Faust v. Bnsf Ry. Co.

• Decision Date: 10 March 2011
• Docket Number: No. 02–08–00226–CV.,02–08–00226–CV.
• Citation: 337 S.W.3d 325
• Parties: Linda FAUST and Donnie Faust, Appellants,v.BNSF RAILWAY COMPANY, Appellee.
• Court: Texas Court of Appeals

337 S.W.3d 325

Linda FAUST and Donnie Faust, Appellants,

v.BNSF RAILWAY COMPANY, Appellee.

No. 02–08–00226–CV.

Court of Appeals of Texas, Fort Worth.

Jan. 27, 2011.Rehearing Overruled March 10, 2011.

Jared R. Woodfill, H. Paul Pressler III, Woodfill & Pressler, LLP, L. Todd Kelly, Heidi O. Vicknair, Jeff Musselwhite, The Kelly Law Firm PC, Houston, TX, A. Daniel Woska, Rachel Lawrence Mor, Tara T. Tabatabaie, A. Daniel Woska & Assoc., P.C., Oklahoma City, OK, for Appellants.David E. Keltner, Marianne M. Auld, John T. Wilson IV, Kelly Hart & Hallman LLP, E. Michael Sheehan, Thompson & Knight, LLP, Fort Worth, TX, Douglas W. Poole, McLeod, Alexander, Powel & Apffel, Galveston, TX, Debora B. Alsup, Jon Schnautz, Thompson & Knight, LLP, Austin, TX, for Appellee.

PANEL: WALKER, McCOY, and MEIER, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

Appellants Linda Faust and Donnie Faust sued Appellee BNSF Railway Company (BNSF) for personal injuries and damages that they allegedly sustained from exposure to chemicals released by BNSF's wood treatment facility in Somerville, Texas. After a lengthy trial, a jury rendered a verdict in favor of BNSF, concluding that BNSF's negligence, if any, did not proximately cause Linda's stomach cancer. In two issues, the Fausts argue that the trial court committed reversible error by overruling their objection to a specific causation instruction and that the evidence is factually insufficient to support the jury's “No” answer to question number 1. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Fausts live in Somerville. Linda moved there and married Donnie in 1980. Donnie has lived in Somerville most of his life. The Fausts' home is located approximately 4,000 feet from the Somerville Tie Plant.

Donnie began working at the plant in 1974. He performed a number of different duties, including working as a “roustabout,” driving a trash truck, and operating various machinery. Donnie came into contact with creosote when he worked at the plant and often had creosote on him when he came home from the plant.

Linda worked a number of different jobs that were located near the plant, shopped near the plant, and, many times, visited Donnie at the plant during his lunch break. She smoked between one-half and one full pack of cigarettes every day for twenty-five years; began experiencing headaches, nausea, and stomach pain in the early 1980s; and had a twelve-year medical history of stomach problems. In 1998, Linda was diagnosed with diffuse signet cell stomach cancer and Helicobacter pylori infection (H. pylori). She subsequently underwent a radical complete gastrectomy, in which her entire stomach was removed.¹

BNSF's predecessor, the Atchison, Topeka & Santa Fe Railway (AT & SF), began operating the plant in 1905.² The plant, which occupied a 200–acre tract of land in Burleson County and operated twenty-four hours a day, treated railroad ties and other wood products with chemicals to preserve the wood and increase the products' service life. A mixture of creosote ³ and extender oil (predominantly 30% creosote and 70% oil) was the primary chemical applied to the ties in one of four treating cylinders measuring 8 feet in diameter by 155 feet in length.⁴ Each treating process (commonly referred to by plant employees as a “charge”) lasted between eight and twenty-four hours, depending on whether the ties had been air dried or needed to be vapor dried in the treating cylinder using a drying agent.⁵

The plant generated several types of waste:

• drainage from a treating cylinder consisting of creosote mixture and possibly wood fragments that accumulated in a “pit” located in front of the cylinder door when the door was opened after the completion of a charge;

• “kickback” (also known as “drippage”), which consisted of residual creosote mixture that dripped off of treated ties that were removed from a cylinder and onto rock ballast or “screening” that was laid directly underneath the tracks on which the “trams” that carried the ties rolled; ⁶

• before the plant began using chains, treated wood slats (spacers) that were placed in between the ties during the treatment process;

• sawdust used to absorb chemicals and to clean the cylinders and pits;

• boiler emissions, which may have included dioxins ⁷ and polycyclic aromatic hydrocarbons (PAHs),⁸ from burning treated wood in a boiler ⁹

• wastewater (also called “sap water”) resulting from the process of vapor-drying wood products; and

• emissions released into the atmosphere from several different sources.

The amount of waste that the plant generated and the means by which the plant disposed of it or used it was hotly contested at trial.

The Fausts alleged that BNSF negligently allowed the release of toxic and hazardous chemicals, solvents, and substances into the soil, groundwater, water, and air in and around the plant; that they have been and continue to be exposed to the toxic chemicals released from the plant; and that their bodies, real property, and home have been contaminated by the chemicals, proximately causing them injuries and damages, including, but not limited to, cancer. At trial, each side offered expert testimony relevant to, among other things, the disputed fact issues of negligence and causation. As part of its charge, the trial court submitted the following instruction to the jury: “In order to prove specific causation for exposure from the Somerville Tie Plant, the Plaintiffs must exclude, with reasonable certainty, other plausible causes of Linda Faust's stomach cancer, such as her history of smoking cigarettes and her Helicobacter pylori infection.” ¹⁰ Jury question number 1 asked whether “the negligence, if any, of [BNSF was] a proximate cause of Linda Faust's stomach cancer.” The jury answered, “No,” and, as instructed, did not proceed to answer any of the remaining questions. In accordance with the jury's verdict, the trial court entered a take-nothing judgment on the Fausts' claims against BNSF, and it denied the Fausts' motion for new trial. The Fausts filed their notice of this appeal.

III. SPECIFIC CAUSATION INSTRUCTION

In their first issue, the Fausts argue that the trial court committed reversible error by overruling their objection to the specific causation instruction. They contend that the instruction was erroneous because it (1) improperly heightened their burden of proof, (2) improperly shifted the trial court's gatekeeper function to the jury, and (3) constituted an impermissible comment on the weight of the evidence. They further argue that the inclusion of the instruction was harmful because the jury expressed some confusion about it and rendered its verdict shortly after the trial court addressed a jury note inquiring in part about the instruction. BNSF responds that the Fausts failed to preserve part of their first issue for appellate review, that the trial court did not abuse its discretion by including the instruction in the charge, and that, even if erroneous, the trial court's inclusion of the instruction was harmless.

A. Preservation of Error

An objection to the jury charge must timely and plainly make the trial court aware of the complaint, and the complaining party must obtain a ruling. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43–44 (Tex.2007); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (op. on reh'g); see Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 274 (requiring a party objecting to a charge to point out distinctly the objectionable matter and the grounds of the objection). If a party fails to do this, error is not preserved, and the complaint is waived. Payne, 838 S.W.2d at 241.

The Fausts asserted the following objection to the specific causation instruction at the charge conference:

Mr. Woodfill: With respect to the instruction, Your Honor, the other objection we had was to paragraph 2, information regarding Linda Faust's cigarette smoking and the Helicobacter—H. pylori bacteria infection. We believe that this is an improper role of the Court's gatekeeper function and should not be included in the instruction. And we believe it's unfairly prejudicial to the client. It can be argued in the proximate cause section that's addressed in Question Number 1, I believe. Additionally, Your Honor, we don't believe that there was any evidence—Well, that's enough. [Emphasis added.]

The Fausts' objection did not timely and plainly make the trial court aware that they were objecting on the grounds that the instruction improperly heightened their burden of proof and constituted an impermissible comment on the weight of the evidence, nor were these arguments apparent from the context of the objection. See, e.g., Fethkenher v. Kroger Co., 139 S.W.3d 24, 31–32 (Tex.App.-Fort Worth 2004, no pet.) (holding that appellant's objection did not make trial court aware of complaint that instruction was an impermissible comment on weight of the evidence). We cannot agree with the Fausts' contentions that an objection to the shifting of the gatekeeper function from the trial court to the jury “is necessarily” an objection to the trial court adding elements to the Fausts' burden of proof that do not exist under the law and “is necessarily” an objection that the trial court is commenting on the weight of the evidence. This argument conflicts with the dictates of rule of appellate procedure 33.1(a) and Payne.

Citing Payne, the Fausts argue that their objection at the charge conference was sufficient to preserve this issue with regard to any of the legal bases for the objection because they submitted a proposed jury charge in writing that did not include the specific causation instruction. Payne did not hold that submitting a jury charge in writing that omitted a later complained-of instruction was sufficient to preserve error as to the inclusion of the instruction on any legal basis. Rather, Payne held that “[t]here should be but one test for determining if a party has...