Full opinion text
MEMORANDUM & ORDER KATHLEEN McDONALD O’MALLEY, District Judge. This case is one of the approximately 2,600 pending cases that are a part of the Multi-District Litigation known as In re Welding Fume Products Liability Litigation, MDL No. 1535. As with all of the Welding Fume cases, the plaintiff in this case, Eddie Byers, is a welder who claims: (1) he inhaled fumes given off by welding rods; (2) these fumes contained manganese; (3) this manganese caused him permanent neurological injury and other harm; and (4) the defendants knew or should have known that the use of welding rods would cause these damages. The gravamen of Byers’ second amended complaint is that the defendants failed to warn him of the health hazards posed by inhaling welding rod fumes containing manganese and, in fact, conspired to affirmatively conceal these hazards from those engaged in the welding process. Byers named 10 manufacturing defendants in his second amended complaint, but voluntarily dismissed one of them before trial. Byers’ lawsuit went to trial before a jury beginning on November 3, 2008, and the jury returned a verdict in favor of defendants on November 26, 2008. Shortly before trial began, the Court ruled on a number of summary judgment motions filed by defendants. Among other topics, these summary judgment motions raised the following issues: (1) the choice of law applicable to the plaintiffs claims; and (2) whether, based on the evidence adduced by the plaintiff regarding specific causation, some or all of the defendants were entitled to judgment as a matter of law. Because these same issues are certain to recur in other Welding Fume MDL cases, the Court promised at trial to issue a written opinion explaining in more thorough fashion the reasoning behind its oral rulings. This is the promised opinion. 1. Facts. Plaintiff Eddie Byers, who is 48 years old, was raised in Texas. Byers’ father was a welder and taught Byers to weld when he was a young boy. As Byers grew older, he helped his father on welding jobs during the summer, and Byers eventually became a welder himself in 1978, when he was 17 years old. Byers worked as a welder for various employers while living in Texas until 1997. He then moved to Alabama and continued to work as a welder until 2003. Byers then quit welding because he could no longer perform the physical requirements, due to hand tremor and other symptoms of what his doctor diagnosed as a neurological disease known as Manganese-Induced Parkinsonism. During the time he lived in Texas, almost all of Byers’ welding jobs were also in Texas, although he also had occasional welding jobs out of state, such as in Mississippi, Louisiana, Arkansas, Utah, and California. Similarly, during the time he lived in Alabama, most of Byers’ welding jobs were in Alabama, although he also worked welding jobs in other states, ranging from Florida to Minnesota. Discovery produced by Byers lists over 100 different job sites in 15 different states. During his lifetime, Byers used welding consumables produced by a variety of manufacturers. It is unsurprising that Byers does not have a precise recollection of which manufacturers’ welding rods he used at each job location, given the length of his career, the number of his job sites, and the number of different welding rod products he used. Nonetheless, the chart below fairly summarizes his use of different manufacturers’ welding consumables in the two states where he lived — Texas and Alabama. Welding Rod Byers’ Use of Manufacturer’s Manufacturer Welding Rod Products Lincoln Electric Regular and consistent use in both Co. TX and AL. Hobart Brothers Regular and consistent use in both Company TX and AL. ESAB Group Regular and consistent use in both TX and AL. BOC Group Used in TX during one job in 1981, and also possibly as a child. BOC stopped manufacturing welding rods in 1986, so he could not have used their products in AL. TDY Industries Possibly used their products but recalls no details regarding when or where. TDY stopped manufacturing welding rods in 1992, so he could not have used their products in AL, except possibly during a short job in 1991. Union Carbide Used their products but recalls no Corporation details regarding when or where. (“UCC”) UCC stopped manufacturing welding rods in 1985, so he could not have used their products in AL. Eutectic Corpo- Used in TX as a child, ration Sandvik, Inc. Used their stainless steel TIG products during various jobs between 1981-97 while living and working primarily in TX. Westinghouse Used in TX as a child. WEC stopped Electric Corp. manufacturing welding rods in 1983, (“WEC”) so he could not have used their products in AL. The evidence was undisputed that the first three manufacturers listed above (Lincoln, Hobart, and ESAB) supplied the overwhelming majority of the welding rod products that Byers used during his career. As to the last six manufacturers, it is undisputed that Byers either did not use their welding rod products in Alabama, or at least has no evidence he ever used their welding rod products anywhere besides Texas. II. Choice of Law. Conceivably, the laws of Texas (where Byers did most of his welding), Alabama (where Byers welded and now lives), or Ohio (where Byers filed his lawsuit, where this MDL Court is located, and where two of the largest defendants are headquartered) might apply to Byers’ claims. It is clear, however, that the applicable laws of these states are in actual conflict. For example, Ohio and Texas recognize comparative negligence and do not bar recovery where the plaintiffs fault is no greater than the combined fault of all defendants; in contrast, Alabama follows the doctrine of contributory negligence, so that a plaintiffs own negligence is a complete defense. Also, each of the three states has a different statutory cap on punitive damages. Accordingly, before addressing defendants’ summary judgment motions, the Court must determine which state’s law applies. Because Byers filed his complaint directly in this Court (as opposed to having it transferred to this Court pursuant to 28 U.S.C. § 1407), the choice-of-law principles of Ohio, the forum state, govern the Court’s analysis. The Ohio Supreme Court has adopted the choice-of-law approach set out by the Restatement (Second) of the Law of Conflicts Section 146 of the Restatement states: “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to a particular issue, some other state has a more significant relationship ... to the occurrence and the parties, in which event the local law of the other state will be applied.” In determining which state has the most “significant relationship” to a plaintiffs tort claim, Ohio courts examine the following factors: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” These factors “are to be evaluated according to their relative importance with respect to the particular issue.” Defendants argue that “Texas has a far greater interest in having its product liability laws apply to the underlying action than does either Ohio or Alabama (or any of the other states where Mr. Byers did small amounts of welding).” Defendants add that, even if Ohio or Alabama law might apply to some of Byers’ claims, “Texas law unquestionably applies to plaintiffs’ claims against BOC, Union Carbide, Westinghouse, TDY, Sandvik, and Eutectic because Mr. Byers used these defendants’ products (if at all) only while he was living and working primarily in Texas.” Byers responds that “Ohio has a far more significant relationship to the occurrence [and] the parties than any other state,” and further asserts that Ohio law applies to all of Byers’ claims against all defendants. To settle this dispute, the Court first examines the question of whether, as Byers asserts, it must apply the law of a single state to all of his claims against all defendants. The answer to this question is best derived with a hypothetical scenario. Imagine that: (1) Welder used only Defendant A’s product for 10 years while living in Ohio, and Defendant A is headquartered in Ohio; (2) Welder moved to Michigan, used only Defendant B’s product for 10 years while living in Michigan, and Defendant B is headquartered in Michigan; and (3) Welder then retired to Flori.da, and brought suit in Florida for injuries caused by welding fume exposure. Given that Welder suffered no exposure to Defendant A’s products anywhere except Ohio, there is virtually no basis for applying anything but Ohio law to Welder’s claims against Defendant A. This is true even though Welder alleges he suffered a single, indivisible injury caused by both Defendants’ products. Similarly, given that Welder suffered no exposure to Defendant B’s products anywhere except Michigan, there is no basis for applying anything but Michigan law to Welder’s claims against Defendant B. While it might be easier or more convenient for the Florida court to apply, say, only Ohio law to all of Welder’s claims, there is no nexus between Ohio and Defendant B that would allow this to occur. Indeed, to apply Ohio law to Welder’s claims against Defendant B would likely be unconstitutional. Thus, in the present case, even if choice-of-law principles suggest that the law of (say) Ohio should apply to Byers’ claims against a majority of defendants, this Court cannot apply Ohio law to a particular defendant if there is no significant relationship at all between that defendant and Ohio. Fortunately, it will be the unusual Welding Fume.case that has facts similar to the hypothetical scenario described above. In this case, for example, although Byers did not use welding rods manufactured by six of the nine defendants listed in the chart above while he was living in Alabama, he did use welding rods manufactured by all nine of the defendants while living in Texas. Further, he spent about 20 years of his working life living in Texas, as compared to spending only about 5 years of his working life living in Alabama. As explained below, Byers’ use of all of the defendants’ products in Texas for a majority of his welding career makes the Court’s choice-of-law analysis relatively simple. As noted, neither Byers nor defendants argue that Alabama law applies to any of Byers’ claims. Rather, defendants argue that Texas law applies, while Byers argues that Ohio law applies. An examination of the relevant factors reveals that defendants’ position is correct. A. The Place Where the Injury Occurred. This factor is the most important; under Ohio choice-of-law principles, in a tort action for personal injury, there is a rebuttable presumption that the law of the state where the injury occurred will apply to determine liability. Unlike in many tort actions, where a single, brief, localized event (such as a car accident) causes the alleged injury, Byers claims he suffered personal injury after repeated exposure to welding fumes over a long period of time and in over a dozen different States. Byers argues that, because the “place where his injury occurred” is not limited in time or place, and because he suffered a single, indivisible injury incurred throughout his nomadic career, this factor is inapplicable. The Court does not agree. To support his position, Byers cites a comment in the Restatement, which reads as follows: In the case of personal injuries ..., the place where the injury occurred is a contact that, as to most issues, plays an important role in the selection of the state of the applicable law. This contact likewise plays an important role in the selection of the state of the applicable law in the case of other kinds of torts, provided that the injury occurred in a single, clearly ascertainable, state. * * * The Restatement explains that an example of one of these latter “other kinds of torts” that does not involve personal injuries and does not occur in a single state is “the case of multistate defamation.” Byers asserts that this comment in the Restatement means “the place of injury is important only when the injury occurred in a single state,” and the place of injury factor is therefore “inapplicable” in his case. But the Restatement is not saying that the place of injury matters only if the injury occurred in a single state; it is saying that: (a) in tort cases involving personal injuries, the place of injury is always important; and (b) in other types of tort cases, the place of injury is important if it occurred in a single state, but is less important if it occurred in several states. Because Byers advances a tort claim for personal injuries, the place(s) he suffered injury remain of primary import in a choice of law analysis. The premise underlying Byers’ claims is that, when he inhaled the fumes given off by defendants’ welding rods, the manganese contained in those fumes damaged the parts of his brain that control voluntary movement. Byers was exposed. to these welding fumes in 15 different states, so all of these states may be construed as his “place of injury.” But his exposure to welding fumes in most of these states was short-lived. For example, Byers spent one month of his entire career welding in Wisconsin. In contrast, Byers spent 20 years living and working in Texas, and the vast majority of his welding jobs during that time were also in Texas. Further, Byers recalled the “smokiest jobsites” he worked were in Texas. Based on the undisputed facts in this case, it is safe to say that, while there may have been several “places of injury,” the most substantial locus of the personal injury that .Byers allegedly suffered is Texas. Thus, there is a rebuttable presumption that Texas law applies in Byers’ case. Attempting to counter this presumption, Byers cites In re Bendectin Litigation, an MDL case brought by children with birth defects who alleged their mothers’ use of the morning sickness drug Bendectin caused their conditions. In Bendectin, the district court judge ordered a trifurcated common-issues trial, with the first phase addressing “the question [of] whether ... ingestion of Bendectin proximately causes birth defects.” Given that the plaintiffs had filed cases all over the country, however, the trial judge ruled that the common issues trial would include only cases “originally brought or removed to federal court in Ohio,” because these cases “would necessarily be governed by Ohio law.” Since the defendant was headquartered in Ohio, many plaintiffs had filed suit in Ohio courts. The judge also ruled “that plaintiffs who had originally filed in other districts and who voluntarily chose to participate in the common-issues trial would consent to application of the law of Ohio by so agreeing to participate.” The common-issues trial went forward with over 800 plaintiffs, and the jury concluded that plaintiffs did not prove that “ingestion of Bendectin at therapeutic doses during the period of fetal organogenesis is a proximate cause of human birth defects.” On appeal, the plaintiffs argued, among other things, that the district court’s choice-of-law analysis was faulty. The plaintiffs conceded that, because they had all initially filed their lawsuits in Ohio (or had agreed to application of Ohio law), it was clear that Ohio choice-of-law principles applied. But plaintiffs argued this did not mean Ohio substantive law should apply to their claims; rather, the applicable law in each case should be the law of the states where they lived (“states of domicile”), or the states where their mothers had ingested the drug. The Bendectin court disagreed, for two reasons: (1) first, and most important, “the plaintiffs themselves urged the district judge to apply the law of Ohio to th[e] case, and never argued that any other law should apply;” and (2) second, “it was often unknown in what state the plaintiffs’ mothers had ingested the drug.” Of course, neither of these factors adhere in Byers’ case: the parties hotly contest which state’s law is applicable, and the parties know where Byers was exposed to welding fumes. Thus, Byers’ citation of Bendectin is unpersuasive. To be fair, Byers is correct that the Sixth Circuit Court of Appeals, in Bendectin, gave overriding weight to the factor of where the product at issue was manufactured. The court viewed “the law of the state of manufacture of the product as being more significant in this type of case than that of the state where an individual plaintiff happens to live.” This was because the defendant “manufactured and distributed a uniform drug internationally. The company issued a uniform set of warnings and instructions for use. The regulations governing the labeling, research, and distribution of the drug were governed either by Ohio law or by the federal Food, Drug and Cosmetic Act. Standards against which defendant’s wrongful or negligent conduct may be measured are also set by Ohio and federal law.” Byers argues the same observations apply to at least some of the defendants in his case — such as Lincoln and Hobart, both of which are headquartered in Ohio. That the Bendectin court found the place of product manufacture decisive in its choice-of-law analysis, however, does not persuade this Court that the same result should apply in this case. First, as noted above, the Bendectin court’s deliberation gave no weight to the rebuttable presumption as required under Ohio law, because the place of plaintiffs injury was “often unknown.” The facts in this case are different — Byers knows where he was exposed to defendants’ products, so the rebuttable presumption applies. Second, it is notable that no other court in this Circuit has ever followed the Bendectin choice-of-law analysis in a products liability action. Indeed, in another MDL proceeding, the Sixth Circuit Court of Appeals later rejected the conclusion that the law of the state of product manufacture should apply. Byers also cites Solly v. Manville Corp. Asbestos Disease Fund in support of the proposition that, because his exposure to welding fumes occurred in many states, the Court cannot “pick” a single state as the place where his injury occurred for purposes of weighing the first factor in a choice-of-law analysis. In Solly, the plaintiff brought a product liability action against several asbestos manufacturers; his “exposure to asbestos occurred throughout the United States (e.g., Florida, Alabama, New York, Ohio, Kentucky and Indiana).” The plaintiff argued that Ohio law should apply because “it is impossible to determine any single place of injury in this case given the fact that his injuries developed over a period of time,” and because the other choice-of-law factors weighed in favor of Ohio. The defendants countered that New York law should apply, because that is where Solly lived and spent most of his career, and also because the evidence showed his “alleged exposure to asbestos in Ohio was less in duration and intensity than his alleged exposure in New York.” The district court sided with the plaintiff and applied Ohio law, and the Sixth Circuit Court of Appeals affirmed. The appellate court stated that “an inquiry into the place of injury is inappropriate since Solly’s injury occurred in various places, including Ohio.” Examining factors other than the place of injury, the Solly court observed that: “1. Four of the defendants in Solly’s action had their principal place of business in Ohio; 2. Solly was exposed to asbestos in Ohio, and his last injurious exposure to asbestos was in Ohio ...; [and] 3. Solly filed for and received Ohio workers’ compensation benefits for a tumor allegedly caused by his exposure to asbestos.” The court concluded that these factors combined to preponderate in favor of applying Ohio law. At first glance, Solly does support Byers’ argument — the Solly court states explicitly that “an inquiry into the place of injury is inappropriate,” because the plaintiffs injury occurred in several states. But the Solly court then went on to give “place of injury” some weight after all, noting that the plaintiff was “exposed to asbestos in Ohio, and his last injurious exposure to asbestos was in Ohio.” Had Solly had no exposure at all to asbestos in Ohio, it appears doubtful the court’s analysis would have been the same. Further, it is clear that, under Ohio choice-of-law principles, the first factor — place of injury — is normally the most important factor; this Court is unwilling to simply ignore it altogether merely because the injury did not occur in a single state. And finally, the other factors considered by the Solly court all pointed to the same state — Ohio. In this ease, the other factors point to a variety of states, including Texas. For example, Byers applied for worker’s compensation benefits in Texas and for social security disability benefits in Alabama; his last exposure to welding fumes was in Alabama; the state with the most defendants’ places of incorporation is Delaware; and defendants’ headquarters are in seven different states (including two each in Ohio and New Jersey). While the factors the Solly court weighed yielded a clear answer on the facts of that case, weighing only these same factors in this case does not. Here, no clear answer to the choice-of-law analysis appears without reference to the principal fact of where Byers was exposed to defendants’ products. In sum, the first factor in the Court’s choice-of-law analysis — “the place where the injury occurred” — cannot be ignored, and it points strongly to Texas as being the state providing the substantive law applicable to Byers’ claims. B. The Place Where the Conduct Causing the Injury Occurred. Byers asserts the conduct that caused his alleged injuries in this case occurred in Ohio, “where Defendants manufactured most of the products he used and where they made the joint decisions regarding when and how to warn of risks associated with the use of their products.” As an initial matter, while it may be true that (for example) defendant Lincoln Electric, which is headquartered in Ohio, made these decisions in Ohio, there is no apparent basis upon which to assert that other defendants, such as Union Carbide (a New York corporation headquartered in Texas) or BOC (a Delaware corporation headquartered in New Jersey) or TDY (a California corporation headquartered in Pennsylvania) also made these decisions in Ohio. Furthermore, regardless of where the defendants made their warning-related decisions, the “place where the conduct causing the injury occurred” is not determined by where the defendant manufactured its product or where it made its decisions on whether and how to warn. Rather, under Ohio law, “a failure to warn occurs at the place where the plaintiffs could reasonably have been warned regardless of where the decision not to warn took place.” In other words, a defendant’s alleged conduct of failure to warn occurred where the plaintiff used the product with the allegedly defective warning. Thus, in Jones v. Brush Wellman, where the plaintiffs “encountered and were exposed to defendant’s products in Tennessee,” the “failure to warn which might have proximately caused plaintiffs’ injuries [also] occurred in Tennessee.” In essence, then, in a product liability case for failure to warn, the first factor and second factor in a choice-of-law analysis are equivalent. Because Byers used defendants’ products primarily in Texas, the defendants’ failure to warn also occurred primarily in Texas. C. The Domicile, Residence, Nationality, Place of Incorporation, and Place of Business of the Parties. As suggested earlier, it suffices to say that this factor does not preponderate in favor of any one state. The nine defendants listed in the chart above are incorporated in a variety of states: Ohio (two), Delaware (four), New York (two), and California (one). The defendants’ principal places of business are even more varied, and do not overlap with Byers’ current state of residence, Alabama (although defendant Union Carbide is headquartered in Texas). The Restatement observes: “The fact that the domicil and place of business of all parties are grouped in a single state is an important factor to be considered in determining the state of the applicable law.” Because there is nothing near such a grouping in this case, the third factor plays no role in the Court’s choice-of-law analysis. D. The Place Where the Relationship, If Any, Between the Parties Is Centered. The fourth factor in a choice-of-law analysis is usually not relevant in a products liability action. As one case notes, “the language of § 145 [of the Restatement ] makes allowance for the possibility that there will be no relationship between the parties by its use of the phrase ‘if any.’ ” Thus, courts in products liability cases often conclude that, “there being no ‘relationship’ between the parties in the ordinary sense of the word, this factor is unhelpful in making a choice-of-law determination.” This Court agrees that, because there was never any real, personal, ongoing relationship between Byers and any of the defendants in this case, the fourth factor also plays no role in the Court’s choice-of-law analysis. E. Conclusion. The first and most important factor in the Court’s choice-of-law analysis is the place where Byers suffered his alleged personal injuries. Byers’ own theory of liability is that he suffered brain damage caused by his exposure to welding fumes. Thus, the place where his injury occurred is the place where this welding fume exposure occurred; and this location is a function of where his welding jobs were and also which jobs produced the most copious fumes. In Byers’ case, the place of his most substantial exposure, as measured by both where he spent the most time welding and also where his “smokiest” jobs were, was Texas. Far more than any other state, this is the place where Byers suffered his alleged personal injury. Under Ohio law, then, there is a rebuttable presumption that Texas law applies in this case. This presumption may be rebutted if the other factors combine to show that some other state has a more significant relationship to the occurrence and the parties. The other factors in this case, however, either carry no weight, or also weigh in favor of Texas. Accordingly, the applicable law in this case is the state law of Texas. Notably, this result adheres to the broader principles underlying any choice-of-law analysis. According to the Restatement, “factors relevant to the choice of the applicable rule of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of law to be applied.” Some of these factors, such as the needs of interstate and international systems, are neutral in this case. Other factors, such as the relevant policies of each forum, weigh in favor of Texas. Specifically, Byers was allegedly injured in Texas by welding rod products manufactured in, among other places, Ohio. It is certainly the policy of Texas (and the entire field of tort law) to compensate its citizens and residents for injuries inflicted upon them through others’ tortious conduct. This compares with Ohio’s “policy objective in deterring the manufacture and sale of defective products.” In choosing between these two policies, the Ohio Supreme Court has suggested the former carries more weight. And given that many of the welding rods used by Byers were not manufactured in Ohio, Ohio’s policies must be given even less weight when choosing between Texas and Ohio law. Another important factor is ease in the determination of the law to be applied. This factor takes on special significance in the context of this MDL; given that many welder-plaintiffs, like Byers, have itinerant careers, choice-of-law issues will arise frequently in Welding Fume cases. In most cases, however, there will be a state where the plaintiff performed a more substantial amount (if not an outright majority) of his welding, as compared with anywhere else. Using the analysis set out above, and absent unusual circumstances, the law applicable to that welder’s case will be relatively easily determined — it will be the law of the state where he performed most of his work and was thus most exposed to welding fumes. This method of determination will usually be easier than assessing whether the law of Ohio may fairly be applied, depending on how many non-Ohio defendants are named in that particular case. There will be some Welding Fume cases where other factors important to a choice-of-law analysis, which are not present in Byers, come into play; there will be some cases where there is no clear answer to the question of where did the plaintiff suffer the most substantial amount of welding fume exposure; there will be some cases where, given the idiosyneracies of the timing and location of the plaintiffs welding jobs, the law of a single state cannot apply to all of the plaintiffs claims; and there will be some cases, originally filed elsewhere and transferred to this MDL Court, where the Court will have to apply different choice-of-law principles altogether. In this case, however, a weighing of all the relevant factors leads tó the conclusion that Texas law applies to Byers’ claims. Accordingly, the Court applies Texas law below when analyzing defendants’ arguments that they are entitled to summary judgment for lack of proof of specific causation. III. Specific Causation. In their motion for summary judgment, defendants argue Byers cannot prevail at trial because he has insufficient evidence regarding: “(1) what level of exposure to welding fumes — if any— causes neurological injury; and (2) whether [he] was exposed to fumes from each individual defendant’s products at that level.” Defendants cite two authoritative Texas cases, known as BorgWamer and Stephens, to support their argument. Before assessing Byers’ evidence, the Court examines the holdings from these two cases. A. Texas Law on Specific Causation. In Borg-Wamer, the Texas Supreme Court “continue[d][its] struggle with the appropriate parameters for lawsuits alleging asbestos-related injuries.” Specifically, the court “had the occasion to decide whether [evidence of exposure to] ‘some’ respirable fibers is sufficient to show that a product containing asbestos was a substantial factor in causing asbestosis.” The court concluded that a plaintiffs showing of exposure only to “some fibers” was insufficient to support a verdict — more precision was required. The facts of Borg-Wamer were as follows. The plaintiff, Arturo Flores, worked as a brake mechanic for about 35 years. Part of his job involved applying a grinder to new break pads, so they would not squeal when installed. This grinding process created visible clouds of dust. Flores worked in a relatively small room and routinely inhaled this dust. The brake pads that Flores worked on were manufactured by half a dozen companies, one of which was Borg-Warner. More specifically, the evidence showed that Flores worked with Borg-Warner brake pads during a three-year period early in his career (1972-75), and about one quarter to one third of the brake pads Flores worked with during that period were Borg-Warner products. Some of the brake pads Flores worked on contained asbestos, including the Borg-Warner products, which were comprised of up to 28% asbestos by weight. At trial, Flores presented an expert toxicologist who engaged in a medico-scientific literature review and testified that: (1) most of the asbestos contained in brake pads is destroyed by the heat of friction, and therefore is not released into the air; but (2) nonetheless, the dust produced during brake pad grinding still contains “some” respirable asbestos fibers. Flores also presented an expert pulmonologist, who testified that: (1) the obstructive lung disease revealed by Flores’s pulmonary function tests was unrelated to asbestos exposure; but (2) the interstitial lung disease revealed by Flores’s x-rays was asbestosis. The manufacturing defendants, in contrast, presented an expert pulmonologist who testified that Flores’s x-rays did not show he had any asbestos-related disease. Flores also presented his medical records, including: (1) the opinion of a NIOSHcertified B-reader physician that the changes in Flores’s lung tissue were “consistent with asbestosis;” and (2) a report from his cardiologist that Flores had admitted to smoking more than a pack of cigarettes a day since age 25. The jury concluded that Flores had sustained an asbestos-related injury proximately caused by Borg-Warner and three other defendants, and that Borg-Warner was responsible for 37% of $112,000 in compensatory damages. Borg-Warner appealed, arguing that, among other things, Flores had not proved liability because he had not adduced sufficient evidence of exposure to injurious levels of asbestos from Borg-Warner products. The Borg-Warner court began its analysis by quoting “the most widely cited standard for proving causation in asbestos cases,” known as the “Lohrmann ‘frequency, regularity, and proximity’ test.” Under the Lohrmann test, “[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of [1] exposure to a specific product [2] on a regular basis [3] over some extended period of time [4] in proximity to where the plaintiff actually worked.” The Lohrmann test is explicitly more strict than the standard “ ‘that if the plaintiff can present any evidence that a company’s asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product proximately caused the plaintiffs disease.” The Borg-Wamer court agreed with the Lohrmann court “that a ‘frequency, regularity, and proximity test’ is appropriate.” But the Borg-Wamer court added that “those terms do not, in themselves, capture the emphasis [that Texas] jurisprudence has placed on causation as an essential predicate to liability.” Rather, under Texas law, there must also be evidence allowing the fact-finder to “determine whether the asbestos in the defendant’s product was a substantial factor in bringing about the plaintiffs injuries.” And, more specifically, this means the plaintiff must present “quantitative information” regarding his “dose.” The Borg-Wamer court observed that: (1) “[a]sbestosis appears to be dose-related, so that the more one is exposed, the more likely the disease is to occur, and the higher the exposure the more severe the disease is likely to be;” (2) “asbestos is ‘plentiful’ in the ambient air and ... ‘everyone’ is exposed to it[;] * * * therefore, some exposure ‘threshold’ must be demonstrated before a claimant can prove his asbestosis was caused by a particular product;” and (3) “[t]here is general agreement from epidemiologic studies that the development of asbestosis requires heavy exposure to asbestos ... in the range of 25 to 100 fibers per cubic centimeter-year.” Given these parameters, the Borg-Wamer court concluded, simple proof of “some exposure” to asbestos — even proof that the plaintiff worked in close proximity to a specific asbestos product on a fairly regular basis over an extended period of time— was “necessary but not sufficient.” This is because evidence regarding “frequency, regularity, and proximity” to a particular defendant’s asbestos product, without any evidence of dose, did not prove that the product was a substantial factor in causing asbestosis. The Borg-Wamer court explained its ruling in the context of Flores’s circumstances: [The record in this case] reveals nothing about how much asbestos Flores might have inhaled. He performed about fifteen to twenty brake jobs a week for over thirty years, and was therefore exposed to “some asbestos” on a fairly regular basis for an extended period of time. Nevertheless, absent any evidence of dose, the jury could not evaluate the quantity of respirable asbestos to which Flores might have been exposed or whether those amounts were sufficient to cause asbestosis. Nor did Flores introduce evidence regarding what percentage of that indeterminate amount may have originated in Borg-Warner products. * * * Thus, while some respirable fibers may be released upon grinding some brake pads, the sparse record here contains no evidence of the approximate quantum of Borg-Warner fibers to which Flores was exposed, and whether this sufficiently contributed to the aggregate dose of asbestos Flores inhaled, such that it could be considered a substantial factor in causing his asbestosis. Thus, a literal application of Lohrrnann leaves questions unanswered in cases like this. The evidence showed that Flores worked in a small room, grinding brake pads composed partially of embedded asbestos fibers, five to seven times per week over a four year period — seemingly satisfying Lohrrnann’s frequency-regularity-proximity test. Implicit in that test, however, must be a requirement that asbestos fibers were released in an amount sufficient to cause Flores’s asbestosis.... In a case like this, proof of mere frequency, regularity, and proximity is necessary but not sufficient, as it provides none of the quantitative information necessary to support causation under Texas law. Notably, the Borg-Wamer court added that the Texas law requirement of “quantitative information” regarding dose, “which separates the speculative from the probable, need not be reduced to mathematical precision.” Rather, “[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.” Put differently, a plaintiff “cannot be expected to ... trace the unknowable path of a given asbestos fiber,” but “there must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold before a likelihood of ‘causation’ can be inferred.” Ultimately, then, the Texas Supreme Court held that a plaintiff can “prove that the defendant’s product was a substantial factor in causing the alleged harm” only by adducing quantitative evidence of (1) how much asbestos exposure is usually required before harm will result; and (2) how much asbestos exposure the plaintiff actually suffered from the defendant’s products. The Borg-Wamer opinion was a watershed holding in Texas in the area of asbestos litigation, and more broadly in the area of toxic tort law and specific causation. Since the opinion’s recent issuance, only one Texas appellate court has applied it: Georgia-Pacific v. Stephens. A review of Stephens also enlightens this Court’s analysis of defendants’ summary judgment motions in Byers’ case. In Stephens, as in Borg-Wamer, the plaintiff (Fred Stephens) contracted asbestosis and sued several defendants who were manufacturers of certain asbestos-containing products. Rather than brake pads, however, the product at issue in Stephens was the joint compound used “to connect adjoining pieces of sheetrock” during construction. Stephens was a commercial painter who worked in close proximity to sheetrockers; the sheetrockers mixed powdered joint compound with water before application, and then sanded smooth the dried joint compound after application. Both “the mixing and sanding processes created a great deal of dust.” Stephens painted in the rooms where the sheetrockers worked, and he sometimes mixed and sanded joint compound himself. Frequently, Stephens swept up the joint compound dust created by the sanding process before he began painting, which would raise clouds of dust so that “there would be dust in the air and on [his] person [ ].” Thus, it is certain Stephens was regularly exposed to and inhaled joint compound dust. With regard to the brands of joint compound to which Stephens was exposed, the evidence at trial was that as many as ten different brands were used at job sites where he worked. One of these brands was “Bestwall,” manufactured by Georgia-Pacific. Between 1965, when Georgia-Pacific acquired Bestwall, and 1977, when Georgia-Pacific changed the Bestwall formula, the product “contained between two and eight percent chrysotile asbestos.” Thus, it was virtually certain that, during his career, Stephens was exposed to some level of asbestos contained in the Bestwall joint compound product manufactured by Georgia-Pacific. Beyond that, however, there was no evidence at all of how much of Stephens’ exposure to asbestos was attributable to Bestwall joint compound. For example, there was “no evidence concerning the percentage of Georgia-Pacific joint compound used in comparison to the quantity of other products used on [Stephens’] job sites, nor any quantitative estimate of the number of times Georgia-Pacific joint compound was used on [his] job sites.” With regard to the question of how much exposure to asbestos it took to cause mesothelioma, Stephens’ experts were also inexact. For example, one expert “did not testify as to the minimum level of exposure to asbestos dust from joint compound that could lead to an increased risk of mesothelioma.” Instead, he testified only that Stephens’ exposures to Georgia-Pacific joint compound “were at a level and of the type that are known by industrial hygienists to contribute to the development of asbestos-related disease,” based on studies that “detected asbestos fibers in excess of OSHA’s permissible exposure limits during joint compound mixing and sanding operations.” The expert could not “estimate the amount of time [Stephens] was exposed to joint compound generated asbestos dust in excess of OSHA permissible levels,” but opined that “every [asbestos] exposure does contribute to the ... potential to develop mesothelioma.” Similarly, another expert opined that “each and every exposure that an individual has in a bystander occupational setting causes their mesothelioma,” and that, while a threshold exists “above which you may be at risk, below which you may not be at risk,” he could not define that threshold. In light of Stephens’ experts’ inability to quantify how much asbestos exposure is required before an increased risk of harm will result, or how much asbestos exposure Stephens suffered that was attributable to Georgia-Pacific, the Stephens court concluded Stephens had not carried his burden of showing specific causation. The court explained: Each of the experts acknowledged at trial that mesothelioma, like asbestosis, is dose responsive — some non de mini-mus [sic] occupational exposure must occur to increase one’s risk of developing the disease. Although the lay testimony presented at trial is sufficient to show that [Stephens] worked in close proximity to asbestos-containing joint compound generally, it is legally insufficient to show that [Stephens] frequently and regularly worked in close proximity to Georgia-Pacific joint compound so as to be exposed to enough of its asbestos to increase his risk of developing mesothelioma. The record does not contain any quantitative estimate of [Stephens’] exposure to Georgia-Pacific’s joint compound, as [his] experts conceded. * * * Without quantitative evidence of exposure and any scientific evidence of the minimum exposure level leading to an increased risk of development of mesothelioma, we hold that the opinions offered by the [Stephens’] experts in this case lack the factual and scientific foundation required by Borg-Wamer and thus are legally insufficient to support the jury’s causation finding. This remained true even though “the literature and scientific studies [Stephens’] experts relied upon support a reasonable inference that exposure to chrysotile asbestos can increase a worker’s risk of developing mesothelioma.” In addition to observing that Stephens’ evidence did not rise to the necessary level of proof, the Stephens court also commented on other cases where, in contrast, the evidence had been sufficient. In Rotondo v. Keene, for example, the “frequency-regularity-proximity test [was] met where [the] evidence showed that [the] plaintiff worked in [a] boiler room at least two days per week for at least three to four months, and pipecoverers used [the] defendant’s asbestos-containing product in [the] boiler room fifty percent of [the] time.” Similarly, in Goss v. American Cyanamid Co., the “frequency-regularity-proximity test [was] met where [the] plaintiff testified that ‘most’ [of the] asbestos pipe covering he used was manufactured by the defendant, and [a] coworker testified that he used defendant’s pipe covering approximately ninety percent of [the] time and installed it in areas where plaintiff regularly worked.” Indeed, the Stephens court even noted it did not mean “to suggest that the levels of exposure evidenced in this case could never be proved to increase the risk of developing mesothelioma.” Rather, a different result could obtain if the necessary evidence of quantification required under Borg-Wamer had been adduced. Because Stephens had argued at trial that “ ‘any exposure’ leads to an increased risk of mesothelioma,” and had not presented any quantitative evidence, however, the jury’s verdict had to be reversed. Having examined Texas law as set forth in Borg-Wamer and Stephens, the Court now applies these rulings to the instant case. B. Byers’ Quantitative Evidence. In this case, each defendant argues that the evidence Byers developed regarding his exposure to their particular products does not meet the Borg-Wamer test, as a matter of law. Turning to the easiest questions first, the Court quickly concludes that six defendants — BOC, TDY, Union Carbide, Eutectic, Sandvik, and Westinghouse — are correct, and so are entitled to summary judgment under Texas law. As Borg-Wamer makes clear, to find against a defendant in this case, the jury must be presented with “evidence of the approximate quantum of [manganese in welding fume] to which [Byers] was exposed, and whether this sufficiently contributed to the aggregate dose of [manganese fume that Byers] inhaled, such that it could be considered a substantial factor in causing his [neurological injury].” In this case, there is no material question of fact as to whether the quantum of welding fumes given off by the products manufactured by each of these six defendants could be considered a substantial factor in causing Byers’ alleged injury — it could not. For example, Byers used defendant BOC’s welding rods during only one job in 1981, and also possibly as a child while welding with his father. There is no evidence that the BOC welding rods Byers used during this 1981 job emitted fumes that were especially copious, or had an unusually high manganese content; nor is there any evidence that he was exposed to these fumes while in a confined space with no ventilation, so that his exposure to BOC welding fumes was especially injurious. Indeed, Byers essentially conceded during oral argument that, given the evidence he had discovered and adduced, his exposure to BOC welding fumes was fairly characterized as “de minimis.” Thus, it is clear that the “dose” of BOC manganese fumes to which Byers was exposed did not contribute to his “aggregate dose” such that it could be considered a substantial factor in causing his alleged injury. Similarly, while Byers used Sandvik welding consumables sporadically between 1981 and 1997, the evidence is undisputed that: (1) the only Sandvik products he used were stainless steel TIG products, which are low-fume, low-manganese products; and (2) he did TIG welding for only a small percentage of his welding, and used Sandvik products for only a small percentage of that. Thus, it is again undisputed that the “dose” of Sandvik manganese fumes to which Byers was exposed did not contribute to his “aggregate dose” such that Sandvik products could be considered a substantial factor in causing his alleged injury. The same analysis applies to defendants TDY, Union Carbide, Eutectic, and Westinghouse. Under the Lohrmann “frequency, regularity, and proximity” test, “there must be evidence of [1] exposure to a specific product [2] on a regular basis [3] over some extended period of time [4] in proximity to where the plaintiff actually worked” to support a jury determination that the product was a substantial factor in causing injury. There is no evidence of record in this case of any regular or extended use by Byers of welding rods manufactured by any of these other four defendants. Accordingly, defendants’ motion for summary judgment must be granted as to BOC, TDY, Union Carbide, Eutectic, Sandvik, and Westinghouse. The analysis is different and more complicated with respect to defendants Lincoln, Hobart, and ESAB. In contrast to the sporadic and infrequent use of welding rods manufactured by the six other defendants, Byers used welding rods manufactured by Lincoln, Hobart, and ESAB regularly and often throughout all of his 25-year career. With respect to each of these defendants, Byers adduced sufficient evidence at the summary judgment stage to submit to the jury the Lohrmann “frequency, regularity, and proximity” test, unmodified by Borg-Wamer. That is, there is no question but that Byers was prepared to present evidence at trial that he commonly and ordinarily used the welding rods manufactured by each of these three defendants, and he did so for many years. As such, there existed evidence upon which a reasonable jury could conclude that each of these three defendants’ products contributed substantially to the aggregate dose of manganese fume that Byers inhaled. Borg-Wamer, however, mandates that Byers provide more than just the information required by Lohrmann — he must also provide evidence related to the “quantitative information [of his exposure] necessary to support causation under Texas law.” While this quantitative information need not be mathematically precise, it must be sufficiently finespun to allow a jury to determine: (1) the quantity of manganese fume to which Byers might have been exposed, (2) whether that amount was sufficient to cause neurological injury, and (3) whether the amount of exposure attributable to each defendant was a substantial cause of that alleged injury. A comparison of the quantitative evidence offered in Borg-Wamer and Stephens (and the cases they cite), on the one hand, and in Byers’ case, on the other hand, convinces the Court that Byers has adduced sufficient quantitative evidence to create a jury question on specific causation for each of the remaining three defendants. First, it is true, as defendants note, that the exact threshold level at which exposure to manganese in welding fumes becomes unsafe is not known; or, as plaintiffs prefer to phrase it, there is no known safe level of exposure to manganese in welding fume. But this is not tantamount to a complete lack of quantitative evidence on the question of whether the amount of manganese fume to which Byers was exposed was sufficient to show increased risk of neurological injury. As this Court has explained in detail in other written opinions, several governmental and professional entities have established various measures to define safe exposure limits to manganese in welding fumes. These limits include: (1) the Threshold Limit Value (“TLV”), promulgated by the American Conference of Governmental Industrial Hygienists (“ACGIH”), which is the maximum average amount to which, it is believed, a person may be safely exposed over an 8-hour time period; and (2) Permissible Exposure Limits (“PELs”), promulgated by the Occupational Safety and Health Agency (“OSHA”), which is the maximum ceiling amount to which a person may be safely exposed at any moment in time. While a welder who is exposed to manganese fume at levels above the TLV or PEL is not guaranteed to suffer adverse health effects, the ACGIH believes that such exposures are unsafe and make adverse health effects more likely. As the ACGIH explained when it lowered the TLV for manganese fume from 1.0 to 0.2 mg/mm3 in 1994, “the available data indicate that a TLV of 0.2 mg/mm3 is needed to prevent progressive neurological changes in workers exposed to manganese.” And as ESAB’s current warning label states, “Overexposure to manganese and manganese compounds above safe exposure limits can cause irreversible damage to the central nervous system, including the brain.” Thus, there is in this case evidence of a quantitative threshold against which a jury can measure Byers’ exposure, together with evidence that exposure above this threshold is sufficient to cause what defendants’ own warnings and MSDSs describe as progressive neurological changes — which can include languor, sleepiness, muscular weakness, emotional disturbances, poor coordination, difficulty in speaking, spastic gait, tremor of arms and legs, and irreversible damage to the central nervous system, including the brain. In sum, Byers has adduced sufficient evidence regarding “toxic threshold” to allow a jury to determine whether a given exposure level to manganese fumes is sufficient to cause the kinds of neurological injury Byers claims to have suffered. The next question is whether Byers has adduced sufficient quantitative evidence to allow a jury to determine whether, more probably than not, the amount of manganese fume from each defendant’s products to which he was actually exposed exceeded this threshold. As noted in its earlier oral rulings on defendants’ summary judgment motions, the Court concludes this is a close question. The very best evidence Byers could present on this issue would be air sampling data that showed, at any point during his career, the actual concentrations of manganese fume in his breathing space. Byers does not point to any air sampling data at all, however, in support of his assertion that his exposures exceeded the threshold level necessary to cause harm. The next best evidence Byers could present on this issue would be expert testimony detailing a quantitative dose reconstruction, premised upon supportable data and reasonable assumptions. Again, however, Byers does not point to this type of evidence. Rather, Byers points to three types of circumstantial evidence suggesting that his actual exposure levels exceeded the critical threshold: (1) defendants’ own documents; (2) an OSHA database; and (3) anecdotal descriptions regarding the type and number of his exposures. As to documents, Byers highlights the minutes from a 1994 meeting of the American Welding Society (“AWS”), at which was discussed the then-proposed reduction of the manganese exposure TLV from 1.0 to 0.2 mg/mm3. The AWS meeting minutes state that defendant Lincoln Electric “estimated that if the TLV is lowered to 0.2 milligrams per cubic meter, then the overall welding fume limit ... would be exceeded in most workplace atmospheres.” As noted above, the reduction of the TLV to 0.2 mg/mm3 did, in fact, occur. Similarly, in a 1995 letter written by Caterpillar, Inc. to the Ferroalloys Association, Caterpillar argued against reduction of the TLV because “approximately 50% [of Caterpillar welders] would be over[-]exposed to manganese at [a TLV] of 0.2.” Byers asserts these documents are general evidence that welders’ exposures to manganese in welding fume above the threshold level are extremely common, to the point of being a phenomenon experienced by the majority of welders (and that defendants have long known this to be true). Byers also points to certain documents and evidence arguably showing that, in fact, welders working in normal circumstances can experience exposures much higher than the threshold level, and workers who experienced exposures lower than the threshold level can develop Manganese-Induced Parkinsonism. As to the OSHA database, Byers adduces evidence that OSHA agents have traveled to various worksites around the country to audit whether employees, including welders, are experiencing manganese exposures in excess of the legal limits. OSHA’s measurements, which are collected in a database, include manganese exposures endured by welders in all types of circumstances: indoor and outdoor welding, use of high- and low-manganese welding rods, well- and poorly-ventilated conditions, and so on. Byers’ expert’s analysis of the OSHA database — which includes thousands of measurements taken over the last 20 years — shows that, as a general matter: (1) about 30% of the welders were, at the time of measurement, experiencing manganese exposure in excess of OSHA’s current TLV of 0.2 mg/ mm3; (2) about 5% of the welders were, at the time of measurement, experiencing manganese exposure in excess of the ACGIH’s current “excursion limit” (recommended absolute ceiling) of 1.0 mg/mm3; (3) welders were about five times more likely to be experiencing manganese exposure in excess of OSHA’s current TLV than non-welders; and (4) these statistics have held fairly constant over the duration of the 20-year measurement period. Finally, against this generalized background, Byers offers evidence of his own, particular welding experiences during his life-long career. This evidence includes circumstances where Byers worked for long hours, worked in enclosed areas, worked without respirators, worked next to other welders and their additional fumes, and so on. Byers’ expert industrial hygienist opines that, when assessed against the generalized evidentiary background painted by the other evidence described above, these circumstances leave “no doubt that Mr. Byers has, over his twenty-seven year welding career, experienced exposures to manganese at various concentrations depending on the specific work, and at levels that exceeded historical and current regulations, and guidelines.” Put differently, Byers’ expert opines that, based on a reasonable degree of scientific certainty, Byers was repeatedly exposed during his career above the threshold level that marks an elevated risk of harm. There is one thing that the sum of this evidence offered by Byers clearly is not: an approximate, stand-alone, quantitative measure of the total amount of manganese in welding fume he inhaled during his career. For example, Byers is not offering evidence from which a jury could conclude that he was exposed to manganese fume above 0.2 mg/mm3 during (say) 10% of his working hours; or that he suffered exposure to manganese fume above 1.0 mg/mm3 50 discrete times in his career. But, as earlier discussed, Texas law does not require Byers to offer evidence this specific. The critical passage from Borg-Wamer is that “there must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold before a likelihood of ‘causation’ can be inferred.” In other words, it is sufficient under Texas law for a plaintiff to adduce evidence that: (1) as a general matter, exposure to a toxin at more than a certain, threshold level substantially increases the likelihood of toxin-related injury; and (2) as a specific matter, more probably than not, he was exposed to more than this threshold level of the toxin, and this exposure can be attributed in substantial part to the particular defendant’s products. While it is a close call on the second prong, the Court concludes Byers has offered sufficient evidence addressing both prongs of this