Owens-Illinois, Inc. v. Chatham, OWENS-ILLINOI

• Decision Date: 13 April 1995
• Docket Number: INC,No. B14-91-00539-CV,OWENS-ILLINOI,B14-91-00539-CV
• Citation: 899 S.W.2d 722
• Parties: , Fibreboard Corporation, Pittsburgh-Corning Corporation, and Manville Corporation Asbestos Disease Compensation Fund, Appellants, v. Horace CHATHAM, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 722

899 S.W.2d 722

OWENS-ILLINOIS, INC., Fibreboard Corporation Pittsburgh-Corning Corporation, and Manville Corporation Asbestos Disease Compensation Fund, Appellants, v. Horace CHATHAM, et al., Appellees.

No. B14-91-00539-CV.

Court of Appeals of Texas Houston (14th Dist.).

April 13, 1995. ^*

Rehearing Overruled May 25, 1995.

George T. Shipley, James H. Powers, Jack G. Carnegie, Houston, John Cummings, William B. Griffin, San Francisco, CA, R. Lyn Stevens, Beaumont, for appellants.

Richard N. Countiss, John E. Williams, Jr., Houston, for appellees.

Before SEARS, MURPHY and DRAUGHN, JJ. ^*

OPINION ON MOTION FOR REHEARING

MURPHY, Justice.

Owens-Illinois, Inc. (O-I), Fibreboard Corporation (Fibreboard), Pittsburgh-Corning Corporation (P-C), and Manville Corporation Asbestos Disease Compensation Fund (Manville), collectively appellants (defendants in the trial court), appeal from judgments entered by the trial court following jury verdicts in favor of appellees (plaintiffs in the trial court). We affirm in part, and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

In 1990, the trial court, under TEX.R.CIV.P. 174(a), consolidated 289 asbestos personal injury suits that were filed from 1985 through 1989. Plaintiffs, workers at the Exxon Refinery in Baytown, Texas, brought the suits. They claimed that the defendants' products, allegedly present in the refinery at certain times during a seventy-year span, caused them to suffer injuries because the products contained asbestos. The case ultimately involved 289 direct plaintiffs and 298 derivative plaintiffs, such as spouses, heirs, and other family members, for a total of 587 claimants. ¹ Plaintiffs originally sought recovery from numerous defendants who allegedly manufactured asbestos containing products used in the Baytown refinery at certain periods in the seventy-year time frame; however, twenty of the defendants settled with the plaintiffs before trial, and plaintiffs proceeded to trial against five defendants. ²

The consolidated trial began September 17, 1990, and the jury retired to deliberate on January 10, 1991. On January 29, 1991, the jury returned its verdicts. ³ The majority of the verdicts were for plaintiffs against either O-I, P-C, Fibreboard, Manville, or a combination thereof. ⁴ On May 6, 1991, the trial court entered its judgment based on the jury's verdicts. Appellants appeal from this judgment.

MOTION TO REVERSE AND REMAND

On December 27, 1991, appellants filed "Appellants' Joint Motion to Reverse and Remand." Appellees responded to this motion and this court ordered the motion taken with the case. In the motion, appellants contend that three separate groups of documents, containing approximately 900 of the exhibits offered at trial, were lost or destroyed. Appellants thus contend this court must reverse and remand the case for a new trial under TEX.R.APP.P. 50(e).

As we have stated, this case was a consolidation of 289 separate lawsuits involving almost 600 direct and derivative plaintiffs. Of the 289 direct plaintiffs, fewer than twenty testified at trial; even fewer derivative plaintiffs testified. In lieu of direct testimony, the trial court allowed each side to use summaries during the consolidated trial. Appellants contend that three of the summaries were destroyed or lost and thus, they are prevented from presenting an adequate appeal. The summaries that were allegedly lost or destroyed are: (1) a summary of plaintiffs' interrogatory answers offered by the defendants; (2) medical record summaries prepared by Dr. Gary Friedman, a witness for the plaintiffs; and (3) summaries of biographical and medical information for each direct plaintiff. Appellants argue that because one or more of these sets of documents was lost or destroyed, they cannot effectively show this court the errors involved and are entitled to a new trial. Texas Rule of Appellate Procedure 50(e) states:

Lost or Destroyed Record. When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.

TEX.R.APP.P. 50(e). We will discuss each set of documents separately.

SUMMARY OF PLAINTIFFS' INTERROGATORY ANSWERS

Appellants claim the summary of plaintiffs' interrogatory answers to certain interrogatories regarding product identification is missing. Appellants offered this summary for admission into evidence during trial. The trial court ruled that the summary of the interrogatory answers could be read to the jury; however, the court refused to admit the written summary into evidence and ruled that the jury could not inspect the document. Appellants contend that the refusal to admit the written summary is error, and that they are prevented from properly appealing this point because the document is missing. Appellants are incorrect. While the summary is not in the appellate record, it was not lost or destroyed as contemplated by rule 50(e).

During a post-verdict hearing on May 15, 1991, the trial court stated that the summary was not marked or put into the record during trial. Appellants agreed that there was no mention in the evidence log of the summary. To correct this deficiency, appellants attempted to present a formal bill of exceptions. Appellants offered the summary at this hearing in connection with their bill of exceptions. In response to this proffer, the trial court stated: "All right. That will be made part of this record." And indeed, the summary is in the record as an exhibit from the May 15, 1991, hearing. Thus, the summary is not "lost or destroyed" under TEX.R.APP.P. 50(e).

Appellants' real complaint is that the trial court did not sign the bill of exceptions. They contend that since the trial court did not sign the bill of exceptions, the summary is, for all practical purposes, missing. The argument is, essentially, that while the summary is in the record, it isn't really part of the record. Appellants are wrong. Contrary to appellants' contention, the trial court did not refuse to allow appellants to substitute a duplicate of the summary. In fact, as we stated above, the trial court specifically stated that the summary would be made part of the record. Therefore, while the trial court did not sign the formal bill of exceptions offered by appellants, it impliedly granted that portion of the bill pertaining to the summary, thereby allowing appellants to preserve any evidentiary complaint relating to the summary for appeal. ⁵ If appellants take issue with the procedures followed by the trial court regarding their bill of exceptions, there is nothing to prevent them from asserting that contention. Their complaint about the summary of the interrogatory answers is evidentiary in nature; it has nothing to do with a lost or destroyed record as intended in rule 50(e). The summary of plaintiffs' interrogatory answers cannot form the basis for a reversal under TEX.R.APP.P. 50(e).

FRIEDMAN MEDICAL RECORD SUMMARIES

The second set of documents that appellants contend were lost or destroyed are approximately twenty-four medical summaries prepared by Dr. Gary Friedman, an expert witness for the plaintiffs. Dr. Friedman personally prepared summaries on a few of the plaintiffs and testified about the summaries during trial. We have reviewed the entire set of exhibits transmitted to this court and have determined that the Friedman medical summaries are not among the exhibits in the appellate record. Appellants contend that the exhibits were lost or destroyed and because of the loss or destruction, they are entitled to a new trial under TEX.R.APP.P. 50(e). Appellees have not agreed that these summaries were lost or destroyed.

We have reviewed numerous cases involving the loss or destruction of the statement of facts under rule 50(e). In almost every instance, there was some evidence in the record showing that the item or items in question were in fact lost or destroyed. See Lewis v. State, 844 S.W.2d 750, 752 (Tex.Crim.App.1993) (court reporter's affidavit); Adams v. Transportation Ins. Co., 845 S.W.2d 323, 325, 327 (Tex.App.--Dallas 1992, no writ) (court reporters' testimony at hearing conducted by trial court supporting findings by trial court); Mader v. State, 807 S.W.2d 439, 440 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd) (hearing conducted by trial court); Hidalgo, Chambers & Co. v. FDIC, 790 S.W.2d 700, 701 (Tex.App.--Waco 1990, writ denied) (parties agree original exhibits lost); Darley v. Texas Uvatan, Inc., 754 S.W.2d 304, 305 (Tex.App.--Dallas 1988, no writ) (affidavit of appellant's counsel). ⁶

Other than their absence from the appellate record, nothing suggests the Friedman summaries have been lost or destroyed: there are no affidavits or other statements from the court reporter or any of the clerks who handled the exhibits during this trial; there are no affidavits or other sworn statements from appellants or their counsel; there were no findings by the trial court regarding the whereabouts of these exhibits. Since the record contains no evidence supporting appellants' contention that the exhibits in question were lost or destroyed, it is possible the exhibits do exist and were simply not transmitted as requested. Appellants have not shown the Friedman summaries have been lost or destroyed within the purview of rule 50(e). Without the requirement that the complaining party provide some evidence of loss or destruction, every appellant who initially received an incomplete statement of facts could allege entitlement to a new trial. Rule 50(e) is not aimed at this situation. Without some sort of evidence in the record to show that...