentrated on the defense of civil lawsuits. Since 1920, the IADC has been dedicated to the just and efficient administration of civil justice and continual improvement of the civil justice system. The IADC regularly files briefs in pending cases throughout the United States to support a wide variety of civil justice issues. The IADC supports a justice system in which plaintiffs are fairly compensated for genuine injuries and responsible defendants are held liable only for appropriate damages.

Amici all contend that affirmance of the decision below--which properly held the plaintiff to his burden of establishing a level of exposure to chrysotile asbestos in the defendant's product scientifically shown to cause mesothelioma--is essential to the continued vitality of the substantial contributing factor causation test in asbestos litigation in Texas and throughout the country. (1)

ARGUMENT

1. The Asbestos Crisis Continues Unabated and, Without Proper Controls, Threatens the Bankruptcies of Many Companies Whose Products Were Only Minimally Involved.

   The "asbestos-litigation crisis" aptly recognized by the United States Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997), has not abated. It has been described as an "elephantine mass of asbestos cases," Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999), or an "avalanche," In re Combustion Eng'g, Inc., 391 F.3d 190, 200 (3d Cir. 2005). (2) Now entering its fourth decade, asbestos litigation is the nation's "longest running mass tort," (3) and there is no end in sight. Most recent actuarial studies project that asbestos claims will continue for the next 35 to 50 years, suggesting that we may not yet be even halfway through this litigation. (4)

   While mesothelioma claim filings have fluctuated somewhat in recent years (with a modest dip in 2006-2007 and a subsequent rebound in 2008-2012), overall annual filings have remained near peak levels since 2000. (5) By one estimate, approximately 28,000 additional mesothelioma claims will be filed in 2013 and subsequent years. (6) A recent analysis of the insurance industry--which has already paid out about $51 billion in claims tied to asbestos over the past quarter century--concluded that the $23 billion that had been set aside for future expenses was far too low, and that future expenses were likely to reach $34 billion, bringing the ultimate cost of such insured claims to $85 billion. (7)

   This figure, of course, does not...