Owens-Corning Fiberglas Corp. v. Wasiak

• Decision Date: 14 February 1996
• Docket Number: OWENS-CORNING,No. 03-94-00079-CV,03-94-00079-CV
• Citation: 917 S.W.2d 883
• Parties: FIBERGLAS CORPORATION, Appellant, v. Barbara WASIAK; Tyler Turner Boulo, as Personal Representative of the Heirs and Estate of Stanley Wasiak, Deceased; James Edwin Wingate, Sr. and Jean Wingate; Homer Clifton Brownlee, Sr. and Alma Brownlee; and Martha Barnes, Individually and as Personal Representative of the Heirs and Estate of James Albert Barnes, Deceased, Appellees.
• Court: Texas Court of Appeals

Page 883

917 S.W.2d 883

OWENS-CORNING FIBERGLAS CORPORATION, Appellant, v. Barbara WASIAK; Tyler Turner Boulo, as Personal Representative of the Heirs and Estate of Stanley Wasiak Deceased; James Edwin Wingate, Sr. and Jean Wingate; Homer Clifton Brownlee, Sr. and Alma Brownlee; and Martha Barnes Individually and as Personal Representative of the Heirs and Estate of James Albert Barnes, Deceased, Appellees.

No. 03-94-00079-CV.

Court of Appeals of Texas Austin.

Feb. 14, 1996.

Rehearing Overruled April 17, 1996.

Kevin F. Risley, Gilpin, Paxson & Bersch, L.L.P., Houston, for appellant.

Brent M. Rosenthal, Janice Robinson, Baron & Budd, P.C., Dallas, for appellee.

Before POWERS, ABOUSSIE and KIDD, JJ.

POWERS, Justice.

Owens-Corning Fiberglas Corporation appeals from a judgment for compensatory and punitive damages recovered by appellees after a jury trial. We will affirm the trial-court judgment.

THE CONTROVERSY

The appeal involves four actions for wrongful death, personal injury, and loss of consortium resulting from unrelated incidents of exposure to "Kaylo," an asbestos-containing insulation product manufactured by Owens-Corning. ¹ The case was tried under the substantive law of Alabama, the state in which the asbestos exposures occurred. See Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (West 1986).

The jury awarded plaintiffs a total of $1.8 million in compensatory damages and approximately $3.7 million in punitive damages. ² Owens-Corning filed a motion for judgment non obstante veredicto and a motion to disregard certain jury findings. After a post-verdict hearing in which it received evidence, the trial court overruled Owens-Corning's motions. The court rendered judgment on the jury verdict and subsequently overruled Owens-Corning's motion for new trial. Owens-Corning brings eleven points of error.

PUNITIVE DAMAGES

In point of error one, Owens-Corning contends the trial court erred in excluding Peter Frank's "testimony" regarding the company's financial condition. The testimony was offered in the form of a verbatim transcript of Mr. Frank's testimony in a previous suit. Owens-Corning maintains that the transcript should have been admitted because admissibility of evidence is a procedural matter governed by Texas law; and, under Texas law, unlike Alabama law, evidence of a defendant's net worth is admissible to aid the jury in its consideration of punitive damages. ³

When Owens-Corning offered the transcript in evidence, appellees objected on two grounds: (1) Alabama law precludes a jury from considering net-worth evidence, although such evidence is relevant in the trial judge's post-verdict review of a punitive-damage award, as set out in Green Oil Co. v. Hornsby, 539 So.2d 218, 222 (Ala.1989); and (2) the transcribed testimony from the earlier lawsuit was inadmissible hearsay because there was no showing of (a) the witness's unavailability or (b) a similar motive or opportunity on appellees' part to cross-examine the witness. See Tex.R.Civ.Evid. 804(a), (b)(1). Without ruling expressly on the hearsay objection, the trial court held the transcript inadmissible based on appellee's first objection. Afterwards, however, the court received Mr. Frank's live testimony during a post-verdict hearing. See Green Oil, 539 So.2d at 222.

We must uphold a trial court's exclusion of evidence if there was any proper ground for that ruling, even a ground not urged during trial. State Bar v. Evans, 774 In points of error two and three, Owens-Corning contends the trial court erred in overruling the company's motion to disallow or remit the punitive-damage awards. Owens-Corning argues the awards are excessive on the following theory: repetitive, cumulative punitive-damage awards, in the context of mass-tort litigation involving asbestos products, violate Alabama substantive law and state and federal due process of law because the objectives of punishment and deterrence underlying punitive damages have already been achieved by previous punitive-damage awards in earlier suits.

S.W.2d 656, 658 n. 5 (Tex.1989); Minnesota Mining & Mfg. v. Nishika, Ltd., 885 S.W.2d 603, 630 (Tex.App.--Beaumont 1994, writ denied). Owens-Corning offered Mr. Frank's testimony in the form of a transcript of in-court testimony given in an unrelated lawsuit. In order for transcribed testimony from another proceeding to be admissible, the proponent of the evidence must show affirmatively that the declarant was "unavailable" as defined in Rule 804(a) of the Texas Rules of Civil Evidence. In response to appellees' hearsay objection, Owens-Corning stated that Mr. Frank resides in California and at the time of trial was vacationing in Europe. However, "[m]ere comments by an attorney are not sufficient proof of a declarant's unavailability." Keene Corp. v. Rogers, 863 S.W.2d 168, 177 (Tex.App.--Texarkana 1993, no writ). And, although Mr. Frank may have been beyond the subpoena power of the court, Owens-Corning did not establish that it was unable to take his deposition or otherwise procure his testimony in this cause before his vacation. See Tex.R.Civ.Evid. 804(a)(5); Hall v. White, 525 S.W.2d 860, 862 (Tex.1975). The trial judge did not err in excluding the evidence. We overrule Owens-Corning's first point of error.

Owens-Corning argues that substantive due process of law prohibits multiple awards of punitive damages for a single course of conduct. This argument has been made in numerous jurisdictions, and the United States Supreme Court has not yet ruled on whether the constitutional guaranty of due process of law limits at some point repetitive awards in mass-tort litigation. Several courts have expressed concern about the difficulties inherent in awarding punitive damages in a mass-tort context and the inevitable possibility of "overkill." See King v. Armstrong World Indus., Inc., 906 F.2d 1022, 1033 (5th Cir.1990), cert. denied, 500 U.S. 942, 111 S.Ct. 2236, 114 L.Ed.2d 478 (1991); Edwards v. Armstrong World Indus., Inc., 911 F.2d 1151, 1155 (5th Cir.1990); Celotex Corp. v. Tate, 797 S.W.2d 197, 209 (Tex.App.--Corpus Christi 1990, no writ). On both due process of law and common law grounds, however, "the vast majority of courts that have addressed the issue have declined to strike punitive damages awards merely because they constituted repetitive punishment for the same conduct." Dunn v. HOVIC, 1 F.3d 1371, 1385-86 (3rd Cir.), cert. denied, 510 U.S. 1031, 114 S.Ct. 650, 126 L.Ed.2d 608 (1993) (collecting state and federal cases); see also Keene Corp. v. Kirk, 870 S.W.2d 573, 581 (Tex.App.--Dallas 1993, no writ); Andrea G. Nadel, Propriety of Awarding Punitive Damages to Separate Plaintiffs Bringing Successive Actions Arising Out of Common Incident or Circumstances Against Common Defendant or Defendants ("One Bite" or "First Comer" Doctrine), 11 A.L.R.4th 1261, 1262 (1982 & Supp.1993).

Owens-Corning cites only one reported case holding that multiple punitive-damage awards violate the constitutional guaranty of due process of law. Juzwin v. Amtorg Trading Corp., 705 F.Supp. 1053, 1064 (D.N.J.1989), vacated, 718 F.Supp. 1233, 1236 (D.N.J.1989) ("Juzwin II "). On reconsideration, however, the district court reiterated its ruling but vacated its original order because it was unable to fashion a "fair and effective remedy." Juzwin II, 718 F. Supp at 1236. ⁴

The theme of Owens-Corning's argument on the issue is that repetitive awards go beyond punishment and deterrence and endanger future plaintiffs' rights to recover compensatory damages. In Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), the Supreme Court fixed the proper scope of appellate review of punitive-damage awards. It is to make "certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition." 499 U.S. at 21, 111 S.Ct. at 1045.

In Haslip, the Court upheld Alabama's common law method for assessing and reviewing punitive-damage awards and approved the Alabama Supreme Court's criteria, as stated in Green Oil, 539 So.2d at 223-24, and Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371, 377 (Ala.1989). These criteria are designed to confine punitive-damage awards within the policy goals underlying punitive damages. ⁵ To determine whether a punitive-damage award is reasonably related to the goals of punishment and deterrence, the following factors may be considered:

(a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred; (b) the degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the "financial position" of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanctions ... to be taken in mitigation; (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.

Haslip, 499 U.S. at 22-23, 111 S.Ct. at 1045 (the "Green Oil factors").

In accordance with Alabama law the trial court in the present case considered the Green Oil factors in its post-verdict hearing and stated on the record its reasons for not interfering with the jury verdict. See Tapley, 546 So.2d at 377. As an appellate court, we must independently evaluate the evidence according to the same criteria. See Haslip, 499 U.S. at 21, 111 S.Ct. at 1045; Tapley, 546 So.2d at 377; see also BMW of N. Am., Inc. v. Gore, 646 So.2d 619, 625-27 (Ala.1994), cert. granted, --- U.S. ----, 115 S.Ct. 932, 130 L.Ed.2d 879 (1995); Kirk, 870 S.W.2d at 583-85. However, we need apply the...