Appendix — Texaco Inc. v. Mason

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91-1439 Filey

7 MAR 9 1999

——

No. OFFICE OF tric

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IN THE 6

Supreme Court of the United States

OCTOBER TERM, 1991

TEXACO INC.,

Petitioner,

v.

DIANA L. MASON, Individually and as Administrator

of the Estate of Otis W. Mason, Deceased,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

ERIC WATT WIECHMANN GRIFFIN B. BELL *

WILLIAM H. NARWOLD GEORGE 8S. BRANCH

CUMMINGS & LOCKWOOD KING & SPALDING

185 Asylum Street 191 Peachtree Street

Hartford, CT 06103 Atlanta, GA 30303

(203) 275-6700 (404) 572-4600

* Counsel of Record

KEN M. PETERSON

MorrIs, LAING, EVANS, BROCK

& KENNEDY, CHARTERED

200 W. Douglas

Wichita, KS 67202

(316) 262-2671

Attorneys for Petitioner

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

H.

TABLE OF CONTENTS

Opinion of the Court of Appeals [948 F.2d 1546

(10th Cir. 1991) (Mason II) ] ................. oo.

Opinion and Order of the District Court Denying

Texaco’s Motion for Judgment Notwithstanding

the Verdict or New Trial [741 F. Supp. 1472 (D.

Sethi SID. xsstccnesieripeauaciicnechnamnnaamteaebeenamsanshed Gude Keke

Excerpts from the District Court Record ..............

Order of the Court of Appeals Denying Man-

IIE eeinavicshishnleiataisiidatacumeaiieaddecner a.

Opinion and Order of the District Court Denying

Motion to Preclude New Trial on Punitive Dam-

ages [1989 U.S. Dist. LEXIS 7825 (D. Kan.

NE Ae I Ndbcccncrnnncea cet ah i te ie.

Opinion of the Court of Appeals [862 F.2d 242

(10th Cir. 1988) (Mason I) J 2200.

Opinion and Order of the District Court Denying

Motion for New Trial ..........cccccccccececccccccecececeess--s.

Order of Court of Appeals Denying Rehearing,

OI Fes MIE Weastacs pasate eee catidte esreereecn

District Court’s Instructions to Jury ......................

Excerpts from Closing Statement of Plaintiff’s

SIE wisdaustccccnspnatenioiasslnieindiobasiasactaiaaenaaeedaatecusae.

Page

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33a

125a

128a

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APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 90-3250 and 90-3278

DIANA L. MASON, Individually and as Administrator

of the Estate of OTIS W. MASON, Deceased,

Plaintiff-A ppellee,

v.

TEXACO, INC.,

Defendant-A ppellant.

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 78-1337-T)

[Filed Nov. 18, 1991]

Gerald L. Michaud of Michaud, Hutton & Bradshaw and

Richard D. Cordry of Cordry & Hartman (Marlys A.

Marshall with them on the brief), Wichita, Kansas, at-

torneys for Plaintiff-Appellee.

Joseph W. Morris (James M. Sturdivant and Richard

B. Noulles with him on the brief) of Gable & Gotwals,

Tulsa, Oklahoma, and Ken M. Peterson (Robert W.

Coykendall and Diane S. Worth with him on the brief )

of Morris, Laing, Evans, Brock & Kennedy, Chartered,

2a

Wichita, Kansas, (Arthur R. Miller, Harvard Law

School, Cambridge, Massachusetts, and Eric W. Wiech-

mann and William H. Narwold of Cummings & Lock-

wood, Harford, Connecticut, with them on the brief),

attorneys for Defendant-Appellant.

Before MCKAY, Chief Judge, BARRETT and BRORBY,

Circuit Judges.

BARRETT, Senior Circuit Judge.

Texaco, Inc. (Texaco) appeals from a products (ben-

zene) liability judgment following a jury trial, awarding

plaintiff Diana L. Mason, (Mason), individually and as

Administrator of the Estate of Otis W. Mason, (Butch),

Deceased, $9,025,000 in actual damages, and $25,000,000

in punitive damages. The claims of personal injury and

wrongful death were based upon Mason’s contention that

her husband, Butch, developed leukemia and died after

being exposed to benzene produced and marketed by

Texaco. Jurisdiction was based upon diversity of citizen-

ship. 28 U.S.C. § 1832. Texaco moved for a judgment

notwithstanding the verdict or for a new trial. The mo-

tion was denied. This appeal followed.

Our jurisdiction vests under 28 U.S.C. § 1291. Sub-

stantially for the reasons set forth in the district court’s

well-reasoned, 47-page “Opinion and Order Denying De-

fendant’s Post Trial Motion,” Mason v. Texaco, Inc., 741

F, Supp. 1472 (D. Kan. 1990), (Mason), we affirm with

one exception. We shall remand to the district court with

directions to enter a remittitur order on the award of

punitive damages.

3a

Background

In June, 1974, Butch and his young wife and child left

Wichita, Kansas, for Yorktown, Virginia, where Butch

had decided to serve in the United States Coast Guard.

As a student in training, Butch was first exposed to ben-

zene in the water and sediment class. He was taught to

use a test kit sold by Gerin Corporation which was de-

signed and used to test the levels of water and sediment

in engine oil used in Coast Guard vessels. Benzene was

a solvent used as a component of the test. Thereafter,

commencing in October, 1974, Butch taught the course.

He was exposed to a high dosage of benzene while con-

ducting the Gerin lube oil test. He was last exposed on

January 10, 1977.

During the time period of Butch’s exposure to benzene,

Texaco’s sole warning of the health hazards of its benzene

was contained in a Material Safety Data Sheet (MSDS)

which stated that “High concentrations may cause an-

thestic [sic] effects; prolonged chronic excessive exposure

may damage blood forming organs.” The same MSDS

stated that 25 parts benzene per million (ppm) was the

maximum safe exposure limit and that “adequate ventila-

tion” or “local exhaust” should be used. It was not until

1979, some two years after doctors had diagnosed Butch’s

illness as acute myelocytic leukemia and after various

agencies and/or institutes and scentific/medical publica-

tions had clearly identified the causal connection between

benzene exposure and cancer, that Texaco stated that ben-

zene was “suspected” of causing leukemia.

Butch filed suit on August 14, 1978, against the Gerin

Corporation, the manufacturer of the kit used to test

properties of motor oil. By later amendments, claims

were also asserted against Dooner & Smith Chemical

Company, Mellen Chemical, Inc., Ashland Chemical Com-

pany and Texaco, all suppliers of benzene. At trial, only

Texaco and Ashland remained as defendants. At the

conclusion of plaintiff’s case, Ashland’s motion for a di-

4a

rected verdict was granted. The case was thus submitted

against Texaco, although the other parties, with the ex-

ception of Ashland, were named on the verdict form for

comparative fault purposes.

Butch died from leukemia on December 10, 1979.

Mason was substituted as plaintiff in the personal injury

action for pain and suffering and as plaintiff/adminis-

trator of Butch’s estate in the wrongful death action. As

regards the defendants, it was alleged that Butch had

been exposed to benzene, manufactured and/or distributed

by them and that they had failed to properly and ade-

quately warn him of the cancer risks from benzene ex-

posure.

At the conclusion of the four-month trial, the jury

answered official verdict interrogatories, finding by a pre-

ponderance of the evidence that: Butch’s leukemia was

caused by exposure to benzene; the benzene which caused

Butch’s leukemia was produced by Texaco; Texaco either

knew or should have known of scientific knowledge that

benzene was considered to be cancer causing at the time

of Butch’s exposure; Texaco’s actions were insufficient to

warn its immediate purchaser of benzene of its cancer

propensity; Texaco did not take reasonable measures to

determine that its immediate purchaser, Mellen, was

capable of conveying adequate warning to others in the

chain of distribution of benzene; and, Texaco’s failure to

adequately warn Mellen or to take reasonable measure to

see that Mellen passed on an adequate warning was a

direct cause of Butch’s leukemia.

Based upon fault at one hundred percent, the first jury

attributed fault as follows:

Otis Mason 3%

U.S. Coast Guard 26%

Gerin Corporation 25%

Dooner and Smith 5%

Mellen Chemicals 6%

Texaco, Ince. 35%

5a

The jury determined that the total actual damages on

the wrongful death claim amounted to $3,500,000 based

upon pecuniary damages of $3,475,000 and non-pecuniary

(a $25,000 maximum under Kansas law) of $25,000. In

addition, the jury returned a personal injury verdict of

$5,000,000. The jury found that it was not appropriate

to award punitive damages. Mason’s motion for a new

trial on the jury’s denial of punitive damages was denied.

Texaco appealed. Mason did not cross-appeal from the

district court’s denial of her motion for new trial on the

jury’s denial of an award of punitive damages. This

court reversed and remanded for a new trial because of

erroneous jury instructions which obligated Texaco, con-

trary to Kansas law, to take reasonable steps to “see that

its distributor knew and complied with its duty to in-

form,” and to “instruct and train [its] salesmen” in

conveying the health warning. We concluded that these

instructions imposed a greater duty on Texaco than Kan-

sas law required. See Mason v. Texaco, Inc., 862 F.2d

242, 246-48 (10th Cir. 1988), (Mason I). Our remand

was general, reading “The judgment is REVERSED and

the case is REMANDED for a new trial.” Id. at 250.

Upon remand, Texaco filed a motion to preclude the

submission of punitive damages to the jury on retrial.

Texaco argued then, as it does now, that the unappealed

finding/ruling on punitive damages became the law of the

case as a consequence of Mason’s failure to preserve the

issue by cross-appeal. The trial court denied Texaco’s

motion, finding that resubmission of the issue of puni-

tive damages upon retrial was appropriate.

Following many pre-trial motion hearings and deposi-

tions, retrial commenced on September 26, 1989, and con-

cluded with special verdict accompanied by interrogator-

ries on January 24, 1990, approximately a four-month

trial. The jury answered special verdict interrogatories,

finding that by a preponderance of the evidence: Butch’s

a

6a

leukemia was caused by his exposure to benzene; the ben-

zene produced by Texaco was the cause of Butch’s leu-

kemia; the benzene produced by other manufacturers did

not contribute in part to Butch’s leukemia; Texaco knew

or should have known at the time of Butch’s exposure to

benzene that there existed scientific knowledge that ben-

zene was cancer-causing; the actions taken by Texaco

were insufficient and inadequate to warn Texaco’s imme-

diate purchaser, Mellen, of the dangerous carcinogenic

propensity of benzene; Texaco did not take reasonable

measures to determine that its immediate purchaser,

Mellen, was capable of conveying adequate warning to

others in the chain of distribution of benzene; Texaco’s

negligent failure to warn caused, either in whole or in

part, Butch’s exposure to benzene; and, considering all of

the fault at one hundred percent, the evidence dictates

that Texaco was 100% at fault and that none of the

fault, as a contributing cause to Butch’s leukemia, was

attributable to Ashland Chemical, Union Amoco, Mellen

Chemicals, Dooner & Smith, Gerin Corp., U.S. Coast

Guard or Butch.

The jury awarded Mason and her children $5,000,000

pecuniary damages and $25,000 (maximum allowable)

non-pecuniary damages in their wrongful death action.

The jury also awarded $4,000,000 for personal injuries

suffered by Butch before his death. Finally, the jury

awarded $25,000,000 against Texaco as punitive damages.

The district court entered judgment in favor of Mason

for $9,025,000 compensatory damages and $25,000,000 in

punitive damages for a total award of $34,025,000. Tex-

aco moved for judgment notwithstanding the verdict, or,

in the alternative, for a new trial. The motion was de-

nied by the district court. See Mason, supra.

Contentions on Appeal

On appeal, Texaco contends that: (1) the trial court

erred in retrying punitive damages, (2) because the

Coast Guard’s fault was undisputed, the trial court com-

7a

mitted multiple critical errors in denying Texaco’s mo-

tions for a directed verdict, judgment notwithstanding

the verdict, or for a new trial, (3) the trial was per-

meated with error that cumulatively precluded Texaco

from receiving a fair trial and constitutes reversible er-

ror, (4) the trial court erred by permitting speculation

as to the source of benzene and by coercing the jury to

reach a decision on that issue, and (5) the jury’s findings

of $9,025,000 actual damages and $25,000,000 punitive

damages are excessive.

The appellate contentions of error were raised and pre-

sented to the trial court in Texaco’s motion for judgment

notwithstanding the verdict or, alternatively, for a new

trial. The district court dealt with each contention in de-

tail in Mason, supra. Because we affirm, with one excep-

tion, substantially for the reasons set forth in Mason,

supra, our discussion shall be simply supplemental.

I.

Texaco argues that the trial court erred in retrying

punitive damages. We review issues of law de novo.

Boise City Farmers Coop v. Palmer, 780 F.2d 860, 866

(10th Cir. 1985).

In support of its argument, Texaco contends that (a)

established principles of finality and fundamental fair-

ness prohibited a retrial of punitive damages, (b) the

first trial afforded Mason a full and fair hearing of her

punitive damage claim, (c) Mason had an obligation to

cross-appeal to prevent the punitive damage determina-

tion from becoming final, (d) special jury verdicts, not

infected by error, uniformly are given effect on retrial,

(e) the only case directly on point prohibits retrial of

punitive damages, (f) policies of fairness, judicial econ-

omy, and encouraging repose support limiting retrial of

issues specifically decided, and (g) the improper relitiga-

8a

tion of punitive damages made a fair trial of Texaco’s

liability and the amount of actual damages impossible.

Although we shall discuss and decide Texaco’s conten-

tions, we observe that a decision rendered by this court

which was not available to the district court or to the

parties when they prepared their opening and reply briefs

on appeal, controls the issue of the scope of the retrial in

Mason and fully justifies the trial court’s decision to

retry the issue of punitive damages. That decision is

Wheeler v. John Deere Co., 9385 F.2d 1090 (10th Cir.

1991).

In Wheeler, also a products liability diversity case, the

jury found defendant John Deere 75% at fault and plain-

tiff Wheeler’s employer 25% at fault. The jury calcu-

lated Wheeler’s total damages at $3.1 million. The court

entered judgment against John Deere for $2.3 million.

Defendant John Deere appealed. We reversed and re-

manded for a new trial, holding that the trial court com-

mitted reversible error in key evidentiary rulings. See

Wheeler v. John Deere Co., 862 F.2d 1404, 1415 (10th

Cir. 1988).

At the second trial, the jury found John Deere 68%

at fault and Wheeler’s empioyer 32% at fault. The

jury assessed damages at $2,883,407. The district court

entered judgment against John Deere in amount of

$1,960,717. Plaintiff Wheeler appealed, contending, inter

alia, that because John Deere did not appeal from the

first jury’s damages award of $2,325,000, he was entitled

to that sum instead of the second jury’s award of

$1,960,717. We rejected this contention and held:

This argument overlooks our reversal in Wheeler J.

To ‘reverse’ a judgment means to ‘overthrow, vacate,

set aside, make void, annul, repeal, or revoke it.’

Black’s Law Dictionary, 1319 (6th Ed. 1990). A

judgment reversed by a higher court is ‘without any

validity, force or effect, and ought never to have ex-

Oe

9a

isted.’” Butler v. Eaton, 141 U.S. 240... (1891).

See Leroy v. City of Houston, 906 F.2d 1068, 1076

(5th Cir. 1990); Rika v. Int'l Tel. & Tel. Corp., 533

F.2d 1053, 1054 (8th Cir. 1976). Reversal of a judg-

ment and remand for a new trial places the parties

in the same position, insofar as relief is concerned,

as if the case had never been tried. See Gospel

Army v. Los Angeles, 331 U.S. 548 .... (1947).

In Wheeler I, we ‘reverse[d] the judgment of the

district court and remand[ed] for a new trial.’ 862

F.2d at 1415. Once we reversed the original judg-

ment incorporating the first jury’s verdict and our

mandate issued, the first verdict became null and

void in its entirety. The district court could no more

reinstate the damages portion of the first verdict

than it could substitute the second jury’s award with

a larger sum pulled out of a magically appearing

hat. See Dr. Seuss, The 500 Hats of Bartholomew

Cubbins (1938).

935 F.2d at 1096.

Texaco, in its “law of the case doctrine’ argument,

points to the case of Arnold v. Eastern Air Lines, 681

F.2d 186 (4th Cir. 1982), cert. denied, 460 U.S. 1102

(1983) as “an indistinguishable case.” (Appellant’s

Brief, p. 19). We disagree.

Arnold involved, inter alia, a wrongful death action

brought by the personal representative of a passenger

who was killed in an airplane crash near Charlotte, North

Carolina. Eastern, unlike Texaco, admitted liability based

on “the failure of the pilots to be aware of the plane’s

altitude immediately prior to the crash.” Plaintiff sought

both compensatory and punitive damages. LEastern’s

pleadings conceded liability and, thus, unlike Texaco, re-

sponsibility for compensatory damages. However, East-

ern denied liability for punitive damages. The Arnold

jury returned a plaintiff’s verdict for $847,000 in com-

pensatory damages but denied punitive damages. Post-

|

10a

trial motions were denied, including plaintiff’s motion

for new trial on the punitive damages issue.

However, the trial court determined that it had erred

in submitting decedent’s pain and suffering damage claim

to the jury because there was insufficient evidence that

decedent had survived the crash even momentarily. On

that basis, the trial court ordered a new trial on the

compensatory damages claim alone, conditioned upon

plaintiff’s refusal to accept a remittitur of $50,000. The

plaintiff accepted the remittitur, and the court entered

judgment in the reduced sum of $797,000.

On appeal, the court reversed, holding that: (1) the

remittitur devise was improper, but plaintiff, as appellee,

having accepted the remittitur, was limited to defending

the judgment as entered and could not enlarge her rights

under it, and (2) upon remand the district court should

conduct a new trial limited to the issue of compensatory

damages only. The court observed that “The district

court denied plaintiff’s motion for a new trial on the

punitive damages liability issue, and plaintiffs did not

appeal from that order. This ruling, unappealed, was

not in consequence subject to defense by Eastern on ap-

peal and Eastern is entitled to have it treated as the law

of the case. See F. James & G. Hazard, Civil Procedure

11.5 (2d ed. 1977).” Id. at 206.

The instant case and Arnold are strikingly different.

First, in Arnold the remand order specifically limited the

new trial to determination of compensatory damages only.

Mason I, on the other hand, was a general remand for

new trial because of erroneous jury instructions as to

Texaco’s duty to warn and to train salesmen. 862 F.2d

at 250. Thus, the entire question of Texaco’s liability was

at issue upon retrial. Secondly, plaintiff in Mason was

not offered nor did she accept a remittitur of compensa-

tory damages. Finally, and most significant, Texaco,

unlike Eastern, challenged any liability on its part.

lla

In Mason I, this court reversed and remanded for a

new trial on the sole basis that the trial court’s liability

instructions imposed an impermissibly high duty to warn

on Texaco. Our remand was general. This court observed

that the additional issues raised by Texaco on appeal

(beyond the liability instructions) were all “fact bound”

and that extensive discussion thereof would be “unproduc-

tive.’ Id. Thus, as to those “additional issues,” there

was no appellate court determination thereof. On that

predicate, there is no reason to believe that this court

would have addressed the issue of punitive damages even

had it been raised on cross-appeal by Mason. It, too,

would have been treated as “fact bound.”

When this Court issued its general mandate in Mason

I, we reversed the first judgment and remanded for a

new trial on all “fact bound” issues without limitation.

Certainly liability and damages were “fact bound”’ is-

sues for jury determination. Thus, the trial court, upon

remand, did not abuse its discretion in ruling that all

issues of liability and damages were matters to be re-

solved by the jury.

In Hicks v. Gates Rubber Co. 928 F.2d 966, 971 (10th

Cir. 1991), we held that “[W]hen the further proceed-

ings are specified in the mandate the district court is

limited to holding such as are directed. When the re-

mand is general, however, the district court is free to

decide anything not foreclosed by the mandate.”

And in K-B Trucking Co. v. Riss Intern. Corp., 763

F.2d 1148, 1163 n.22 (10th Cir. 1985), we stated:

A new trial on part of the issues is appropriate

where ‘it clearly appears that the issue to be retried

is so distinct and separate from the others that a

trial of it alone may be without injustice.’ Gasoline

Products Co. v. Champlin Refining Co., 283 U.S. 494,

500, 51 S. Ct. 518, 515, 75 L. Ed. 1188 (19381).

Professors Wright and Miller explain that

| .

12a

if an error at the trial requires a new trial on

one issue, but this issue is separate from the

other issues in the case and the error did not

affect the determination of the other issues, the

scope of the new trial may be limited to the sin-

gle issue. Perhaps the most common example is

the grant of a new trial limited to damages

when liability has been properly determined. 11

C. Wright & A. Miller Federal Practice and Pro-

cedure § 2814 at 93 (1973) (footnotes omitted) ;

see also J. Moore and J. Lucas, Moore’s Federal

Practice, { 59.06, at 59-56 to 59-58 (1984). Pro-

fessors Wright and Miller note that ‘a new trial

on damages only is not proper if there is reason

to think that the verdict may represent a com-

promise among jurors with different views on

whether defendant was liable or if for some

other reason it appears that the error on the

damage issue may have affected the determina-

tion of liability.’ (Emphasis supplied).

In. Gasoline Products Co. v. Champlin Refining Co.,

supra, at 500, the Court reasoned that a new trial could

not be based on part of the issues because “[h]ere the

question of damage on the counterclaim is so interwoven

with that of liability that the former cannot be submitted

to the jury independently of the latter without confusion

and uncertainty, which would amount to a denial of fair

trial.” In Brown v. Richard H. Wacholz, Inc., 467 F.2d

18, 21 (10th Cir. 1972), we reversed and remanded for

a new trial on the damages issue only, holding that the

liability issue was properly determined and the issues

were not intermingled.

In Delano v. Kitch, 663 F.2d 990 (10th Cir. 1981), we

held that in conducting a retrial, the trial court should

follow rulings of law previously made by the court of

appeals. That mandate was faithfully followed by the

trial court in this case. Under the “law of the case” doc-

13a

trine, the district court may not deviate from the appel-

late court’s mandate; however, the district court may re-

consider an issue and disregard the appellate court man-

date if the subsequent trial produces substantially differ-

ent evidence. Lindsey v. American Cast Iron Pipe Co.,

810 F.2d 1094 (11th Cir. 1987). We observe that Mason

cites to Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th

Cir. 1982) for the rule that the law of the case doctrine

does not apply where the evidence on retrial is substan-

tially different than that presented at the original trial

and contends:

It cannot seriously be argued that the evidence

upon retrial of this case mirrored that presented in

the first. Indeed, the second trial so substantially

and significantly varied from the first as to prevent

meaningful comparison. As defendant must surely

concede, the cultivation and development of an en-

tirely new liability or causation expert radically al-

tered the evidence heard by the jury. Defendant’s

emphasis on a theory of defense virtually ignored in

the first trial, i.e., that toluene was substituted for

benzene by Gerin Corporation, in addition to its new

theory on the supply issue, combined to change the

complexion of the case beyond recognition. Defend-

ant in this trial shifted the focus almost exclusively

to proving Texaco’s product never reached Butch

Mason at all.

(Appellee’s Brief, p. 13).

Among the law of the case rules is the obligation of

every court to honor the rulings of a court that stands

higher in the hierarchical judicial structure. 18 C.

Wright, A. Miller & E. Cooper, Federal Practice and

Procedure, § 4478 at 788. No violation of that rule oc-

curred in this case. The law of the case doctrine posits

that “[w]hen a court decides upon a rule of law, that

decision should continue to govern the same issues in sub-

l4a

sequent stages in the same case.” Arizona v. California,

460 U.S. 605, 618 (1983). “The doctrine of law of the

case comes into play only with respect to issues previously

determined.” Quern v. Jordan, 440 U.S. 332, 347 (1979).

Furthermore, the law of the case doctrine is solely a rule

of practice and not a limit on the power of the court.

Messinger v. Anderson, 225 U.S. 4386, 444 (1912). See

also Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981)

(law of the case doctrine is not an “inexorable command”

but a rule to be applied with good sense).

“The rule of the law of the case is a rule of practice,

based upon sound policy that when an issue is once liti-

gated and decided, that should be the end of the matter.”

United States v. U.S. Smelting Ref. & Mining Co., 339

U.S. 186, 198 (1950). See also, Fou v. Mazda Corp. of

America, 868 F.2d 1190, 1194 (10th Cir. 1989); Gage v.

General Motors, 796 F.2d 345, 349 (10th Cir. 1986).

A punitive damage claim is not an independent cause

of action or issue separate from the balance of a plain-

tiff’s case. It is part and parcel of a liability determina-

tion and does not have any independent being until a jury

has decided, based on the preponderance of the evidence,

that not only was a defendant’s conduct negligent, but

that it was gross, willful, wanton or malicious. Proof of

gross, willful, wanton or malicious conduct by a defend-

ant is not separate from proof of a defendant’s negli-

gence. The evidence proving negligence establishes li-

ability and the degree of negligence is determinative in

the award of punitive damages. Upon remand in this

case, the entire issue of liability was subject to retrial.

It was in fact resubmitted to the jury in a hard fought

contest.

In light of our holding in Wheeler v. John Deere Co.,

supra, and the law of the case doctrine, we hold that the

trial court did not err in permitting retrial of the puni-

tive damages claim.

15a

II.

Texaco contends that because the Coast Guard’s fault

was undisputed, the trial court committed multiple crit-

ical errors in denying Texaco a directed verdict, judgment

notwithstanding the verdict, or a new trial. Texaco

argues that the Coast Guard’s wrongful conduct was an

effective intervening and superseding cause of Butch’s

injuries and that the jury’s failure to find that the Coast

Guard was at fault required that the trial court grant

Texaco a new trial.

In Rajala v. Allied Corp., 919 F.2d 610, 615 (10th

Cir. 1990), we stated our standard of review, which is

controlling here:

We review de novo the denial of a motion for judg-

ment notwithstanding the verdict, applying the same

standard of review as that used by the district court.

See, Guilfoyle v. Missouri, Kansas & Texas R. Co.,

812 F.2d 1290, 1292 (10th Cir. 1987). ‘Although we

have often used different phraseology to express this

standard, the inquiry is best summarized as

“vhether there is evidence upon which the jury could

properly find a verdict for the party [against whom

the motion is directed].’ Hurd v. American Hoist &

Derrick Co., 734 F.2d 495, 498-99 (10th Cir. 1984)

(footnote omitted) (quoting 9 C. Wright & A. Miller,

Federal Practice and Procedure, 2524 at 543

(1971)). In making that determination, we are ob-

ligated to view ‘evidence and inferences most favor-

ably to the nonmoving party,’ Zimmerman v. First

Fed, Sav. & Loan Ass’n., 848 F.2d 1047, 1051 (10th

Cir. 1988).

Because the directed verdict/judgment notwith-

standing the verdict inquiry asks whether there was

evidence such that the jury could have properly found

for the party against whom the motion is made, we

must necessarily frame our analysis in terms of the

Eo

16a

underlying burden of proof. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 ... (1986). (‘We are

convinced that the inquiry involved in a ruling neces-

sarily implicates the substantive evidentiary stan-

dard of proof that would apply at the trial on the

merits’).

And in Crysco Oilfield Serv. v. Hutchinson-Hayes In-

term., 913 F.2d 850-51 (10th Cir. 1990), we stated:

in order to reverse the trial court’s decision on a

motion for directed verdict, we must find that ‘the

evidence points but one way and is susceptible to no

reasonable inferences supporting the party [opposing

the motion]; we must construe the evidence and in-

ferences most favorably to the nonmoving party.’

Zimmerman v. First Federal Sav. & Loan Ass’n.,

848 F.2d 1047, 1051 (10th Cir. 1988).

In Transpower Constructors v. Grand River Dam

Auth., 905 F.2d 1413, 1416 (10th Cir. 1990), we ob-

served :

We will reverse the trial court’s denial of either

motion [a directed verdict and for judgment n.o.v.]

only if, after a de novo review, we determine that

the evidence taken in the light most favorable to the

nonmoving party and all reasonable inferences to be

drawn therefrom point but one way, in favor of the

moving party. Mitchell v. Mobil Oil Corp., 896 F.2d

463, 467 (10th Cir. 1990).

Finally, we have held that the trial court’s discretion

as to whether to grant a new trial will not be disturbed

on appeal absent an abuse of discretion. In Garrick v.

City and County of Denver, 652 F.2d 969, 971 (10th Cir.

1981), we required a “strong showing” of the trial

court’s abuse of discretion. See also Meyers v. Ideal Basic

Industries, Inc., 940 F.2d 1379, 1883 (10th Cir. 1991):

O.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th

Cir. 1989).

17a

Our review of the entire record on appeal leads us to

conclude that there was in fact a genuine dispute rela-

tive to the Coast Guard’s fault. We hold, based on our

review, that the jury could conclude, as surely it did, that

the Coast Guard did not know that benzene induced or

caused leukemia during the time of Butch’s exposure

thereto. We agree with the trial court’s careful review of

the evidence relative to this issue. See Mason, 741 F.

Supp. at 1484-87.

ITI.

Texaco argues that it was denied a fair trial due to

the cumulative effect of erroneous rulings by the trial

court in (a) barring cross-examination as to the cred-

ibility of plaintiff’s experts, (b) allowing plaintiff to pre-

sent irrelevant and highly prejudicial evidence of OSHA

benzene hearings and of “other deaths” allegedly caused

by the OSHA delay in lowering the occupational benzene

exposure standard, (c) finding as a fact that key testi-

mony from the first trial had been transcribed correctly,

and (d) precluding cross-examination of the plaintiff re-

garding her inconsistent statements in prior pleadings.

“A district court possesses considerable discretion in

governing the presentation of evidence, and its decisions

will not be disturbed absent manifest injustice to the

parties. See Thweatt v. Ontko, 814 F.2d 1466, 1470

(10th Cir. 1987); see also Marsee v. U.S. Tobacco Co.,

866 F.2d 319, 324 (10th Cir. 1989).” Comceoa, Ine. v.

NEC Telephones, Inc., 931 F.2d 655, 633 (10th Cir.

1991). “The admission or exclusion of evidence lies

within the sound discretion of the trial court and will

not be disturbed absent a clear abuse of discretion.

Wheeler I, 862 F.2d at 1408.” Wheeler v. John Deere

Co., supra, 935 F.2d at 1099. “[T]he admission of evi-

dence is largely a matter of the district court’s discretion.

In the absence of manifest error, we will not reverse the

district court’s decision to admit [refuse admisison of]

————--——

18a

evidence.” Bradbury v. Phillips Petroleum Co., 815 F.2d

1356, 1865 (10th Cir. 1987).

Among its contentions of error, Texaco asserts that the

trial court erred in denying it the right to cross-examine

the credibility of Mason’s two expert epidemiologists,

Drs. Wagoner and Infante. These experts were critical

of Texaco’s methodology in formulating its MSDA warn-

ing. They opined that it was inadequate and that because

exposure to benzene at low levels was known to cause

leukemia in 1973, a prudent manufacturer of benzene

would not have relied on Texaco’s MSDA warning. In

order to attack the credibility of Drs. Wagoner and In-

fante, Texaco sought, during cross-examination, to ques-

tion them relative to hearsay documents prepared by

other expert epidemiologists which were highly critical of

a study and conclusions made by Drs. Wagoner and In-

fante relative to the carcinogenicity of beryllium.

Texaco argues that “[h]ad Texaco been allowed to

question Infante and Wagoner about the reviews of their

beryllium study, it would have been obvious to the trier

of fact that these scientists were biased advocates who

consistently have misrepresented data in order to reach

desired conclusions. It certainly bore on their qualifica-

tions to represent views of the ‘scientific community.’ ”

(Brief of Appellant, p. 50).

Texaco contends that “the court erred in prohibiting

this classical line of impeachment cross-examination.

Rule 608(a) [Fed R. Evid.] permits an attack on cred-

ibility by using the evidence Texaco attempted to offer.

Rule 608(b) also provides that specific instances of a

witness’ conduct, if probative of his character for truth-

fulness or untruthfulness, are admissible to attack that

witness’ credibility.” (Brief of Appellant, p. 49).

The hearsay documents Texaco relied upon related to

challenges to Mason’s experts concerning research in a

field completely unrelated to benzene. These documents

19a

challenged Drs. Wagoner and Infante solely relating to

their research conducted on beryllium. This evidence was

inadmissible for several reasons. First, the authors of

the documents relied upon by Texaco were not present or

subject to cross-examination. Secondly, the documents do

not challenge (Rule 608(a)) Dr. Wagoner’s and Dr.

Infante’s character for truthfulness or untruthfulness,

but rather, and only, their objectively in the beryllium

study.

A trial court has broad discretion in determining

whether evidence is properly admitted for impeachment

purposes. United States v. Brandon, 847 F.2d 625, 629

(10th Cir. 1984).

In United States v. Bowie, 892 F.2d 1494, 1501 (10th

Cir. 1990), we stated that:

We might agree with this proposition if all prior

incidents were more directly related to the instant

case. The only possible trial use of the prior inci-

dent, however, was an evidence of a specific instance

of the conduct of the witness’ credibility. Such in-

stances may never be proved by extrinsic evidence,

and they can be inquired into on cross-examination

only in the discretion of the trial court. Fed. R.

Evid. 608 (b); see generally McCormick on Evi-

dence, § 42 (E. Clearly 3d Ed. 1984).

In United States v. Bedonie, 913 F.2d 782, 802 (10th

Cir. 1990), we defined the purpose of 608(a) evidence:

Fed. R. Evid. 608(a) permits a party to attack

the credibility of a witness by evidence in the form

of opinion or reputation as to the witness’s charac-

ter for truthfulness or untruthfulness. The admis-

sion of this type of evidence is left to the sound

discretion of the district court, which must also

determine whether the evidence passes the rule 403

balancing test.

See also United States v. Rios, 611 F.2d 1335, 1850 (10th

Cir. 1979).

20a

In United States v. Morgqles-Quinones, 812 F.2d 604,

613 (10th Cir. 1987), we defined the scope of 608(b)

cross-examination:

Under Fed. R. Evid. 608(b), a defendant may im-

peach a Government witness by cross-examining him

about specific instances of conduct not resulting in

conviction if such conduct is probative of the witness’

character for truthfulness or untruthfulness. Such

inquiry is within the discretion of the trial court

subject to rule 403. United States v. Girdner, 773

F.2d 257, 261 (10th Cir. 1985), cert. denied, ——

U.S. ——, 106 S. Ct. 1879... (1986)....

In United States v. Atwell, 766 F.2d 416, 420 (10th

Cir.), cert. denied, U.S. , 106 S. Ct. 251 (1985),

we affirmed the district court’s refusal to permit the

defense to cross-examine a prosecution witness concern-

ing his prior arrests which did not result in convictions

and held:

The appellant argues that Federal Rules of Evi-

dence 608(b) compels the admission of the evidence

of the arrests because they bear on Holden’s truth-

fulness. Rule 608(b) does no such thing. The trial

court in its discretion may allow inquiry into the

prior conduct of a witness concerning his character

for truthfulness. The rule does not require inquiry.

Additionally, Rule 608(b) is still subject to the bal-

ancing under Rule 403 mentioned above.

Here, the “specific instances of conduct” by Mason’s

experts sought to be introduced by Texaco related to the

beryllium study rather than the benzene study. This is

a far cry from expert testimony or other impeachment

evidence attacking the scientific propriety of the method-

ology employed by Drs. Wagoner and Infante in their

benzene study and report.

We have carefully reviewed the record, the parties’

briefs and the district court’s decision. See Mason, 741

21a

F. Supp. at 1495-1501. We hold and conclude that none

of the trial court’s challenged evidentiary rulings con-

stituted a clear abuse of discretion, manifest error, or

reversible error.

IV.

Texaco contends that the trial court erred by permit-

ting (jury) speculation as to the source of benzene to

which Butch was exposed to. This matter was thoroughly

discussed in Mason. Id. at 1479-81. We agree with the

trial court’s reasoning.

Texaco argues that the jury was obviously guessing

and speculating on its finding/conclusion that Butch had

been exposed only to Texaco’s benzene when, on the sixth

day of jury deliberation, it sent a note to the court stat-

ing that it had become “locked” on question No. 2. Ques-

tion No. 2 asked “Do you find by a preponderance of the

evidence that the benzene produced by Texaco was a cause

of Mason’s leukemia?” The jury note to the court asked:

“Why does question No. 2 on the verdict form have to

be 100% yes or no when question number 8 has a place

for a percentage of blame?”

Texaco contends that the trial court, rather than ac-

cepting the jury’s statement that it was hung, issued a

modified Allen instruction improperly telling the jury

that “from my observation, the issues in this case can be

decided on a preponderance of the evidence without diffi-

culty.” Texaco argues that this instruction impermissibly

coerced or influenced the jury to find for plaintiff on this

issue. Texaco usserts that when the trial court instructed

the jury that it “reserved the right of course to comment

or do whatever is necessary by way of further instruction

to help the jury reach a verdict” that the court, in effect,

advised the jury that it would not permit them to hang.

Immediately after the court gave its Allen instruction,

the foreman of the jury requested dismissal, on the basis

that the stress of deliberations was threatening to his

iti

22a

health. Texaco requested leave to question the jury fore-

man. The court denied the request, dismissed the foreman

and denied Texaco’s motion for mistrial. Texaco argued

that by dismissing the jury foreman, it was denied a

unanimous verdict under Fed. R. Civ. P. 48. We find no

error in the trial court’s Allen instruction or the dis-

missal of the jury foreman.

(a)

In Reazin v. Blue Cross and Blue Shield of Kansas,

899 F.2d 951, 978 (10th Cir. 1990), we reiterated the

rule laid down in United States v. McKinney, 822 F.2d

946, 951 (10th Cir. 1987) that although the preferred

procedure is that an Allen instruction be given at the

same time as other instructions, it is not a per se rule,

and the coercive effect of the Allen-type instruction must

be determined on a case-to-case basis. Texaco does not

point to any specific error in the trial court’s Allen in-

struction; rather, Texaco argues that the giving of the

instruction was coercive in light of the jury’s inability to

resolve the evidence as to whether Texaco’s benzene was

the cause of Butch’s leukemia.

Contrary to Texaco’s contentions, we do not discern any

evidence or any reasonable inference that the jury was

deadlocked on this issue. The jury’s correspondence with

the court asked “why does question No. 2 on the verdict

form have to be 100% yes or no when question number

8 has a place for a percentage of blame?” The jury was

obviously confused about the verdict form. In response

to this question, the trial court properly instructed the

jury that even should the jury answer question No. 2 in

the affirmative (i.e., that benzene produced by Texaco

caused Butch’s leukemia), this does not answer the ques-

tion of whether Texaco was at fault for causing such

exposure, nor does it answer the question of the percent-

age of fault attributable to Texaco and other parties.

4 oni

23a

We hold that the trial court did not commit reversible

error in giving the Allen instruction. It was not coercive.

The tria! court’s statement that all issues in the case

could be resolved was not coercive and it did not “virtually

direct a verdict against Texaco on the issue of who sup-

plied the benzene.” (Brief of Appellant, p. 65). The jury

continued to deliberate for another six days. That, in

itself, dilutes any indicia of coercion on the part of the

trial court. See Reazin v. Blue Cross and Blue Shield of

Kansas, supra; United States v. Dyba, 554 F.2d 417

(10th Cir.), cert. denied, 434 U.S. 830 (1977).

(b)

Texaco argues that the trial court’s Allen instruction,

which virtually instructed the jury that a verdict must be

reached, “appears to have had the effect of driving a

dissenting juror off the jury.” (Brief of Appellant, p. 64,

n. 69). There is nothing in the record to support this

assertion.

The jury foreman delivered a note to the court which

the judge and counsel examined and discussed. The note

explained that the jury foreman had been hospitalized

about a year ago with a serious heart condition brought

about as a result of stress caused by his job, resulting

in early retirement. The note further explained that the

juror had no idea at the outset of deliberations that he

would be under the type of stress which caused his

previous hospitalization. He referred the court to his

doctor’s letter which stated that the foreman had been

recently examined and that he was suffering from “acute

nervous reaction, hypertension and acute insomnia” and

should be released from jury duty.

We agree with the district court’s observation that

under the circumstances, it would have been unconscion-

able to subject the jury foreman to further jury de-

liberation at the risk of aggravating his existing heart

condition. In Green v. Zant, 715 F.2d 551, 555 (11th

oii ae

24a

Cir. 1983), the court held that “a federal district court

possesses the discretion to remove a juror when that

juror’s capacity to perform his duties becomes impaired.”

Here, the district court had a sound factual basis upon

which to exercise its discretion to remove the jury fore-

man and a hearing on the issue was not necessary.

V.

Texaco argues that the jury’s findings of $9,025,000

actual damages and $25,000,000 punitive damages are

excessive, and that the trial court abused its discretion

in denying Texaco’s motion for a new trial due to the

excessiveness of the verdict. Our standard of review is

that of abuse of discretion. Garrick v. City and County

of Denver, supra.

Texaco contends that a review of the record will dem-

onstrate to this court that passion, prejudice, corruption

or other improper cause invaded the trial and that the

jury award was so excessive as to shock the judicial

conscience.

(a)

Actual Damages

With respect to the actual damages of $9,025,000 rep-

resenting $5,025,000 for the wrongful death claim and

$4,000,000 for Butch’s survival claims, Texaco points out

that Mason sought $3,500,000 under the wrongful death

claim and that the jury’s award exceeded that amount by

$1,525,000. That award included the statutory maximum

of $25,000 for bereavement and mental anguish. Of the

remaining $5,000,000, a total of $1,315,561 was awarded

for Butch’s past and prospective lost earnings, medical

expenses, nursing care and burial expenses. The balance

of approximately $3,600,000 must be attributed to the

economic value of the loss of services and care, which

Texaco contends to be grossly excessive.

Texaco asserts that the $4,000,000 award for Butch’s

survival claims must be considered as compensation for

25a

pain and suffering which occurred between September,

1977, and Butch’s death in December, 1979—a period of

27 months. Texaco also points out that Butch was in

remission for approximately 15 of these months during

which time he was able to work, travel and engage in most

normal activities. Thus, while recognizing that Butch

suffered physical pain and mental anguish during this

period, Texaco argues that the $4,000,000 award is dis-

proportionately large. Texaco contends that the magnitude

of the award may be explained by the “[g]ross miscon-

duct of plaintiff’s counsel in closing, when, holding up a

life expectancy chart, he told the jury to use the chart

in determining actual damage... . The trial court recog-

nized this was error, but refused to correct the matter

because compensation for pain and suffering cbviously

presupposes that the person was alive and thus able to

experience pain... .” (Brief of Appellant, p. 68).

In Bennett v. Longacre, 774 F.2d 1024, 1028 (10th

Cir. 1985), we referred to a time-honored principle:

It is a fundamental legal principle that the de-

termination of the quantum of damages in civil cases

is a fact-finder’s function. The trier of fact, who

has the first-handed opportunity to hear the testi-

mony and to observe the demeanor of the witnesses,

is clothed with a wide latitude and discretion in fix-

ing damages pursuant to the court’s instructions ....

In our view, there was substantial evidence in the

record to support the jury’s award of compensatory dam-

ages. We affirm these awards substantially for the rea-

sons set forth in Mason, 741 F. Supp. at 1513-14.

(b)

Punitive Damages

Texaco argues that the $25,000,000 punitive damage

award is unprecedented in a personal injury accident case

in Kansas or in the Tenth Circuit. (Appellant’s Brief,

26a

n. 74, p. 69). Further, Texaco cites Kan. Stat. Ann.

§§ 60-3701, 60-3702 (Supp. 1989) for the rule that

$5,000,000 is the maximum punitive damage award al-

lowed in Kansas on a tort claim since 1987.

Texaco contends that allowing the jury to assess puni-

tive damages under a standardless punitive damage in-

struction on the basis that Texaco’s conduct was “mali-

cious” or “reckless,” when the evidence shows that Texaco

complied with government and safety organization stand-

ards, deprived Texaco of the Due Process guarantees of

the Fourteenth Amendment. (Brief of Appellant, pp.

70-72).

A recent opinion of the United States Supreme Court

in Pacific Mut. Life Ins. Co. v. Haslip, US. .

59 U.S.L.W. 4157 (March 5, 1991), held that a punitive

damages award that was four times the amount of com-

pensatory damages was not wanting under the Due

Process Clause of the Fourteenth Amendment for vague-

ness where the punitive damages instruction by the trial

court advised the jury that: the purpose of punitive dam-

ages was not to compensate the plaintiff for any injury

but to punish the defendant; an additional purpose was

to protect the public by deterring the defendant and

others from doing such wrong in the future; and it must

take into consideration the character and the degree of

the wrong as shown by the evidence and the necessity of

preventing similar wrong. Jd. at 4161-62. Where prop-

erly instructed, as in the instant case, the Supreme Court

reasoned that the jury would be enlightened as to the

nature and purpose of punitive damages and that such

instructions would reasonably accommodate a defendant’s

interest in rational decisionmaking and the state’s inter-

est in meaningful individualized assessment of appro-

priate deterrence and retribution. Jd. See also Maland-

ris v. Merrill Lynch, Pierce, Fenner & Smith, 703 F.2d

1152, 1173 (10th Cir. 1981), cert. denied, 464 U.S. 824

(1983).

‘nile

27a

Texaco acknowledges that Kansas law on the imposi-

tion of punitive damages was properly and accurately

stated in the trial court’s instruction. (Brief of Appel-

lant, p. 72). See Tetuan v. A. H. Robins Co., 738 P.2d

1210 (Kan. 1987). Texaco nevertheless contends, just as

was argued and contended in Haslip, supra, that the in-

struction is “[c]ontentless and hopelessly vague regard-

ing (1) under what circumstances punishment is war-

ranted, (2) the relative degree of punishment to be im-

posed, and (3) the range within which punishment might

properly be imposed.” (Brief of Appellant, p. 72).

Texaco also argues that because the punitive damage

result on retrial involved the same conduct that the

jury found not to warrant any punitive damage award

during the first trial, the clear inconsistency shows that

Texaco was denied due process.

The trial court, in denying Texaco’s motion for j.n.o.v.

or, alternatively, for a new trial, carefully reviewed Kan-

sas law applicable to the award of punitive damages and

the evidence supporting the jury’s determination. The

district court concluded:

Considering all the evidence in light of the relevant

factors, and giving the due deference required under

Kansas law and the Seventh Amendment to the

jury’s determination of the amount necessary to pun-

ish and deter defendant and other manufacturers

from such conduct in the future, the punitive award

is not so excessive as to shock this court’s judicial

conscience. Thus, the court rejects defendant’s con-

tention that the punitive damage award was moti-

vated by passion, prejudice or bias.

741 F. Supp. at 1517.

The trial court recognized that if a damages award is

deemed to be excessive, but not the result of passion,

prejudice or bias, the court may order a remittitur, and

that such a decision rests within the sound discretion of

28a

the trial court. 7d. at 1514-15. The trial court correctly

cited and relied upon Malandris, supra, 703 F.2d at 1168;

K-B Trucking Co. v. Riss Int'l Corp., supra, 763 F.2d at

1162; and Garrick v. City and County of Denver, supra,

652 F.2d at 971. Id.

In Malandris, supra, we concluded that the punitive

damage award was excessive and unwarranted even

though passion and prejudice did not affect the jury find-

ing of liability. We stated that “[s]ince we conclude that

there is only error in the size of the punitive award, the

remedy of remittitur is appropriate.” 703 F.2d at 1168.

Thus, a new trial was not required. On that predicate,

the court ordered a remittitur to reduce the punitive

award from $3,000,000 to $1,000,000. The Malandris

court observed:

Where the court concludes there was error only in an

excessive damage award, but not one also tainting

the finding of liability, the appellate court may order

a remittitur and alternatively direct a new trial if

the plaintiff refuses to accept the remittitur, a widely

recognized remedy.

Id.

The issue of whether there is sufficient evidence to jus-

tify punitive damages is a question of law, and our review

is confined to the assessment of whether the plaintiff

presented evidence sufficient that a reasonable person

might conclude that the defendant acted in a punitive

manner. Marshall v. El Paso Natural Gas Co., 874 F.2d

1373, 1384 (10th Cir. 1989); Silkwood v. Kerr-McGee

Corp., 769 F.2d 1451, 1456 (10th Cir. 1985), cert. denied,

476 U.S. 1104 (1986). We concur with the district

court’s finding/conclusion that there was sufficient evi-

dence in this case to justify the jury in finding that

Texaco “knowingly embarked upon a course of conduct

dangerous to the public, motivated by private gain.”

Mason, 741 F. Supp. at 1516.

ennai

29a

The trial court agreed with Texaco “[T]hat 25 million

is indeed a staggering sum.” Jd. Even so, the court did

not conclude, based on all of the evidence, that the puni-

tive damage award was so excessive as to shock the

court’s judicial conscience or that the award was moti-

vated by passion, prejudice or bias. Jd. at 1517. We

agree with the district court’s finding that the award

was not motivated by passion, prejudice or bias. In our

view, however, the award was so excessive as to shock

our judicial conscience.

The trial court cited to Folks v. Kansas Power & Light

Co., 755 P.2d 1319, 1836 (Kan. 1988), wherein the Kan-

sas Supreme Court identified the following as relevant

factors in reviewing a jury’s award of punitive damages:

the actual damages sustained, the actual damage,

award, the circumstances of the case (the nature,

extent, and enormity of the wrong), the intent of the

party committing it, the relative positions of the

plaintiff and the defendant, the defendant’s financial

worth and the plaintiff’s probable litigation expenses.

The trial court analyzed each of the above factors,

together with the deterrent effect of the award and- the

ratio that the punitive damage award bears in relation

to the compensatory damages award, Mason, 741 F. Supp.

at 1515-17, and concluded that the jury performed the

difficult balancing act of not allowing sympathy to over-

come reason, and not allowing desire for result to over-

come justice. Jd. at 1518. While we agree with the trial

court’s rejection of Texaco’s contention that the punitive

damage award was motivated by passion, prejudice or

bias, id. at 1517, we cannot agree that the “staggering

sum” of $25,000,000 does not shock the judicial conscience.

In Gertz v. Robert Welch, Inc., 418 U-S. 323, 350

(1974), the Supreme Court pertinently observed that:

In most jurisdictions jury discretion over amounts

awarded is limited only by the gentle rule that they

30a

may not be excessive. Consequently, juries assess

punitive damages in wholly unpredictable amounts

bearing no necessary relation to the actual harm

caused.

In his concurring opinion in Haslip, supra, Associate

Justice Kennedy wrote that inconsistency in jury results

can be expected for at least two reasons:

First, the jury is empaneled to act as a decision-

maker in a single case, not as a more permanent

body. As a necessary consequence of this case-to-case

existence, juries may tend to reach disparate outcomes

based on the same instructions. Second, the general-

ity of the instructions may contribute to a certain

lack of predictability. The law encompasses stand-

ards phrased at varying levels of generality . . . the

standard can be more abstract and general to give

the adjudicator flexibility in resolving the dispute at

hand.

These features of the jury system for assessing

punitive damages discourage uniform results, but

nonuniformity cannot be equated with constitutional

infirmity.

59 U.S.L.W. 4157 at 4167.

We observe that: even though the evidence presented

during the course of the second trial in the instant case

“may not have been “substantially similar” to that pre-

sented during the first trial, both trials consumed about

four months; plaintiff Mason sought punitive damages of

$8,000,000 and the court so instructed the jury (R.,

Vol. VI, Tab 485, Inst. No. I); and Mason did not file

a cross-appeal with this court from the jury’s finding of

no punitive damages in the first trial. Thus, the jury’s

determination in the first trial that no punitive damages

should be awarded stands in stark contrast to the

$25,000,000 in punitive damages awarded by the jury

against Texaco following the second trial.

3la

It is well settled that mere excessiveness in the amount

of an award may be cured by a remittitur, whereas ex-

cessiveness which results from jury passion and prejudice

may not be so cured. In that case, a new trial is required.

See Melandris, supra, at 1177-78; O’Gilvie v. International

Playtex, Inc., 821 F.2d 14388, 1447 (10th Cir. 1987) ;

Karns v. Emerson Electric Co., 817 F.2d 1452, 1460

(10th Cir. 1987); Fed. R. Civ. P. 59; 11 Wright and

Miller, Federal Practice and Procedure, § 2820 (1973) ;

J. Moore, Moore’s Federal Practice, 6A 1 59.08 (7)

(1991).

We conclude that the $25,000,000 punitive damages

award is excessive and beyond a reasonable punitive

award under the law of Kansas. We find the award so

excessive as to shock our judicial conscience. We do not,

however, conclude that the jury’s liability determinations

were tainted.

Thus, we conclude that a remittitur must be entered

reducing the punitive award by one-half to $12,500,000.

Should plaintiff Mason decline to accept a reduced judg-

ment, there should be a new trial on all issues.

We AFFIRM the trial court’s judgment, provided that

the plaintiff accepts a reduction in the punitive damage

award to $12,500,000. Therefore, we REMAND to the

district court with directions to enter a remittitur order

providing that if, within a reasonable time to be fixed by

the district court, plaintiff accepts a reduction of the

judgment reducing the punitive damages award from

$25,000,000 to $12,500,000, then the judgment as so modi-

fied shall be final; otherwise, an order shall be entered

granting a new trial on all issues.

82a

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

C-404 United States Courthouse

1929 Stout Street

Denver, Colorado 80294

December 9, 1991

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION

RE: 90-3250, 90-3278 Mason v. Texaco

Filed November 18, 1991 by Judge Barrett

Please be advised that page 5, second paragraph, lines

11 and 12 in the captioned opinion should be revised to

read: “The judgment against Texaco is reversed and the

case is REMANDED for a new ttrial.” The words

“against Texaco” were inadvertently omitted. Please

make this correction to your copy.

Very truly yours,

ROBERT L. HOECKER

Clerk

By: /s/ Barbara Schermerhorn

BARBARA SCHERMERHORN

Deputy Clerk

33a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Civil Action No. 78-1837

DIANA L. MASON, Individually and as Administrator

of the Estate of Otis W. Mason,

Plaintiff,

V.

TEXACO, INC.,

Defendant.

OPINION AND ORDER

DENYING DEFENDANT’S POST TRIAL MOTION

[Filed Jul. 6, 1990]

This matter is before the court on the motion of defend-

ant Texaco for judgment notwithstanding the verdict, or

alternatively, for a new trial. After the reversal and

remand by the Tenth Circuit, 862 F.2d 242, the second

trial in this case commenced on September 27, 1989 and

lasted through closing arguments on January 3, 1990.

The jury returned a verdict for plaintiff, finding defend-

ant 100% liable for compensatory damages totaling

$9,025,000 and punitive damages in the amount of

$25,000,000.

Although the facts of this case have been reported in

the Tenth Circuit’s remand order and in a Kansas Su-

preme Court opinion upon certified question, Mason v.

Gerin Corp., 231 Kan, 718, 647 P.2d 1340 (1982), the

court provides a brief background here. In September,

1977 Otis Mason was diagnosed with acute myelocytic

leukemia while serving in the United States Coast Guard

34a

at Yorktown, Virginia. In an attempt to ascertain the

cause of Mason’s leukemia, his treating and diagnosing

physician learned that Mason had possibly been exposed

to the chemical benzene while instructing students in the

use of a motor oil test kit. Mason filed suit in 1978

against the immediate supplier of the test kit, alleging

inter alia, failure to warn of the carcinogenic danger of

benzene. Otis Mason died from leukemia on December

10, 1979, and his widow Diana was substituted as plain-

tiff in the survival action. By two amended complaints

filed in 1980, Mason added various other distributors

and two manufacturers of the product, including Texaco,

Inc. At this second trial, only Texaco remains as a named

defendant.

Defendant raises a number of factual and procedural

challenges that are claimed to require a judgment not-

withstanding the verdict or a new trial. It is well settled

that the “district court has broad discretion in deciding

whether to grant a motion for a new trial.” Patty Pre-

cision Prods. Co. v. Brown & Sharpe Mfq., 846 F.2d 1247,

1251 (10th Cir. 1988); Royal College Shop v. Northern

Ins. Co. of New York, 895 F.2d 670, 677 (10th Cir.

1990). In reviewing a motion for judgment notwith-

standing a verdict, the court applies the same standard

governing directed verdicts. Hurd v. American Hoist &

Derrick Co., 7384 F.2d 495, 498 (10th Cir. 1984). It is

not the function of the court to weigh the evidence or

make credibility determinations. Jd at 499. Rather, “the

trial court must view the evidence most favorably to the

party against whom the motion is made, and give that

party the benefit of all reasonable inferences.” Jd. at 498.

Thus, the court may grant a JNOV motion “only if the

evidence points but one way and is susceptible to no rea-

sonable inferences which may support the opposing party’s

position.” Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180

(10th Cir. 1989).

35a

The court will first address those issues raised by de-

fendant which, if meritorious, would entitle it to a grant

of JNOV, and will then address the procedural challenges

going to the propriety of a new trial.

I. Causation in Fact

A. Cause of Leukemia

As a threshold question, the special verdict form asked

the jury to determine whether Mason’s leukemia had been

caused by exposure to benzene. Defendant challenges the

jury’s affirmative answer on this issue, arguing that

Mason’s exposures to benzene and his clinical diagnosis

by the treating physicians did not support an inference of

causation.

The court would be able to accept defendant’s conten-

tions only by ignoring the testimony both of Mason’s

treating physicians and of the expert epidemiologists

called by plaintiff. Basing their opinions largely on the

dose and duration of dose of benzene to which Mason had

been exposed while at Yorktown, these witnesses con-

cluded that Mason’s leukemia had been caused by benzene.

Because no clinical test can directly and conclusively

establish a link between a given case of leukemia and

benzene, Mason’s medical diagnosis provided only limited

evidence of benzene-induced leukemia. However, Dr. Reid

—the Coast Guard physician who first diagnosed Mason’s

leukemia—testified that acute myelocytic leukemia is one

of the most common forms of leukemia associated with

benzene, and that this fact aided his swift identification

of the causative agent in Mason’s case. Tr. Vol. 6, at 513.'

The court is unaware of any authority that would au-

thorize it to reject out of hand the opinions of Mason’s

treating physicians and of plaintiff’s experts. As a basis

1 As a result of Dr. Reid’s efforts to identify the cause of Mason’s

leukemia, the Coast Guard discontinued its use of benzene shortly

after Mason was diagnosed.

36a

for rejecting the conclusions of these witnesses, defendant

refers the court only to the contrary interpretation of the

evidence given by defendant’s experts. The proper defer-

ence to be given the jury’s resolution of these conflicting

opinions, however was aptly stated by the court in Fere-

bee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir.),

cert. denied, 469 U.S. 1062 (1984):

Judges, both trial and appellate, have no special com-

petence to resolve the complex and refractory causal

issues raised by the attempt to link low-level exposure

to toxic chemicals with human disease. On questions

such as these, which stand at the frontier of current

medical and epidemiological inquiry, if experts are

willing to testify that such a link exists, it is for the

jury to decide whether to credit such testimony.

Id. at 1554; see also Wilson v. Merrell Dow Pharma-

ceuticals, Inc., 893 F.2d at 1149, 1155 (10th Cir. 1990)

(jury alone has the power to weigh and assess credibility

of expert testimony on causation and judges will not

retry facts) ; Graham v. Wyeth Laboratories, No. 88-1337,

slip op. at 12 (10th Cir. June 25, 1990); McMahon v, Eli

Lilly & Co., 774 F.2d 830, 834-35 (7th Cir. 1985). It

must also be borne in mind that the jury’s finding, and

this court’s review, is governed by a standard of legal

sufficiency, rather than scientific certainty. Wells v.

Ortho Pharmaceutical Corp., 788 F.2d 741, 745 (11th

Cir.), cert. denied, 479 U.S. 950 (1986). Considering the

substantial expert testimony based upon the evidence, the

court finds defendant’s argument to be meritless. De-

fendant had ample opportunity to develop its own experts’

testimony and to test the conclusions of plaintiff's wit-

nesses through cross examination. The jury’s finding will

not be disturbed.

B. Exposure to Texaco’s Benzene

Defendant also challenges the jury’s finding that the

benzene causing Mason’s leukemia was manufactured by

Texaco. In a civil case such as this, product identifica-

37a

tion need only be proven by a preponderance of the evi-

dence. McMahon, 774 F.2d at 834. Additionally, under

Kansas law, a defendant who seeks to reduce his fault by

comparing it to the fault of an absent party has the

burden of proving the other party’s fault by a pre-

ponderance of the evidence. McGraw v. Sanders Co.

Plumbing & Heating, 233 Kan. 766, 667 P.2d 289, syl.

{7 (1983).2 The procedural history of this complex fact-

ual issue is relevant to the present discussion.

Plaintiff originally sued two manufacturers of benzene

whose products could have ultimately found their way to

the Coast Guard facility at Yorktown: Texaco, Inc. and

Ashland Chemical Company. After the close of the evi-

dence in the first trial, this court determined that there

was insufficient evidence to support a finding of exposure

to Ashland’s benzene, and the court granted Ashland’s

motion for a directed verdict. Order filed Dec. 16, 1983

(Dkt. No. 228). Accordingly, the issue of Ashland’s com-

parative fault was not submitted to the jury in the first

trial. Although Texaco raised this issue in its appeal, the

Tenth Circuit did not review this court’s decision, finding

that new factual issues might be presented on retrial.

862 F.2d at 245.

Refore and during this second trial defendant contended

that it had discovered “new” evidence upon which to sub-

mit the issue of Ashland’s comparative fault to the jury.

Although more appropriately described as a new construc-

tion of old evidence, this court agreed with defendant and

determined that Ashland, as well as a third manufacturer

of benzene, should be considered by the jury as phantom

defendants. Nonetheless, the jury rejected defendant’s

arguments and found Ashland and Union Amsco—the

2 The syllabus contained in Kansas Supreme Court decisions is pre-

pared by the authoring Supreme Court Justice and is cited as author-

ity. Kan. Stat. Ann. §§ 20-111, 20-203, 60-2106(b).

|

38a

third manufacturer—to be zero percent at fault in caus-

ing Mason’s death. With this background, the court turns

to an examination of the facts relevant to defendant’s

present challenge.

The complex chain of distribution in this case can be

summarized best_by schematic representation:

Texaco Ashland Union Amsco

| | |

Meilen > Dooner & Smith ————> Gerin

|

Coast Guard

It is unnecessary to canvass all the evidence of invoices,

purchase orders, and testimony that established the flow

of benzene in this distribution scheme. Although some

minor disputes exist regarding the source of benzene sold

by the Gerin Corporation to the Coast Guard, Texaco’s

argument focuses on the Coast Guard usage. Therefore,

for purposes of the present motion, and viewing the

evidence in a light most favorable to plaintiff, the court

deems the following facts to have been established.

1. The Coast Guard at Yorktown purchased solvent for

the water and sediment test kit only from the Gerin

Corporation.

2. The Coast Guard purchased 6 gallons of benzene

from Gerin in April 1972, and the benzene used to fill

this order was manufactured by Union Amsco.

3. The Coast Guard next purchased 3 gallons of ben-

zene in February 1973 and 4 gallons in September 1973.

The benzene used to fill these orders was manufactured by

Ashland.

39a

4. The next sale of benzene to the Coast Guard was on

April 4, 1974 for 4 gallons, and this benzene had been

manufactured by Texaco.®

5. The Coast Guard next purchased 5 gallons of Texaco

benzene on June 18, 1975.

6. The last two purchases of benzene were 1 gallon in

November 1976, and 5 gallons in December 1976. This

benzene had been manufactured by Union Amsco.

7. Otis Mason was first exposed to benzene in June

1974 as a student in the water and sediment class.

8. Mason first taught the class in October 1974, and

taught a total of 4 times during this year. Over the next

three years, Mason taught the class 9 times in 1975, no

times in 1976 and once in 1977.

Five further pieces of evidence are relevant in deter-

mining the source of the benzene at Yorktown during the

relevant times. First, there was testimony that the Coast

Guard would not re-order benzene until approximately 1

to 2 gallons remained in stock. Price, Tr. Vol. 16, at

1502-04; Seligman, Tr. Vol. 52, at 6849; Kendle, Tr. Vol.

50, at 5997. Second, evidence was introduced that the

rate of usage of benzene at Yorktown was approximately

6 gallons per year (or % gallon per month). Third, one

witness testified that the Coast Guard had 15 gallons of

benzene in stock at one time, although no time frame was

given for this observation. Fourth, there was testimony

that the Coast Guard would try to use the “oldest” ben-

zene first, 7.e., that which had been in stock for the

8 In its present motion Texaco again submits that the “uncontro-

verted” testimony of the Gerin representatives establishes this sale

to have been filled with toluene rather than Texaco benzene. Not-

withstanding the testimony of these witnesses, the purchase order

and invoice for this sale call for “benzene.” Thus, the testimony of

these witnesses, which was given several years after the actual sale,

is sufficiently controverted by documentary evidence contempora-

neously made with this sale to support the jury’s verdict.

Ee

40a

longest period of time. Finally, at the time the Coast

Guard discontinued the class in September 1977, 7 gallons

of benzene remained unused at Yorktown.

Plaintiff's argument is relatively straightforward. At

the time of the first purchase of Texaco benzene on April

4, 1974, the Coast Guard had 1 to 2 gallons of non-

Texaco benzene on hand. If the Coast Guard used the

oldest solvent first, the residual amount of all non-Texaco

benzene would have been gone by the time Mason was

first exposed in June of 1974. Therefore, Mason would

have been exposed only to Texaco benzene during the 5

classes in 1974 and also throughout the 9 classes of 1975,

when only Texaco benzene was purchased. At the time

Mason taught the single 1977 course, 6 gallons of Union

Amsco benzene had also been purchased and were in

stock at Yorktown. However, these 6 gallons were the

“newest,” and again under the “oldest first rule’ would

have been among the unused 7 gallons remaining at the

time the Coast Guard stopped teaching the class.‘ In-

terpreting the evidence in this manner compels the con-

clusion that Mason was exposed only to Texaco benzene.

The new construction of the evidence given by defend-

ant is considerably more involved. Rather than proceed-

* Although there was “no evidence” that the Coast Guard did not

follow a strict order of usage, it is of course possible that Mason

could have been exposed to some remaining Ashland benzene in

1974 or Union Amsco benzene in 1977. The evidence of strict usage

was limited to testimony that the Coast Guard would try to use the

oldest first, but there were no safeguards to ensure that this pro-

cedure was always observed. E.g., Tr. Vol. 45, at 5265-66. However.

even if the jury were to recognize the possibility of exposure to

non-Texaco benzene for failure to adhere to strict usage, it might

still find that these single exposures were de minimis and had not

contributed as a substantial factor to Mason’s leukemia. See Rober-

son v. Counselman, 235 Kan. 1006, 1012, 686 P.2d 149, 158 (1984)

& Instruction No. 8. On the other hand, if the jury found a strict

order of usage to be credible, this evidence supports the argument

that Mason was exposed only to Texaco benzene.

4la

ing forward from the evidence indicating that the Coast

Guard had one gallon of non-Texaco benzene at the time

of the April 4 purchase, defendant works backwards from

the September 1977 inventory. Defendant emphasizes

the evidence that the Coast Guard used benzene at a rate

of 6 gallons per year. Applying this constant rate of

usage, the “oldest first rule,” and working backwards,

the Coast Guard would have used 4 gallons of Texaco

benzene between January and September of 1977. Thus,

Mason would have received one exposure to Texaco ben-

zene during the single 1977 class. Under defendant’s

interpretation, however, the 14 exposures during 1974 and

“1975 were to Union Amsco and Ashland benzene. Re-

lying on a strict adherence to each variable, defendant

concludes that the Yorktown facility was “stockpiling”

benzene, and that the 1974 and 1975 purchases of Texaco

benzene were not used until 1976 and 1977, when Mason

taught no classes and one class, respectively.

Here again, defendant’s argument rests on the proposi-

tion that the jury was required to discount all evidence

and reasonable inferences unfavorable to defendant’s

position. The crux of defendant’s argument is that its

evidence of a constant rate of usage inescapably leads to

the conclusion that the Coast Guard had on hand a large

stockpile of benzene at the time of the purchases of

Texaco benzene. The court agrees that an unfaltering

acceptance of this evidence would indicate that other

manufacturers’ benzene was in stock during the relevant

times. But the evidenee of a constant usage rate of 6

gallons per year is undercut by two considerations. First,

the 1977 documents relied upon by defendant emphasizes

that this rate of usage was only an approximation.

Plaintiff's Exh. 139L and 139D. More importantly, de-

fendant’s theory of a stockpile is directly contradicted

by testimony that the Coast Guard would not restock un-

til its benzene supply was low. This latter evidence, un-

like a post facto approximation that assumes a constant

rate of usage, is particularly persuasive because it is sup-

a aaa

42a

ported by the entirely reasonable inference that the Coast

Guard’s purchases are the most accurate reflection of its

actual usage. As Larry Seligman opined in a written

statement made in 1977, any fluctuations in the Coast

Guard’s actual usage of benzene were “probably based on

a varying student load or the current inventory in stock

when it was reordered.” Plaintiff’s Exh. 139D (emphasis

added). If the jury accepted this evidence, it could then

reasonably reject a constant rate of usage and the mani-

fold inferences made from this. Although deferdant’s

theory is supported by some evidence, it falls considerably

short of that degree of certainty necessary to disturb the

jury’s verdict. Indeed, it is small wonder that during the

first trial neither the court, nor counsel for plainti¥, nor

even T’exaco’s counsel was able to chart the tortuous path

only recently excavated from the evidence by defendant.

Faced with two conflicting and mutually exclusive inter-

pretations of the evidence, the jury could reasonably find

that the Coast Guard used benzene at widely varying

rates, and that it would not reorder benzene until its

supply was low. Because such a finding necessarily com-

pels the conclusion that Mason was exposed only to Texaco

benzene, the determination that only Texaco’s benzene

caused Mason’s leukemia shall stand.°

5 Defendant also suggests that even if Mason were exposed to

Texaco benzene, there is an equal probability that he was exposed

to Ashland’s and Union Amsco’s benzene, and that plaintiff's evi-

dence of causation therefore fails to preponderate. Dkt. No. 502,

at 25. As the foregoing analysis demonstrates, however, there is

persuasive evidence that only Texaco benzene was in stock during

the latter half of 1974 and the entire year of 1975. Thus, contrary

to defendant’s assertion, the jury’s assessment of fault against only

Texaco is not based on mere speculation.

Assuming arguendo that the evidence irrefutably established the

presence of other manufacturers’ benzene at Yorktown during this

time, the validity of defendant’s argument would still be far from

clear. The court doubts whether the Kansas Supreme Court would

take a favorable view toward two independent wrongdoers, either

or both of whom is shown to be responsible for an injury, who then

43a

II. Adequacy of Warning

During the time period of Mason’s exposure, the warn-

ing given by Texaco was in the form of a Material Safety

Data Sheet (“MSDS”). Under a subheading titled “EF-

FECTS OF OVEREXPOSURE,” this MSDS stated:

High concentrations may cause anethestic [sic] ef-

fects; prolonged chronic excessive exposure may

damage blood forming organs.

Defendant presents two interrelated arguments challeng-

ing the jury’s finding of an inadequate warning.

First, Texaco submits that its warning adequately re-

flected the pre-1976 state of scientific knowledge regard-

ing the carcinogenic hazards of benzene exposure. In

1976 the National Institute of Occupational Safety and

Health (“NIOSH”), a governmental research body that

advises the Department of Labor, became the first govern-

ment organization to conclude that benzene is a human

carcinogen, and to recommend that workplace exposure

to benzene be radically reduced. Defendant contends that

because the NIOSH report was not released until 1976,

after Mason had received most of his classroom exposures,

Texaco’s warning conformed to the extant state of scien-

tific knowledge.

The duty of a manufacturer is not as facile as defend-

ant would have it. Kansas law imposes a continuous duty

to warn, “requiring the manufacturer to keep abreast of

seek to escape liability by blithely arguing a lack of proof as to

which of them actually caused the injury. Courts confronted with

this situation have regularly created a presumption of causation,

thereby shifting the burden of proof to those persons whose tortious

acts created the uncertainty in the first place. F’.g., Menne v. Celotex

Corp., 861 F.2d 1453 (10th Cir. 1988) (Nebraska law). Nonetheless,

because the verdict indicates that the jury found only Texaco benzene

to have been in stock during the relevant times, it is unnecessary for

this court to predict whether Kansas would adopt such an “alterna-

tive liability” theory of causation.

44a

the current state of knowledge relevant to its products

as gained through research, adverse reaction reports,

scientific literature, and other available methods.” Wood-

erson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681

P.2d 1038, syl. 98, cert. denied, 469 U.S. 965 (1984).

Defendant’s argument, however, implies that it was re-

quired to give credence only to scientific studies issued

by governmental bodies. The holding of Wooderson

squarely refutes this suggestion. See also Jones v. Hittle

Serv., Inc., 219 Kan. 627, 632, 549 P.2d 1383, 1890 & sy).

72 (1976) (compliance with governmental standards is

evidence of due care, but does not preclude finding negli-

gence or defective product where reasonable to take addi-

tional precautions). Thus, in determining the state of

art knowledge by which the adequacy of Texaco’s 1973

warning is measured, the proper inquiry must focus on

all sources of scientific knowledge.

Considering the available scientific knowledge linking

benzene exposure to leukemia, the court finds ample evi-

dence to support the jury’s finding that Texaco either

knew or should have known of benzene’s carcinogenic

properties at the time it issued its 1973 warning. Plain-

tiff introduced voluminous scientific publications dating

back as far as 1928 that had associated benzene exposure

to various cancers of the blood. Tr. Vol. 25, at 2446-543.

A 1948 study commissioned by the American Petroleum

Institute (“API’’?)—a trade organization of which Texaco

is a member—examined the state of art knowledge at

that time and concluded that there were well-documented

eases of leukemia resulting from benzene exposure. Tr.

Vol. 25, at 2485-96. By the 1960’s, many widely-

disseminated scientific publications, including standard

American medical journals and textbooks, were reporting

the carcinogenic danger of benzene exposure as estab-

lished through hundreds of individual cases. The litera-

ture also indicated that this danger existed even at rela-

tively low concentrations of benzene vapor. Most signifi-

cantly, Ron Richards, the Texaco industrial hygienist who

, 45a

was responsible for preparing its toxic chemical warn-

ings, candidly admitted his familiarity with much of this

information. Thus, the evidence indicated that Texaco

was actually aware of the large body of scientific litera-

ture linking benzene exposure to leukemia.

It matters little that Texaco and its experts dispute the

conclusions of most of these pre-1973 publications. As

the court held in Wooderson:

Where scientific or medical evidence exists tending to

show that a certain danger is associated with use of

a drug, the manufacturer may not ignore or discount

that information in drafting its warning solely be-

cause it finds it to be unconvincing.

235 Kan. 387, 681 P.2d 1038 at syl. 110; see also id. at

400, 681 P.2d at 1049 (test is not whether evidence of

causation is so clear-cut that manufacturer itself is con-

vineed of causation). The Wooderson court went on to

state “that the duty of the manufacturer must be com-

mensurate with the seriousness of the danger. The

greater the danger, the greater the duty.” Jd. at 417,

681 P.2d at 1062.° Obviously, the risk of developing

a fatal cancerous blood disease through benzene exposure

is a great danger. And by the 1960’s, epidemiologic

studies indicated that a significant percentage of the

population is susceptible to this danger, thus triggering

the manufacturer’s duty to warn. See Restatement (Sec-

ond) of Torts § 402A comment j (1973). Although there

was conflicting expert testimony interpreting the per-

suasiveness of the various studies, the weight to be given

the opinions of these experts was exclusively for the jury.

® Although the specific language of this holding refers to drug

manufacturers, defendant has never suggested that the Wooderson

decision does not also apply to manufacturers of toxic chemicals such

as benzene. However, defendant does attempt to qualify the duty

announced in Wooderson as applied to the particular facts of this

case. See supra at section V.B.

SE

46a

Wilson, 893 F.2d at 1155; Ferebee v. Chevron Chem. Co.,

552 F. Supp. 1298, 1800 (D.D.C. 1982), affd, 736 F.2d

1529 (D.C. Cir. 1984). Given the substantial body of

literature on this issue, the jury could properly find a

state of scientific knowledge sufficient to require that

manufacturers such as Texaco warn of the carcinogenic

dangers of benzene.

Alternatively, Texaco argues that its warning ade-

quately warned of the dangers of benzene. To the con-

trary, the jury could reasonably find that Texaco’s warn-

ing was inadequate in several respects.

First, although the words “may damage blood forming

organs” suggests some type of danger associated with the

use of benzene, it is quite doubtful whether this language

reasonably conveys the specific carcinogenic danger to

which users of benzene are exposed. As set forth in In-

struction No. 9a, a warning must be comprehensible to the

reasonably prudent person using the product and must

convey a fair indication of the nature and extent of the

product’s inherent dangers. See Wheeler v. John Deere

Co., 862 F.2d 1404, 1413 (10th Cir. 1988) (Kansas law) ;

Trujillo v. Uniroyal Corp., 608 F.2d 815, 819 (10th Cir.

1979) (under New Mexico law, user of a product must

not only be aware of some risk, but the nature and degree

of risk must be appreciated). Defendant cannot seriously

argue as a matter of law that the language “may damage

blood forming organs” reasonably indicates the nature

of the danger at issue in this case. In fact, the proximity

of this language with the warning of “anesthetic effects”

might easily lead the user to conclude that damage to the

blood forming organs does not differ significantly in kind

from benzene intoxication.’ Texaco’s warning conveys the

™Benzene intoxication refers to an immediate and potentially

fatal acute poisoning that results from a sustained exposure to

benzene at excessively high concentrations. Doolan, Tr. Vol. 10, at

943; Wagoner, Tr. Vol. 25, at 2487-88. See generally Martinez v.

Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976).

47a

true nature of the danger to which Mason succumbed only

to those readers who understand that the bone marrow is

the primary “blood forming organ” in adults; who fur-

ther understand that the genesis of leukemia is in the

cells of the bone marrow; and who further understand

that “damage” in this case refers to a cellular damage

consisting of an alteration in the molecular structure (or

a disruption in the replication of this structure) of the

genetic material of bone marrow cells in their incipient,

undifferentiated stage of development—thus leading to

the development of cancerous cells. Irons, Tr. Vol. 48, at

5530-95. The court is confident that such information is

beyond the ken of almost anyone lacking an advanced

education in the medical as well as molecular-biological

sciences, and based on the evidence introduced by plaintiff

the jury could properly reach the same conclusion.°

Second, the jury could reasonably find Texaco’s warn-

ing inadequate with respect to the extent of the danger

posed by benzene exposure. See Long v. Deere & Co., 238

Kan. 766, 772-73, 715 P.2d 1028, 1028-29 (1986) (no

showing that user appreciated extent of harm). Several

of plaintiff’s witnesses testified that the word “may” was

misleading, insofar as the scientific literature recognized

the benzene-leukemia association to have been conclusively

established at the time Texaco issued its warning. More-

8 The court emphasized the jury’s exclusive province on this issue

in Instruction No. 12:

The only danger of benzene with which this case is concerned

is its carcinogenic danger, which is referred to as “carcinogenic

propensities” throughout these instructions. “Carcinogenic pro-

pensities” means, in essense [sic], having a tendency to cause

a cancerous effect, and in this case specifically means leukemia.

However, when the Court refers to the “carcinogenic propensi-

ties” of benzene in these instructions, this in no way implies

that Texaco was necessarily required to include the words “‘can-

cer” or “leukemia” in its warning. You are the sole judges of

the adequacy of Texaco’s warning, and you may either reject

or accept defendant’s contention that the warning it gave was

adequate to warn of danger of benzene involved in this case.

TT

48a

over, “damage” to an organ may suggest that the injury

is something which can be repaired or treated, or which

may even heal itself with time. The full extent of the

danger resulting from benzene exposure is not mere

“damage” to an organ: it is inevitable death. In sum-

mary, the jury could reasonably find defendant’s MSDS

to have been so inadequate as to have been virtually no

warning at all, and the court will not disturb this deter-

mination.

III. Superceding Causes

Defendant alleges that actions of others in the chain of

distribution were, as a matter of law, intervening and

superseding causes of Mason’s exposure to Texaco’s ben-

zene. Issues of negligence, contributory negligence and

proximate cause are all determined by the jury. Schmeck

v. City of Shawnee, 232 Kan. 11, 27, 651 P.2d 585

(1982). “Although usually the issue of proximate cause

is a question of fact for the jury, it becomes a question of

law when all evidence relied upon by a party is undis-

puted and susceptible of only one inference.” St. Clair v.

Denny, 245 Kan. 414, 420, 781 P.2d 1043, 1047 (1989)

(citation omitted). However, when the critical facts are

in dispute, the issue of superseding causes is a matter for

the jury to determine, and a decision as a matter of law

is inappropriate. Prince v. Leesona Corp., 720 F.2d 1166,

1169 (10th Cir. 1983). Questions regarding the existence

of intervening and superseding causes are determined

according to the test of foreseeability. Schmeck, 232 Kan.

11, 651 P.2d 585, syl. 16. Thus, “[i]f the original actor

should have reasonably foreseen and anticipated the in-

tervening act causing injury in the light of the attendant

circumstances, his act of negligence would be a proximate

cause of the injury.” George v. Breising, 206 Kan. 221,

227, 477 P.2d 983 (1970). Giving due regard to the

jury’s findings in these matters, the court turns to the

specific issues raised by defendant.

49a

A. The Coast Guard

Defendant contends that the Coast Guard knew of the

dangers of benzene prior to and during the time Mason

started working at the Yorktown facility. Defendant ar-

gues that this putative knowledge was a superseding

cause of Mason’s death, or at least required the jury to

assess some degree of fault to the Coast Guard.

Ordinarily, a manufacturer has no duty to warn

against dangers that are known or should be known by

the user. Long, 238 Kan. at 772-73, 715 P.2d at 1028-29;

Mays v. Ciba-Geigy Corp., 233 Kan. 38, 58-60, 661 P.2d

348 (1983). If a user is already familiar with the dan-

gerous properties of a product, any additional warning

would be superfluous, and the manufacturer’s failure to

warn could not be a cause of any injuries resulting from

use of the product. See Hall v. Ashland Ol Co., 625

F, Supp. 1515, 1520-21 (D. Conn. 1986) (degree of ben-

zene user’s knowledge of specific risk was issue of dis-

puted fact for the jury) ; Menna v. Johns-Manville Corp.,

585 F. Supp. 1178, 1184-87 (D.N.J. 1984) (under both

strict liability and negligence claims, level of employer’s

knowledge or sophistication presents question of fact re-

garding superseding cause of injury), aff'd, 772 F.2d

895 (3d Cir. 1985). In support of its claim that the

Coast Guard had actual knowledge of benzene’s dangerous

‘nature, Texaco relies primarily on information contained

in the Coast Guard safety manual and on the testimony

Kenneth Doolan—the Coast Guard’s manager of indus-

trial hygiene during the relevant times.

The Coast Guard safety manual in effect as of Novem-

ber 1973 listed benzene as a “toxic hazard” that could

cause injury to blood forming organs. Nowhere in this

manual, however, is benzene clearly identified as a cancer

or leukemia inducing agent. At most, this manual demon-

strates that somewhere within the annals of Coast Guard

safety literature there existed information similar to that

acai

50a

contained in Texaco’s warning. Defendant produced no

evidence that anyone in the Coast Guard’s safety program

or at the Yorktown facility understood this language to

mean that exposure to benzene could cause cancer.® The

Kansas Supreme Court has made abundantly clear that a

manufacturer may not escape liability for failure to warn

simply because a user has some general knowledge of a

product’s inherent dangers. Long, 238 Kan. at 772-73,

715 P.2d at 1028-29 (although user knew the reasons

and purposes for seat belts, no showing that user appre-

ciated or knew of extreme danger); see also White v.

W.G.M. Safety Corp., 707 F. Supp. 544, 549 (S.D. Ga.

1988) (knowledge that breathing dust was generally bad

does not bar recovery for failure to warn of specific dan-

ger of silicosis from breathing sand). Standing alone,

this evidence is insufficient to establish that degree of

actual knowledge necessary to break the causal connection

between Texaco’s inadequate warning and Mason’s ex-

posure to benzene.

Nor was there any evidence that Mr. Doolan or anyone

else responsible for the Coast Guard’s safety program was

otherwise aware of the carcinogenic properties of benzene.

Defendant attempts to rely on Mr. Doolan’s membership

in the American Conference of Governmental Industrial

Hygienists (“ACGIH”) as evidence of Coast Guard knowl-

edge. The first ACGIH report to identify benzene as a

carcinogen was issued in 1975."° This report was in the

———

® Mr. Doolan testified that he had a “general picture” as to the

various health risks posed by benzene. Tr. Vol. 10, at 942. Con-

spicuously absent from Doolan’s testimony was any specific recog-

nition of the carcinogenic danger of benzene.

10 A 1974 report issued by the ACGIH indicated by way of an

asterisk that benzene was subject to notice of an intended change.

Mr. Doolan testified that this notice “could have been in response

to information that [ACGIH] had on [a] possible carcinogen.” Tr.

Vol. 11, at 1002. Notwithstanding this testimony, defendant brought

out during cross examination of Mr. Doolan that the ACGIH did

not clearly identify benzene as a suspect carcinogen until 1975.

5la

form of a document that listed numerous hazardous chem-

icals and the specific dangers associated with each. As

defendant elicted during cross examination, however, Mr.

Doolan did not purport to know what the ACGIH or

similar organizations were reporting at this time. Tr.

Vol. 11, at 1094. Moreover, even if Mr. Doolan had been

aware of this report, and had further acted instantane-

ously to bring this information to the attention of the

Yorktown facility, it would have been too late to prevent

all of Mason’s exposures to benzene during 1974—and

possibly many of his exposures during 1975. In short,

defendant has failed to show that anyone having responsi-

bility for the safety of Coast Guard personnel knew of

benzene’s carcinogenic nature prior to and during the

time when Mason was exposed to Texaco benzene.

Defendant also makes seVeral general allegations that

the Coast Guard was a “sophisticated employer,” to whom

Texaco owed no duty to warn. This argument must also

fail. Courts have regularly excused manufacturers from

the duty to warn where the purchaser/employer has, or

can reasonably be expected to have, special expertise in

handling a potentially dangerous product. See Mays, 233

Kan. at 59 (no duty to instruct employer who was

experienced in the highly specialized business of hooking

up oil and gas wells) ; Hittle, 219 Kan. at 639, 549 P.2d

at 1395 (retail distributor of propane well aware of dan-

gerous properties of gas); Martinez v. Dixie Carriers,

Inc., 529 F.2d 457, 464 (5th Cir. 1976) (stripping crew

and its employer were experienced professionals in the

field of cleaning tanks that had contained benzene and

knew of the dangers of benzene intoxication). Conversely,

a manufacturer who sells to unspecialized users is not

relieved of its normal duty to warn according to the rea-

sonable and prudent person standard. Pavlides v. Galves-

ton Yacht Basin, Inc., 727 F.2d 330, 338 (5th Cir. 1984).

Under defendant’s conception of the sophisticated user

defense, any user of a chemical product would become

eT

52a

sophisticated if they used the product often enough and

had a “general idea” that the chemical was toxic. Such

an expansive interpretation of this limited defense would

transform even simple housesold users into chemical ex-

perts. See American Mutual Liability Ins. Co. v. Fire-

stone Tire & Rubber Co., 799 F.2d 993, 994 (5th Cir.

1986) (purchaser or user must have certain knowledge

or sophistication before manufacturer is relieved of duty

to warn, and normally this is a question of fact for the

jury). The Coast Guard is not in the general trade or

business of “benzene handling” and cannot reasonably be

charged as a matter of law with any special expertise or

knowledge concerning benzene’s carcinogenic properties.

See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d

1076, 1092-93 (5th Cir. 1973) (dangers of asbestos not

well enough known to insulation workers to reduce duty

to warn), cert. denied, 419 U.S. 869 (1974), cited in

Pavlides, 727 F.2d at 339; Hall, 625 F. Supp. at 1520.

Defendant also relies heavily on the argument that the

Coast Guard violated OSHA regulations, and the Coast

Guard safety manual incorporating those regulations, by

failing to provide Mason with a safe workplace. What

defendant neglects to recognize, however, is that neither

federal nor Kansas law requires employers to protect

against unknown dangers. Under Kansas law, the em-

ployer has a duty to protect only against dangers that

are either known or could be discovered by the exercise of

reasonable care. Riggs v. Missouri-Kansas-Texas R.R.

Co., 211 Kan. 795, 800, 508 P.2d 850 (1973); see also

Prince v. Leesona Corp., 720 F.2d 1166, 1170-71 & n.8

(10th Cir. 1983); Murphy v. Owens-Corning Fiberglas

Corp., 447 F. Supp. 557, 565 (D. Kan. 1977) (no evi-

dence that manufacturer/employer knew or should have

known of danger created by inhaling fiberglass particles).

An employer’s responsibilities under the “general duty

clause” of the Occupational Safety and Health Act are

similar:

Each employer—

(1) shall furnish to each of his employees employ-

ment and a place of employment which are free from

recognized hazards that are causing or are likely to

cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health

standards promulgated under this Act.

29 U.S.C. § 654 (a) (emphasis added) ; Brennan v. Occu-

pational Safety & Health Review Comm’n, 494 F.2d 460,

464 (8th Cir. 1974) (“recognized hazard” refers to

hazards actually known by employer as well as those gen-

erally recognized in employer’s industry). Accordingly,

the Coast Guard safety manual prescribed general or local

exhaust ' for “harmful exposure” to “harmful fumes,”

and OSHA regulations in effect at the time required that

respirators be selected on the basis of the hazard. Tr. Vol.

11, at 968-93. Although benzene was a “recognized haz-

ard,”’ and the Coast Guard safety manual required “suit-

able safe facilities” for the “storage, handling and use” of

hazardous materials, the Coast Guard had only limited

knowledge of the hazards of benzene. There is little doubt

that the Coast Guard was aware of the dangers of ben-

zene intoxication, or of the flammability of the chemical.

Plaintiff’s Exh. 189D; Doolan, Tr. Vol. 10, at 943-44.

And the evidence indicated that the facilities at York-

town were entirely adequate to protect against these

known hazards. Reid, Tr. Vol. 8, at 739; Seligman, Tr.

Vol. 52, at 6843. The specific carcinogenic danger that

would have required measures such as local exhaust, how-

ever, was not known to the Coast Guard at the time

Mason was exposed to benzene."”

11 The term “local exhaust” refers to a vacuum exhaust system

that immediately removes the fumes of a chemical from a confined

area such as a protective “hood.”

12 The critical distinction between the various hazards of benzene

was highlighted by the deposition testimony of William Price, a

54a

To reject the jury’s assessment of no fault against the

Coast Guard would require the court to find, as a matter

of law, that the Coast Guard either knew or should have

reasonably discovered this latent danger in benzene. This

the court is unprepared to do. There was no evidence that

the Coast Guard had actual knowledge of benzene’s car-

cinogenic nature. Moreover, the Coast Guard has no special

duty to inform itself through independent sources of the

potential hazards posed by every chemical product that it

purchases for its general use. Rather, an employer is only

required to protect against dangers known or discoverable

through the exercise of reasonable care. Riggs, 211 Kan.

at 800. Under Kansas law the jury generally determines

the degree of each actor’s departure from their respective

duty. Prince, 720 F.2d at 1171. As applied to this case,

the jury could properly refuse to impose upon an un-

specialized employer the duty to discover every danger

associated with the use of benzene, and the verdict with

respect to the Coast Guard is reasonable under the evi-

dence.

B. Mellen Chemical

Defendant makes similar allegations against Mellen

Chemical Company, the immediate purchaser of Texaco’s

benzene. Raymond Mellen was the president of a chemical

co-worker of Mason who also taught the water and sediment test at

Yorktown. After Mason had been diagnosed with leukemia, Price

happened to discover a pamphlet that set forth the three major

hazards of benzene: flammability; acute toxicity from breathing

high concentrations with “an immediate harmful effect”; and

“chronic toxicity” including “leukemia.” Upon reading the word

“leukemia,” Price brought this knowledge to the attention of his

Base Chief, Chief Seligman, and the Yorktown facility discontinued

its use of benzene in the test kit. Tr. Vol. 14, at 1306-10. Chief

Seligman also testified that before he knew of benzene’s carcinogenic

danger, he considered ventilation to be adequate if it was sufficient

to prevent personnel from being overcome by fumes. Tr. Vol. 52,

at 6865.

55a

solvent distribution company that employed approximately

13 people. Defendant argues that Mellen was a super-

seding cause of Mason’s death because Mellen was a

knowledgeable dealer in benzene who failed to pass on the

warning that Texaco had given him.

Defendant’s attempts to characterize Mellen as a sophis-

ticated “benzene expert” are particularly unpersuasive.

Mellen held a general baccalaureate degree in biology with

a minor in chemistry that he had received in 1949." He

had accumulated and read “a lot” of literature on the safe

use and handling of benzene. There was no evidence,

however, that Mellen knew of the carcinogenic hazard of

benzene when he made those sales that could have reached

Mason at Yorktown. To the contrary, Mellen’s deposition

testimony reveals that he did not know of this hazard

until it was published in the Federal Register in 1977,

at which time he began to include this information on his

own label. Mellen’s educational and business experience

reveais that he was littie more than a purveyor of chemi-

cal solvents, and not a “sophisticated user of benzene.”

Texaco’s reliance on Mellen to either understand its warn-

ing or look up the crucial information himself was at best

thoroughly misplaced, and at worst willful and wanton

neglect. See State ex rel. Stephan v. GAF Corp., 242 Kan.

152, 157, 747 P.2d 1326, 1330 (1987) (intermediary/

contractor may have no experience in selecting building

materials and manufacturer has duty to warn those who

rely on its specifications); Pavlides, 727 F.2d at 339

(manufacturer generally does not have the right to as-

sume that persons using complex product will know how

it is to be used). Texaco’s affirmative duty under Hittle

was to ascertain that Mellen was adequately trained, was

familiar with the carcinogenic properties of benzene, and

13 Ron Richards from Texaco, who himself had majored in chem-

istry during the time period from 1955 to 1960, testified that the

relationship between benzene and leukemia was not taught in the

course of his own undergraduate studies. Tr. Vol. 38, at 3843-44.

56a

was capable of passing on this information to his cus-

tomers. 219 Kan. at 639, 549 P.2d at 1394. The mere

assumption by Texaco that Mellen had such knowledge

and capabilities is not sufficient to defeat the jury’s con-

sidered judgment that something more was required of

Texaco. See American Mutual, 799 F.2d at 994; see also

Restatement (Second) of Torts § £38 comment n (1973)

(supplier may be liable unless he ascertains character of

intermediary or unless previous experience with inter-

mediary gives supplier reason to believe that intermediary

is careful).

Even assuming that Mellen would have understood the

language contained in Texaco’s MSDS, there is no evi-

dence that Mellen was aware of the information contained

in Texaco’s MSDS, nor that Texaco’s sales representative

had emphasized or even mentioned this information to

Mellen. When Mellen purchased benzene from Texaco, he

did not receive any information with the product. Tr.

Vol. 9, at 765. Rather, the Material Safety Data Sheet

was sent separately from the shipment of benzene. Tr.

Vol. 9, at 775. The jury could reasonably conclude that

this was an inadequate method by which to warn the

customers of Texaco. Kansas law imposes no per se duty

upon a bulk seller to train its salesmen or to warn

through such salesmen. Mason, 862 F.2d at 248. The

failure to train salesmen and the failure of a salesman to

make the purchaser aware of a product’s inherent danger,

however, may be considered by the finder of fact in de-

termining the overall adequacy of a warning. Jd. Thus,

the jury could reasonably find that Texaco had failed to

take adequate steps to bring this information to Mellen’s

attention. See also W.G.M. Safety Corp., 707 F. Supp. at

549 (even when warning is provided, adequacy of efforts

to communicate dangers of product is question for jury).

Defendant also argues that Mellen was required to pass

on Texaco’s MSDS, which contained certain precautionary

instructions, and that the failure to do so destroyed any

———

57a

causal responsibility on the part of Texaco. This argu-

ment rests on the mistaken assumption that causation for

an inadequate warning is defeated where strict adherence

to a manufacturer’s instructions would eliminate exposure

to the dangerous element of a product. In the court’s

view, this is simply an attempt to carve an adequate

warning out of an inadequate one. Where the warnings

given are unclear or inadequate to apprise of the in-

herent or latent dangers associated with a product, a

manufacturer cannot escape liability for injury on the

grounds that perfect compliance with its instructions

would have prevented the injury. Karns v. Emerson

Elec. Co., 817 F.2d 1452, 1457 (10th Cir. 1987) (quoting

Smith v. United States Gypsum Co., 612 P.2d 251, 253

(Okla. 1980)). Although a warning should contain pre-

cautions or instructions for a product’s safe use, an ade-

quate warning must also inform the user of the result

that will follow from the failure to observe these in-

structions. Ferebee v. Chevron Chem. Co., 552 F. Supp.

1293, 1304-05 (D.D.C. 1982), aff'd, 736 F.2d at 1539

(D.C. Cir. 1984); Beauchamp v. Russell, 547 F. Supp.

1191, 1195 n.2 (N.D. Ga. 1982) (instructions are not

warnings).'* The reason a user has no specific legal duty

to use a product in accordance with the bare, unembel-

lished instructions of an inadequate warning is that such

a warning fails to impress upon the reader the nature

and gravity of harm that will follow from the failure to

observe the instructions. If Texaco had adequately warned

of the carcinogenic danger of benzene exposure in terms

understandable to the ordinary user, the users of its prod-

uct might elect not to purchase benzene at all. Indeed, this

is precisely the choice made by the Coast Guard when it

finally learned of benzene’s carcinogenic propensities.

14 Not only does this state the legal duty imposed upon manu-

facturers, it is also a duty that the jury could reasonably find based

upon its own collective experience and the evidence introduced in

this case. Wagoner, Tr. Vol. 28, at 2785-86.

is

58a

Thus, because a user had no specific legal duty to follow

the instructions of an inadequate warning, defendant

cannot contend that Mellen’s failure to pass on Texaco’s

MSDS was the legal cause of Mason’s injury.”

For the same reason, the court rejects defendant’s ar-

gument that the jury could not reasonably find Mellen to

have borne no causal responsibility, even though Mellen

did not pass on the information in Texaco’s MSDS. A

manufacturer’s immediate vendee certainly has a duty to

convey adequate warnings that it has received from the

manufacturer. Younger v. Dow Corning Corp., 202 Kan.

674, 451 P.2d 177 (1969); and Kansas law requires that

a seller warn of those dangers of which it either knows

or has reason to know. Aittle, 219 Kan. 627, 549 P.2d

1383, syl. 4. In this case, however, there was no evi-

dence that Mellen had read Texaco’s MSDS, and the jury

could reasonably conclude that Texaco’s method of con-

veying its warning was inadequate under the circum-

stances. See Holmes v. Sahara Coal Co., 131 Ill. App.

3d 666, 475 N.E.2d 1388, 1886 (1985) (fact that manu-

facturer supplies a warning does mean that warning is

adequate to shift or reduce risk inherent in product,

and this determination is left to jury). Moreover, even

assuming that Mellen was negligent in failing to read the

MSDS sent to him separately by Texaco, defendant’s ar-

gument does not relate Mason’s injury to the failure of

Mellen to pass on this information. As already noted,

the Coast Guard safety manual itself stated that benzene

could cause injury to blood forming organs. Yet no evi-

dence was produced that anyone in the Coast Guard’s

15 Even if the information in Texaco’s MSDS, which prescribed

“local exhaust” for benzene, had reached the Coast Guard, evidence

indicated that this information would not have been understood. As

understood by Chief Petty Officer Larry Seligman, whose duties

at the Yorktown facility included safety inspection at the engineer-

ing school, “local exhaust” meant nothing more than an exchange of

air that could be achieved by opening windows and turning on fans.

Tr. Vol. 52, at 6859-60. See supra at n.11.

59a

safety program or at Yorktown understood this language

to mean that benzene is carcinogenic. Thus, the jury

could reasonably find that Mellen’s asserted negligence in

failing to convey Texaco’s warning was not a proximate

cause of Mason’s injury.

The salient motif among defendant’s numerous argu-

ments is that Mellen and the Coast Guard were sophisti-

cated entities who could have looked up this information

themselves. Even if the court were to conclude that Mellen

and the Coast Guard were sophisticated intermediaries,

defendant’s efforts to defeat the jury’s verdict would fail

nonetheless. Under the “learned intermediary” rule, of

which the physician-patient relationship is the most com-

mon example, a manufacturer has no duty to warn the

ultimate user of the product. Rather, the manufacturer

is entitled to rely upon the education and experience of

the physician in conveying those adequate warnings pro-

vided by the manufacturer. Wooderson, 235 Kan. 387,

681 P.2d 1038, syl. § 5. In this respect, the prescription

drug rule resembles the “bulk distributor rule” announced

in Jones v. Hittle Serv., Inc., 219 Kan. 627, 549 P.2d

1383, syl. {6 (1976). The prescription drug rule relieves

the manufacturer of all liability, however, only when the

manufacturer has in fact adequately informed the phy-

sician. Additionally, although information regarding a

drug’s dangerous properties may be “equally available”

to physicians, the law does not require them to look such

information up themselves. See Hoffman v, Sterling Drug

Co., 485 F.2d 132, 146-47 (3d Cir. 1973) (jury should

be allowed to decide efficacy of drug literature mailed to

physicians where evidence indicates that such literature

is generally not read) ; Sterling Drug, Inc. v. Yarrow, 498

F.2d 978, 994 (8th Cir. 1969) (reasonable trier of fact

could find thet sending warning letters, product cards,

publishing in the Physicians’ Desk Reference, and willing-

ness to answer inquiries were not reasonable efforts to

wern physicians who were inundated with such litera-

ture); WeEwen v. Ortho Pharmaceutical Corp., 270 Or.

|

60a

875, 528 P.2d 522, 529 & 535 n.25 (1974) (drug man-

ufacturer must “bring warning home” to the physician,

one method of which may be the use of “detail men’’),

quoted in Wooderson, 235 Kan. at 401. Thus, defendant

seeks to place a burden of discovery upon Mellen and the

Coast Guard that is not required even of true learned

intermediaries such as doctors of medicine. See also

State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747

P.2d 1326 (1987) (roof manufacture liable for actual

and punitive damages for failure to warn architect in-

termediary of unsuitability of roofing material).

Defendant also suggests that it is too speculative to

assume a causal connection between the numerous defi-

ciencies of its warning and Mason’s exposure to Texaco

benzene. In support, defendant calls attention to the

absence of any testimony by Mellen that use of the word

“cancer” would have caused him to pass on a warning.

The short answer to this argument is that in Kansas, an

inadequate warning is presumed to have caused exposure

to a dangerous product. Wooderson, 235 Kan. 387, 681

P.2d 1038, syl. §11."° Thus, even if the court were to

agree that plaintiff’s proof of causation is speculative, the

burden is upon defendant to refute the presumption of

causation. Moreover, in the court’s view, any speculation

on this issue is found not in the reasonable inference of

causation from an inadequate warning in this case, but

in the very type of testimony from Mellen that defendant

alleges is necessary to establish a causal link between its

inadequate warning and Mason’s injury. See Kloepfer v.

Honda Motor Co., 898 F.2d 1452, 1459 (10th Cir. 1990)

(trial court could properly exclude speculative and self-

16 Defendant does not concede the existence of this presumption

and takes great issue with the court instructing the jury in accord-

ance with the holding of Wooderson. Supra, at section V.A.

6la

serving statements by plaintiff that she would have heeded

an adequate warning) ; see also Wooderson, 235 Kan. 387,

681 P.2d 1038, syl. § 12 (what a doctor might or might

not have done if adequately warned is not an element

plaintiff must prove as a part of case). Similarly, the

jury was not required to accept the ‘‘undisputed” testi-

mony of Mr. Seligman, Mason’s superior at Yorktown,

who testified that Texaco’s warning would have caught

his attention. Neither Seligman nor any other witness

is the incarnation of the reasonable and prudent person,

by which standard the adequacy of a warning is meas-

ured. The jury could properly reject this testimony and

find that defendant had failed to rebut the presumption.

Even in the absence of a presumption of causation, de-

fendant’s argument does not address the most telling evi-

dence in support of the jury’s finding of causation. There

is no evidence that any person other than Texaco in the

chain of distribution and use was aware of the carcino-

genic danger of benzene at the relevant times. With the

notable exception of Texaco, however, each entity within

this chain altered its conduct when it finaily learned of

this danger. Mellen began to warn of the cancer hazard

in 1977 as soon as he was informed through the Federal

Register. Dooner & Smith ceased selling benzene also

as a result of the information published in the 1977 Fed-

eral Register. Gerin and the Coast Guard first learned

of benzene’s carcinogenic hazard through this very case,

and immediately discontinued its use. Thus, what the

parties actually did, as opposed to what they would have

done if they had received Texaco’s MSDS, belies defend-

ant’s suggestion that an adequate warning in this case

would have been to no avail.

Finally, the cursory suggestion is made that defendant

cannot be held liable, because the position of Texaco,

who was the first link in the chain of distribution, was

ill-suited to control the content of the warning ultimately

62a

received by the user. This fact, however, does not relieve

Texaco of its duty under Hittle to warn its immediate

purchaser. 219 Kan. at 639, 549 P.2d at 1394; see also

GAF Corp., 242 Kan. at 157, 747 P.2d at 1330 (although

manufacturer does not deal with ultimate consumer, but

with intermediary architect or contractor, manufacturer

still has duty under Wooderson to warn). As the fore-

going analysis demonstrates, a reasonable finder of fact

could conclude that Texaco failed to fulfill its duty to

provide an understandable warning to its customers or

to otherwise ascertain the ability of its customers to

warn others of benzene’s carcinogenic propensities. As a

manufacturer with its own independent research pro-

gram, Texaco was in a far superior position to discover

latent dangers in its product and to warn of these dan-

gers. See GAF Corp., 242 Kan. at 157, 747 P.2d at

1330; see also Pavlides, 727 F.2d at 338 (manufacturer’s

duty to warn is derived from the notion that warning

costs very little and can prevent severe losses); Beau-

champ, 547 F. Supp. at 1197 (manufacturer stands in

best position to collect and disseminate information re-

garding dangers of a product); Michalko v. Cooke Color

& Chem. Corp., 91 N.J. 386, 451 A.2d 179, 187 (1982)

(quoting Beshada v. Johns-Manville Prods. Corp., 90

N.J. 191, 201-02, 447 A.2d 539, 545 (1982)). Texaco

had discovered and was aware of numerous scientific

studies and reports indicating a relationship between

benzene exposure and cancerous blood diseases. Rather

than communicate this information to its immediate pur-

chaser, its chose to withhold it until persuaded by more

conclusive evidence. Alternatively, it relied upon Mellen

to discover this danger himself, either by reading and

then deciphering Texaco’s MSDS, or by learning of the

danger through independent sources. In light of the

failure of defendant even to initiate the process of in-

formation, the jury could reasonably conclude that the

distributors and users of Texaco’s benzene share no

causal responsibility for the death of Mason.

63a

C. The Gerin Corporation

Defendant also contends that Gerin was a superseding

cause of Mason’s injuries for mislabeling the benzene it

sold to the Coast Guard. The Gerin label provided with

the benzene sold to the Coast Guard represented con-

formity with specification 96 of the American Society of

Testing Material (“ASTM 96”), which stated that tolu-

ene is a preferred solvent to benzene. Defendant claims

that this representation was false, and that the jury

erred by failing to find any fault on the part of Gerin.

The court initially notes that the “falseness” of Gerin’s

label is far from clear. As Albert Stewart from the

Coast Guard recognized, a specification that states a pref-

erence is not the equivalent of a requirement. Tr. Vol.

20, at 1833. Moreover, there was some dispute as to

whether ASTM 96 applied to lube oil such as that being

tested by the Coast Guard or only to crude oil. Defendant

also fails to appreciate that by shipping benzene, Gerin

sold to the Coast Guard exactly what it had ordered. Nor

was there any evidence that the Coast Guard relied on

this representation in using the product. See Tetuan v.

A.H. Robins Co., 241 Kan. 441, 469, 738 P.2d 1210, 1230

(1987) (test for fraud is whether any misrepresenta-

tion caused plaintiff’s injury). But more directly to the

point, defendant’s argument elides any analysis of Gerin’s

fault with respect to its duty. Under Kansas law, a seller

has a duty to warn “only when he knows or has reason to

know that the product is or is likely to be dangerous for

the use for which it is supplied.” Hittle, 219 Kan. 627,

549 P.2d 1383, syl. 4. There is no evidence that Gerin

had actual knowledge of benzene’s carcinogenic propensi-

ties until after Mason was diagnosed as having leukemia.

And as with Mellen, the jury’s refusal to impose upon

Gerin a constructive knowledge of this danger is reason-

able.’ Thus, even assuming that Gerin misrepresented

1TTt is possible that the constructive knowledge standard imposed

upon Gerin under Kansas law has been preempted by federal com-

64a

the product it sold to the Coast Guard, defendant has

made no showing how this contributed to Mason’s ex-

posure to benzene.

IV. Rulings

Defendant also takes issue with a number of rulings

alleged to have been erroneous and requiring a new

trial.

A. Law of the Case

Defendant alleges that the doctrine of “law of the

case” precluded the relitigation of the issue of punitive

damages, and that submission of this issue to the jury

requires a new trial. In the first trial of this case the

jury awarded no punitive damages. Plaintiff moved for

a new trial limited to the issue of punitive damages, and

the court denied this motion. Plaintiff did not appeal this

ruling, and the Tenth Circuit’s decision reversing the

judgment never addressed this court’s denial of plaintiff’s

motion. On remand, defendant made a pretrial motion

to exclude the issue of punitive damages in this retrial.

In its pretrial motion, and again in the present motion

for new trial, Texaco contends that plaintiff’s failure to

appeal this court’s denial of a new “punitive damages’”’

trial prevents her from relitigating this matter.

mon law. In Bovle v. United Technologies Corp., 108 S. Ct. 2510

(1988), the Court held that an independent government contractor

may be held liable for defective design only if that contractor has

actual knowledge of a danger unknown to the United States. 7d.

at 2518; see also Trevino v. General Dynamics Corp., 865 F.2d 1474,

1487 (5th Cir.), cert. denied, 110 S. Ct. 327 (1989). Because de-

fendant does not contend that Gerin had either actual or constructive

knowledge of the carcinogenic danger of benzene, the court will not

consider the applicability of the Boyle doctrine to the facts of this

case. See Dorse v. Armstrong World Indus., Inc., 716 F. Supp. 589

(S.D. Fla. 1989) (concluding that Boyle is not strictly limited to

design defect cases and also applies to claims of failure to warn),

aff'd, 898 F.2d 1487 (1ith Cir. 1990).

65a

The mandate of the Tenth Circuit in this case reversed

the first judgment generally and remanded for a new

trial. Normally when an appellate court vacates a judg-

ment, neither collateral nor direct estoppel, nor the law

of the case will give preclusive effect to this judgment.

No East-West Highway Comm., Ine. v. Chandler, 767

F.2d 21, 24 (Ist Cir. 1985) ; see also Fox v. Mazda Corp.

of Am., 868 F.2d 1190, 1194 (10th Cir. 1989) (law of

the case doctrine applies only when there has been a final

decision) ; Ramey Construction Co. v. Apache Tribe of

Mescalero Reservation, 673 F.2d 315, 318 (10th Cir.

1982) (general remand by court of appeals allows dis-

trict court to reconsider issues) ; Dodrill v. Ludt, 764 F.2d

442, 444 (6th Cir. 1985). Thus, once a new trial is

granted, preclusion does not extend “to ny matter that

is left open for further proceedings,” but rather is “lim-

ited to matters actually resolved by the appellate court.”

18 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 4432, at 302 (1981); see also Quern v.

Jordan, 440 U.S. 332, 347 n.18 (1979) (doctrine of law

of the case affects only issues determined on previous

appeal, and on remand lower court may consider any

matters left open by appellate court’s mandate).

Defendant does not contend that the first jury’s denial

of punitive damages itself precludes relitigation of this

issue aS a matter of direct or collateral estoppel. In-

stead, defendant relies upon the doctrine of law of the

case. Unlike the various rigid rules of res judicata, the

more amorphous concept of law of the case determines

whether a court’s prior decision on a rule of law should

continue in force in subsequent stages of the same case.

Arizona v. California, 460 U.S. 605, 618 (1983). As it

is most frequently applied, law of the case encompasses

a lower court’s adherence to its own prior rulings, to the

rulings of its superior court in the case, or to the rulings

of another judge or court in the same case or a closely

related case. 18 C, Wright, A. Miller & E. Cooper, Fed-

66a

eral Practice and Procedure § 4478, at 788 (1981). De-

fendant bases its argument on a less common fourth

aspect of the doctrine, under which courts will give pre-

clusive effect to a ruling that could have been appealed,

but has been abandoned by a failure to do so. Id. § 4478,

at 801.

It should be noted that the law of the case doctrine is

implicated here only as a result of plaintiff’s motion for

new trial for punitive damages and the court’s previous

ruling on that motion. Plaintiff did not appeal this court’s

denial of her motion, and defendant argues that this

ruling must stand as the law of the case. Strictly speak-

ing, this prior ruling does remain the law of the case, and

the court would be no more inclined now to grant plaintiff

a new trial limited to punitive damages than it was six

years ago. A court may order a new trial on the grounds

that the damage award is unreasonably low. Fox Motors,

Inc. v. Mazda Distributors, Inc., 806 F.2d 958, 961 (10th

Cir. 1986); Brown v. Richard H. Wacholz, Inc., 467 F.2d

18, 20-21 (10th Cir. 1972). In addition, a new trial may

be properly limited to the question of damages where the

damage and liability issues are distinct and separate.

Gasoline Products Co. v. Champlin Refining Co., 283 U.S.

494, 500 (1931); K-B Trucking Co. v. Riss Int'l Corp.,

763 F.2d 1148, 1163 n.22 (10th Cir. 1985). However,

these principles have developed within the context of

compensatory damages, and it is doubtful whether it

would ever be appropriate for a court to grant a new

trial limited to relitigating the issue of punitive dam-

ages.'* Because punitive damages are inextricably inter-

woven with the issue of liability, the courts have recog-

nized that it would be impossible to order a retrial lim-

ited solely to the issue of punitive damages. McDonald

18 Of course, this does not preclude the possibility of limiting a

trial to the issue of punitive damages where the defendant admits

liability, but disputes any claim for punitive damages. See Arnold

v. Eastern Airlines, Inc., 681 F.2d 186, 190 (4th Cir. 1982), cert.

denied, 460 U.S. 1102 (1983).

67a

v. Johnson & Johnson, 722 F.2d 1370, 1388 (8th Cir.

1983) (citing cases), cert. denied, 469 U.S. 870 (1984).

Defendant asserts that plaintiff's “procedural maneu-

vering” has deprived Texaco of the opportunity to defend

this court’s ruling denying a new trial on punitive dam-

ages. The court does not ascribe the same sinister mo-

tives to plaintiff’s decision not to pursue a patently friv-

olous request. In any event, it would have been unneces-

sary for defendant to “defend” a previous ruling of law

to which this court would still adhere if presented with

the same question: plaintiff is not entitled to a new trial

limited to the issue of punitive damages. Sce Key v.

Wise, 629 F.2d 1049, 1054 (5th Cir, 1980) (applicability

of law of the case necessarily depends on whether the

question as to which it is asserted was decided previously

by the court), cert. denied, 454 U.S. 1103 (1981). After

the general reversal and remand by the Tenth Circuit,

however, this ruling became moot, because the posture of

this case had changed. By virtue of defendant’s success-

ful appeal, the court was no longer confronted with the

propriety of granting plaintiff a new trial on the issue

of punitive damages.

Under defendant’s argument, a party who is forced to

relitigate a lawsuit because of its opponent’s successful

appeal may never fare any better upon retrial of the

issues unless that party has performed the perfunctory

task of itself filing a notice of appeal on issues that have

been decided adversely to it. Thus, the logical extension

of this rule would mean that the second jury in this

case could not find Texaco to have been more than 35 %

at fault and would limit plaintiff's compensatory damages

against Texaco to the amount awarded in the first trial.

But as the Sixth Circuit has explained, a party is not re-

quired to appeal every issue decided adversely to it in

order to preserve relitigation of that issue in the event

of a reversal:

68a

Any other rule would needlessly and astronomically

proliferate the number of issues raised on appeal.

If a judgment could be entirely vacated yet preclu-

sive effect still given to issues determined at trial

but not specifically appealed, appellants generally

would feel compelled to appeal every contrary factual

determination. Such inefficiency neither lawyers nor

judges ought to court. Litigants ought to be en-

couraged to expend their energies on their most com-

pelling issues and arguments, without paranoia about

the preclusive effect of other issues or determinations.

Dodrill, 764 F.2d at 444. These observations apply with

particular force here, in light of the frivolous nature of

plaintiff’s request for a new trial limited to punitive

damages. Thus, the court rejects the argument that

plaintiff was precluded from relitigating the punitive

damage issue simply by failing to perform the futile and

useless gesture of appealing this court’s order.

Defendant relies on language contained in a footnote

from a decision by the Fourth Circuit as a case “directly

on point.” In Arnold v. Eastern Airlines, Inc., 681 F.2d

186 (4th Cir. 1982), cert. denied, 460 U.S. 1102 (1983),

defendant had admitted liability but disputed the amount

of compensatory and exemplary damages. The jury

awarded compensatory damages in an undifferentiated

lump sum, but denied any punitive damages. Upon de-

fendant’s post-verdict motion, the trial court ruled that

it had erred by allowing the jury to consider pain and

suffering as a compensable item, and thus ordered a re-

mittitur of the compensatory damages. The appellate

court held that this remittitur was improper and re-

manded for a new trial on compensatory damages. In

closing the court noted:

The sole issue before the district court upon remand

is that of compensatory damages. The district court’s

suggestion that if a new trial were ordered on appeal

69a

it would be conducted as to both punitive damage

liability and compensatory damages is of no force.

The district court denied plaintiffs’ motion for a

new trial on the punitive damages liability issue, and

plaintiffs did not appeal from that order. This rul-

ing, unappealed, was not in consequence subject to

defense by [defendant] on appeal and [defendant]

is entitled to have it treated as the law of the case.

Id. at 206 n.22.

The court believes that Texaco’s reliance on this case

is misplaced. The court in Arnold remanded only on the

issue of compensatory damages. The issues underlying

the defendant’s liability were uncontested, and the plain-

tiffs had failed to appeal the trial court’s denial of a new

trial limited to punitive damages. In such a Situation,

the appellate court never had the opportunity to review

any of those issues common to liability and punitive dam-

ages, and a retrial that included punitive damage liability

would have required the relitigation of issues uncontested

on appeal. Thus, this decision reflects little more than

the policy of judicial efficiency that underlies law of the

case principles generally. Gage v. General Motors Corp.,

796 F.2d 345, 349 (10th Cir. 1986). By contrast, Tex-

aco’s successful challenge on appeal vacated the jury’s

finding of liability and the issues underlying this finding.

Dodrill, 764 F.2d at 444 (no preclusive effect given to any

issues where judgment is vacated). To the extent the

decision in Arnold is read to create a lurking procedural

cul de sac into which the unwary litigant ventures at his

own peril, the court rejects this holding as ill-advised

dicta.

Even assuming that it was error to allow relitigation

of punitive damages liability, the grant of an entirely

new trial would be inappropriate in this case. Although

defendant understandably seeks to cast this as a trial

dominated by issues relevant only to punitive damages,

laa al

70a

the court cannot agree with this characterization. As

already noted, there is substantial overlap between the

issues underlying punitive damages and liability, because

the evidence that must be adduced to support an initial

finding of liability is the same evidence considered in

determining the propriety of punitive damages. In pass-

ing on the punitive damage question, the jury simply con-

siders whether the conduct in question was sufficiently

egregious to justify an award above any compensatory

damages.

Moreover, as the court instructed without objection,

many of the “post occurrence” evidence such as subse-

quent warnings issued by Texaco were admissible in any

event to prove “the extent of knowledge of Texaco during

the relevant time periods” and “as [an] admission of the

truth of plaintiff’s contention that benzene was a causa-

tive factor of leukemia.” Instruction No. 24. Texaco’s

duty to warn is measured by what it either knew or

should have known, and any evidence relating to Texaco’s

actual knowledge is also relevant to the underlying ques-

tion of liability. In addition, Texaco has taken the hesi-

tant position throughout this trial that the causal link

between benzene exposure and leukemia is still vague and

tentative. This position, however, is belied by the un-

equivocal admission contained in the warnings issued by

Texaco in 1979, 1987, 1988, and 1989, wherein the prod-

uct is clearly labeled as a “cancer hazard.” Thus, the

warnings issued by Texaco after 1977 were admissible

for purposes other than proving the requisite “bad mo-

tive” element of punitive damages.

Plaintiff also produced evidence of Texaco’s financial

status, which the court recognizes is relevant ony to the

issue of punitive damages. Through the brief :ntroduc-

tion of this evidence, plaintiff disclosed to the jury that

Texaco, Ine. is a multi-million dollar corporation. In the

court’s view, the revelation of such public knowledge

could hardly be deemed so prejudicial as to require a new

Tla

trial. The court admonished the jury not to consider

Texaco’s net worth for any purpose other than assessing

punitive damages, if any, (Instruction No. 38), and the

court must assume that the jury will abide by the in-

structions it gives. United States v. Cardall, 885 F.2d

656, 668 (10th Cir. 1989); United States v. Hall, 805

F.2d 1410, 1417 (10th Cir. 1986). Thus, even assuming

error, the court concludes that this would be harmless as

it relates to the determination of liability and compensa-

tory damages. Fed. R. Civ. P. 61.

B. Accuracy of Transcript

Defendant contends that the court erred by finding as

a fact disputed testimony given at the first trial of this

case. Before the scheduled testimony of Ron Richards,

the Texaco industrial hygienist who drafted its warnings,

defendant made a motion to change one word of the

transcript from Mr. Richards’ testimony at the first trial.

Defendant’s counsel had contacted the court reporter

from the first trial, who consulted his notes and decided

that he had erroneously transcribed his notes on that

word. The motion to alter the record was a matter of

great importance to defendant, and the court held no less

than three hearings entertaining defendant’s motion, in-

cluding an evidentiary hearing with the former reporter.

After each of these hearings, the court ruled that the

transcript would not be changed.

The disputed word from the first trial’s transcript

arose during cross-examination of Mr. Richards. In re-

sponse to a question by plaintiff’s counsel, Mr. Richards

stated:

Well, it might have been either when I, shortly after

I got into the profession, certainly after graduate

school in the early ’60’s it was very clear that there

was some instances under some circumstances where

benzene was at least causally associated with leu-

kemia.

F

72a

First Trial Tr. Vol. 20, at 6 (read into the record by

Mr. Michaud, Tr. Vol. 39, at 3984) (emphasis added).

Mr. Richards testified that he believed he said “casually”

and not “causally” at the first trial some 6 years before,

and that either he had misspoken or the court reporter

had made an error.

As defendant correctly notes, “(t]he transcript in any

case ... Shall be deemed prima facie a correct statement

of the testimony taken and proceedings had... .” 28

U.S.C. § 753(b). The party attacking the accuracy of

the transcript has the burden of overcoming the presump-

tion of correctness. United States v. Bergmann, 836 F.2d

1220, 1222 (9th Cir. 1988). The court first notes that

the colloquy between Mr. Richards and counsel during the

first trial was devoted exclusively to the “causal” asso-

ciation between benzene and leukemia. Thus, defendant’s

insistence that Mr. Richards said “casual” appears in-

congruous within the context of the discussion. More-

over, the events at the evidentiary hearing on this matter

demonstrated the ill-founded reliance of defendant on the

court reporter to render a flawless account of what Mr.

Richards had said. At this hearing, the following ex-

change took place between the court, plaintiff’s counsel,

and Mr. Gibson, the reporter who took the notes during

the first trial:

Mr. Michaud: Page nine, look at line three and

we use there the word again causal as compared to

\ casual, right?

, Mr. Gibson: That is true, the word causal,

C.A.S.U.A.L. was used at the point.

The Court: How do you pronounce it, causal,

casual?

Mr. Gibson: Your Honor, causal at that point.

C.A.U.S.A.L.

The Court: Well, my only deal is whether you

pronounce it S.H. or S., causal or casual you say

73a

casual. You use the S.H. on cause and you use the

S. and he said, casual.

Mr. Gibson: Cause, that’s why I’m spelling them

so my pronunciation if I’m in error I’m spelling the

words for the reporter.

Mr. Michaud: And just as the Judge said a mo-

ment ago you said casual and what you really meant

when you were reading was C.A.U.S.A.L., wasn’t it?

Mr. Gibson: Yes.

Tr. Vol. 36, at 3561-62 & 3565: see also Tr. Vol. 39, at

3943-44. In fact, throughout this hearing, Mr. Gibson

repeatedly mispronounced the word “causal” as if it had

the “zh” sound of “casual.”

Defendant ventures onto rather tenuous ground by re-

lying on a court reporter who apparently has difficulty

distinguishing between the sounds of these two words.

The cassette tape recording of this testimony is no longer

available, and it is therefore impossible for anyone—in-

cluding Mr. Richards—to say conclusively which word

was spoken over 6 years ago. Contrary to defendant’s

present characterization, the court did not find as a fact

that the reporter had correctly transcribed the word.

Indeed, although defendant’s counsel implored the court

to “take a side on this issue,” the court declined to,enter

this foray and expressed no view to the jury one. way or

the other. Tr. Vol. 39, at 3940-44. Rather, the jury was

allowed either to accept or reject Mr. Richards’ testimony

that he had misspoken or that the transcript was incor-

rect due to a reporter error. It would have been entirely

appropriate to instruct the jury regarding the prima

facie presumption of correctness of the transcript, but

the court also refrained from doing even this much.

The court believes that its refusal to alter the record

was a harmless matter beyond any principled doubt. Al-

though defendant maintains that the difference between

“

74a

“causal” and “casual” association is a matter of great

moment, the court is confident that the subtleties of this

distinction were sufficiently abstruse as to defy the com-

prehension of even the most adroit juror. Thus, the court

perceives no error in refusing to find the facts requested

by defendant.

C. Expert Qualifications

Defendant asserts that the court allowed unqualified

experts to testify for the plaintiff. Texaco argues that

Drs. Infante and Wagoner, as epidemiologists, had no

qualifications to express a medical opinion regarding the

cause of Mason’s leukemia. Because the science of

epidemiology is only concerned with disease as it mani-

fests itself in populations, defendant contends that these

epidemiologists were not competent to express an opinion

on the cause of a given case of leukemia.

“A trial judge has broad discretion in determining the

competency of an expert witness.” Kloepfer v. Honda

Motor Co., 898 F.2d 1452, 1458 (10th Cir. 1990). In

making this determination, two general conditions must

be met.

[F]lirst, the subject matter must be closely related

to a particular profession, business or science and

not within the common knowledge of the average

layman; second, the witness must have such skill,

experience or knowledge in that particular field as

to make it appear that his opinion would rest on

substantial foundation and would tend to aid the

trier of fact in his search for truth.

Graham v. Wyeth Laboratories, No. 88-1337, slip op. at

22 (10th Cir. filed June 25, 1990) (quoting Bridger v.

Union Ry. Co., 355 F.2d 382, 387 (6th Cir. 1966) ).

The court agrees that in many eases, “resolution of the

causation issue turns on the testimony of the treating

and evaluating physicians.” Swlesky v. United States,

75a

545 F. Supp. 426, 430 (S.D. W. Va. 1982). But individ-

ual cases of benzene related leukemia do not lend them-

themselves to the same certainties as do diseases such as

asbestosis, whose cause is readily attributable to a par-

ticular agent or class of agents. As every witness testify-

ing on the causation issue conceded, it is medically impos-

sible to establish an absolute causal link between a given

case of leukemia and benzene exposure because there is

simply no clinical test or examination that a physician

can conduct to make this determination.

A medical degree or training does not confer any

magical qualities upon those experts for both plaintiff and

defendant who testified on the causation issue. In this

case it is only the fortuitous acquaintance of Dr. Reid—

the treating physician—with a body of epidemiological

literature relating benzene exposure to leukemia that en-

abled Dr. Reid to express any opinion as to the cause of

Mason’s leukemia. If the jury could properly conclude

that Mason developed leukemia as a result of his exposure

to benzene, it would necessarily have to base its conclusion

in large part upon Mason’s dosage, duration of dosage,

and latency periods—parameters that have been estab-

lished and defined through epidemiological studies con-

ducted by epidemiologists.” Thus, it would be incongru-

ous to suggest that an epidemiologist may not express an

opinion on the causation issue, while allowing the treat-

ing physician, and hence the jury, to infer causation

basefl on precisely the same data that epidemiologists

have collected and that an epidemiologist would rely on

at trial. In light of the realities limiting any clinical

determination of the cause of Mason’s leukemia, the

*® Conversely, the only information that defendant’s experts relied

upon to reach a contrary conclusion on this issue was the dosage and

latency periods of Mason's benzene exposures. Thus, if the court

were to adopt defendant’s apparent belief that epidemiological data

is incompetent to establish the cause of Mason’s leukemia, this would

also preclude defendant’s experts from testifying on the causation

issue.

76a

court finds that experts such as Drs. Infante and

Wagoner were not only competent, but uniquely suited to

express an opinion on the causation issue. Defendant’s

wooden application of the rule stated in Sulesky is un-

availing as applied to the facts of this case.

The court additionally notes that defendant’s reliance

on Brock v. Merrill Dow Pharmaceuticals, Inc., 874 F.2d

307 (5th Cir. 1989), modified, 884 F.2d 166, cert. denied,

110 S. Ct. 1511 (1990), is misplaced. In Brock the court

ordered dismissal of a suit brought to recover damages

for birth defects alleged to have resulted from the

mother’s ingestion of the drug Bendectin during preg-

nancy. Due to “the lack of conclusive epidemiological

proof” generally linking the drug Bendectin to birth de-

fects, the court held that the trier of fact was unable to

make a reasonable inference on the issue of causation.

874 F.2d at 313. In the present case, however, the

epidemiologic proof linking benzene to leukemia is legion-

ary, and the causation issue is whether Mason’s leukemia

can reasonably be linked to his exposure to benzene. Be-

cause causation in this case must be either established or

refuted almost exclusively on the basis of epidemiological]

data, Drs. Wagoner and Infante were competent to ex-

press an opinion on this issue.

D. Prior Pleadings

Defendant also alleges error for the court’s order pre-

cluding cross-examination of Mrs. Mason with the prior

pleadings in this action. Defendant sought to cross-

examine Mrs. Mason with these pleadings under Fed. R.

Evid 801(d) (2) (C) and 613 for the purpose of disclos-

ing adverse evidentiary admissions and also for impeach-

ing plaintiff’s assertion at trial that only Texaco was

responsible for the death of her husband. In a published

order, the court precluded cross-examination of Mrs.

Mason with these pleadings, but also ruled that defendant

could introduce the pleadings into evidence in its case in

chief for the purpose of disclosing prior positions taken.

77a

129 F.R.D. 542. This order also allowed plaintiff to in-

troduce defendant’s prior answers for the same purpose.

After issuing this order, defendant declined to introduce

plaintiff’s pleadings into evidence. Instead, defendant

made a “proffer” of the very evidence that the court had

already ruled was admissible in its previous order. De-

fendant now challenges the court’s order on two grounds.

First, defendant claims that cross examining Mrs.

Mason with her earlier pleadings “was the only way de-

fendant had of informing the jury of her inconsistent

position.” Dkt. No. 494, at 61. The court is perplexed by

this assertion, insofar as it is irreconcilable with the

specific and unambiguous directive of the court’s order

that defendant be allowed to read plaintiff’s pleadings

into evidence for the “purpose of disclosing prior posi-

tions taken.” 129 F.R.D. at 547. Second, defendant con-

tends that the court’s order forced it “to choose between

foregoing use of this probative, important evidence, or

extending to plaintiff’s counsel a license to creatively ex-

plain away the damaging position taken by plaintiff at

earlier stages of this litigation.” Dkt. No. 494, at 61-62.

It is unclear from this argument whether defendant ob-

jects to allowing plaintiff to offer any explanation or

merely an effective, coherent explanation for the absence

of former parties. Regardless, the law is clear on this

matter: if a party offers the pleadings of ah opponent

into evidence for the purpose of disclosing prior claims

made or parties sued, the opponent must be given an

opportunity to explain the absence of these former claims

or parties. Williams v. Union Carbide Corp., 790 F.2d

552, 556 (6th Cir. 1986): Haynes v. Manning, 717 F.

Supp. 730, 733 (D. Kan. 1989) (citing Dreier v. Upjohn

Co., 196 Conn. 242, 247, 492 A.2d 164. 187-68 (1985) ).

A contrary rule would violate fundamental concepts of

fairness,

Defendant’s asserted fear of the jury succumbing to

counsel’s beguiling explanation is premised on a series of

78a

assumptions: (1) that plaintiff's counsel would have

elected to offer any explanation for the absence of the

former defendants; (2) that the explanation chosen by

Messrs. Michaud and Cordry, two officers of the court,

would have misrepresented matters of public record in

this case that had been stated orally before the court

(Tr. Vol. 86, at 3574-75); and (3) that the court would

have countenanced such conduct and would not have de-

livered a corrective instruction after closing argument.

The court declines to join defendant on this quest for

speculative error. Even if defendant had introduced the

pleadings, it is entirely possible that plaintiff’s counsel

would not have addressed the issue of former parties.

As the court observed in its previous order, disclosure

of plaintiff’s settlement with Gerin would follow once

plaintiff decided to risk an incomplete explanation for the

absence of the former defendants. 129 F.R.D. at 546.

The “chilling” effect of this knowledge might well have

counseled plaintiff’s attorney to devote closing argument

to more fruitful endeavors, such as discussing’ probative

evidence.”°

Introducing the pleadings in the manner allowed by

the court did no violence to the rule that the statements

made by counsel within the scope of the attorney-client

relationship are admissable against the client. Frank v.

Bloom, 634 F.2d 1245, 1251 (10th Cir. 1980). Rather,

the court’s order simply recognized that clients will

rarely, if ever, be in a position to explain the legal

theories and strategies chosen by their lawyers. If de-

fendant considered the probative value of these pleadings

to be of such weight, the court’s order clearly afforded

it the opportunity to use the pleadings both substantively

and as impeachment evidence. The modest restriction on

2° Likewise, defendant had good reason for wanting to withhold

from the jury the reason for the absence of former defendant Ash-

land, perhaps accounting for defendant's trepidation in opening the

door on this matter in the first instance by introducing plaintiff's

pleadings into evidence. See 129 F.R.D. at 546 n.1.

79a

the manner of introducing this evidence was a proper

and circumscribed use of the court’s “considerable discre-

tion in determining the conduct of a trial, including the

orderly presentation of evidence.” Thweatt v. Ontko, 814

F.2d 1466, 1470 (10th Cir. 1987); see also Boren v.

Sable, 887 F.2d 1032, 1037 (10th Cir. 1989).

E. Impeachment of Character

Defendant alleges error for the court’s refusal to allow

certain impeachment of Drs. Wagoner and Infante, twe

of plaintiff’s expert epidemiologists. During cross ex-

amination, defendant sought to impeach Dr. Wagoner’s

credibility with criticisms of a “beryllium” study that

had been published by Wagoner and Infante. These im-

peaching documents had been written by another scientist

and were highly critical of the conclusions reached by

Infante and Wagoner regarding the arcinogenicity of

beryllium. The documents referred throughout to the

misleading, careless, or otherwise unprofessional “tend-

encies” of the authors. The court sustained plaintiff’s

objection to the use of these documents as improper

character impeachment that would confuse the issues of

this case with an undue excursion into unrelated sub-

stances,

Defendant confuses the distinction between character

assassination and proper impeachment technique under

the federal rules. It is conceded that the only “impeach-

ment” purpose served by these documents is to impugn

the scientific character of plaintiff’s experts. Under Fed.

R. Evid. 608(a), however, direct impeachment of a wit-

ness’ character is limited to opinion or reputation evi-

dence concerning that witness’ character for truthfulness

or untruthfulness. See aslo United States v. Awkard, 597

F.2d 667, 671 (9th Cir.) (opinion testimony on eredi-

bility is limited to character for truthfulness or untruth-

fulness), cert. denied, 444 U.S. 85 (1979). Defendant

has also suggested that the beryllium studies are proper

ee

\

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impeachment under Fed. R. Evid. 608(b), which allows

an attack on credibility through specific instances of con-

duct. It is not the conduct of plaintiff’s experts that de-

fendant seeks to use for attacking their character for

truth, but rather the opinion voiced by others concerning

this conduct. Counsel may no more use a scientist to

make accusations of a “misleading,” “careless,” or “un-

cientific” character than if defendant sought to make

these same accusations through a lay witness. The fed-

eral rules do not confer any special status upon the

opinions of a scientist who believes that his colleagues’

work reveals a misleading character, and such “scathing”

criticisms among members of the scientific community

have no more place in a courtroom than would the

vitriolic, ad hominem arguments frequently exchanged

between constitutional scholars. Once the court has de-

termined that a witness is qualified to render an expert

opinion, opposing counsel is limited by the same impeach-

ment rules governing all witnesses.

F. Emergency Temporary Standard

Defendant also raises several specific instances in which

the court is alleged to have allowed plaintiff’s counsel to

violate an earlier order concerning litigation involving

the American Petroleum Institute (“API lawsuit”). This

litigation was brought by several parties, including the

API, challenging a 1977 emergency temporary standard

promulgated by OSHA that established a one part per

million (“1 ppm”) exposure limit value for benzene in

the workplace. Texaco was not a party to this lawsuit.

The American Petroleum Institute, of which Texaco is a

member, successfully challenged the emergency standard

in the Fifth Circuit, whose ruling was upheld in an ex-

tensive opinion by the United States Supreme Court.

Industrial Union Dep’t v. American Petroleum Institute,

448 U.S. 607 (1980). Specifically, the Court held that

OSHA had violated its statutory mandate by failing to

determine whether benzene “poses a significant health

EE

8la

risk in the workplace and that a new, lower standard is

therefore ‘reasonably necessary or appropriate to provide

safe or healthful employment and places of employment.’ ”

Id. at 615. In 1988, OSHA issued a new standard for

benezene exposure that is similar in most respects to the

1977 emergency standard.

Plaintiff sought to introduce evidence of the API’s Op-

position to the 1977 emergency standard for the purpose

of showing a “continuing course of deceptive conduct with

respect to the tremendous hazards associated with ex-

posure to benzene... .” Dkt. No. 381, at 8. Plaintiff

asserted that Texaco had information as early as 1941

indicating that leukemia could result from benzene ex-

posures as low as 1 ppm. In light of this knowledge,

plaintiff argued that Texaco’s opposition, through the

API, to the emergency standard demonstrated a callous

and indifferent attitude toward persons exposed to ben-

zene in the workplace. In addition, plaintiff sought to

introduce evidence of the lawsuit, and the 1988 adoption

of an identical standard, to prove that 198 deaths re-

sulted from the delay in implementing a valid regulation.

The court sustained Texaco’s objection to this evidence.

The court ruled that attributing a lawsuit filed by the

API to defendant, solely by virtue of Texaco’s member-

ship in the API, would be tantamount to guilt by associa-

tion. The court also precluded plaintiff from attempting

to quantify the number of deaths that might have re-

sulted from the delay in implementing the 1 ppm stand-

ard, on the basis of the speculative nature of such evi-

dence.

Before addressing defendant’s specific allegations of

misconduct with respect to the API lawsuit, a further

clarification of the court’s ruling is necessary. Contrary

to defendant’s present assertion, the court never pre-

cluded introducing evidence of positions taken by Texaco

individually with respect to OSHA’s efforts to lower the

workplace exposure limits to benzene. For several rea-

Re

82a

sons, the court repeatedly rejected defendant’s attempts

to insulate Texaco’s own private actions from scrutiny

under the auspices of the Noerr-Pennington doctrine.”

First and foremost, Texaco was not a party to the API

lawsuit. Thus, defendant’s First Amendment right to

petition the courts is not implicated by evidence of its

own private positions expressed on other persons’ law-

suits. Further, even assuming an identity between

Texaco and the API, the Noerr-Pennington doctrine

would have no applicability to this case. As stated in

the seminal Pennington decision:

It would of course still be within the province of the

trial judge to admit this evidence [of first amend-

ment activity] if he deemed it probative and not

unduly prejudicial, under the “established judicial

rule that testimony of prior or subsequent trans-

actions, which for some reason are barred from form-

ing the basis for a suit, may nevertheless be intro-

duced if it tends reasonably to show the purpose

and character of the particular transactions under

scrutiny.

21The Noerr-Pennington doctrine originates from the Supreme

Court’s decisions in Eastern R.R. Presidents Conference v. Noerr

Motor Freight, 365 U.S. 127 (1961), and United Mine Workers v.

Pennington, 381 U.S. 657 (1965). The doctrine was developed in

recognition of the chilling effect on first amendment rights that

would ensue if a group’s assertion of these rights could then form

the basis of liability in a subsequent lawsuit. Although the doc-

trine first evolved in the antitrust arena and initially encompassed

only the first amendment right to lob

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