North American Refractory Co. v. Easter

• Decision Date: 11 March 1999
• Docket Number: No. 13-97-791-CV,13-97-791-CV
• Citation: 988 S.W.2d 904
• Parties: NORTH AMERICAN REFRACTORY COMPANY, Appellant, v. Martin EASTER, et al., Appellees.
• Court: Texas Court of Appeals

Page 904

988 S.W.2d 904

NORTH AMERICAN REFRACTORY COMPANY, Appellant, v. Martin EASTER, et al., Appellees.

No. 13-97-791-CV.

Court of Appeals of Texas Corpus Christi.

March 11, 1999.

Rehearing Overruled April 22, 1999.

Charles W. Schwartz, Marie R. Yeates, Catherine B. Smith, Penelope E. Nicholson, Vinson & Elkins, Houston, Debra S. Fitzgerald, Crouch & Hallett, Carolyn K. Noblin, Attorney at Law, Dallas, for Appellant.

Lisa Blue, Janice Pennington, Laurie J. Meggesin, Misty Ann Farris, Brent M. Rosenthal, Baron & Budd, Dallas, Alicia Butler, San Antonio, Edward A. Stapleton, III, Stapleton, Livesay & Cowen, Brownsville, for Appellees.

Before Chief Justice SEERDEN and Justices DORSEY and CHAVEZ.

OPINION

CHAVEZ, Justice.

North American Refractories Company ("NARCO") appeals a jury verdict awarding damages to appellees for personal injuries and loss of consortium claims arising out of exposure to asbestos containing products manufactured by NARCO. In its first, second, and fifth issues, NARCO challenges the sufficiency of the evidence supporting causation, damages, and punitive damages. By its third, fourth, and sixth issues, NARCO contends the trial court erred in admitting and excluding certain evidence, consolidating the claim of a third plaintiff, and incorrectly apportioning settlement amounts as a credit to the total damage award. We affirm.

FACTUAL BACKGROUND

Frederick Moss, Martin Easter, and both their spouses brought this lawsuit against twenty-four defendants, most of whom were manufacturers of asbestos-containing products. Among the named defendants was NARCO, a company that makes bricks and refractory products used for their heat resistant capabilities in high temperature settings such as furnaces and reactors. Moss and Easter, both retired engineers from Alabama, alleged that they contracted mesothelioma, a cancer of the lining of the chest wall, from their exposure to asbestos from defendants products. Easter also alleged suffering from asbestosis, a scarring of the lung tissue. Shortly after the lawsuit was filed, Moss died from his cancer and his suit was continued by representatives of his estate.

Most of the defendants settled, and by trial, NARCO was the only one remaining. Before trial, the court consolidated the asbestos-related claim of Sam Roberts. Roberts, like Moss and Easter, also alleged exposure from NARCO products while he worked as a boilermaker in Stevenson, Alabama. Roberts was diagnosed with asbestosis and asbestos-related pleural disease, a scarring of the tissue around the outside of the lung.

The case was tried under the substantive law of Alabama and was submitted to the jury on the theories of negligence and products liability under the Alabama Extended Manufacturers Liability Doctrine. The jury found that Moss, Easter, and Roberts sustained asbestos-related injuries and found NARCO liable under both theories.

PROXIMATE CAUSE SUFFICIENCY OF THE EVIDENCE

In its first issue, appellant argues that the evidence was both legally and factually insufficient to support the jury's finding that NARCO's asbestos-containing products were the proximate cause of Moss' and Easter's injuries.

When we review a legal sufficiency challenge, we consider only the evidence and inferences that would support a finding on the disputed point and disregard all evidence to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If the finding is supported by probative evidence, then we overrule the point and uphold the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). However, "[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

When confronting a factual insufficiency challenge, we consider all of the evidence presented. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Cantu v. Butron, 921 S.W.2d 344, 348 (Tex.App.--Corpus Christi 1996, writ denied). We overturn findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

Under Alabama law, proof of proximate causation is an essential element for both products liability and negligence claims. See Taylor v. General Motors Corp., 707 So.2d 198, 202 (Ala.1997) (products liability); Rutley v. Country Skillet Poultry Co., 549 So.2d 82, 85 (Ala.1989) (negligence). The negligence of two or more persons may concur and combine to proximately cause injuries and damages. Causes concur and combine when they join together to produce a given result. If a party is negligent and such negligence concurs or combines with negligence of another party or a third person who is not a party to this lawsuit and the two combine to produce injury, the negligence of each will be deemed the proximate cause of the injury. ¹ To establish liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), the plaintiff must show that he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer. ² Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 716 (Tex.App.--Dallas 1997, no writ) (citing Peek v. Merit Mach. Co., Inc., 456 So.2d 1086, 1089 (Ala.1984)).

The relevant Texas causation law is similar. A fundamental principle of traditional product liability law is that the plaintiffs must prove that the defendant supplied the product which caused their injury. Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989); Celotex Corp. v. Tate, 797 S.W.2d 197, 203 (Tex.App.--Corpus Christi 1990, writ dism'd by agr.). If there is sufficient evidence presented by appellees showing that appellant supplied any of the asbestos to which appellees were exposed, then appellees have adequately met their burden of proof. Tate, 797 S.W.2d at 204.

Appellant claims the evidence does not support its liability because neither Moss nor Easter were able to personally identify any NARCO asbestos product, and testimony supplied by third-party witnesses to show Moss and Easter were exposed to NARCO's products amounted to no evidence.

Frederick Moss worked in a supervisory capacity as an engineer-inspector during his career with Alabama Power Company ("APC") from 1946 to 1951 and again from 1953 to 1988. In this time, he worked at seven different steam plants where he was exposed to several asbestos products manufactured by Owens-Corning, Owen-Illinois, Johns-Manville, Kaiser, Garlock, and Armstrong among others. Moss, who testified at trial by deposition, did not identify or claim exposure to any NARCO asbestos product. He did, however, introduce evidence of his exposure to NARCO products through the testimony of Wilburn Mathis.

Mathis worked forty-two years at the Gorgas Steam Plant while he was employed with APC. This was one of the seven steam plants that Moss had worked at during his career. As a laborer at Gorgas, Mathis was responsible for mixing NARCO castable products with water for repair work being done on the boilers. He recalled NARCO products being sprayed by other trades in areas around the plant. When the NARCO products were being mixed, he described the working conditions as "very dusty." Mathis recognized four asbestos-containing products as those that were used at Gorgas Steam Plant in the 1960s and 70s: NARCO Lite Castable, NARCO Lite Gunning Mix, NARCO Lite Insulating Refractory Concrete, and NARCO Aerogun.

He knew who Moss was and remembered him working around NARCO products as he supervised various trades at the Gorgas Steam Plant. Mathis witnessed workers who would mix the NARCO products when Moss was around and saw Moss breathing the dust from these products on a "good many occasions." He also saw Moss around the NARCO products when they were being sprayed.

Martin Easter worked as a construction/project engineer for U.S. Steel from 1941 to 1970. His duties included the supervision of various trades on construction projects at the blast furnaces, open hearths, and soaking pits. Easter recalled the severe dust conditions at the plant, especially when the blast furnaces were being repaired. He testified at trial that he regularly breathed the dust from refractory products, including NARCO products. He also added that he was frequently exposed to any products that were used for construction purposes at the plant. He could not identify the specific name of any NARCO product, but he remembered the NARCO name and logo, an Indian and an arrowhead. He clarified his identification of NARCO products by explaining that he did not remember the "NARCO" name until he heard it that morning while Curtis Jones testified.

Curtis Jones worked thirty-two years for U.S. Steel, and during part of that time, he worked with Easter in the same department. Jones testified that during this period, he worked around asbestos-containing products all of the time, including two NARCO products: NARCO Lite and NARCO Crete. He was able to identify them as NARCO's because he was familiar with their logo. He testified that both he and Easter were exposed to the dust created from the mixing of these products. Jones went on to explain the process by which the NARCO products were used at the U.S. Steel facility and how both he and Easter were exposed.

The evidence of exposure and product identification presented by third-party witnesses is similar to that presented in Celotex Corp. v. Tate, 797 S.W.2d 197 (Tex.App.--Corpus Christi 1990, writ dism'd by agr.). In Tate, the plaintiffs claimed the decedent had breathed asbestos fibers while pouring and mixing raw asbestos and while performing electrical work in a wallboard and plaster plant. Id. at 200. A research and product...