Court of Appeals of Texas, Fifth District, Dallas
E.I. DUPONT DE NEMOURS AND COMPANY, Appellant
VIRGIL HOOD AND LORRIE HOOD, Appellees
Appeal from the 160th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-03619
Justices Bridges, Myers, and Schenck.
L. BRIDGES JUSTICE.
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.
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.
filed a cross-appeal challenging the trial court's order
granting DuPont's JNOV and asks for reinstatement of the
punitive damages award.
reverse the trial court's judgment and render a
take-nothing judgment in favor of DuPont.
and DuPont Paint Products
is an organic chemical compound present in crude oil. Through
boiling, it can be distilled or refined for use in products
such as paints.
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.
causes of AML include chemotherapy, radiation, and smoking.
Regardless of these known causal links, in many cases, the
cause of AML is unknown.
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.
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.
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
Hood's Painting History
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.
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
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.
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.
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.
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.
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.
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.
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.
Testimony Standard of Review
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.
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
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.
and Specific Causation in Exposure Cases
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.
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. 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.
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.
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
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
calculated Hood's dose of lifetime benzene exposure using
a computer model called ART. 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
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.
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.
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.
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
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
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
Benzene Content of DuPont's Products
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.
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%
○ November 18, 1976 letter from Tenneco Oil indicating
it may have supplied toluene with a benzene content between
○ 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
○ 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"
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.
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.
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."
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.
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 ...