Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 95th Judicial District Ct Dallas County,
Texas Trial Court Cause No. DC-12-05995-D
Justices Bridges, Brown, and Whitehill
L. BRIDGES, JUSTICE
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.
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.
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.
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."
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."
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
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.
testified Billy's asbestos exposure at Bell
"Considerably more than doubled his risk of getting
mesothelioma, which ultimately he did get."
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.
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."
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 ...