1.Whether the court of appeals properly declined to craft a new, formalistic standard for proving causation in asbestos cases in Texas, choosing instead to apply the traditional, generally applicable causation test.
2.Whether the court of appeals correctly found the evidence legally sufficient to support the jury’s finding that the defendant acted with malice in marketing its asbestos-containing products.
3.Whether legally sufficient evidence supports the jury’s strict liability findings.
4.Whether the court of appeals abused its discretion in ruling that, by failing to cite controlling legal authority on the standard of review and by failing to provide more than a conclusory analysis, Borg-Warner waived its complaint that the damage awards are excessive.
5.Whether the court of appeals erred in concluding that the admission of an excerpt of a book authored by plaintiff’s expert as an exhibit was not harmful error because it was cumulative of other evidence properly admitted.
STATEMENT OF FACTS
Flores’ Exposure to Asbestos from His Work with Borg-Warner Brakes
Arturo Flores, 61 years old at the time of trial, developed asbestosis as a result of working with asbestos-containing brake products as an auto mechanic. 7 RR 81. He began working as a mechanic in 1964, performing various duties such as tire rotations, alignments, and brake work. 8 RR 17. In 1966, Flores went from working as a general automotive mechanic to working as a brake mechanic at Sears. 8 RR 22.
Flores began using Borg-Warner disk brake pads in 1972 and continued using them through 1975. 8 RR 29. He estimated that he did five to seven jobs a week using Borg-Warner disk brake pads. When preparing Borg-Warner brake pads for installation, Flores had to grind the pads “heel to toe” by using a wheel in an eight-by-ten room, which created “a lot of dust.” 8 RR 31, 33. As Flores himself put it, “It was dusty, a lot of dust when you were grinding them. It was a lot of dust. You breathe all that dust.” 8 RR 34. The Borg-Warner disk brake pads that Flores used contained seven to twenty-eight percent asbestos by weight. 7 RR 22.
Flores presented expert testimony that brake mechanics are indeed at risk for the development of asbestos-related diseases as a result of their work with brake products that contain asbestos. Dr. Barry Castleman, a consultant with a Ph.D. in occupational and environmental health policy from Johns Hopkins University, wrote and published a book on the development of knowledge of the hazards of asbestos that contains a chapter on brake mechanics. 5 RR 112; 5 RR 123-26. Dr. Castleman explained that brake mechanics can be exposed to asbestos “by grinding of brake pads or brake shoes,” as well as by blowing out the accumulated dust in brake housing during a brake repair job. 5 RR 147. He noted that a study published in 1970 in the Annals of Occupational Hygiene reported that the asbestos released during brake servicing jobs approached “the allowable limits of the day,” 5 RR 148, and that by 1978, the Friction Materials Standards Institute – a trade group that included manufacturers of asbestos brake products – “published a brochure warning brake mechanics about the hazards of asbestos.” 5 RR 147-50. He also noted that “in 1986, the United States Environmental Protection Agency published a brochure about brake work and warned about the hazards to brake mechanics.” 5 RR 151.
Flores’ Asbestos-Related Disease
Dr. Dinah Bukowski, a board-certified pulmonary specialist, 7 RR 31, testified that Flores has asbestosis as indicated by his chest x-ray, pulmonary function tests, and occupational history. 7 RR 103. Dr. Bukowski added that “every exposure that a patient has to asbestos is important in causing disease.” 7 RR 76. Dr. Bukowski, of course, had not witnessed Flores’ exposure to asbestos and had no personal knowledge of the composition of Borg-Warner disk brake pads. But Dr. Bukowski noted that there is “literature that supports that brake dust has been shown to cause – to have asbestos fibers” and that “there is literature that brake dust can cause asbestosis.” 7 RR 203-04. Her testimony was corroborated by that of Dr. Castleman. 5 RR 147-51. Based on this evidence in the medical literature, Flores’ description of his work with Borg-Warner disk brake pads, and evidence that those brake pads contained seven to 28 percent asbestos by weight, Dr. Bukowski concluded that Flores’ work with Borg-Warner disk brake pads was a producing cause of his asbestosis. 7 RR 202-03. Flores testified that as a result of his asbestosis he is “short of breath,” meaning that he must “work more than what I should” to breathe. 8 RR 43. He is afraid that his breathing problems will get worse, 8 RR 44.
Borg-Warner was not a newcomer to the asbestos industry; it had been manufacturing asbestos-containing products since 1928. 7 RR 14-22. Flores’ expert witness, Dr. Castleman, testified that by 1935, over 125 articles had been published in medical and scientific journals about the dangerous effects of asbestos. 5 RR 134. By 1968, Dr. Castleman testified, it had been “definitely” established that asbestos exposure could cause asbestosis and other diseases. 5 RR 145. Yet despite a research budget of $10 million per year, Borg-Warner never conducted any specific research on whether its asbestos-containing brake products could injure auto workers. 7 RR 28-29. Borg-Warner did not place warnings on its asbestos-containing brake products until 1986 when it was required to do so by federal law. 7 RR 27.
SUMMARY OF ARGUMENT
Borg-Warner’s contention that the court of appeals “permitted the existence of asbestos in a product to stand as proxy for all the other required elements of a products-liability claim,” Pet. Br. Merits 6, is not only hyperbole, it is demonstrably false. In this case, unlike the parade of horribles described by Borg-Warner and the amici curiae, the plaintiff presented direct, specific, and undisputed evidence that he frequently inhaled dust emanating from the defendant’s product, which other evidence showed contained substantial amounts of asbestos. The only inference the jury was asked to make is the reasonable if not inescapable inference that the dust coming off these asbestos-containing products actually contained asbestos. Courts in Texas and elsewhere have expressly held that drawing such an inference in similar situations is reasonable, and no court anywhere has ever required a plaintiff to show that dust generated from an asbestos-containing product actually contains asbestos. To recognize such a requirement for the first time in this case would be darkly ironic, as Borg Warner – the party best situated to conduct tests on the products in question – never tested its brakes to determine whether they presented a hazard. The holding in this case does not conflict with the opinion of the Fourth Court of Appeals in In re R.O.C. Pretrial, 131 S.W.3d 129 (Tex. App.—San Antonio, no writ), because the evidence of exposure in this case is far more direct and substantial than that produced in R.O.C. Pretrial. Borg-Warner’s inaccurate assertion that the court of appeals allowed Flores to prevail without sufficient proof of causation does not warrant further scrutiny by this Court.
Borg-Warner’s complaint that the evidence is legally insufficient to sustain the modest punitive damages award returned by the jury should fail as well. A plaintiff may prove both the objective and subjective prongs of the “malice” requirement by circumstantial evidence, and in this case the circumstantial evidence was compelling. Flores presented undisputed expert testimony that the serious dangers of asbestos-containing products, including brakes, were reported long before Flores’ exposure to the products began. He also presented evidence that Borg-Warner spent some $10 million on research relating to its products. This evidence allowed the jury reasonably to conclude that Borg-Warner knew of the serious hazards posed by its products to workers and acted with “conscious indifference” to the safety of those workers by failing to warn them of the hazards. The reasoning and result of the court of appeals is unremarkable, and should not be disturbed by this Court.
The court of appeals did not review the legal sufficiency of the evidence to support the jury’s strict liability findings, having found sufficient evidence to uphold the negligence findings. Should it elect to do so, this Court will find ample evidence to sustain the jury’s finding that a marketing defect in Borg-Warner’s asbestos brake products was a producing cause of Flores’ injuries. The court of appeals properly refused to consider Borg-Warner’s complaint that the modest damage awards in this case are excessive, because Borg-Warner failed to provide the court with any citations of controlling authority on the standard of review and with any meaningful argument demonstrating why the evidence does not support the awards. Finally, the court of appeals properly determined that the admission of an excerpt of a book written by Flores’ expert was cumulative of other evidence and, at most, harmless error. The jury’s verdict is valid under Texas law and should be upheld in all respects.
Borg-Warner’s brief on the merits and the briefs by the corporate amici curiae attempt to create the impression that the Corpus Christi Court of Appeals wildly misapplied Texas law in affirming the jury verdict in this case. In actuality, the court correctly applied routine legal principles in affirming this modest award. It rejected Borg-Warner’s invitation to invent and apply new legal principles in response to the alleged “asbestos litigation crisis.” Review is not warranted.
The Court of Appeals Applied the Correct Legal Test In Finding That Plaintiff Presented Legally Sufficient Evidence Of Causation.
A.The Court of Appeals Did Not Apply a “Lesser Standard of Causation,” But Instead Applied the Traditional Texas Standard for Determining Cause-in-Fact.
Borg-Warner asserts that the Corpus Christi Court of Appeals applied a “lesser causation standard” (Pet. Br. Merits 13) in upholding the jury’s finding that Mr. Flores’ exposure to Borg-Warner brakes was a proximate cause of his asbestosis. Borg-Warner further argues that the Corpus Christi Court has exhibited a “troubling pattern of holding plaintiffs to a lesser causation standard when they claim to be injured by an asbestos-containing product.” Pet. Br. Merits 13, 15-16, citing North American Refractory Co. v. Easter, 988 S.W.2d 904, 909 (Tex. App.—Corpus Christi 1999, pet. denied) and Celotex Corp. v. Tate, 797 S.W.2d 197, 203-05 (Tex. App.—Corpus Christi 1990, writ dism’d by agr.). But Borg-Warner did not find these prior decisions “troubling” while before the court of appeals; rather, Borg-Warner relied on Easter and Tate in arguing that Mr. Flores had failed to prove causation because he produced no evidence that dust from Borg-Warner products actually contained asbestos. Br. of Appellant Borg-Warner 7; see also 153 S.W.3d at 214 (“we disagree that our prior precedent compels reversal of the judgment in the present case”). Borg-Warner’s concern about the state of the law of causation in asbestos cases in Corpus Christi appears minted solely for the purpose of persuading the Court to grant its petition.
In any event, Borg-Warner’s charge has offered no basis for its charge that the Corpus Christi Court of Appeals applied a “lesser causation standard” in this case and in prior cases involving asbestos-related injuries. Borg-Warner argues that in this case the court of appeals “continued a pattern of inferring that a company that supplies an asbestos-containing product has in fact caused asbestos-related disease.” Pet. Br. Merits 15. But the court of appeals has never said, or held, any such thing. On the contrary, the Corpus Christi Court of Appeals has repeatedly held plaintiffs in asbestos cases to the requirement that they “prove that the defendants supplied the product which caused the injury.” Tate, 797 S.W.2d at 203, citing Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989); see also Easter, 988 S.W.2d at 909; Flores, 153 S.W.3d at 213. This straightforward application of the law has been followed by Texas courts for years. See, e.g., Click v. Owens-Corning Fiberglas Corp., 899 S.W.2d 376, 377 (Tex. App.– Houston [14th Dist.] 1995, no writ).
In both Tate and Easter, the court found support for the jury’s finding of causation in specific evidence that the plaintiff was actually exposed to significant amounts of asbestos from the defendant’s products. In Tate, the plaintiff presented direct evidence that the decedent Tate worked with and was exposed to raw asbestos during his employment and expert testimony that this exposure caused his mesothelioma. 797 S.W.2d at 200, 203. The issue in dispute was whether the defendant Celotex (successor to Philip Carey) supplied some of the asbestos that contributed to the harm. The court found testimony from former employees that Philip Carey, Johns-Manville, and Union Carbide supplied raw asbestos to the plant during the time Tate worked there was “strong circumstantial evidence upon which the jury could properly rely to find that Tate was exposed to Philip Carey asbestos.” Id. at 205. In Easter, the defendant protested the jury’s finding of causation on the ground that the two decedents did not personally attest to exposure to any asbestos-containing product made by the defendant. 988 S.W.2d at 909. The court rejected the argument, describing “direct eyewitness testimony that both Moss and Easter worked in the presence of the asbestos-containing product or breathed dust from the product.” Id. at 910.
In this case, as in Tate and Easter, the court applied the traditional requirement that the plaintiff “prove that the defendant supplied the product that caused his or her injury,” and held that the plaintiff could do so by presenting “sufficient evidence that the defendant supplied any of the asbestos to which the plaintiff was exposed.” 153 S.W.3d at 213, quoting Easter, 988 S.W.2d at 909 (emphasis added). The court then detailed the plaintiff’s proof of exposure to Borg-Warner asbestos-containing brake pads, including direct and undisputed testimony that from 1972 through 1975 Mr. Flores ground brake pads made by Borg-Warner that contained between seven and twenty-eight percent asbestos by weight, and that the grinding process produced visible dust which Flores inhaled. 153 S.W.3d at 214. The court’s requirement that plaintiff show actual exposure to the defendant’s product – i.e., that the plaintiff inhaled dust emanating from defendant’s product – undermines the caricature of the court’s causation analysis that Borg-Warner offers in its brief.
Like Borg-Warner, the amici curiae isolate language in the court of appeals’ opinion to create the illusion that the court imposed liability on Borg-Warner simply for supplying an asbestos-containing product to the plaintiff’s jobsite. See Brief of Amicus Curiae Exxon Mobil Corporation (“EM Br.”) at 4 (“Asbestos plaintiffs should not be allowed to raise a fact issue on causation by reciting a boilerplate list of asbestos-containing products that were supposedly present at their work site”); Brief of Amici Curiae CenterPoint Energy, Inc. and Eastman Chemical Co. (“CP Br.”) at 6 (a plaintiff should not be able to meet his burden of proof “simply by producing evidence that respirable asbestos fibers were present, for example, somewhere on a multi-acre, multi-structure worksite … regardless of the plaintiff’s proximity to these fibers or the duration of his exposure”) Brief of Amici Curiae Owens-Illinois, Inc., et al. (“OI Br.”) at 8 (courts “are now equating exposure to a product – even for a moment – with legal causation”). They ask the court to adopt the “causation standard” applied by the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1162, 1162-64 (4th Cir. 1986). CP Br. 12 ; OI Br. 9-10.
Amici’s plea that this Court grant review in this case to announce a new causation standard for asbestos cases in Texas should be denied for two related reasons. First, the concerns about “lesser causation standards” applied in asbestos cases in Texas are not conceivably raised under the facts of this case. Flores did not merely prove exposure “for a moment” or rely on evidence that Borg-Warner products were delivered “somewhere to his multi-acre, multi-structure worksite.” Rather, he presented direct eyewitness testimony that he actually used, and breathed dust from, Borg-Warner asbestos-containing brake pads. The holding of the court of appeals that Flores carried his burden of proving causation under the traditional substantial factor standard is unassailable, and does not present an appropriate opportunity to consider a new standard – that plaintiff satisfied anyway – for asbestos cases in Texas.
Second, adoption of the Lohrmann “frequency, regularity, and proximity” language as a formal standard for proving causation in an asbestos case is unnecessary in Texas, which already requires that the defendant’s tortious conduct be a substantial factor in causing the plaintiff’s harm. The plaintiff in Lohrmann offered no direct evidence that he had contact with the asbestos-containing products of two of the three moving defendants and presented testimony that he might have been exposed to the third defendant’s products ten to fifteen times over a thirty-nine year career. 782 F.2d at 1162-64. The plaintiff asked the court to “adopt a rule that if the plaintiff can present any evidence that a company’s asbestos-containing product was at the work place while the plaintiff was at the work place, a jury question has been established as to whether that product contributed to the plaintiff’s disease.” Id. at 1162. The court rejected the request, finding it “contrary to the Maryland law of substantial causation.” Id. The court explained that to draw “a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” Id. at 1162-63. The court noted that “[i]n effect, this is a de minimis rule since a plaintiff must prove more than a casual or minimum contact with the product.” Id. at 1162.
Amici note that the Texas courts of appeals have uniformly declined to adopt the Lohrmann test, and speculate that this is because it has not been adopted by this Court. OI Br. 9. It is more likely, though, that the Texas courts have refused to adopt the Lohrmann language as a “standard” because it is an unnecessarily formalistic expression of concepts already applied in Texas – namely, the substantial factor test and the de minimis rule. See Click v. Owens-Corning Fiberglass Corp., 899 S.W.2d 376, 378 (Tex. App.—Houston [14th Dist.] 1995 no writ) (finding that plaintiffs’ circumstantial proof of exposure was “some evidence” that “appellees supplied the products that caused or contributed to George Click’s death”); Keene Corp. v. Rogers, 863 S.W.2d 168, 173 (Tex. App.—Texarkana 1993, writ stayed) (citing the rule that “a trial court should not submit unnecessary instructions, even if the instructions correctly state the law”).
In any event, it is simply beyond dispute that Flores presented “evidence of exposure to a specific [Borg-Warner] product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” The Court should not grant review simply to announce a different formulation of a legal standard that was correctly applied by the court of appeals in this case.
B.Plaintiff Presented Compelling Evidence That His Use of Borg-Warner Brakes Was a Substantial Contributing Factor in the Development of His Asbestosis.
The evidence that Borg-Warner asbestos brake pads contributed to cause Flores’ asbestosis is accurately summarized in the court of appeals’ opinion, 153 S.W.3d at 214. Flores himself testified that he worked with Borg-Warner disk brake pads for four years, from 1972 through 1975. 8 RR 29. He testified that he would do five to seven brake jobs a week using Borg-Warner brake pads, and that he would grind each brake pad to reduce the squeal in the brake. 8 RR 30. He testified that when he would grind a Borg-Warner disk brake pad, “It was dusty, a lot of dust when you were grinding them. It was a lot of dust. You breathe all that dust.” 8 RR 34. Borg-Warner’s answers to interrogatories confirmed that the brake pads used and ground by Flores contained from seven to twenty-eight percent asbestos by weight. 7 RR 22. An expert on the development of knowledge of the hazards of asbestos, Dr. Barry Castleman, testified that brake mechanics can be exposed to asbestos “by grinding of brake pads or brake shoes” and cited a study published in 1970 showed that levels of exposure to asbestos from brake servicing jobs “could be significant.” 5 RR 147-48. Plaintiff’s medical expert, Dr. Bukowski, testified specifically that Flores “has asbestosis as a result of his contact with brakes in his capacity as a brake mechanic, 7 RR 81, and noted that “each and every exposure [to asbestos] contributes to cause asbestosis.” 7 RR 75. Flores thus presented a compelling circumstantial case that his exposure to asbestos emanating from Borg-Warner brake pads was a substantial contributing factor in the development of his asbestosis.
Venturing outside the record of this case, Borg-Warner cites the letter ruling of the court presiding over the Texas asbestos multidistrict litigation proceeding as support for its contention that the record did not allow the jury to conclude that Borg-Warner products contributed to Flores’ asbestosis. Pet. Br. Merits 19-20, citing letter dated Jan. 20, 2004 [sic] in In re Asbestos Litig., Cause No. 2004-03964, 11th Dist. Court in Harris County, Texas, available at www.justex.net/civil/11/Orders. HTM/ Havner Ruling and at Tab D of the appendix to Borg-Warner’s brief. But the MDL court actually concluded that epidemiology alone cannot answer the question of causation in a case involving asbestos-containing friction products; rather, the court must determine the issue on “a case- by-case basis,” taking into account “the occupational history” of the plaintiff. Id. at 4. In this case, Flores presented evidence from which a reasonable expert could infer that Flores sustained repeated, significant exposure to asbestos dust emanating from Borg-Warner products. The conclusions of the expert and the jury that this exposure contributed to Flores’ asbestosis is reasonable and is not conclusively negated by any evidence that Borg-Warner presented at trial.
C.Texas Law Did Not Require Plaintiff To Test Borg Warner Brakes To Prove That They Actually Released Asbestos Fibers When Ground or Sanded.
By insisting that the record contains no “competent evidence” that Borg-Warner asbestos-containing disk brake products caused Flores’ injury, Pet. Br. Merits 16-20, Borg-Warner seems to be contending that Flores was required to produce expert testimony that Borg-Warner brake pads (as opposed to brake pads in general) emitted asbestos fibers. This certainly was the focus of Borg-Warner’s argument in the court of appeals. See Flores, 153 S.W.3d at 214 (“Borg-Warner maintains that the evidence is insufficient because the evidence does not prove that its brake pads actually produced ‘respirable asbestos fibers.’”). But when there is direct evidence that the plaintiff inhaled dust from a product that contained asbestos, courts in Texas and in other jurisdictions have invariably allowed the jury to draw the reasonable if not inescapable inference that the dust inhaled by the plaintiff contained asbestos. See Fibreboard Corp. v. Pool, 813 S.W.2d 658, 688 (Tex. App.—Texarkana 1991, writ denied), cert. denied, 508 U.S. 909 (1993) (“Strong testified that Garlock products had to be replaced and when being replaced were dusty. . . . Although there was no expert testimony concerning the contents of the dust, the jury could infer that the dust formed from a material containing asbestos would also contain asbestos.”); In re New York Asbestos Litig., 847 F. Supp. 1086, 1095 (S.D.N.Y. 1995) (evidence of “asbestos in the pipe and the presence of dust resulting from the handling of the pipe in Talbot’s presence” supported the jury’s inference “that the dust contained asbestos and that Talbot’s inhalation was the cause of his mesothelioma”); Rotondo v. Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (although “only air sampling would positively detect asbestos dust, a jury could properly infer that when covering containing asbestos is sawed and releases dust, that dust contains asbestos”).
Similarly, Borg-Warner argues that because Flores’ experts never themselves tested the emissions from Borg-Warner brake pads for the presence of asbestos fibers, they could “only infer” that Flores inhaled injurious quantities of asbestos fibers from Borg-Warner products. Pet. Br. Merits 18. Borg-Warner can cite no case from this or any other state for the counterintuitive proposition that an expert witness must have personal knowledge of the hazards of a product in order to express an opinion that the hazards, as proved by other evidence, caused an injury. If Borg-Warner’s view of the limits of expert testimony were correct, there would be no place for the hypothetical question of the expert. The propensity of Borg-Warner brake pads to release asbestos dust was proved by Flores’ testimony that use of the pads created dust, the answers to interrogatories confirming that the pads contained asbestos, and the testimony of Dr. Castleman that brake products typically released asbestos. Flores thus carried his initial burden, and allowing the jury to infer causation based on this evidence was in no way unfair to Borg-Warner. If Borg-Warner had evidence showing that its brake pads did not in fact release asbestos dust, it was certainly free to present it.
- This Case Does Not Conflict with In re ROC Pretrial, 131 S.W.3d 129 (Tex. App. – San Antonio 2004, no pet.).
Borg-Warner contends that the court of appeals’ decision is in “direct conflict” with the decision of the San Antonio Court of Appeals in In re ROC Pretrial, 131 S.W.3d 129 (Tex. App.—San Antonio 2004, no pet.) (Green, J.). But, contrary to Borg-Warner’s assertion, the evidence of exposure to asbestos in ROC Pretrial is entirely different than that presented in this case. In ROC Pretrial, plaintiffs attempted to prove injurious exposure to particular products by presenting general evidence that the working conditions were dusty and by providing a list of products to which the plaintiff “may have been exposed” based on “evidence that these products were being shipped to the jobsites for use during the applicable periods.” 131 S.W.3d at 137. The court contrasted this type of evidence with other proof in the case that the plaintiff “actually worked with or around specific products” in a manner “presumably producing the type of fibers that can cause asbestosis,” but noted that this proof related to manufacturers not involved in the appeal. Id. at 137 n.6. The court correctly noted that the plaintiffs relied on “circular” assumptions to prove their case: plaintiffs asked the court to infer exposure to defendants’ asbestos products based on the diagnosis of asbestosis, but the diagnosis itself was largely based on the assumption of adequate exposure. Id. at 137.
In contrast, in this case the proof of Flores’ exposure is in no way dependent on his proof that he has asbestosis. Flores presented his own eyewitness testimony that he actually worked with a Borg-Warner product on many occasions and that he inhaled dust from the product, and introduced undisputed proof that the product contained a substantial amount of asbestos. As the court of appeals expressly concluded, 153 S.W.3d at 215 & n.2, the result in this case is not inconsistent with that in R.O.C. Pretrial, and review to reconcile the two opinions is not necessary.
The Court Of Appeals Correctly Concluded That Legally Sufficient Evidence Supports The Jury’s Finding Of Malice.
Borg-Warner argues that in refusing to disturb the jury’s finding of malice, the court of appeals “improperly treated the existence of asbestos in a product as sufficient to support both parts of a malice finding.” Pet. Br. Merits 13. But a reading of the court’s opinion and a review of the record reveal that Borg-Warner’s characterization of the Court’s reasoning is unjustified. The court’s examination and affirmance of the malice finding fully comports with Texas law.
Borg-Warner correctly notes that to obtain the malice finding, Flores had to show by clear and convincing evidence that (1) viewed objectively from Borg-Warner’s standpoint, its conduct involved “an extreme degree of risk, considering the probability and magnitude of the potential harm to others,” and (2) Borg-Warner had “actual, subjective awareness of the risk involved,” but nevertheless proceeded with “conscious indifference to the rights, safety, or welfare of others.” Tex. Civ. Prac. & Rem. Code § 41.007 (Vernon Supp. 2003). Circumstantial evidence is sufficient to prove either element of malice as defined in the statute. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 22-23 (Tex. 1994).
As the court of appeals noted, Flores presented evidence that by the time he began his period of exposure to Borg-Warner asbestos-containing brake pads, “hundreds of articles were published on the hazards of asbestos” and that these articles “emphasized the extraordinary dangers faced by employees, including brake mechanics, who worked with asbestos materials.” Flores, 153 S.W.3d at 216. Further, Flores’ expert Castleman testified that “definitely by 1968” it was confirmed that asbestos exposure could cause asbestosis and other diseases. 5 RR 145. Borg-Warner argues that this evidence does not tend to show that it should have been aware of a high degree of risk from the use of its products because many of the reports of asbestos hazards involved other trades and only a few of the studies indicated that asbestos disease was occurring in brake workers. Borg Warner Pet. Br. Merits 23-24. But as one court famously observed, it is for the jury to determine “whether notice of asbestos in one setting should alert a manufacturer to a possible hazard in other settings. Asbestos dust is no respector of job classifications.” City of Greenville v. W.R. Grace & Co., 640 F. Supp. 559, 567 n.1 (D.S.C. 1986). Borg-Warner did not present any evidence of its own explaining why the many studies cited by Castleman would not alert a manufacturer that any product containing asbestos fibers posed an “extreme degree” of risk that “serious injury” would occur from the use of the products. The evidence, taken as a whole, satisfies the objective prong of the malice test.
Flores did not present direct evidence that Borg-Warner possessed “actual subjective knowledge of the risk involved,” but instead permissibly relied on circumstantial evidence to prove Borg-Warner’s awareness of the hazard. Ellender, 968 S.W.2d at 921. “A plaintiff may establish the defendant’s mental state by circumstantial evidence.” Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999). As described above, Flores presented evidence that so many articles had reported on the serious hazards posed to workers – including brake workers – by the use of asbestos-containing products that the risk of asbestosis was “established” in the medical literature by 1968. Flores also presented evidence that although Borg-Warner spent some $10 million per year on research, Borg-Warner did not research specifically “the health effects of asbestos.” 7 RR 28-29. From this evidence, a reasonable jury could certainly infer that a company the size of Borg-Warner subjectively knew of the hazards that its asbestos-containing brake pads could pose to workers. Flores also presented proof that Borg-Warner never tested its asbestos-containing brake pads to determine the potential health hazards involved in the use of such products, 7 RR 24-25, and did not place warning labels on its asbestos-containing products until 1986. 7 RR 27. Such evidence is legally sufficient under Moriel and Ellender to support the jury’s finding that Borg-Warner acted with “conscious indifference to the rights, safety, or welfare of others” in selling its products.
The Evidence Is Legally Sufficient To Support The Jury’s Strict Liability Findings.
As Borg-Warner notes, the court of appeals did not review the legal sufficiency of the evidence to support Flores’ strict liability claim because it found that the jury’s finding of negligence was valid and sufficient to support the judgment. Should this Court deem it necessary to address the strict liability findings, it will find that the evidence is ample to support the jury’s finding that Borg-Warner is liable for a marketing defect in its asbestos brake products that was a producing cause of Flores’ injuries.
At the outset, it must be noted that Borg-Warner has not challenged the jury’s finding that it was negligent in marketing its asbestos-containing products; it has only disputed the jury’s finding of proximate cause. See Pet. Br. Merits x (issues presented do not include a contention that the record does not support the jury’s conclusion that Borg-Warner did not act with ordinary care); Pet. Br. Merits 13-22 (argument only addresses causation component of the jury’s negligence finding). Flores predicated his negligence theory entirely on the proposition that Borg-Warner acted negligently in selling defective asbestos brake products. Because Borg-Warner did not challenge the “negligence” component of the jury’s negligence finding, it should not be permitted to contend that the record does not support the jury’s finding of a product defect. See Ford Motor Co. v. Miles, 141 S.W.3d 309 (Tex. App.—Dallas 2004, pet. denied) (jury’s finding of negligence and failure to find any product defect were fatally inconsistent); cf. Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 665 (Tex. 1999) (trial court did not err in refusing to submit separate but “functionally identical” theories of product liability).
In any event, the evidence supports the jury’s finding that Borg-Warner’s asbestos brake products were defective as marketed. Dr. Barry Castleman testified that he would consider unreasonably dangerous a brake pad containing seven to 28 percent asbestos “if it didn’t contain any warning labels.” 5 RR 152. The evidence is undisputed that Borg-Warner asbestos brake pads did not bear any warnings until 1986, when warnings were mandated by the federal government. 7 RR 27. This evidence entitled the jury to conclude that the Borg-Warner asbestos brake pads used by Flores were defective and unreasonably dangerous.
Borg-Warner also argues that the jury’s finding that the defect in its brake pads was a producing cause of Flores’ injuries must be set aside for the same reason that the jury’s proximate cause finding is not sustainable. Pet. Br. Merits 27. “Producing cause” is a less stringent test for determining causation than is “proximate cause,” because it does not require proof that the causal chain was foreseeable. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). Thus, Borg-Warner’s conduct in marketing asbestos brake pads could be a “producing cause” of Flores’ injury even if it was not a “proximate cause.”
For the reasons explained in Part I, the evidence allowed the jury to conclude that asbestos emitted from the use of Borg-Warner brake pads was a producing cause of Flores’ asbestosis. Flores used the products consistently over a four-year period, and described the significant dust levels to which he was exposed by grinding and installing the brakes. There is no reason for the Court to disregard the jury’s finding on this issue.
The Court of Appeals Acted Within Its Discretion in Ruling That Borg-Warner Waived Its Complaints That the Awards of Actual and Exemplary Damages Are Excessive.
Borg-Warner argues that the court of appeals improperly found that Borg-Warner had waived its challenge of the sufficiency of the evidence to support the awards of actual and exemplary damages by failing to comply with Texas Rule of Appellate Procedure 38.1(h). Pet. Br. Merits, pp. 28-32. An examination of Borg-Warner’s appellate brief, however, undermines this contention.
As the court of appeals noted, in its appellate brief (pertinent excerpts of which are attached in the appendix to this brief at Tab A) Borg-Warner cited no controlling authority providing the standard for reviewing a complaint that a damages award is excessive, but instead relied entirely on a twenty year-old federal case, Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985), whose observations are not binding on a Texas state court. Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993). Omission of the applicable standard of review cannot be excused as a mere “oversight” (Pet. Br. Merits 31); in a case in which a party seeks appellate reversal of a jury award as excessive, the standard of review is demanding and important. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (challenge to factual sufficiency of the evidence of damages will be sustained only if the court finds, after weighing all the evidence, that the evidence is too weak to support the finding or the finding is so contrary to the overwhelming weight of the evidence as to be manifestly unjust).
But Borg-Warner’s briefing derelictions went much further. It is technically true, as Borg-Warner points out, that its “argument” that the trial court should have set aside the damages awards as excessive spans four pages (albeit some partial pages) of its appellate brief. But its treatment of the issue is devoid of any meaningful content. Of the two and a half pages on compensatory damages, Borg-Warner spent half a page simply reciting the verdict and two pages recapping the medical evidence, much of which supports the jury’s award. Contrary to Borg-Warner’s statement in its brief in this Court (Pet. Br. Merits 29), Borg-Warner provided virtually no “analysis” of why the jury’s award was excessive beyond a conclusory assertion that the medical testimony given by Flores’ medical expert was “incredibly speculative.” Brief of Appellant at 28. Its explanation of why the punitive damages award should be set aside as excessive was (if this is possible) even less informative; it merely set forth the jury’s verdict and asserted, without explanation, that the award was “not supported by factually sufficient evidence or was against the great weight and preponderance of the evidence” and was “so excessive as to show passion and prejudice.” Id. at 29.
This Court has established that an appellate court has discretion to deem a point of error waived due to inadequate briefing. Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 284-285 (Tex. 1994). Rule 38 of the Texas Rules of Appellate Procedure specifically obligates an appellant to provide “clear and concise argument for the contentions made, with appropriate citations to the record.” Tex. R. App. P. 38.1(h). This Rule “not only requires an appellant to cite to pertinent legal authority and the record, [it also requires] the appellant to provide “the reviewing court with substantive analysis of his argument.” In re CDK, 64 S.W.3d 679, 681-82 (Tex. App.—Amarillo 2002, no pet.). The obligation is not satisfied “by merely uttering brief conclusory statements, unsupported by legal citations.” Santillan v. National Union Fire Ins. Co., 166 S.W.3d 823, 824 (Tex. App.—El Paso 2005, no pet.). At least two appellate courts in Texas have found that the appellant waived a complaint by failing adequately to brief the standard of review. Santillan, 166 S.W.3d at 824 (finding waiver because, among other reasons, “[a]ppellant cites no cases and presents no argument regarding the appropriate standard of review applicable to this case”); Couch v. Simmons, 108 S.W.3d 338 (Tex. App.—Amarillo 2003) (per Johnson, J.) (“We consider citation to a single case for the standard of review to be insufficient citation of authority to comply with the mandate of Tex. R. App. P. 38(h) and the authorities cited above.”).
Without acknowledging this authority for the court of appeals’ ruling, Borg-Warner offers two cases, In re Estate of Trawick, 170 S.W.3d 871, 876 (Tex.App.–Texarkana 2005, no pet.) and Manon v. Solis, 142 S.W.3d 380, 390-391 (Tex.App.–Houston [14th Dist.] 2004, pet. denied), for the proposition that a court of appeals may, in its discretion, address an issue though improperly briefed. These cases merely point out the discretion an appellate court has in such circumstances; they do not provide a legal basis for remanding appellant’s evidentiary challenge to the court of appeals.
It cannot colorably be contended that, in ruling that Borg-Warner waived its complaint concerning the excessiveness of the damage awards, the court of appeals acted arbitrarily and unreasonably or “without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Therefore, this Court should find that the appellate court acted within its discretion in finding that Borg-Warner waived review of factual sufficiency of evidence and excessiveness of damages points of error.
The Admission into Evidence of a Chapter of Dr. Castleman’s Book Was Not Harmful Error Requiring Reversal.
Borg Warner complains that the admission of a chapter of Dr. Castleman’s book on the development of knowledge of the hazards of asbestos was reversible error. The court of appeals observed that the admission of the chapter into evidence as a tangible exhibit may have violated Rule 802(16) of the Texas Rules of Evidence, but further found that any error was harmless because the contents of the exhibit were cumulative of Dr. Castleman’s oral testimony. 153 S.W.3d at 219. Borg-Warner takes issue with this conclusion, noting that the chapter contains brief summaries of “numerous other materials” that were not mentioned by Dr. Castleman in his testimony, and speculating that the jury “could have misinterpreted these brief summaries.” Pet. Br. Merits 34. Borg-Warner adds that it did not have an adequate opportunity to cross-examine Dr. Castleman because it was not given “fair notice” of a change in the date of the deposition, and complains that the admission of the chapter was particularly harmful because it was not permitted to introduce an article that its own expert cited as support for her opinion. Pet. Br. Merits 34-35.
In Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131 (Tex. 2004), this Court noted that whether the erroneous admission of evidence was harmful or instead requires reversal “is more a matter of judgment than precise measurement.” 145 S.W.3d at 144. The Court noted that in making that judgment the Court may consider “the efforts made by counsel to emphasize the erroneous evidence” and “whether there was contrary evidence that the improperly admitted evidence was calculated to overcome.” Id. In Nissan Motor Co., the Court found that the plaintiff’s trial attorneys “clearly believed that her cased turned on” the improperly admitted evidence, quoting passages of the trial transcript at length. Id. at 144-46. The Court added that as used by the plaintiff, the improperly admitted evidence “was far more than cumulative: it was emphasized at every opportunity; it was used to prove a defect when the actual evidence had been destroyed; and it was calculated to show Nissan was malicious rather than mistaken in suggesting that the accident was Armstrong’s fault.” Id. at 148.
Borg-Warner does not, and cannot, make a similar showing here. Its brief does not cite any instance in which the exhibit is emphasized, and the record contains only a handful of references to the exhibit. In closing arguments, Borg-Warner’s counsel actually made greater use of the disputed exhibit than did Flores’ counsel. Compare 9 RR 56, 59 (closing argument of Borg-Warner) with 9 RR 82, 10 RR 19 (rebuttal arguments of Flores). Under the analysis used by the Court in Nissan Motor Co., Borg-Warner has failed to show that the admission of the Castleman book chapter was harmful error warranting reversal.
Borg-Warner suggests that its opportunity to cross-examine Dr. Castleman did not mitigate the “harm” of admitting the exhibit because Borg-Warner did not receive fair notice of Dr. Castleman’s deposition. But the trial court rejected Borg-Warner’s contention that it did not receive proper notice and overruled an objection to use of the deposition, 5 RR 98-102, and Borg-Warner did not appeal this ruling. Borg-Warner cannot now legitimately complain that its failure to conduct an adequate cross-examination of Dr. Castleman lends support to its argument that the admission of the book chapter was reversible error. Nor does the trial court’s entirely proper refusal to admit an article cited by Borg-Warner’s expert undercut the court of appeals’ finding that the admission of the book chapter was harmless. The trial court declined to admit the article because, unlike the book chapter, it was not actually written by the witness. 9 RR 10-13. Although this distinction may not have legal significance, it dispels Borg-Warner’s veiled suggestion that the trial court’s evidentiary rulings were vexatious or inexplicably one-sided. More important, at least one court has explicitly rejected the argument that a trial court must cure the erroneous admission of hearsay evidence by admitting similar hearsay by the opponent. In Keene Corp. v. Rogers, 863 S.W.2d 168 (Tex. App.—Texarkana 1990, writ stayed), the plaintiff argued that the erroneous admission of former testimony of an available witness should be forgiven because the defendant offered similar former testimony, citing authority for the proposition that “what’s sauce for the goose is sauce for the gander.” 863 S.W.2d at 178. The court “decline[d] to follow the goose law” cited by the plaintiff because a trial court “cannot cure the admission of hearsay by one party by admitting more hearsay by the opposing party.” Id. Borg-Warner has made no showing that it suffered any cognizable disadvantage by the admission of the Castleman book chapter.
Given the record in this case, the implication that the admission of the exhibit detrimentally affected Borg-Warner’s defense is not even remotely plausible. The court of appeals did not err in concluding that the admission of the book chapter was not harmful error.
For the foregoing reasons, Respondent Arturo Flores respectfully urges the Court to deny the petition for review. In the alternative, the judgment of the court of appeals should be affirmed in its entirety.