Mobil Oil Corp. v. Bailey

• Decision Date: 09 March 2006
• Docket Number: No. 09-04-225-CV.,09-04-225-CV.
• Citation: 187 S.W.3d 265
• Parties: MOBIL OIL CORPORATION, Mobil Oil Refining Corporation, and Mobil Chemical Company, Inc., Appellants, v. Pearlie BAILEY, individually and as administratrix of the Estate of James E. Bailey, Deceased, James Thibodeaux, Kevin Bailey, Paul Bailey, and Carolyn Bailey, Appellees.
• Court: Texas Court of Appeals

Page 265

187 S.W.3d 265

MOBIL OIL CORPORATION, Mobil Oil Refining Corporation, and Mobil Chemical Company, Inc., Appellants, v. Pearlie BAILEY, individually and as administratrix of the Estate of James E. Bailey, Deceased, James Thibodeaux, Kevin Bailey, Paul Bailey, and Carolyn Bailey, Appellees.

No. 09-04-225-CV.

Court of Appeals of Texas, Beaumont.

Submitted June 23, 2005.

Decided March 9, 2006.

Rehearing Overruled April 13, 2006.

Reagan W. Simpson, Christian A. Garza, King & Spalding, LLP, Houston, David P. Herrick, Herrick & Associates, PC, Gary D. Elliston, DeHay & Elliston, Dallas, Michael L. Baker, Strong, Pipkin, Bissell & Ledyard, LLP, Beaumont, for appellants.

Bryan O. Blevins, Aaryn K. Giblin, John A. Cowan, Provost Umphrey Law Firm, LLP, Beaumont, for appellees.

Before McKEITHEN, C.J., KREGER and GAULTNEY, JJ.

OPINION

CHARLES KREGER, Justice.

Pearlie Bailey, individually and as administratrix of the Estate of James E. Bailey, deceased, James Thibodeaux, Kevin Bailey, Paul Bailey, and Carolyn Bailey ("Baileys") sued Mobil Oil Corporation, Mobil Oil Refining Corporation, and Mobil Chemical Company, Inc. ("Mobil") for the wrongful death of James Bailey from lung cancer. The Baileys' suit alleged James's death was caused by his exposure to asbestos on Mobil's premises. The jury found Mobil's negligence caused James's death and awarded $350,000 in actual damages (most of the actual damages were offset by settlement credits). Further, the jury found the harm to James resulted from malice and awarded $500,000 in exemplary damages. The trial court denied Mobil's post-trial motions and entered judgment on the verdict. From that judgment, Mobil brings this appeal. Because we find the Baileys presented no evidence of probative force of medical causation, we sustain issue two, reverse the trial court's judgment, and render judgment in favor of Mobil.

BACKGROUND

It is not disputed that James worked at Mobil's Beaumont, Texas, facilities sporadically from the years 1966 to 1972. James's work assignments on Mobil's premises subjected him to asbestos exposure in varying degrees of severity. His work history also indicated he had been exposed to asbestos at other work sites, including ships, furnaces, and as an operator helper. The record also indicates that James was a long-time smoker, and that for the last forty to fifty years of his life, he smoked a full pack of cigarettes per day. Neither party disputes the fact that there was a total absence of medical evidence typifying asbestos exposure, such as the presence of asbestos bodies in James's lungs, scarring of his lung tissue, or pleural thickening.

As noted above, the Baileys' theory of the cause of James's lung cancer was severe asbestos exposure while working at Mobil's facilities. By contrast, Mobil's theory was that James's heavy smoking history alone caused his lung cancer because of the complete absence of asbestos-related indicators in his lungs. As such, medical causation was the key issue at trial and is at the heart of Mobil's appeal. Mobil raises nine appellate issues, with issue one contending trial error "in admitting the testimony of Plaintiffs' experts on medical causation," and issue two raising the lack of "legally sufficient evidence to support the jury's finding that Mr. Bailey's lung cancer was proximately caused by Mobil's conduct in exposing him to asbestos at Mobil's facilities."

STANDARD OF REVIEW

In E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 550 (Tex.1995), a products liability case, the Texas Supreme Court determined the proper standard for the admission of scientific expert testimony under Rule 702 of the Texas Rules of Civil Evidence.¹ Relying on language contained in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Robinson Court held that "in addition to showing that an expert witness is qualified, Rule 702^[2] also requires the proponent to show that the expert's testimony is relevant to the issues in the case and is based upon a reliable foundation." Robinson, 923 S.W.2d at 556. The Robinson Court relied on Daubert for support, viz:

Rule 702 requires the proffered testimony to be: (1) "scientific knowledge" (2) which will "assist the trier of fact to understand the evidence or to determine a fact in issue." Id. at 589, 113 S.Ct. at 2795 (quoting FED. R. EVID. 702). To constitute "scientific knowledge," the proffered testimony must be reliable. Id. In addition, to be helpful to the trier of fact, the evidence must be relevant. Scientific evidence is relevant when there is a "valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at 592, 113 S.Ct. at 2796.

Robinson, 923 S.W.2d at 555.

There is no question that Robinson's relevant/reliable requirements were preconditions for admissibility only. Indeed, the Court noted that "legal sufficiency of scientific evidence" was an inquiry "outside the scope of Rule 702." Id. at 554. At present, Robinson continues to be the seminal case with regard to admissibility of any type of expert testimony, including scientific testimony, in Texas.

In 1997, the Texas Supreme Court handed down Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997). The Court framed the issues in Havner, another products liability case, in the following manner:

Merrell Dow challenges the legal sufficiency of the Havners' causation evidence and the admissibility of some of that evidence and further contends that its due process rights under the United States Constitution and its due course rights under the Texas Constitution were denied. Because of our disposition of this case, we reach only the no evidence point of error.

Id. at 709. Although it limited review to the legal sufficiency inquiry only, the Havner Court proceeded to incorporate the admissibility standards announced in Robinson into the standard for reviewing no evidence appellate issues. See id. at 711, 712, 714 ("The issue in Robinson was admissibility of evidence, but as we have explained the same factors may be applied in a no evidence review of scientific evidence.").³

The Havner Court's development of its no evidence analysis in toxic tort cases takes a stricter approach than that applied in a traditional no evidence review, as is evidenced by the following:

It could be argued that looking beyond the testimony to determine the reliability of scientific evidence is incompatible with our no evidence standard of review. If a reviewing court is to consider the evidence in the light most favorable to the verdict, the argument runs, a court should not look beyond the expert's testimony to determine if it is reliable. But such an argument is too simplistic. It reduces the no evidence standard of review to a meaningless exercise of looking to see only what words appear in the transcript of the testimony, not whether there is in fact some evidence. We have rejected such an approach. See Schaefer [v. Texas Employers' Ins. Ass'n], 612 S.W.2d [199,] 205 [(Tex.1980)]; see also Burroughs Wellcome [Co. v. Crye], 907 S.W.2d [497,] 499-500 [(Tex.1995)].

....

Although we recognize that there is not a precise fit between science and legal burdens of proof, we are persuaded that properly designed and executed epidemiological studies may be part of the evidence supporting causation in a toxic tort case and that there is a rational basis for relating the requirement that there be more than a "doubling of the risk" to our no evidence standard of review and to the more likely than not burden of proof.

Havner, 953 S.W.2d at 712, 717 (some citations omitted).

At any rate, the Havner Court's no evidence standard applied to toxic-tort litigants attempting to demonstrate that exposure to a given substance increased the risk of the particular injury alleged when direct, scientifically reliable proof of causation was missing. Id. at 715. Such litigants are reduced to relying entirely on circumstantial evidence in the form of scientific studies for proof of causation. Id. In their attempt to link the limb reduction birth defect with the drug Bendectin, the Havner plaintiffs relied on epidemiological studies examining existing populations. Id. at 724-25. To raise a fact issue on causation, the Havner's epidemiological studies were required to establish a "more than doubling of the risk" that this birth defect, when compared to the same birth defect in an unexposed or "control" population, was attributable to the mother's Bendectin ingestion during pregnancy. Id. at 715-17, 724-26. In addition to requiring that the scientific evidence establish "more than a doubling of the risk," the Havner Court's no evidence standard also encompassed the following:

To raise a fact issue on causation and thus to survive legal sufficiency review, a claimant must do more than simply introduce into evidence epidemiological studies that show a substantially elevated risk. A claimant must show that he or she is similar to those in the studies. This would include proof that the injured person was exposed to the same substance, that the exposure or dose levels were comparable to or greater than those in the studies, that the exposure occurred before the onset of injury, and that the timing of the onset of injury was consistent with that experienced by those in the study. . . . Further, if there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty. See generally E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 559 (Tex.1995) (finding that the failure of the expert to rule out other causes of the damage rendered his opinion little more than speculation); Parker v. Employers Mut. Liab. Ins. Co., 440 S.W.2d 43, 47 (Tex.1969) (holding that a cause becomes "probable" only when "in the absence of other reasonable causal explanations it becomes...