# Appendix — Texaco Inc. v. Mason

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 910

## Text

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91-1439 Filey

7 MAR 9 1999
——
No. OFFICE OF tric
=
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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125a

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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,

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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.

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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-

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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%

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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

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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-

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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-

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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-

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0300%3A2. Public record. Not legal advice.