Celotex Corp. v. Tate, 13-89-444-CV

• Citation: 797 S.W.2d 197
• Decision Date: 31 August 1990
• Docket Number: No. 13-89-444-CV,13-89-444-CV
• Parties: Prod.Liab.Rep. (CCH) P 12,673 CELOTEX CORPORATION, Appellant, v. Shirley TATE, Individually, as Executrix of the Estate of James Fisk Tate, et al., Appellees.
• Court: Court of Appeals of Texas

Page 197

797 S.W.2d 197

Prod.Liab.Rep. (CCH) P 12,673

CELOTEX CORPORATION, Appellant, v. Shirley TATE, Individually, as Executrix of the Estate of

James Fisk Tate, et al., Appellees.

No. 13-89-444-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 31, 1990.

Rehearing Overruled Sept. 27, 1990.

Robert Arredondo, Donald Verplancken, Thomas W. Taylor, Elizabeth M. Thompson and Randa L. Duncan, Butler & Binion, Houston, for appellant.

B. Mills Latham, Law Offices of B. Mills Latham, Corpus Christi, Stanley R. Watson, Law Offices of Stanley R. Watson, P.C., Quanah, W. James Kronzer, Houston, for appellees.

Before NYE, C.J., and KEYS and BENAVIDES, JJ.

OPINION

KEYS, Justice.

Appeal is taken from the jury trial of a toxic tort case. Appellees, the heirs of James Tate's estate, brought suit against defendants Union Carbide, George Rowley, Inc., Celotex Corp. and others. Appellees alleged that each of the defendants sold or supplied raw asbestos to Tate's employer and that the defendants' failure to warn of the dangers involved in handling asbestos resulted in Tate's unsafe exposure, proximately causing his death. Before trial, all defendants, except the three mentioned above, were released by appellees. During trial, Union Carbide settled for $900,000.00. Thereafter, judgment was entered against the remaining defendants, George Rowley, Inc. and Celotex, on a jury verdict awarding appellees both actual and punitive damages. The sole appellant is Celotex, and it asserts eleven points of error. We affirm the trial court's judgment.

James Tate died of malignant pleural mesothelioma (cancer of the lining of the lung) allegedly contracted by inhalation of the defendants' asbestos products containing chrysotile asbestos fibers. Over a period of almost thirty years, Tate was employed in various capacities at a wallboard and plaster plant in Acme, Texas. One of his duties at the Acme plant involved the mixing of kalite, a sound proofing material. During the mixing process, various dry materials, including asbestos, were poured into a large mixer, stirred and then sacked. The evidence revealed that Tate unloaded sacks of raw asbestos from boxcars, placed the sacks on a pallet, opened them, poured the asbestos into a hopper, scooped it from the hopper onto a scale, and carried it to the mixer. Tate also worked as an electrician at the plant, and the evidence reflected that, in this capacity, he was again repeatedly exposed to diffused asbestos fibers.

By its first two points of error, Celotex claims that the trial court erred when it admitted the testimony of two expert witnesses, Dr. Everett Dillman and Dr. Barry Castleman. Before discussing the merits of Celotex' arguments, we set forth the general rules regarding expert testimony and the preservation of error in the trial court.

A witness who, by his knowledge, skill, experience, training or education, has specialized knowledge that will assist the trier of fact in understanding the evidence or in determining a fact in issue may express an opinion about the matter. Trailways, Inc. v. Clark, 794 S.W.2d 479 (Tex.App.--Corpus Christi, n.w.h.); DeLeon v. Louder, 743 S.W.2d 357, 359 (Tex.App.--Amarillo 1987), writ denied, 754 S.W.2d 148 (Tex.1988); Tex.R.Civ.Evid. 702. There are, however, no definitive guidelines for determining the knowledge, skill or experience required of a particular witness when testifying as an expert; it is within the trial court's discretion, and the court's determination will not be disturbed absent a clear abuse of that discretion. Trailways, 794 S.W.2d at 483; DeLeon, 743 S.W.2d at 359.

To preserve the right to complain on appeal about the admission of evidence at trial, a party must have objected at the time the evidence was offered, the objection must have been specific enough to enable the trial court to understand the precise nature of the error alleged, and the party must have obtained a ruling on its objection. MBank Dallas N.A. v. Sunbelt Mfg., Inc., 710 S.W.2d 633, 638 (Tex.App.--Dallas 1986, writ ref'd n.r.e.); see also Guzman v. Soliz, 748 S.W.2d 108, 111 (Tex.App.--San Antonio 1988, writ denied); Duke v. Power Elec. and Hardware Co., 674 S.W.2d 400, 405 (Tex.App.--Corpus Christi 1984, no writ); Tex.R.App.P. 52(a). That rule notwithstanding, when an objection to evidence is properly made, prior or subsequent presentation of essentially the same evidence without objection waives any complaint regarding the admission of the evidence. Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Trailways, 794 S.W.2d at 488; see also Missouri Pac. R.R. Co. v. Huebner, 704 S.W.2d 353, 357-58 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.).

In an effort to show the knowledge of the dangers of asbestos exposure that Celotex had or should have had at the time asbestos was being shipped to Tate's place of work, appellees offered Dr. Castleman's testimony. Celotex concedes that Castleman is a librarian of asbestos research and, as such, is qualified to testify about the existence of medical articles addressing the relationship between asbestos dust and mesothelioma. By point two, however, Celotex contends that the trial court should have excluded Castleman's testimony because Castleman is a doctor of science and not a doctor of medicine and thus not qualified to testify regarding the contents of any medical articles. Because co-defendant Union Carbide objected on this ground and Celotex did not, we must initially resolve a preservation question concerning the utilization of an aligned party's objections.

In trials involving multiple defendants, a party must make its own objection to the evidence if it wishes to preserve error for appeal. Howard v. Phillips, 728 S.W.2d 448, 451 (Tex.App.--Fort Worth 1987, no writ); Wolfe v. East Texas Seed Co., 583 S.W.2d 481, 482 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ dism'd); see also Tex.R.App.P. 52(a). Under this general rule, Celotex would have failed to preserve its complaint. However, during a hearing on pretrial motions, Celotex requested a ruling from the trial court that one defendant's objection preserves error for all defendants.

Under Tex.R.Civ.Evid. 611(a)(2), a trial court is given the authority to exercise reasonable control over the presentation of evidence at trial, so as to avoid the needless consumption of time. We find that by exercising its discretion under Rule 611, a trial court may properly grant such a request.

Without exception from appellees, the trial court expressly ruled that one objection preserved error for all. Armed with this pretrial ruling, Celotex is free to rely on any defendant's objection, just as if it was its own.

Turning to the specifics of Castleman's testimony, we find that prior to his taking the stand, the trial court denied Celotex' motion to exclude, but it granted Celotex' motion to limit his testimony to matters concerning the existence of the medical articles, as distinguished from testimony concerning the interpretation of the contents of the articles. Celotex' specific complaint involves Castleman's subsequent testimony whereby he: (1) rendered opinions on the ability to discover the hazards of asbestos before 1970; (2) testified to what the medical literature revealed; and (3) testified to what medical doctors thought about asbestos, by selectively reading portions of the articles.

Castleman testified on two consecutive days. On the first day, Union Carbide properly objected to his testimony insofar as it related to those three areas. After Union Carbide had settled on the second day, Castleman again testified on the ability to discover the hazards, testified to what the medical literature revealed and read portions of the articles. No party objected. As we stated earlier, when an objection to evidence is properly made, the subsequent presentation of essentially the same evidence without objection waives any complaint regarding its admission. Celotex waived its complaint. Point two is overruled.

By its first point of error, Celotex claims that the trial court erred by allowing Dr. Everett Dillman, an economist, to testify regarding the value of guidance, counsel, love, affection, intangibles, and the proper amount of punitive damages to award. Celotex' argument is twofold: first, expert testimony is not required for these subjects, and second, if expert testimony is required, Dillman is not qualified to render an opinion.

Problems regarding Dr. Dillman's testimony are familiar to this Court. See Seale v. Winn Exploration Co., Inc., 732 S.W.2d 667 (Tex.App.--Corpus Christi 1987, writ denied). In Seale, relying on Tex.R.Civ.Evid. 702, we held that Dillman's testimony regarding the value of the loss of love, affection, companionship, and society as between a parent and child, based on the hourly average income of a psychiatrist, was properly excluded, as Dillman possessed no special knowledge which jurors do not possess in deciding this issue. Seale, 732 S.W.2d at 669. We also found, however, that the trial court did not err by admitting Dillman's general testimony regarding the computation of present dollar value because it was not based upon a specific figure. Id.

Celotex specifically complains of Dillman's testimony inasmuch as he allegedly suggested the following damages:

(1) "intangibles" (love and affection): past at $15,000.00, future at $600,000.00;

(2) "guidance and counsel" (for Tate's son): past at $130,000.00, future at $290,000.00;

(3) punitives at $2,500,000.00.

With regard to the first and third categories, Dillman explained to the jury how to compute the present dollar value of these damages based upon hypothetical figures. He did not, as Celotex claims, assign a particular value to these damage elements. Thus, under the circumstances, Dillman's testimony fell squarely within the requisites of Rule 702 and was properly admitted.

On the other hand, regarding the second category, Dillman calculated the value of past and...