General Chemical Corp. v. De La Lastra , 852 S.W.2d 916 ( 1993 )

OPINION

GONZALEZ, Justice.

This products liability case presents two principal issues. First, whether general maritime law or state law applies to the facts before us. Second, whether the punitive damages award was excessive under state law or the state constitution.

Two young men died at sea from asphyxiation on a shrimp boat expedition after using a chemical preservative on their catch. Their parents brought suit against General Chemical Corporation, the manufacturer of the chemical, and other defendants alleging negligence, gross negligence, and a violation of the Texas wrongful death statute. Among other things, General Chemical pled that this case was governed by federal maritime law. However, the jury was asked without objection to determine damages which are recoverable under state law but not under federal maritime law. Based on favorable jury findings of these issues, judgment was rendered in favor of the parents and the estates of the young men. In their individual capacity, the parents were awarded an amount for actual damages and, as representatives of the estates, they were awarded actual damages and punitive damages. The court of appeals affirmed, holding that this was not a maritime law case. 815 S.W.2d 750. We hold that state law applies because maritime law, although properly invoked, was waived in this case; we further hold that the punitive damage award exceeds the four times actual damages cap found in Tex.Civ.Peac. & Rem.Code § 41.007 and violates the Texas Constitution’s prohibition (Art. XVI, section 26) against parents recovering punitive damages in wrongful death actions. Thus, we affirm in part and reverse and remand this cause to the trial court for a recalculation of damages consistent with this opinion.

I.

In June 1988, Jose De La Lastra and his brother Gustavo were commercial fishermen aboard the “Wilderness,” a fishing vessel which operated in the waters off Brownsville, Texas. Sodium metabisulfite, colloquially called “shrimp dip,” is a product manufactured by General Chemical that is commonly used in the shrimping industry to prevent “black spots” from marring freshly caught fish. The bags in which the shrimp dip is sold are marked with a warning in English and in Spanish that says, among other things:

CAN IRRITATE THE SKIN, EYES AND RESPIRATORY TRACT, PROLONGED EXPOSURE MAY CAUSE BURNS.

HARMFUL IF INGESTED, MAY CAUSE SEVERE ALLERGIC REACTION IN SOME ASTHMATICS AND SULFITE SENSITIVE INDIVIDUALS.

REACTS WITH ACIDS AND WATER, RELEASING TOXIC SULFUR DIOXIDE GAS.

AVOID CONTACT WITH SKIN AND EYES.

DO NOT BREATH PRODUCT DUST, USE WITH PROPER VENTILATION.

DO NOT SWALLOW.

AVOID CONTACT WITH ACIDS.

CONTACT WITH WATER SHOULD BE UNDER WELL VENTILATED CONDITIONS.

Do Not Use In Dry Form.

Prepare and use dip solution on deck— NOT IN HOLD. Toxic sulphur dioxide gas may be liberated.

The De La Lastras were either unaware of or consciously disregarded this warning. They used “shrimp dip” in their vessel’s hold by layering ice and dry-form shrimp dip across their catch. They were overcome by the sulfur dioxide fumes, and died of asphyxiation shortly after losing consciousness.

The parents, individually and as personal representatives of the estates of their sons, brought suit against General Chemical, and against the owner of the vessel.¹ Their cause of action was based on strict liability, negligence, and gross negligence in manufacturing and distributing a product with knowledge that the product could cause serious bodily injury or death and in failing to adequately warn of such dangers.

General Chemical pled that the deceased brothers were seamen, that the occurrence occurred beyond the territorial waters of Texas, and that therefore the rights of the parties were governed by maritime law and the Death on the High Seas Act, 46 U.S.C.App. § 761-62 (DOHSA). Under DOHSA, a party is precluded from recovering any non-pecuniary damages, such as mental anguish, loss of society, and punitive damages. General Chemical asserts that this pleading is sufficient to invoke the common law doctrine of general maritime law.

The jury found that the deaths occurred within the territorial waters of Texas, that General Chemical was guilty of negligence and gross negligence in failing to provide an adequate warning on their product of the dangers associated with its use, and that the failure to warn rendered the product in question unreasonably dangerous as marketed. Based on the jury verdict, the parents were awarded a $44,628,698.63 judgment against General Chemical.²

II.

General Chemical argues that maritime law, and not state law, controls this case, and therefore nonpecuniary damages of loss of society and companionship, mental anguish, and punitive damages are not recoverable. See Miles v. Apex Marine Corp., 498 U.S. 19, — 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990).³

There is little question that the facts of this case come within the purview of maritime law. See Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). Although neither DOHSA, 46 U.S.C.App. § 761, nor the Jones Act, 46 U.S.C.App. § 688, provides a remedy under these circumstances,⁴ the United States Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970), has recognized a common law remedy for wrongful deaths occurring in territorial waters under the general maritime law. Therefore, general maritime law is applicable to the facts of this case.

When invoked, maritime law becomes the exclusive remedy under which a party may proceed, preempting all state law grounds of recovery. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986); Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex.1969). Nevertheless, the issue squarely before us is whether maritime law, although properly invoked, can be waived. We conclude that it can. Both the United States Supreme Court and this Court, as well as many federal circuits, have held that preemption arguments which affect the choice of law, and not the choice of forum, are waivable. See International Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 393, 106 S.Ct. 1904, 1913, 90 L.Ed.2d 389 (1986); Heci Exploration Co. v. Holloway, 862 F.2d 513, 520 (5th Cir.1988); Dueringer v. General American Life Ins. Co., 842 F.2d 127, 130 (5th Cir.1988); Johnson v. Armored Transport of Calif, Inc., 813 F.2d 1041, 1043-44 (9th Cir.1987); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.1986); Gorman v. Life Ins. Co. of North America, 811 S.W.2d 542, 545 (Tex.1991). Pursuant to the “savings to suitors” clause of 28 U.S.C. § 1333, state courts have concurrent jurisdiction with the federal courts over maritime actions, constrained by the “ ‘reverse-Erie’ doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 223, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986); see also Texaco Ref. and Mktg, Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.), cert. denied, — U.S.-, 112 §.Ct. 301, 116 L.Ed.2d 245 (1991). Thus, maritime law does not affect a court’s jurisdiction over the claim, it merely dictates the substantive law that governs that claim’s resolution. As such, maritime law is a choice of law determination that can be waived.

To the parents individually (wrongful death):

Pecuniary loss (Gustavo) $ 500,000.00

Pecuniary loss (Jose) $ 500,000.00

Loss of companionship and society (Gustavo) $ 2,500,000.00

Loss of companionship and society (Jose) ? 2,500,000.00

Mental anguish (Gustavo) $ 2,500,000.00

Mental anguish (Jose) $ 2,500,000.00

Cost of psychological care $ 5,000.00

To the parents as representatives of Gustavo's estate: (survival damages):

Pain and mental anguish $ 1,000,000.00

Punitive damages $15,000,000.00

To the parents as representatives of Jose's estate: (survival damages):

Pain and mental anguish $ 1,000,000.00

Punitive damages $15,000,000.00

Prejudgment interest $ 1,623,698.63

Total $44,628,698.63

Under the facts of this case General Chemical waived the application of maritime law by failing to object to evidence and jury questions regarding damages which are not recoverable under maritime law.

Although it asserted that DOHSA controlled, General Chemical failed to bring to the trial court’s attention the potential applicability of general maritime law limitations on damages. Instead, General Chemical incorrectly assumed that, if the jury found that the deaths occurred in territorial waters, federal law supplied no remedy and the claim would therefore be governed by Texas law. General Chemical submitted an issue inquiring if the deaths occurred beyond three nautical miles from shore. After a negative jury finding, precluding the applicability of DOHSA, the remaining questions that were submitted were damages recoverable under the Texas wrongful death and survival statutes; including elements of damages not recoverable under general maritime law. General Chemical did not object to the submission of these issues, see TEX.R.CIV.P. 274, and in fact) requested the very issues that it now seeks to avoid.⁵ Parties may not invite error by requesting an issue and then objecting to its submission. See Daily v. Wheat, 681 S.W.2d 747, 754 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.); City of Amarillo v. Langley, 651 S.W.2d 906, 914 (Tex.App.—Amarillo 1983, no writ); Beasley v. Baker, 333 S.W.2d 212, 214 (Tex.Civ.App.—Amarillo 1960, no writ). Further, it was not until its motion for rehearing in the court of appeals that General Chemical asserted the applicability of maritime law; and in its post submission brief to this Court, General Chemical admits that the judgment was based on state law.⁶

General Chemical defends its submission of state law damages and its failure to assert the application of federal law in the trial court by claiming that the United States Supreme Court had not yet recognized a wrongful death action for seamen under general maritime law, and, alternatively, the damages recoverable under general maritime law had not been fully developed; it wasn’t until Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1991), decided while this case was pending in the court of appeals, that the Supreme Court recognized this ground of recovery and established its available damages. This argument fails on both grounds.

As previously discussed, an action under general maritime law for wrongful deaths occurring in territorial waters was recognized over twenty years ago in Moragne v. States Marine Lines, Inc., supra. While Moragne left open the question of what damages were available under this ground of recovery, subsequent Supreme Court and federal circuit decisions have addressed this issue. In Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585, 94 S.Ct. 806, 814, 39 L.Ed.2d 9 (1974), the Court held that, in general maritime wrongful death actions, a decedent’s dependents may recover damages for loss of support, services, and society, but not for mental anguish. This holding was reiterated in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 216, 106 S.Ct. 2485, 2491, 91 L.Ed.2d 174 (1986) and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 622, 98 S.Ct. 2010, 2013, 56 L.Ed.2d 581 (1978).⁷

The fifth circuit has also addressed the damages available under general maritime law. In Sistrunk v. Circle Bar Drilling Co., 770 F.2d 455, 459 (5th Cir.1985), and Patton-Tully Trans. Co. v. Ratliff, 797 F.2d 206, 213 (5th Cir.1986), the court, following Gaudet, held that parents could not recover loss of society damages absent a showing of dependency upon the deceased children. See also Truehart v. Blandon, 672 F.Supp. 929, 930 (E.D.La.1987); Hebert v. Otto Candies, Inc., 402 F.Supp. 503, 507 (E.D.La.1975). Further, Miles, the very case General Chemical now relies upon, was a fifth circuit opinion, decided prior to the underlying trial of this case. 882 F.2d 976 (5th Cir.1989), aff'd, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1991).

These cases illustrate that, at the time this case went to trial, not only was there an available federal remedy, but also that state and federal law contained separate and distinct elements of damages; under maritime law mental anguish damages were unavailable and loss of society could only be recovered upon a showing of dependency. General Chemical was obligated to object to jury questions on such damages in order to preserve error. Although the Supreme Court did not decide Miles until later, General Chemical was required to object to jury questions concerning these damages in order to receive the benefit of a change in the law — to the extent there was one — on appeal. By failing to pursue its available federal remedy at trial, instead choosing to submit issues based on state law, General Chemical has waived the application of general maritime law.

III.

We next consider the punitive damages issue. General Chemical asserts that the punitive damage award cannot stand because there was no evidence to support the jury finding of gross negligence. We disagree.

There was evidence of a prior incident in 1973 involving the shrimping vessel “Cape Rojo.” This case involved facts nearly identical to this one. Two shrimpers were asphyxiated in the boat’s hold when they spread sodium metabisulfite across iced shrimp. Following an investigation of the deaths, the Coast Guard sent a letter to Allied Chemical, General Chemical’s predecessor, advising them to adequately warn consumers of the potential dangers associated with use of this product. While it is true that the Coast Guard report does not state that users of the product should be warned that the chemical is deadly, Commander Pangrass of the United States Coast Guard testified that this is the type of warning that they were trying to get the manufacturer to give. There was further testimony that Allied Chemical knew of at least nine other incidents of death and/or injury involving sodium metabisulfite.⁸ Despite this knowledge General Chemical failed to place warnings which informed users of the risk of death. There was also testimony from a warnings expert that General Chemical’s warnings were grossly inadequate considering the known dangers and effects of sodium metabisulfite. We conclude that all of this evidence amounts to some evidence of gross negligence.⁹

Having concluded that there is some evidence upon which to base an award of punitive damages, we next consider whether the punitive damages awarded in this case were excessive under state law and the constitution. General Chemical asserts that the punitive damage award is governed by section 41.007 of the Texas Civil Practice and Remedies Code and must therefore be reduced to four times the actual damage award. At the same time General Chemical'challenges the punitive damage award as unconstitutionally excessive under article I, section 19 of the Texas Constitution. Tex.Civ.PRAc. & Rem.Code § 41.007 states: “Except as provided by Section 41.008, exemplary damages awarded against a defendant may not exceed four times the amount of actual damages or $200,000, whichever is greater.” Although this provision does not apply to intentional torts or torts in which there is finding of malice as defined by § 41.-001(6)(A), when applicable, the amount of punitive damages to which a party is entitled is limited to four times the amount of actual damages recovered.

In determining the amount of actual damages to use as a base in calculating the four to one ratio, the trial court included the parents’ wrongful death recovery. This represented an actual damage figure of over $6,500,000 on which the $15,000,000 punitive damages awarded to each estate was to be based; just over a 2 to 1 ratio. Accordingly, the trial court rendered judgment for the full amount of the jury award.

Petitioners assert that including the parents’ wrongful death recovery as actual damages in the ratio calculation of section 41.007 allows the parents to recover punitive damages for wrongful death in violation of Tex. Const, art. XVI, § 26. Rather, they contend that the amount of actual damages that should be used in determining the permissible ratio is the $1,000,000 each estate received under the survival recovery; thus, each estate would be limited to a punitive damages recovery of $4,000,-000. We agree.

Tex. Const, art. XVI, § 26 provides:

Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.

At common law, a cause of action for personal injuries and the right to exemplary damages for the willful or wanton conduct of the tortfeasor terminated with the deceased. In order to give the decedent’s survivors an available remedy, Texas passed the Wrongful Death Act. However, this Act was said to have created a new cause of action, as opposed to a mere continuation of the deceased’s cause of action, and thus the right to recover exemplary damages still terminated upon the death of the decedent. The constitutional provision was enacted to allow the survivors to recover exemplary damages. Tex. Const, art. XVI, § 26, interp. commentary; Scoggins v. Southwestern Elec. Serv. Co., 434 S.W.2d 376 (Tex.Civ.App.—Tyler 1968, writ ref d n.r.e.).

It is well established that this provision defines the class of persons who are entitled to recover punitive damages for wrongful death; parents of the deceased, while they are entitled to maintain an action under the Wrongful Death statute, are not included in article XYI, § 26 and are therefore unable to recover punitive damages. Tex.Civ.PRAC. & Rem.Code § 71.004; Winnt v. Int’l & G.N. Ry. Co., 74 Tex. 32, 11 S.W. 907, 908 (1889); see also Houston & T.C. Ry. Co. v. Baker, 57 Tex. 419, 424 (1882) (holding that parents are not among those who are entitled to recover exemplary damages for wrongful death under article XVI, § 30 of the Texas Constitution of 1869). The Wrongful Death statute cannot broaden the class of persons entitled to recover punitive damages beyond the scope of article XVI, § 26 of the constitution. Scoggins, 434 S.W.2d at 380. In 1889 this Court, analyzing the relationship between article XVI, § 26 and the Wrongful Death Act said, “the right to maintain an action for the recovery of exemplary damages for the death of a person ... is confined to the class of persons who, by the terms of the constitution, are designated as entitled to maintain such action; namely the surviving husband or wife, or heirs of the body, of the deceased, and not to the parent.” Winnt, 11 S.W. at 908.

In the instant case, the court of appeals affirmed the trial court’s damage award, rejecting petitioner’s argument that the constitution prohibits the inclusion of the parents’ wrongful death recovery in the punitive damages calculation. 815 S.W.2d at 758. The court of appeals rested its conclusion on this Court’s decision in Hofer v. Lavender, 679 S.W.2d 470 (Tex.1984) and on the definition of “claimant” as defined in Tex.Civ.PRAC. & Rem.Code § 41.001(1).¹⁰ Under section 41.001(1), when a party is seeking exemplary damages for the death of an individual, both the deceased and the persons seeking recovery are defined as a claimant.

Although “claimant” appears nowhere in the punitive damages limitation provision of section 41.007 and would seem to have no application, Senator Montford, the author of this chapter, in an article in the Houston Law Review, gave-his view that anyone who seeks recovery of exemplary damages under Chapter 41 is a claimant for all purposes of this chapter, including section 41.007, and that both the parent’s and the child’s recovery are to be included in calculating the punitive damages ratio. Montford and Barber, 1987 Texas Tort Reform: The Quest for a Fairer and More Predictable Texas Civil Justice System Part Two, 25 Houston L.Rev. 245, 316 (1988). Nevertheless, the intent of an individual legislator, even a statute’s principal author, is not legislative history controlling the construction to be given a statute. It is at most persuasive authority as might be given the comments of any learned scholar of the subject. Even if Senator Montford’s interpretation is correct, however, just as the Wrongful Death statute cannot expand upon the Constitution, neither can section 41.007.

As previously noted, the court of appeals also relied on our decision in Hofer v. Lavender, 679 S.W.2d 470 stating:

[a]ppellants rely on Hofer v. Lavender (citations omitted), which held that parents cannot recover exemplary damages under the Wrongful Death Act. The court in Hofer, however, stated that “exemplary damages survive to the estate, whoever the beneficiaries of that estate may be.” Id. at 476. In the instant case, the beneficiaries of the estate are Gonzalo and Amada De La Lastra.

This conclusion is based upon a misapplication of Hofer. In Hofer, this Court addressed the issue of whether the parents, as beneficiaries, are entitled to punitive damages that are awarded to the estate of the deceased under a survival cause of action. Concluding that the parents were entitled to recover, we said,

[t]he survival statute did not create a new cause of action, but kept alive the cause of action that the deceased might have had. It makes no sense to say that a tortfeasor may have exemplary damages assessed against him in favor of a decedent’s estate if the beneficiaries of the estate are a spouse or children, but not if the beneficiaries are otherwise.... exemplary damages survive to the estate, whoever the beneficiaries of that estate may be.

Id. at 476. The rationale behind allowing parents, as beneficiaries, such a recovery is that in a survival cause of action the estate is seeking punitive damages, not the parents; the classification of the beneficiaries of the estate should not determine the estate’s ability to seek this recovery. However, to allow parents, as beneficiaries of an estate, to also include their recovery for wrongful death with their survival recovery would impermissibly extend Hofer, allowing parents to circumvent article XVI, § 26 by bootstrapping their wrongful death recovery to their survival damages in order to procure a larger punitive damage award. This should not and can not be the result. Wrongful death and survival recoveries are independent of one another, and the availability of one should in no way affect the other.

It is well settled that had the De La Lastras brought only a wrongful death action, they would not be entitled to recover punitive damages. Hofer, 679 S.W.2d at 475; Winnt, 11 S.W. at 908; Houston, 57 Tex. at 424 (1882). It is therefore illogical to allow these damages to be included when a survival recovery is also effectuated. If the parents, as representatives of the estate, were to bring a survival action only, each estate would be limited to a punitive damage recovery of $4,000,000; four times the actual damages award of $1,000,000. By including the wrongful death recovery, however, the punitive damage award of $15,000,000 falls within the permissible recovery ratio; a recovery that would not be allowed, but for the inclusion of the wrongful death damages. Thus, including these wrongful death damages effectively allows the parents to recover punitive damages of $11,000,000 for wrongful death, as opposed to receiving as beneficiaries what the estate was entitled to under their survival cause of action. Such a recovery clearly violates article XVI, § 26. Accordingly, we hold that the De La Lastra’s wrongful death recovery cannot be used in calculating the amount of actual damages for purposes of determining the amount of recoverable punitive damages. Therefore, the award of $15,000,000 in punitive damages to each estate must be reduced.

General Chemical also asserts that the current Texas system of awarding punitive damages, and the resulting excessive punitive damage award deprived them of their constitutional rights of due process as guaranteed by article I, § 19 of the Texas Constitution and the Fourteenth Amendment to the United States Constitution. Petitioners rely on Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), in which the United States Supreme Court addressed the question of whether an excessive punitive damage award violates due process under the Fourteenth Amendment. Although the Court found the damage award in that case to be constitutional,¹¹ it did recognize that in certain circumstances a due process challenge to excessive punitive damages could be made. The Court undertook an individualized analysis, focusing on the procedural safeguards afforded a defendant, such as the amount of discretion the jury has in its determination of punitive damages, the instructions the jury received which inform the jury of the policy and purpose behind punitive damages, and the trial court and appellate review of the jury award. Nevertheless, because we conclude that section 41.007 mandates a reduction in the punitive damages, we need not address whether or not this award was unconstitutionally excessive in light of Haslip.¹²

The survival recovery for each estate was $1,000,000, thus each estate is entitled to receive $4,000,000 in punitive damages. This equates to a total punitive damage recovery of $8,000,000. We therefore reverse the judgment of the court of appeals as it relates to punitive damages and remand this cause to the trial court to render judgment consistent with this opinion.

Concurring opinion by CORNYN, J. Concurring and dissenting opinion by HECHT, J., joined by PHILLIPS, C.J., and ENOCH, J.

1 . Only General Chemical is a party to this appeal. The claim against the owner of the vessel was severed.

2 . The damages awarded were as follows:

3 . Miles impliedly overruled previous decisions recognizing a right of recovery for loss of society damages under general maritime law. See Sea-Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). General Chemical argues that Miles would control here if maritime law applies, although that case involved a suit by a seaman against his employer. We do not today decide whether the Miles holding extends to actions against third parties, such as General Chemical.

4 . DOHSA provides a remedy for wrongful death occurring on the high seas, beyond three nautical miles from shore, while the Jones Act provides a remedy for seamen against their employers. This incident occurred in the territorial waters of Texas, and is an action against a third party, not the decedents' employer.

5 . Without a doubt it is evident that at trial, General Chemical relied on state law. In a response to a motion in the court of appeals, General Chemical stated:

[t]he judgment against the appellant herein is not under the Jones Act but rather under common law and statutory law of the state of Texas. Appellant is not appealing any claim under the Jones Act but rather a claim under the Texas common law of negligence and strict product liability.... Here the suit against the employer and shipowner ... was severed and made the subject of a separate action.

6 . The liability issues under state and federal law are identical. The only potential distinction is the recoverable damages. Therefore, in order to determine under what law the judgment was based, this distinction becomes a critical inquiry-

7 . Although Tallentire and Higginbotham addressed issues that are different than those facing us today, both expressly recognized that, under Gaudet, loss of society damages were available under general maritime law.

8 . The dissent suggests that the non-fatal injuries involved different circumstances and are therefore not probative evidence of General Chemical’s gross negligence. We disagree. All of the injuries involved incidents of asphyxiation. One of the individuals injured was an employee of Allied Chemical who was merely transporting the sodium metabisulfite. This is competent evidence of General Chemical’s actual knowledge of the risks involved with the handling of the product.

9 . The dissent argues that if the De La Lastras would have used the product in accordance with the instructions, the chemical would not have been deadly. While perhaps this is true, it confuses the inquiry. Although the label contained proper instructions regarding the product’s use, it failed to adequately warn of the serious consequences associated with this foreseeable use. Furthermore, as the dissenting opinion acknowledges, since General Chemical did not challenge the jury’s finding that the warning was inadequate, "the inadequacy of the warning label must be taken as an established fact." At 926.

10 . Section 41.001 defines claimant as:

a party, including a plaintiff, counterclaim-ant, cross-claimant, or third-party plaintiff, seeking recovery of exemplary damages. In a cause of action in which a party seeks recovery of exemplary damages related to injury to another person, damage to the property of another person, death of another person, or other harm to another person, "claimant” includes both that other person and the party seeking recovery of exemplary damages.

Tex.Civ.Prac. & Rem.Code § 41.001(1).

11 . The punitive damages awarded in Haslip were about $840,000. The compensatory damages were $200,000. This amounts to a ratio of approximately 4.2 to 1.

12 . General Chemical asserts the applicability of section 41.007 and seeks to have the 4-1 ratio imposed. We need not address whether such a ratio will in all cases withstand a constitutional challenge. Contrary to the dissent’s view, General Chemical has not raised a constitutional challenge to section 41.007.