Fibreboard Corp. v. Pool

• Decision Date: 16 July 1991
• Docket Number: Nos. 6-90-014-C,6-90-022-CV,s. 6-90-014-C
• Parties: Prod.Liab.Rep. (CCH) P 12,990 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.
• Court: Texas Court of Appeals

Page 658

813 S.W.2d 658

Prod.Liab.Rep. (CCH) P 12,990

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.

Nos. 6-90-014-CV, 6-90-022-CV.

Court of Appeals of Texas,

Texarkana.

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.

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 plaintiffs 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 totalling $5,000,000.

The two above-styled and numbered cases were consolidated 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. Appellant Fibreboard has eight points 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 appeals should be encouraged to conserve words, paper, and the eyesight of the members of the judiciary. Owens-Illinois sets out twenty-three points of error in its brief. Appellant Flintkote'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 purpose 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;

(6) whether the trial court properly submitted Question No. 17 which included "loss of enjoyment of life" as an element of damages;

(7) whether the cancer instruction concerning appellees Strong, Sledge, and Pool caused the jury to compensate them for future cancer not caused by asbestos exposure;

(8) whether the trial court properly admitted a color poster prepared by the Oil, Chemical and Atomic Workers International Union;

(9) whether the trial court properly admitted deposition testimony of witnesses Virgil M. Evans and James Henry Read in which appellants' cross-examination was limited to five written questions;

(10) whether the trial court properly excluded evidence of military specifications requiring the use of asbestos in insulation products;

(11) whether the trial court properly excluded a portion of the deposition testimony of Dr. Corwin Hinshaw, the appellants' state-of-the-art expert on asbestos;

(12) whether the trial court properly denied appellants' motion for directed verdict on limitations against appellee Strong;

(13) whether the trial court properly entered judgment 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 developed an asbestos-related disease;

(14) whether the trial court properly entered judgment 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 evidence 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 pecuniary loss and $25,000 in damages for termination of the parent-child relationship;

(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 twenty-five percent of appellees' asbestos-related injuries;

(21) whether the awarding of punitive damages violates the due process clause of the United States Constitution 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, unreasonably 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 Garlock, 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 causation;

(27) whether the jury's answer to Question No. 8 (finding the companies that supplied asbestos-containing products which were the producing cause of appellees' injuries) was against the great weight and preponderance of the evidence;

(28) whether the jury's answer to Question No. 16 apportioning fault was against the great weight and preponderance 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 depositions regarding appellant Garlock;

(31) whether the trial court properly submitted jury questions which allowed the jury to award punitive damages and whether the questions commented on the weight of the evidence;

(32) whether the trial court properly submitted Question 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 bankruptcy 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.

NATURE OF THE CASE

Between the 1950's and the present, appellees worked as insulators or maintenance mechanics performing insulation 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 products 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 associated 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 further 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...