Plaintiff Juan Gonzalez submits this opposition to Celanese Ltd. (“Defendant”)’s Motion in Limine Seeking to Exclude Testimony, Argument and Evidence Relating to Future Risk of Cancer, and would respectfully show the Court as follows:

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Evidence about the well-established relationship between asbestos and cancer is relevant to a number of issues in this case, including Mr. Gonzalez’s mental anguish, the adequacy of Defendant’s warnings, the magnitude of the potential harm, and the Defendant’s liability for punitive damages. Texas law has long recognized that a plaintiff with a physical injury may recover mental anguish damages caused by the reasonable fear of more serious injuries, including asbestos-related cancer. Virtually every court that has addressed the issue, including most recently the United States Supreme Court, has concluded that plaintiffs with asbestosis may introduce evidence about their reasonable fear of developing asbestos-related cancer and their resulting mental anguish. Such evidence is admissible in this case, the extent of Mr. Gonzalez’s mental anguish is an issue for the jury, and Defendant’s motion should be denied.


Under Common Law, Physically Injured Plaintiffs May Recover Damages for Mental Anguish Caused by their Fear of Developing Cancer and Other Injuries.

In its landmark decision in Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210 (2003), the United States Supreme Court conducted an extensive review of the common law and observed that “[u]nlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with . . . a physical injury are traditionally compensable.” Id. at 1219 (citing Restatement (Second) of Torts § 456). The Court noted that for nearly a century the common law had recognized “apprehension of future harm as a component of pain and suffering.” Id. If the fear is genuine and reasonable, the future harm itself “need not be more likely than not to materialize. Physically injured plaintiffs, it is now recognized, may recover for ‘reasonable fears’ of a future disease.” Id. (citations omitted).

The Court noted that numerous courts, including Texas courts, had upheld mental anguish damages caused by fear of future injuries. See id. (citing, inter alia, Gamer v. Winchester, 110 S.W.2d 1190, 1193 (Tex. Civ. App. 1937, writ dism’d); S. Kan. R. Co. of Tex. v. McSwain, 118 S.W. 874, 875 (Tex. Civ. App. 1909, no writ)). Claims for fear of cancer have been recognized at common law since the early part of the last century. See, e.g., Alley v. Charlotte Pipe & Foundry Co., 74 S.E. 885, 886 (N.C. 1912) (holding that burn victim’s increased vulnerability to cancer supported damages for mental suffering and explaining that “[t]he liability to cancer must necessarily have a most depressing effect upon the injured person. Like the sword of Damocles, he knows not when it will fall.”); Coover v. Painless Parker, Dentist, 286 P. 1048, 1050 (Cal. App. 1930) (holding that plaintiff who received x-ray burns was entitled to compensation for fear of cancer, and concluding that “[t]he necessity of constantly watching and guarding against cancer, as testified to by the physician, is an obligation and a burden that the defendant had no right to inflict upon the plaintiff.”); Ferrara v. Galluchio, 152 N.E.2d 249, 253 (N.Y. 1958) (upholding fear of cancer damages for plaintiff burned by x-ray and observing that “[i]t is entirely plausible, under such circumstances, that plaintiff would undergo exceptional mental suffering over the possibility of developing cancer”).

Turning specifically to asbestosis cases, the Supreme Court observed that “[m]any courts in recent years have considered the question presented here – whether an asbestosis claimant may be compensated for fear of cancer. Of decisions that address the issue, a clear majority sustain recovery.” Id. at 1220 (citing, inter alia, Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex. App. – Texarkana 1991, writ denied), cert. denied, 509 U.S. 923, 113 S.Ct. 3037 (1993)). The Court noted that “[c]ontrary precedent is slim in comparison to the heavy weight of authority.” Id. at 1220 n.11. The Court agreed with the “clear majority” in holding that a plaintiff with asbestosis may seek damages for mental anguish caused by the fear of cancer:

There is an undisputed relationship between exposure to asbestos sufficient to cause asbestosis, and asbestos-related cancer. . . . In light of this evidence, an asbestosis sufferer would have good cause for increased apprehension about his vulnerability to another illness from his exposure, a disease that inflicts “agonizing, unremitting pain,” relieved only by death. Asbestosis is “a chronic, painful and concrete reminder that [a plaintiff] has been injuriously exposed to a substantial amount of asbestos, a reminder which may both qualitatively and quantitatively intensify his fear.”

Ayers, 123 S.Ct. at 1222 (citations omitted).

Moreover, the Court rejected the very argument made by Defendant herein. In Ayers, as here, the defendants argued that “[b]ecause the asbestosis claimants may bring a second action if cancer develops, . . . cancer-related damages are unwarranted in their asbestosis suit.” Id. at 1221. Rejecting this argument, the Court explained that “[t]here is no inevitable conflict between the ‘separate disease rule’ and recovery of cancer fear damages by asbestosis claimants.” Id. at 1221 n.12. Like Mr. Gonzalez in this case, “the asbestosis claimants did not seek, and the trial court did not allow, discrete damages for their increased risk of future cancer. . . . Instead, the claimants sought damages for their current injury, which, they allege, encompasses a present fear that the toxic exposure causative of asbestosis may later result in cancer.” Id. at 1221. It is this present fear, the Supreme Court explained, that is fully compensable now. Based on its title, Defendant’s motion purports to seek the exclusion of evidence related to “future risks of cancer.” But Defendant’s brief makes clear that Defendant in fact seeks to preclude all evidence related to Mr. Gonzalez’s presentfear of developing cancer.” Thus, Defendant attempts to blur the distinction between Mr. Gonzalez’s fear of developing cancer, which is presently compensable, and his increased risk of future cancer, for which Mr. Gonzalez has not even sought damages. As the United States Supreme Court recognized, Texas, like most jurisdictions, permits a plaintiff with asbestosis to seek damages for his reasonable fear of developing cancer. Ayers, 123 S.Ct. at 1221-22.

Texas Courts Have Consistently Followed the Common-Law Rule Allowing Damages for Fear of Cancer and Other Injuries.

In Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex. App. – Texarkana 1991, writ denied), cert. denied, 509 U.S. 923, 113 S.Ct. 3037 (1993), the court held that it was proper to instruct the jury to “compensate the plaintiff for any mental anguish he has suffered or will suffer in the future from his reasonable fear, if any, of cancer and mesothelioma he might suffer from his asbestos exposure, distinct from any fear of cancer which all persons might have.” Id. at 675 n.2. As discussed above, the United States Supreme Court cited Pool as one of the “clear majority” of cases upholding fear of cancer damages in asbestosis cases. See Ayers, 123 S.Ct. at 1220.

In Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999), the Texas Supreme Court drew a clear line between plaintiffs who have merely been exposed to asbestos and those plaintiffs who, like Mr. Gonzalez, suffer from asbestosis. The court held that plaintiffs with no physical injury at all could not recover damages for fear of cancer but specifically distinguished such cases from those in which plaintiffs “suffered present and manifest physical injuries as well as a fear of future complications as a result.” Id. at 94. While declining to decide the issue, the court acknowledged that Pool “supports the proposition that a plaintiff who has developed an asbestos-related disease may recover mental anguish damages for a reasonable fear of developing other asbestos-related diseases.” Id. As the court recognized in Temple-Inland, the longstanding rule in Texas is that “[i]n almost all instances involving personal injury, the law allows for the recovery of accompanying mental anguish damages.” Id. at 93.[1]

In an effort to persuade Texas courts to reject the overwhelming weight of authority, asbestos defendants, like Celanese here, frequently cite dicta from Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000), even though the court expressly declined to address the question of whether “a plaintiff who has developed an asbestos-related disease may recover mental anguish damages for a reasonable fear of developing other asbestos-related diseases.” Id. at 650. In Pustejovsky, the court adopted the “separate disease” rule, meaning that the statute of limitations for asbestos-related cancer does not begin to run until the plaintiff actually develops cancer. The court did not address the longstanding precedent regarding fear of cancer and expressly declined to preclude such damages in asbestosis cases. Thus, although Defendant cites Pustejovsky as precedent for its argument to exclude Mr. Gonzalez’s fear of cancer, see Defendant’s Brief at 2 (“Exclusion of Testimony under Pustejovsky”), that case explicitly declined to establish any such precedent.

In Ayers, the defendant argued that the separate disease rule adopted in Pustejovsky and other cases precluded damages for fear of cancer. Justice Ginsburg – who first articulated the separate disease rule in Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982) – explained that “[t]here is no inevitable conflict between the ‘separate disease rule’ and recovery of cancer fear damages by asbestosis claimants. The rule simply allows recovery for successive diseases and would necessarily exclude only double recovery for the same element of damages.” Ayers, 123 S.Ct. at 1221 n.12. A plaintiff with asbestosis has “a present fear that the toxic exposure causative of asbestosis may later result in cancer,” and the resulting mental anguish exists even if the plaintiff “never gets cancer.” Id., 123 S.Ct at 1221; see also Smith v. A.C. & S., Inc., 843 F.2d 854, 858 (5th Cir. 1988) (“[T]he compensable injury is not the feared condition; instead, the compensable injury is the mental anxiety resulting from fear of developing that condition which the plaintiff endures on a daily basis.”); Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 252 (Iowa 1993) (asbestotic plaintiff’s mental anguish damages were “for the present fear of cancer, not for a future loss resulting from cancer. . . . [Plaintiff]’s fear is happening now; it is not contingent upon developing cancer. Whether [Plaintiff] will probably develop cancer is thus irrelevant to proving his present, concrete fear of developing cancer.”).

The Austin Court of Appeals has also recognized that the Pustejovsky decision does not preclude fear of cancer damages. In Norfolk Southern Railway Co. v. Bailey, 92 S.W.3d 577 (Tex. App. – Austin 2002, no pet.), the court noted that other courts had “determined that a person who already manifests symptoms of an asbestos-related disease may recover for fear of contracting another asbestos-related disease” and that the Texas Supreme Court had declined to address the issue in Pustejovsky. Id. at 582. The court concluded that “[u]nder the current state of the law, . . . because Bailey already manifests symptoms of an asbestos-related disease, the district court did not act outside of the bounds of its discretion in admitting the fear-of-cancer evidence.” Id.

Expert Testimony is Reliable and Admissible in Assessing the Reasonableness of Plaintiff’s Fear of Developing Cancer.

In Ayers, the trial court denied the defendants’ motion to exclude all evidence referring to cancer. Ayers, 123 S.Ct. at 1215. Thus, the jury heard expert evidence concerning asbestosis sufferers’ increased risk of developing cancer. Id. Mr. Gonzalez will seek to present similar evidence. See, e.g., Deposition of Dr. Thomas Jay Segarra, at 161, attached as Ex. 3 to Defendant’s Brief (“Mr. Gonzalez by virtue of having asbestosis is at an increased risk of developing lung cancer.”); Deposition of Dr. Richard A. Lemen, at 76, attached as Exhibit 2 to Defendant’s Brief (“asbsetosis clearly puts someone at a higher risk of developing lung cancer”). Perhaps recognizing that this Court, like the Supreme Court in Ayers, should decline to strike such testimony on relevancy grounds, Defendant attempts to couch its objection to this evidence on reliability grounds. See Defendant’s Brief at 3-4. Contrary to Defendant’s suggestion, Mr. Gonzalez does not offer such evidence to establish that his risk of developing cancer is greater than a certain percentage. Rather, this evidence establishes that Mr. Gonzalez’s fear of cancer is reasonable, and it is important that Mr. Gonzalez be able to offer this evidence for this purpose. See Ayers, 123 S.Ct. at 1219 (“Physically injured plaintiffs . . . may recover for ‘reasonable fears’ of a future disease.”).

As the Supreme Court explained, “[t]he future harm, genuinely feared, need not be more likely than not to materialize.” Ayers, 123 S.Ct. at 1219. Thus, Defendant’s suggestion that Dr. Segarra’s testimony is unreliable because it does not establish that “it is more probable than not that Plaintiff Gonzalez will develop cancer,” is unfounded. Mr. Gonzalez is not trying to show that he will more probably than not develop cancer. Rather, Mr. Gonzalez need only establish that his apprehension is reasonable, and expert evidence that he is at an increased risk of developing cancer is certainly admissible on that issue.

Moreover, this expert testimony is not speculative. Mr. Gonzalez fears developing cancer because he has developed another painful illness, asbestosis, and “[t]here is an undisputed relationship between exposure to asbestos sufficient to cause asbestosis, and asbestos-related cancer.” Ayers, 123 S.Ct. at 1222.

Evidence Relating to Cancer Is Admissible in Assessing Whether Punitive Damages Are Appropriate.

In order to recover punitive damages, Plaintiffs must show that the Defendant’s acts or omissions, when viewed objectively, involved “an extreme degree of risk, considering the probability and magnitude of the potential harm to others.” Tex. Civ. Prac. & Rem. Code § 41.001(7)(B). Because the degree of risk is assessed objectively, it is not limited to the harm that has actually occurred as of the time of trial. Rather, the jury must consider the full extent of the potential harm that was posed by the Defendant’s conduct. As the Texas Supreme Court explained, “an act or omission that creates a great peril but results in only a minor injury may be grossly negligent. If, for example, a person fires a gun randomly into a crowd of schoolchildren, but the shooting only results in the destruction of a pair of sunglasses, the defendant would still be grossly negligent.” Trans. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 n.15 (Tex. 1994). The jury must be informed of the full magnitude of the potential harm created by the Defendant’s conduct in order to make an appropriate determination as to punitive damages.


Under Texas law, Mr. Gonzalez is entitled to present evidence related to his fear of cancer to demonstrate the extent and reasonableness of mental anguish damages and the full magnitude of the risk posed by the Defendant’s conduct. Defendant’s motion to exclude such evidence should be denied.

  1. Earlier this year, another court applying Texas law recognized that “Texas limits recovery for fear of future injury to cases where plaintiffs have suffered a manifest physical injury.” In re Rezulin Prods. Lia. Litig., 361 F. Supp.2d 268, 276 (S.D.N.Y. 2005) (citing Temple-Inland, 993 S.W.2d at 92-93).