Opinion
No. 05-17-00979-CV
08-23-2019
BELL HELICOPTER TEXTRON, INC., Appellant v. Shirley DICKSON, Individually and as Representative of the Estate of Billy Dickson, Deceased, Randall C. Dickson, Daryl W. Dickson, Deana K. Boaz Kizer, Appellees
MEMORANDUM OPINION
Bell Helicopter Textron, Inc. appeals the trial court's judgment awarding damages and post-judgment interest to appellees Shirley Dickson, individually and as representative of the estate of Billy Dickson, deceased, Randall C. Dickson, Daryl W. Dickson, and Deana K. Boaz Kizer on their claims arising from Billy Dickson's death from mesothelioma. In four issues, Bell argues the evidence is legally and factually insufficient to support the jury's findings on the causation elements of appellees' gross negligence claim, the trial court erred by excluding evidence of Billy's asbestos exposure at locations other than Bell, and the trial court erred in applying the exemplary damage cap. We reverse the trial court's judgment and render judgment that appellees take nothing on their claims.
On May 30, 2012, appellees filed in the 191st District Court in Dallas County an original asbestos petition and jury demand asserting, among other things, that Billy suffered from mesothelioma and alleging claims of products liability, strict products liability, negligence, and gross negligence against seven defendants. Billy was an engineer at Bell from 1962 to 1968 who did not perform any hands-on work with asbestos-containing materials but who supervised others who built testing enclosures that Billy designed. Bell was not one of the named defendants. On July 2, 2012, the case was transferred by the Multidistrict Litigation Panel to the 11th District Court in Harris County. On February 27, 2013, appellees filed their second amended petition naming Bell as a defendant. On December 15, 2013, Billy died.
On June 11, 2014, plaintiffs' fourth amended petition was filed naming as plaintiffs Billy's wife and three children ("appellees"). As the case progressed, appellees settled some of their claims and dismissed others, leaving Bell as the only defendant. Appellees' claim against Bell was limited to a claim of gross negligence. Prior to trial, the case was transferred back to Dallas County.
At trial, Dr. Edwin Holstein testified he is a medical doctor with specialties in internal medicine and preventative medicine with a subspecialty in occupational medicine. Holstein testified he taught both medical doctors and industrial hygienists about asbestos and other dusts that can be harmful to humans. Holstein testified he reviewed Billy's medical records and deposition testimony. Holstein testified the term "bystander exposure" was relevant to Billy's case because Billy was an engineer at Bell and, because of union rules, he was not allowed to touch any tools. As a result, Billy was a bystander to the work performed by others in constructing enclosures for testing work, allegedly exposing Billy to asbestos, and he stood "a foot or two or five or eight feet away from the work they were doing." Holstein testified the "bottom line" was that, "for the exposures that [Billy] had at Bell, he was a bystander." Following extensive additional testimony concerning Holstein's training and experience, the trial court certified Holstein as an expert on issues of occupational and preventative medicine, particularly the causation of asbestos-related diseases generally and specifically "the asbestos-related disease that Billy Dickson was diagnosed with and the causation thereof."
Holstein testified he had reviewed Billy's deposition and described Billy's exposure to asbestos at Bell as "intermittent" with "relatively brief periods of exposure" during which "the exposure would be intense." The exposures occurred "several times per month for about six years." In testing helicopter components, Bell constructed enclosures to insulate the surrounding area from the heat that was generated during testing. Holstein testified, "According to [Billy's] testimony, they used an asbestos-containing millboard," which was "a little bit like a wall panel, Sheetrock about half an inch thick typically and comes in sheets." Holstein testified they used the millboard to construct the enclosures, and the millboard was "between 25 percent and 75 percent asbestos." Bell's counsel objected that there was no foundation for this testimony and "no evidence of that in [Billy's] testimony and far exceeds that." The trial court sustained counsel's objection. Holstein then was asked if, based upon his review of Billy's testimony, he could "get an indication ... as to what type of asbestos-containing insulation boards he was – he was identifying?" Holstein responded that Billy did not give a brand name, and Holstein could not "assign a brand name," but Holstein testified "asbestos-containing millboard for purposes of insulation was a standard product." Holstein testified there were "only approximately five manufacturers of it," and he relied on "certain studies" concerning the "composition of those millboards" and the "air concentration that stemmed from the cutting of those millboards."
In response to questioning, Holstein agreed that the studies he relied upon were "the 1970 study done by Carter," the "1999 study on Micarta panel work simulation practices by Hatfield and Longo," the "Marinite board study" in "May 2001 by Hatfield and Longo," and a study in 1989 in Virginia on behalf of the E.P.A. Holstein testified he was able to make an approximation of Billy's asbestos exposure at Bell based on Billy's deposition testimony detailing his work history. Holstein described Billy's work history as follows:
Okay. So he was an engineer. He designed the enclosures, and then he took his plans to the workmen and said, I want you to build these enclosures for this experiment we're now going to do
on the helicopter component in order to insulate it because there's going to be a lot of heat in there, so we need to build this enclosure to keep the heat in. And then he would come into the laboratory area and he would supervise it to make sure it was being built correctly. He testified he spent about half of his work day for six years, from 1962 to 1968, about half of each work day was spent in that area. But they weren't building these enclosures every time he was there, that was something that he might supervise three or four times a month on average. And when he would be supervising it, he might be there for half an hour. Sometimes it was 15 minutes, sometimes it was 45 minutes, but on average about half an hour.
Holstein testified Billy's asbestos exposure at Bell "Considerably more than doubled his risk of getting mesothelioma, which ultimately he did get."
Holstein testified concerning the history of medical studies into the effects of asbestos, beginning with a 1927 medical article describing a person who had worked with asbestos and died from scarring of the lungs. Holstein testified the Walsh-Healey Act was passed in 1951, Bell was required to comply with the Act, and the Act restricted asbestos exposure to 5 million particles per cubic foot. Holstein testified a 1958 Texas law also limited asbestos exposure to 5 million particles per cubic foot, and Bell would have been on notice as to the hazards of asbestos no later than 1951. In 1960, the publication of an article reporting 33 cases of mesothelioma established beyond a reasonable doubt that asbestos caused asbestosis, lung cancer, and mesothelioma.
On cross-examination, Holstein agreed Billy's deposition testimony was that the cutting of asbestos board occurred ten or twenty times or "more" but it could not have been as many as a hundred times. Holstein testified his calculation that the board cutting occurred 252 times was "an approximation," and Billy's testimony elsewhere in his deposition supported the higher number. Bell's counsel asked if Holstein was aware Bell had a record retention policy under which documents were only kept for thirty years, and Holstein said he was not aware of Bell's policy. Holstein conceded "there would be no surprise" Bell did not have corporate documents from the 1960s for Holstein to review if Bell has a 30-year document retention policy. Holstein agreed that Billy was an engineer who designed the enclosures and who was responsible for "making sure the heat enclosure would work."
The jury subsequently found by clear and convincing evidence that the harm to Billy was proximately caused by the gross negligence of Bell. The trial court rendered judgment on the verdict and denied Bell's motion for new trial. This appeal followed.
In its first issue, Bell argues the evidence is legally insufficient to support the jury's findings on the objective, subjective, and/or causation elements of appellees' gross negligence claim.
In section 408.001, the labor code provides that "[r]ecovery of workers' compensation benefits is the exclusive remedy of an employee ... or a legal beneficiary against the employer for the death of ... the employee." TEX. LAB. CODE ANN. § 408.001(a). Paragraph (b) of that section provides that "[t]his section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused ... by the employer's gross negligence." Id. § 408.001(b). Section 408.002 provides, "A right of action survives in a case based on a compensable injury that results in the employee's death." These three provisions generally prohibit an employee receiving workers' compensation benefits or his beneficiaries from bringing suit against the employer for actual damages. However, the provisions permit the spouse and heirs of a deceased employee to bring suit for the death of the employee and to recover exemplary damages from the employer for its gross negligence notwithstanding the fact that workers' compensation benefits were paid for the employee's death. See Wright v. Gifford–Hill & Co. , 725 S.W.2d 712, 714 (Tex. 1987) ; City of Dallas v. Gatlin , 329 S.W.3d 222, 226 (Tex. App.—Dallas 2010, no pet.).
In reviewing an award for exemplary damages, we conduct a legal sufficiency review under the "clear and convincing" evidence standard. U-Haul Int'l, Inc. v. Waldrip , 380 S.W.3d 118, 137 (Tex. 2012). " ‘Clear and convincing’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. CIV. PRAC. & REM. CODE § 41.001(2) ; Waldrip , 380 S.W.3d at 137. The standard for legal sufficiency works in tandem with the standard of review—"whenever the standard of proof at trial is elevated, the standard of appellate review must likewise be elevated." City of Keller v. Wilson , 168 S.W.3d 802, 817 (Tex. 2005) (quoting S.W. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 627 (Tex. 2004) ). Accordingly, our legal sufficiency review must consider all the evidence. Id.
Gross negligence consists of both objective and subjective elements. Waldrip , 380 S.W.3d at 137. Plaintiffs must prove by clear and convincing evidence that 1) when viewed objectively from the defendant's standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and 2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Id.
Under the objective component, "extreme risk" is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury. Id. The risk must be examined prospectively from the perspective of the actor, not in hindsight. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 248 (Tex. 2008). The subjective prong, in turn, requires that the defendant knew about the risk, but that the defendant's acts or omissions demonstrated indifference to the consequences of its acts. Waldrip , 380 S.W.3d at 137. In essence, appellees must establish that Bell was aware that the cutting of boards and Billy's supervision of the construction of enclosures posed an extreme degree of risk and that Bell had actual, subjective awareness that Billy could develop mesothelioma as a result of supervising the construction but nevertheless proceeded to allow Billy to supervise the construction. See id.
Here, the evidence showed Billy himself designed the testing enclosures and supervised their construction. Billy was a "bystander" to the construction process. In his deposition, Billy testified he did not know where the boards he used for the enclosures came from. Billy did not know any specific brand name associated with the boards, and there were no labels, tags, or packaging he saw with the boards. When asked how he gained an understanding or belief that the boards contained asbestos, the following exchange occurred:
Billy: Well, based on what it – what the inside of the boards looked like, they later determined that that's what asbestos looks like, fibers.
Q: When did you determine that?
Billy: Oh, it was recently.
Q: How did you determine that?
Billy: The last few years.
Q: What was the source of information that brought you to that conclusion?
Billy: Well, it's just that I've learned what it looked like.
Based on a review of Billy's deposition testimony, Holstein concluded the millboard used in the construction of the testing enclosures contained asbestos and was "a standard product" produced by "only approximately five manufacturers." In extrapolating Billy's approximate asbestos exposure at Bell based on Billy's deposition testimony detailing his work history, Holstein relied on studies conducted in 1970 and later years. Holstein testified Bell would have been on notice as to the hazards of asbestos no later than 1951.
There is no evidence in the record that Bell failed to comply with any laws imposing limits on asbestos exposure. Holstein acknowledged that it was unlikely Billy was ever exposed to asbestos in excess of the limitations on exposure of the Walsh-Healey Act or Texas law. Further, Holstein testified that Billy would "almost certainly not have had exposures that on an eight-hour time-weighted average basis would have gone above the 5 million particles per cubic foot of the Walsh-Healey Act."
However, Holstein offered no testimony concerning what Bell knew about the millboard used to construct testing enclosures between 1962 and 1968 when Billy was supervising the construction. Billy himself did not know until a "few years" before his deposition that the "inside of the boards looked like" asbestos. Thus, Billy did not know at the relevant time that the boards might contain asbestos, and there is no evidence that Bell knew of a risk to him but proceeded to allow Billy to use asbestos-containing boards. Bell's knowledge of the "hazards of asbestos" generally is no evidence that Bell was aware that the cutting of boards and Billy's supervision of the construction of enclosures posed an extreme degree of risk to Billy and that Bell had actual, subjective awareness that Billy could develop mesothelioma as a result of supervising the construction but nevertheless proceeded to allow Billy to supervise the construction. See id. Further, all of the studies Holstein relied upon in approximating Billy's asbestos exposure were conducted after the relevant 1962 to 1968 time period and were no evidence of Bell's awareness of an extreme risk posed by the cutting of the boards between 1962 and 1968. The risk must be examined prospectively from Bell's perspective, not in hindsight. See Hogue , 271 S.W.3d at 248. We conclude appellees presented no evidence to prove by clear and convincing evidence either the objective or subjective elements of gross negligence. See Waldrip , 380 S.W.3d at 137. We sustain Bell's first issue. Because of our disposition of Bell's first issue, we need not address Bell's remaining issues.
We reverse the trial court's judgment and render judgment that appellees take nothing on their claims.
CONCURRING OPINION ON MOTION FOR EN BANC RECONSIDERATION
Concurring Opinion by Justice Whitehill
I agree with the decision to deny en banc rehearing in this case because the panel opinion was correctly decided. I also write separately to address the dissenting opinion's suggestion that this Court, as previously constituted, had a predilection against jury verdicts.
I.
This is a gross negligence case. To recover, Dickson had to prove by clear and convincing evidence that: (1) when viewed objectively from [Bell's] standpoint at the time of the event, the act or
omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) [Bell] had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
Goodyear Tire & Rubber Co. v. Rogers , 538 S.W.3d 637, 644–45 (Tex. App.—Dallas 2017, pet. denied) (quoting U-Haul Int'l, Inc. v. Waldrip , 380 S.W.3d 118, 137 (Tex. 2012) ).
I agree that Goodyear was correctly decided and is binding precedent in this case. Likewise, as we stated in both Goodyear and the panel opinion in the present case, Waldrip is binding precedent that we followed in both instances. The dissenting opinion does not assert that we misstated the law in this case. Instead, its premise is that the panel here overlooked evidence that, if it existed, might prompt a different result. But even if that were correct (and it's not), that would not be grounds for en banc reconsideration. See Tex. R. App. P. 41.2(c).
Upon a brief survey of recent jury verdicts reversed by panels of this court, I note several cases, and do so not to accuse the prior members of this court of, as the concurring opinion says, having "a predilection against jury verdicts" or "bias against jury verdicts." Rather, I note these specific cases, as I say, for their misapplication of the legal sufficiency standard of review. See, e.g. , Inland W. Dallas Lincoln Park Ltd. P'ship v. Nguyen , No. 05-17-00151-CV, 2018 WL 4103292 (Tex. App.—Dallas Aug. 29, 2018) (mem. op.) (reversing jury verdict on issue not raised by appellant), withdrawn and superseded , 2018 WL 6583024 (Tex. App.—Dallas Dec. 14, 2018, no pet. h.) (mem. op.) (reversing jury verdict for lack of direct evidence as to fraud, though arguably, circumstantial evidence supported it; reversing verdict on negligent misrepresentation for insufficient damages evidence in complex damages question in unique situation where several measures of relevant damages were established); Viking Healthcare, LLC v. Zeig Elec., Inc. , No. 05-15-00835-CV, 2016 WL 7448335 (Tex. App.—Dallas Oct. 27, 2016, pet. denied) (mem. op.) (reversing post-jury-verdict judgment and remanding for new trial based on invited Casteel -type error by recharacterizing it, at appellant's invitation, as a sufficiency complaint); Brandt Cos., LLC v. Beard Process Sols., Inc. , No. 05-17-00780-CV, 2018 WL 4103210 (Tex. App.—Dallas Aug. 29, 2018, pet. granted, judgm't vacated w.r.m.) (mem. op.) (involving "two ships Peerless"-type problem: a jury found for Beard that it did not agree to a contract with Brandt; this court reversed because it found evidence "conclusively established" a contract existed and, confusingly, "less than a scintilla of evidence" supported the jury's conclusion that the parties "did not enter into a written subcontract"; the panel ignored settled contract principles regarding the evidence supporting the verdict, primarily that "the parties must assent to the same thing, in the same sense, at the same time," see Citibank (S. Dakota), N.A. v. Tran , No. 05-11-01423-CV, 2013 WL 3205878, at *3 (Tex. App.—Dallas June 21, 2013, pet. denied) (mem. op.); Restatement (Second) of Contracts , § 20 ("Effect of Misunderstanding ... There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and ... neither party knows or has reason to know the meaning attached by the other....")); Dallas Cty. Sch. v. Green , 518 S.W.3d 449 (Tex. App.—Dallas 2016), rev'd sub nom. Green v. Dallas Cty. Sch. , 537 S.W.3d 501 (Tex. 2017) (per curiam) (reversing because intermediate appellate court erred by requiring proof from employee that congestive heart failure caused urinary incontinence when Texas law, unobjected-to portions of jury charge, and evidence before the jury allowed conclusion that incontinence was itself a disability).
There is evidence that Bell probably had access to information during the relevant time period indicating that, as a general premise, asbestos exposure could be dangerous. But what is missing is more than a scintilla of evidence that any Bell vice principal (or even Dickson) knew in 1962 through 1968 that the fiberboards at issue contained asbestos. Absent such evidence, it necessarily follows that there is no evidence (measured by a gross negligence or any other standard) that Bell had actual, subjective knowledge of any asbestos exposure risk toward Dickson and acted with conscious indifference to that risk.
The dissent does not attempt to fill these evidentiary holes.
II.
With no apparent bearing on the correct legal analysis of the issues in this case, the dissenting opinion (i) criticizes four prior opinions from this Court that are not asbestos cases and have no apparent logical relationship to this case and (ii) extolls this Court's unanimously shared admiration for and faith in the right to a jury trial enshrined in the Texas Constitution. TEX. CONST. art. I, § 15.
The federal constitution's Seventh Amendment right to a jury trial does not apply in state court. Osborn v. Haley , 549 U.S. 225, 252 n.17, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) ; City of Monterey v. Del Monte Dunes at Monterey, Ltd. , 526 U.S. 687, 719, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) ; Curtis v. Loether , 415 U.S. 189, 192 n.6, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) ; Golden Eagle Archery, Inc. v. Jackson , 24 S.W.3d 362, 374 (Tex. 2000) ("The right to a jury trial in civil cases in federal courts is found in the Seventh Amendment, but it has never been extended to the states.").
Regardless of whether this Court correctly decided those four cases, what is the point of criticizing them when they have no bearing on whether the panel correctly decided the case before us?
And what is the basis for suggesting that this Court had a bias against jury verdicts when our decisions like U-Haul International, Inc. v. Waldrip , 322 S.W.3d 821 (Tex. App.—Dallas 2010), rev'd in part and aff'd in part , 380 S.W.3d 118 (Tex. 2012) (reversing our affirmance of the plaintiff's verdict); TRG-Braes Brook, LP v. Hepfner , No. 05-17-01094-CV, 2018 WL 3434555 (Tex. App.—Dallas July 17, 2018, no pet.) (mem. op.) (affirming plaintiffs' judgment on jury verdict); Hill v. Spracklen , No. 05-17-00829-CV, 2018 WL 3387452 (Tex. App.—Dallas July 12, 2018, pet. denied) (mem. op.) (same); Wal-Mart Stores Tex., LLC v. Bishop , 553 S.W.3d 648 (Tex. App.—Dallas 2018, pet. granted, aff'd as modified w.r.m.) (same); Choctaw Nation of Okla. v. Sewell , No. 05-16-01011-CV, 2018 WL 2410550 (Tex. App.—Dallas May 29, 2018, pet. dism'd) (mem. op.) (same); Goodyear Tire & Rubber Co. v. Rogers , 538 S.W.3d 637 (Tex. App.—Dallas 2017, pet. denied) (affirming liability findings and affirming damages award conditioned on acceptance of remittitur); Dao v. Garcia , 486 S.W.3d 618 (Tex. App.—Dallas 2016, pet. denied) (affirming plaintiffs' judgment on jury verdict), and many other such cases belie that notion and demonstrate our commitment to correctly apply the law to the issues presented without bias against or favoritism for anyone?
The dissenting opinion doesn't answer those questions.
Bridges, Myers, Schenck, and Evans, JJ., join this opinion.
DISSENTING OPINION ON DENIAL OF EN BANC RECONSIDERATION
Dissenting Opinion by Justice Carlyle
My friends on the court have concluded en banc review is not appropriate in this case. I respectfully dissent. This court has misapplied the legal sufficiency standard of review to second-guess jury verdicts before and here, it does so again.1
Though the panel opinion recites that it considers "all the evidence" the jury heard, it does not. The panel does not address verdict-supportive evidence admitted through Bell's corporate representative Mike Ishmael, which included the following testimony:
When reviewing the legal sufficiency of evidence to support a finding that must be proved by clear and convincing evidence, an appellate court must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Horizon Health Corp. v. Acadia Healthcare Co. , 520 S.W.3d 848, 866 (Tex. 2017). In doing so, the reviewing court must assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. Id. ; City of Keller v. Wilson , 168 S.W.3d 802, 817 (Tex. 2005).
Of course, evidence that was not admitted into the record cannot inform a legal sufficiency analysis. See City of Keller , 168 S.W.3d at 821–28 (discussing review of evidence in the record in context of legal sufficiency); Bullet Trap, L.L.C. v. Waterproof Positive LLC , No. 05-18-00529-CV, 2019 WL 3543579, at *2 (Tex. App.—Dallas Aug. 5, 2019, pet. denied) (mem. op.) ("[w]hen reviewing the legal sufficiency of the evidence, we consider all the evidence before the jury"). The panel opinion's legal sufficiency analysis regarding Bell's knowledge properly disregards the other-exposure evidence the trial court excluded.
Q. ... Bell Helicopter knew after it knew of the hazards of asbestos in 1955 that people like Billy Dickson were going to continue to work with asbestos products in the 1960s; isn't that right, at Bell Helicopter with—
A. That there was going to be asbestos used in the manufacture of helicopters, yes, sir.
Further, the panel identifies shortcomings in the plaintiff's testimony regarding his own knowledge about his asbestos exposure and, in an analytical switch, repackages them as reasons his causation expert witness lacked a proper basis for his opinion. In doing so, the panel reformulates the trial burden, faulting the plaintiff for not knowing what he was exposed to, when, and how dangerous it was. But at trial, the plaintiff had to prove these matters as to the defendant, Bell—not as to himself.
The panel opinion begins its discussion by reciting the plaintiff's testimony, noting that he did not recall a brand name on the heat-resistant boards used to construct structures he designed for high-temperature helicopter-part testing for Bell, and that he did not know until recent years that the heat-resistant boards were made up of three layers. The expert opined based in part on the plaintiff's description of heat-resistant boards Bell used as consisting of three layers stuck together. The expert testified there were only five brands of heat-resistant boards used at the time, that only one was layered, and that it was layered exactly as the plaintiff described. Based on this, the expert professed his expert opinion that the layered heat-resistant board was a particular type of asbestos. No record evidence suggested the layered heat-resistant board would have been constructed of anything but asbestos—the difference would have been in the type of asbestos.
In the face of that record, the panel here faults the plaintiff's failure to present direct evidence that Bell knew about asbestos use at the relevant time. The panel focuses on the plaintiff's lack of knowledge about the layered boards at the time of his work and, in doing so, discounts the expert's opinion. Under one interpretation, the idea may be that, because the plaintiff didn't know at the exact time he was working near it that the substance was asbestos, the plaintiff's trial expert now, some years later, may not rely on plaintiff's after-the-fact knowledge to support his expert opinion. But this introduces a time-specific-knowledge burden on a plaintiff that no court has ever imposed.
Further, circumstantial evidence, arising from the expert's opinion based on undisputed facts, supports the jury's conclusion that Bell had the requisite knowledge of asbestos risks. A reader of the panel opinion would have no idea there were any witnesses or evidence besides what the panel describes. In fact, there was substantial additional evidence.
The plaintiff's expert testified that high-ranking members of Bell were members of relevant scientific communities that produced written materials circulated—and at the very least available—to their members. This included Bell's president, Lawrence D. Bell, who appears to have been a member of the board of trustees of the National Safety Council, as mentioned in a 1951 list. The written materials include articles published in the 1930s by the American Society of Mechanical Engineers' journal, Mechanical Engineering , addressing the dangers of asbestos in the industrial workplace and linking it to physical ailments in the respiratory system. Evidence supported that Bell would have known of these through employee-members of ASME starting in 1927. There is the 1951 book Accident Prevention Manual for Industrial Operations , produced by the NSC, in which the list describing Mr. Bell as an NSC trustee appears. That book discusses asbestos in the chapter "Industrial Poisons," and says, "Inhalation of excessive quantities of asbestos fiber can produce a fibrosis in the lungs similar to that found in silicosis.... [T]he condition develops slowly and advances slowly and is equally resistant to treatment." The record also contains (1) NSC documents from 1951 and 1956 detailing knowledge about asbestos problems; (2) a May 15, 1950 Newsweek issue containing a note discussing air pollution concerns raised by U.S. Public Health Service studies pointing to "airborne particles," like asbestos, selenium, beryllium, arsenic, and chromates, "as the cause of some forms of cancer and respiratory ailments"; and (3) a 1952 encyclopedia article addressing "occupational cancers" that states cancers of the respiratory tract "occur in workers who are exposed to the inhalation of chrome salts, asbestos dust and nickel carbonyl," see Cancer , ENCYCLOPAEDIA BRITTANICA , vol. 4, 731 (1952). This evidence is significant, and a separate panel of this court relied on exactly this type of evidence, from the same expert witness, in affirming a jury verdict two years ago. See Goodyear Tire & Rubber Co. v. Rogers , 538 S.W.3d 637 (Tex. App.—Dallas 2017, pet. denied). In short, there was extensive evidence supporting a conclusion that Bell knew about the dangers of asbestos in industrial operations.
The panel also faulted the expert's use of post-1968 studies to approximate the plaintiff's exposure, observing that those studies were no evidence of Bell's awareness of an extreme risk posed between 1962 and 1968. But the plaintiff did not rely on those studies to establish Bell's awareness. Rather, he relied on the studies to calculate the dose of asbestos he received. See Borg-Warner Corp. v. Flores , 232 S.W.3d 765, 770–71 (Tex. 2007) (dose must be proven as the single most important factor in evaluating whether an alleged exposure caused a specific adverse effect). Not only does the record support that the expert's testimony based on those studies addressed the dose, so too does our case law recognize this focus and proof requirement. As I note, the record supports the jury's conclusion regarding Bell's knowledge separate from these studies.
Over and above all these instances where the panel, in my view, re-characterized the evidence, the panel failed to address Bell corporate representative Mike Ishmael's testimony. Mr. Ishmael agreed "Bell knew the hazards of asbestos by at least the 1950s." He agreed Bell would have known asbestos caused lung cancer as of 1955. Bell knew products it crafted incorporated asbestos components from at least 1955. There is circumstantial evidence, too. The trial included evidence regarding Congress's 1951 Walsh-Healey Act, of which Bell admitted knowing and which set asbestos-exposure standards by law. Moreover, Bell admitted that, as a U.S. Department of Defense contractor, Bell knew whatever the U.S. government knew about asbestos-containing products. Several government studies, including those mentioned above, demonstrate that the government was past simply knowing that asbestos was harmful and had mustered congressional action on the point by 1951.
And, when asked whether, after Bell knew about asbestos hazards from at least 1955, Bell's employees like the plaintiff would continue to work with asbestos products in the 1960s, Mr. Ishmael responded, "That there was going to be asbestos used in the manufacture of helicopters, yes, sir." When asked whether "any sort of disposable protective clothing or anything" was available to plaintiff "during the time he was exposed to asbestos in the lab," Mr. Ishmael responded, "Yeah, I do believe it was available. Yes, I do believe it was available." These are admissions that support an inference that Bell subjectively knew it continued to expose the plaintiff to a known dangerous substance. See Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 569 (Tex. 2016) (explaining that "danger" of which evidence of subjective knowledge was required was not mere presence of hazardous gas at plant, but presence of gas in pipeline employee was working on).
Finally, the parties sparred about the meaning of certain environmental testing done at Bell beginning in the 1970s and continuing thereafter. Bell sought to defend on the basis that it had a document-retention policy going back only thirty years, compliant with OSHA regulations, such that any 1960s testing would have been unavailable based on the document-retention policy. Bell argued that because it had sent Mr. Ishmael, its corporate representative, to look for old documents and because he had produced everything available from Bell's records, "what we do know has – has been part of the reason we didn't find some of that [sic] documents? It was the document retention policy." Bell perfected this argument both in closing and throughout the corporate representative's testimony by suggesting the jury should not infer Bell did no testing in the 1960s, just that records from any testing it had done were now gone and this was okay because OSHA only required it to retain documents for thirty years. The jury rejected Bell's argument.
The final rule establishing thirty years as the minimum retention time did not go into effect until May 23, 1980. 29 C.F.R. 1910.1020, established at 45 Fed. Reg. 35212, see also id. at 35216, 35256. The guidance before then was the 1970 OSHA Act itself, which only required companies to "keep adequate records of all occupational accidents and illnesses for proper evaluation and necessary corrective action." 29 U.S.C. § 668(a)(3).
Justice Eva Guzman has harshly criticized these limited-duration retention policies because, though now "commonplace," they "assure the destruction of potentially unfavorable evidence." Brookshire Bros., Ltd. v. Aldridge , 438 S.W.3d 9, 37–38 (Tex. 2014) (Guzman, J., dissenting, joined by Devine and Brown, JJ.). Particularly relevant to this discussion, the Goodyear opinion, 538 S.W.3d at 645–47, discusses the available documents from relevant time periods where here, perhaps due to Bell's limited-duration document-retention policy, we have none.
Stepping back from the evidence presented to the jurors, let us not forget we are discussing the quantum of proof necessary for gross negligence, the highest iteration of the lowest mental state, far from intentional conduct. Through this lens, the evidence from Bell's corporate representative, Mr. Ishmael, provides helpful context as to why a reasonable juror would credit the plaintiff's expert's testimony and essentially provides the missing pieces to the puzzle the panel presented in its opinion. See Louisiana–Pacific Corp. v. Andrade , 19 S.W.3d 245, 247 (Tex. 1999) (citing Mobil Oil Corp. v. Ellender , 968 S.W.2d 917, 921 (Tex. 1998) ) (plaintiff may establish defendant's mental state by circumstantial evidence); see also Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 248–49 (Tex. 2008) (explaining how circumstantial evidence constituted clear and convincing evidence of gross negligence). This is exactly why our standard of review requires us to look at all the evidence and observe whether any reasonable juror could credit sufficient evidence to support a verdict. See City of Keller , 168 S.W.3d at 823, 827. The panel did not do that here when it failed to address the Ishmael evidence. The panel ignored evidence supporting reasonable inferences that supported the jury's conclusions—the very same type of evidence another panel of this court recently approved as sufficient to support a verdict. See Goodyear , 538 S.W.3d at 637.
In Goodyear , this court affirmed a jury verdict for a plaintiff based on similar testimony from the same expert witness and similar asbestos exposure evidence regarding the plaintiff. In that case, the defendant company was a member of the relevant scientific societies that produced the journals offered as evidence. In this case, the member was Bell's president, no less a figure to be heavily invested in his workers' safety and whose knowledge may appropriately be imputed to the company.
In addition to ignoring ample record evidence, the panel comes to a different conclusion on evidence similar to that presented in Goodyear , a decision from just two years ago, from the same expert witness whose credentials no one questions. Though I do not contend the two cases are equivalent in every way, neither should my friends in opposition conclusively claim that Goodyear would have mandated reversing the jury verdict here. The most telling affirmation of that concept is the panel's choice not to rely on Goodyear , though both parties discussed the case at length in briefing.
Why we conclude so differently in these cases is beyond me. Our society's chosen legal organization includes delegating important legal decisions to a group of jurors. Those jurors' decisions may be idiosyncratic when different groups of them are presented similar evidence, but the courts who review their verdicts should not so diverge. They should certainly not diverge, as the panel did here, without even attempting to distinguish a recent, similar case. See Bryan A. Garner, et al., The Law of Judicial Precedent 96 (2016) ("A court distinguishes a precedent by discerning material differences between it and the present dispute, thereby concluding that the precedent is either not entirely applicable or wholly inapplicable."); id. at 385 ("Judges sitting in the same appellate court should not make contradictory or conflicting rulings in the same case or on the same subject. Each should defer to and accept decisions already made.").
Jury trials in civil cases are part of the bedrock of our judicial system, U.S. CONST. amend. VII ; TEX. CONST. art. I, § 15, and the parties here presented a controversy to twelve jurors by their mammoth efforts, a luxury we retain in this republic. We intermediate courts of appeals have a place in the review of those trials, but it is cabined. Our panels are not two or three additional jurors to convince, nor are they charged with putting the appellee to a burden of re-proving its case because the losing appellant has crafted a creative new appellate argument or has re-branded on appeal an argument the jury rejected. In this context, we exist to correct obvious wrongs, to defer to jury determinations, and, most fundamentally, to protect and nourish the jury trial.
Cf. William V. Dorsaneo III, The Decline of Anglo-American Civil Jury Trial Practice , 71 SMU L. Rev. 353, 355–58 (2018) (describing the demise of the civil jury trial in England, such that only defamation, malicious prosecution, and false imprisonment claims qualify for civil jury trials).
See Anderson v. City of Bessemer City , 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (requiring parties "to persuade three more judges at the appellate level is requiring too much" after they have "already been forced to concentrate their energies and resources on persuading" the fact-finder); Montanez v. State , 195 S.W.3d 101, 109 (Tex. Crim. App. 2006).
We do not "second-guess" juries. State v. $11,014.00 , 820 S.W.2d 783, 785 (Tex. 1991). This is a principle that derives directly from our Constitution's guarantee of the right to trial by jury. "[C]ourts must not lightly deprive our people of this right by taking an issue away from the jury." Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex. 1997). Justice Boyd's dissent in Genie Indus., Inc. v. Matak , 462 S.W.3d 1, 14 (Tex. 2015) (Boyd, J., dissenting, joined by Lehrmann & Devine, JJ.), eloquently makes this point.
I dissent from the denial of en banc review because we fail in that charge today.
I only address the issue the panel addressed and offer no opinion regarding Bell's other appellate claims.
Burns, C.J., and Osborne, Partida-Kipness, and Reichek, JJ., join in this dissenting opinion