Quigley Company, Inc. v. Calderon, Miguel Agustin ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

QUIGLEY COMPANY, INC.,                             Appellant, v. MIGUEL AGUSTIN CALDERON,                             Appellee.

' ' ' ' '

No. 08-01-00346-CV Appeal from the 168th Judicial District Court of El Paso County, Texas (TC#2000-1703)

M E M O R A N D U M O P I N I O N

This is an appeal from a personal injury suit.  For the reasons stated, we affirm in part and reverse and render in part.

I.  SUMMARY OF THE EVIDENCE

Appellee, Miguel Agustin Calderon, began working at the Phelps-Dodge copper refinery in El Paso in 1954.  While at Phelps-Dodge, Appellee worked as a laborer, helper, mechanic, welder, pipefitter, boiler maker, insulator, brick layer, blacksmith, sand blaster, and painter.  He was exposed to Insulag, an insulating cement that included asbestos, almost daily during the 1950=s and 1960=s. Appellant, Quigley Company, Inc. produced Insulag.  Insulag was a dry, powdered product that produced a dust when poured into wheelbarrows to be mixed with water.  Appellee worked with other asbestos products, including Featherlite pipecovering and gaskets.  However, he described Insulag as the main product he used as an insulator. He retired in 1994 at the age of 62 after almost 40 years of service.

In October, 2000, Appellee was diagnosed with asbestosis.  Despite undergoing heart bypass surgery and angioplasty, Appellee continues to experience shortness of breath. Dr. Ernesto Bondarevsky, who examined Appellee, testified that the main symptom of asbestosis is shortness of breath or difficult breathing. He testified that in addition to shortness of breath, Appellee had other respiratory symptoms, such as cough and expectoration, for about fifteen (15) years. Dr. Bondarevsky=s diagnosis of asbestosis relied primarily on Appellee=s exposure to asbestos for over forty (40) years.

Appellee filed suit in May, 2000, against numerous defendants for his asbestos-related illness.  The claims against all but Appellant, Quigley Company, Inc., were settled and dismissed.  Thereafter, trial commenced against Appellant.  The jury returned its verdict in Appellee=s favor, awarding $3,055,000 in compensatory damages and $15,000,000 in punitive damages.  The trial court later signed a judgment in Appellee=s favor.  After offset of the settlement credit and application of the statutory cap, the judgment awarded $2,894,757.50 in compensatory damages and $750,000 in punitive damages.  Appellant then filed its motion for judgment notwithstanding the verdict, motion to disregard certain jury findings, and motion for new trial or in the alternative, for remittitur.  After a hearing on Appellant=s motions, the trial court vacated its prior judgment and disregarded the jury=s award of damages for fear of cancer finding it was based on legally and factually insufficient evidence. Appellant=s motion for judgment notwithstanding the verdict, motion to disregard certain jury findings, and motion for new trial or in the alternative, for remittitur were denied in all other respects.  The court then signed a modified judgment awarding Appellee $1,894,757.50 in compensatory damages and $750,000 in punitive damages.  This appeal follows.

II.  DISCUSSION

Appellant brings five issues challenging the legal and factual sufficiency of the evidence.  We begin with a discussion of the standard of review.

A.  Legal and Factual Insufficiency

In considering a Ano evidence@ legal insufficiency issue, we consider only the evidence and inferences that tend to support the jury=s findings and disregard all evidence and inferences to the contrary.  See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992); Pool v. Ford Motor Co., 715 S.W.2d 629, 634‑35 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 411-12 (Tex. App.--El Paso 1994, writ denied).  If more than a scintilla of evidence supports the questioned finding, the Ano evidence@ issue fails.  See Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex. App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex. App.--El Paso 1994, writ denied). 

An Ainsufficient evidence@ or factual insufficiency issue involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong.  The test for factual insufficiency issues is set forth in In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).  In reviewing an issue assert­ing that a finding is against the great weight and preponder­ance of the evi­dence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex. App.--El Paso 1981, no writ). The jury=s finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence.  See id.  Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury.  If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained.

B.  Substantial Factor

In Issue No. One, Appellant asserts that the evidence is legally and factually insufficient to establish that its conduct or its product is a substantial factor in bringing about Appellee=s asbestos-related disease.  Appellee submitted two causes of action to the jury: negligence and  marketing defect.

Negligence requires a showing of proximate cause, while products liability causes of action require a showing of producing cause.  Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 935 (Tex. App.--Texarkana 1997, writ denied).  Producing cause differs from proximate cause. Producing cause is an efficient, exciting, or contributing cause that, in a natural sequence, produces the injuries or damages complained of and but for which the injuries would not have occurred. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995); Odell, 948 S.W.2d at 935-36.  Producing cause requires a lower burden than proximate cause, because foreseeability is not required.  Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993); Odell, 948 S.W.2d at 936.  Both proximate cause and producing cause require causation in fact.  Odell, 948 S.W.2d at 936. Causation in fact requires that the defendant=s conduct be a substantial factor in bringing about the plaintiff=s damages.  Allbritton, 898 S.W.2d at 775; Odell, 948 S.W.2d at 936. Causation must be based on a reasonable probability, not just mere possibility.  Odell, 948 S.W.2d at 936. Absolute certainty is not required, nor must the plaintiff exclude every other possibility.  Id.  The only requirement to a finding of ultimate fact is proof of a causal connection beyond the point of conjecture or mere possibility.  Id.

A fundamental principle of traditional product liability law is that the plaintiffs must prove that the defendant supplied the product which caused their injury.  Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989); Celotex Corp. v. Tate, 797 S.W.2d 197, 203 (Tex. App.--Corpus Christi 1990, writ dism=d by agr.). If there is sufficient evidence presented by Appellees showing that Appellant supplied any of the asbestos to which Appellees were exposed, then Appellees have adequately met their burden of proof. Tate, 797 S.W.2d at 204.

The evidence established that Appellee was exposed on a daily basis to Insulag during the 1950=s and 1960=s and that Appellant produced Insulag.  Insulag was the main product Appellee  used as an insulator.  Insulag produced a dust when poured into wheelbarrows to be mixed with water and contained 9.7 percent asbestos.  Dr. Richard Lemen testified that asbestos fibers, such as those found in Insulag, are capable of being breathed before they are

mixed with water.  Dr. Lemen also testified that 9.7 percent is a significant amount of asbestos in a dry powder fiber product.

Furthermore, Appelllee suffers from shortness of breath.  Dr. Bondarevsky testified that the main symptom of asbestosis is shortness of breath or difficult breathing. He testified that in addition to shortness of breath, Appellee had other respiratory symptoms, such as cough and expectoration, for about fifteen (15) years. Dr. Bondarevsky=s diagnosis of asbestosis relied primarily on Appellee=s exposure to asbestos for over forty (40) years.  Appellee=s scarring of the lungs is an interstitial scarring, which Drs. Bondarevsky and Lemen testified is caused by exposure to asbestos dust.  Dr. Bondarevsky stated that the scarring is in both lungs and is mainly in the mid or lower fields, and that the pattern is consistent with asbestosis.  Finally, Dr. Bondarevsky testified that Appellee=s lung disease was not caused or produced by his coronary artery bypass graft.

In examining only the evidence that supports the jury=s verdict, we find there is more than a scintilla of evidence to establish that Appellant=s conduct or its product is a substantial factor in bringing about Appellee=s asbestos-related disease.  This portion of Issue No. One is overruled.  We now examine the factual sufficiency of the evidence.

The evidence established that Appellee worked with other asbestos products, including Featherlite pipecovering and asbestos gaskets.  He also worked with Kromag and Q-Chrome mixing muds when doing brick work.  Appellee was also exposed to smoke and dust while at Phelps-Dodge.  Appellee underwent heart bypass surgery and angioplasty, which could contribute to his shortness of breath.  Interstitial lung disease has approximately 100 other causes. Dr. Lemen stated it was Apossible@ that 65percent of all diagnosed cases of interstitial lung disease have no known cause.

In examining all of the evidence, we find that the jury=s finding is not against the great weight and preponderance of the evidence.  Issue No. One is overruled in its entirety.

C.  Mental Anguish and Physical Pain Award

In Issue No. Two, Appellant argues that the evidence is legally and factually insufficient to establish that Appellee sustained compensable mental anguish in the past or future for an asbestos-related disease. In Issue No. Three, Appellant asserts that the evidence is legally and factually insufficient to establish that Appellee sustained any physical pain in the past or future, in the form of shortness of breath, due to his alleged exposure to Insulag.

AWhen a damage issue is submitted in broad form, ascertaining the amount the jury awarded for each element of damages is difficult, if not impossible.@ Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 24 (Tex. App.--San Antonio 2000, no pet.) (citing Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921-22 (Tex. App.--Beaumont 1999, pet. denied)).  AAn Appellant who seeks to challenge a multi-element damage award on appeal must address each element and show the evidence is insufficient to support the entire award.@ Id at 24.  (citing Lewis, 997 S.W.2d at 922).  If an Appellant fails to address an element of damages, the Appellant waives the sufficiency challenge.  Id.  AIf there is just one element that is supported by the evidence, the damages award will be affirmed if it is supported by the evidence.@  Greater Houston Trans. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.--Corpus Christi 1993, writ denied).

There is no Adirect evidence of the nature, duration, or severity of [plaintiffs=] anguish, thus establishing a substantial disruption in the plaintiffs= daily routine,@ or other evidence of A >a high degree of mental pain and distress= that is >more than mere worry, anxiety, vexation, embarrassment, or anger.=@ Saenz, 925 S.W.2d at 614.  The evidence is legally and factually insufficient.  We therefore sustain Issue No. Two. However, since Appellant is challenging a multi-element damage award, we next examine the record for evidence of physical pain.  If there is just one element that is supported by the evidence, the damages award will be affirmed.

The evidence established that Appellee suffers from shortness of breath and he knows his asbestosis is incurable.  Dr. Bondarevsky testified that the main symptom of asbestosis is shortness of breath or difficult breathing. He stated that Appellee experiences shortness of breath after climbing one flight of stairs. He testified that in addition to shortness of breath, Appellee had other respiratory symptoms, such as cough and expectoration, for about fifteen (15) years. Dr. Bondarevsky also testified that Appellee suffers from scarring of the lungs, which is an interstitial scarring.  Appellee=s chest X-ray showed a moderate scarring of the lungs and moderate pleural thickening on the left side. Dr. Bondarevsky testified that a patient with damaged lungs, such as Appellee=s, is susceptible to other complications such as infections, bronchitis, and the flu or common cold.

In examining only the evidence that supports the jury=s verdict, we find there is more than a scintilla of evidence to establish that Appellee suffers from physical pain.  This portion of Issue No. Three is overruled.  We now examine the factual sufficiency of the evidence.       Appellee=s dizziness and shortness of breath was first diagnosed as being heart-related. Appellee underwent heart bypass surgery and angioplasty, which could contribute to his shortness of breath.  Dr. Bondarevsky stated that Appellee=s pleural thickening could be caused by either his asbestos disease or by his previous heart surgery.  In examining all of the evidence, we find that the jury=s finding is not against the great weight and preponderance of the evidence. Issue No. Three is overruled in its entirety.

D.  Physical Impairment Award

In Issue No. Four, Appellant argues that the evidence is legally and factually insufficient to establish that Appellee sustained any compensable physical impairment in the past or future.

Physical impairment is an element of damages that extends beyond loss of earning capacity and beyond any pain and suffering, to the extent that it produces a separate loss that is substantial or extremely disabling.  Blankenship v. Mirick, 984 S.W.2d 771, 777 (Tex. App.--Waco 1999, pet. denied); Peter v. Ogden Ground Serv., Inc., 915 S.W.2d 648, 650 (Tex. App.--Houston [14th Dist.] 1996, no writ). Therefore, even proof that one is entitled to compensatory damages for pain and suffering, or for lost wages, does not automatically entitle one to compensation for physical impairment. The party claiming such damages bears the burden of proving a compensable injury.  However, there is no mathematical standard for the determination of the money damages a jury may award for physical impairment, and the jury may assess those damages in its discretion.  N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 912 (Tex. App.--Corpus Christi 1999, pet. denied).  Once a plaintiff establishes that physical impairment exists, that plaintiff need not establish a dollar amount corresponding to that impairment.

The evidence establishes that Appellee knows his asbestosis is incurable.  He testified that he walks slowly, runs out of energy, and becomes short of breath in Aabout three or four seconds.@ Dr. Bondarevsky testified that a patient with damaged lungs, such as Appellee=s, is susceptible to other complications such as infections, bronchitis, and the flu or common cold.  He also testified that the main symptom of asbestosis is shortness of breath or difficult breathing.  He stated that Appellee experiences shortness of breath after climbing one flight of stairs.  He testified that in addition to shortness of breath, Appellee had other respiratory symptoms, such as cough and expectoration, for about fifteen (15) years. 

Dr. Bondarevsky also testified that asbestosis is a progressive disease that may get worse over many years and can cause death.  He stated that many patients with asbestosis progress to respiratory failure and death.  He testified that Appellee is going to get Asicker and sicker@ and Aworse and worse.@ When asked about the progressive nature of the disease, he testified that patients notice difficulty breathing on doing certain excessive activities and they notice they can not do the things they could before.  He stated that the patients become more and more limited and rely on other people to help with certain things.  The patients may become bedridden or chair or wheelchair ridden.  There comes a point where the patients cannot even eat or talk, and they become malnourished and are required to use a ventilator to breathe.

Furthermore, Dr. Lemen testified that asbestosis is a progressive disease that is Aa slow form of suffocation@ and Aa progressive shortness of breath.@ He also testified that eventually, a person with severe asbestosis needs an oxygen tank to breath and can only disconnect long enough to get up and go to the bathroom. He stated that a person that develops asbestosis is going to die, more likely than not, from an asbestos-related disease, whether it be the asbestosis or an asbestos-related cancer.

In examining only the evidence that supports the jury=s verdict, we find there is more than a scintilla of evidence to establish that Appellee sustained compensable physical impairment in the past or future. This portion of Issue No. Four is overruled.  We now examine the factual sufficiency of the evidence.

Dr. Bondarevsky testified that Appellee=s pulmonary capacity had not yet reached a level to cause any impairment that would be measurable on his pulmonary function studies.   In examining all of the evidence, we find that the jury=s finding is not against the great weight and preponderance of the evidence. Issue No. Four is overruled in its entirety.

E.  Malice

In Issue No. Five, Appellant asserts that the evidence is legally and factually insufficient to establish, by clear and convincing evidence, that Appellee=s asbestos-related disease resulted from any malice under Chapter 41 of the Texas Civil Practice and Remedies Code.  To recover exemplary damages, the plaintiff must prove by clear and convincing evidence that

 the harm resulted from malice.  Tex. Civ. Prac. & Rem. Code Ann. '' 41.003(a)(2) (Vernon 1997).  Malice is defined as:

(A) a specific intent by the defendant to cause substantial injury to the claimant; or

(B) an act or omission:

(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Tex. Civ. Prac. & Rem. Code Ann. '' 41.001(7).

The evidence established that Appellee was exposed to Insulag almost daily during the 1950=s and 1960=s.  In 1959, an Occupational Disease Survey was conducted at Appellant=s plant in New Jersey.  The survey measured Athe occupation disease exposure associated with [Appellant=s] manufacturing operations.@ Air samples were taken throughout the plant to measure its quality by obtaining dust samples.  The overall dust levels exceeded the threshold limit, twenty (20) million particles per cubic feet of air for medium silica dust and five (5) million particles per cubic feet of air for asbestos, adopted at the 20th annual meeting of the American Conference of Governmental Industrial Hygienists.  The samples taken in the casting department where Insulag was mixed resulted in forty-one (41) million particles per cubic feet of air. In the area where Insulag was bagged, the sample resulted in twenty-four (24) million particles per cubic feet of air.  The study also found that the Insulag mixture of cement, asbestos, and brick dust presented an asbestosis exposure and that the exposure in the plant was well above the prescribed threshold limit. 

Dr. Lemen testified that there were well over one hundred articles in medical literature by the end of the 1950=s that discussed the asbestos-related disease in persons working with asbestos-containing products. If combined with the articles about people who were getting sick while working with asbestos in an asbestos textile mill, Dr. Lemen estimated there were as many as seven hundred articles.

Finally, J. J. Marino, Appellant=s former chief engineer, testified that it was not clear until the 1970=s that asbestos was dangerous.  Marino stated that as late as 1972, Ano one ha[d] made up their mind yet as to if it was hazardous or wasn=t hazardous or to what degree it was hazardous if it was hazardous.@  He testified that Aprior to the middle of =72, I had no idea it was hazardous or believed it was hazardous.@  Moreover, Appellant believed Insulag was not dangerous because A[w]e were making it correctly.  We were telling the people in the field how to mix it correctly.@  Marino testified that there was not sufficient information available at that time to determine whether 10 percent or 20 percent asbestos in a product mix had the same hazardous effect as 100 percent asbestos.

When viewed objectively from Appellant=s standpoint at the time of Appellee=s exposure to Insulag, we find there is no evidence to establish that the use of Insulag involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Likewise, there is no evidence to establish that, at the time Appellee worked with Isulag, Appellant had actual subjective awareness of the risks involved with the use of Insulag and still proceeded with conscious indifference.  Because Appellee failed to meet the objective and subjective prongs of conscious indifference malice, we sustain Issue No. Five.

Having overruled Issues No. One through Four, we affirm that portion of the trial court=s judgment.  Having sustained Issue No. Five, we reverse that portion of the trial court=s judgment as it relates to malice and render a take nothing judgment with regard to the punitive damage award.

January 10, 2003

                                                                                                                                          RICHARD BARAJAS, Chief Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.