Pittsburgh Corning Corp. v. Walters

• Decision Date: 05 August 1999
• Citation: 1 S.W.3d 759
• Parties: (Tex.App.-Corpus Christi 1999) PITTSBURGH CORNING CORPORATION, Appellant, v. CECILE J. WALTERS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF DOUGLAS F. WALTERS, DECEASED, Appellee. NUMBER 13-97-753-CV
• Court: Texas Court of Appeals

Page 759

1 S.W.3d 759 (Tex.App.-Corpus Christi 1999)

PITTSBURGH CORNING CORPORATION,Appellant, v. CECILE J. WALTERS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF DOUGLAS F. WALTERS, DECEASED,Appellee.

NUMBER 13-97-753-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

August 5,1999.

On appeal from the 28th District Court of Nueces County, Texas. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Before Chief Justice Seerden and Justices Yanez and Chavez

O P I N I O N

Opinion by Chief Justice Robert J. Seerden

This is a products liability and negligence case tried before a jury. Pittsburgh Corning Corporation ("PCC"), appellant, appeals the adverse judgment for damages under the Texas Wrongful Death and Survival Statute.

In seven issues, PCC asserts that: (1) the trial court lacked subject matter jurisdiction over this suit because Cecile Walters lacked standing to bring this claim in Texas under the Texas survival statutes; (2) the trial court erroneously applied Texas substantive law to this case; (3) the trial court erroneously admitted harmful hearsay evidence in the form of a staged and edited videotape of the decedent; (4) the trial court erroneously admitted unqualified and unreliable expert testimony; (5) the trial court erroneously admitted documents that were irrelevant and unfairly prejudicial; (6) the evidence presented is legally and factually insufficient to support a finding of liability; and (7) the evidence presented is legally and factually insufficient to support the jury's damages findings and awards. We affirm.

Factual Summary

Douglas F. Walters was a California resident. In the 1960's, Walters enlisted in the Navy. During his tour of duty, Walters was responsible for some degree of oversight in the process of constructing nuclear submarines. Such construction was done in both California and Virginia. At the time, the Navy used Unibestos, a product manufactured by PCC, in the construction process. As a result, Walters was exposed to Unibestos which contained asbestos. After his Naval career ended in 1971, Walters returned to California. In 1994, Walters sought medical attention for sharp chest pains. A doctor diagnosed Walters with mesothelioma, a cancer caused by asbestos exposure. Walters died in La Mesa, California on August 15, 1994.

On August 5, 1994, Walters and his wife Cecile filed a personal injury action in the 28th District Court of Nueces County, Texas against PCC and twenty-one other defendants seeking damages for Walters' exposure to Unibestos. After Walters' death, his wife, also a California resident, pursued the suit under the Texas survivor statute. See TEX. CIV. PRAC. & REM. CODE ANN. 71.021 & 71.031 (Vernon 1994). By the time of trial, the only remaining defendant in this action was PCC, a corporation with its principal place of business in Pennsylvania. After hearing pre-trial motions, the trial court determined that Texas substantive law would apply to the case.

During the course of the trial, the court permitted Walters to introduce a four-and-a-half-minute videotape with statements from the victim, made approximately four days before his death. In the audio portions, the decedent discussed his overall condition. The parties dispute the underlying nature of the videotape. Both sides admit that the videotape presented at trial was an edited version of a one-and-a-half-hour tape in which counsel asked Walters many questions. PCC claims that the statements contained in the videotape are made in response to expurgated questions from counsel. The court nevertheless admitted the videotape.

Walters also introduced the expert testimony of four individuals who stated unequivocally that asbestos and products containing asbestos cause disease when released into the air. All four experts are medical doctors. One of the four also conducted an extensive review of contemporaneous literature available at or near the time of Walters' exposure. After reviewing Walters' records, the experts concluded that asbestos exposure had caused Walters' death. Each of the four concluded that Unibestos was a dangerous product. Moreover, the experts testified that PCC was negligent and grossly negligent. The court also admitted three exhibits which supported the experts' conclusion that asbestos-based products are dangerous and likely to cause disease in those who are exposed to them.

The jury found PCC liable for negligence and gross negligence based on its production of an unreasonably dangerous product without sufficient warnings. Based on this verdict, the jury returned damages awards in favor of the estate of Douglas Walters, his wife, and his parents. The total of this award, without interest, is approximately $8.8 million.

Standing and Jurisdiction

By its first issue, PCC argues that the Texas wrongful death and survival statutes do not give standing to non-residents suing for an out-of-state death, and therefore, the trial court erred in asserting subject matter jurisdiction over this case.

The wrongful death cause of action in Texas is a purely statutory creation. See generally TEX. CIV. PRAC. & REM. CODE ANN. 71.001 et seq. (Vernon 1997). An individual may bring "an action for actual damages arising from an injury that causes an individual's death" if a basis for liability exists. TEX. CIV. PRAC. & REM. CODE ANN. 71.002 (Vernon 1997). An individual may pursue a wrongful death claim even though the injury giving rise to the action occurred in a foreign state. TEX. CIV. PRAC. & REM. CODE ANN. 71.031 (Vernon 1997). Finally, a wrongful death action survives the individual "to and in favor of the heirs, legal representatives, and estate of the injured person." TEX. CIV. PRAC. & REM. CODE ANN. 71.021(a) & (b) (Vernon 1997). PCC claims that because none of the actions occurred in Texas and none of the parties are Texas residents, Walters lacked standing to bring this action in Texas.

The record does reflect that the Unibestos product was produced in Tyler, Texas in the early 1960's, a time which approximately corresponds with Walters' exposure to the asbestos fibers.¹ Furthermore, the record indicates that PCC did not make a special appearance, but did, however, file a motion to transfer venue, which the trial court denied. PCC does not contest that ruling. Thus, any objections to personal jurisdiction or venue have been waived. See TEX. R. CIV. P. 120a(1).

Regardless, the concept of standing is fundamental. A contest to standing is never waived and there is never a presumption that standing exists. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).

The issue of non-resident standing to bring a statutory wrongful death claim in Texas for injuries occurring outside of the State appears to be one of first impression. Clearly, a Texas resident may bring suit in this state for a death occurring elsewhere. See Total Oilfield Servs., Inc. v. Garcia, 711 S.W.2d 237, 238-39 (Tex. 1986). Other cases have been resolved with only a tacit discussion of non-resident standing. See Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 679 (Tex. 1990) (discussing only the doctrine of forum non conveniens in a suit with similar facts). In the most similar case to the instant dispute, the El Paso Court of Civil Appeals suggested in a personal injury case that the statutory predecessor to section 71.031 "opens the courts of this state to citizens of a neighboring state and gives them an absolute right to maintain a transitory action of the present nature and to try their cases in the courts of this state." Allen v. Bass, 47 S.W.2d 426, 427 (Tex. Civ. App.--El Paso 1932,writ ref'd) (emphasis added). The Texas Supreme Court accepted this construction of section 71.031. See Alfaro, 786 S.W.2d at 679 (stating that the court's refusal of the application for writ of error manifests its approval of the decision of the appellate court).

In Alfaro, the court was faced with relatively similar facts. A foreign plaintiff brought a cause of action in Texas for injuries he sustained in Costa Rica. Id. at 681 (Doggett, J., concurring). He was working on a plantation owned by a Florida corporation. Id. He was injured by pesticides supplied by Shell Oil Company, headquartered in Houston, and Dow Chemical, a Michigan corporation conducting extensive operations in Texas including the manufacture of chemicals in Freeport. Id. Alfaro sued Dow and Shell in Harris County in April of 1984, alleging that the court had jurisdiction pursuant to article 4678 of the Revised Statutes.² The defendants contested the jurisdiction of the trial court and alternatively filed a motion to dismiss under the doctrine of forum non conveniens. Id. at 675. The trial court found it had jurisdiction over the suit, but nevertheless dismissed the suit on the alternative ground. Id. Focusing on the applicability of forum non conveniens under the civil practiceandremedies code, the supreme court held that section 71.031 had abolished the doctrine. Id. at 679. Thus, the matter was allowed to proceed to trial.

Four justices filed vigorous dissenting opinions. Importantly, however, each acknowledged the implicit holding in Alfaro: a non-resident plaintiff may bring an action for wrongful death or personal injury in this state, notwithstanding certain procedural countermeasures. For instance, Chief Justice Phillips noted in his dissent that "the statute allows these plaintiffs to bring suit in Texas," but noted that the trial court should have the power to apply common law procedural defenses as a limiting factor. Id. at 689 (Phillips, C.J., dissenting). Justice Cook acknowledged that "properly read, the statute is asymmetrical. . . . it confers upon the plaintiffs an absolute right to bring claims in our courts, [but] it does not impose upon our courts an absolute...