Owens-Corning Fiberglas Corp. v. Martin, OWENS-CORNING

• Decision Date: 14 March 1997
• Docket Number: OWENS-CORNING,No. 05-95-00059-CV,05-95-00059-CV
• Citation: 942 S.W.2d 712
• Parties: FIBERGLAS CORPORATION, Appellant, v. Johnnie Melvin MARTIN and Juanita Martin, James Dalmois McCarty and Vada McCarty, John Richard McCollum and Jane McCollum, Manning Mervie Mitchell, Lowell Moore and Winona Ann Moore, Ollie Lee Underwood, Sr., Robert Lorenzo Harrison, Jr. and Emogene Harrison, Lee Artis Allen, Clifton Reid and Selma Reid, Appellees.
• Court: Texas Court of Appeals

Page 712

942 S.W.2d 712

OWENS-CORNING FIBERGLAS CORPORATION, Appellant, v. Johnnie Melvin MARTIN and Juanita Martin, James Dalmois McCarty and Vada McCarty, John Richard McCollum and Jane McCollum, Manning Mervie Mitchell, Lowell Moore and Winona Ann Moore, Ollie Lee Underwood, Sr., Robert Lorenzo Harrison, Jr. and Emogene Harrison, Lee Artis Allen, Clifton Reid and Selma Reid, Appellees.

No. 05-95-00059-CV.

Court of Appeals of Texas Dallas.

March 14, 1997.

Rehearing Overruled April 24, 1997.

Kevin F. Risley, Gilpin Paxson & Bersch, L.L.P., Houston, for Appellant.

Brent M. Rosenthal, Janice Robinson Pennington, Baron & Budd, P.C., Dallas, for Appellees.

Before MALONEY, JAMES and MOSELEY, JJ.

OPINION

JAMES, Justice.

Owens-Corning Fiberglas Corporation appeals a jury verdict awarding damages to appellees for personal injury, wrongful death, and loss of consortium arising out of appellees' exposure to asbestos-containing products manufactured by Owens-Corning. Over Owens-Corning's objection, the trial court consolidated eighteen cases for trial. In three points of error, Owens-Corning asserts the trial court erred: (1) in consolidating the cases for trial; (2) by not following the Alabama unanimous verdict rule; and (3) by submitting an erroneous definition of negligence to the jury. We affirm the trial court's judgment.

PROCEDURAL BACKGROUND

The trial court originally consolidated over ninety-six asbestos personal injury cases; however, by trial only eighteen cases remained against a single defendant, Owens-Corning. Twelve of the claimants, Johnnie Martin, James McCarty, John McCollum, Manning Mitchell, Lowell Moore, Ollie Underwood, Sr., Willard Givens, Robert Harrison, Jr., Dan Green, Willie Wright, Lee Allen, and Clifton Reid, alleged injuries arising out of their on-the-job exposure to Kaylo, an asbestos-containing product manufactured by Owens-Corning. All twelve workers alleged "bystander exposure" to Kaylo, meaning they did not work with Kaylo directly, but were exposed to the Kaylo dust. Two of the workers, Givens and Green, were deceased at the time of trial. Givens died of lung cancer allegedly caused by his exposure to asbestos fibers. Green died from a medical condition unrelated to his asbestos exposure. The other six claimants, Juanita Martin, Vada McCarty, Jane McCollum, Winona Moore, Emogene Harrison, and Selma Reid, claimed damages for loss of consortium as a result of their spouses' illnesses. ¹

On the morning of trial, Owens-Corning orally objected to the consolidation of the eighteen cases for trial. Owens-Corning argued that consolidation would result in jury confusion and prejudice and would, therefore, deprive Owens-Corning of a fair trial. Owens-Corning specifically objected to the consolidation of the lung cancer death case with the noncancer cases. The trial court overruled the objection to consolidation and proceeded to hear the cases together. ²

The trial lasted more than two weeks. Claimants Wright, Green, and Givens settled after three days of testimony. However, Mrs. Givens had previously testified about her husband's painful death from lung cancer and its effect on her life. The trial court announced that these three cases would no longer be before the jury and instructed the jury as follows:

Now in connection with [the Wright, Green, and Givens cases], you are not to speculate as to why the cases are not before you any more, nor are you to consider any of the testimony that relates specifically to those cases in your consideration and deliberation on the remaining cases.

After the parties presented all the evidence, the trial court charged the jury on negligence and products liability. After deliberation, the jury returned a ten-to-two verdict against Owens-Corning awarding compensatory damages to the nine remaining claimants. The damage awards ranged from $50,000 to $480,000. However, the jury did not award any exemplary damages against Owens-Corning.

CONSOLIDATION

In its first point of error, Owens-Corning contends the trial court abused its discretion in consolidating the eighteen cases for trial because (1) the cases did not share common questions of law and fact and (2) the consolidation prejudiced Owens-Corning.

A. Standard of Review

We review the trial court's decision to consolidate under an abuse of discretion standard. See Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734, 737 (Tex.App.--Houston [1st Dist.] 1992, writ denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, or acts in an arbitrary or unreasonable manner. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.1995); European Crossroads' Shopping Ctr. v. Criswell, 910 S.W.2d 45, 51 (Tex.App.--Dallas 1995, writ denied). On factual issues or other matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court. Criswell, 910 S.W.2d at 51.

B. Applicable Law

Rule 174 of the Texas Rules of Civil Procedure governs the consolidation of actions. Rule 174(a) provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

TEX.R.CIV.P. 174(a). Rule 174 gives the trial court broad discretion to consolidate cases with common issues of law or fact. See Lone Star Ford, 838 S.W.2d at 737. However, if "all of the facts and circumstances of the case unquestionably require a separate trial to prevent a manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion," the trial court does not have any discretion to order consolidation. See Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956).

The trial court may consolidate actions that relate to substantially the same transaction, occurrence, subject matter, or question. See Lone Star Ford, 838 S.W.2d at 737. The actions should be so related that the evidence presented will be material, relevant, and admissible in each case. Id. In deciding whether to consolidate, the trial court must balance the judicial economy and convenience that may be gained by the consolidation against the risk of an unfair outcome because of prejudice or jury confusion. See Dal-Briar Corp. v. Baskette, 833 S.W.2d 612, 615 (Tex.App.--El Paso 1992, orig. proceeding).

Even if the cases share common questions of law and fact, an abuse of discretion may be found if the consolidation results in prejudice to the complaining party. Lone Star Ford, 838 S.W.2d at 738. However, we may not presume prejudice; it must be demonstrated. Id. Where the record does not reveal actual prejudice, the consolidation does not provide a basis for reversal. See Hall v. Dorsey, 596 S.W.2d 565, 569 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.).

C. Common Issues of Law and Fact

Owens-Corning first asserts that the trial court abused its discretion in consolidating the twelve workers' cases for a joint trial because the cases did not present common issues of law or fact under rule 174. See TEX.R.CIV.P. 174(a). Owens-Corning argues that the claimants were different ages and had different diseases, occupations, types and amounts of exposure to asbestos, and medical histories. Several of the claimants had nonasbestos-related medical conditions. Furthermore, Owens-Corning asserts that the "state of the art" liability issues differed for each claimant because each claimant was exposed to asbestos at a different time.

We agree that each claimant had a unique work and medical history; nevertheless, the twelve claims also share common issues of law and fact because they all relate to substantially the same subject matter. See Lone Star Ford, 838 S.W.2d at 737. All of the claimants alleged exposure to Kaylo, an asbestos-containing product manufactured by Owens-Corning; all of the claimants alleged they never saw a warning on a box of Kaylo; all of the claimants were represented by the same law firm; and all of the claims were governed by Alabama law. Of the nine worker-claimants before us, six alleged asbestosis, two alleged both asbestosis and asbestos-related pleural disease, and one alleged only asbestos-related pleural disease. Most of the claimants worked in the construction industry and alleged exposure to Kaylo in a bystander capacity. Owens-Corning was the only defendant.

Common issues of fact included the causal connection between exposure to asbestos and disease; the varieties of disease that occur after exposure to asbestos; the amount of asbestos exposure that causes disease; and the manufacturer's knowledge about the dangers of asbestos exposure. Because the same issues of fact were raised in all of the cases, most of the expert testimony and documentary evidence introduced was relevant in each case. See Lone Star Ford, 838 S.W.2d at 737.

We find no cases in our state's jurisprudence adopting specific guidelines for determining whether to consolidate asbestos-exposure cases. However, the Second Circuit has adopted a set of standard criteria known as the Malcolm factors. ³ While the Malcolm factors are not binding on us and may not be exhaustive of the factors that should be considered in deciding whether the trial court properly consolidated a group of asbestos exposure cases, we nevertheless find them useful in structuring our analysis of the trial court's decision to consolidate these cases under rule 174(a). These criteria include: (1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged.

Each case presents its own unique set of facts and...