Petition for Writ of Certiorari — Garlock Inc. v. Pool
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
GARLOCK INC,
Petitioner,
Vv.
REUBEN S. Poon, et al.,
Re spondents.
Petition for Writ of Certiorari to the
Court of Appeals for the
Sixth Supreme Judicial District,
Texarkana, Texas
PETITION FOR WRIT OF CERTIORARI
A.B. CONANT, JR.
(Counsel of Reeord)
RAYMOND P. HARRIS, Jt.
CONANT WHITTENBURG
WHITTENBURG & SCHACHTER
(A Professional Corporation)
2300 Plaza of the Americas
600 North Pearl, LB 133
Dallas, Texas 75201
Telephone No. (214) 999-5700
Telecopier No. (214) 999-5747
Attorneys for Petitioner
QUESTION PRESENTED
Whether the award of damages against Garlock Ine
made in the absence of any evidence that its products
caused the plaintiffs’ injuries violated Garlock’s due pro-
cess rights under the Fourteenth Amendment of the
Constitution?
il
PARTIES AND RULE 29.1 STATEMENT
Defendants
Fibreboard Corporation
The Celotex Corporation
The Flintkote Company
H.K. Porter Company, Inc.
Garlock Ine
Plaintiffs in Civil Action No. 86-363
Reuben 8S. Pool
Lee Pool
Charles Strong
Naney Strong
Thomas Sledge
Betty Sledge
Bobbie Freeman
Donna Freeman
Ollie Freeman
Plaintiffs in Civil Action No. 88-08-293
Lessie L. Williams
Ralph E. Williams
Robert E. Williams
Carrol A. Purdy
Murry W. Williams
Cindy L. Powdrill
Bobbie S. Phillips
Emory G.L. Williams
Patsy R. Fountain
Coltee Industries Ine is the parent corporation of
Garlock Ine. The following is a list of all subsidiaries of
Garlock Ine that are not wholly owned:
Garlock Bearings Ine
Garlock de Mexico S.A. de C.V.
Garlock Pty. Limited
Louis Mulas Sues, S.A. de C.V.
il
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........----++-+++5+> i
PARTISS AND RULE 29.1 STATEMENT ......... ii
TABLE OF AUTHORITIES ..........--+--++-+05> iv
OPINIONS BELOW ......... 2 ccc cc cccccecccees ]
UUMUEMET IED. og caves scree rcccnssscesesencccoes 2
CONSTITUTIONAL PROVISION ..........-++555- 2
STATEMENT OF THE CASE ..........--+--+5+5: 2
REASONS FOR GRANTING THE WRIT.......--. 5
A. The Due Process Clause Protections Extend to
apc acasdecancesessvereceses 6
B. The Burden Plaintiffs Were to Bear .......... 8
C. Garlock’s Products Are Safe..........--+-+-: 1]
Garlock Had No Reason to Believe That Its
Products Could Cause Injury .........-+-++++: 16
CONCLUSION 2... oc ccc cc cece cece ence ner cnnnccs 19
iv
TABLE OF AUTHORITIES
CASES Page
Borel v. Fibreboard Paper Products Corp., 493 F.2d
1076 (5th Cir. 1973), cert. denied, 419 U.S. 869
3 Se ee 10, 13 .
Brantff Airways, Inc. v. Nebraska State Board of
Equalization & Assessment,
ae Wk ee CE 6 hie beds coc benesdecen naan 3, 4
Browning-Ferris Industries of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257 (1989) ....... 8
Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex.
App. — Texarkana 1991, writ denied) .......... 1
Gideon v. Johns-Manville Sales Corp., 761 F.2d
REDS COCR GI. BD occ cc vncccavan 9, 10, 12, 17, 18
Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d
841 (5th Cir. 1967), cert. denied, 391 U.S. 913
| ee ny Srey ee en ee 8
Kennedy v. Mendoza-Martinez,
ee EE bc Avuws scab een ctannned cee 7
Kirch v. Atlantic Coast Line R.R., 38 F.2d 963 (5th
Ck SE habe eek ba Matun cow eu eae e641 7
Lorenz v. Celotex Corp., 896 F.2d 148 (5th Cir.
A Peer ee eee Pere yy ery Seer ne 9
Morris v. Adolph Coors Co., 735 S.W.2d 578 (Tex.
App. — Fort Worth 1987, writ refd n.r.e.) ..... 8, 19
Pacific Mut. Iife Ins. Co. v. Haslip, 499 U.S. —,
BES Ws Gi REED 6.04 40600 an se HeSakcuens 8
Snyder v. Massachusetts, 291 U.S. 97 (1934) ...... 7
Tot v. United States, 319 U.S. 463 (1943) ......... 7
United States v. Romano, 382 U.S. 136 (1965) ..... 7
Western & Atlantic R.R. v.-Henderson, 279 U.S. 639
CR <x b5b boa GUSN GRAS oe eR eee Aaa ks 6, 7, 19
Vv
TABLE OF AUTHORITIES — (Continued)
STATUTES Page
Be Oe ee ED i bake ed ck aS as ceoesesceas 2
29 C.F.R. § 1910.1001(g) (2) (i) (1983) .......... 15
a, Ca ee NE hax 645490650085 Re Rae Ow Ss 6
OTHER AUTHORITIES
Report of the Judicial Conference Ad Hoc Committee
on Asbestos Intigation (1991)................-..
Restatement (Second) of Torts § 402A (1965)...... 19
IN THE
Supreme Court of the United States
OcTOBER TERM, 1992
No.
GARLOCK INC,
Petitioner,
V.
REUBEN S. POOL, et al.,.
Respondents.
Petition for Writ of Certiorari to the
Court of Appeals for the
Sixth Supreme Judicial District,
Texarkana, Texas
PETITION FOR WRIT OF CERTIORARI
Garlock Inc respectfully petitions for writ of certiorari
to review the judgment of the Court of Appeals for the
Sixth Supreme Judicial District, Texarkana, Texas (the
“Court of Appeals’).
OPINIONS BELOW
The Supreme Court of Texas’s November 11, 1992
order, vacating its April 29th order and denying Gar-
lock’s Application for Writ of Error, is included in Ap-
pendix C, 72a. The April 29th order, granting Garlock’s
Application for Writ of Error, is included in Appendix C,
73a. And the Texas Supreme Court’s December 9th order,
denying Garlock’s Motion for Rehearing, is included in
Appendix C, 75a. The intermediate Court of Appeals’
decision in Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex.
App. — Texarkana 1991, writ denied), is in Appendix A,
la.
2
JURISDICTION
The Court of Appeals affirmed the trial court’s judg-
ment on July 16, 1991. The Texas Supreme Court entered
its Order, denying Garlock’s application for writ of error
on November 11, 1992, and denied Garlock’s motion for
rehearing on December 9th. This Court has jurisdiction
under 28 U.S.C. § 1257 (1992).
CONSTITUTIONAL PROVISION
The Due Process Clause of the Fourteenth Amendment
to the United States Constitution provides: “No State
shall... deprive any person of life, liberty, or property,
without due process of law.”
STATEMENT OF THE CASE
This is an asbestos case in which the plaintiffs claim
that the defendants, including Garlock, failed to ade-
quately warn them that they could be injured by exposure
to products manufactured by the defendants. Garlock,
unlike most of the other defendants, has never manufac-
tured or sold insulation products. Its products are gas-
kets and valve packing, some of which contain very small
amounts of asbestos encapsulated in rubber elastomers
and lubricants, such as graphite, oil, and grease. The
gaskets are used between pipe flanges to prevent leakage,
and the packing material goes inside valves, likewise to
prevent leakage. Appendix J, 105a-106a. Accordingly,
plaintiffs proved nothing about the “danger” of Garlock’s
products by their repeated references to studies done
concerning the mining of asbestos, the manufacture of
insulation products, and the possible effects of asbestos
on insulation workers. Plaintiffs offered no evidence that
products with encapsulated asbestos fibers posed any
health hazard to humans.
3
The case was tried to a jury in the Fourth Judicial
District Court of Rusk County, Texas, Judge Donald R.
Ross presiding. At the close of the plaintiffs’ evidence,
and again at the close of all evidence, Garlock moved for
an instructed verdict on the grounds that plaintiffs of-
fered no evidence that Garlock’s products posed a danger
to the plaintiffs’ health. Garlock’s motions were denied.
Following the jury’s verdict, the trial court entered judg-
ment against each of the defendants, awarding the plain-
tiffs $3,160,169.50 in actual damages for which Garlock
was jointly and severally liable and $500,000 in punitive
damages against Garlock. Appendix E, 82a. Garlock then
moved for a new trial and for a judgment notwithstanding
the verdict on the same grounds, Appendix G, 95a, but
those motions were denied, Appendix F, 93a.
Garlock reurged its challenge to the lack of evidence
that its products caused any injury in the Court of
Appeals. Appendix B, 68a. The court struck the punitive
damage award assessed against Garlock but affirmed the
award of actual damages. Appendix A, 67a.
Garlock timely applied for writ of error to the Texas
Supreme Court on its no evidence point. Appendix D, 76a.
That court granted Garlock’s application on April 29,
1992. Appendix C, 73a. However, after hearing oral argu-
ments on September 29th, the court vacated its April 29th
order and denied Garlock’s application for writ of error.
Appendix C, 72a. The court denied Garlock’s motion for
rehearing on December 9, 1992. Appendix C, 75a.
While Garlock did not specifically frame its no evidence
challenge in the state courts in terms of the denial of due
process under the Fourteenth Amendment, the due pro-
cess question is within the “clear intendment” of the
challenge. In Braniff Airways, Inc. v. Nebraska State
Board of Equalization & Assessment, 347 U.S. 590, 598
(1954), the plaintiff sought relief from a tax assessment
4
on the grounds that “its aircraft never ‘attained a taxable
situs within Nebraska’ from which it argues that the
Nebraska tax imposes a burden on interstate commerce.”
It claimed that for this reason the statute violated the
Commerce Clause of Article I of the Constitution. The
Court found that the plaintiff named the wrong constitu-
tional clause to support his position, however, holding
that the “question whether an instrumentality of com-
merce has tax situs in a state for the purpose of subjec-
tion to a property tax is one of due process” under the
Fourteenth Amendment. Jd. at 599. Finding that the
plaintiff timely raised and preserved its contention, even
though based upon the wrong clause of the Constitution,
the Court considered the due process issue to be ‘“‘within
the clear intendment of such contention” and held that
the issue was “sufficiently presented.” Jd. (citations
omitted).
Garlock consistently sought relief from the trial court,
the Court of Appeals, and finally the Texas Supreme
Court from the trial court’s judgment on the grounds that
plaintiffs failed to introduce any evidence that Garlock’s
products caused their injuries, thereby denying Garlock a
fair trial. This is the heart of Garlock’s due process
challenge: Garlock was denied a fundamentally fair hear-
ing because the plaintiffs were not required to prove
causation. Thus, Garlock’s challenge to the plaintiffs’ lack
of evidence, though not explicit, has always been a due
process challenge.
Garlock respectfully petitions this court for certiorari
to the Court of Appeals on the grounds that the appellate
court has created a conclusive presumption of causation
that applies upon slight proof, thereby depriving Garlock
of its property without due process of law.
+)
REASONS FOR GRANTING THE WRIT
The Court of Appeals’ decision to affirm the trial
court’s judgment against Garlock effectively establishes a
presumption of liability in cases against manufacturers of
asbestos-containing products in favor of the plaintiffs if
they make a simple showing that:
¢ they have an asbestos-related injury;
¢ the defendant manufacturer sold a product that con-
tained any amount of asbestos; and
¢ they came in contact, no matter how brief, with the
manufacturer’s product.
The result of the Court of Appeals’ decision is that, with
this meager showing, the burden of proof is shifted upon
the defendant to prove that its products could not have
eaused the plaintiffs’ diseases. In practical terms, this
results in an irrebuttable presumption of liability because,
if any manufacturer can prove that its products are safe,
Garlock can and did in the trial court.
As the Court is well aware, asbestos litigation has
exploded in the last fifteen years. The burden on the
courts is so great that the Judicial Conference Ad Hoe
Committee on Asbestos Litigation, whose members were
appointed by Chief Justice William H. Rehnquist, con-
eluded in March 1991 that “the situation has reached
critical dimensions and is getting worse. What has been a
frustrating problem is becoming a disaster of major pro-
portions to both the victims and the producers of asbestos
products, which the courts are ill-equipped to meet effee-
tively.” Report of the Judicial Conference Ad Hoc Commut-
tee on Asbestos Litigation 1 (1991). If plaintiffs are
permitted to recover from manufacturers of asbestos-
containing products without proof of causation, then still
greater numbers of defendants will be haled into
overburdened courts and manufacturers of safe products
will unfairly suffer the bankruptcy fate of so many insula-
tion manufacturers.
A. The Due Process Clause Protections Extend to
Civil Cases
Creating a conclusive presumption on such slight proof
deprived Garlock of a fundamentally fair hearing as
guaranteed by the Due Process Clause of the Fourteenth
Amendment of the Constitution. This Court has long-
recognized that the Fourteenth Amendment protects de-
fendants in civil cases from unfair presumptions that
result in awards of compensatory damages, just as it
protects defendants accused of crimes from unfair pre-
sumptions. In Western & Atlantic R.R. v. Henderson, 279
U.S. 639 (1929), the Court invalidated a state statute that
created a presumption of negligence against the defen-
dant railroad company upon a showing of collision and
injury.’ The Court held that legislation establishing “that
proof of one fact or group of facts shall constitute prima
facie evidence of an ultimate fact in issue is valid if there
is a rational connection between what 1s proved and what is
to be inferred.” Id. at 642 (emphasis added). In striking
down the statute, the Court reasoned that the mere fact of
a collision between a train and another vehicle “‘furnishes
no basis for any inference as to whether the accident was
caused by negligence” of one of the parties. Jd. at 642-43.
As the Court succinctly stated, the “[r]easoning does not
lead from the occurrence back to its cause.” Id. at 643.
* Georgia Civil Code § 2780 read: “A railroad company shall be
liable for any damages done to persons, stock, or other property by
the running of the locomotives, or cars, or other machinery of such
company, or for damage done by any person in the employment and
service of such company, unless the company shall make it appear
that their agents have exercised all ordinary and reasonable care and
diligence, the presumption in all cases being against the company.”
fi
7
Thus, the Court concluded that the presumption raised by
the statute was unreasonable and arbitrary and violated
the Due Process Clause of the Fourteenth Amendment.
Id. at 644.
The “rational connection” test get forth in Henderson
has been repeatedly used by this and other courts in
reviewing federal and state statutes under the Fifth and
Fourteenth Amendments. See, ¢.g., United States v. Ro-
mano, 382 U.S. 136 (1965); Kennedy v. Mendoza-Martinez,
372 U.S. 144 (1963); Kirch v. Atlantic ‘Coast Line R.R., 38
F.2d 963 (5th Cir. 1930). In Tot v. United States, 319
U.S. 463, 467-68 (1943), the Court restated the analysis,
holding ‘“‘a statutory presumption cannot be sustained if
there be no rational connection between the fact proved
and the ultimate fact presumed, if the inference of the one
from proof of the other is arbitrary because of lack of
connection between the two in common experience.” Gar-
lock recognizes that the State has the power to regulate
the procedures under which its laws are carried out. It is
well settled that the State may shift the burden of
producing evidence and the burden of persuasion. How-
ever, if “in doing so it offends some principle of justice so
rooted in the traditions and conscience of our people as to
be ranked as fundamental,” the State’s act will be invali-
dated. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
In this case, the trial court’s submission of an issue of
liability to the jury, and the Court of Appeals’ subsequent
approval, in effect told the jury that, upon finding that
(1) the plaintiffs suffered an asbestos-related injury,
(2) Garlock manufactured an asbestos-containing prod-
uct, and (3) the plaintiffs came in contact for a short time
with that product, it could presume that Garlock’s prod-
ucts caused the plaintiffs’ injuries. But these facts are not
“rationally connected” to the inference that Garlock’s
products caused their injuries.
8
The creation of an unfair presumption by the State is
no less significant simply because it is a result of im-
proper direction to a jury by a state court as opposed to
an act of the State’s legislature. Indeed, an instruction to
a jury, just as a statute, can be so vague that it deprives a
defendant of a fundamentally fair hearing. Browning-
Ferris Industries of Vermont, Inc. v. Kelco Disposal, inc.,
492 U.S. 257, 281 (1989) (Brennan, J., coneurring) (“I
should think that, if anything, our scrutiny of awards
made without the benefit of a legislature’s deliberation
and guidance would be less indulgent than our considera-
tion of those that fall within statutory limits.”). See also
Pacific Mut. Infe Ins. Co. v. Haslip, 499 U.S. ---, 111 S. Ct.
1032, 1058 (1991) (O’Connor, J., dissenting) (“It is no
defense to vagueness that this case concerns a jury
instruction rather than a statute.”’).
B. The Burden Plaintiffs Were to Bear
To understand the effect of the trial court’s and the
Court of Appeals’ decisions that the plaintiffs’ proof was
sufficient to submit this case to the jury in the absence of
proof of causation, it is important to know the burden that
the plaintiffs were supposed to bear. This is a failure to
warn case. Before the trial court and the Court of Appeals
relieved plaintiffs of their burden to prove causation, the
matters which plaintiffs were required to prove to estab-
lish a duty to warn were clear cut under established law.
First, a plaintiff had to prove that the product in question
was unreasonably dangerous, meaning that “it must be so
dangerous that a reasonable man would not sell the
product if he knew the risks involved.” Helene Curtis
Industries, Inc. v. Pruitt, 385 F.2d 841, 850 (5th Cir.
1967), cert. demed, 391 U.S. 913 (1968). Unless the
product is unreasonably dangerous, there was no duty to
warn. Morris v. Adolph Coors Co., 735 S.W.2d 578, 583
(Tex. App. — Fort Worth 1987, writ ref’d n.r.e.) (““How-
9
ever, a duty to warn arises only when the product is
‘unreasonably dangerous.’”’).
In making this determination in a multi-party asbestos
ease, the focus is on each defendant’s particular product.
As stated in Gideon v. Johns-Manville Sales Corp., 761
F.2d 1129, 1143 (5th Cir. 1985), “whether an asbestos
product is or is not unreasonably dangerous must be
decided on the basis of the evidence as to the specific
qualities of the particular product.” Indeed, the Court of
Appeals gave lip service to this proposition when it
stated, “[i]t cannot be presumed that all asbestos-con-
taining products are unreasonably dangerous or that all
companies have a duty to warn of supposed dangers.”
Appendix A, 52a. As will be shown later, the Court of
Appeals deviated markedly from this proposition with
respect to Garlock.
In making this individual assessment of dangerousness,
“eompliance with ... government[al] safety standards
constitutes strong and substantial evidence that a prod-
uct is not defective.” Gideon, 761 F.2d at 1144; Lorenz v.
Celotex Corp., 896 F.2d 148, 150 (5th Cir. 1990).
Second, if a plaintiff has proved that the product is
unreasonably dangerous, the plaintiff must then show that
the manufacturer was aware of that danger at the time the
2 Garlock does not read the Court of Appeals’ discussion of the
Gideon and Lorenz decisions at page 50a of its opinion to be a
rejection of the rules stated in those cases, but merely an admonition
that evidence of compliance does not invariably lead to preclusion of
liability. Garlock respectfully suggests, however, that if it demon-
strated that the governmental regulations came about through con-
stant and ongoing scientific studies, that the manufacturer at all
times complied with the changing regulations, and that there is no
evidence that the manufacturer knew of any flaw in the government’s
determinations, at any relevant time, then preclusion of liability must
follow.
10
product was sold. Borel v. Fibreboard Paper Products
Corp., 493 F.2d 1076, 1088 (5th Cir. 1973), cert. denied,
419 U.S. 869 (1974). Here, the plaintiffs claimed exposure
beginning in the 1950s and ending, variously, in 1976
(Sledge, Appendix K, 107a; Freeman, Appendix L, 109a),
1981 (Strong, Appendix J, 105a), and 1986 (Pool, Appen-
dix I, 103a). This, roughly, is the time frame within which
the manufacturer must have had the requisite knowledge
in order to be held liable. What the scientific community
may have subsequently come to believe is irrelevant. “The
manufacturer is not liable for failure to warn of dangers
unforeseeable at the time it manufactured the product.”
Gideon, 761 F.2d at 1145.
And third, a plaintiff had to demonstrate that the
defendant’s product “was a substantial factor” in causing
the alleged injuries. Jd.
In short, what plaintiffs should have been required to
prove with respect to Garlock was that:
¢ Garlock’s gaskets and packing material containing
encapsulated asbestos fibers were unreasonably
dangerous;
* Garlock knew or should have known during the period
from the 1950s through the 1980s of that danger; and
«the emissions from Garlock’s particular products
were such that they substantially contributed to the
plaintiffs’ injuries.
These were the well established requirements to which the
trial court and the Court of Appeals were to make the
plaintiffs adhere and to which they did not. Those courts
required of plaintiffs no evidence whatsoever that Gar-
lock’s products were dangerous. They required of plain-
tiffs no evidence whatsoever that Garlock knew or should
have known during the years in question that encapsu-
lated asbestos products could be considered dangerous.
11
They required of plaintiffs no evidence that Garlock did
or could have known during the period in question that
asbestos emissions in amounts less than that naturally
found in ambient air are unreasonably dangerous. And
they required of plaintiffs no proof that emissions at the
ambient air level can be a substantial contributing factor
in causing injury.
C. Garlock’s Products Are Safe
1. The Plaintiffs’ ““Evidence”
The plaintiffs’ only witness as to the dangers of asbes-
tos products was Joseph Wagoner, Ph.D. Dr. Wagoner is
an epidemiologist and, in essence, his testimony consisted
of reciting comments and conclusions from studies pub-
lished in various scientific and medical journals over the
years. Dr. Wagoner specifically referred to 55 such arti-
cles throughout his testimony. However, all of the articles
dealt with asbestos insulation products, not gaskets or
valve packing. Appendix H, 98a.
There was no evidence of any studies or articles in any
medical or scientific journals connecting encapsulated
asbestos gaskets or valve packing with disease in humans
or animals. Nor was there any other evidence introduced
by the plaintiffs which in any way connected asbestos
gaskets or valve packing to the plaintiffs’ asbestos dis-
eases. The two medical doctors called by plaintiffs as
witnesses were Dr. Britton and Dr. Gonzales. These
doctors only testified that the plaintiffs’ heavy exposure
to asbestos insulation products throughout their working
life was a cause of their asbestos diseases. Neither doctor
testified that asbestos gaskets or valve packing caused the
plaintiffs’ disease or specifically that Garlock’s gaskets or
valve packing caused their diseases. In addition, neither
doctor even referred to any article or publication connect-
12
ing encapsulated asbestos gaskets or valve packing to
asbestos disease.
The Court of Appeals conceded that “most of the
[ plaintiffs’] evidence pertained to asbestos insulation and
raw asbestos.” Appendix A, 54a. In fact, all of it did, and
proof that asbestos insulation and raw asbestos is danger-
ous is no proof that encapsulated asbestos products are
dangerous. As stated in Gideon:
Proof that asbestos insulation products are danger-
ous or defective does not satisfy the burden of
proving that products used for other purposes, such
as asbestos textiles with encapsulated asbestos fi-
bers, are dangerous.
761 F.2d at 1145 (emphasis in original). Clearly, the rule
stated in Gideon is the correct one. Generalized knowl-
edge that inhalation of raw asbestos in some amount can
cause illness is not evidence of the dangerousness of an
encapsulated asbestos gasket — yet this generalized, ir-
relevant evidence is all the Court of Appeals could refer
to in affirming the judgment against Garlock. Appen-
dix A, 58a.
The Court of Appeals, in its desperate search for
evidence to support the judgment against Garlock, refers
to a 1931 article allegedly appearing in a journal called
Safety Engineering. Appendix A, 50a. That article was not
introduced into evidence; it appeared solely as an entry
on a chart listing articles. The Court of Appeals is not
stating what the article says, but rather Dr. Wagoner’s
characterization of it. There is no showing that the article
had anything whatsoever to do with encapsulated prod-
ucts in general or Garlock’s products in particular. In
fact, Dr. Wagoner testified that the article, included
among the 55 articles on his chart, dealt with “insulation
applications.” Appendix H, 98a.
13
The plaintiffs’ evidence failed on the most fundamental
aspect of their case, 1.¢., that Garlock’s products eould
cause injury. The reasons why plaintiffs could not prove
their case appears from the positive evidence set forth
below.
2. Garlock Proved That Its Products Were Harmless
The total absence of danger from the use of Garlock’s
products is best illustrated by comparing the fiber emis-
sions from those products with applicable governmental
regulations and, before regulation, official or quasi-official
guidelines. Over the years, various bodies, and finally
including the United States Government, proposed
“threshold limit values” (“‘TLVs”) which represented
concentrations of asbestos fibers to which workers “may
be repeatedly exposed day after day without adverse
effect.” Appendix H, 99a. Until the end of the 1960s,
exposure to asbestos dust counts below 5 million particles
per cubic foot, or approximately 177 per cubie centimeter
(“ee”), were generally considered safe. This standard
was first proposed in a 1938 Surgeon General’s report
known as the Dreessen Report, after its principal author.
This same standard was adopted by the American Confer-
ence of Governmental Industrial Hygienists” in 1946 and
reaffirmed in 1961 and 1964. Appendix H, 99a-100a. In
1958, the standard was adopted as the regulatory stan-
dard by the State of Texas. Appendix H, 99a. Again, it is
worthy to note that a TLV is the time-weighted number of
particles per cubic foot or eubic centimeter to which a
person may be safely exposed for daily 8-hour exposure,
40 hours per week.
’ ‘This group was characterized as “a quasi-official body responsi-
ble for making recommendations concerning industrial hygiene” in
Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1084 (5th
Cir. 1973), cert. denied, 419 U.S. 869 (1974).
14
In 1969, under the Walsh-Healey Act, the Federal
Government lowered the TLV applicable to government
contracts from 5 million particles per cubic foot to 2 mil-
lion particles per cubic foot (approximately 71 per ec) or
12 fibers longer than 5 microns. Appendix H, 10la.
In 1972, the National Institute for Occupational Safety
and Health (“NIOSH”) under the Occupational Safety
and Health Act of 1970, lowered the TLV to “5 fibers
longer than 5 micrometers per cubic centimeter of air.”
Appendix H, 101la-102a. Indeed, this standard was writ-
ten by the plaintiffs’ own expert, Dr. Wagoner. Appen-
dix H, 102a. In 1976, NIOSH lowered the standard again,
this time to “2 fibers longer than 5 micrometers per cubic
centimeter of air.” Appendix H, 102a. The two-fiber per ee
standard was a “time-weighted average standard” and
the same regulation provided for a “ceiling” of 10 fibers
per ce. The time-weighted average specifies a safe average
level for an 8-hour day, each working day throughout a
worker’s lifetime. The “ceiling” refers to the TLV that
cannot be exceeded for any period of time. Appendix M,
112a.
Finally, in 1986, the NIOSH TLV was dropped to the
current level of .2 fibers per ee. Appendix M, 112a. Thus,
the TLVs for asbestos in the air were lowered by the
official or quasi-official governmental bodies from approx-
imately 177 fibers per ce in 1938 to .2 fibers per ce in 1986.
At all times, the emissions from asbestos gaskets and
valve packing, particularly Garlock’s, were greatly below
these standards.
The first known study on the emission of asbestos fibers
from gaskets was done by the United States Navy in 1978
at the Puget Sound Naval Shipyard in Washington. Ap-
pendix M, 110a-llla. That study revealed an average
exposure from gaskets of .02 fibers per ce or an amount
15
approximately 100 times below the then-governmentally
mandated TLV; 8,850 times less than the TLV prescribed
from 1938 to 1969; and 250 times less than the TLV
written by the plaintiffs’ own expert in 1972.
When Garlock’s gaskets alone were tested, the results
were even more dramatic. Such a study was made in 1982
and, when the exposure was limited solely to emissions
from Garlock’s gaskets, the level of exposure was .005 fi-
bers per cc. Appendix M, 110a-112a.
Again, for the sake of comparison, this figure is 35,400
times safer than the guidelines in place from 1938 to 1969,
1,000 times safer than the 1972 OSHA regulation pre-
pared by the plaintiffs’ expert, and 40 times safer than the
current OSHA standard. Indeed, .005 fibers per cc is
“almost too low to measure,” and “down at the general
level of... ambient air.” Appendix M, 112a. In other
words, Garlock’s gaskets under the worst conditions pos-
sible emit no more asbestos fibers than naturally occur in
the air that we all breathe everyday of our lives.
An even smaller exposure was recorded for Garlock’s
valve packing products, Appendix M, 11la, and the same
or lower numbers were obtained from tests on Garlock’s
gaskets which were being removed after 40 or more years
of service, Appendix M, 112a. Simply put, Garlock’s
products have been safe for all of the plaintiffs’ working
lives.
OSHA regulations regarding the need for warning
labels on asbestos products specifically exempt those
products in which “asbestos fibers have been modified by
a bonding agent, coating, binder or other materials so
that during any reasonably foreseeable use, handling,
storage, disposal, processing, or transportation, no air-
borne concentrations of asbestos fibers” in excess of
OSHA’s exposure limits will be released. 29 C.F.R.
16
§ 1910.1001(g) (2) (i) (1983). Thus, Garlock’s products
are exempt from government-mandated warning
requirements.
The evidence in this case is uncontroverted. Emissions
from Garlock’s products are 40 times safer than the
amount currently deemed by the Federal Government
and the scientific community to be a safe level of expo-
sure, 8 hours a day, every working day throughout a
worker’s lifetime. There being no risk of harm from
Garlock’s products, there was no duty to warn. But more
fundamentally, Garlock’s products could not have caused
plaintiffs’ injuries.
D. Garlock Had No Reason to Believe That Its
Products Could Cause Injury
Even if, for the sake of argument, it is assumed that the
present scientific consensus is that any asbestos exposure
is unreasonably dangerous, where is the evidence that
Garlock could have known that during the periods the
plaintiffs were allegedly exposed? The only evidence in
this ease of a scientific consensus, from time to time, on
the dangerous levels of asbestos exposure is the evidence
of the standards established first by the American Confer-
ence of Governmental Industrial Hygienists, later by the
State of Texas, and finally, by NIOSH. As Garlock has
described, its products emitted mere fractions of those
levels deemed by the scientific community to be safe.
In affirming the award of actual damages against Gar-
lock, the Court of Appeals referred only to evidence, not
particularized to Garlock, that inhalation of asbestos in
some amount was known generally to be hazardous and
that, at some point, someone unidentified by the Court of
Appeals had formed the conclusion that there was no safe
level of asbestos exposure. This was no evidence that
Garlock knew or should have known that its products
17
eould cause harm. In reversing the judgment against a
similarly situated defendant, the court in Gideon held:
{ Plaintiff] introduced no proof that {defendant |
knew or should have known that its asbestos-contain-
ing products could cause harm. Construed most fa-
vorably to [plaintiff], his evidence demonstrated
only that [defendant] knew that the inhalation of
asbestos fibers in certain concentrations might create
a health hazard.
761 F.2d at 1145.
Disregarding the undisputed evidence regarding possi-
ble emissions of asbestos fibers from Garlock’s products
(1/1000th of the government's specified safe level for a
worker using Garlock’s products 8 hours a day) or the
percentage of the plaintiffs’ time actually spent with
gaskets (“less than 1%”), Appendix K, 107a-108a, the
Court of Appeals merely stated that “t]here was expert
testimony that the cumulative exposure to asbestos
causes asbestos-related diseases and that even the inhal-
ing of a small amount of asbestos can contribute to the
disease process.” Appendix A, Ola.
The witness who so opined, Dr. Britton, did not tell us
what is a “small amount,” did not say when he formed
that opinion, and did not mention Garlock’s gaskets, valve
packing, or any other form of encapsulated materials. The
same evidence in past cases has been rejected as no
evidence of causation and should have been rejected in
this case.
In Gideon, the court discussed the properties of the
products of the manufacturer, Raymark, which were as-
bestos textile products and asbestos gaskets and packing
materials. The court noted that Raymark’s products
“emitted only .05 to .4 asbestos fibers per eubic centime-
ter, based on a time-weighted average.” Gideon, 761 F.2d
a
18
at 1144. (Note that this is 10 to 80 times more fibers per
ec than are emitted by Garlock’s products.) Finding that
these emissions were well below the then-current OSHA
standards, the court concluded:
The overwhelming weight of the evidence in this
record is that, so far as anyone now knows, occa-
sional exposure to asbestos fibers in small quantities
will not cause asbestosis or cancer.
**
Even given the cumulative-dosage evidence already
mentioned, there was no evidence that the inhalation
of the relatively small amounts of asbestos fibers
possibly released during the handling of Raymark
products was a substantial factor in causing Gideon’s
present condition.
Id. at 1144-45. The court reversed and rendered judgment
in favor of Raymark. Id. at 1146.
The only witness in this case who testified about the
ability of Garlock’s products to cause disease was Dr. W.
Clark Cooper, who had practiced medicine for 50 years
and occupational medicine for 37 years. He testified
clearly and unequivocally that the levels of exposure from
someone working with Garlock’s gaskets “‘day in and day
out” (which none of the plaintiffs did) was about the
same as found in natural air. Appendix M, 113a. Indeed,
the level of exposure to asbestos fibers from Garlock’s
products was a mere fraction of that found in the ambient
air of some cities, including San Francisco. Appendix M,
112a-113a. He likewise testified clearly and without con-
tradiction that the level of emissions from Garlock’s
gaskets did not pose a risk that is “of any consequence
whatsoever,” that Garlock’s gaskets could not cause as-
bestosis, and could not “make a significant or detectable
19
contribution in the incidence of lung eancer.” Appen-
dix M, 113a-114a.
In other words, injury could not result from exposure
to Garlock’s products. It could only result if the worker
were exposed to markedly higher emissions than he could
get from working with Garlock’s products all day, every-
day. No possible duty to warn of the risks of this abnor-
mal inhalation exists. This is somewhat analogous to
eomment h to the Restatement (Second) of Torts § 402A
(1965), quoted with approval in Morns:
If the injury results from... abnormal consumption,
as where a child eats too much candy and is made ill,
the seller is not liable.
735 S.W.2d at 582.
The Morris case held that the manufacturer was not
liable for failing to warn against ingesting too much of its
own product. A much greater burden is placed upon
Garlock by the Court of Appeals’ requirement that Gar-
lock now warn about risks of inhaling emissions from the
products of other manufacturers.
CONCLUSION
Garlock respectfully submits that the Court of Appeals’
decision has totally obviated the concept of causation
from products liability law and has effectively created an
irrebuttable presumption of liability upon slight proof,
the same type of presumption that this Court rejected in
Henderson. The Due Process Clause was intended to
protect defendants from State acts that unfairly tilt the
balance of the scales of justice in favor of the plaintiff
before trial begins. Yet, in effect, the Court of Appeals’
decision has driven a truck onto the plaintiffs’ side of the
scale, imposing a burden of proof that Garlock cannot
possibly overcome. As a result, Garlock was deprived of
20
the fundamentally fair hearing that is guaranteed by the
Due Process Clause.
The Petition for Writ of Certiorari should be granted.
Respectfully submitted,
A.B. CONANT, JR.
(Counsel of Record)
RAYMOND P. HARRIS, JR.
CONANT WHITTENBURG
WHITTENBURG & SCHACHTER
(A Professional Corporation)
2300 Plaza of the Americas
600 North Pearl, LB 133
Dallas, Texas 75201
Telephone No. (214) 999-5700
Telecopier No. (214) 999-5747
Attorneys for Petitioner
APPENDICES
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APPENDIX A
COURT OF APPEALS OF TEXAS
TEXARKANA
Nos. 6-90-014-CV, 6-90-022-CV
FIBREBOARD CORPORATION, et al.,
Appellants,
v.
REUBEN S. PooL and LEE POOL, et al.,
Appellees.
FIBREBOARD CORPORATION, et al.,
Appellants,
V.
LESSIE L. WILLIAMS, et al.,
Appellees.
July 16, 1991
Second Rehearing Overruled
Aug. 28, 1991
Edward J. Burke, Brobeck, Phleger & Harrison, San
Francisco, Cal.. David L. Tolin, Weller, Wheelus & Green,
Beaumont, Tex., for Fibreboard.
Donald J. Verplancken, Butler & Binion, Kevin S.
Risley, Houston, Tex., for Celotex Corp.
Joe R. Greenhill, Baker & Botts, Austin, Tex., Larry D.
Carlson. Baker & Botts, Dallas, Tex., for Owens-Illinois.
2a
James H. Harris, Jr., Holmes & Harris, Beaumont,
Tex., for the Flintkote Co.
A.B. Conant, Jr., David M. Pruessner, Dallas, Tex.,
for Garlock.
Paul L. Sadler, Rex Houston, Henderson, for appellees.
Before CORNELIUS, C.J., and BLEIL and GRANT,
JJ.
OPINION
GRANT, Justice.
This is an appeal from a judgment entered against six
defendants in a products liability case in which five plain-
tiffs suffered asbestos-related injuries resulting from
their exposure to various products manufactured by the
defendants. The basis of the lawsuit was strict liability
for failure to warn of the risks of exposure to asbestos.
Of the five personal injury claims, two were lung cancer
death claims (George Williams and Donald Freeman).
The other three claims included a confirmed asbestosis
case (Charles Strong), a disputed asbestosis case
(Thomas Sledge’, and a case in which the plaintiff had
asbestos-related pleural disease ‘Reuben Pool}. The
jury awarded compensatory damages of $5,087,000, and
punitive damages totaling $5,000,000.
The two above-styled and numbered cases were con-
solidated for trial under cause numbers 86-363 and
88-08-293. The cases were also consolidated for appeal to
this Court.
The five appellants in this case filed separate briefs
setting out thirty-eight different points of error. Appel-
lant Fibreboard has eight »oints of error in its brief and
adopts twenty-three points of error from appellant
Owens-Illinois, twenty-two points of error from appellant
Celotex, and two points of error from appellant Garlock.
The adoption of points in multi-party apneals should be
encouraged to conserve words, paper, and the eyesight of
eee
3a
the members of the judiciary. Owens-Illinois sets out
twenty-three points of error in its brief. Appellant Flint-
kote’s brief has eleven points of error; Garlock’s brief
contains ten points of error; and Celotex sets out twenty-
two points of error in its brief. We have combined the
points into the following thirty-five issues for the pur-
poses of discussion :
(1) whether the trial court properly admitted into
evidence the “Sumner Simpson papers” ’;
(2) whether the trial court properly refused to give
appellants’ requested limiting instruction in regard to the
Sumner Simpson papers;
(3) whether the trial court abused its discretion in
admitting autopsy photographs of Donald Freeman;
(4) whether the trial court submitted a proper damage
question to the jury in regard to appellees Strong, Sledge,
and Pool;
(5) whether the trial court properly refused the
appellants’ tendered instruction to limit compensatory
damages for conditions resulting from exposure to
asbestos-containing products;
(§) whether the trial court properly submitted Ques-
tion No. 17 which included “loss of enjoyment of life”’
as an element of damages;
(7) whether the cancer instruction concerning appel-
lees Strong, Sledge, and Pool caused the jury to compen-
sate them for future cancer not caused by asbestos ex-
posure:
(8) whether the trial court properly admitted a color
poster prepared by the Oil, Chemical and Atomic Work-
ers International Union;
(9) whether the trial court properly admitted deposi-
tion testimony of witnesses Virgil M. Evans and James
EE
4a
Henry Read in which appellants’ cross-examination was
limited to five written questions;
(10) whether the trial court properly excluded evi-
dence of military specifications requiring the use of as-
bestos in insulation products;
(11) whether the trial court properly excluded a por-
tion of the deposition testimony of Dr. Corwin Hinshaw,
the appellants’ state-of-the-art expert on asbestos;
(12) whether the trial court properly denied appel-
lants’ motion for directed verdict on limitations against
appellee Strong;
(13) whether the trial court properly entered judg-
ment based on the jury findings in favor of appellee
Strong that he did not know nor should he have known
more than two years before filing suit that he had devel-
oped an asbestos-related disease ;
(14) whether the trial court properly entered judg-
ment based upon the jury’s finding in favor of appellee
Pool for future medical expenses:
(15) whether sufficient evidence existed for the trial
court to render judgment in favor of appellee Pool based
upon the jury’s finding of $100,000 in damages;
(16) whether the trial court abused its discretion in
permitting Donna Freeman and Ollie Freeman to file
answers to Garlock’s request for admissions;
(17) whether there was any evidence or sufficient evi-
dence to support the jury award to Ollie Freeman for
$30,000 in damages;
(18) whether any evidence existed to support the trial
court’s judgment in favor of the Williams children based
upon the jury’s finding of $25,000 in damages for pecuni-
ary loss and $25,000 in damages for termination of the
parent-child relationship;
-
oa
(19) whether sufficient evidence was presented for the
trial court to render judgment in favor of the Williams
children ;
(20) whether sufficient evidence existed for the trial
court to render judgment against appellant Owens-Illinois
based upon the jury’s finding that the appellant caused
‘wentv-five nercent of the appellees’ asbestos-related in-
juries ;
(21) whether the awarding of punitive damages vio-
lates the due process clause of the United States Constitu-
tion or the Texas Constitution and the excessive fines
provision of the Texas Constitution and the common law
of Texas;
(22) whether any or sufficient evidence existed to show
that appellant Garlock’s products were defective, unrea-
sonably dangerous and contributed to appellees’ injuries ;
(23) whether sufficient evidence existed to support the
jury verdict in respect to appellant Flintkote ;
(24) whether sufficient evidence was present to support
jury findings of punitive damages against appellants, Gar-
lock. Flintkote and Fibreboard;
(25) whether the trial court acted within its discretion
under TEX.R.CIv.P. 265 when it refused to allow appellant
Flintkote to make its opening statement to the jury at the
beginning of its case-in-chief ;
(26) whether the trial court properly submitted to the
jury questions concerning liability and comparative causa-
tion ;
(27) whether the jury’s answer to Question No. 8 (find-
ing the companies that supplied asbestos-containing prod-
ucts which were the producing cause of appellees’ injuries)
was against the great weight and preponderance of the
evidence ;
6a
(28) whether the jury’s answer to Question No. 16 ap-
portioning fault was against the great weight and pre-
ponderance of the evidence;
(29) whether the trial court properly admitted into
evidence the depositions of William Simpson, Kenneth
Wallace Smith, Barry Castleman, Thomas Mancuso,
Arthur Mueller and Richard Gaze;
(30) whether the trial court abused its discretion in
failing to give a limiting instruction on the above deposi-
tions regarding appellant Garlock;
(31) whether the trial court properly submitted jury
questions which allowed the jury to award punitive dam-
ages and whether the questions commented on the weight
of the evidence;
(32) whether the trial court properly submitted Ques-
tion No. 20 in the verdicts of Pool, Sledge, and Strong
which asked for the assessment of punitive damages “for
the injuries of” each plaintiff and whether this resulted in
a double recovery for compensatory damages;
(33) whether the trial court properly excluded a letter
offered by Celotex to prove that it had done everything
possible to reduce the hazards of asbestos exposure;
(34) whether the trial court properly excluded evidence
concerning exposure to the products of Johns-Manville and
other companies which were under the direction of bank-
ruptcy courts;
(35) whether the trial court created a cumulative effect
of errors in the trial to deprive appellants of their rights
to a fair trial and due process of law.
=_
ia
NATURE OF THE CASE
Between the 1950’s and the present, appellees worked as
insulators or maintenance mechanics performing insula-
tion repair work at Texas Eastman in Longview, Texas,
and at other companies. During their employment at
Texas Eastman, appellees handled numerous products that
contained asbestos. The appellants supplied asbestos prod-
ucts to Texas Eastman: Fibreboard, Owens-Illinois, and
Celotex supplied asbestos insulation; Flintkote supplied
liquid asbestos products used to cover the insulation; and
Garlock supplied gaskets and valve packing. The evidence
showed that the appellees used products manufactured by
all of the appellants, except that there was no evidence
that Williams used any of Garlock’s products.
The evidence further showed that the dangers associ-
ated with exposure to asbestos were well known by the
late 1940’s. The appellees, however, were not warned of
these dangers. Although some of the appellants stated
that a caution label was placed on their boxes in the mid-
1960’s to 1970’s, the evidence showed that neither the
purchasing agent at Texas Eastman nor any of the
appellees saw the warnings.
THE SUMNER SIMPSON PAPERS
The appellants contend that the trial court erred in
admitting into evidence what is generally referred to as
the Sumner Simpson papers and that the trial court fur-
ther erred in refusing to give their requested limiting
instructions in regard to the papers. The Sumner Simpson
papers include about 6,000 documents, but only seven
letters were offered into evidence by the appellees. These
letters are a collection of correspondence from the 1930’s
and 1940’s among the following three people: Sumner
Simpson, former President and Chairman of the Board of
Raybestos-Manhattan; Vandiver Brown, an in-house at-
torney for Johns-Manville; and A.S. Rossiter, editor of
Sa
Asbestos Magazine. The letters show knowledge about the
hazards of asbestos during the 1930’s and 1940’s.
At trial, appellants objected to the admission of the
Sumner Simpson papers on the basis that they were hear-
say, that the documents were not properly authenticated
and therefore not admissible under TEX.R.CIV.EVID. $01,
that they were irrelevant under TEX.R.CIV.Evip. 401 and
402, that their prejudicial effect outweighed their limited
probative value, that their effect amounted to cumulative
prejudice and czused confusion, that the issue for which
the proof was offered was uncontested (i.e., that asbestos
caused asbestosis in the 1930’s), that they were not pro-
bative as to the liability of manufacturers who manu-
factured a totally different kind of product, and that it
was evidence that concerned bankrupt companies (Johns-
Manville and Raybestos-Manhattan). The trial court
sustained an objection to summaries of this material.
On appeal, appellants brought forward these complaints
and also specifically contended that the material in the
letters was irrelevant because Johns-Manville and Ray-
bestos-Manhattan, which were involved in the correspond-
ence, were not parties to this case. Appellants further
contend that the letters were irrelevant because the parties
to this case were not recipients of the letters, and because
there was no showing that the appellants were aware of
the letters.
In a failure-to-warn case, the plaintiffs are required to
establish that the dangers were reasonably foreseeable or
scientifically discoverable at the time of the exposure
before a defendant can be found liable. Borel v. Fibre-
board Paper Products Corp., 493 F.2d 1076, 1088 (5th
Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42
L.Ed.2d 107 (1974). All manufacturers are held to the
knowledge and skill of an expert. Borel, 493 F.2d at 1089.
The appellants contend that the Texas Supreme Court
in Gaulding v. Celotex Corp., 772 S.W.2d 66 (Tex.1989),
9a
rejected the holding in Borel. In the Borel case, it was
uncontroverted that the plaintiff was injured from inhal-
ing asbestos dust and that he was in fact exposed to the
products of all of the defendants. In the Gaulding case,
the court found that the evidence did not establish who
manufactured the board that contained asbestos. The
Texas Supreme Court did not reject the holding in Borel
but distinguished it from Gaulding.
If the dangers of asbestos were known at the time of
the exposure, then the same risks were scientifically dis-
coverable by other asbestos corporations. Dartez v. Fibre-
board Corp., 765 F.2d 456 (5th Cir. 1985); Jackson v.
Johns-Manville Sales Corp., 750 F.2d 1314, 13817 (5th
Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92
L.Ed.2d 743 (1986). The fact that Raybestos-Manhattan
and Johns-Manville are not parties to this case does not
make these letters inadmissible to show that the dangers
of asbestos were known during that earlier time period.
See King v. Armstrong World Industries, 906 F.2d 1022,
1025 (5th Cir.1990). Furthermore, appellees were not
required to show that appellants were aware of the letters
or were recipients of the letters to show that the dangers
of asbestos were known in the industry at that time.
In the case of Lohrmann v. Pittsburgh Corning Corp.,
782 F.2d 1156 (4th Cir.1986), the appellate court was
reviewing the case in which the trial court had excluded
the offer of some of the Sumner Simpson papers. The
court concluded that the trial judge did not err in exclud-
ing these documents because what the asbestos manufac-
turers knew and when they knew it was presented in
great detail by experts, which made the evidence presented
by the Sumner Simpson papers a repetition of the other
evidence. In Jackson, 750 F.2d at 1318, the court, sitting
en banc, held the Sumner Simpson papers admissible to
chow what asbestos manufacturers knew or should have
known about the dangers of inhaling asbestos fibers.
10a
Flintkote also contends that the letters cannot be rele-
vant to it because the companies involved in the letter
writing did not make liquid products containing asbestos.
Flintkote’s duty as a manufacturer was not limited to
obtaining only the knowledge in some narrowly specialized
field, but extended, at a minimum, to keeping abreast of
scientific knowledge, discoveries and advances. Borel, 493
F.2d 1076. The Sumner Simpson letters pertained to the
dangers of asbestos fibers generally when inhaled into the
lungs and would be admissible against Flintkote in con-
junction with other evidence that showed that the asbestos
fibers from its product could be inhaled into the lungs.
Some of the Sumner Simpson papers have been admitted
in several federal cases to show what asbestos manufac-
turers, other than Johns-Manville, knew or should have
known about the dangers of inhaling asbestos fibers.
Gideon v. Johns-Manviille Sales Corp., 761 F.2d 1129 (5th
Cir.1985) ; Jackson, 750 F.2d 1314. In the case of Jack-
son, the court found that this evidence showed the likeli-
hood of the foreseeability of the dangers of asbestos prod-
ucts. The appellate court said that the slight danger that
the admission of such evidence would have caused sufficient
unfair prejudice to warrant exclusion was properly ig-
nored by the trial court. While the portion of letters deal-
ing with the proposed cover-up should have been deleted,
we do not find that the unfair prejudice outweighs the
overall probative value of these papers.
The Simpson deposition properly authenticates these
letters, and they are admissible as exceptions to the hear-
say rule under the business records exception, TEX.R.CIv.
Evip. 803(6), as well as the ancient document exception,
TEX.R.Civ.Evip. 803 (16).
Appellees contend that they had an agreement with ap-
pellants that they could introduce Simpson’s deposition
without being required to show his unavailability. We
find no such agreement in the record. The hearsay ob-
lla
jection at trial points only to the letters which were Ex-
hibits 465-A, 465-B, 465-C, 465-D, 465-E, 465-F and
465-J. However, the only objections made at trial to
Simpson’s deposition * were that it was highly prejudicial
and was not relevant to the issue of liability of the com-
panies that did not make insulation. The deposition lays
the predicate for the introduction of the letters and thus
‘t was necessary for the introduction of evidence con-
cerning the dangers of asbestos fibers, regardless of the
source, when inhaled into the lungs. This is relevant to
all parties in this cause of action. The points of error
concerning the introduction of the Simpson deposition
and Sumner Simpson papers are overruled.
Appellants also complain about the failure of the trial
court to give a limiting instruction at the time the Sum-
ner Simpson exhibits were offered into evidence and in
the charge submitted to the jury. When the exhibits
were introduced, appellants requested that the trial court
give this limiting instruction to the jury: “This evidence
is not to be considered for the purpose of determining
the actual knowledge or state of mind of any Defend-
ant.” This requested instruction was overly broad be-
cause it would have prevented the jurors from inferring
that any of the appellants had actual knowledge of the
dangers of asbestos. This would negate the presump-
tion that manufacturers are experts who have the same
knowledge that other manufacturers in that industry
have.
In the case of King v. Armstrong World Industres,
906 F.2d 1022, the trial court gave the following limiting
instruction: “You are instructed that the deposition tes-
timony of William S. Simpson .. . and Richard Gaze is
offered for the limited purpose of showing, if it does,
1The record reflects that a hearsay objection was made to Ex-
hibit 465. According to the record, Plaintiff's Exhibit 465 was a
summary of a deposition, and the trial court sustained that objection.
l2a
what the industry knew or could have discovered by test-
ing their products.” This type of instruction would have
allowed the jurors to infer that the defendants in that
case had the same knowledge as the industry generally.
Appellants requested that two instructions concerning
the use of the Sumner Simpson papers be placed in the
jury charge:
Proposed jury instruction (punitive damage).
Certain evidence received during the course of
trial relates to actual knowledge of particular com-
panies, some of which are not parties to this lawsuit.
Such evidence includes the Eagle Pincher documents;
the Sumner Simpson papers; the Saranac Laboratory
documents, and the deposition testimony of William
Simpson, Kenneth Smith, Art Mueller, Dr. Frank
Mancusso (sic) and Dr. Richard Gaze. You may not
consider such evidence to establish willfulness or cal-
lous disregard on the part of any Defendant that did
not have actual knowledge of such evidence.
Proposed jury instruction (punitive damage).
Certain evidence received during the course of
trial relates to actual knowledge of particular com-
panies, some of which are not parties to this law-
suit. Such evidence includes the Eagle Pitcher (sic)
documents; the Sumner Simpson papers; the Saranac
Laboratory documents; and the deposition testi-
mony of William Simpson, Kenneth Smith, Art
Mueller, Dr. Frank Mancusso (sic) and Dr. Richard
Gaze. You may not consider such evidence to estab-
lish willfulness, intent, or callous or reckless or heed-
less disregard, or indifference on the part of any
Defendant that did not have actual knowledge of
such evidence.
These instructions would have been proper in regard
to the Sumner Simpson papers; however, the trial court
has considerably more discretion in submitting instruc-
13a
tions and definitions than in submitting questions. Harris
v. Harris, 765 S.W.2d 798 (Tex.App.—Houston [14th
Dist.] 1989, writ denied) ; First State Bank & Trust Co.
of Edinburg v. George, 519 S.W.2d 198, 207 (Tex.Civ.
App.—Corpus Christi 1974, writ ref’d n.r.e.). The jury
was capable of realizing that any manufacturer or seller
chat did not have actual knowledge of the dangers of
asbestosis could not be said to have acted willfully or
intentionally in failing to provide an appropriate warn-
ing. If the manufacturer or seller did not have knowledge
of the dangers of asbestos, the jury then had to determine
if they were reckless or indifferent because they could
have obtained the information and chose not to do so.
The Sumner Simpson papers should not have been used
to show that the appellants in this case were involved in
a cover-up to prevent the public from having knowledge
about the actual dangers of asbestosis. The showing that
other companies mentioned in these papers were guilty of
such acts in no way demonstrates that these appellants
were involved in such conduct. The appellees attempt to
justify the drawing of such an inference based upon lan-
guage in one of the letters referring to the “industry,
mostly working as a unit.” However, this reference in
the letter simply refers to the making of a systematic
dust investigation and further states that these investiga-
tions are generally paid for by “industry, mostly working
as a unit.” It does not refer to an industry-wide cover-up
of the dangers of asbestos.
Appellants point out that the appellees made unjusti-
fied implications when their attorney in his summation
referred to the cover-up discussed in the Sumner Simpson
letters and told the jury, “See how it affects you, because
you are going to be asked about punitive and exemplary
damages that I’m going to talk about in a little bit.”
This argument, however, was not objected to at trial,
and it is only mentioned on appeal in conjunction with
the argument about the inadmissibility of the Sumner
Simpson papers. Thus, any error concerning the sum-
l4a
mation was not preserved and has not been brought for-
ward on appeal. The jury was aware from the evidence
that the persons discussing the cover-up of the dangers
of asbestos were not parties or employees of parties to
this suit. We find that the trial court’s failure to give an
instruction was not an abuse of discretion. These points
ot error are overruled.
ADMISSIBILITY OF PHOTOGRAPHS
Appellants next contend that the trial court abused its
discretion in admitting the autopsy photographs of Don-
ald Freeman. They contend that the admission of these
photographs constituted reversible error because they were
not relevant to any disputed fact. To be admissible,
photographs must illustrate disputed fact issues and must
portray facts relevant to an issue. Heddin v. Delhi Gas
Pipeline Co., 522 S.W.2d 886, 889-90 (Tex.i975). Ap-
pellants objected to the admission of these photographs
at every stage of the proceeding. Before trial, they filed
a motion to exclude photographs and videotapes, which
the trial court denied. At trial, they objected to the ad-
mission of the photographs on the ground that they did
not show anything that was in dispute; and alternatively,
that because of the gruesome nature of the pictures, any
probative value was far outweighed by the danger of
unfair prejudice. In addition, they moved twice for a
mistrial, partially because the photographs were admitted
into evidence.
The general-rule is that pictures or photographs that
are relevant to any issue in the case are admissible.
Texas Employers Ins. Ass’n v. Agan, 252 S.W.2d 743
(Tex.Civ.App.—Eastland 1952, writ ref’d). When a
photograph is a proper representation of an important
fact issue, the admission or rejection of it is a matter
which rests largely within the discretion of the trial
judge, and that decision will not be disturbed on appeal
unless an abuse of discretion is shown. Richardson v.
l5a
Missouri-K.T.R. Co. of Texas, 205 S.W.2d 819, 824 (Tex.
Civ.App.—Fort Worth 1947, writ dism’d). Relevant evi-
dence will not be excluded simply on the ground that it
would create prejudice if permitted. Sherwin-Williams
Co. v. Perry Co., 424 S.W.2d 940 (Tex.Civ.App.—Aus-
tin 1968, writ ref’d n.r.e.). The fact that the photo-
graphs are gruesome does not render them inadmissible.
Texas Employers Ins. Ass'n v. Crow, 218 S.W.2d 230
(Tex.Civ.App.—Eastland 1949), aff'd, 148 Tex. 113, 221
S.W.2d 235 (1949). Therefore, the question in the pres-
ent case is whether the pictures were relevant and other-
wise admissible.
At trial, appellants took the position that cigarette
smoking, not usbestosis, caused Freeman to die of lung
cancer. Thus, the appellees contend that the photographs
were used to explain and demonstrate the involvement
of asbestos in Freeman’s death.
Dr. V.V. Gonzales, who performed the autopsy, testi-
fied that asbestos fibers could be seen only with a micro-
scope and that there were no asbestos bodies in the lungs
of Freeman. He testified that the asbestos fibers may
disintegrate or fragment so that they cannot be found,
but the effect of the toxic material liberated by those
fibers can be found. He further testified that when the
cancer is caused by smoking alone, there will not be
scarring in the lungs, but when asbestos is involved there
will be a grey-white scar tissue called hyaline plaques.
He told the jury that in Freeman this tissue was dis-
covered throughout the chest cavity, the covering of the
heart and the diaphragm. According to Dr. Gonzales’
testimony, Freeman’s right lung was replaced by a
tumor, especially in the upper half of the lung and that
it extended to the middle part of the lung and encircled
the major blood vessel in the back part of the lung. The
tumor had also encased the esophagus, replaced almost
one half of the right thoracic cavity, and invaded the
adrenal glands below the diaphragm and a part of the
kidney.
CC ————————
l6a
Dr. Gonzales pointed out to the jury the searring or
the hyaline material in the pictures taken during the
autopsy :
Exhibits 618-D, 618-E, 618-F: “. .. this is the so-
called hyaline plaques .... The hyaline plaques that
I mentioned is these grey-white spots and there’s one
that’s nodular. This has covered the cavity, the
pleural cavity, and also the diaphragm and also the
covering of the heart.”
Exhibit 618-G: “This is another of the right side
of the lung, the grey-white plaques here, scarring,
and if you replace the chest cavity, which is again
it occupies a certain volume of the space that will
result into the decrease in the pulmonary function
of the lungs.”
Exhibit 618-I: “I is another part of the hyaline
plaques, nodules throughout that line part of the ribs
and sear.”
Exhibit 618-J: ‘“‘J is another exposure that shows
the hvaline plaques at a closer view .... These are
the scars of the pleura covering the chest cavity.”
Exhibit 618-K: ‘“K is another area that showed
the scarring, the hyaline material, the scar tissue... .
This is associated with asbestos.”
Exhibit 618-L: “Lis part of the lung tissue that
[ show the grey-white here or the plaques.”’
Exhibit 618-0: “This is the grey-white hyaline
plaques again that shows the covering of the heart
is partly replaced by this grey-white plaque.”
Exhibit 618-P: “P is the cross-section of the
right lung which shows just like a sponge in which
the normal] lung tissue is gone, it’s replaced by dif-
fuse replacement of the lung tissue by scar tissue.”
Exhibit 618-U: “... You can see the large spaces
here which is called the bullae or the emphysematous
bullae resulting from the scarring.”
3 «
i Ta
Exhibit 618-V: “V is another hyaline plaque.
You can see this large one here.”
Exhibit 618-W: “W is the entire lung after I
removed the heart, the lung, and demonstrate the
windpipe and cross-section of the tumor that has ex-
tended into above the backbone .... This is a close-
up view of the plaque. There’s a plaque here | in-
dicating), there’s a plaque here | indicating), this
plaque, but again there is a nodule here that more or
less formation of nodule. In addition to the plaque
here in this nodule, there is some cancer in there. [
make a cut, but I removed that and cut to demon-
strate that nodule.”
Exhibit 618-Z: “Z is a plaque that I mentioned
that has replaced the diaphragm. This is at the end
of the foreceps you can see the plaque, here.”
Exhibit 618-BB: “This is another one of the
thoracic surface or the surface of the diaphragm
which indicates that there’s a large plaque too.”
Exhibits 618-DD, 618-EE: “This is the appear-
ance of the adrenal glands. There are two glands
on top of the kidney. The next side is here which 1s
rather big, and when I cut it, you can see the white
area, nodule, which is not normal in an adrenal
gland, and these are—they spread resulting from the
lung cancer.”
Exhibit 618-HH: “This tumor has spread not
only to the adrenal glands but this is one-half of the
kidney, and you can see the nodule in that.”
Exhibits 618-JJ, 618-KK, 618-LL: “Q Do any
of these . . . show any of the scarring?
A Yes, sir.
Exhibit 618-LL: “This is a cross-section of the
right lung. This white area here is the tumor... .
‘tlhis part of the lung has been replaced by scar
tissue.”
————=—
lka
The testimony shows that all of the foregoing exhibits
refer specifically to the scarring or hyaline plaques,
which in turn goes directly to an issue in the case. Dr.
Gonzales testified that other exhibits, including 618-M,
618-N, 618-R, and 618-T, were duplications of exhibits
showing the scar tissue, someiimes showing an enlarge-
ment of an area. Four of the pictures to which Dr.
Gonzales referred do not demonstrate the scarring or
nyaline plaques. Exhibits 618-A, 618-B, and 618-C are
pictures of Freeman’s body which, according to Dr. Gon-
zales, showed that the fat on his body was completely
gone at the time of his death as a result of having
eancer. Exhibit 618-H shows a part of the inside of the
lung, which was black. This exhibit would not appear to
harm the appellants in their contention that Freeman’s
death was caused by smoking.
Appellants objected to the 618 series of pictures out-
side the presence of the jury on the basis that they were
not relevant to any disputed fact that they were preju-
dicial because of their gruesomeness. The counse: for the
appellees stated at the hearing that he was not going to
show all the photographs to the jury, “probably six or
eight of them or ten at the outside.’”’ The court allowed
a running objection on relevance and prejudice, but in-
formed the attorneys for the appellants that he would
permit them to reurge any objection on their ‘the photo-
graphs! being cumulative if there were any duplications
at the time they were offered into evidence. Appellants’
counsel apparently put all of the 618 series photographs
into evidence, but no objection was made that the ex-
hibits were cumulative or duplicative. Thus, any com-
plaint on that basis was waived.
Overall these exhibits and the accompanying testimony
are relevant to the issue of the cause of Freeman’s
death. The appellants argue that these photographs
should not have been admitted because they did not dis-
pute the presence of hyaline plaques and pleural thicken-
OO
19a
ing and because Dr. Gonzales gave testimony confirming
the existence of hyaline plaques and pleural thickening,
which was also corroborated by his autopsy report. The
admissibility of evidence does not hinge on whether the
opposing party is able to rebut the specific evidence, but
on whether the evidence is relevant to a disputed issue in
the case. Outside the presence of the jury, the appellants
told the court that they did not dispute the fact that an
autopsy was done, that hyaline plaques were present, and
that pleural thickening was present. The appellants have
not pointed out any place in the record that such an ad-
mission or stipulation was made in the presence of the
jury. The appellants strongly disputed the element issue
of causation and therefore the photographs were admis-
sible to assist the expert in explaining and demonstrating
why he helieved that asbestos was the cause of Free-
man’s death. These points of error are overruled.
JURY CHARGE
Appellants next contend that the trial court should
have limited the damages questions of appellees Strong,
Sledge, and Pool to asbestos-related injuries and that the
trial court should have allowed appellants’ tendered in-
struction to limit compensatory damages for conditions
resulting from exposure to asbestos-containing products.
When a plaintiff suffers a pre-existing injury that is
closely connected to the injury caused by the defendant.
the trial court should affirmatively charge the jury that
the plaintiff can recover only for the extent of injuries
caused or aggravated by the defendant's negligence.
Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116
SW.2d 683 (Tex.Comm’n App.1938, opinion adopted}.
To determine whether an alleged error exists or is re-
versible, the Court should consider the pleadings, the evi-
dence, and the charge in their entirety. Island Recrea-
tional Develonment Corp. v. Republic of Texas Savings
Ass’n. 710 S.W.2d 551, 555 (Tex.1986).
20a
im the present case, Question No. I7 in each of the
series of questions on Strong, Sledge, and Pool asked the
jury to determine the sum of money that would fairly
and reasonably compensate each appellee “for his in-
juries, if any. resulting from the occurrence in question.”
Question No. 18 in each series required the jury to de-
termine the amount of money to compensate each of the
spouses “for the injuries, if any, to her husband result-
ing from the occurrence in question.’”’ The appellants
objected to the submission of these issues on the grounds
that there was no evidence or insufficient evidence to de-
termine the meaning of “occurrence in question” and re-
quested that the instruction be limited to asbestos-related
injuries.
Appellants cite Littleton v. Woods, 538 S.W.2d 800
(Tex.Civ.App.—Texarkana 1976), aff'd, 554 S.W.2d 662
(Tex.1977), in support of their contention. In Littleton,
this Court held that the issue concerning damages for
mental anguish suffered “as a result of the occurrence
in question’? was defective because it did not limit the
jury to awarding damages for mental anguish caused by
acts that the defendant produced or proximately caused.
Littleton, 538 S.W.2d at 801-02. However, the Littleton
case involved more than one theory of recovery.
The only theory of recovery in the present case was
for damages resulting from appellants’ failure to warn
of dangers associated with exposure to asbestos. The
charge in its entirety reflects this theory by requiring a
finding of asbestos-related injury resulting from the fail-
ure to warn. Question No. 1 of the jury charge for each
appellee asked, “Do you find that the [appellee] has
sustained an asbestos-related injury?” The charge con-
tinues in Question No. 2 inquiring whether the appellee
was exposed to asbestos-containing products to such an
extent that the exposure was a producing cause of the
injury. Question No. 5 inquired whether the appellants
failed to adequately and timely warn of the dangers of
2la
injury. Questions No. 6 and 7 inquired if the failure
to warn rendered the asbestos-containing products unrea-
sonably dangerous as marketed and if such failure was
a producing cause of the injuries and damages in ques-
tion. Finally, Questions No. 17 and 18 asked what sum
of money would fairly and reasonably compensate the
appellee and his spouse for his injuries, if any, result-
ing from the occurrence in question.
Because the liability issues were submitted with the
term injury and focused the jury’s attention on asbestos-
related injuries resulting from the failure to warn of the
dangers of asbestos, the appellants’ requested instruction
to limit Questions No. 17 and 18 to asbestos-related in-
juries was not necessary. See 3 STATE BAR OF TEXAS,
TEXAS PATTERN JuRY CHARGES PJC 80.07 comment
(1990). The wording of Questions No. 17 and 18 con-
tains the appropriate damages issue generally used in
personal injury cases. See 3 STATE BAR OF TEXAS, TEXAS
PaTrren Jury CHarces PJC 80.02B, 80.03B (1990).
The language used in Questions Nos. 17 and 18 properly
limited appellees’ damages to asbestos-related injuries
where the only recovery sought was for damages resulting
from appellants’ failure to warn of the dangers of as-
bestos. These points of error are overruled.
Appellants duly objected to the inclusion of “loss of
canacity for enjoyment of life’ in the charge and on
apneal complain of the trial eourt’s inclusion of this lan-
suage. The amount awarded for “loss of capacity for en-
joyment of life’ was lumped together with pain and
mental anguish.
The states divide on the issue of allowing loss of enjoy-
ment of life in tort cases into those states that hold that
loss of enjoyment of life is a factor in determining dam-
ages in general and those states that take the view that
loss of enjoyment of life is a proper, separate element of
damages. See Annot., 34 A.L.R.4th 293 (1984). Texas
courts have taken the position that loss of enjoyment of
22a
life may not be claimed as a separate element of dam-
ages, but may be treated as a factor in determining dam-
ages in general or for pain and suffering. Missouri
Pacific R. Co. v. Lane, 720 S.W.2d 830 (Tex.App.—
Texarkana 1986, no writ).
In the charge, the jury was asked to assess damages
for ‘“‘nain, mental anguish, and loss of capacity for en-
joyment of life” ‘emphasis acded'. Appellants complain
that the use of the conjunction and instructed the jury
to award damages for the loss of enjoyment of life in
addition to damages for pain and mental anguish. Appel-
lees argue that this combined submission constitutes a
single element.
In the case of Ducas v. Kansas City Southern Railway
Line, 473 F.2d 821 (5th Cir.1973), the court was faced
with a similar charge, and the court ruled that using the
word and made it appear to the jury that “loss of enjoy-
ment of life’ and “loss of vitality” were separate and
independent, rather than includable items of damages.
And at the very least, they were couched in terms that
would have confused the jury as to the correct standards.
The court reversed the case, saving that the defendant
was entitled to have a jury measure those damages ac-
cording to a clear, legally correct. plainly enunciated
standard. A significant difference in that case was the
inclusion of the term “loss of vitality.” and an instruc-
tion to the jury warning them not to duplicate the
“plaintiff’s physical imnairment and loss of vitality.”
The court in the Dugas case did not instruct the jury
concerning the nossible duplication of loss of enjoyment
of life with other elements. The iury was therefore left
to infer that since it was instructed concerning one and
not the other, that it was free to allow double recovery
in regard to “loss of enjoyment of life.’’
In an early Texas case, the court held that evidence
showing a loss of capacity for “enjoyment of pleasures of
23a
life’ was too vague to furnish information on damages.
Locke v. International and GNR Co., 25 Tex.Civ.App.
145, 60 S.W. 314 (1901, no writ). Later Texas cases
recognized this loss to be a factor in determining dam-
ages. Lane, 720 S.W.2d 830. The evidence allowed to
show pain and suffering generally includes a showing of
a diminishment of enjoyment of life and the loss of being
able to function as a whole person. This element is not
to be considered as a separate item because of the pos-
sibility of double compensation. Although the better
wording would have specified its inclusion as a part of
pain and mental anguish, the lumping of this factor to-
gether with pain and mental anguish was not likely to
cause the jury to reach a double compensation for this
element. These points of error are overruled.
Appellants next complain that the trial court erred in
its instruction in regard to possible future cancer in the
damage question for Charles Strong.? Appellants argue
that the cancer instruction allowed the jury to compen-
sate for future cancer without regard to its cause and
that the instruction is a comment on the weight of the
evidence. The instruction must be read in context. The
initial Question No. 17 to which it relates is as follows:
From a preponderance of the evidence what sum
of money, if any, if paid now in cash, do you find
will fairly and reasonably compensate the plaintiff
2 The trial court gave the following instruction concerning the
probability of cancer in the future: “In answering this question
as to each future element of damage I instruct you that you may
consider and compensate for in your answer cancer or mesothelioma
which you find from a preponderance of the evidence he will suffer
in the future in reasonable probability. If you do not find that he
will in reasonable probability suffer a cancer or mesothelioma, you
may consider and compensate the plaintiff for any mental anguish
he has suffered or will suffer in the future from his reasonable fear,
if any, of cancer and mesothelioma he might suffer from his asbestos
exposure, distinct from any fear of cancer which all persons might
have.”
2da
Charles Strong, for his injuries, if any, resulting
from the occurrence in question.
(Emphasis added.) This language clearly ties everything
under it to the occurrence in question. The last portion
of the cancer instruction itself limits the mental anguish
to that which he has suffered or will suffer from his
reasonable fear of ‘‘cancer or mesothelioma he might suf-
fer from his asbestos exposure.’’ The only cancer evidence
related to Strong concerned his exposure to asbestos and
the only recovery sought and argued before the jury
from the voir dire to the final summation was for
asbestos-related injuries. When viewed in the context of
the trial and the charge, the instruction is properly lim-
ited and does not constitute a comment on the weight of
the evidence. These points of error are overruled.
ADMISSIBILITY OF POSTER
The next contention is whether the trial court properly
admitted a color poster prepared by the Oil, Chemical and
Atomic Workers International Union. Appellants objected
to the poster on the ground that it was inadmissible
hearsay. The large color poster declares the hazards of
asbestos and states that it is causing an “epidemic on
the same scale as the bubonic plague which killed millions
during the Middle Ages.” It further states that even a
few days of exposure to asbestos can be dangerous.
- The face of the poster shows that it was written by
Dr. Molly Coye. Dr. Joseph Wagner testified that Coye
prepared the poster as a consultant to the Oil, Chemical
and Atomic Workers International Union, which was then
under contract with the United States Department of
Labor. Coye did not testify at the trial. Appellees sug-
gest on appeal that the exhibit was admissible under
TEX.R.CIV.Evip. 803(8). Rule 803(8) allows admission
of:
Records, reports, statements, or data compilations, in
any form, of public offices or agencies setting forth
ee ee eR ee a ae
25a
(A) the activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law
as to which matters there was a duty to report, or
(C) factual findings resulting from an investigation
made pursuant to authority granted by law; unless
the sources of information or other circumstances
indicate lack of trustworthiness.
Appellees contend that the poster is admissible under
this rule because the poster is on file with Occupational
Safety and Health Administration (OSHA) and has been
adopted by the United States Department of Labor. Rule
803(8), however, is applicable only when the exhibit is
prepared by public officials or employees under their
supervision in the performance of their official duties.
Railroad Commission of Texas v. Rio Grande Valley Gas
Co., 683 S.W.2d 783, 788 (Tex.App.—Austin 1984, no
writ). Documents prepared by private individuals and
filed with a governmental agency are not official docu-
ments as contemplated by Rule 803/8). /d. Even if Dr.
Coye was under contract with the United States Depart-
ment of Labor, she was not shown to be a public official
or under the supervision of a public official. Furthermore,
the poster does not meet any of the requirements under
Rule 803(8) because it does not purport to set forth ac-
tivities of OSHA or matters observed pursuant to a duty
imposed by law or factual findings resulting from an
investigation authorized by law. Thus, the poster does
not fall within this exception to the hearsay rule.
Appellees further contend that appellants did not prop-
erly object at trial to admission of the poster because
they did not object to its lack of authentication. How-
ever, the party seeking to have hearsay declarations ad-
mitted as an exception to the general rule must clearly
show that they are within the exception. Skiliern &
Sons. Inc. v. Rosen, 359 S.W.2d 298 (Tex.1962). Because
the poster was inadmissible hearsay, appellees had the
burden of establishing a reason for introducing the ex-
EE
26a
hibit. Appellees did not suggest any reason for the intro-
duction of the exhibit except for the truth of the matter
stated on the exhibit, and thus, appellants’ objection was
sufficient to preserve error. We conclude that the trial
court erred in admitting the poster into evidence in vio-
lation of TEX.R.CIv.EvID. 802.
We must examine the entire record to determine if the
admission of this exhibit constituted reversible error. In
order for an error to be reversible, we must determine
' that it was reasonably calculated to cause and probably
did cause the rendition of an improper judgment in the
ease. TEX.R.APP.P. 81(b) (1). The main thrust of in-
formaton contained in the poster is that exposure to
asbestos is dangerous. Because this information is basi-
cally repetitive of evidence offered by expert witnesses,
its admission was not reasonably calculated to cause and
probably did not cause the rendition of an improper
judgment. Thus, this admission did not constitute re-
versible error.
DEPOSITION LIMITATIONS
Appellees next contend that the trial court abused its
discretion in admitting written deposition testimony of
witnesses Virgil M. Evans and James Henry Read. Dur-
ing pretrial discovery, based upon a motion by the appel-
lees, the trial court limited appellants’ examination of
Evans and Read to fifty cross-questions for the designated
liaison counsel and five cross-questions each for the re-
maining defendants. At the time the discovery dispute
arose, the case involved eighteen separate defendants
with common interests and defenses. The court appointed
the liaison counsel to speak and act on behalf of the
defendants. Appellees contended that because of the poor
health and age of these witnesses, the court should limit
the cross-examination by the appellants. No limit was
placed on the appellees. These two witnesses testified
concerning appellee Williams’ exposure to the asbestos-
27a
containing products manufactured by the appellants.
Appellants duly objected to the procedure and filed mo-
tions to quash the written depositions. They also objected
to the answers of Evans and Read upon receiving the
deposition transcripts and to the admission of the deposi-
tions into evidence at the trial.
Appellees contended in oral argument that the trial
judge had instructed counsel that if they had additional
problems they could ask for more questions to be sub-
mitted to these witnesses. However, we have found noth-
ing in the record to support this contention. Appellees
further contend that because appellants did not make the
omitted evidence a part of the record, there is no showing
of reversible error. This Court will not require the appel-
lants to have made a bill of exceptions containing evi-
dence that the trial court has prohibited them from
acquiring, but appellants could have submitted additional
cross-questions to the trial court to demonstrate that they
were deprived of getting needed answers.
Appellees correctly point out that mandamus is avail-
able for wrongful denial of discovery by the trial court,
and the appellants did not seek that remedy. However,
the failure to file a writ of mandamus does not prejudice
or waive appellants’ right to complain on appeal. Pope v.
Stephenson, 787 S.W.2d 953, 954 (Tex.1990).
The failure to allow a party meaningful cross-
examination of witnesses is harmful, reversible error.
Fillion v. Osborne, 585 S.W.2d 842, 845 (Tex.Civ.App.—
Houston [1st Dist.] 1979, no writ). The appellants cite
Velasco v. Haberman, 700 S.W.2d 729 (Tex.App.—San
Antonio 1985, no writ), in which the court found that
the tris] judge’s limitation of inquiry regarding adultery
and marital fault to no more than five questions was an
abuse of discretion. The court found that such a limita-
tion on questions about a relevant issue was an arbitrary
and unreasonable restriction on discovery because there
was no basis for such a limitation. A trial court has
————————————————— - _
28a
broad discretion as to whether deposition shall be oral
or written. Munden v. Chambless, 315 S.W.2d 355 (Tex.
Civ.App.—Dallas 1958, writ ref’d n.r.e.). Rule 166b(5)
of the Texas Rules of Civil Procedure permits the trial
court to enter protective orders in the interest of justice
as necessary to protect the movant from undue burden.
The liaison counse! submitted only thirty-nine cross-
questions, and the only appellant to submit cross-questions
to Evans was Flintkote. None of the appellants offered
any cross-questions to Read. Until the appeilants exhaust
the number of questions allotted to them individually and
through a liaison counsel, they cannot be heard to com-
plain that they were denied the right to ask additional
questions. If the liaison counsel had refused to cooperate
with any other counsel for the appellants, then the addi-
tional cross-questions available through him would not
have counted against that appellant. The record in no
way indicates that there was any complaint about any
lack of cooperation by the liaison counsel. Twelve allotted
questions were not used by the liaison counsel, and except
for Flintkote’s five questions to Evans, the other appe!-
lants did not use their five allotted questions. Therefore,
no harm could have resulted from the trial court’s failure
to allow more questions. There could be no error until
appellants exhausted their allotted questions and were
refused additional questions. These points of error are
overruled.
ADMISSIBILITY OF BUILDING CODES AND
GOVERNMENT SPECIFICATIONS
Appellants contend that the trial court erred in exclud-
ing exhibits of governmental military specifications re-
quiring the use of asbestos in insulation products and in
excluding a portion of Dr. Corwin Hinshaw’s testimony
that many building codes demanded the use of asbestos.*
3 The excluded evidence included the following statement: “Of
course it is used for prevention of fire. I’m sure that many, many
29a
There was no showing that the appellees’ jobs involving
asbestos exposure were related in any way to govern-
mental or military contracts or that building codes that
required the use of asbestos were applicable.
Appellants contend that this evidence should have been
admitted on the exemplary damage issue to show that
they were acting in good faith in the manufacturing and
supplying of asbestos. The balancing of the utility of the
products against their danger does not remove the manu-
facturer and seller’s duty to advise and enlighten the
consumer in the safe use of the product. Even when a
balancing of the product’s utility against its known or
foreseeable danger leads to a conclusion that marketing
of the product is justified, the seller still has a responsi-
bility to inform the user or consumer of the risk of harm,
and failure to give adequate warnings in these circum-
stances renders the product unreasonably dangerous.
Borel, 493 F.2d 1076.
The present case focuses on a lack of adequate warn-
ings. The exemplary damages awarded in this case were
not based upon the companies’ conduct in manufacuring
and distributing asbestos, but, according to the wording
of the jury questions, was based upon the failure to warn
those handling the product of its potential dangers. The
evidence concerning government specifications and build-
ing codes could have been admitted on the state-of-the-art
issues. Its exclusion, however, was not an abuse of dis-
cretion by the trial judge because there was considerable
evidence admitted about the wide-spread use of asbestos,
including testimony that asbestos had over 3,000 indus-
trial uses. These points of error are overruled.
building codes have demanded the use of asbestos in theaters, for
example; theater curtains of asbestos undoubtedly contained or pre-
vented catastrophic fires in theaters. Its’ (sic) use in schools as a
prevention of fires had undoubtedly saved lives.”
30a
STATUTE OF LIMITATIONS
Next, appellants contend that the trial court erred in
denying their motion for directed verdict based upon their
statute of limitations defense against Strong. In review-
ing the denial of a motion for a directed verdict for the
defendant, the question is whether the evidence adduced
at the time the plaintiff rests his case, viewed in the
light most favorable to the plaintiff, raises an issue for
the jury. Vance v. My Apartment Steak House, 677
S.W.2d 480, 483 (Tex.1984).
In tort liability cases, the statute of limitations period
commences when the injured party discovers, or in the
exercise of ordinary care, should have discovered, the in-
jury. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.
1988). Because the injury occurred more than two years
before suit was filed, Strong and Pool were required to
prove facts sufficient to suspend the operation of the stat-
ute of limitations. Willis, 760 S.W.2d at 644; Weaver v.
Witt, 561 S.W.2d 792 (Tex.1977).
According to the evidence, Strong was examined by the
Texas Eastman Company medical department on March
12, 1979. This resulted in a chest x-ray report which
stated ‘‘!f]indings in the chest could be compatible with
changes secondary to asbestosis.” On February 21, 1983,
Texas Eastman gave Strong another physical examina-
‘ion. In connection with this examination, Strong an-
swered a questionnaire in which he checked ‘‘yes” in the
box indicating-that he had a medical condition or prob-
lem that he thought was work-related. Three items are
listed, the second of which was “pulmonary fibrosis ac-
quired from working with asbestos.’”’ When asked whether
he read the questionnaire before signing it, Strong
answered,
Well, we never did read them. He just threw them
on our desks back then and we just signed them and
walked out because we wanted to get out of there
3la
because we knew we wasn’t going to find out any-
thing anyhow.
Appellants assert that when Strong signed the aues-
tionnaire he was charged with knowledge of the report’s
contents. Appellants contend that Strong was charged
with notice as a matter of law, citing Sutton v. Grogan
Supply Co., 477 S.W.2d 930 (Tex.Civ.App.—Texarkana
1972, no writ), and Ussery v. Hollebeke, 391 S.W.2d 497,
503 (Tex.Civ.App.—E! Paso 1965, writ ref’d n.r.e.). In
the Sutton case, this Court held that when a deed is
signed by a party and recorded that party is charged as
a matter of law with constructive notice of its content.
In the Ussery case, the court held that the grantor as a
matter of law is charged with the knowledge of the con-
tents of his deed. These cases stand for the genera! ru'e
that a person signing a contract or a deed cannot later
say that he did not read it when he signed it or did no*
know what it contained. The present case does not in-
volve 2 deed or contract and such constructive knowledze
will not be charzed against the signer as a matter of ‘aw.
trong testified that he was never told by anyone at
Texas Eastman that he had asbestosis. No evidence was
offered showing that anyone at Texas Eastman told this
to Strong. Also, there was no showing that this notation
was on the record at the time Strong signed it. Strong’s
testimony raised the fact issue about whether he knew
or should have known that he had asbestosis. We find
that the evidence at the time the plaintiff rested. when
viewed in a light most favorable to the plaintiff. raised
an issue for the jury. These points of error are over-
ruled.
Appellant Celotex also challeges the jury’s finding on
this issue as being against the great weight and pre-
ponderance of the evidence. In reviewing a great weight
argument, because the burden of proof was on the ap-
pellants, they must show that the finding of the jury
was so contrary to the great weight and preponderance
32a
of the evidence as to be manifestly unjust. Calvert, “No
Evidence” and “Insufficient Evidence’ Points of Error,
38 Tex.L.REv. 361 (1960). In reviewing these points, we
will examine all of the evidence in the record that is
relevant to the fact being challenged. Plas-Tex, Inc. v.
U.S. Steel Corp., 772 S.W.2d 442 (Tex.1989); In re
King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
As previously discussed, we have examined the evidence
by these standards and find that the finding of the jury
was not against the great weight and preponderance of
the evidence or manifestly unjust.
Garlock contends that the trial court erred in not
granting both its motion for directed verdict and its mo-
tion for judgment notwithstanding the verdict on the
basis of its statute of limitations defense against Pool.
We have previously set forth the standard for reviewing
a denial of a motion for directed verdict. For appellate
purposes, a complaint that the trial court erred in re-
fusing to grant a judgment notwithstanding the verdict,
raises only a no evidence point for appellate review.
Sherman v. First Nat’l Bank, 760 S.W.2d 240, 241-42
‘Tex.1988). Garlock cites the following testimony by
Pool to show that Pool was aware of his problem two
and a half vears before the institution of suit:
Q aAnd in fact, I think you said earlier in your
testimony vou had had breathing problems probably
even back into the 70’s before then.
A Yes, sir.
Q And by 1984 you were still having those prob-
lems and you thought it might be due to asbestos
exposure, didn’t you?
A I was having the problem and I was wanting
to find out what it was due to.
Q Okay. And that’s why you went to see Mr.
Houston?
A Well, yes, sir, that’s why I went to see Mr.
Houston.
33a
Q All right. And then Mr. Houston is the one
that sent you down to see Dr. Comstock. We've al-
ready talked about that, haven’t we?
A Yes, sir.
Q And, of course, you were seen at Dr. Com-
stock’s office in May of 1984; is that correct?
A I don’t remember—i don’t remember the date,
but I agree with it.
Q [Reading from Dr. Mann’s records] “No hos-
pitalization or been to doctor in over a year. Worked
at Texas Eastman for 27 years. Is having a diffi-
cult time breathing, states that he has not been able
to work much lately due to chest problems. Has
been bothered for a long time. Dr. Morris had him
in hospital a couple of years ago, told him it was
fat. He is thinking he has asbestosis.”
A Dr. Morris said?
Q No, that’s what Dr. Mann says you were
thinking. March 13, 1984.
A I can’t go along with that. How could I have
diagnosed myself? That’s not true. That’s untrue.
When asked if he had talked to people at Texas East-
man about his conversation with Dr. Mann, Pool an-
swered that he believed that he did. The record then
reflects the following questions and answers:
Q [Reading from Pool’s employment record |
“States Dr. Mann told him that the reports from
Houston said his problem was asbestos related.” Is
that correct?
A I worked in asbestos. I don’t know about the
other part now.
Q All right. And you told the people at Texas
Eastman on 8-16-84 that Dr. Mann told you that
the reports from Houston said your problem was as-
bestos related?
A Well, I can’t say for sure about that.
34a
Q You don’t dispute that though; that’s in vour
records.
A I dispute that. I don’t know.
Limitations begin to run from the date when the plain-
tiff has knowledge of facts, or from the date, in exercise
of ordinary care and diligence, he should have discov-
ered the facts. Hays v. Hall, 488 S.W.2d 412, 414 (Tex.
1972). Pool steadfastly denied throughout his testimony
that he had ever received any report or oral statement
from Texas Eastman or from any doctor during the time
period prior to two years before filing suit that he had
asbestosis. When viewed in the light most favorable to
the plaintiff, there was evidence creating a fact issue as
to whether Pool knew or should have known about his
injury. The trial judge properly denied the motions for
an instructed verdict and for a judgment notwithstand-
ing the verdict.
POOL’S FUTURE MEDICAL EXPENSES
Next. appellants contend that there was no evidence
or insufficient evidence to support the jury’s award of
$100,000 to Pool for future medical expenses.‘ In re-
viewing no evidence points, the Court considers only the
evidence tending to support the finding, viewing it in the
light most favorable to the finding, giving effect to all
reasonable inferences therefrom, and disregarding al]
contrary and conflicting evidence. Glover v. Texas Gen-
eral Indemnity Co., 619 S.W.2d 400 (Tex.1981). Insuf-
ficient evidence points require that we consider and
weigh all the evidence. Jn re King’s Estate, 244 S.W.2d
660.
Recovery for future medical expenses requires a show-
ing that there is a reasonable probability that such medi-
cal expenses will be incurred in the future. Fisher v.
* Celotex has only an insufficiency point of error. Owens-Illinois
has both a no evidence and an insufficient evidence point. Other
appellants adopted these points of error.
35a
Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522
(1950). The jury question was worded as follows: “Rea-
sonable and necessary Future Medical Expenses which
you find that in Reasonable Probability he |Pool] will
sustain in the Future” (emphasis added).
Likelihood and probability are synonymous. Robinson
v. Argonaut Insurance Co., 534 S.W.2d 953, 958 (Tex.
Civ.App.—Fort Worth 1976, writ ref’d n.r.e.). The word
probable conveys a meaning of more likely than not. See
Parker v. Employers Mutual Liability Insurance Co. of
Wis., 440 S.W.2d 43, 47 (Tex.1969). Quantifying prob-
ability, it means a more than fifty percent chance. See
Fidelity & Guaranty Ins. Underwriters v. Gary Douglas
Electric, 48 Ohio App.2d 319, 357 N.E.2d 388, 392
(1974).
Dr. J.D. Britton was the only witness who testified
about future medical expenses. He testified that Pool had
minimal evidence of an asbestos-related disease, but this
was not enough for a diagnosis of asbestosis. He testified
that he had found a pleural thickening and that in his
opinion Pool had an asbestos-related pleural disease.
In his prognosis for Pool, Dr. Britton testified that he
expected Pool to progress but to get worse with time. He
further testified that he had informed Pool that he had
a high risk of lung cancer and other asbestos cancers
because of his heavy exposure to asbestos products. Dr.
Britton also testified that for a worker who had never
smoked, the amount of asbestos exposure of these workers
had increased their risk of lung cancer to five times the
average member of the public.
The only specific evidence about Pool’s future medical
expenses came from Dr. Britton:
Q Doctor, with reference to Mr. Pool’s future on
medical expenses, in reasonable probability what does
the future hold for him?
A My opinion is that it’s the same for Mr.
Sledge and Mr. Strong.
36a
Q Isheat risk of cancer?
A Yes, sir.
Q Is he at risk of mesothelioma?
A Yes, sir.
Appellants contend that the evidence is insufficient to
establish probability on the basis of the following:
Q And on Mr. Pool you don’t have a clear diag-
nosis of pulmonary asbestosis yet, but he has a
pleural disease?
A Yes, sir.
Q Now, in reasonable probability a person who
has a diagnosis of pulmonary asbestosis, as does Mr.
Sledge and Mr. Strong, do they have a more than
50 percent chance of developing cancer from asbestos?
A Yes, sir, they do.
Q Is that recognized in the medical authority and
recognized by you as a doctor?
A Yes, sir.
Q And is Mr. Pool’s risk of the cancer, is it
somewhat less but still has the risk?
A That’s, that’s correct.
Dr. Britton’s previous testimony concerning Sledge’s
medical expenses were as follows:
Q Looking at the future, coming to future medi-
cal expenses again, and I might remind you again
that in reasonable probability is what we have to
deal with, what are the probabilities of his (Sledge)
future with reference to medical expenses?
A Again a worst case scenario, development of
lung cancer, mesothelioma, continuing heart disease,
as a result of his asbestos problems, it could easily
exceed $100,000 easily.
Q And then of course in the absence of cancer,
that can go on down to less?
A That’s correct.
37a
Dr. Britton further testified that Pool’s risk of lung
cancer was going down day-by-day and year-by-year be-
cause he had quit smoking. The doctor also testified as
follows about the probability of Pool’s getting cancer:
Q Doctor, on cancer risks, just a couple of ques-
tions to see what we can agree on. Men that have
been exposed to asbestos occupationally but do not
have asbestosis inside the lungs, you’d agree that
there’s not a fifty percent risk for that type of
individual, such as Mr. Pool?
A Someone who has asbestosis?
@ No. Someone who does not have asbestosis
even though he’s been occupationally exposed, he
doesn’t have a fifty percent or greater risk of lung
cancer, does he?
A Hehasa less than fifty percent.
Q Okay. And even if that person has the pleural
changes, you’re not going to pull him over this fifty
percent category?
A No.
The term reasonable probability is determined by a con-
sideration of the substance of the testimony of the expert
witness and does not turn on semantics or on the use by
the witness of any particular term or phrase. /nsurance
Co. of North America v. Myers, 411 S.W.2d 710 (Tex.
1966). However, viewing the record as a whole, we find
that the only testimony concerning Pool’s future medical
expenses came from Dr. Britton. A careful examination
of his testimony shows that he based his testimony of
Sledge’s future medical expenses on a worst-case scenario
in which Sledge would develop lung cancer, mesothelioma
and heart disease. Thus, his testimony shows what Pool’s
medical expenses would be if he developed lung cancer, but
in other testimony he limits the possibility that Pool will
get cancer to less than a fifty percent chance. This spe-
cific testimony quantitating his general statement amounts
to a likelihood that Pool will not get cancer. The evidence
38a
is not sufficient to establish that Pool’s reasonable and
necessary future medica] expenses in reasonable proba-
bility will be $190,000.
No evidence was offered as to what Pool’s future medi-
cal expenses would be for the absestos-related pleural
disease which he was diagonsed as having. Pool contends
that Dr. Britton’s testimony [while talking about Strong]
that “in the absence of cancer, that [the well over
$100,000] can go on down to less” is sufficient evidence to
support the award. While specificity is not required, this
vague reference is not sufficient to support a $100,000
medical award. While we find this constitutes some evi-
dence, we sustain appellants’ point of error that this evi-
dence is insufficient.
THE AWARD TO OLLIE FREEMAN
In the next point of error. appellant Garlock contends
that the trial court abused its discretion by permitting
Donna Freeman and Ollie Freeman to file answers to its
requests for admissions. Specifically, Garlock asserts that
Donna Freeman and Ollie Freeman ‘‘admitted themselves
out of court” by failing to timely respond to its request
for admissions and by failing to file a motion to extend
time for filing a response within the thirty-day period.
TEXx.R.Civ.P. 169.
After the expiration of thirty days from the date of
service. and in the absence of a motion to extend time for
filing a response, the admissions are automatically deemed
admitted and the trial court has no discretion to deem, or
refuse to deem, the admissions admitted. Curry v. Clayton,
715 S.W.2d 77, 79 (Tex.App.—Dallas 1986, no writ) ;
TEX.R.Civ.P. 169. The trial court has broad discretion to
permit or deny the withdrawal of deemed admissions when
the nonanswering party presents sufficient evidence to
establish gocd cause for his failure to make timely
answers to the requested admissions. Boone v. Texas
39a
Employers’ Ins. Ass’n, 790 S.W.2d 688, 688 (Tex.App.—
Tyler 1990, no writ). However, the court also must find
that the withdrawals can be ordered without causing undue
prejudice to the party relying on the admissions and that
the presentation of the merits of the action will be sub-
served by the withdrawal. Boone, 790 S.W.2d at 688. The
trial court’s ruling on the withdrawal will be set aside
only upon a clear showing of abuse. Employers Ins. of
Wausau v. Halton, 792 S.W.2d 462, 464 (Tex.App.—
Dallas 1990, writ denied). An abuse of discretion occurs
when the court acts without reference to guiding rules or
principles or acts arbitrarily or unreasonably, See Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 288, 241 (Tex.
1985).
In the present case, Garlock filed a request for admis-
sions on August 14, 1989, for plaintiffs Reuben S. Pool,
Thomas R. Siedge, Charles W. Strong, Bobbie A. Free-
man, Donna G. Freeman and Ollie Freeman. On August
18, 1989, Pool. Sledge, Strong, and Bobbie Freeman filed
their responses. Counsel contends, however, that due to a
clerical error, Donna Freeman and Ollie Freeman were
omitted in the response. On September 21, 1989, eight
days after the thirty-day reply period had expired, Donna
Freeman and Ollie Freeman filed a motion to answer Gar-
lock’s request for admissions, together with their responses,
stating that they adopted Bobbie Freeman’s answers.
During the pretrial hearing, the trial court granted their
motion to answer.
Garlock argues that a clerical error is insufficient to
constitute good cause for failing to file answers to its
request for admissions. However, in Birdo v. Holbrook,
775 S.W.2d 411. 413 (Tex.App.—Fort Worth 1989, writ
denied), the court held that it was not an abuse of discre-
tion to allow counsel additional time to respond to request
for admissions when, due to a clerical error, counsel
answered “admit” instead of “deny.” Good cause can be
shown even though a party may have been negligent, if
40a
his negligence does not rise to the level of conscious
indifference. Halton, 792 S.W.2d at 466.
The record does not indicate that counsel in the present
case consciously disregarded his obligation to timely file
its answers to the requests. Counsel filed responses for
plaintiffs Pool, Sledge, Strong, and Bobbie Freeman four
days after Garlock filed its request for admissions and
filed answers for Donna Freeman and Ollie Freeman eight
days after the thirty days had expired. This suggests that
he was not attempting to avoid discovery. Furthermore,
there was no showing that Garlock was unduly prejudiced
by the withdrawal of the deemed admissions. We conclude
that the trial court did not abuse its discretion by with-
drawing the deemed admissions against Donna Freeman
and Ollie Freeman. This point of error is overruled.
Appellants next contend that the trial court erred in
rendering a judgment in favor of Ollie Freeman because
there was no evidence about any person named Ollie Free-
man and alternatively, the evidence was insufficient to
support the judgment for Ollie Freeman. We will apply
the standard for reviewing no evidence points and in-
sufficiency points as previously stated.
Ollie Freeman brought this suit as the surviving mother
of Donald Freeman. The voir dire, the opening state-
ments, and the summary of the pleadings and summation
identified Ollie Freeman as the mother of Donald Free-
man. At trial, Bobbie Freeman. Donald’s widow, testified
that Donald took care of his eighty-eight-year-old mother.
Bobbie stated that Donald would perform various errands
for his mother, such as taking her to the doctor and doing
repairs for her.
In an action by a parent for the death of an adult child,
the mother can recover pecuniary benefits, which include
such things as labor, services, advice, and counsel, as well
as attention in ministering to the wants and needs of the
parent. P.T. & E. Co. v. Beasley, 698 S.W.2d 190 (Tex.
4la
App.—Beaumont 1985, writ ref’d n.r.e.). Although Bob-
bie, in her testimony, did not identify Donald’s mother by
name, the jury could determine her identity in the context
of the trial. The better procedure would have been to
identify her by her proper name in the testimony; how-
ever. the failure to do so is not fatal. We find that there
is sufficient evidence for an award to Donald Freeman’s
mother, and based upon her status in the proceedings, the
jury could properly identify Ollie Freeman as that
person. The points of error are overruled.
THE AWARD TO THE WILLIAMS CHILDREN
Next, appellants contend that there was no evidence
and, alternatively, insufficient evidence to support the
jury’s award of $25,000 damages for pecuniary loss and
$25,000 damages for termination of parent/child relation-
ship to the Williams children. We have previously dis-
cussed the applicable standards of review for addressing
these points.
The jury was instructed to consider three elements of
damages and make a specific finding on each: (a) pecuni-
ary loss, (b) termination of the parent/child relationship,
and (c) mental anguish, past and future, suffered because
of the death of their father. No challenge is made to the
$50,000 awarded for mental anguish.
The jury also was instructed to “{c]onsider the care,
maintenance, support, services, education, advice, counsel,
and reasonable-contributions of a pecuniary value that
(the Williams children] would, in reasonable probability,
have received from George Williams, if he had lived.”
This broad instruction included not only monetary loss, but
it asked the jury to value other benefits that the children
received from their father.
The instruction regarding the termination of the
parent/child relationship directed the jury to “[{cjonsider
the love, support, companionship, and society that [the
42a
Williams children] would, in reasonable probability, have
received from George Williams, if he had lived.” In deter-
mining wrongful death awards, the Texas Supreme Court
stated in Moore v. Lillebo, 722 S.W.2d 683 (Tex.1986),
that factors to be considered could include (1) the rela-
tionship between the parent and child; (2) the living
arrangements of the parties; (3) any absence of the de-
ceased from the beneficiary for extended periods; (4) the
harmony of the family relationship; and (5) common
interests and activities.
Only one child, a son, testified about the relationship
between the father and the seven children. His testimony
was general and included that his father “pushed the
children hard” because he wanted them to excel, that he
was a good role model, that he was supportive of the
children, and that he was always available to help them
with their problems. Williams’ wife testified that he was
a good family man and was good with the children. Al-
though there are no specifics as to the living arrangements,
harmony of the family relationship, or interests or activi-
ties, there was no negative testimony in this regard.
Evidence of a father who is a good role modei and who
is always around to help his children. with no evidence
to the contrary, is sufficient to support the award of
damages. The points of error are overruled.
THE OWENS-ILLINOIS PERCENTAGE OF
RESPONSIBILITY
In the next point of error, appellant Owens-Illinois
challenges the sufficiency of the evidence for rendition of a
judgment against it, based upon the jury’s finding that it
caused twenty-five percent of the asbestos-related injuries
to Sledge and Pool. Owens-Illinois contends that this find-
ing is against the great weight and preponderance of the
evidence. We have previously set forth the standard of
review for addressing this point. The burden was on
Owens-Illinois to prove allocation of causation for its
43a
contribution. Duncan v. Cessna Aircraft Co., 665 S.W.2d
414 (Tex.1984).
Owens-Illinois manufactured an insulation product called
Kaylo, which was a hydrous calcium silicate that was
roughly fifteen percent asbestos. It was used in molded
pipe covering form, as well as in a block. Owens-Illinois
sold its insulation division to Owens-Corning Fiberglas
Corporation effective Aprii 30, 1958. Reuben Pool did not
begin work at the Texas Eastman plant until March 18,
1957. Therefore, he had only been employed for a year
and forty-two days when Owens-Illinois sold their unit
that manufactured Kaylo. Sledge did not begin working
for Texas Eastman until 1958 and only overlapped the
period of time that Owens-Illinois made and sold Kaylo
by two months.
Owens-Illinois thus takes the position that it caused less
than one-hundredth of one percent of Sledge’s asbestos-
related injury. It cites evidence showing that Sledge was
exposed to more than 140 other products that contained
asbestos. In the case of Pool, Owens-Illinois cites similar
factors and calculates that it should be responsible for less
than three one-hundredths of one percent of Pool’s as-
bestos-related injuries. Pool worked with 147 products
made by sixteen settling defendants.
There was evidence that Kaylo gave off less than
5,000,000 particles of asbestos per cubic foot (calculated
on the basis of forty hours’ exposure), but there were no
specific figures by which Kaylo can be compared to the
the products made by other companies as to how much
asbestos the other products contained and how much was
given off by each product. There was no medical evi-
cence offered to assist in establishing the percentage of
responsibility.
The use and exposure to the Owens-Illinois product can-
not logically be said to have terminated on the date that
the company quit manufacturing this product. Nothing in
44a
the evidence shows how much of the Owens-Illinois product
Texas Eastman may have had on hand for later use at
that time. Also, much of the exposure to this type of
product occurred when it was torn out and replaced. The
tearing out and replacement may have been years after
the installation of this product. Without these dates, the
specific date that the company sold its manufacturing
operation does not establish the date that the exposure to
the product ended.
Charles Strong testified that large quantities of Kaylo
were used at the Texas Eastman plant.’ Dr. J.D. Britton
testified that a short-term exposure to asbestos could be
damaging.® The argument by Owens-Illinois is flawed in
three respects:
5 Strong's specific testimony was as follows:
Q Was Kaylo one of the big products—a huge amount of prod-
ucts or small amount?
A It was—we used just worlds of Kaylo insulation.
Q Did you use a little or a lot of that Owens-Illinois Kaylo?
A We used a lot.
®’ Dr. Britton testified as follows:
Well, it’s important to recognize that asbestosis is something
—is a process that doesn’t stop when people are not around
asbestos fibers; in fact, it continues. Kind of a strange never
ending process, it goes on and on and on and on, even though
a person may_not be around asbestos any more, and this is
characteristic. ... A lot of people do not remember that they
did construction work or that they worked in the ship yards
or they were a welder or things along those lines, because some-
body may have not had much of an exposure at either their
work place or at home that happened 40 years ago. People forget
about a job they may have had—they may have worked briefly
for two or three days, and so I will really stress this point and
talk to people and make sure that the history is complete.
Q In connection with that, we’ve already seen some medical
literature or scientific literature on it where they mentioned
that just a small amount or small period of exposure years
iain lial aaa
45a
(1) their responsibility cannot be based upon exposure
time alone; |
(2) the time when Owens-Illinois stopped manufactur-
ing Kaylo is not necessarily the same time that Pool and
Sledge stopped being exposed to their product; and
(3) there is no showing how the amount of asbestos
given off by Kaylo compared with the amount given off by
the products of other companies.
The evidence does not offer an evidentiary formula
whereby the fact finder could make an exact mathematical
calculation of the percentage, and asbestos fibers found
in the lungs cannot be traced to a specific product. The
burden, however, was on Owens-Illinois to show the per-
centage of responsibility, and we conclude that the evi-
dence does not establish the percentage figures contended
by Owens-Illinois. The jury’s finding is not against the
great weight and preponderance of the evidence. These
points of error are overruled.
THE CONSTITUTIONALITY OF PUNITIVE
DAMAGES
Appellants next contend that the award of punitive
damages violates the due process clauses of the United
States Constitution and the Texas Constitution, the ex-
cessive fines clause of the Texas Constitution, and the
common law of Texas. Appellants have not sought a remit-
titur to reduce the amount of the punitive damages award.
ago can be important as a disease producer. Do you recognize
that?
A No doubt. Actually, a brief exposure, perhaps one day can
stimulate some degree of process.
Q I guess what you’re telling us then that the—how many
years it’s been since your first exposure and then the total
amount of the exposure both are important?
A That’s correct.
46a
In Pacific Mutual Ins. Co. v. Haslip |sic], 553 So.2d 537
(Ala.1989), af’'d —— U.S. ——, 111 S.Ct. 1032, 113
L.Ed.2d 1 (1991), the United States Supreme Court held
that punitive damage awards do not violate the due proc-
ess provision of the fourteenth amendment when the
award is based on an objective criterion. The Supreme
Court conceded that unlimited jury or judicial discretion
in the fixing of punitive damages may invite extreme
results that are unacceptable under the due process clause.
Id. Therefore, the general concerns of reasonableness and
adequate guidance from the court must be considered in
determining whether punitive damages are unconstitu-
tional. Jd.
In the present case, the trial court’s instruction placed
reasonable constraints on the exercise of the jury’s dis-
cretion by defining exemplary damages as an amount
awarded to set an example to others and as a penalty.
The charge also required the jury to find that appellants’
acts were done “willfully, intentionally, or with a callous
or reckless and heedless disregard and indifference to the
rights, welfare, or safety of the persons affected by it’’
before awarding exemplary damages to the appellees. We
conciude that the punitive damage award was based on
an objective criterion, and thus, the due process provision
of the fourteenth amendment was not violated.
The United States Supreme Court held in Browning-
Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109
S.Ct. 2909, 106 L.Ed.2d 219 (1989), that the excessive
fines clause of the eighth amendment does not apply to
awards of punitive damages in civil cases between private
parties. The Texas Supreme Court has held that a civil
penalty is excessive, and thus unconstitutional, when it
becomes so manifestly violative of the constitutional pro-
hibition against excessive fines as to shock the sense of
mankind. Pennington v. Singleton, 606 S.W.2d 682, 690
(Tex.1980).
47a
In the Pennington case, the Texas Supreme Court con-
sidered whether punitive damages violated Article 1, § 13
(excessive fines) of the Texas Constitution and the four-
teenth amendment (due process) of the United States
Constitution. The court held that whether such damages
are excessive is determined by whether it was fixed with
reference to the object it is to accomplish according to the
seriousness of the wrong and the defendant’s culpability.
This constitutional test is in conformity with the factors
for determining if a punitive damages award is excessive,
set forth by the court in Alamo National Bank v. Kraus,
616 S.W.2d 908 (Tex.1981). Pursuant to the Alamo Na-
tional Bank decision, the tral court must consider (1) the
nature of the wrong, (2) the character of the conduct
involved, (3) the degree of culpability of the wrongdoer,
(4) the situation and sensibilities of the parties, and (5)
the extent to which the defendant’s conduct offends the
public’s sense of justice and propriety.
Appellant Owens-Illinois argues that the award of puni-
tive damages punishes today’s shareholders, management
and employees for “the alleged sins of management in
place forty to fifty years ago.” The law recognizes Owens-
Illinois as a corporate entity, and as such it must be liable
for its damages. Its liability cannot be diminished or re-
moved each time there is a change in management or
employees or stock is sold.
Owens-Illinois contends that it is now litigating more
than 70,000 asbestos claims and that it left the asbestos-
containing insulation business more than thirty years ago.
It points out that the Fifth Circuit stated, “the scope of
this mass litigation is without precedent and practically
*The Corpus Christi Court of Appeals recently held in Celotex
Corp. v. Tate that in the absence of any state action, the excessive
fines provision of the Texas Constitution does not apply to an
award of common law punitive damages. Celoter Corp. v. Tate,
797 S.W.2d 197, 208 (Tex. App.—Corpus Christi 1990, no writ).
48a
without dimension.” Jackson v. Johns-Manville Sales
Corp., 727 F.2d 506, 524-25 (5th Cir. 1984), rehearing
en banc, 750 F.2d 13814 (1985), cert. denied, 478 USS.
1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). The evi-
dence, however, also indicates that a unprecedented num-
ber of workers will die from asbestos-related cancer.
The wrongful conduct was a failure to warn about the
use of a product which could result in serious illness and
death by suffocation, and we cannot conclude that punitive
damages of an approximately one-to-one ratio with actual
damages are such that would shock the sense of mankind.
In relationship to the actual damages and the nature of
the wrong, as well as the other factors, the record sup-
ports the award of punitive damages.
Fibreboard and Owens-Illinois contend that we must
look at the multiple imposition of punitive damages against
defendants in asbestos cases. They contend that substan-
tive due process prevents multiple imposition of punitive
damages for the same conduct or course of conduct, citing
Racich v. Celotex Corp., 887 F.2d 393 (2d Cir.1989); In
re School Asbestos Litigation, 789 F.2d 996 (8rd Cir.),
cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117
(1986); King v. Armstrong World Industries, Inc., 906
F.2d 1022 (5th Cir.1990). While the courts in these cases
discuss in some detail the problems inherent in allowing
punitive damages in the voluminous asbestos cases, none
of the courts has held that awarding such damages vio-
lates substantive due process.
The thrust of the appellants’ arguments is that repeated
puntive damages awards in numerous cases go beyond pun-
ishment and allow windfalls for the plaintiffs. They also
endanger the rights of future claimants to recover actual
damages. Owens-Illinois contends in its brief that it has
been subjected to punitive damage awards of more than
$4,000,000 for its manufacture and sale of Kaylo insula-
tion products. While we recognize that there are numerous
49a
cases that have been decided and numerous cases are pend-
ing concerning damages claims based upon exposure to
asbestos, this Court cannot dictate policy in a mass tort
context, but can only decide the cases involved in the
present suit. Such broad policy considerations are left to
the Supreme Court of this state and the United States
and to the appropriate legislative bodies.
We find no constitutional violations and no support or
authorities for the appellants’ contention that the punitive
damages award violated the common law. Every state
and federal court that has considered the question of
whether punitive damages are unconstitutional has ruled
that the common-law method for assessing punitive dam-
ages does not in itself violate due process. Pacific Mutual
Ins, Co., 553 So.2d 587 [sic], aff'd US. —, 111
S.Ct. 1032, 113 L.Ed.2d 1. These points of error are
overruled.
GARLOCK’S LIABILITY
In the next point of error, appellant Garlock contends
that there was no evidence or insufficient evidence to show
that the products manufactured by Garlock were defective.
unreasonably dangerous, and contributed to the injuries of
Pool, Strong, Sledge, and Freeman. We shall apply the
standards for reviewing no evidence and insufficient evi-
dence points as previously stated.
Garlock contends that their products are not unreason-
ably dangerous and, therefore, are not defective. Garlock
contends that it had no duty to warn of dangers which
did not exist. Garlock has never manufactured or sold
asbestos insulation. This company manufactures gaskets
and valve packing. some of which contain small amounts
of asbestos in rubber, elastomers, and lubricants. The
evidence shows that these products in their initial appli-
cation release no asbestos particles into the air, but a
small number of particles may be released when it is cut.
The amount of asbestos released is far below the govern-
50a
ment standard. The court held in Gideon, 761 F.2d 1129,
that compliance with government safety standards consti-
tutes strong and substantial evidence that a product is
not defective. The federal courts have used this standard
on the basis that they were applying Texas law, but we
have found no Texas cases, other than diversity cases in
federal court, to so hold. See Lorenz v. Celotex Corp.,
896 F.2d 148 (5th Cir.1990). Under Texas law, a manu-
facturer’s complaince with a government safety standard
does not automatically preclude a finding of liability.
Appellees point to evidence from an article published
in 1931 in a journal called Safety Engineering. The article,
“The Very Least An Employer Should Know About Dust
and Fume Diseases” indicated that exposure to asbestos
in any form is dangerous. They also point to evidence
from the expert witness, Dr. Joseph Wagner, in which he
stated that it was known in the 1920’s that asbestos is a-
disease-causing mineral which causes asbestosis and also
many types of cancer, including lung cancer, pleural
mesothelioma, and perierdial mesothelioma. The evidence
also showed that there is no safe level of asbestos
exposure.
Manufacturers that know or should know of potential
harms to a user because of the nature of their products
are required to give adequate warnings of such dangers.
Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.
1978). When a product contains toxic or dangerous in-
gredients not obvious to the typical user, the manufacturer
has a duty to know the danger and to issue an appropri-
ate warning. Muncy v. Magnolia Chemical Co., 437 S.W.
2d 15 (Tex.Civ.App.—Amarillo 1968, writ ref’d n.r.e.).
Section 402A, comment K of the Restatement of Torts
defines an unavoidably unsafe product as those that are
incapable of being made safe for their ordinary and
intended use according to the scientific knowledge at that
time, and the failure to give adequate warnings under
these circumstances renders the product unreasonably
5la
dangerous. Borel, 493 F.2d at 1089; RESTATEMENT (SEC-
OND) OF TorTS $ 402A, comment K (1965). A product,
therefore, can be defective if the design is not sufficiently
safe or if the product does not have adequate instructions
or warnings. Carter v. Massey-Ferguson, Inc., 716 F.2d
344, 346 n.1 (5th Cir.1983). When a product has no
warning, a presumption exists that the plaintiff would
have read and heeded a proper warning had one been
given. Howard v. Faberge, Inc., 679 S.W.2d 644, 650
(Tex.App.—Houston [lst Dist.] 1984, writ ref’d n.r.e.).
The record contains testimony from Charles Strong,
who worked at Texas Eastman, and Charles Flint, the
purchasing agent for Texas Eastman, that Texas East-
man purchased and used Garlock products consisting of
asbestos sheet packing and square-braided asbestos pack-
ing. Strong testified that Garlock products had to be
replaced and when being replaced were dusty. Strong
also testified that when removing the worn-out packing
material, it was necessary to scrape, beat and pull on it.
There was testimony that the asbestos sheet packing had
to be cut to be used and was used in all the buildings in
Texas Eastman. He further testified that every time
the material was cut, dust and fibers were released.
Although there was no expert testimony concerning the
contents of the dust, the jury could infer that the dust
formed from a material containing asbestos would also
contain asbestos.
There was expert testimony that the cumulative ex-
posure to asbestos causes asbestos-related diseases and
that even the inhaling of small amounts of asbestos can
contribute to the disease process. There also was evi-
dence that Garlock failed to warn the appellees of the
dangers of their products and that the appellees’ injuries
were caused by exposure to asbestos. We find that there
was sufficient evidence to support the findings against
Garlock. These points of error are overruled.
52a
FLINTKOTE’S LIABILITY
Next, appellant Flintkote contends that the evidence
was insufficient to support the jury verdict against Flint-
kote. Flintkote challenges the evidence on the basis that
its products did not pose any danger nor did F'intkote
know or have any reason to know of any supposed danger
=in its products. We have previously discussed the appli-
cable standard for review. Flintkote cites the fact that
there was no evidence concerning any danger from liquid
asbestos products that Flintkote manufactured. Flint-
kote states the fact that none of the experts mentioned
Flintkote by name or referred to any liquid products. It
also argues that most of the expert testimony referred
to raw asbestos and asbestos insulation products. The
testimony showed that Flintkote products were used as
adhesives and joint compounds to seal joints and to place
a thermal coat over the pipe insulation. The product
came premixed in a liquid form in five-gallon buckets
or fifty-five-gallon drums and in that form emitted no
dust.
It cannot be presumed that all asbestos-containing
products are unreasonably dangerous or that all com-
panies have a duty to warn of supposed dangers. Hardy
v. Johns-Manville Sales Corp., 681 F.2d 334, 347 (dth
Cir.1982); Migues v. Fibreboard Corp., 662 F.2d 1182,
1188-89 (5th Cir.1981).
Flintkote is correct that there was no expert testimony
specifically stating that the Flintkote products emitted
a dust containing asbestos fibers. There was no dispute
that the Flintkote product was liquid at the time of its
application. Strong testified as follows:
Flintkote made some adhesion compound, they also
made some joint compound, they also made a thermal
coat which we used everyday. ... It was waterproof-
ing cement that we put on elbows, on vessels, after
we had insulated them with regular cement for
53a
weatherproofing. When this stuff dried and you went
back to tear it off is where you got your problem.
You got dust and stuff flying. Anything that dries
in asbestos, it forms a solid substance that when you
start beating it with hammers or stuff like that, you
got dust from it.
Q Was there any way to escape that dust if you
were working with it?
A Oh, no, sir. Not in the areas we had to work
in with it.
(Emphasis added. )
The evidence shows that Flintkote did not warn the
appellees of the dangers of asbestos and that it did
not test its products for the harmful effects of asbestos.
There was sufficient evidence to show that the appellees
inhaled the dried Flintkote product when it became dust
and that the product contained asbestos. The jury had
before it expert testimony showing the dangers of in-
haling asbestos products.
Flintkote specifically argues that the evidence did not
show that George Williams worked with Flintkote prod-
ucts. James Henry Read testified, “I remember the Flint-
kote name but I’m not sure about their product. I’m
just not sure about that one. I know we used some
cements put out by them and some insulation coatings.”
The testimony indicates that Williams worked at Texas
Eastman as an ironworker and insulator, and thus the
jury could have inferred that he was exposed to the same
products as the other appellants working at that job
site. This included the Flintkote products.
Both Garlock and Flintkote contend that if the appellees
suffered from asbestos-related injuries, the causation was
obviously the dust from the crumbling insulation prod-
=
54a
ucts of other companies. However, the record is undis-
puted that their products also emitted a dust after it
became dry and that such dust was inhaled by the workers
when removing their products. The emission of asbestos
dust when removing the dried products was a forseeable
problem. The testimony about how little asbestos the
product gave off in its initial form did not refer to the
emission of dust during the removal of these products.
The points of error are overruled.
PUNITIVE DAMAGES AGAINST GARLOCK,
FLINTHOTE, AND FIBREBOARD
Appellants Garlock, Flintkote, and Fibreboard contend
that there was no evidence or, alternatively, that there
was insufficient evidence to support the jury findings of
punitive damages. Punitive damages are assessed to
punish the mental attitude of the defendant, as opposed
to its conduct. Burk Royalty Co. v. Walls, 616 S.W.2d
911, 920 (Tex.1981). A plaintiff may prove the de-
fendant’s gross negligence by either Showing: (1) that
the defendant had actual subjective knowledge that his
conduct created an extreme degree of risk; or (2) that
under the surrounding circumstances, a reasonable person
would have realized that his conduct created an extreme
degree of risk to the safety of others. Williams v. Steves
Industries, 699 S.W.2d 570 (Tex.1985). It is not neces-
sary to prove a defendant’s subjective state of mind by
direct evidence. Williams, 699 S.W.2d 570. There is
- ample evidence in the record to show that as early as the
1920’s there was a general knowledge among the manu-
facturers in the asbestos industry concerning the dangers
of asbestos. Most of the evidence pertained to asbestos
insulation and raw absestos. Although there was no direct
evidence that Fibreboard was aware of these dangers, the
jury had sufficient evidence under a reasonable person
standard to have inferred that these companies had knowl-
edge of the dangers of asbestos. Fibreboard manufac-
55a
tured an insulation product which inherently produced
a dust with high levels of asbestos. From the surrounding
circumstances, the jury had sufficient evidence to infer
that Fibreboard’s decision not to warn the users of the
dangers of its products was made with conscious indif-
ference to the potential injuries to the users and that
this conduct created an extreme risk.
The evidence indicates that the products made by Gar-
lock produced a very small amount of asbestos fibers, and
at all times the amount of fibers was far below the gov-
ernmental standards (1,000 times safer than the 1972
OSHA regulation and 40 times safer than the current
OSHA regulation). This included the standard adopted
by the State of Texas in 1958. Appellees correctly contend
that Garlock had an affirmative duty, commensurate with
the potential dangers, to test its products before selling
them. Dartez, 765 F.2d 456. Appellees contend that be-
cause Garlock did not test its products until 1983, it
was grossly negligent. The record does show that Gar-
lock conducted a study of its products in 1983; however,
it does not support the appellees’ position that this was
the earliest study made by Garlock. The record further
established that studies of similar products were made
by other entities, which showed that the concentration
of asbestos fibers was extremely low. We find no evi-
‘dence of surrounding circumstanecs that rises to the level
that is required to show that Garlock made a conscious
decision not to warn about the dangers of its products.
Flintkote has not pointed out any evidence that the
levels of asbestos in its products met any standards, but
it contends that as a liquid product it did not emit any
respirable asbestos fibers. As previously discussed, there
is evidence that shows that its product could be inhaled
once it becomes dry and powders into dust. Although
Flintkete was aware that its company manufactured a
product containing asbestos, it admitted that it had never
conducted a study as to the level of asbestos fibers that
56a
might be emitted into the air in the process of removing
this dried product. Its conduct, therefore, could have
been found by the jury to have been one of conscious
indifference to those who worked with the product. Thus,
there was sufficient evidence from the surrounding cir-
cumstances to support the jury’s findings of gross negli-
gence on the part of Fibreboard and Flintkote. This
point of error is overruled as to Fibreboard and F'lint-
kote. Because there was no evidence that rose to the
level of showing a conscious indifference on the part of
Garlock, the point of error is sustained, and the exem-
plary damages awarded against it will be set aside.
FLINTKOTE’S OPENING STATEMENT
Appellant Flintkote next contends that the trial court
erred in refusing to allow it to make an opening state-
ment to the jury at the beginning of its case-in-chief.
The proper limitation of the opening statement is a
matter within the discretion of the trial court, subject to
review only for abuse of discretion. Ranger Insurance Co.
v. Rogers, 530 S.W.2d 162, 170 ‘Tex. Civ.App.—Austin
1975, writ ref’d n.r.e.).
Flintkote contends that the ruling of the trial court
that the appellants could not split their opening state
ment denied it an opportunity to point out to the jury the
difference between its liquid products and the insulation
products of the other defendants while the plaintiffs’ evi-
dence was still fresh in the jury’s mind. Rule 265 of the
Texas Rules of Civil Procedure sets forth. the order in
which a trial is to proceed. Section (a) permits the party
adverse to the plaintiff to make an opening statement
prior to either side introducing any evidence, or a party
may come under section (c) and make an opening state-
ment prior to the introduction of evidence by the adverse
party. The trial court did not rule that the defendants
could not exercise either option, but ruled that they could
not do both by having some defendants speak at the be
57a
ginning of the trial and others later on in the proceeding.
In a trial involving numerous parties, this ruling was
not an abuse of discretion. Furthermore, Flintkote did
not object to the ruling when it was made, and thus did
not preserve the right to complain about the error, if any.
The point of error is overruled.
JURY QUESTIONS ON SETTLING AND
NONSETTLING DEFENDANTS
Appellants next contend that the trial court erred in
submitting two identical sets of jury questions regarding
liability and causation based on the status of the defend-
ants, settling or nonsettling. In the first set of questions,
the nonsettling defendants were referred to as defend-
ants and in the second set of questions, the settling de-
fendants were referred to as companies. Appellants
objected to this double submission and requested that one
set of questions, listing all defendants alphabetically, be
submitted.
The Texas Supreme Court has held that the submission
of multiple issues raising the same factual inquiries,
whether identical in language or merely in form, is erro-
neous. Holmes v. J.C. Penny Co., 382 S.W.2d 472, 473
(Tex.1964). In Holmes, the court was concerned with a
multiple submission of a single theory of recovery by
slightly varying jury questions, all of which raised the
same factual inquiry. In the present case, the same
factual inquiries were submitted against each asbestos
manufacturer only once. Furthermore, the jury was
aware of the identities of the parties to the litigation,
and the separation into two issues reflected those identi-
ties and could not be deemed to imply anything else. In
addition, the settling and nonsettling defendants were
listed together in one issue for the jury’s determination
of each party’s percentage of comparative causation. See
Duncan, 665 S.W.2d at 427, n. 8. The trial court did not
err in separating the issues as to settling and nonsettling
defendants. The points of error are overruled.
58a
In the next points of error, appellants contend that the
jury’s answers to Questions No. 8 and 16 are against the
great weight and preponderance of the evidence. We
have previously discussed the applicable standard of re-
view for addressing this point. In Question No. 16, the
jury apportioned twenty percent of liability to two settl-
ing defendants (Owens-Corning Fiberglas and Baldwin-
Ehret-Hill) which were found in Question No. 8 to have
supplied asbestos-containing products causing appellees’
injuries. Appellants urge that a new trial should be
granted because the jury failed to find any exposure or
liability with respect to sixteen defendants that either
settled with the plaintiffs or were absent from the triai.
A fundamental principle of traditional products lia-
bility law is that the plaintiff must prove that the defend-
ants supplied the product which caused their injury.
Gaulding, 772 S.W.2d at 68. If there is sufficient evi-
dence presented by appellees showing that appellants sup-
plied any of the asbestos to which appellees were exposed,
then appellees have adequately met their burden of proof.
Celotex Corp. v. Tate, 797 S.W.2d 197, 204 (Tex. App.—
Corpus Christi 1990, no writ). When the plaintiff’s in-
juries are not necessarily caused by one defendant’s
products, the burden of proof as to apportionment shifts
to the defendants. Celotex Corp. v. Tate, 797 S.W.2d at
204; RESTATEMENT (SECOND) OF TorTS § 433B(2)
(1965).* If any defendant is held strictly liable, all de-
fendants shall be liable to the plaintiff jointly and sev-
erally for the entire amount, but as among themselves,
each of the defendants is to be held fiable only for its
percentage share in causing the injury. Moore v. Johns-
8 RESTATEMENT (SECOND) OF TorRTS § 433B(2) (1965) states
that:
Where the tortious conduct of two or more actors has com-
bined to bring about harm to the plaintiff, and one or more
of the actors seeks to limit his liability on the ground that the
harm is capable of apportionment amecng them, the burden of
proof as to the apportionment is upon each such actor.
59a
Manville Sales Corp., 781 F.2d 1061, 1063 (5th Cir.
1986) ; Duncan, 665 S.W.2d 414.
In the present case, the evidence reflects that while
working at Texas Eastman appellees were exposed to
asbestos-containing products manufactured by appellants.
Appellee Strong specifically identified using products
manufactured by all of the appellants, as well as Owens-
Corning Fiberglas and Baldwin-Ehret-Hill. Sledge and
Pool also testified to using these products.
The deposition testimony of witnesses Virgil M. Evans
and James Henry Read established identification of the
asbestos-containing products to which Williams was ex-
posed. Evans and Read stated that Williams used prod-
ucts manufactured by al! appellants, except Garlock,
Owens-Corning Fiberglas, Baldwin-Ehret-Hill, and Eagle
Pincher Industries. As to the other manufacturers,
Evans and Read either had conflicting testimony or they
were uncertain whether Williams had used any of the
products.
As stated supra, no evidentiary formula was presented
for the jury to make an exact mathematical calculation
of the percentage of asbestos contained in each manu-
facturer’s products. Appellants had the burden to show
the percentage of causation to be allocated to each manu-
facturer. We conclude that the finding of the jury was
not so against the great weight and preponderance of the
evidence as to be unjust. These points of error are
overruled.
RELEVANCE OF DEPOSITIONS TO FLINTKOTE
AND GARLOCK
Appellants contend that the trial court committed error
by admitting without limiting instruction five depositions
taken in cases in which Flintkote and Garlock were not
parties and which had no relevance to Flintkote and
Garlock.
60a
At trial, Flintkote and Garlock objected to the deposi-
tions on the basis that they were not relevant and were
highly prejudicial because Flintkote and Garlock did not
manufacture insulation products. Flintkote correctly
points out that the deposition of Dr. Kenneth Smith dis-
cusses the dangers known to Johns-Manville; that the
deposition of Dr. Barry Castleman discusses the knowl-
edge of Owens-Illinois regarding the dangers posed by
asbestos dust from their products; that the deposition of
Dr. Thomas Mancuso relates to the dangers of Philip
Carey Insulation products; that the deposition of Dr.
Arthur Mueller is testimony showing that Mueller was
unaware of the dangers explained by Mancuso; and that
the deposition of Dr. Richard Gaze concerns Pittsburgh
Corning’s knowledge of the dangers of asbestos. A" of
these depositions are relevant to show the knowledge in
the industry generally of the dangers of asbestos and are
admissible on that issue.
Garlock asked for a limiting instruction to the effect
that this evidence was not to be considered for any pur-
pose against Garlock at the trial. Flintkote adopted that
motion. The trial judge correctly denied the motion be-
cause the evidence was admissible and relevant to what
scientific knowledge was available to those companies at
that time in regard to the dangers of asbestos. These
points of error are overruled.
Garlock also complains that these depositions were in-
admissible as hearsay because they were taken in a suit
in which Garlock was not a party. The only hearsay
objection made to any of these depositions during the
trial was by the attorney for Celotex, who objected to the
depositions of Dr. Kenneth Smith and Richard Gaze on
the basis of hearsay. The trial court permitted an objec-
tion by any of the attorneys to inure to the benefit of the
other attorneys. However, Garlock has presented no ar-
gument, discussion; or authorities concerning its com-
plaint about the hearsay objection. This point of error
is overruled.
6la
WORDING OF JURY QUESTION ON
PUNITIVE DAMAGES
Next, appellants contend that the trial court erred in
submitting the jury questions relating to the assessment
of punitive damages “for the injuzies of” appellees Pool,
Sledge, and Strong and “for the death of” Freeman and
Williams. They argue that this question permits a double
recovery for compensatory damages by focusing the jury’s
attention on the appellees and their injuries rather than
on the misconduct of the appellants.* Furthermore, they
argue that the question assumes the appellees sustained
injuries for which each company should pay and that this
amounts to an impermissible comment on the weight of
the evidence and assumes the truth of material, contro-
verted facts. See Alvarez v. Missouri-Kansas-Texas Rail-
road Co., 683 S.W.2d 375, 377 (Tex.1984).
Special issues are to be worded so as to avoid assuming
the truth of a material, controverted fact. Alvarez, 683
S.W.2d 375. The charge in the present case did not pred-
icate the damage questions on affirmative findings of li-
ability, but the questions did contain the Savings clause
“Gf any.” The phrase “if any” was used twice in the jury
issue in question, once stating “for his injuries, if any,
.” and again “Answer separately in dollars and cents,
if any,....” The use of this term neutralizes the lan-
guage which the appellates contend constituted a com-
ment by the court on the weight of the evidence. See
Sharpe v. Safway Scaffolds Co. of Houston, 687 S.W.2d
* An example of the question which is the subject of the appel-
lants’ complaint is as follows:
Find from a preponderajice of the evidence what sum of
money, if any, should be assessed against each of such com-
panies as exemplary damages for the injuries of Reuben Pool.
“EXEMPLARY DAMAGES” means an amount that you may
in your discretion award as en example to others and as a
penalty or by way of punishment, in addition to any amount
you may have found as actual damages.
62a
386 (Tex.App.—Houston [14th Dist.] 1985, no writ) ;
Pace v. Gutierrez, 492 S.W.2d 356 (Tex.Civ.App.—
Amarillo 1973, writ ref’d n.r.e.) ; Loughry v. Hodges, 215
S.W.2d 669 (Tex.Civ.App.—Fort Worth 1948, writ ref’d
n.r.e.).
Appellants are correct that the punitive damages are
for the misconduct, Graham v. Roder, 5 Tex. 141 (1849) ;
Interfirst Bank Dallas, N.A. v. Risser, 739 S.W.2d 882
(Tex.App.—Texarkana 1987, no writ), but it is difficult
to believe that the jury was misled. The definition of
exemplary damages instructed the jury that these dam-
ages were to be an example to others and a penalty or a
punishment and that the amount is in addition to actual
damages. Under the terms of this definition, it is difficult
to believe that the jury could base its findings on any-
thing other than the conduct which caused the injuries.
The jury questions on Freeman and Williams follow the
standard format of 3 STATE BAR OF TEXAS, TEXAS PAT-
TERN JURY CHARGES PJC 81.06, 82.03 (1990), which ask
what sum of money should be assessed against the de-
fendant ‘as exemplary damages for the death of
[name]? This language is similar to the language used
in the present case asking for exemplary damages for the
injuries of Pool, Sledge, and Strong. This language does
not focus the jury’s attention on the appellees and their
injuries to such an extent that it led to double recovery.
There is no error. The point of error is overruled.
_THE ADMISSIBILITY OF THE CANTLON LETTER
Appellant Celotex next contends that the trial court
erred in refusing to admit a letter written by John Cant-
lon to Michael Cojohn. The appellees objected to the letter
as being hearsay. The letter was offered for the truth
of the matter stated therein, but Celotex contends that it
falls within exceptions to the hearsay rule because it
was essential to rebut evidence offered by appellees and
because it qualifies as an ancient document. Celotex
63a
points to the fact that a number of letters by Cantlon
were introduced by the appellees in Dr. Mancuso’s depo-
sition testimony. However, no objections were made to
the introduction of these letters. To qualify as an ancient
document under TEX.R.CIV.EvVID. 901(b)(8), the evi-
dence must show that the document is in such condition
as to create no suspicion concerning its authenticity, that
it was in a place where it would likely be if it were au-
thentic, and that it has been in existence twenty years or
more at the time it is offered. If such a predicate is laid,
it is admissible as an exception to the hearsay rule under
TEX.R.CIv.Evip. 803(16). No predicate was laid as to
where this letter had been kept, and therefore, it did not
qualify under the ancient document rule. The point of
error is overruled.
EXCLUSION OF EVIDENCE ABOUT
INSOLVENT DEFENDANTS
In the next point of error, appellant Flintkote contends
that the trial court erred in excluding its offer of evi-
dence regarding Johns-Manville*® and other companies.
Flintkote contends that by this evidence it could have
shown that Johns-Manville, and not Flintkote, caused in-
juries to the appellees. Flintkote contends that if the
jury had heard about the appellees’ extensive exposure to
Johns-Manville products, the fact finder would have
reached the conclusion that any exposure to Flintkote’s
10 Owens-Illinois states in a footnote that the trial court denied
its motion to sue Johns-Manville trust, but this was not complained
about in a point of error. A third-party petition is in the record
against Johns-Manville Corporation Asbestos Disease Compensation
Fund with a certificate of service dated August 14, 1989. An order
overruling Defendants’ Motion to Join Third Party Defendant Johns-
Manville was signed by the court September 8, 1989. The plaintiffs
never named Johns-Manville in any form as a defendant. On Oc-
tober 25, 1989, the court signed an Order of Dismissal As To Johns-
Manville Sales Corporation, Manville Personal Injury Settlement
Trust, Manville Corporation And All Its Entities And Thorpe Prod-
ucts Company.
64a
products was de minimis and thus no causal factor of
appellees’ injuries. Appellees take the position that
Johns-Manville was in bankruptcy court, that any claims
for contribution from that company should be asserted
by the defendants in the bankruptcy, and that its insolv-
ency must be borne by the solvent tortfeasors.
In Duncan, 665 S.W.2d 414, the Texas Supreme Court
determined that the defendants in a products liability
case were to be jointly and severally liable for the entire
amount that the plaintiff is entitled to recover, subject
to the right of contribution. Thus, the insolvency of co-
tortfeasors must be borne by the solvent co-tortfeasors.
In the case of Gideon, 761 F.2d 1129, the court held
that evidence of the plaintiff’s exposure to products of in-
solvent manufacturers was not material to the litigation,
so long as the jury found that the products of each
solvent defendant was a producing cause of the plaintiff’s
injury and that rights between the solvent and insolvent
defendants would be determined in some subsequent pro-
ceedings. In a contrary holding, in Gross v. Black &
Decker (U.S.), Inc., 695 F.2d 858 (5th Cir.1983), the
court held that it was reversible error not to admit evi-
dence about an employer’s conduct in a products liability
proceeding to allow the manufacturer to show the em-
plover’s responsibility for the injury. The plaintiff ar-
gued in that case that the conduct of the employer could
not be the sole cause of her injuries, but the court held
that this was a defense which the defendants were en-
titled to assert. In the case of Herrera v. FMC Corp.,
672 S.W.2d 5 (Tex.App.—Houston [14th Dist.] 1984,
writ ref’d n.r.e.}, the court held that evidence offered by
the manufacturer about the conduct of the employer
(who was not a party to the suit) was properly admitted
to support the manufacturer’s allega
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