General Chemical Corp. v. De La Lastra

• Decision Date: 18 June 1991
• Docket Number: No. 13-90-340-CV,13-90-340-CV
• Citation: General Chemical Corp. v. De La Lastra, 815 S.W.2d 750 (Tex. App. 1991)
• Parties: Prod.Liab.Rep. (CCH) P 12,987 GENERAL CHEMICAL CORPORATION, Appellant, v. Gonzalo De La LASTRA, et al., Appellees.
• Court: Texas Court of Appeals

Page 750

815 S.W.2d 750

Prod.Liab.Rep. (CCH) P 12,987

GENERAL CHEMICAL CORPORATION, Appellant, v. Gonzalo De La LASTRA, et al., Appellees.

No. 13-90-340-CV.

Court of Appeals of Texas Corpus Christi.

June 18, 1991.

Opinion on Motion for Rehearing

Sept. 5, 1991.

Second Rehearing Overruled Oct. 3, 1991.

Royal H. Brin, Jr., Strasburger & Price, Dallas, Guy Allison, Allison & Huerta, Corpus Christi, John William Black, Black, Hamilton, Roerig & Yanez, Brownsville, James Kronzer, Houston, for appellant.

Thomas F. Nye, Alan J. Couture, Brin & Brin, Corpus Christi, Elizabeth Davis, Law Offices of Warren Eddington, Houston, Ray R. Marchan, Brownsville, for appellees.

Before SEERDEN, KENNEDY and DORSEY, JJ.

OPINION

SEERDEN, Justice.

This is a products liability case. Gonzalo and Amanda De La Lastra sued General Chemical Corporation for the wrongful deaths of their sons, Gustavo and Jose De La Lastra, who died from sulfur dioxide poisoning while using General Chemical's product. Appellees' cause of action was based on strict liability, negligence, and gross negligence in manufacturing, packaging, distributing and selling a product with knowledge that the product could cause serious bodily injury or death and in failing to warn of such dangers. A jury found that appellant's warnings on the product's package were inadequate and awarded actual and exemplary damages to appellees. Appellant brings ten points of error, complaining primarily of the sufficiency of the evidence to support the jury's findings and the excessiveness of the actual and punitive damage awards. We affirm.

General Chemical Corporation is the manufacturer of sodium metabisulfite, a chemical product used by shrimpers to preserve the color of shrimp after it is caught. It is commonly referred to in the shrimping industry as "shrimp dip." According to trial testimony, the chemical is used by shrimpers either by making it into a solution into which shrimp are dipped, or by sprinkling the dry product over layers of shrimp and ice.

The decedents were brothers who worked as commercial fishermen on the "Wilderness," a fishing vessel, that operated in the waters outside of Brownsville, Texas, and who frequently used the sprinkle method of distributing sodium metabisulfite on their shrimp to preserve its color. In July 1988, the brothers, along with Gustavo's girlfriend, Leticia Serrata, went out on the vessel for a shrimping expedition. On July 7, 1988, at approximately 2:30 a.m., Gustavo awoke Serrata and asked her to keep watch while he went to assist Jose to "put the shrimp away," referring to the use of General Chemical's product to preserve the shrimp until they reached shore. Serrata remained at the captain's chair for approximately three hours. Around 5:30 a.m., another shrimp boat approached, and Serrata became worried that the boat might collide with Wilderness. She called for Gustavo, and when he did not respond, she went looking for the brothers. She found them lying in the hold of the boat unconscious. When they would not awake, she returned to the captain's chair and called the Coast Guard. She was instructed to drop anchor. A rescue team boarded the vessel and navigated it to the Brownsville Shrimp Basin. Gustavo and Jose were pronounced dead on arrival at Brownsville National Airport. The cause of the deaths was asphyxiation.

By its first point of error, appellants complain that the trial court erred in awarding judgment against it because there is no evidence or insufficient evidence to support the jury's findings that the warnings on its product were inadequate. In reviewing the legal sufficiency of the evidence in this case, we will consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King's Estate, 244 S.W.2d at 661-62. In reviewing the factual sufficiency, we will consider all of the evidence which supports and which is contrary to the jury's determination. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We will set aside the verdict only if the evidence, standing alone, is too weak to support the finding, or the answer is so against the overwhelming weight of the evidence that it is manifestly unjust or clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In Texas, a warning of danger or instruction for safe use is legally adequate if it 1) is in a form that could be reasonably expected to catch the attention of a reasonably prudent person in the circumstances of the product's use; 2) is of such nature as to be comprehensible to the average user and 3) must convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. Bituminous Casualty Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868, 872-73 (Tex.Civ.App.--Dallas 1974, writ ref'd n.r.e.). The question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product. Id. Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise for his own safety the caution commensurate with the potential danger. Id. This is true because one who sells a product with a high risk of human harm is legally obligated to provide specifications, instructions, and warnings so that it is reasonably safe for use by ordinary persons. Id. The adequacy of a warning is a question of fact for the jury's determination. Id; Ford Motor Co. v. Nowak, 638 S.W.2d 582, 592 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). Appellant's warnings on the package stated:

Can irritate the skin, eyes and respiratory tract. Prolonged exposure may cause burns. Harmful if ingested. (May cause severe allergic reaction in some asthmatics and sulfite sensitive individuals). Reacts with acids and water, releasing toxic sulfur dioxide gas.

Expert testimony introduced at trial reveals that sodium metabisulfite, when applied to wet ice, liberates sulfur dioxide, a colorless, very poisonous gas. Dr. Morris Cramer, a toxicologist, testified that because of the similarity of sodium metabisulfite to sodium bisulfite, a chemical that does not produce a poisonous gas when applied to wet ice, a need for a warning on sodium metabisulfite concerning its dangerous effect exists. He testified that it is critical to distinguish between the two compounds because they cannot be distinguished by looking at them, and they are used for the same general purposes. When dissolved in water, they react the same way. When applied to wet ice, however, sodium metabisulfite produces sulfur dioxide gas. Cramer testified that the warning on the General Chemical label significantly did not emphasize that the product can produce a lethal gas, and the emphasis should be on the fact that it can be fatal or can cause death. Without a clear warning to this effect, Cramer testified, the warning was below the standard expected of a chemical company. Moreover, Cramer stated that if the company had knowledge of prior deaths caused by the product being used in the same manner, the failure of General Chemical to put an adequate warning label on its product would show conscious indifference to the rights of the products' users. He found it inexcusable that appellant did not warn product users of the possibility of death.

Appellant argues in its brief that its warning was adequate because it stated that the product could be "toxic" which, according to Webster's New Collegiate Dictionary, "means 'poisonous' which in turn means capable of causing injury or death by chemical action." Lee Jones, General Chemical's product safety manager, testified about the use of the word "toxic":

Q: By the way, burning eyes, is a toxic reaction?

A: Yes.

Q: So if you knew it can cause your eyes to burn and reads "toxic" and knows [sic] it can cause your throat to get a little raw and has read "toxic"--he has read the only things on your label that are toxic, has he not?

A: Going down through it, it is mentioned a few times on the label, yes.

Q: Don't you think that death is a little more highly toxic than burning eyes?

A: Death is also a toxic reaction.

Q: Yes sir. Don't you think it's a little more substantial toxic reaction than burning eyes?

A: Oh, yes.

This testimony demonstrates that varying degrees of toxicity exist. While appellant's label warned of some of the toxic reactions--burning eyes and throat--it did not warn of the most serious one--death. We conclude that there is sufficient evidence to sustain the jury's finding that appellant's warning was inadequate. Appellant's first point of error is overruled.

By its second point of error, appellant asserts that there was no evidence or insufficient evidence to support the jury's findings that attributed 100 percent of the causative fault to appellant. A question was submitted to the jury which asked what percentage of fault was attributable to each party, including the distributor of the product, Western Trawl and Supply Company. The jury attributed all of the fault to appellant. Appellant admitted at trial that it was the manufacturer of the sodium metabisulfite that the De La Lastra brothers used. It also acknowledged that it knew that the chemical had the potential to release sulfur dioxide gas that can cause death. Edward Pengrass, Retired Commander of the United States Coast Guard, testified that he was in charge of investigating a 1973 Brownsville incident on a shrimp boat named the "Cape Rojo," on which two shrimpers died from sulfur dioxide poisoning. As a result of his investigation,...