Goodyear Tire & Rubber Co. v. Rogers

• Decision Date: 31 August 2017
• Docket Number: No. 05-15-00001-CV,05-15-00001-CV
• Citation: 538 S.W.3d 637
• Parties: The GOODYEAR TIRE & RUBBER COMPANY, Appellant v. Vicki Lynn ROGERS, Individually and as Representative of the Estate of Carl Rogers, Natalie Rogers, and Courtney Dugat, Appellees
• Court: Texas Court of Appeals

538 S.W.3d 637

The GOODYEAR TIRE & RUBBER COMPANY, Appellant
v.
Vicki Lynn ROGERS, Individually and as Representative of the Estate of Carl Rogers, Natalie Rogers, and Courtney Dugat, Appellees

No. 05-15-00001-CV

Court of Appeals of Texas, Dallas.

Opinion Filed August 31, 2017
Supplemental Opinion Filed September 13, 2017.
Rehearing Denied January 11, 2018

David A. Oliver Jr., Paul Kerlin, Tiffany Bingham Briscoe, Vorys, Sater, Seymour and Pease LLP, 700 Louisiana Street, Suite 4100, David M. Gunn, Beck, Redden & Secrest, One Houston Center, 1221 Mckinney Street, Suite 4500, Erin Hilary Huber, Beck Redden LLP, 1221 McKinney Suite 4500, Houston TX 77010, for Appellant.

Christopher J. Panatier, Darren Patrick McDowell, Simon Greenstone, Panatier Bartlett, P.C., 3232 McKinney Ave Ste, 610, Jeffrey S. Levinger, Levinger, PC, 1445 Ross Avenue, Suite 2500, Dallas TX 75201-2701, for Appellees.

Before Justices Lang, Brown, and Whitehill

Opinion by Justice Whitehill

Following Carl Rogers's death from mesothelioma, his wife Vicki Lynn Rogers and daughters Natalie Rogers and Courtney Dugat sued appellant, The Goodyear Tire & Rubber Company, Carl's long time employer. A jury found that asbestos fibers in the workplace were a proximate cause of Carl's mesothelioma and that his death resulted from Goodyear's gross negligence. The jury assessed exemplary damages against Goodyear. After the trial court applied the statutory cap, it awarded appellees a total of $2,890,000, plus postjudgment interest and court costs.

In three issues, Goodyear contends that (i) the evidence is legally insufficient to show gross negligence; (ii) the evidence of causation is legally insufficient because appellees failed to rule out radiation as a cause of mesothelioma ; and alternatively (iii) appellees' exemplary damages should be reduced as a result of their failure to prove the full amount of economic damages found by the jury.

We overrule Goodyear's first two issues, sustain its third issue, and suggest remittitur of part of the exemplary damages award.

I. BACKGROUND

A. Facts

Carl Rogers worked for Goodyear as a tire builder from 1974 to 2004 at a facility in Tyler, Texas. He operated a tire building machine in a room about the size of a football field. The room contained eighty-five tire building machines set up in a grid. Carl was exposed to asbestos at Goodyear, both from the tire building machines and from insulation on pipes running overhead. Carl was exposed to asbestos from the overhead insulation in two ways. Any time the insulation was removed to repair or

538 S.W.3d 641

replace the pipes, a great deal of dust was released. Also, when Goodyear began asbestos abatement procedures, no steps were initially taken to enclose the dust and protect employees from it. The brake pads in the tire building machines also contained asbestos and released asbestos when they got worn down. Compressed air was used to clean brake dust out of the machines. This process created a cloud of dust, some of which was asbestos. Carl was exposed to asbestos when the brakes on his machine were replaced, when compressed air was used to fix a stuck brake valve, and when his machine was cleaned with compressed air. In addition, he experienced bystander exposure from being near other tire building machines. Neither the machines nor their instructions contained any warnings about asbestos. By the mid-1980s, Goodyear had replaced the tire building machines with machines that did not contain asbestos, and it had begun an abatement process to remove the asbestos insulation.

Carl was diagnosed with lung cancer in 1999. The cancer spread to his brain. Carl had surgery to remove the cancer from his lung and brain. He also had radiation therapy "through his head" and chemotherapy. The treatment was successful and Carl was cured. In 2008, he was diagnosed with mesothelioma. He died the following year at the age of sixty.

Appellees, Carl's wife and two adult daughters, sued Goodyear, alleging its gross negligence caused Carl's mesothelioma. Among other things, appellees alleged Goodyear failed to adequately warn Carl of the dangers of asbestos and failed to adhere to industry safety standards to protect workers from harm. Goodyear is a subscriber under the workers' compensation statute. Recovery of workers' compensation benefits is the exclusive remedy of an employee for a work related death, unless the death was caused by the employer's gross negligence. TEX. LAB. CODE § 408.001 ; see Mullins v. Martinez R.O.W., LLC , 498 S.W.3d 700, 704 (Tex. App.—Houston [1st Dist.] 2016, no pet.). When an employee's death is caused by his employer's gross negligence, the employee's surviving spouse and heirs may recover exemplary damages. LAB. § 408.001(b).

After appellees filed suit in Dallas County, the case was transferred to Harris County to the asbestos multidistrict litigation (MDL) court for pretrial proceedings and was transferred back to Dallas County for trial. See TEX. GOV'T CODE § 74.162. In the pretrial MDL court, appellees filed a motion for no-evidence summary judgment on Goodyear's "alternative causation theory." In the motion, appellees asserted Goodyear's experts were of the opinion that radiation Carl received in 1999 for a brain tumor was the sole cause of his mesothelioma. Appellees argued Goodyear had no evidence showing that the dose of radiation Carl received to his brain was a substantial factor in causing the mesothelioma. Goodyear filed a response in which it asserted the dose of radiation Carl received led to a doubling of his risk of developing mesothelioma. Goodyear attached affidavits and depositions from its experts, along with other evidence. Goodyear argued its evidence created a genuine issue of material fact regarding radiation as a cause of the mesothelioma. Appellees also moved to exclude the testimony of Goodyear's experts regarding radiation treatment to the brain as a cause of mesothelioma. Goodyear filed a motion to exclude the testimony of appellees' experts in part due to their failure to exclude radiation exposure as a cause of the mesothelioma. The MDL judge denied Goodyear's motion to exclude the testimony of appellees' experts. The judge granted appellees' no-evidence motion for summary judgment and granted their motion to exclude testimony

538 S.W.3d 642

from defense experts about radiation as a cause of mesothelioma. In both of the orders that were granted, the MDL judge expressly found there was no scientifically valid epidemiology to create a causal relationship between therapeutic radiation for lung cancer and mesothelioma.

At trial, appellees' expert Dr. Edwin Holstein, whose specialty is occupational medicine, explained that asbestos is harmful if one inhales it. It can cause asbestosis, which is scarring of the lungs, lung cancer, and mesothelioma. Lung cancer and mesothelioma are different cancers. They are distinguishable because they start in different places. Mesothelioma starts in the lining around the lung. Holstein testified that lung cancer does not turn into mesothelioma. There is no cure for mesothelioma, and the average life expectancy after diagnosis is twelve to eighteen months.

Appellees' experts provided evidence of Carl's dose of exposure to asbestos. Holstein limited his estimate to a ten-year period, from roughly 1975 to 1985. Holstein relied on the report of Steve Hays, an industrial hygienist, to determine Carl's exposure from the insulation. Hays limited his analysis to exposure from ordinary maintenance of the insulated pipes and did not factor in exposure during the abatement process. Hays determined that Carl's asbestos exposure from the insulation was .426 fiber years per cc.¹ Holstein analyzed Carl's asbestos exposure from the brakes on his machine and on neighboring machines. To be conservative, Holstein considered Carl's bystander exposure for only brake replacements and for only two neighboring machines, when he could have been in the middle of as many as eight machines. Holstein relied on published studies about brakes releasing asbestos into the air. As a low level estimate of Carl's actual exposure from asbestos in the machines, Holstein came up with .187 fiber years per cc. Adding this amount to Carl's exposure from insulation, Holstein arrived at a total exposure of .613 fiber years per cc. Based on this level of exposure, Holstein testified that, according to several published studies, Carl's increased risk of mesothelioma was more than double. In fact, it ranged from four times that of the general population to almost twenty-two times that of the general population. Holstein determined that Carl's occupational exposure to asbestos while working as a tire builder in the Goodyear plant was a substantial factor in the development of his mesothelioma.

Hays also testified about Carl's approximate dose of asbestos exposure. Hays chose to analyze a nine-year period of exposure rather than ten. Hays estimated Carl's total dose of exposure at .516 fiber years per cc. Hays testified that Carl's exposure at Goodyear placed him at an increased risk for mesothelioma over the background population of between four and twenty-two.

Holstein provided a history of awareness of the risks of asbestos. As far back as the 1930s, there...