Frank Burford worked for about thirty years at Howmet's aluminum-smelting plant in Rockdale, Texas, and for twenty-five of those years his wife Carolyn almost every day shook out and washed his work clothes, which carried asbestos from the plant.¹ By 2006 Carolyn had developed breathing problems and been diagnosed with asbestosis, and she died nine years later.² Her surviving family, the Burfords, sued Howmet, which was formerly known as Alcoa and Arconic, alleging that her handling of the clothes caused her asbestosis.³

The multidistrict-litigation panel transferred the case to the 11th District Court of Harris County as a tag-along to the pending asbestos litigation, and Howmet moved for no-evidence summary judgment on substantial-factor causation.¹ The trial court granted the motion, reasoning that the Burfords had not sufficiently negated exposure to asbestos from some other source and had not produced epidemiological studies showing that exposure from Howmet more than doubled the risk of asbestosis.² The Fourteenth Court of Appeals reversed, holding that the Burfords raised a fact issue on direct causation, that proof of dose is not required in a single-source-exposure case, and, in a footnote, that their dose evidence would suffice anyway.³ Howmet petitioned for review on May 17, 2024; the Court requested merits briefing on September 27, 2024, and, after full briefing, denied the petition on April 17, 2026, with Justice Young filing a concurrence (Docket).

Petition for review from the Fourteenth Court of Appeals after the trial court granted a no-evidence summary judgment; denied April 17, 2026, with a concurring opinion by Justice Young, joined by Justices Sullivan and Hawkins.⁴

Howmet's petition presents the issue that the court of appeals failed to adhere to the Court's precedent in reversing the summary judgment, plus an unbriefed issue on denial of its motions to exclude the Burfords' experts Haber and Spear.¹ The Burfords frame the issue as whether the court of appeals properly applied Havner, Flores, and Bostic, and offer alternative grounds for affirmance.² The concurrence identifies a different question: whether Bostic's statement that "proof of dose would be required" in a single-source-exposure case is correct, and whether a court of appeals may disregard it as dicta.³

The concurrence recounts the facts in the light most favorable to the nonmovants, who opposed a no-evidence motion for summary judgment.¹ Neither side's brief summary states a standard of review.

Whether proof of dose and epidemiological evidence are required in a single-source asbestos case.

Petitioner (Howmet): The court of appeals created a new test for "single source of exposure" cases that opens a loophole for questionable claims; because asbestosis diagnoses are inherently subjective, it is not enough to show that exposure was the only possible cause and that the defendant was the source of all of it, and plaintiffs must also show exposure at a level that reliable epidemiological studies show doubles the risk.¹ It argues that Bostic says even a single-exposure case requires proof of dose, that the Burfords' 11.1 fiber-years estimate is unsubstantiated and far below the 25 to 100 fiber-year range cited in Flores, and that no epidemiological studies were offered.²

Respondents (Burfords): The court of appeals did not adopt a new causation standard for asbestosis; it applied existing law, under which a plaintiff need not disprove exposure from every other source and may raise a fact issue with direct evidence of exposure to asbestos from a single defendant at a level scientifically proven sufficient to cause asbestosis.³ They offer alternative grounds for affirmance, including that they produced dose evidence and satisfied Havner's alternative approach.⁴

Howmet argued that the court of appeals disregarded the Court's precedent by devising a new test for single-source cases, which it said would let claimants exploit a loophole and revive large asbestos filings.¹ The concurrence says the Court will need to decide the proof-of-dose question in an appropriate case because lower courts are confused, though not in this one.²

• Chamber of Commerce of the United States of America, et al. filed an amicus brief on June 13, 2024, at the petition stage.

Reasoning

The Court gave no reasons for denying review; the only writing is Justice Young's concurrence, which speaks for three Justices and not the Court.¹ He says the court of appeals' rejection of Bostic's statement that "even in a single-exposure case . . . proof of dose would be required," which conflicts with at least one other court of appeals, is troubling, and that the Court will need to take a case to decide the question.² Tracing Havner, Flores, and Bostic, he explains that the Court has required proof of dose because "the dose makes the poison," and says he would likely vote to reaffirm Bostic or at least clarify when dose may be inferred, because if the plaintiff has no evidence of an asbestosis-causing dose, either the disease was not asbestosis or the case was not a single-source case.³

He adds that denying the petition expresses no view on the court of appeals' assertion, and that it is far from clear that lower courts may treat Bostic's statement as obiter dictum, because it was made deliberately in answer to the dissent and so likely counts as judicial dictum that should be followed unless erroneous.⁴ He would prefer that lower courts follow this Court's pronouncements and voice any doubts rather than contradict them.⁵

This case cannot supply the answer because the court of appeals also held that the Burfords' evidence of dose sufficed, the trial court found that their expert cited literature showing dose levels that cause asbestosis and consistent with Carolyn's alleged dose, and Howmet's primary issue, the need for epidemiological studies, is not the proof-of-dose question.⁶ The court of appeals' rejection of Bostic was thus itself arguably dicta.⁷

Disposition

Petition for review denied.⁸

Vote Breakdown

Justice Young concurred in the denial of the petition, joined by Justice Sullivan and Justice Hawkins.⁹