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E.I. DuPont De Nemours and Co. v. Hood

Court of Appeals of Texas, Fifth District, Dallas

May 8, 2018

E.I. DUPONT DE NEMOURS AND COMPANY, Appellant
v.
VIRGIL HOOD AND LORRIE HOOD, Appellees

          On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-03619

          Before Justices Bridges, Myers, and Schenck.

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE.

         Appellees Virgil and Lorrie Hood (Hood) sued appellant E.I. DuPont de Nemours and Co. (DuPont) claiming Virgil's benzene exposure from DuPont's paint products caused him to develop acute myelogenous leukemia (AML). A jury found DuPont liable and awarded over $7 million in damages, including $1.5 million in punitive damages and $1 million in future medical expenses. The trial court granted DuPont's motion for judgment notwithstanding the verdict challenging the gross negligence finding and punitive damages award. The final judgment awarded Hood $6, 985, 535.25.

         On appeal, DuPont argues the expert testimony presented at trial fails to establish causation and is therefore legally insufficient to support the verdict. It also challenges the trial court's refusal to submit to the jury a design-defect liability question. Lastly, DuPont argues the evidence is insufficient to support the jury's award of future medical expenses.

         Hood filed a cross-appeal challenging the trial court's order granting DuPont's JNOV and asks for reinstatement of the punitive damages award.

         We reverse the trial court's judgment and render a take-nothing judgment in favor of DuPont.

         Benzene and DuPont Paint Products

         Benzene is an organic chemical compound present in crude oil. Through boiling, it can be distilled or refined for use in products such as paints.

         It is accepted that benzene can cause some cancers such as AML. When a person breathes in benzene, it travels through the lungs, circulates to the bloodstream, and travels to the liver where it is metabolized. The benzene is metabolized by other cells within the bone marrow, which can affect the genetic material of the cell.

         Other causes of AML include chemotherapy, radiation, and smoking. Regardless of these known causal links, in many cases, the cause of AML is unknown.

         It is undisputed DuPont knew for decades that benzene, depending on the exposure and dose, could cause cancer. However, it is also undisputed DuPont never added benzene to any of its paint products or solvents. Rather, DuPont's paints and solvents were manufactured from xylene, toluene, naphtha, and mineral spirits, which all contain naturally-occurring amounts of benzene despite going through a distillation process. For example, toluene boils at one hundred ten degrees Celsius and is the hardest solvent to distill free of benzene, which boils at eighty degrees Celsius. Even distilling toluene twice will leave behind trace amounts of benzene. Xylene and naphthas distill at higher temperatures but even at the higher temperatures, benzene can get "caught up with some of these other molecules and comes off with them, instead of going all the way up to the temperature at the top, where it should come off." As such, it is not feasible to distill every single solvent used in paint into a pure, benzene-free hydrocarbon. However, even though each of these hydrocarbons contains some trace amount of benzene, no regulatory body (such as the EPA, Agency for Toxic Substances and Disease Registry, or OSHA) or scientific body has concluded toluene, xylene, or naphthas is carcinogenic to humans.

         In 1975, DuPont acknowledged "the toxicity of benzene is well publicized, " and requested information regarding the amount of benzene in the solvents it purchased from its suppliers. DuPont wanted to establish a maximum benzene specification of 0.1% in its solvents.[1]

         In 1978, DuPont verified that the benzene content in solvents purchased from its suppliers, with the exception of seven, met the 0.1% specification. DuPont encouraged the seven nonconforming suppliers to make acceptable products with a lower benzene content. During that time, DuPont also encouraged the purchase of products from only those suppliers who confirmed products at the benzene-specified concentration. However, some documentation indicated DuPont did not use its stated specifications "in full force."

         Virgil Hood's Painting History

         After graduating high school, Hood began working for Timpte, a tractor-trailer manufacturer. From 1973 to 1975, he worked as a painter. Hood recalled using mostly DuPont paint products and "seldomly" using Sherwin-Williams products.

         Manufacturing of the tractor-trailers occurred as an assembly line process with the paint booth at the end of the line. Hood estimated the size of the paint booth was seventy feet long by twenty feet wide. Fans were located at one end of the booth to circulate air.

         Usually six to eight painters worked as a crew painting one tractor-trailer. An initial part of the painting process required use of a lacquer thinner to wipe down the tractor-trailer surface. After wiping down the surface, Hood sealed it with a DuPont primer. Next, he filled his paint gun with at least two quarts of paint and applied two coats to each trailer. He painted eight trailers a day (approximately one per hour). At the end of the day, he cleaned his paint gun using lacquer thinner. Paint was visible in the air and on his clothes.

         Hood said it was mandatory to wear a respirator while painting, and although Timpte provided gloves, he did not wear them because they were flimsy latex that made it harder to paint. Timpte had "pretty strict" safety rules, and he knew it was very important to always wear the respirator. He signed a document on January 23, 1981 indicating he "received proper instruction on the use of the above personal safety protection, " which included "respirator protection." He was fitted with a new respirator every six months or whenever he requested one. He never complained to Timpte about not having one.

         Hood left Timpte in 1975 but returned in 1977. Upon his return, Timpte's facility had been "modernized" with a new paint booth, airless sprayers, and new fans. He continued painting until 1981.

         Hood went to work for Continental Airlines as a painter in July 1984 and continued to work there for thirty years, except for a short time in 1994 when he was furloughed. He retired from Continental in December 2014.

         In 2012, Hood began feeling tired and run down. After a physical, followed by blood tests and a bone marrow biopsy, he was diagnosed with AML.

         Hood filed a products liability lawsuit against numerous defendants, including DuPont, Sherwin-Williams Co., and PPG Industries, Inc. He asserted that his exposure to solvents, primers, paints, lacquers, enamels, oils, petroleum products, and fuel designed, manufactured, sold, and distributed by the defendants contained benzene, which caused him to develop AML. A jury found DuPont liable for defective design and manufacturing defects. It also found gross negligence. It awarded over $7 million in damages, including $1.5 million in punitive damages and $1 million in future medical expenses.

         Du Pont filed numerous JNOV motions challenging the jury's findings. The trial court granted DuPont's JNOV motion challenging the jury's gross negligence finding and disregarded the $1.5 million punitive damages award. It also disregarded the jury's $60, 000 award for past and future loss of household services. The trial court's final judgment awarded Hood $6, 985, 535.25. This appeal followed.

         Expert Testimony Standard of Review

         Throughout this case, both pre-trial and post-trial, DuPont challenged Hood's causation experts. DuPont continues to challenge the sufficiency of these experts' opinions to support the jury's verdict on appeal.

         Under a traditional legal sufficiency standard of review, a reviewing court is to consider the evidence in the light most favorable to the verdict. Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 337 (Tex. 2014). The final test "must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). However, the Texas Supreme Court has stated that when a sufficiency challenge involves the reliability and causation testimony of experts admitted at trial, "the reviewing court must undertake an almost de novo-like review and, like the trial court, look beyond the expert's bare testimony to determine the reliability of the theory underlying it." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 710-20 (Tex. 1997); see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 804 (Tex. 2006) (appellate review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent or unreliable). To do otherwise would be to engage in a "meaningless exercise of looking to see only what words appear in the transcript of the testimony, not whether there is in fact some evidence." Havner, 953 S.W.2d at 712.

         Expert testimony is unreliable if it is based on unreliable data or "if the expert draws conclusions from [his underlying] data based on flawed methodology." Id. at 714. "[I]f an expert's opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded." Cooper Tire & Rubber Co., 204 S.W.3d at 804. Thus, when expert testimony is not grounded in the methods and procedures of science, it amounts to nothing more than subjective belief or unsupported speculation. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). In this context, if the expert's testimony is unreliable, it is no evidence of causation and will not survive a sufficiency challenge. Havner, 953 S.W.2d at 713.

         General and Specific Causation in Exposure Cases

         In Havner, the Texas Supreme Court discussed a plaintiff's burden to prove both general and specific causation. General causation exists when a substance is capable of causing a particular injury or condition in the general population. Id. Because direct experimentation may not be possible to prove causation, a plaintiff may try to demonstrate that exposure to the substance at issue increases the risk of the particular disease through epidemiological studies. Id. at 715. Such studies examine existing populations to attempt to determine if there is an association between a disease or condition and a factor suspected of causing the disease or condition. Id. The supreme court held "epidemiological studies showing that the population exposed to a toxin faced more than double the risk of injury facing the unexposed or general population could be used to establish causation." Id. at 708; Bostic, 439 S.W.3d at 347. However, this is not a "litmus test" or "bright-line boundary, " and a single study will not suffice to establish legal causation. Havner, 953 S.W.2d at 718 ("[W]hen a number of studies have been done, it would not be good practice to pick out one to support a conclusion."); Bostic, 439 S.W.3d at 347.

         When considering epidemiological studies, courts are also instructed to consider the "significance level" or confidence level of the studies. Havner, 953 S.W.2d at 723-24; Bostic, 439 S.W.3d at 347. To be considered scientifically reliable, an epidemiological study must (1) have a relative risk of 2.0 and (2) be statistically significant at the 95% confidence level. Havner, 953 S.W.2d at 723.[2] An expert "cannot dissect a study, picking and choosing data, or 'reanalyze' the data to derive a higher relative risk if this process does not comport with sound scientific methodology." Id. at 720. The Havner court emphasized that "even if a statistically significant association is found, that association does not equate to causation." Id. at 724.

         However, general causation is never the ultimate issue of causation tried to the finder of fact in exposure cases. See Bostic, 439 S.W.3d at 351. General causation as established through epidemiological studies is relevant only insofar as it informs specific causation. Id. "Where direct evidence of specific causation is unavailable, specific causation may be established through an alternative two-step process whereby the plaintiff establishes general causation through reliable studies, and then demonstrates that his circumstances are similar to the subjects of the studies." Id. (discussing Havner). This burden includes proof that (1) the injured person was exposed to the same substance, (2) the exposure or dose levels were comparable to or greater than those in the studies, (3) the exposure occurred before the onset of injury, and (4) the timing of the onset of injury was consistent with that experienced by those in the study. Id. In Bostic, the supreme court emphasized "proof of substantial factor causation requires some quantification of the dose resulting from [plaintiff's] exposure to [defendant's] products." Id. at 355 ("dose matters"). However, the court conceded those in the studies need not exactly match the plaintiff's exposure, but "the conditions of the study should be substantially similar to the claimant's circumstances." Id. at 359.

         With these concepts in mind, we consider whether Hood's two experts, Dr. James Stewart and Dr. Sheila Butler, provided reliable and therefore legally sufficient evidence to establish a causal link between Hood's benzene exposure through his use of DuPont's paint products and his AML diagnosis.[3]

         Dr. James Stewart

         Stewart, an industrial hygienist, calculated Hood's benzene exposure thereby determining his "dose." An industrial hygienist anticipates, recognizes, evaluates, and controls occupational health problems. Stewart has worked in the field of exposure assessment and exposure reconstruction for over thirty years. He described reconstruction as going back in time and determining the exposures that occurred. Exposure assessment is the process of looking at the individual person. Occupational exposure is the quantity of the relevant substance a person is exposed to in an eight-hour day.

         Stewart calculated Hood's dose of lifetime benzene exposure using a computer model called ART.[4] The model, which was released in 2010 after five years of development, is designed to screen for potentially hazardous exposures across entire populations as part of the European regulation of chemicals. It was developed by industry, academic and government experts, and has been peer-reviewed. It predicts a range of possible exposures based on a series of drop-down menus. The user does not enter data into the program, but instead chooses the closest option within the categories provided in the drop-down menus.

         After Stewart selected certain data options for ART, the model calculated the dose of Hood's lifetime benzene exposure. Stewart testified Hood's total cumulative lifetime benzene dose from DuPont's products ranged between 8 and 49 parts per million years, with the mean and most likely average being 28.98 parts per million years.[5]

         DuPont filed pretrial motions arguing ART was unreliable as a scientific tool to calculate exposure and challenging Stewart's underlying methodology in computing a reliable benzene exposure dose. The trial court overruled DuPont's objections and allowed Stewart to testify. At the conclusion of trial, DuPont moved for a directed verdict based, in part, on insufficient evidence of causation, which the trial court denied. DuPont continued to challenge the sufficiency of Stewart's opinions in its motion for JNOV.

         On appeal, DuPont challenges both the general scientific reliability of ART and the data Stewart used to compute Hood's lifetime benzene exposure dose. Because we conclude Stewart's ultimate opinion is unreliable for the reasons explained below, we assume without deciding ART is accepted in the scientific community as a tool to calculate lifetime benzene exposure. Accordingly, we focus our analysis on explaining why certain data Stewart used to calculate Hood's lifetime benzene exposure dose is unreliable, and therefore, amounts to no evidence of causation.

         To support its sufficiency challenge, DuPont contends Stewart incorrectly inputted the following information into ART: (1) Hood's respirator use; (2) the amount of benzene in DuPont products; (3) spray application rates; (4) painting room size; (5) size of the vehicles being painted; (6) exposure to benzene from DuPont's products while using other manufacturers' products; (7) benzene exposure when Hood was not painting; and (8) air ventilation in the paint room.

         Hood argues DuPont failed to preserve some of its challenges to the input data by not objecting to the trial court. DuPont responds an objection was not required to preserve these issues.

         A review of the record, including DuPont's pretrial motions to strike Stewart's expert testimony, a hearing on the motion to strike, and its post-judgment motions challenging the sufficiency of the evidence on causation, reveals that DuPont challenged the reliability of the inputted data for (1) respirator use; (2) the amount of benzene in DuPont's products; (3) benzene exposure when Hood was not painting; and (4) size of the vehicles being painted. Thus, we consider whether Stewart's lifetime benzene exposure dose was unreliable based on the specific data inputted in ART for these categories. See Havner, 953 S.W.2d at 714 (noting expert's opinion unreliable if based on unreliable data).

         1. Benzene Content of DuPont's Products[6]

         Stewart testified benzene concentration in a product is the "main variable" when assessing exposure. DuPont argues Stewart assumed DuPont's products always contained exactly 0.1 to 0.5 percent benzene, which is contrary to the evidence. Further, it contends Stewart chose a range to fit ART's drop-down menus, which required him to choose between "extremely small" (benzene content 0.1-0.5 percent or 1, 000-5, 000 ppm) and "minute" (benzene content below 0.1 percent or 1, 000 ppm). Stewart chose the "extremely small" range based on "five or six other documents" in approximately thirty thousand DuPont documents he reviewed.

         Numerous documents from manufacturers were admitted at trial regarding the amount of benzene in the hydrocarbons supplied to DuPont. While many of these indicated the manufacturers were in fact meeting DuPont's less than 0.1% expectation prior to its 1978 request, some were not:

○ October 28, 1976 letter from Charter Chemicals indicating toluene and n-Hexane contained .2% benzene.[7]
○ November 18, 1976 letter from Tenneco Oil indicating it may have supplied toluene with a benzene content between 0.03-0.1%.
○ January 28, 1977 letter from Shell Chemical Company indicating one solvent (Tolu Sol 10) contained 0.2% benzene. Shell recognized "[f]rom time to time these values may change due to crude slates for refinery intakes. However these values are as good as we have at the present time."[8]
○ July 5, 1977 letter from Exxon Company, U.S.A. stating that all of the products have "never exceeded 0.05% benzene." However, at that time Exxon did not routinely analyze for benzene so it had "reluctance" to guarantee results "for tests that we do not run consistently."
○ April 11, 1978 letter from Chevron USA regarding benzene content of Chevron thinners stating "content of Chevron thinner 250 typically between 0.2 and 0.5 pct"

         Further, Claiborne Smith, DuPont's environmental and training manager, testified before OSHA in 1978 regarding the agency's proposed 0.1% exemption to the benzene standard in products. He encouraged OSHA to adopt a benzene standard in favor of a 1% (or 10, 000 ppm) exemption. His testimony indicated DuPont's main concern was the cost to DuPont of relabeling and pulling products from the shelves that admittedly violated the proposed lower exemption:

As I've already stated, due to impurities in organic solvents, levels of .1 to 1 percent benzene are present in a large number of products which have already been packaged. These products are now in warehouses and the customer plants. In many cases, it would be physically impossible to locate them. Even if location was possible, the cost of locating and relabeling them and performing the initial monitoring would be exorbitant. We estimate the cost to du Pont and its customers would be $31 million.

         Stewart also relied on a 2007 statement from an Exxon doctor admitting benzene levels in its products had been below .1% for approximately twenty years, or since 1987.

         Stewart acknowledged a DuPont document indicating thirty-seven of thirty-nine solvents contained less than .1% but he questioned the data because "all they have to do is tell somebody that it's .1 or less. . . . there is no analytical method specified."

         Stewart's testimony, along with manufacturers' letters confirming benzene levels of certain solvents, provided evidence that DuPont paint products contained levels of benzene within the ART input range chosen by Stewart during the time Hood worked at Timpte. Stewart explained why he relied on documentation showing DuPont products contained benzene levels higher than .1% and why he did not believe contrary documentation was true. Accordingly, Stewart did not rely on assumed facts that varied from actual facts. Rather, he determined based on his expert opinion which data was most reliable and used that inputted data for ART. As he stated, "[I]t's just not realistic to think you're going to buy from different suppliers and get the same exact number. And, ART requires you to select that range because the model was developed with that range in mind." Thus, his opinion was not contrary to actual, undisputed facts. See Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 144 (Tex. 2016). As such, Stewart's dose exposure opinion is not unreliable because he chose the "extremely small" option in the ART model to calculate Hood's lifetime benzene exposure.

         2. Respirator Use

         Stewart testified the safety program implemented by a company and a painter's use of a respirator are both important considerations in conducting an exposure reconstruction. DuPont argues Stewart assumed that Hood's respirator failed most of the time and that DuPont had a poor safety program. Hood responds that factual conflicts regarding ...


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