Exxon Mobil Corporation v. Louise Altimore

Appellee=s Second Motion for Rehearing Overruled and Second Motion for En Banc Rehearing is overruled as moot; Reversed and Rendered and Substitute Majority Opinion and Concurring Opinion filed April 19, 2007

Appellee=s Second Motion for Rehearing Overruled and Second Motion for En Banc Rehearing is overruled as moot; Reversed and Rendered and Substitute Majority Opinion and Concurring Opinion filed April 19, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-04-01133-CV

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EXXON MOBIL CORPORATION, Appellant

V.

LOUISE ALTIMORE, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 03CV0588

S U B S T I T U T E   M A J O R I T Y  O P I N I O N  ON   R E H E A R I N G

Appellee, Louise Altimore=s Second Motion for Rehearing is overruled as moot, our substitute opinion of December 7, 2006 is withdrawn, and the following substitute opinion is issued in its place.^[1]

This case presents the issue of whether appellant, Exxon Mobil Corporation (AExxon@), owes a duty to an employee=s wife injured by exposure to asbestos brought home on her husband=s work clothing, at a time when such an injury was considered a medical curiosity.

Exxon appeals a judgment on a jury verdict in favor of appellee, Louise Altimore, for damages sustained from contracting mesothelioma by allegedly breathing asbestos dust brought home on her husband=s work clothes. Because, under the facts of this case, we hold Exxon did not owe appellee a duty, we reverse the judgment of the trial court and render judgment that appellee take nothing on her claims against Exxon.

Factual Background and Procedural History

Appellee was diagnosed with pleural mesothelioma in April 2003.  Mesothelioma is a rare and almost universally fatal disease.  According to Dr. Gary Raabe, Exxon=s epidemiologist expert witness, the only cause of mesothelioma proven by epidemiological studies is asbestos exposure.^[2] Appellee brought suit against Exxon and a large number of other defendants alleging her mesothelioma resulted from asbestos exposure for which the defendants were responsible.  By the time of trial, Exxon was the only remaining defendant.  Appellee=s husband, Mike Altimore, was a lifetime Exxon employee.^[3] Appellee=s complaint against appellant is that (1) Exxon negligently allowed Mr. Altimore to bring asbestos dust home on his work clothes; (2) appellee inhaled the asbestos dust while laundering Mr. Altimore=s asbestos laden work clothes; (3) causing her to contract mesothelioma.

During trial, Dr. Richard Lemen, appellee=s epidemiologist expert witness, testified regarding the actual asbestos exposures endured by the Altimores.^[4] Initially, Dr. Lemen explained that in order to determine if there are asbestos fibers in a certain location, one must take air samples and that you Acan=t just eyeball it.@^[5]  Dr. Lemen testified he did not know what Mr. Altimore=s cumulative asbestos exposure was at Exxon and any attempt to calculate that would be sheer speculation with a 100 percent error rate.  Dr. Lemen also explained that he cannot tell what Mrs. Altimore=s exposure to asbestos would have been from Mr. Altimore=s clothing.  Despite this testimony, Dr. Lemen went on to opine that (1) because there was evidence  the Exxon Baytown facility used asbestos containing insulation products, and (2) there was testimony Mr. Altimore periodically worked in areas where insulators were performing their work, and (3) there was testimony there was dust visible to the naked eye, he was able to conclude that Mr. Altimore was exposed to toxic levels of asbestos and, in turn, he brought toxic levels of asbestos home on his work clothes.

Dr. Sam Hammar and Dr. Segarra also testified on behalf of appellee regarding appellee=s exposure to asbestos.^[6] All three of appellee=s experts explained that mesothelioma is a dose responsive disease, which means the risk of contracting the disease increases with the amount of exposure to asbestos.  Dr. Lemen testified that while research has not yet revealed it, he believes there is a minimum dose required to cause mesothelioma.  Both Drs. Segarra and Hammar opined that appellee was exposed to sufficient asbestos from handling Mr. Altimore=s work clothes to cause her mesothelioma.  Both doctors based their opinions on the history obtained from appellee and assumptions there would be evidence that Mr. Altimore worked around asbestos and brought it home on his work clothes.  Both doctors accepted appellee=s historical evidence of asbestos exposure at face value.  Dr. Hammar testified that without the history provided by appellee he had no evidence appellee was exposed to asbestos.  According to both Drs. Hammar and Segarra, appellees=s history also included potential exposure to asbestos through the use of household repair products and asbestos attic insulation.  In Dr. Segarra=s opinion, assuming she had these household exposures to asbestos, they could, in and of themselves, have caused her mesothelioma.

At the close of the evidence, the case was submitted to the jury as a negligence case and they returned a verdict finding Exxon acted negligently and with malice. The jury awarded appellee $992,901 in actual damages and $992,901 in exemplary damages.  Given the amount of the settlement credit,^[7] the trial court entered judgment on the jury verdict only for the amount of the exemplary damages.  Exxon=s post-trial motions for new trial and for remittitur and its motion to modify the judgment were overruled by operation of law.  This appeal followed.

Discussion

In eight issues on appeal, Exxon argues the trial court erred when it entered a final judgment in favor of appellee.  As its first issue, Exxon asks the question: A[d]id Exxon owe the plaintiff a duty?@ Within its first issue, Exxon then argues it did not owe appellee a duty because, Aon the record in this case, the lack of foreseeability is a proper reason for rejecting a duty.@  Exxon then goes on to state that Aat no relevant time did medical science reveal any foreseeable risk to [appellee].@  Because we find Exxon did not owe appellee a duty during the relevant time period, we need only address Exxon=s first issue.  Because this issue is dispositive of this appeal, we do not reach the issue of causation.  Tex. R. App. P. 47.1.

I.        The Elements of Negligence.

The elements of a negligence claim are the existence of a legal duty, a breach of that duty, and damages proximately caused by that breach.  IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003).  Duty is the threshold inquiry in a negligence case. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If there is no duty, liability for negligence cannot exist.  Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).

II.       The Standard of Review.

The existence of a legal duty is a question of law for the court to decide from the particular facts surrounding the occurrence in question.  Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). Because the existence of a duty is a pure question of law, we review the trial court=s determination of duty on a de novo basis.  Loram Maint. of Way, Inc. v. Ianni, 141 S.W.3d 722, 727 (Tex. App.CEl Paso 2004), rev=d on other grounds, 210 S.W.3d 593 (Tex. 2006) (citing El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999)).  To determine whether the defendant is under a duty, we consider several interrelated factors, including the risk, foreseeability, and likelihood of injury, weighed against the social utility of the actor=s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.^[8] Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Greater Houston Transp. Co. v. Philips, 801 S.W.2d 523, 525 (Tex. 1990).  Of these factors, the foremost consideration is whether the risk is foreseeable.  Greater Houston Transp. Co., 801 S.W.2d at 525.  Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.  Isbell v. Ryan, 983 S.W.2d 335, 339 (Tex. App.CHouston [14th Dist.] 1998, no pet.). Foreseeability, however, does not require a person to anticipate the precise manner in which injury will occur once the person creates a dangerous situation through his negligence.  Taylor v. Carley, 158 S.W.3d 1, 9 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).  Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.  Id.  The Texas Supreme Court has frequently stated a two-prong test for foreseeability: (1) that the injury be of such a general character as might reasonably have been anticipated; and (2) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated might reasonably have been foreseen.  Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985)) (plurality opinion).^[9] AStated more broadly, we determine both the foreseeability of the general danger and the foreseeability that a particular plaintiff - or one similarly situated - would be harmed by that danger.@  Id.  AProof of negligence in the air, so to speak, will not do.@ Id. at 656 (citing Palsgraf v. Long Island R. R., 248 N.Y. 339, 162 N.E. 99, 99B100 (1928)).

III.      Was Appellee=s Injury Foreseeable?

To answer this question, we must determine whether the evidence introduced at trial  establishes that it was foreseeable to Exxon that, during the time period relevant to this case, an employee=s spouse was at risk of contracting a serious illness as a result of inhaling asbestos dust brought home on the work clothes of her husband, an Exxon employee.

A.      What is the Relevant Time Period?

Mr. Altimore worked as a machinist at Exxon=s Baytown, Texas refinery between 1942 and 1977.  Mr. Altimore began his career at Exxon working in the oil refinery, and at some point during his career, he moved to the polyolefins unit.^[10] It is undisputed that in 1972, Jesse Stovall made Mr. Altimore the supervisor of the air-conditioned tool room within the polyolefins unit.  Mr. Altimore worked in the tool room until he retired from Exxon in 1977.^[11] There was testimony from the various fact witnesses that, before he moved into the air-conditioned tool room, Mr. Altimore, while performing his duties as an Exxon machinist, worked in the vicinity of asbestos containing products, was exposed to visible dust, and went home with dust on his clothing.^[12] Accordingly, the time period relevant to this inquiry starts in 1942 when Mr. Altimore went to work in the Baytown refinery, and ends in 1972 when he began working in the air-conditioned tool room.

B.      During the Relevant Time Period, What Did Exxon Know About the Risk of Take-Home Exposure to Asbestos?

Dr. Lemen testified that, as of 2004, research had not been able to identify an asbestos exposure level below which there is no risk for developing cancer.  According to Dr. Lemen, the Occupational Health and Safety Administration (AOSHA@) issued a statement that it was not aware of a toxic substance that has more clearly demonstrated detrimental health effects on humans exposed to such a substance than asbestos.  Dr. Lemen testified OSHA has determined the diseases caused by asbestos exposure include asbestosis, lung cancer, and pleural mesothelioma.^[13] Dr. Raabe explained to the jury the only cause of mesothelioma proven by epidemiological study is asbestos exposure.  Dr. Jay Segarra, appellee=s pulmonologist expert witness, testified  housewife bystander asbestos exposure causing mesothelioma, as alleged by appellee, was an accepted concept in the medical and scientific literature of 2004.  However, the current understanding of the risks associated with asbestos exposure is not static, rather it is based on an expanding body of knowledge acquired over time.  Indeed, over the last century greater knowledge has gradually accrued with time and extensive international research.  Dr. Lemen, and to a lesser extent the other expert witnesses in this case, provided a detailed history of the evolution of the comprehension of the risks associated with asbestos exposure.  Inasmuch as our decision in this case rests on the answers to the questions, what did Exxon know about the risks associated with asbestos exposure, and when did Exxon know it, we examine the evolution of that knowledge at some length.^[14]

1.         Dr. Lemen=s Testimony.

Dr. Lemen reported there had already been significant advances in asbestos research by 1942, the year Mr. Altimore went to work at the Baytown refinery.  These advances included establishing by epidemiological study^[15] that asbestos exposure caused disease, specifically asbestosis.^[16] Dr. Lemen also reported that by 1942 there had already been case reports in both Great Britain and the United States linking asbestos exposure with lung cancer.^[17]  The United States Public Health Service (AUSPHS@) had also become involved in asbestos research by 1942.^[18] The USPHS had not only reported that prolonged exposure to asbestos dust caused a pulmonary fibrosis different from silicosis, it had also made recommendations for dealing with the problems associated with asbestos exposure.  These included generally controlling the levels of dust containing toxic substances to prevent the development of the disease, and maintaining a specific level of asbestos exposure that was thought to be safe: five million particles per cubic foot.

Dr. Lemen also reported that Exxon was involved in these early research efforts. In 1937, Roy Bonsib, Exxon=s chief safety inspector, published the article ADust Producing Operations in the Production of Petroleum Products and Associated Activities.@  Bonsib makes it clear Exxon recognized by 1937, if it was dusty enough to see the airborne particles of dust, it was not safe for workers to be working in those conditions without taking safety precautions.  To reduce the risk of workers developing disease, Bonsib recommended reducing the levels of airborne dust in the workplace and preventing workers from breathing that dust.  Finally, Bonsib recommended further studies and prompt adoption of adequate precautionary measures. According to several witnesses, Bonsib=s report served as the backbone of Exxon=s industrial hygiene program for more than three decades.  The Bonsib report did not, however, address the issue of the risk of family member bystander exposure.

In 1946, the American Council of Governmental Industrial Hygienists adopted the five million particles per cubic foot standard first put out by the USPHS in 1938. That same year, the Fleisher-Drinker study of asbestos insulation workers in United States Navy shipyards during the Second World War was the first major study involving workers using asbestos products as opposed to workers in asbestos mines or asbestos product manufacturing plants.  This study concluded working with asbestos insulation was a safe occupation and the five million particles per cubic foot standard appeared to be a safe level of exposure.

In 1949 Exxon=s industrial hygienists and safety personnel prepared a report entitled ASummary of the Plant Industrial Hygiene Problems.@^[19]  According to Dr. Lemen, this confidential Exxon report demonstrates that, based on the scientific literature of the period, Exxon did not have an awareness there was a risk of developing lung cancer as a result of asbestos exposure.  Dr. Lemen continued that this report also shows that by 1949, Exxon had identified categories of refinery workers at risk for exposure to asbestos and it was not limited to insulators. Finally, Dr. Lemen testified that, at that time, while there were many case reports linking lung cancer and asbestos exposure, there were still no epidemiological studies making that connection.

In 1955, Dr. Richard Doll published an epidemiological study in Great Britain that, according to Dr. Lemen, is credited with establishing the causal relationship between asbestos exposure and lung cancer.

In 1957, the state of Texas passed a regulation limiting asbestos exposure to five million particles per cubic foot for all industries operating in Texas.

In 1960, Dr. Wagner from South Africa, published ADiffuse Pleural Mesothelioma and Absestos Exposure in the Northwestern Cape Province.@  Dr. Wagner=s paper established that mesothelioma is casually associated with asbestos exposure.  That same year,  Dr. Eisenstadt reported two foremen at a Port Arthur, Texas refinery had developed mesothelioma.  According to this case report, they were exposed in a refinery and were using asbestos products.  Dr. Lemen testified that, by 1960, there were still no epidemiological studies in the United States that connected asbestos exposure in persons working with asbestos end products, as opposed to workers actually manufacturing the products, with disease.

In 1964, the New York Academy of Science held an international conference addressing asbestos-related disease research.  Papers were presented covering the whole body of international research concerning asbestos and asbestos-related diseases.  Exxon personnel attended the meeting and Dr. R. E. Eckardt, an Exxon medical research department employee, wrote a report for Exxon summarizing the information presented at the conference.^[20] Among the papers summarized by Dr. Eckardt was  J. G. Thompson=s case study: AAsbestos in the Urban Dweller.@  According to Dr. Eckardt, Thompson reported that families of asbestos workers, meaning those working in asbestos factories or mines, may develop asbestosis from brushing off clothes and those living near asbestos factories may develop asbestosis or tumors of the lung. Dr. Lemen testified that Dr. Eckardt did a good job  summarizing the content of the meeting when he concluded that minor exposures to asbestos may result in pulmonary changes.  Dr. Eckardt recommended taking whatever measures were necessary to control dust exposure to eliminate asbestosis, bronchial carcinomas, and mesothelioma, all of which seemed to be related to asbestos exposure. According to Dr. Eckardt, the conference demonstrated that the growing body of scientific evidence indicated asbestos exposure was a far more serious problem than had been previously thought, and control measures would have to be more fully developed than they were in the past.

In 1964 the first epidemiological study of end users of asbestos products was prepared by doctors I. J. Selikoff, E. C. Hammond, and J. Churg: AThe Occurrence of Asbestosis Among Insulation Workers in the United States.@  Dr. Selikoff presented this paper at the 1964 New York conference and it would be included in the book he published in 1965  containing all papers presented at the conference.  Dr. Selikoff and his colleagues also presented a second paper at the New York conference: ANeoplasia Among Insulation Workers.@  These studies examined insulation workers who were members of the North American Asbestos Worker=s Union.  In these papers, the authors reported an increased incidence of lung cancer and mesothelioma among the studies= population and they concluded these diseases appeared to be causally related to asbestos exposure.  In addition, they reported cancer among people indirectly exposed to asbestos insulation work, such as carpenters, steam fitters, and other building trade workers.  According to Dr. Lemen, the authors questioned whether the Threshold Limit Value (ATLV@) of five million particles per cubic foot was protective of workers as more than ten percent of the workers in the studies had died as a result of asbestos related disease.  Finally, Dr. Selikoff and other participants in the New York conference, called for more epidemiological studies to establish that asbestosis, lung cancer, and mesothelioma were causally related to asbestos exposure because there were still asbestos researchers who doubted there was a connection.

Dr. William Marr, a shipyard doctor, published a study of shipyard insulators in the Industrial Hygiene Journal in 1964.  Dr. Marr reported the insulators were not exposed at levels above the TLV, yet workers were still contracting asbestos related diseases.  According to Dr. Lemen, the significance of Dr. Marr=s study to the medical and scientific community was that the TLV may not be protective of workers.

In 1965, doctors Selikoff, Hammond, and Churg published ARelation Between Exposure to Asbestos and Mesothelioma.@  This study concluded mesothelioma was a disease caused by asbestos in multiple work environments.  Dr. Hammond, of the American Cancer Society, stated that a only a few years earlier, hardly anyone believed that insulation workers were at risk for lung cancer as they were only exposed to asbestos at levels below the TLV.  The researchers held this belief because it was thought at the time that if you kept exposures below the TLV, you would not get asbestosis, and if you do not get asbestosis, there would also be no lung cancer.

Dr. Lemen testified this growing belief that lung cancer was caused by asbestos exposure was not universal in 1965.  The previous year, Dr. Schepers, a medical doctor from South Africa who attended the 1964 New York conference, made a comment during the conference that was included in Dr. Selikoff=s 1965 book.  Dr. Schepers stated that, as of 1964, there seemed to be less certainty that asbestos was associated with lung cancer and that, ultimately, he believed the carcinogeneity of asbestos would be treated as of low order.

In 1967, doctors Lieben and Pistawka published a case study reporting that the daughter of an insulation worker had contracted mesothelioma.  According to Dr. Lemen, the first reports of take home asbestos exposure being connected with disease had come out in the 1960's.

Also in 1967, Leroy Balzer, Ph.D. and Clark Cooper, M.D. published AWork Environment of Insulating Workers.@  This study examined San Francisco, California insulators who were exposed to asbestos at levels below the TLV who were still getting asbestos related diseases.  Once again, according to Dr. Lemen, the significance of this article to the medical and scientific community was the possibility the TLV did not adequately protect workers.

According to Dr. Lemen, 1972 was a crucial year in the history of asbestos research.  By 1972, the experts were in agreement, if a person gets enough exposure to asbestos, that person could get asbestosis and cancer.  Once that central tenet had been generally accepted, the debate focused on what constituted a safe level of exposure for workers.  Thus, in June of 1972, OSHA released its initial asbestos exposure standard: five fibers per cubic centimeter over an eight hour time-weighted average.  This was the first asbestos exposure standard to cover all industries on a nationwide basis.  As part of these OSHA asbestos regulations, employers were prohibited from allowing workers to take their work clothes home to be laundered if the worker had been exposed to asbestos.  Also in 1972, while it had insufficient information to issue a single standard protective of all asbestos related disease, NIOSH proposed an asbestos exposure standard of two fibers per cubic centimeter.  Both the OSHA and NIOSH standards were designed to protect primarily against asbestosis. Despite the growing knowledge of the risks associated with asbestos exposure, in 1972, NIOSH performed a Health Hazard Evaluation of the Mobil Oil refinery in Augusta, Kansas.  This study, published in April 1973, examined  the level of asbestos exposure for insulation workers in a refinery setting.  The study concluded that asbestos was not toxic at the concentrations encountered in the insulators= work.

By 1974, knowledge of the risks of asbestos exposure reached the point where the doctors and others involved with asbestos research realized asbestos might pose a risk beyond the workplace.  In an October 1974 memorandum, Fred Venable, the industrial hygienist at Exxon=s Baton Rouge refinery, reported that Exxon=s failure to require the use of coveralls by employees and laundering by Exxon violated OSHA regulations and threatened employees and employees= families.  Venable also stated Exxon had previously been complacent when addressing asbestos issues but there had been a change in thinking since the appearance of two cases of mesothelioma among Exxon employees.  Two years later, in 1976, the USPHS announced there was no safe dose for asbestos exposure.  That same year, the year before Mr. Altimore retired from Exxon, Dr. Selikoff and his research colleagues published an article reporting that household exposure to asbestos had been established as potentially hazardous.  In Dr. Lemen=s opinion, this article confirmed that end users of asbestos products and their family members could be at risk due to asbestos exposure.  However, prior to this time period,

reports of asbestos related disease occurring in non-occupationally exposed individuals had been considered medical curiosities.^[21]

Dr. Lemen testified it was not until 1977, when Dr. Selikoff and his research colleagues published AAsbestos Disease in Maintenance Workers of the Chemical Industry@ that it became clear that, when dealing with hazardous levels of household exposure, industry had to be concerned not only with insulation workers but also with all employees working in areas where asbestos might be handled.  Dr. Lemen also testified he was not aware of any epidemiological studies of refinery workers before 1980 that demonstrated  a doubling of the risk for asbestos related disease.  In addition, Dr. Lemen stated that, even with all the advances in scientific knowledge regarding the risks of asbestos exposure, by the time of the 2004 trial, there were still no epidemiological studies showing a doubling of the risk for household asbestos exposures.

2.         Other Witnesses= Testimony Regarding Exxon=s Knowledge of the Risks of Asbestos.

James Hammond, Exxon=s former Chief Industrial Hygienist and Director of Industrial Hygiene,^[22] testified that by 1961, it was common knowledge to Hammond that asbestos exposure increased the risk of mesothelioma.^[23] Hammond also testified that Exxon started an active search for alternative products for asbestos in 1967.  According to Hammond, Exxon started this search after Exxon learned it took less exposure to asbestos to cause mesothelioma than it did to cause asbestosis.  Dr. Neill Weaver, Exxon=s medical director from 1964 until 1974, testified he learned in medical school in 1944 that asbestos caused disease and could kill.^[24]  He also testified the association between asbestos and lung disease would not be established among the scientific community until the early 1970's.  Dr. Raabe testified that by 1977 even the skeptics accepted there was a causal association between mesothelioma and asbestos exposure, but there was still no epidemiological evidence of occurrence in refineries.  Dr. Raabe also testified while there are anecdotal case reports, there had still been no epidemiological studies of household asbestos exposure.  Finally, both Dr. Segarra and Dr. Hammar testified that, at the time of trial, housewife bystander exposure to asbestos causing mesothelioma was not a unique or new concept and was well accepted in the medical community.

C.        Appellee=s Injury Was Not Foreseeable.

Appellee argues that knowledge of a risk of harm to someone, creates a duty of care to everyone. We disagree this is the law in Texas. The imposition of a duty on Exxon to protect appellee from exposure to asbestos dust depends on the foreseeability of the risk of injury to appellee or others similarly situated from asbestos fibers carried home on her husband=s clothing. Mellon Mortgage, 5 S.W.3d  at 655.

As support for her contention that we erred in finding the risk of harm to appellee was not foreseeable to Exxon until 1972, appellee cites the recent New Jersey Supreme Court opinion in Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006), as well as the Beaumont Court of Appeals 1998 opinion in Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914 (Tex. App.CBeaumont 1998, pet. granted, judgm=t vacated w.r.m.).  Initially, neither case represents binding authority on this court.^[25]

In Olivo, a summary judgment case, the New Jersey Supreme Court determined Exxon owed a duty to workers on its premises for the foreseeable risk of exposure to asbestos as well as a duty to spouses handling workers= unprotected work clothing based on the foreseeable risk of exposure from asbestos brought home on that work clothing.^[26] Olivo, 895 A.2d at 1149.  Appellee argues we should accept the result in Olivo as the New Jersey Supreme Court Aconsidered the same facts regarding duty and foreseeability, and the same facts about what Exxon knew and when it knew it.@  However, the facts in Olivo are not contained in our record, so it is impossible to confirm or deny whether the facts in the two cases are the same.  The Olivo opinion does reveal at least one significant difference in the facts of the two cases. The New Jersey Supreme Court states: Aas early as 1916, industrial hygiene texts recommended that plant owners should provide workers with the opportunity to change in and out of work clothes to avoid bringing contaminants home on their clothes.@  Id. There are no industrial hygiene texts from 1916 in this record or testimony from any witness about an industrial hygiene text from 1916 detailing this kind of warning.  For these reasons, we do not find the New Jersey Supreme Court=s Olivo decision persuasive.

In Fuller-Austin, the plaintiffs^[27] sued a distributor of asbestos products pursuing a strict liability theory of recovery.  Fuller-Austin, 960 S.W.2d at 917.  The Beaumont Court of Appeals affirmed the judgment of the trial court holding that (1) recovery under the strict liability doctrine is not limited to users and consumers, and (2) Fuller had a duty to warn  the stepdaughter of the dangers of asbestos even though she was not a user or consumer of the asbestos products.  Id. at 918, 920.  Because the case at bar is not a strict liability action, and Exxon was a user and not a manufacturer or distributor of asbestos products, we find Fuller-Austin distinguishable. 

In both of her motions for rehearing appellee argues that Exxon had Aactual knowledge@ of the  take home risk of asbestos by various case reports published in 1964.^[28] Appellee=s reliance on case reports is misplaced.  The Texas Supreme Court has discussed the scientific reliability of case reports:

The FDA has promulgated regulations that detail the requirements for clinical investigations of the safety and effectiveness of drugs.  These regulations state that A[i]solated case reports, random experience, and reports lacking details which permit scientific evaluation will not be considered.@  Courts should likewise reject such evidence because it is not scientifically reliable.

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997) (citations omitted).^[29] As they are not scientifically reliable, case reports constitute no evidence and cannot support a finding that the risk of harm to appellee was foreseeable to Exxon as early as 1964.

In 1972, even though there were still mixed messages from the medical and scientific community on the risks associated with asbestos exposure and there was no clear consensus on that risk, OSHA prohibited employers from allowing workers who had been exposed to asbestos to wear their work clothes home.  Based on the evidence introduced during the trial, Exxon did not become aware of the take-home risk of asbestos exposure until that point.  As a result of the OSHA regulations, Exxon was put on notice in 1972 that asbestos posed a risk to persons, such as employee families, who were never on the employer=s premises.  It follows that in 1972 the risk to appellee of contracting a serious illness had become foreseeable, triggering, for the first time, a duty to protect appellee and those persons similarly situated.  However, by that time, Mr. Altimore was working in the air-conditioned tool room and was no longer working in an environment where he was being exposed to asbestos dust. Accordingly, we conclude as a matter of law, Exxon did not owe a duty to appellee during the relevant time period referenced in section IIIB above, and we sustain Exxon=s first issue on appeal. Because resolution of this issue is dispositive of this appeal, we do not address Exxon=s other issues.

Conclusion

Having found Exxon did not owe appellee a duty during the relevant time period referenced in section IIIB above, we reverse the judgment of the trial court and render judgment that appellee take nothing on her claim against Exxon.

__________________________________

John S. Anderson

Justice

Judgment rendered and Substitute Majority Opinion and Concurring Opinion on Rehearing filed April 19, 2007.

Panel consists of Justices Anderson, Edelman, and Seymore. (Seymore, J., files a concurring).

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^[1]  As a result of the issuance of this new substitute opinion, appellee=s Second Motion for Rehearing En Banc is overruled as moot.

^[2]  Dr. Jay Segarra, appellee=s pulmonologist expert witness, provided testimony regarding the medically accepted causes of mesothelioma: (1) asbestos exposure; (2) aeronite exposure in the nation of Turkey only; (3) therapeutic radiation of the mediastinum, usually for Hodgkin=s Disease; (4) severe pleural scarring; and (5) ideopathic, which means there is no evidence of exposure to a substance known to cause mesothelioma, and thus the cause in such cases is unknown.

^[3]  The corporate history of appellant was not entered into evidence, but was explained by counsel to the jury. In 1911, both Standard Oil of New Jersey and Humble Oil in Texas were formed. In 1919, Standard Oil acquired some ownership interest in Humble Oil. In 1920, Humble Oil opened the Baytown refinery. It began chemical operations at the refinery in 1940. In 1965, Enjay was formed and the chemical operations of Humble Oil were transferred to Enjay. In 1972, Standard Oil changed its name to Exxon. Humble Oil, Esso, and Enjay merged into Exxon during 1972 and 1973. In 1998, Exxon and Mobil merged. Inasmuch as the parties both refer to Mr. Altimore=s employer during the entire time period relevant to this litigation as Exxon, we shall follow their lead and refer to appellant as Exxon or appellant.

^[4]  Dr. Lemen possesses masters and Ph.D. degrees in epidemiology.  Dr. Lemen served in the United States Public Health Service (AUSPHS@) from 1970 until his retirement in 1996.  Dr. Lemen rose to the rank of rear admiral in the USPHS.  Dr. Lemen spent his career working in the area of occupationally-related diseases and injuries.  Among his many accomplishments during his service with the USPHS, Dr. Lemen served as Assistant Surgeon General and Deputy Director of the National Institute For Occupational Safety and Health (ANIOSH@).

^[5]  No air samples from the Exxon Baytown facility were entered into evidence.

^[6]  Dr. Sam Hammar is a board certified pathologist.

^[7]  Appellee settled with the other defendants in an amount exceeding the actual damages found by the jury in the verdict against Exxon.

^[8]  A duty may also exist as a matter of law because of a special relationship between the parties. Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 292 (Tex. 1996).  Because there was no allegation or evidence that a special relationship existed between the parties, we need not address this issue.

^[9]  While Mellon Mortgage was a premises liability case, the Texas Supreme Court specifically stated it was focusing on Ageneral foreseeability principles that limit the scope of the defendant=s duty in this case.@  Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality opinion).

^[10]  While it does not impact our decision, there was some disagreement in the record on when Mr. Altimore transferred to the polyolefins unit.  Jesse Stovall testified Mr. Altimore moved in 1959, when the polyolefins unit was new.  Roy Calma testified he went to work in the polyolefins unit in 1966 and Mr. Altimore was already there working as a machinist in the unit.  Bruce Larson, a retired Exxon industrial hygienist, testified Mr. Altimore worked in the refinery until 1968, when he moved to the polyolefins unit.  Appellee testified Mr. Altimore moved to the polyolefins unit in 1971 or 1972.

^[11]  Mr. Altimore died in 1992 from pulmonary problems and heart failure.

^[12]  While there was testimony regarding Mr. Altimore=s alleged asbestos exposure, there was also testimony that: (1) you could not tell simply by looking, whether an insulation product contained asbestos; (2) the Baytown workers referred to all insulation material as asbestos; (3) Exxon used non-asbestos insulation products at the Baytown facility; (4) the polyolefins unit, because it operates at lower temperatures than the refinery, used less asbestos containing insulation materials than the refinery; (5) much of the work performed by Exxon machinists occurred in the machine shop and not out in the various units; (6) visible dust does not always mean asbestos dust; (7) the polyolefins unit emits a course white dust; and (8) appellee testified the dust Mr. Altimore brought home on his clothing was this polyolefins dust. 

^[13]  Asbestosis and mesothelioma are two separate diseases, each caused by exposure to asbestos.  Asbestosis is a non-cancerous scarring of the lung tissue caused by the inhalation of asbestos fibers.  As more asbestos fibers are inhaled, the scarring of the lungs increases and breathing capacity decreases.  If the scarring is severe enough, the disease may prove fatal.  Mesothelioma is a rare and almost universally fatal form of cancer where tumors develop in the serosal lining of the body cavities with pleural mesothelioma being the most common.  With pleural mesothelioma the tumors develop not in the lungs, but in the pleura lining the lungs.  The tumors then spread in a diffuse manner into the surrounding areas of the body. Death usually occurs within nine to twelve months of diagnosis.

^[14]  It was undisputed at trial that Exxon was a leader of the petroleum industry in industrial hygiene and medical research and made extensive efforts to stay abreast of advances in industrial hygiene and medicine as they occurred.

^[15]  According to Dr. Lemen, epidemiology is a subcategory of public health that tries to understand why certain people get disease, other people do not get disease and what are the causes of the diseases that people get and ultimately how those diseases can be prevented. By its very nature, epidemiology has to wait until the disease or death occurs before any statistics can be compiled.  An epidemiological study examines existing populations in an effort to determine if there is any causal association between a disease or condition and a factor suspected of causing that disease or condition.  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 715 (Tex. 1997).  An anecdotal case report or case study is not an epidemiological study; it is a report that a certain person has a particular disease.  The case study will give a great deal of background information about that individual.  The case studies are published so that doctors and other professionals will read them and report if they have encountered a similar situation.  If enough case studies are published reporting similar factual situations, this may lead to an epidemiological study to investigate if there is a causal association between the exposure and a particular disease.

^[16]  E.R.A. Merewether & C. W. Price, Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry (London, H.M. Stationary Office 1930).  Merewether and Price studied asbestos textile workers in Great Britain.  They concluded that asbestos exposure caused asbestosis.  They also considered workers other than in the manufacturing areas and concluded that asbestos exposure at the same levels would be a hazard to those workers using asbestos products as well.  Merewether and Price concluded that workers should be given a Asane appreciation of the risk,@ because of the danger that, if the workers do not understand the risks associated with asbestos, they are less likely to take precautions to protect themselves.

^[17]  S. Roodhouse Gloyne, Two Cases of Squamous Carcinoma of the Lung Occurring in Asbestosis,  Tubercle 5, 5-10 (1935) (Gr. Brit.).  Dr. Gloyne reported two persons with non-fatal asbestosis who developed carcinoma of the lung.  Dr. Gloyne=s study focused on workers in the asbestos textile manufacturing industry.  That same year, in the United States, researchers Lynch and Smith published similar findings.  

^[18]  United States Public Health Service, Effects of the Inhalation of Asbestos Dust on the Lungs of Asbestos Workers (1935).   In addition, Dr. Dreessen of the USPHS conducted a study of asbestos textile workers along the eastern coast of the United States and published his study in 1938.  His recommended exposure level came out of this study.

^[19]  The authors of this report were C. Berry, Ph.D.; J.W. Hammond, M.S.; R. S. Bonsib, E.M.; and N.V. Hendricks, M.S.

^[20]  Report from R.E. Eckardt, Exxon medical research department employee, to Exxon Corp., Esso Research and Engineering Company Summary of the Conference of Biological Effects of Asbestos (Oct. 1964).

^[21]  Irving J. Selikoff et al., Asbestosis Among Household Contacts of Asbestos Factory Workers, 1979 Annals N.Y. Acad. Of Sci. 387.

^[22]  James Hammond started working at Exxon in 1947 and he served as the industrial hygienist at Exxon=s Baytown facility.  He retired in 1978.  James Hammond is not to be confused with Dr. E. C. Hammond an epidemiologist with the American Cancer Society.  Mr. Hammond is deceased, but he testified at trial via videotaped deposition.

^[23]  While Mr. Hammond may have considered this information common knowledge it was not because the association between asbestos exposure and mesothelioma was not a commonly known, easily ascertainable and indisputable fact in 1961.  See Evans Associated Indus., Inc. v. Evans, 493 S.W.2d 547, 548 (Tex. Civ. App.CHouston [1st Dist.] 1973, writ dism=d) (stating, in judicial notice setting, common knowledge consists of facts of public notoriety and indisputable existence); Buckaroo Trucking Co. v. Johnson, 409 S.W.d 911, 913 (Tex. Civ. App.CCorpus Christi 1966, no writ) (stating, in judicial notice setting, common knowledge consists of commonly known, easily ascertainable and indisputable facts).  The evidence in this case demonstrates that, in 1961, many aspects of the relationship between asbestos and mesothelioma were in dispute and would be for quite some time. 

^[24]  Dr. Weaver served as the medical director of Exxon=s Baton Rouge refinery from 1956 until 1964, when he became Exxon=s medical director.

^[25]  The fact the Fuller-Austin opinion is not binding on this court is confirmed by the subsequent history. When the Texas Supreme Court grants a petition for review, sets aside the judgments of the court of appeals and trial court without reference to the merits of the case, and does not set aside the court of appeals= opinion, the weight of authority for that opinion is the same as if the petition for review had been dismissedBthe Texas Supreme Court has not addressed the merits of the case. James Hambleton, Notations for Subsequent Histories in Civil Cases, 65 Tex. B. J. 694, 698 (2002).

^[26]  While the New Jersey Supreme Court did find that Exxon owed a duty, it remanded the case to the trial court as there were genuine issues of material fact about the extent of the duty Exxon owed, whether any exceptions to that duty applied, and whether Exxon satisfied that duty.  Olivo v. Owens-Illinois, Inc., 895 A.2d 1143 (N.J. 2006).

^[27]  The plaintiffs were the stepdaughter of an insulation installer and her husband.  Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914, 917 (Tex. App.CBeaumont 1998, pet. granted, judgm=t vacated w.r.m.). The plaintiffs alleged the stepdaughter was exposed to asbestos dust from Fuller=s products that the stepfather brought home on his work clothes.  Id.

^[28]  Throughout her second motion for rehearing, appellee uses the terms Acase study@ and Aepidemiological study@ interchangeably, suggesting they are one and the same.  They are not. We have summarized the differences in note 15, supra.

^[29]  In her second motion for rehearing, appellee argues that by citing Havner as support for requiring reliable scientific evidence to establish the foreseeability element of duty, we improperly conflated duty and proximate cause.  As we do not reach the issue of proximate cause, Havner=s proximate cause analysis is not relevant here.  However, we do cite Havner, even though Havner directly addressed the issue of causation, for the proposition that an anecdotal case study or report establishes only that a person has become sick and is not scientifically reliable.  Even though Havner addresses causation,  Havner=s discussion of the scientific reliability of case studies or reports is applicable to the duty issue in this case as the foreseeability analysis is the same for both duty and proximate cause.  Mellon Mortgage, 5 S.W.3d at 659 (stating courts  may rely upon law that establishes a foreseeability standard that applies to both duty and proximate cause because the standards are the same); Longoria v. Graham, 44 S.W.3d 671, 673 n.3 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (stating foreseeability analysis is the same for duty and proximate cause).  Even if the Supreme Court had not determined that the foreseeability analysis is the same for both duty and proximate cause, it would be especially appropriate to apply the scientific reliability rule announced in Havner to toxic tort casesBcases which require scientific evidence to determine whether an injury is even possible.  It would make little sense to require scientifically reliable evidence for the proximate cause element of a negligence claim but allow unreliable scientific evidence to establish the existence of a legal duty, the threshold inquiry in a negligence case. Instead, the rule must be, that whenever scientific evidence is required to establish any element of a cause of action, that evidence must be scientifically reliable. See Havner, 953 S.W.2d at 728 (stating Athe law should not be hasty to impose liability when scientifically reliable evidence is unavailable@).