Owens-Corning Fiberglas Corp. v. Malone

• Decision Date: 04 January 1996
• Docket Number: No. 01-94-00468-CV,OWENS-CORNING,01-94-00468-CV
• Citation: 916 S.W.2d 551
• Parties: FIBERGLAS CORPORATION, Appellant, v. Roy MALONE, Mary Malone, Nick Garefalos, Pat Garefalos, and Thomas Gillespie, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 551

916 S.W.2d 551

OWENS-CORNING FIBERGLAS CORPORATION, Appellant, v. Roy MALONE, Mary Malone, Nick Garefalos, Pat Garefalos, and Thomas Gillespie, Appellees.

No. 01-94-00468-CV.

Court of Appeals of Texas Houston (1st Dist.).

Jan. 4, 1996.

Rehearing Overruled Feb. 14, 1996.

Edward Cavazos, Kevin F. Risley, Bob Ballard, Houston, for appellant.

Lawrence Madeksho, David Gunn, W. James Kronzer, Houston, for appellees.

Before HEDGES, ANDELL and TAFT, JJ.

OPINION

HEDGES, Justice.

In this "failure to warn" products liability action, the plaintiffs sued appellant, Owens-Corning Fiberglas Corporation (OCF), and a number of other manufacturers of asbestos-containing products. ¹ Ray Malone, Thomas Gillespie, and Nick Garefalos each alleged that he had an asbestos-related disease as a result of exposure to defendants' products; Mary Malone and Patricia Garefalos claimed loss of consortium as a result of their spouses' illnesses.

Before the case was submitted to the jury in the first phase of the bifurcated trial, the plaintiffs settled with all the defendants except OCF, Allied-Signal, Inc., Garlock, Inc., and Pittsburgh Corning Corporation. All the plaintiffs had claims against OCF, although they did not all have claims against the other three defendants. ²

The jury found: that all three men had been exposed to an asbestos-containing product manufactured or sold by OCF; that OCF's product was defective ³ when it left OCF's possession, and that OCF was grossly negligent in the marketing of its product. The jury also found that the product manufactured by Pittsburgh Corning was defective but that the products made by Allied-Signal and Garlock were not defective. Pittsburgh Corning settled with the Garefalos before the second phase of the trial began. Thus, the only defendant remaining during the second phase of the trial was OCF.

During the second phase, the parties presented evidence on causation and damages. The jury found that the marketing defect of OCF's product was a producing cause of asbestos-related disease in all three men and awarded compensatory and punitive damages. The trial court found that OCF was entitled to a credit for all settlements received by the plaintiffs and reduced the compensatory damages awards accordingly. The judgment awarded compensatory damages totalling $3,030,000; additionally, all three men were awarded $500,000 apiece in punitive damages.

Failure to warn

In a failure-to-warn case, the plaintiffs must establish that the dangers were reasonably foreseeable or scientifically discoverable at the time of the exposure. Fibreboard Corp. v. Pool, 813 S.W.2d 658, 668 (Tex.App.--Texarkana 1991, writ denied). All manufacturers are held to the knowledge and skill of an expert. Id.

Preservation of error

Eighteen of OCF's 29 points of error deal with the allegedly erroneous admission of evidence. In their brief, plaintiffs frequently assert that OCF failed to preserve error with respect to many of these evidentiary rulings, either because: (1) although counsel for another defendant objected, OCF's trial counsel did not object; or (2) OCF objected only in a motion in limine and not at trial. Before we address OCF's points of error, we address the issue of preservation of error.

The trial court required the parties to file written objections to all tendered exhibits prior to trial. On September 1, 1993, OCF filed its "Objections of Owens-Corning Fiberglas Corporation to Plaintiffs' Exhibits," which included 92 pages of single-spaced objections to hundreds of documents tendered by plaintiffs. After voir dire but before the plaintiffs began their case-in-chief, the trial court explained its procedure for ruling on objections:

What we're going to do is I'm going to put in the record--all the exhibits are not going to be admitted into evidence. They're simply going to be told which pile will be admitted. Y'all may choose not to put any. But when the plaintiff[s] get ready to put a document in evidence, he'll [sic] pull document 52 out, tender it in evidence, then I'll just admit it and I'll put in advance of the trial Monday afternoon that all objections will be preserved and treated as having been made at the time that the document's tendered. And all documents that I'm telling you will be admitted into evidence go in the admissible pile, those objections will be overruled, treated as timely made and those documents will come in without the objections having to be reurged.

The trial court then ruled on many of the defendants' pretrial objections:

Now let the record reflect that all of these exhibits were objected to and all of the objections to these exhibits are overruled with the exception of the authentication objection, and at the time the exhibit is tendered, I will rule on the authentication objection if it is reurged by any of the defendants. All objections to these were filed in advance of trial on my order and all of the objections that I have overruled as to these documents do not have to be raised again at the time the document is tendered in this trial, but those objections are preserved and there is no waiver for failing to urge those objections at the time the document is filed, with the exception of the authentication objection.

(Emphasis added.) The trial court was adamant that objections on which he had ruled were not to be reurged: "I'll make it very clear. No lawyer is allowed to repeat their [sic] objections. The court has preruled on everything but authentication."

The trial court also required that an objection made by one defendant would be made on behalf of all defendants:

The Court: Mr. Tolin, put on the record what we talked about earlier about the objection of one is applicable to all.

Mr. Tolin: Your Honor, on behalf of all defendants, throughout the course of trial an objection made by one defendant will inure to the benefit of all defendants and be considered to have been made on behalf of all defendants. That would include evidentiary objections from this point through all types of objections.

The Court: I'll allow that in this case.

We disagree with plaintiffs' contention that "OCF's attempt to rely on the objections made by others should be rejected." It is true that in trials involving multiple defendants, a party must make its own objection to the evidence if it wishes to preserve error for appeal. Celotex Corp. v. Tate, 797 S.W.2d 197, 202 (Tex.App.--Corpus Christi 1990, no writ). However, in this case, the trial court apparently required and the defendants agreed that an objection made by one defendant would be considered as having been made on behalf of all defendants. Plaintiffs did not object to this arrangement.

In Celotex, the trial court granted the defendants' request that one defendant's objection would preserve error for all defendants. 797 S.W.2d at 201. The court of appeals found the trial court's action proper:

Under TEX.R.CIV.EVID. 611(a)(2), a trial court is given the authority to exercise reasonable control over the presentation of evidence at trial, so as to avoid the needless consumption of time. We find that by exercising its discretion under Rule 611, a trial court may properly grant such a request.

Without exception from appellees, the trial court expressly ruled that one objection preserved error for all. Armed with this pretrial ruling, Celotex is free to rely on any defendant's objection, just as if it was its own.

Id. at 201-02. For the same reasons, OCF may rely on any objection made by any defendant.

We further disagree with plaintiffs' assertion that OCF's pretrial objections were a motion in limine. A motion in limine merely precludes reference to the subject of the motion without first obtaining a ruling on the admissibility of those matters outside the presence of the jury. CLS Assoc., Ltd. v. A--- B---, 762 S.W.2d 221, 224 (Tex.App.--Dallas 1988, no writ). A ruling on a motion in limine preserves nothing for appellate review. See Glenn v. Kinco Crane, Inc., 836 S.W.2d 646, 648 (Tex.App.--Houston [1st Dist.] 1992, no writ). The document filed by OCF was not a motion in limine; it was a list of objections to plaintiff's exhibits that had been filed pursuant to an order of the trial court.

A trial court has the authority to make a pretrial ruling on the admissibility of evidence. Reveal v. West, 764 S.W.2d 8, 10 (Tex.App.--Houston [1st Dist.] 1988, orig. proceeding); see also TEX.R.CIV.EVID. 102 (one purpose of rules of evidence is to eliminate unjustifiable expense and delay); TEX.R.CIV.EVID. 103(a)(1) ("When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.") It is clear from the record that the trial court ruled on the objections as it did in order to prevent long delays. We conclude that: (1) the trial court had the authority to require the parties to file pretrial written objections to all tendered exhibits and to make pretrial rulings on those objections; and (2) OCF's pretrial evidentiary objections were sufficient to preserve error. Plaintiffs' general challenges to OCF's preservation of error are thus without merit.

Evidentiary rulings

OCF asserts that the trial court made a number of erroneous evidentiary rulings. The standard of review for the admission or exclusion of evidence is abuse of discretion. Lyondell Petrochemical Co. v. Fluor Daniel, Inc., 888 S.W.2d 547, 550 (Tex.App.--Houston [1st Dist.] 1994, writ denied). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was erroneous and that the error was calculated to cause and probably did cause the rendition of an improper judgment. Id.; TEX.R.APP.P. 81(b)(1). The erroneous admission of evidence that is merely cumulative of properly...