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Union Carbide Corp. v. Torres

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 19, 2019


          On appeal from the 107th District Court of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Hinojosa


          LETICIA HINOJOSA Justice

         Appellants GST Settlement Facility, successor-in-bankruptcy to Garlock Sealing Technologies LLC (Garlock), and Union Carbide Corporation (UCC) appeal from a judgment following a jury trial in favor of appellees Oscar and Dora Torres.[1] The Torreses sued appellants, alleging that Oscar developed mesothelioma as a result of his exposure to asbestos while working at a UCC chemical plant and with gaskets manufactured by Garlock.

         In three issues, [2] UCC argues that the evidence is legally insufficient to establish that: (1) UCC controlled the manner of Oscar's work; (2) UCC had actual knowledge that the Garlock gaskets were dangerous; and (3) Oscar's exposure to asbestos at UCC's plant was a substantial factor in causing his mesothelioma. In one issue, Garlock argues that the Torreses failed to present legally sufficient evidence that Oscar's exposure to its gaskets was a substantial factor in causing Oscar's mesothelioma. We affirm in part and reverse and render in part.

         I. Background

         In 2009, Oscar was diagnosed with mesothelioma, a cancer affecting the lining of the lungs that is caused almost exclusively by exposure to respirable asbestos fibers. Oscar initially sued nineteen defendants alleging causes of action for premises liability, products liability, negligence, and fraud. At the time of trial, two defendants remained: (1) UCC, a premises liability defendant; and (2) Garlock, a products liability defendant.[3] The record generally establishes that Oscar, while working as a pipefitter at UCC's Brownsville chemical plant, was exposed to pipe insulation containing amosite asbestos fibers and the Garlock 7705 gasket[4] containing crocidolite asbestos fibers.[5] Appellants did not dispute at trial that Oscar suffered from mesothelioma or that his condition was caused by asbestos exposure.

         A. Diagnosis

         Oscar, who was 71 years old at the time of trial, began experiencing dizziness and shortness of breath in 2008. After various medical examinations and tests, Oscar was diagnosed with mesothelioma. Oscar was referred to William Roy Smythe, M.D., a thoracic surgeon focusing on the treatment of mesothelioma patients. Dr. Smythe testified that mesothelioma develops from the inhalation of asbestos fibers and the penetration of the fibers through the air sac of the lung. He explained that the body's inflammatory reaction to the fibers causes genetic damage. As the damage accumulates, a patient can develop mesothelioma.

         After examining Oscar's occupational history, Dr. Smythe concluded that Oscar's condition was caused by his exposure to asbestos at the UCC plant. Dr. Smythe ruled out removing Oscar's tumor after discovering a heart arrhythmia. At the time of trial, Oscar planned to have chemotherapy treatment. Dr. Smythe stated that a person Oscar's age has a fifty percent chance of completing a full course of chemotherapy, and only half of those who complete the treatment respond positively. Those that do will have their life extended by an average of three months. According to Dr. Smythe, Oscar would eventually die from the condition.

         B. Asbestos Exposure

         Oscar testified that he worked as a pipefitter at UCC's Brownsville plant between 1975 and 1977. He was employed by Brown & Root (B&R), an independent contractor hired by UCC to perform maintenance and repair at the plant. Oscar routinely assembled, disassembled, fabricated, removed, and installed pipes at the plant. Oscar was exposed to asbestos from insulation and gaskets from this work. Oscar described working as a welder and a pipefitter at other locations, but he maintained that this other work did not expose him to asbestos products.

         1. Insulation Exposure

         UCC stopped purchasing and installing new asbestos insulation in 1972, but asbestos insulation remained throughout its Brownsville plant during Oscar's employment as a pipefitter. Oscar described working almost every day in the vicinity of "insulators" i.e., workers who removed and installed insulation that covered the pipes. Oscar estimated he was within twenty feet of insulators as they worked, and he recalled that insulators would often work on scaffolding above him. He described insulators cutting insulation with a saw, which created a lot of dust. Oscar often removed insulation himself before repairing a pipe.[6] This created visible dust, which Oscar breathed. Sometimes, his clothes were covered in insulation dust.

         According to other employees who worked at the Brownsville plant with Oscar, pipefitters often removed old insulation when repairing a pipe. Ruben Ruiz, a welder, stated that pipefitters used saws to cut into insulation, which released a cloud of dust. The insulation dust covered the clothes of workers. Jesus Valenzuela, another welder, testified that he and Oscar worked within two to three feet of insulators. He described insulators cutting insulation and breaking it into pieces resulting in visible dust, which he breathed. Valenzuela also described working underneath insulators who were on scaffolding, which resulted in dust falling on the workers below. Ruben Rodriguez, a pipefitter, stated that all the pipefitters cut pipe insulation using a chisel and hammer.

         Gran Townsend, an industrial hygienist, was employed by UCC at its Brownsville plant during Oscar's tenure. Townsend testified that when UCC bought the plant in 1958, all the insulation contained asbestos. He recalled that pipefitters would remove old insulation prior to repairing a pipe. Townsend authored a November 2, 1982 internal memo which acknowledged the continued existence of asbestos insulation throughout the Brownsville plant.

         Kerry Weikel, a UCC maintenance systems technician, worked at the Brownsville plant with Oscar. Weikel stated that UCC often scheduled insulators to work above other workers, including pipefitters, which resulted in dust falling on the workers below.

         2. Gaskets

         Oscar testified that he removed Garlock 7705 gaskets from the flanges connecting pipes in the plant's acid unit two to three days a week. The gaskets contained 85 to 86 percent crocidolite asbestos. Oscar used a metal spatula and a wire brush to break apart and remove the old gaskets. If the gasket could not be removed easily, Oscar would have to scrub the gasket with a wire brush for anywhere from five to twenty minutes. He was necessarily within arm's length of the gaskets during removal. This process created visible dust that Oscar inhaled. Rodriguez and another coworker, Francisco Robledo, described a similar process for removing gaskets. Townsend testified that UCC used and installed gaskets made of asbestos during Oscar's time at the plant.

         Weikel testified that crocidolite gaskets manufactured by Garlock were used in the plant's acid unit between 1975 and 1977. Weikel observed pipefitters removing gaskets using a wire brush. During turnarounds, pipefitters sometimes used a power brush. Weikel stated that the removal of gaskets created visible dust.

         B. Expert Testimony-Causation

         Samuel Hammar, M.D., a clinical pathologist focusing on pulmonary pathology, testified that there are two families of asbestos fibers: (1) the serpentine family which includes chrysotile or white asbestos; and (2) the amphibole family, which includes two asbestos types used commercially-amosite and crocidolite. Dr. Hammar explained that most thermal insulation was composed of a combination of amosite and chrysotile fibers. Some gaskets were made with pure chrysotile fibers, while others contained predominantly crocidolite fibers. According to Dr. Hammar, all forms of asbestos cause cancer, but crocidolite is the most carcinogenic on a fiber-per-fiber basis. According to a peer-reviewed study, "crocidolite is five times more potent than amosite and 500 times more potent than chrysotile."

         Dr. Hammar explained that there is no level of exposure where asbestos does not present a risk of causing cancer. The permissible exposure limit (PEL) set by the Occupational Safety and Health Administration (OSHA) is .1 fiber particles per cubic centimeter of air as an eight-hour time-weighted average, which is seventy times the background concentration of asbestos. OSHA developed the PEL based on epidemiological studies of those with high exposure. According to those studies, at least seven out of 100, 000 people whose exposure was within the PEL developed mesothelioma. Based on his review of Oscar's work history, Dr. Hammar concluded that Oscar's condition was caused by his exposure to asbestos-from both insulation and gaskets-while working as a pipefitter at UCC's plant. Dr. Hammar did not believe that Oscar had any significant occupational exposure to asbestos other than his time working at the UCC plant.

         Ronald Gordan, Ph.D., a pathologist specializing in electron microscopy, performed an asbestos fiber burden test on a sample of Oscar's lung tissue. Dr. Gordan found roughly equal amounts of crocidolite and amosite asbestos fibers in the sample. Dr. Gordan stated that these types of asbestos fibers are found only in the lungs of persons who have been exposed to asbestos occupationally.

         Richard Lemen, Ph.D., an epidemiologist, [7] testified that researchers have been unable to identify a safe concentration of asbestos below which people would not be at risk of developing asbestos-related cancer. Rather, he explained that any level of exposure to asbestos can potentially contribute to the development of mesothelioma. Dr. Lemen stated that crocidolite is the most potent type of asbestos for causing mesothelioma.

         Dr. Lemen believed that Oscar was likely exposed to Kaylo brand insulation, which was composed of twelve to eighteen percent asbestos. He noted that studies have shown that visible dust from asbestos insulation exposes a worker to asbestos at a level that is 100 times the PEL set by OSHA. He agreed that Oscar was exposed to 100 times the PEL based on Oscar's representation that he saw visible dust from insulation.

         William Longo, PhD, a material scientist, conducted simulations to determine the release of fibers during the removal of gaskets containing encapsulated asbestos fibers. Dr. Longo explained that he used "Tyndall lighting," which is a technique employing the use of high intensity light to make microscopic particles visible. In his studies, Dr. Longo used a wire brush to scrape the gaskets, which he determined released between 1.5 and 10 asbestos fibers per cubic centimeter, with an average release of 3.7 fibers per cubic centimeter.

         Donna Ringo, a certified industrial hygienist, testified on behalf of Garlock. It was her opinion that Oscar's removal of gaskets did not increase his risk of developing mesothelioma. Ringo based her opinion on air monitoring surveys of workers removing gaskets from steam lines or gas lines. According to Ringo, the surveys indicated that the workers were exposed to asbestos at a level that was less than or equal to the PEL. However, the surveys only involved chrysotile gaskets, not crocidolite gaskets.

         Ringo believed that Oscar's only significant exposure to asbestos was from thermal insulation. She explained that "insulation work would be hundreds if not thousands of times higher in exposure" than gasket work. Ringo stated that four to five fiber years [8] is the lowest cumulative dose documented for the development of mesothelioma. This threshold dose was developed from a study which calculated cumulative doses of "cohorts of people who were getting sick." Ringo testified that Oscar's exposure was at least at the level of those in the study.

         John Craighead, M.D., an anatomic and clinical pathologist, also testified for Garlock. Dr. Craighead opined that Oscar's mesothelioma was caused by amosite-containing thermal insulation. He stated that there is a body of epidemiological literature on insulation exposure similar to Oscar's exposure. Dr. Craighead explained that these studies establish that persons who remove asbestos insulation from pipes are at a high risk of developing mesothelioma. And he agreed that the level of amosite in Oscar's lungs indicated that his exposure to asbestos was above background levels. Dr. Craighead did not believe that gaskets were a risk factor for mesothelioma because they contained nonfriable [9] asbestos. He disagreed with Dr. Gordan's conclusion that Oscar's lung tissue sample contained crocidolite fibers.

         Fred Boelter, a certified industrial hygienist, conducted studies to determine the release of asbestos fibers from removing gaskets. According to his studies, the average fiber release generated from gasket removal was .026 fibers per cubic centimeter, which is below OSHA's PEL.

         Eric Chatfield, Ph.D., a microscopist, disagreed with Dr. Gordan's conclusion that there was a crocidolite fiber in Oscar's lung sample. It was his opinion that the fibers were all amosite.

         C. Knowledge of Risk ...

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