Case No. 13-97-00753-CV



CECILE J. WALTERS, Individually and as
Personal Representative of the Heirs and

Estate of DOUGLAS F. WALTERS, Deceased,

On Appeal from the 28th Judicial District Court
of Nueces County, Texas; Cause No. 96-1374-A

November 20, 1998


Appellee Cecile J. Walters, Plaintiff below, respectfully requests that the judgment of the trial court be upheld in all respects. There was no error by the trial court, much less error that requires reversal of this judgment.

Table Of Contents


This is an appeal of the judgment on behalf of a former navyman who died as a result of exposure to Appellant, Pittsburgh Corning Corporation’s,[1] asbestos-containing insulation product — Unibestos. On August 5, 1994, Douglas F. Walters and his wife, Cecile J. Walters, filed a personal injury suit against Pittsburgh Corning seeking damages arising out of that exposure. 1 CR 3-23. After Mr. Walters’ death from mesothelioma, Mrs. Walters requested the suit continue in her name as the representative of Mr. Walters’ estate. 1 CR 66. In May 1997, Mrs. Walters proceeded to trial against Pittsburgh Corning. Mrs. Walters offered the testimony of a navy co-worker that Mr. Walters was exposed to Defendant’s asbestos-containing Unibestos. The expert testimony — which Defendant did not dispute — demonstrated that Mr. Walters died as a result of mesothelioma, caused by his asbestos exposure. At the conclusion of the evidence, the jury returned a verdict in favor of Plaintiff and against Defendant. 9 CR 2000-10. The trial court entered judgment in favor of Plaintiff, 9 CR 2036-39, and Defendant appealed to this Court.


ISSUE ONE: Did the trial court properly apply Texas substantive law after Pittsburgh Corning failed to make a sufficient and timely motion for the application of California or Virginia law?

ISSUE TWO: Did Mrs. Walters have standing to bring her claims under the Texas Wrongful Death Act and the Texas Survival Act?

ISSUE THREE: Were the trial court’s evidentiary rulings regarding videotaped evidence, expert testimony, and documentary evidence proper and within the court’s discretion?

ISSUE FOUR: Was Plaintiff’s evidence of Pittsburgh Corning’s liability factually and legally sufficient?

ISSUE FIVE: Was the evidence supporting the award of actual damages factually and legally sufficient?


Based on evidence thoroughly described and cited in the Argument section of this Brief, Appellee disputes many “factual” representations in Appellant’s Statement of Facts, to the extent that those representations are actually contentious and incomplete descriptions of the evidence presented at trial. Pursuant to Tex. R. App. P. 38.2(a)(1)(B), Appellee contests the following controversial “facts” in particular:

●Appellant suggests that there was no reliable scientific evidence that Pittsburgh Corning knew or should have known between 1962 and 1966 that its product posed serious health risks. Appellant’s Br. at 2-3. In fact, Plaintiff offered numerous documents that demonstrated what Pittsburgh Corning actually knew and what it should have known. 11 RR U-6, U-49, U-192, D-785, PC-6, PC-7, PC-14, PC-15, PC-20, PC-28, PC-29, PC-40. Plaintiffs also produced documents showing that Pittsburgh Corning affirmatively misled its customers about the risks of asbestos. 11 RR U-186, D-776; see also 11 RR PC-28. In addition, Dr. Egilman testified extensively about the information Pittsburgh Corning actually possessed and the information it should have known between 1962 and 1966 about the risks of asbestos exposure. See 5 RR 123-81.

●Appellant suggests that the trial court reviewed and denied a comprehensive motion requesting the application of another state’s law. Appellant’s Br. at 3. Instead, the Court applied Texas law after determining that no sufficient and timely request had been made for the application of another state’s law. See 2 RR 21-22.


There was no error at the trial of this case that requires or justifies reversal or modification of the judgment. First, the trial court properly applied Texas law after Defendant failed to make a proper and timely motion for the application of another state’s law.

Second, Plaintiff had standing under the Texas Wrongful Death Act and the Texas Survival Act to bring these claims.

Third, the trial court’s evidentiary decisions regarding the admission of demonstrative evidence and expert testimony were proper and within the court’s discretion. Moreover, Pittsburgh Corning has failed to demonstrate that any of these decisions constituted harmful error.

Fourth, the evidence at trial was more than sufficient to establish that Pittsburgh Corning knew or should have known by the early 1960s that its product Unibestos posed a grave health risk to people like Mr. Walters. Pittsburgh Corning failed in its duty to warn of this danger.

Finally, the jury’s awards of actual and exemplary damages, which are accorded great respect under Texas law, are not “excessive.” Pittsburgh Corning’s selective presentation of evidence is misleading. The record, examined in full, reveals more than sufficient evidence to support the jury’s awards. Appellant has demonstrated no error by the trial court that justifies reversal or modification of the judgment against it.



Pittsburgh Corning suggests that the trial court erred by not applying California law. However, analysis of the Texas rules regarding choice of law demonstrates that the trial court made an entirely proper choice in applying Texas law. Contrary to Pittsburgh Corning’s present suggestion, this was not a case where the court reviewed and denied a comprehensive motion requesting the application of another state’s law. Instead, the Court applied Texas law after determining that no sufficient and timely request had been made for the application of another state’s law.

Indeed, a review of the many and varied filings by Defendant on this question reveals that Pittsburgh Corning itself could not decide which state’s law would best suit Defendant’s purposes. On the eve of trial, the court was inundated with a flood of contradictory motions:

May 8, 1997: Defendant Pittsburgh Corning filed a motion to apply admiralty law, 4 CR 798-806, and a brief outlining Texas law on gross negligence and punitive damages. 4 CR 807-11.

May 12, 1997: Pittsburgh Corning opposed Plaintiffs’ motion, filed over a year earlier in March 1996, for the application of Virginia law, claiming that maritime or California law should apply. 4 CR 813-14. Yet this filing contained absolutely no information about maritime law or the substantive law of Virginia or California. Id.

May 16, 1997: The trial court conducted a pre-trial hearing, at which Pittsburgh Corning discussed somewhat extensively juror questionnaires and timing of trial, but failed to mention any conflict or concern about the substantive law that would be applied to this case. 1 RR 1-9. On the contrary, Pittsburgh Corning’s attorney represented to the trial court that, on the day of trial, there would be a few motions in limine and “maybe one or two other brief matters” to be decided. 1 RR 6. Indeed, counsel had agreed before the May 16th hearing that the only matters to be taken up before trial were Pittsburgh Corning’s “motion to apply maritime law, the jury questionnaire, the trial exhibits, and the motions in limine.” 2 RR 6; see also 2 RR 16.

May 19, 1997: Pittsburgh Corning served four documents addressing various aspects of California law; 4 CR 823-30, 841-66; and another document concerning particularities of maritime law, 4 CR 867-71. And again, although these documents apparently were prepared on May 15, 1997, Defendant did not raise any of the issues presented in these pleadings at the May 16 pre-trial hearing described above. See 1 RR 1-9.

May 23, 1997: The last business day before the trial began, Pittsburgh Corning filed thirteen additional documents, 2 RR 6, most involving various aspects of, this time, Virginia law, 4 CR 903-916, 927-42, although Defendant had filed its opposition to the application of Virginia law only 11 days earlier. 4 CR 813-14.

Tex. R. Evid. 202 (at the time of trial, Tex. R. Civ. Evid. 202) requires that “[a] party requesting judicial notice be taken of [another state’s law] shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to meet the request.” Pittsburgh Corning simply and utterly failed to meet the requirements of Rule 202.

On May 27, 1997, the morning of trial, Plaintiff moved to strike the documents filed by Pittsburgh Corning on May 19 and May 23, 1997, as untimely. 2 RR 6-7, 41-42. Pittsburgh Corning’s filings failed to give adequate notice to Plaintiff to enable her to meet Pittsburgh Corning’s request. 2 RR 42. See Gard v. Gard, 244 S.W.2d 884, 887 (Tex. Civ. App. — El Paso 1951, no writ) (“Ordinarily it is thought the court should require reasonable notice to be given of the request to take judicial notice under the Rule.”).

In response, Defendant attempted to adopt Plaintiff’s 1996 motion for application of Virginia law. Plaintiff had abandoned this motion by not raising it for consideration at the pre-trial hearing on May 16, 1997.[2] Defendant had filed its opposition to this motion on May 12, 1997 — only four days before the pre-trial hearing. “The purpose of a pre-trial hearing is to aid the trial court in narrowing the issues and in disposing of other matters which may aid in the final disposition of the action.” Griffin v. Wolfe, 626 S.W.2d 895, 897 (Tex. App. — Fort Worth 1981, no writ). Neither party presented the issue of Virginia law at the pre-trial conference, and Defendant’s attempt to raise it on the morning of trial was simply too late. Because there was no active motion for the application of Virginia law before the Court, Defendant’s attempt to adopt Plaintiff’s abandoned motion was ineffectual.[3] Accordingly, the trial court ruled that “all those motions that were untimely filed are denied” and proceeded to address those motions that had been raised at the May 16, 1997 pretrial hearing and scheduled for hearing before trial. 2 RR 21-22.

It is within the trial court’s discretion to determine whether the party requesting judicial notice of another state’s laws has met the requirements of Rule 202. Daugherty v. Southern Pacific Transp., 772 S.W.2d 81, 83 (Tex. 1989). A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Certainly, in this case, the trial court was more than justified in finding that the voluminous documents filed by Pittsburgh Corning on the eve of trial requesting judicial notice of California or Virginia law were untimely and, thus, did not meet the requirements of Rule 202. See Clayton v. Newton, 524 S.W.2d 368, 371 (Tex. Civ. App. — Fort Worth 1975, no writ) (“The trial court’s determination to apply Texas law instead of Oklahoma law was proper in this case because of a lack of a preliminary motion requesting judicial notice of Oklahoma law and notice reference thereto.”)[4]

In addition, Pittsburgh Corning did not assist the court in properly considering its request, as it was required to do under Rule 202. The Texas Supreme Court has plainly held that the trial court is not required to take judicial notice of another forum’s laws when the requesting party has not “provided sufficient information to the trial court for it to determine the foreign law’s applicability to the case and to furnish all parties any notice that the court finds necessary.” Daughtery, 772 S.W.2d at 83. See also Holden v. Capri Lighting, Inc., 960 S.W.2d 831, 833 (Tex. App. — Amarillo 1997, no writ).

Pittsburgh Corning, in addition to filing its motions too late, also failed to provide the court with sufficient information regarding the applicability of Virginia or California law to enable it to consider Defendant’s request. On the morning of trial, Pittsburgh Corning’s counsel acknowledged that application of admiralty law was probably not proper under the facts of the case. 2 RR 14. The Court heard argument on this motion and properly decided that application of admiralty law was not appropriate. 2 RR 39. And, while Pittsburgh Corning now represents to the Court that California’s law was clearly the right choice, on the morning of trial, California law was Pittsburgh Corning’s third choice. 2 RR 14, 20. Indeed, Pittsburgh Corning never presented any form of analysis of Mr. Walters’ contacts to California until its Motion for New Trial. 10 CR 2151-53.[5] And, with regard to Defendant’s second choice, Virginia, it was not until May 23, 1997 — a full week after the pre-trial hearing — that Defendant offered even a conclusory sentence describing Mr. Walters’ contacts to that state. 4 CR 929. In the face of Pittsburgh Corning’s continuing ambivalence regarding its preferred choice of law, in addition to its flood of contradictory documents on the eve of trial, the trial court quite reasonably found that Pittsburgh Corning failed to present a sufficient and timely motion for the application of another state’s law. Thus, the trial court was well within its discretion in applying Texas substantive law in this case.

Incredibly, Pittsburgh Corning suggests that its failure to comply with the requirements of Rule 202 is beside the point: “There is a distinction . . . between determining which state’s substantive law controls and determining the content of that state’s substantive law.” Appellant’s Br. at 17. While Appellant apparently concedes it failed to prove the content of another state’s law and that it was “confused” about what substantive law it sought to apply in this case, Pittsburgh Corning still insists it “preserved error as to the choice of Texas law.” Appellant’s Br. at 16-17.

The law of Texas presumptively applies to cases filed in Texas. Keene Corp. v. Gardner, 837 S.W.2d 224, 227 (Tex. App. — Dallas 1992, writ denied); Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex. 1963). Mr. Walters was killed by the tortious conduct of Texas residents[6] and asserted a right to recover damages under Texas substantive law. Pittsburgh Corning never formally and properly requested the application of the law it now says is applicable — California law — until after the deadline set by the Court. It would be unreasonable and unfair to expect trial courts to entertain voluminous motions regarding choice of law without warning and on the day of trial. Indeed, if parties were allowed to proceed in this way, the trial court’s management of its docket would be seriously undermined, and pre-trial conferences would be meaningless. See Griffin, 626 S.W.2d at 897. Choice of law determinations can be waived. General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.), cert. denied, 510 U.S. 985 (1993). And Pittsburgh Corning’s actions constituted a waiver of the choice of law determination in this case.

But even if, in the face of the many confusing and contradictory requests made by Pittsburgh Corning, the trial court erred in not choosing to apply foreign law, that error would be harmless: the court must presume any foreign law is identical to Texas law unless the requesting party properly proves the content of the foreign law as required by Rule 202. Holden, 960 S.W.2d at 833; Mathis v. Wachovia Bank & Trust Co., N.A., 583 S.W.2d 800, 802 (Tex. App. — Houston [1st Dist.] 1979, writ ref’d n.r.e.). Thus, even were it proper for Pittsburgh Corning to raise belatedly a choice of law issue on the first day of trial by means of multiple choice, select-one-of-three motions with hundreds of pages of foreign law stapled to the back, the court was completely within its discretion to presume those other states’ law to be the same as Texas. The court did not err in concluding that the application of Texas substantive law was most appropriate under the facts of the case.


Having waived its request for the application of California law, Pittsburgh Corning is forced to characterize the trial court’s application of Texas law as a jurisdictional error. It therefore contends that Mrs. Walters lacked standing to pursue claims under the Texas wrongful death and survival statutes and that the trial court therefore lacked subject matter jurisdiction to enter judgment on these claims. But Pittsburgh Corning cites no authority at all for the proposition that the current wrongful death act and survival statute may be invoked only by persons who are residents of this state or whose claims arose in this state.

The plain language of the statutes certainly does not support Pittsburgh Corning’s contention. The Texas Wrongful Death Act provides for liability “for damages arising from an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code §71.002 (emphasis added). This language does not purport, either expressly or by implication, to apply only to claims brought by Texas residents or claims having a “significant Texas connection.” Similarly, the Texas Survival Act provides broadly that the decedent’s personal injury action “survives to and in favor of the heirs, legal representatives, and estate of the injured person”; nothing in the language of the Act indicates that it may be invoked only by Texas residents or by persons whose decedents were injured in Texas.

The applicability of the Texas wrongful death and survival statutes is instead addressed by section 71.031 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code § 71.031(c). Section 71.031 requires Texas courts to hear actions for the death of a nonresident even if the death occurred outside the state, as Texas courts have recognized. See Crisman v. Cooper Indus., 748 S.W.2d 273, 276 (Tex. App. — Dallas 1988, writ denied) (“Appellant’s cause of action arises under Texas’ wrongful death statute which provides in pertinent part that an action for wrongful death of an out-of-state resident may be enforced in the courts of this State, although the cause of the death took place in a foreign state.”).[7] Section 71.031 further provides that in such actions, “[t]he court shall apply the rules of substantive law that are appropriate under the facts of the case.” Tex. Civ. Prac. & Rem. Code § 71.031(c). Thus, section 71.031 unequivocally establishes that Texas substantive law — including the wrongful death and survival statutes — will apply if the application of that law is appropriate under “the facts of the case.” Simply put, the applicability of the Texas wrongful death and survival statutes is subject to standard choice of law analysis. See Crisman, 748 S.W.2d at 276; Total Oilfield Serv., Inc. v. Garcia, 711 S.W.2d 237, 238-39 (Tex. 1986). As explained above, under the facts and circumstances of this case, the application of Texas law was unquestionably appropriate.

Pittsburgh Corning bases its argument that Plaintiff lacks standing to invoke the Texas wrongful death and survival statutes on Marmon v. Mustang Aviation, Inc., 430 S.W.2d 1082 (Tex. 1968), which interprets the old Texas Wrongful Death Act. But nothing in Marmon suggests that the decision whether to apply the Texas act or some other state’s law is jurisdictional as opposed to a choice-of-law determination. More importantly, as Pittsburgh Corning itself acknowledges, the Texas Legislature effectively overruled Marmon by enacting the current version of section 71.031, which expressly provides that the Texas Wrongful Death Act may be applied to cases involving deaths that occurred out of state. See Appellant’s Br. at 11, citing Total Oilfield Serv., 711 S.W.2d at 238-39. Pittsburgh Corning’s attempt to couch the choice of law issue in this case as one implicating the subject matter jurisdiction of the Texas courts is a transparent attempt to avoid the effect of its waiver of the application of foreign law, and should not be countenanced.

Finally, although it should be unnecessary for the Court to reach the issue, the essential assumption underlying Pittsburgh Corning’s “standing” argument — that this litigation lacks a significant Texas connection — is untrue. As noted, Mr. Walters was killed by the tortious conduct of Texas residents and asserted a right to recover damages under Texas substantive law. Indeed, Pittsburgh Corning manufactured its defective asbestos-containing products right here in Texas, and developed its knowledge of the hazards of asbestos largely in Texas. See 2 RR 47-48. In addition, Plaintiff Cecile J. Walters qualified to serve as executrix of decedent’s estate in Texas. 10 CR 2217-19. Pittsburgh Corning’s argument that Plaintiff is without “standing” to invoke Texas law is without legal or factual support, and should be rejected.


“The admission or exclusion of evidence is largely within the trial court’s discretion.” Brown v. Hopkins, 921 S.W.2d 306, 311 (Tex. App. — Corpus Christi 1996, no writ). The trial court’s evidentiary decisions will be reversed only where the trial court committed error that “was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Id. at 311-12. None of the trial court’s evidentiary decisions in this case requires reversal.

A.The Court Properly Admitted the Videotape of Douglas Walters as Evidence of Mr. Walters’ State of Mind.

Pittsburgh Corning objects to the introduction of a videotape of Mr. Walters during his last hospitalization. It should be noted, first of all, that Defendant did not at trial — and does not now — object to the visual presentation of the videotape, noting that it was a “fair representation” of Mr. Walters’ condition shortly before his death. 6 RR 213, 215-16. Rather, Pittsburgh Corning objects only to the audio portion of the videotape. Thus, even if admission of the audio portion was error — which Plaintiff denies — in order to show harm, Pittsburgh Corning must show that visual presentation of the videotape would not have produced the same result. See Tex. R. App. P. 44.1; Isern v. Watson, 942 S.W.2d 186, 198 (Tex. App. — Beaumont 1997, no writ).

The video presentation of Mr. Walters four days before his death truly demonstrated the devastation of his illness. Mr. Walters appeared extremely gaunt, with sunken cheeks and bones pressing painfully through the skin. 6 RR 212; 11 RR Walters 28. He shuffled slowly through the hospital corridors, leaning on an IV stand for support. 1st Supp. RR 4. These pictures provided a bleak contrast with the happy, robust athlete and public servant smiling from the other photographs of Mr. Walters. 11 RR Yoder 18, 19, 21-22, 24; 11 RR Walters 27, 38. Appellant cannot show that the presentation of Mr. Walters’ words, as opposed to the moving pictures of his pain and illness, had any effect on the jury’s findings on liability or damages.

Admission of the audio portion of the videotape was not error, however, since it provided direct evidence of Mr. Walters’ physical condition and state of mind at the time it was taken — shortly before his death of asbestos-related mesothelioma. It was directly relevant to Plaintiff’s claims for Mr. Walters’ pain and suffering. Because the evidence was offered to show Mr. Walters’ mental, emotional, and physical condition, the evidence was admissible under Tex. R. Civ. Evid. 803(3): “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)” is not excluded by the hearsay rule.

Pittsburgh Corning suggests that this videotape was “staged” because Mr. Walters’ statements were made in response to questions from counsel and that Mr. Walters’ statements were, thus, not spontaneous and do not qualify for the hearsay exception. Appellant’s Br. at 18; 6 RR 220. This is factually untrue and legally incorrect: Mr. Walters’ statements were spontaneous statements, whether or not they were made in response to questioning. This Court has expressly noted that “res gestae statements may be made in response to questions.” See Rosendorf v. Blackmon, 800 S.W.2d 377, 380 (Tex. App. — Corpus Christi 1990, orig. proceeding). Mr. Walters described the pain he was experiencing at the time: he made “spontaneous remarks about pain or some other sensation, made by the declarant while the sensation, not readily observable by a third party, [was] being experienced,” as required by the hearsay exception. Ochs v. Martinez, 789 S.W.2d 949, 959 (Tex. App. — San Antonio 1990, writ denied). For example, during a severe bout of coughing, Mr. Walters said:

(Coughing) Oh, that didn’t feel very good. (Coughing) Oh. A real stabbing pain over in my right chest. It’s limiting how much — how deeply I can breathe. And so I’m just sort of huffing — huffing and puffing here. And it seems like a hot spot or focal point where the pain starts and it sort of radiates out.

1st Supp. RR 2. The videotape was carefully edited to only four minutes in length to contain only material relevant to Mr. Walters’ “then existing state of mind, emotion, sensation, or physical condition.” See generally 1st Supp. RR. Pittsburgh Corning’s complaint is without basis. The trial court properly allowed Plaintiff to present the audio, as well as the visual, portion of this videotape.

Many courts have found that such “day in the life” videotapes are not hearsay at all and have admitted them as demonstrative evidence of Plaintiff’s daily life and physical condition.[8] Likewise, the videotape admitted in this case showed Mr. Walters at the hospital near the end of his life, sitting or lying in his room and walking through the hospital corridors. This was Mr. Walters’ life near the end, and the videotape was an accurate portrayal of his daily experience at that point in time.[9] The Court did not err in admitting the videotape of Mr. Walters.

Finally, even if the admission of the videotape were error, it was not harmful error and does not require correction by this Court. The videotape was cumulative of the testimony by Dr. Maguire, Mr. Walters’ treating physician, regarding Mr. Walters’ medical treatment, his pain, and the physical and psychological burden of his illness. Dr. Maguire testified as to the type of stabbing pain Mr. Walters felt every time he drew in a breath. 6 RR 158, 169. He testified about the painful procedures he endured and the torture of being unable to breathe freely. 6 RR 160-64, 167-68. The jury saw pictures of Mr. Walters after surgical procedures, with a 10-inch zipper of metal stitches extending from beneath his arm to the center of his chest, holding Mr. Walters’ chest closed, 11 RR Hammar 16, 16A, as well as the videotape demonstration of Mr. Walters’ appearance and activity in the hospital. Dr. Maguire also testified about his role in helping Mr. Walters and his family prepare for Mr. Walters’ death. 6 RR 165, 167. Mr. Walters’ words were cumulative of this evidence.

Since the evidence was cumulative, even if the Court erred in admitting it, the error was harmless.[10] The evidence presented at trial, separate and apart from the videotape, is sufficient to support the jury’s findings. See Texas Dep’t of Human Serv. v. White, 817 S.W.2d at 63 (where record contained sufficient evidence, separate and apart from the photograph, to support jury’s finding, appellant failed to show reversible error). And Pittsburgh Corning’s attempt to show prejudice by comparing the verdict in this case to the verdict in another asbestos case is distasteful and unavailing since “each case must stand on its own facts and circumstances.” See Caterpillar Tractor Co. v. Boyett, 674 S.W.2d 782, 790 (Tex. App. — Corpus Christi 1984, no writ); Appellant’s Br. at 25. The trial court did not err in admitting this videotape evidence.

B.The Court Properly Admitted Expert Testimony that Pittsburgh Corning’s Product Was “Unreasonably Dangerous.”

Pittsburgh Corning first complains that the trial court erred in permitting three of Plaintiff’s experts to testify that Unibestos is an “unreasonably dangerous” product because the experts were not qualified to render such an opinion. Appellant’s Br. at 26-27. According to Pittsburgh Corning, these experts did not have the requisite specialized knowledge concerning the “state of the art” — that is, what was known or knowable by Pittsburgh Corning at the time of Mr. Walters’ exposure. Appellant’s Br. at 26. Pittsburgh Corning is wrong because whether a product is “unreasonably dangerous” has nothing to do with state of the art. Thus, Pittsburgh Corning has stated no basis for its assertion that the experts were “unqualified.”

Pittsburgh Corning does not suggest that the trial court incorrectly stated the law applicable to a marketing defect claim[11] when it charged the jury as follows:

A “marketing defect” with respect to the product means the failure to give adequate warnings of the product’s dangers that were known or by the application of reasonably developed human skill and foresight should have been known or failure to give adequate instructions to avoid such dangers, which failure rendered the product unreasonably dangerous as marketed.

“Adequate” warnings and instructions mean warnings and instructions given in a form that could reasonably be expected to catch the attention of a reasonably prudent person in the circumstances of the product’s use; and the content of the warnings and instructions must be comprehensible to the average user and must convey a fair indication of the nature and extent of the danger and how to avoid it to the mind of a reasonable prudent person.

An “unreasonably dangerous” product is one that is dangerous to an extent beyond which would be contemplated by the ordinary user of the product with the ordinary knowledge common to the community as to the product’s characteristics.

9 CR 2002 (emphasis added). As is plain from a review of the law as instructed in the charge, the question of whether a product is “unreasonably dangerous” concerns not whether the manufacturer knew or should have known of the dangers, but whether the product is more dangerous than an ordinary person would have expected. See also discussion by counsel at trial, 4 RR 128, 130; 6 RR 54. To answer the “unreasonably dangerous” question, then, Plaintiff’s experts did not need the “qualifications to assess whether the level of Mr. Walters’ occupational asbestos exposure as a bystander during nuclear submarine construction exceeded the exposure considered safe at that time.” Appellant’s Br. at 27. They simply needed to know whether the product was dangerous, and whether that danger exceeded the expectations of an ordinary person.

Plaintiff’s experts, all physicians specializing in asbestos disease, did indeed have the qualifications to testify concerning the dangerous nature of Unibestos, a product that contained at least 59 percent asbestos fibers, several times the amount contained in other comparable products. 4 RR 129. As Dr. Arnold Brody emphasized, all asbestos fibers can cause disease, and any product that contains asbestos and is manipulated so that fibers will be released into the air will be extremely dangerous to individuals exposed to the dust. 4 RR 129, 131, 133-34, 139. Dr. Samuel Hammar agreed that all asbestos fibers cause disease and each exposure to asbestos fibers contributes to asbestos-related disease. 6 RR 28-31. Dr. William McGuire testified that the medical literature “unanimously” supports the “strong relationship between asbestos exposure and disease, especially mesothelioma.” 6 RR 171-72. The dangerous nature of Unibestos was not unique to that product. Rather, the experts opined that any asbestos product used as Unibestos was intended to be used and in fact was used, was unreasonably dangerous. See 4 RR 129, 131, 133; 6 RR 55-56.

Texas Rule of Evidence 702 allows expert testimony from any individual “qualified as an expert by knowledge, skill, experience, training or education” whenever that individual’s testimony would be helpful to the trier of fact in understanding the evidence or making factual determinations. Plaintiff’s experts based their opinions on facts and data they had perceived or reviewed “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,” as required by Tex. R. Civ. Evid. 703. The opinion testimony offered on this issue was based on indisputable medical and scientific evidence of the physical danger posed by exposure to friable asbestos fibers. The experts were well qualified to give such testimony.

And, in fact, even if the trial court erred in allowing Plaintiff’s experts to answer this one particular question, that testimony was cumulative of other evidence in the record regarding the dangers of asbestos, and it cannot provide a basis for reversal: “improper admission of evidence does not as a rule constitute reversible error when there is other competent evidence of the fact in question in the record.” McGee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). In the face of the abundant evidence of the dangers of asbestos, even had the trial court erred in admitting this testimony, such error was harmless and provides no basis for reversal.

Pittsburgh Corning next suggests that the trial court further erred in permitting Dr. Egilman to testify that Unibestos was unreasonably dangerous. Appellant’s Br. at 32. Dr. Egilman is admittedly qualified on the relevant state of the art. Appellant’s Br. at 27. But according to Pittsburgh Corning, Dr. Egilman should have been prevented from offering his opinion on the unreasonably dangerous nature of Unibestos because the state of the art documents about which he testified “failed to meet the standards for reliability” under Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), cert. denied, 118 S.Ct. 1799 (1998). Appellant’s Br. at 32.

The first obvious problem with Pittsburgh Corning’s argument is that just explained; state of the art has nothing to do with “unreasonably dangerous” as that term is defined under Texas law generally and as it was defined for the jury in this case specifically. Therefore, Dr. Egilman’s opinion on the issue of “unreasonably dangerous” did not relate in any way to the documents Pittsburgh Corning claims fail to pass muster under Havner. The Havner issue simply provides no basis for the exclusion of Dr. Egilman’s opinion testimony on whether Unibestos was unreasonably dangerous.

The other obvious problem with Pittsburgh Corning’s argument is that it has appeared for the first time on appeal. It is thus waived. Edwards v. Texas Employment Com’n, 936 S.W.2d 462, 466 (Tex. App. — Fort Worth 1996, no writ).

C.The Court Properly Admitted the Testimony of Dr. David Egilman on the Issue of Industry Knowledge, Negligence, and Gross Negligence.

Pittsburgh Corning also suggests that Dr. Egilman should have been prevented from offering his opinion about Pittsburgh Corning’s negligence or gross negligence[12] because the state of the art documents on which he relied in making those opinions lacked reliable scientific foundation under Havner. Appellant’s Br. at 33.

Again, Pittsburgh Corning does not contest the Doctor’s qualifications to testify on the issue of state of the art. Appellant’s Br. at 27. Nor could it. Indeed, the United States Third Circuit Court of Appeals has held in a similar case that Dr. Egilman’s testimony was properly admitted on precisely the issue of a manufacturer’s knowledge about the dangers caused by exposure to its asbestos containing products. See Dunn v. HOVIC, 1 F.3d 1362 (3d. Cir.), modified in part on other grounds, 13 F.3d 58 (3d Cir.), cert. denied, 114 S.Ct. 650 (1993).

Dr. Egilman is a medical doctor who specializes in occupational medicine, i.e., the diagnosis and treatment of problems related to exposure to chemicals and other substances. Dunn, 1 F.3d at 1368. His specialized work includes evaluating workers for workplace illnesses and medical surveillance of exposure to toxic substances in the workplace. Id. Dr. Egilman also assists companies in determining whether substances are harmful and, if so, he advises those companies in the handling of those substances and the education of workers about those substances. Id. Given these extensive qualifications, the Third Circuit held that Dr. Egilman was qualified, under the ‘helpfulness’ standard of Rule 702, to testify that a manufacturer knew of the risks associated with asbestos exposure. Dunn, 1 F.3d at 1368.

Texas Rule of Evidence 702 is identical to the federal rule. E.I. du Pont De Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). And Dr. Egilman, who has reviewed voluminous industry documents, as well as Pittsburgh Corning’s own documents, in reaching the opinion that Pittsburgh Corning was negligent, 5 RR 123-81, is identically qualified here. This is not an issue.

Rather, the issue is whether this Court is interested in becoming the only court ever to hold that the same causation standards set forth in Havner to determine whether the scientific evidence was sufficient to establish that a product caused a particular person’s injury, also apply to the liability determination of whether a reasonable person would have placed a warning on a dangerous product, given the information available to the manufacturer at the time the product was made. The standards are not the same and the Court should resist Pittsburgh Corning’s attempt to confuse the two.

To establish Pittsburgh Corning’s negligence, Plaintiff bore the burden of proving that the company knew or should have known of the dangers of Unibestos at the time of Mr. Walters’ exposure and failed adequately to warn of those dangers. Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1089 (5th Cir.1973), cert. denied, 419 U.S. 869 (1974). Similarly, to establish a marketing defect, Plaintiff had to prove Pittsburgh Corning’s “failure to give adequate warnings of the product’s dangers that were known or by the application of reasonably developed human skill and foresight should have been known or failure to give adequate instructions to avoid such dangers, which failure rendered the product unreasonably dangerous as marketed.” 9 CR 2002.

But Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), cert. denied, 118 S.Ct. 1799 (1998), simply has no application to these issues. In Havner, the Texas Supreme Court examined the measure and type of scientific evidence that would be sufficient to sustain a finding that a particular substance caused an individual’s injury. Id. Pittsburgh Corning does not challenge the fact that Mr. Walters died of asbestos-related mesothelioma or that his exposure to Unibestos was a substantial factor in causing his death. Causation is not the issue.

The issue is the type or amount of scientific evidence that would lead a reasonable person to warn of a risk of danger. Under Pittsburgh Corning’s analysis, there is no “legally sufficient evidence that a hazard exists,” Appellant’s Br. at 29, unless the Havner standards for causation are satisfied. But this was certainly not the holding in Havner. Indeed, the court there recognized that a substance may be known to cause a dangerous condition in a certain percentage of people exposed to it before scientists are able to prove in which particular individuals the condition was caused by exposure to the known hazard as opposed to some other cause. Havner, 953 S.W.2d at 717. Thus, known hazards do exist, even if causation in any one individual cannot be proven. It is the jury’s dominion to decide whether a reasonable person would have warned of those hazards. In fact, Pittsburgh Corning’s position on appeal has been denounced by its own trial expert, Dr. Forman, who has convincingly argued that the fact that knowledge of the health consequences of asbestos has continued to increase over time “does not confer upon us a freedom to ignore that knowledge we already have, or to postpone the action that it appears to demand at a given time.” 8 RR 118. It is for the jury to decide, as it did in this case, the action that appears to be demanded based on the information available to the manufacturer of a dangerous product at the time the product was made. Havner simply has no place in this analysis. The case provided no basis for excluding Dr. Egilman’s expert opinion concerning what Pittsburgh Corning knew or should have known in the early 1960s about the dangers of asbestos exposure.

Finally, the jury heard plentiful fact evidence about disease-causing mechanisms of asbestos fibers, as well as evidence about the knowledge of these dangers in the 1960s. Thus, the jury was equipped to evaluate the credibility of the opinion testimony of Plaintiff’s experts, an evaluation “particularly within the jury’s province.” See E.I. duPont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (The jury must “assess the weight and credibility of the proffered [expert] testimony.”); Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d 762, 772 (Tex. App. — Dallas 1993, writ denied) (“It is particularly within the jury’s province to weigh opinion evidence and the judgment of experts.”). And, even if the trial court erred in permitting Dr. Egilman to opine that Pittsburgh Corning was negligent, that error was harmless since this testimony was cumulative of Dr. Egilman’s exhaustive presentation of medical and scientific articles and Pittsburgh Corning documents that demonstrated Pittsburgh Corning’s negligence. See McGee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

D.The Court Properly Admitted Exhibits D-785, D-612, D-613.

Pittsburgh Corning now claims that it objected, repeatedly and vociferously, to the admission of each of these documents: a 1966 New York Times article and two excerpts from the Federal Register. Appellant’s Br. at 34. This claim is, at best, misleading. Pittsburgh Corning withdrew all objections to D-785 before that article was admitted or read to the jury. 4 RR 76. Pittsburgh Corning made no objection when document D-612 was read to the jury, 4 RR 141, and objected to the use of document D-613 solely on the ground that it was cumulative, 4 RR 143. It was not until the morning after the documents were read to the jury, when Plaintiff moved for their admission as exhibits, that Pittsburgh Corning objected. 5 RR 4-6. Under these circumstances, it is preposterous that documents which were read to the jury without objection could, as Pittsburgh Corning now contends, “guarant[y] an improper result” upon admission into evidence. And the trial court’s decision to overrule the few objections Pittsburgh Corning actually did make has not been shown to have “probably caused the rendition of an erroneous verdict or judgment.”


Pittsburgh Corning complains that this Exhibit, a March 2, 1966, New York Times article entitled “Asbestos Dust Called a Hazard to at Least One-Fourth of U.S.,” was irrelevant and unfairly prejudicial. Appellant’s Br. at 34-35. Again, Pittsburgh Corning withdrew its objection to the admission of this article before the article was admitted into evidence. 4 RR 76. Pittsburgh Corning has not preserved any objection to the admission of this Exhibit.

Even so, the admission of this newspaper article was entirely proper. The article is not hearsay because it was not admitted to prove the truth of its contents, but rather to demonstrate that information on the hazards of asbestos exposure was available to Defendant on that date. 4 RR 68-69; 11 RR D-785. “[N]ewspaper articles not offered for the truth of the matters asserted but used merely to show notice of those matters are not hearsay.” City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 791 (Tex. App. — Dallas 1992, writ denied).

Pittsburgh Corning suggests that the article was irrelevant without evidence that Pittsburgh Corning actually read or knew of it. See Appellant’s Br. at 34. However, Plaintiff was not required to show that Pittsburgh Corning actually knew about this article or its contents; an asbestos manufacturer is charged with the knowledge of an expert: “Whether the manufacturer was aware of information regarding the dangers of asbestos use at the time of marketing is immaterial since an asbestos manufacturer is charged with the duty to know the dangers of asbestos products.” Keene Corp. v. Belford, 881 S.W.2d 608, 610 (Tex. App. — Corpus Christi 1994, no writ) (citing Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1089-90 (5th Cir.1973), cert. denied, 419 U.S. 869 (1974)); Dartez v. Fibreboard Corp., 765 F.2d 456, 461 (5th Cir. 1985). Consequently, the article is competent evidence of what Pittsburgh Corning should have known about the hazards of its product. 4 RR 71.

2.D-612 and D-613.

While Pittsburgh Corning did object to the admission of these documents as exhibits, Pittsburgh Corning expressly declined to object to the use of D-612 in the examination of Dr. Brody and did not object when the document was read to the jury. 4 RR 141-42. Pittsburgh Corning objected to the use and reading of D-613 only on the grounds that it was cumulative,[13] which objection was overruled. 4 RR 143.

Both these exhibits consisted of excerpts from the Federal Register, Vol. 51, No. 119, June 20, 1986. Contrary to Defendant’s suggestion, these documents were not offered to demonstrate notice to Pittsburgh Corning of the dangers of asbestos, but rather as evidence that Unibestos was, indeed, unreasonably dangerous and that the asbestos fibers found in Unibestos cause asbestos-related disease. The evidence was relevant and admissible under Tex. R. Civ. Evid. 803(8).

In addition, these exhibits were presented as facts and data underlying the opinions of Plaintiff’s expert, Dr. Arnold Brody. Dr. Brody testified using the OSHA opinions to support his opinion that products containing asbestos fibers are unreasonably dangerous and cause asbestos-related disease. Dr. Brody was entitled to reveal the facts or data underlying his opinion. Tex. R. Civ. Evid. 705. “An expert witness can testify from a published hearsay article as one of the bases for his or her expert opinion.” New Braunfels Fact. Outlet Ctr., Inc. v. IHOP Rlty. Corp., 872 S.W.2d 303, 310 n.5 (Tex. App. — Austin 1994, no writ); Tex. R. Civ. Evid. 703. These documents, already admissible evidence in their own right, were also properly received as bases for Dr. Brody’s opinion. There was no error in the admission of this evidence. In any event, the admission of these documents could not have been harmful since the jury heard the contents of the documents without objection, see discussion above, and the documents merely confirmed the testimony of Plaintiff’s experts that Defendant’s product was unreasonably dangerous, see Section III.B


Pittsburgh Corning claims this Court should reverse the trial court’s judgment because Plaintiff introduced “no evidence” that Pittsburgh Corning had a duty to warn of the health hazards of Unibestos. Appellant’s Br. at 36-41. But the record is replete with evidence that Pittsburgh Corning knew or should have known that Unibestos, a product containing at least 60 percent asbestos fibers, posed a significant health risk to individuals who inhaled dust released from the product, and yet failed to warn of that risk. See Borel, 493 F.2d at 1088; Owens Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 561-62 (Tex. App. — Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). As the court stated in Borel, “a duty to warn attaches whenever a reasonable man would want to be informed of the risk in order to decide whether to expose himself to it.” Borel, 493 F.2d at 1089.

In considering this evidence, the Court must avoid usurping the jury’s function. Inshin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 352 (Tex. App. — Fort Worth 1996, no writ). An appellate court evaluating a legal sufficiency issue considers only the evidence and inferences that tend to support the jury’s finding and disregards all evidence and inferences to the contrary. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex. 1988). Here, the trial court’s judgment is legally sufficient because Plaintiff offered direct and reliable evidence that Pittsburgh Corning was negligent in failing to warn of the health hazards of Unibestos. A judgment will be set aside for factual insufficiency only if the evidence is so weak or the finding is so against the great weight of the evidence that it is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). A review of this record, however, reveals a wealth of evidence to support the jury’s finding that Pittsburgh Corning was negligent in failing to warn of the dangers of asbestos.

A.Pittsburgh Corning Does Not Challenge Plaintiff’s Evidence Regarding Exposure, Causation or Diagnosis.

Pittsburgh Corning does not contest that Mr. Walters was exposed to Unibestos, which caused his death from mesothelioma. See Appellant’s Br. at 36-37. See also 4 RR 28-29, 32; 6 RR 67-68; 11 RR Hammar 11. Nor does Pittsburgh Corning contest that it placed no warning on Unibestos during the years Mr. Walters was exposed to it. Id. at 39-40. See also 5 RR 38-39, 5 RR 170. Rather, Pittsburgh Corning argues again here what the jury rejected below — the notion that Pittsburgh Corning simply didn’t have to warn. The suggestion is no more persuasive on appeal.

B.Pittsburgh Corning Breached Its Duty to Warn of the Knowable Hazards of Unibestos.

Pittsburgh Corning begins with the untenable claim that it had no reason to know of the danger to Mr. Walters. It suggests that, to establish its legal duty to warn individuals such as Mr. Walters of the dangers of asbestos exposure, Plaintiff had to demonstrate that “Havner quality” evidence existed at the time of Mr. Walters’ exposure “that use of Unibestos in the nuclear submarine environment posed a substantial risk of mesothelioma to bystanders.” Appellant’s Br. at 37 (emphasis added). In fact, Pittsburgh Corning suggests that Plaintiff presented no evidence of even a general hazard about which Pittsburgh Corning had a duty to warn. Appellant’s Br. at 36-37. Again, the reliance on Havner, governing causation, is misplaced on this issue of breach of duty. See, supra, Sec. III.C. And Pittsburgh Corning’s view of the legal standard defining its duty is likewise not grounded in the law. Pittsburgh Corning’s duty did not rest on a showing that Pittsburgh Corning knew or should have known “that use of Unibestos in the nuclear submarine environment posed a substantial risk of mesothelioma to bystanders.” Indeed, in Borel, the Fifth Circuit affirmed the trial court’s judgment that Pittsburgh Corning, among other defendants, was liable for the mesothelioma death of an insulation worker who was exposed to asbestos from 1936 until 1969 because “there [was] ample evidence in the record that the danger of inhaling asbestos, including the disease of asbestosis, was widely recognized at least as early as the 1930s.” Borel, 493 F.2d at 1092-93. The same is true here; Pittsburgh Corning had a duty to warn because it was scientifically knowable by 1962 — when Mr. Walters’ exposure to Unibestos began — that asbestos could cause serious health problems to individuals who inhaled the fibers.

1.Pittsburgh Corning Actually Knew of the Danger.

The jury heard plentiful evidence of the information available to Pittsburgh Corning about the hazards of asbestos at the time of Mr. Walters’ exposure. And it heard evidence of information actually in the possession of Pittsburgh Corning executives about the dangers of Unibestos, both through the testimony of the men who actually communicated this information directly to those executives and through expert testimony concerning Pittsburgh Corning documents. And, despite its protestations to the contrary, it knew that amosite asbestos fibers, those contained in Unibestos, were far from safe.

Pittsburgh Corning purchased raw asbestos for its product Unibestos from Cape Asbestos in England. 5 RR 10-11. Dr. Richard Gaze, chief scientist for Cape Asbestos,[14] testified by deposition that he informed Pittsburgh Corning of the dangers of asbestos exposure on a number of occasions, beginning with his very first meeting with the company’s executives[15] in 1961. 5 RR 10-11. For ten years, he discussed the hazards with Pittsburgh Corning on an annual basis, 5 RR 14, and consulted with Pittsburgh Corning about the hazards or dangers of amosite asbestos “continually” until Pittsburgh Corning ceased buying raw asbestos from the company in 1970 or 1971. 5 RR 15.

Dr. Gaze told Pittsburgh Corning that from his first day of work at Cape Asbestos in 1943, he knew that asbestos fibers were hazardous if breathed and that precautions were necessary to prevent them from being inhaled. 5 RR 8. Indeed, the knowledge of asbestos health hazards began having an impact on industry regulations in England in 1933. 5 RR 20. Dr. Gaze learned asbestos could cause irreversible and terminal lung disease “within the first few years of [his] association with asbestos.” 5 RR 9-10. He discovered that asbestos caused mesothelioma sometime around 1960. 5 RR 8-9. Dr. Gaze specifically recalled that he informed Pittsburgh Corning that asbestos — including amosite asbestos — could cause asbestosis to people who worked around it, 5 RR 13, 26, and that he “certainly did not give [Pittsburgh Corning’s research director] any impression, or any of the Pittsburgh Corning people at any time, that amosite was a safe material as far as asbestosis was concerned.” 5 RR 26.

Mr. Ron Francis, a Pittsburgh Corning employee, testified that, after Dr. Gaze expressed concern about dust levels at Pittsburgh Corning’s Port Allegany plant, Mr. Francis visited Cape Asbestos to compare its dust control methods. 5 RR 86-87. On November 7, 1965, upon arriving at the London airport, Mr. Francis read a newspaper article entitled “Scientists Track Down a Killer Dust Disease,” which discussed the dangers of asbestos-related diseases, including cancer and mesothelioma, both from direct contact and bystander exposure (such as household exposure to workers’ clothing). 5 RR 89-90. When Mr. Francis discussed this article with Dr. Harding, the company doctor for Cape Asbestos, Dr. Harding explained that the Cape Asbestos plant was the facility referenced in the article and that the Cape Asbestos plant, which used amosite asbestos fibers — as Pittsburgh Corning did for its product Unibestos[16] — “had a history of asbestos-related diseases among their workers.” 5 RR 92. Dr. Harding described both asbestosis and mesothelioma as diseases related to asbestos exposure. Id. Thus, at the very same time Mr. Walters was being exposed to Unibestos, Mr. Francis was told that people were dying of mesothelioma caused by the same amosite fibers used in Pittsburgh Corning’s product. 5 RR 250-51; 8 RR 153. After writing a report[17] describing what he had learned about asbestosis, cancer and mesothelioma, 5 RR 93-95, Mr. Francis met with several Pittsburgh Corning executives to review that report. 5 RR 96-99. He told these executives that he “had learned in England that asbestos was a dangerous material from a health standpoint” and that Pittsburgh Corning’s own plant was not safe. 5 RR 97. Mr. Francis was so frightened by what he learned that he “couldn’t walk into the plant without having [his] lungs ache.” 5 RR 95, 99.

Pittsburgh Corning’s own expert Dr. Samuel Forman testified that “a company has a duty to . . . at least go to the library and find out the toxic nature of their products before they put it on the market.” 8 RR 104.[18] See also Borel, 493 F.2d at 1089 (“at a minimum [the manufacturer] must keep abreast of scientific knowledge, discoveries, and advances.”).But Pittsburgh Corning executives claimed repeatedly that they made no investigation at all of the possible risks of Unibestos before purchasing the line. 7 RR 61-62, 73, 82-83, 86-87, 91-92, 110-11, 119-20. Neither did Pittsburgh Corning’s expert, Dr. Forman, approve of the company’s response to Mr. Francis’ report: Dr. Forman testified that, as a corporate medical director, if an employee came to him with a newspaper article about health risks of asbestos and expressed concern about his own heath — as Mr. Francis came to his superiors — Dr. Forman would, at a minimum, follow-up on this report and the possible risks. 8 RR 84. But Pittsburgh Corning took no action.

Pittsburgh Corning’s own documents also confirm the company’s knowledge of the dangers of asbestos. Dr. David Egilman reviewed numerous documents from Pittsburgh Corning’s files. Based on this review, Dr. Egilman testified that Pittsburgh Corning “clearly knew that their products were dangerous” by May 1962, even before the company began producing Unibestos. 5 RR 188-90. Before Pittsburgh Corning purchased the Unibestos plant, its parent company, Pittsburgh Plate and Glass, sent Pittsburgh Corning two separate packets of numerous articles about asbestos, received by Pittsburgh Corning on May 17 and May 28, 1962. 5 RR 159-60; 11 RR PC-6, PC-7. These articles reported that asbestos causes both asbestosis and cancer. 5 RR 160-61. One particular document, an excerpt from a 1957 textbook entitled Dangerous Properties of Industrial Materials, gave asbestos a category 3 toxic hazard rating for chronic local inhalation, the highest rating for toxicity. 8 RR 95-96, 133; 11 RR PC-6 at 2. In 1964, Pittsburgh Corning discussed that the amosite asbestos fibers used at its plant could cause asbestosis and cancer, including mesothelioma. 5 RR 165; 11 RR U-83. On April 14, 1964, during the time Mr. Walters was being exposed to Unibestos, Pittsburgh Corning was represented at a meeting of the National Insulation Manufacturers Association (“NIMA”) at which it was announced that Johns-Manville would begin placing a warning on its asbestos-containing products. 5 RR 177-78; 11 RR U-192 at 4. Dr. Lee Grant, medical director for Pittsburgh Corning’s parent company, sent Pittsburgh Corning’s president a copy of “Mesothelioma and its Association with Asbestos,” an article which appeared in the Journal of the American Medical Association (“JAMA”), which article Dr. Grant called “a good review on mesothelioma.” 11 RR PC-40 (emphasis added). This article “talked specifically about amosite causing mesothelioma” and detailed the way in which it was believed that amosite and chrysotile, another type of asbestos fiber of similar length and composition, caused cancer. 5 RR 166-67. Pittsburgh Corning knew of the danger.

2.Pittsburgh Corning Should Have Known About the Danger.

Mr. Walters was exposed to Unibestos from 1962 until 1966, and the jury also heard abundant evidence about the information available before 1967 on the hazards of asbestos to people such as Mr. Walters. Since Pittsburgh Corning, as a manufacturer, is held to the level of knowledge of an expert, all of this evidence demonstrated what Pittsburgh Corning should have known. Keene Corp. v. Belford, 881 S.W.2d at 610 (citing Borel, 493 F.2d at 1089-90). Dr. Egilman testified plainly that, based on his knowledge of the medical literature, Pittsburgh Corning should have known that Unibestos presented a substantial risk to bystanders like Mr. Walters in 1962 — before the company even began selling Unibestos. 5 RR 186-87, 190. Dr. Hammar testified as well that “it was clearly known in 1962 to 1967 that every type of breathing and every type of asbestos fiber was capable of causing death.” 6 RR 85. According to Dr. Egilman, it was generally known and accepted in 1927 that asbestos could cause asbestosis, 5 RR 204; in the 1940s that asbestos could cause cancer, 5 RR 204-205; and in 1953 that asbestos could cause mesothelioma. 5 RR 205. Dr. Hammar concurred, noting that asbestosis was first described in 1924; the first epidemiological study of asbestosis and lung cancer was reported in 1943; and mesothelioma noted in 1949. 6 RR 81. Dr. Richard Gaze, chief scientist for Cape Asbestos, testified that there was an abundance of medical literature available worldwide in the 1950s and 1960s on health problems associated with asbestos exposure. 5 RR 25-26. Further, much more intensive scientific research occurred between 1953 and 1963, 5 RR 22, the several years leading up to Pittsburgh Corning’s decision to produce Unibestos.

As early as 1918, in The Health Hazards and Dusty Trades in the United States, an official U.S. document, it was reported that insurance companies would not insure asbestos workers because they “were at increased risk of dying.” 5 RR 136-37. One early book, Tumors and Occupations, reported that development of asbestosis caused an increased risk of cancer. 5 RR 149-50. In 1930, Dr. Mereweather reported that in a study of 500 asbestos workers, 81 percent of asbestos workers experiences shortness of breath, clubbing or coughing within 20 years. 5 RR 139-40. Dr. Egilman explained that “the most important information [Dr. Mereweather] gave was the need to warn workers and the need to reduce exposures.” 5 RR 141.

a.The Risk to Bystanders.

Dr. Mereweather’s research also contributed to the scientific knowledge regarding risk to bystanders. Although Dr. Mereweather studied workers in a textile plant, “he understood that what he learned about textile workers was true for any human being,” including shipyard and insulation workers as well as bystanders. 5 RR 142. Dr. Mereweather gave specific recommendations in 1930 to protect bystanders like Mr. Walters. Id. Dr. Egilman testified that the medical literature clearly documented the risk of asbestos exposure to bystanders:

It is clearly known in medical literature over and over and over and over and over that people living next to plants could get sick, potentially, that people working next to workers could get sick. And by the mid-’60s [the period of Mr. Walters’ exposure] that wives and children could get sick because workers would bring it [asbestos] home.

5 RR 143 (emphasis added). Indeed, one article reported that, by 1960, scientists linked 75 cases of mesothelioma with environmental exposure — not from working with or even around asbestos — but simply from living in the vicinity of the asbestos mines and mills. 7 RR 133-34. In addition, contrary to Pittsburgh Corning’s claim that it did not receive information concerning the risk to bystanders until the 1970s, Dr. Egilman testified that, by the time of Mr. Walters’ occupational exposure, the medical literature documented disease caused merely by household exposure to asbestos-laden work clothing in individuals far more removed from the actual cutting and sawing than immediate bystanders like Mr. Walters. Indeed, Dr. Egilman noted that the risk of mesothelioma through household exposure alone was documented in the very article that Mr. Francis, Pittsburgh Corning’s own employee, brought back from Cape Asbestos in England and delivered to Pittsburgh Corning executives. Id.

b.The Risks of Amosite Asbestos.

Pittsburgh Corning suggests that the amosite asbestos fibers used in its product were considered safer and not believed to be harmful at the time of Mr. Walters’ exposure. This suggestion, however, is belied by the evidence. The scientific literature never indicated that amosite asbestos was less likely than any other type of asbestos fiber to cause asbestosis, a potential fatal scarring of the lungs. 4 RR 30-31, 140; 5 RR 139, 173, 256-57; 6 RR 83; 8 RR 97-98. And the potential for amosite fibers to cause cancer and mesothelioma was known as well. Dr. Gaze testified that he never distinguished between types of asbestos fibers when he warned Pittsburgh Corning of the health risks of asbestos. 5 RR 13. A 1944 editorial in the Journal of the American Medical Association (JAMA) also reported that asbestos causes lung cancer without making any distinctions on the basis of fiber type. 5 RR 150. Dr. Egilman testified that an animal study sent to Pittsburgh Corning in 1962 compared the effects of various types of asbestos fibers and found that “the amosite exposure caused as much or worse lung disease than the other two fiber types.” 5 RR 148-49. Animal studies published in 1964 and 1965 reported mesothelioma caused by exposure to amosite asbestos fibers. 8 RR 153. Human studies did not yield the same opportunity for studying various fiber types since workers were generally exposed to a combination of fiber types. 5 RR 154-55. Dr. Hammar noted, however, that the 1965 Selikoff article reported that ten percent of insulators were dying of mesothelioma in the United States and very little crocidolite fibers had been imported to this country, so “it seemed logical that other types of asbestos were positive in producing that disease.” 6 RR 79. Dr. Egilman also testified that, in 1962, the medical literature had established that longer asbestos fibers — like amosite — tended to be more dangerous. 5 RR 156. Thus, Pittsburgh Corning had reason to believe that its use of amosite asbestos actually rendered Unibestos more dangerous, not less. Id.

c.The Likelihood of Excessive Exposures.

Neither can Pittsburgh Corning escape liability by talismanically citing the “threshold limit values” and suggesting that it did not know these were unsafe or that they were not always observed. First of all, Dr. Egilman testified that Unibestos was a double hazard product (a product containing multiple hazardous substances) and, thus, the threshold limit values did not apply to it. 5 RR 199-200. Pittsburgh Corning did not refute that testimony. In addition, Mr. Walters, and other asbestos workers and bystanders were actually exposed to airborne asbestos fibers well in excess of the threshold limit value. In October 1963, the United States Department of Labor notified Pittsburgh Corning that “excessive amounts of asbestos dust [were] noted near sawing operation.” 7 RR 145-46; 11 RR PC-15 at 2. Pittsburgh Corning certainly should have known that excessive dust would be released in the sawing required for installation on the navy submarines as well.

On January 8, 1963, Pittsburgh Corning wrote to one of its customers that the amosite asbestos fibers in its product “may cause a feeling of discomfort to the workmen.” 5 RR 163; 11 RR D-776. Asbestos fibers cannot be seen by the naked eye; they have no odor; they provide no warning upon inhalation. 4 RR 140; 5 RR 141, 143-44. Dr. Egilman testified that, in order to cause irritation, a worker would have to be exposed to “incredibly high” levels of asbestos — levels far exceeding the threshold limit value — which would be expected to result in asbestosis among workers. 5 RR 163-64. Thus, Pittsburgh Corning knew that workers were being exposed to “incredibly high” levels of asbestos from its product that were sure to cause disease but, far from warning about this danger, Pittsburgh Corning misled its customers by claiming “there are no hazardous chemicals in the dust from cutting.” 5 RR 162-64; 11 RR D-776. In fact, Unibestos was between 59 percent and 95 percent asbestos (as opposed to comparable products at the time that were generally 15 percent asbestos), making the dust released from Unibestos far more concentrated with asbestos fibers and, therefore, far more dangerous to people exposed to that dust. 5 RR 171.

A 1949 editorial in JAMA reported that there was “no safe level of exposure to asbestos.” 5 RR 150-51. And as early as 1930, Dr. Mereweather published his report that the presence of visible dust is a clear indication that exposures are too high. 5 RR 144. Dr. Egilman testified that, “in general, if you could see the dust with that product, it would be above the threshold limit.” 5 RR 199. Thus, the testimony of Mr. Virmon Arms, that he saw Mr. Walters breathing the visible dust released from the cutting of Unibestos, 5 RR 35-37, provided direct evidence that Mr. Walters was exposed to excessive levels of airborne asbestos. And Pittsburgh Corning presented absolutely no evidence that Mr. Walters was not exposed to a dangerous level of asbestos, even as “dangerous” was understood in 1962. And, despite the fact that “a manufacturer has a duty to test and inspect his product,” Borel, 493 F.2d at 1090, Pittsburgh Corning executives claimed not to have considered or investigated whether Unibestos was dangerous. 7 RR 61-62, 73, 82-83, 86-87, 91-92, 110-11, 119-20. In Borel, the Fifth Circuit decried that Pittsburgh Corning, among others, did not “ever attempt to determine whether the exposure of insulation workers or others to asbestos dust exceeded the A.C.G.I.H.’s recommended threshold limit values, or indeed, whether those standards were accurate or reliable.” Borel, 493 F.2d at 1093.

3.Pittsburgh Corning Could Have Protected with a Warning.

Pittsburgh Corning suggests that, although its Unibestos carried no warning at all, Plaintiff failed to show what warning would have been adequate. Appellant’s Br. at 39-40. But this is a showing Plaintiff did not have to make. Indeed, where a product contains no warning, it is presumed that a party would have read and heeded an adequate warning, had there been one. Magro v. Ragsdale Bros., 721 S.W.2d 832 (Tex. 1986); General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993) (reaffirming presumption generally in failure-to-warn cases, and specifically “in cases where the person injured has died and evidence of what he would have done is unavailable for that reason”).

Moreover, even if Plaintiff had to prove the matter, Pittsburgh Corning is flat wrong when it suggests that there was no evidence Mr. Walters would have benefitted from a warning had there been one. Appellant’s Br. at 39. Virmon Arms, Mr. Walters’ coworker, was also exposed to Unibestos as a bystander on a naval submarine. 5 RR 38-39. He testified that he was close enough to the Unibestos boxes to see a warning had one existed, and that he and Mr. Walters would have protected themselves had they been warned. 5 RR 38, 40.

Asbestos-related diseases such as asbestosis and mesothelioma are entirely preventable. 4 RR 114, 141; 5 RR 262; 6 RR 83-84. But Pittsburgh Corning not only failed to warn of the danger, its advertising actually encouraged unprotected and dangerous exposure to Unibestos, depicting workers using Unibestos with no respiratory protection whatsoever. 5 RR 180-81; 11 RR Egilman 8. Neither did Pittsburgh Corning provide warnings in its product catalogs or arm its sales force with information on the hazards of Unibestos. 7 RR 115-17. In fact, in August 1966, Pittsburgh Corning’s sales director insisted that “the instructions . . . about representatives avoiding discussions on medical aspects of asbestos and health must still be observed.” 7 RR 150.

The evidence was abundant that Pittsburgh Corning put no warning on its product at all. Its failure to do so is all the jury needed to find that Mr. Walters would have heeded a warning had it existed.


A.The Jury’s Determination of Damages Is Accorded Great Respect Under Texas Law.

The jury’s verdict regarding damages is accorded great respect, and “no court is free to substitute its judgment for that of the jury.” Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987). Where, as here, personal injuries are at issue, the jury has great discretion in fixing the amount of the damage award. Bundick v. Weller, 705 S.W.2d 777, 783 (Tex. App. — San Antonio 1986, no writ). In determining whether a damage award is excessive, the court must view the evidence and facts of the case in the light most favorable to the damage award. Id. The mere fact that an award is large is no indication of passion, prejudice, or improper motive on the part of the jury. Id. Thus, Texas courts have routinely upheld damages awarded in personal injury actions where the awards were supported by sufficient evidence, even where the awards were high.[19] And courts in other states have also affirmed large awards in mesothelioma cases.[20]

B.The Evidence Is More Than Sufficient to Support the Jury’s Award of Actual Damages.

Texas courts apply the sufficiency of the evidence standard to assess the alleged excessiveness of damages to ensure that “no court is free to substitute its judgment for that of the jury.” Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987); Pope v. Moore, 711 S.W.2d 622 (Tex. 1986). Applying that standard to the evidence in this case, the evidence is more than sufficient to support the damages awarded to Plaintiff.

1.The Jury’s Award of $6 Million to Mr. Walters’ Estate Was Not Excessive.

In reaching its award, the jury had much evidence to consider, none of which is touched upon by Pittsburgh Corning in its Brief. Mr. Walters was dead from mesothelioma by the time his case reached trial. But the jury saw pictures of the healthy, athletic Mr. Walters, who discovered that he had mesothelioma after a surfing accident that he believed caused the intense pain in his side. 6 RR 230; 11 RR Walters 27. And the jury saw the emaciated, breathless, grimacing man Mr. Walters became before his death. 6 RR 212; 11 RR Walters 28. Mr. Walters died when his lungs finally gave way to the pressure of the tumor and the fluid engulfing his lungs. 6 RR 33.

Before his diagnosis with mesothelioma, Mr. Walters was a vibrant, active, well-loved man. He was in excellent physical health. 6 RR 37, 42, 166, 170, 190; 11 RR Hammar 15 at 19. He was 50. 6 RR 42, 51; 11 RR Hammar 17 at 1. Mr. Walters was an avid surfer. 6 RR 103, 108, 170, 187, 190; 11 RR Yoder 22, 24. He participated in the Police Olympics for surfing, sailing and cross-country skiing. 6 RR 190. And he loved animals. 6 RR 189. Mr. Walters loved the ocean and he loved his country, choosing to serve in the Navy as his father had. 6 RR 182.

In Mr. Walters’ community newspaper, Jay La Suer, an undersheriff who knew and worked with him, offered this public tribute:

Doug was different than the majority of people you meet during the course of your career. He was a police officer children dream of being. He was calm in the face of adversity. He was courageous in the face of overwhelming odds, true to his profession and true to the belief that law enforcement’s primary goal is to protect the public. Above all, Sergeant Walters was honest.

6 RR 196; 11 RR Walters 26. Mr. Walters was the police sergeant in charge of the Lemon Grove Station — which Mr. Lee Yoder, a policeman under his command, described as a very large, violent, gang-ridden and drug-infested area. 6 RR 93-95. Mr. Yoder told the jury that Mr. Walters fought hard on behalf of crime victims and the detectives in his office, lobbying for better equipment and administration support. 6 RR 96, 98-99. He was a great motivator and patient mentor:

Doug tended to concentrate on those who needed motivation. He motivated them. He was patient. He continually counseled everybody, not just about work matters but personal matters. He was always available, always the door was open. Around the office he was always the one to say, “Hey, can I go with you on that search warrant? Can I help you on that? What can I do for you?”

6 RR 97. See also 6 RR 100. Mr. Walters was the unique sort of person who made the detectives in his station feel they worked with him rather than for him. 6 RR 94, 96. “Doug was always looking to make people better and teaching was on his mind,” according to Mr. Yoder. 6 RR 101. See also 6 RR 100-101. Mr. Walters loved his work and would have continued to work “as long as he could have.” 6 RR 194-95. The present value of his net future earnings were estimated to be $543, 223. 8 RR 151. Mr. Walters was unable to return to work after March 30, 1994, 6 RR 111, but it was hard for him to leave it behind: the last morning of his life, his detectives met in his hospital room for the final “briefing” Mr. Walters seemed to be awaiting. 6 RR 112. After he died, he was honored as the magazine front cover of The Badge was dedicated to Doug Walters. 6 RR 204. And Mrs. Walters was asked to award stripes to a detective at his promotion to sergeant as a special expression of the respect the unit felt for Mr. Walters. 6 RR 105; 11 RR Yoder 20.

It was written of Mr. Walters, “He believed that every person owed a debt to their community.” 6 RR 197. And Mr. Walters paid, with interest. The jury heard about the exceptional, and sometimes dangerous, work Mr. Walters did on behalf of his community. He received numerous commendations over his career for his Navy service and for his police and community work. 6 RR 191-92; 11 RR Walters 29. Mrs. Walters told the jury that she watched her husband on television as he rescued a flood victim and avoided sniper fire. 6 RR 192. Mr. Walters initiated “pancake breakfasts” at the station to raise money for needy families in the community. 6 RR 103. He ran in the Fighting the Night Against Crime race. 6 RR 108. And, he donated his time to the Y.M.C.A. Camp Surf Program, teaching children surfing and water safety and organizing free labor to build and repair the beach huts in which the children would stay. 6 RR 106-107. The Y.M.C.A. dedicated a particular hut on the beach to Doug Walters, to honor his contribution and remind children of the camp’s origins. 6 RR 107; 11 RR Yoder 25. But Mr. Walters reached beyond his own community as well: after a trip to San Felipe, Mexico, he organized a fund raiser to help that community’s police department and took clothing to the orphanage. 6 RR 193-94. He worked diligently to improve law enforcement in Mexico as well. 6 RR 194. Dr. William Maguire, Mr. Walters’ treating physician, noted sadly that “it is always the nicest people who get the worst diseases.” 6 RR 165-66. Mr. Walters’ last gift to the community was to donate his eyes, the only part of his body he could give after his debilitating cancer. 6 RR 198.

As much as Mr. Walters gave to his career and his community, he always put family first and encouraged others to do the same. 6 RR 109. Mrs. Walters told the jury that she knew the first love of Doug Walters’ life was his family. 6 RR 198. Mr. Yoder, Doug Walters’ friend and co-worker, testified that Mr. Walters treasured his time with his wife and family and brought in every new picture of his grandchildren to show to his co-workers. 6 RR 108-109. Mr. Yoder testified, in fact, that his friend’s example “probably saved [Mr. Yoder’s] marriage.” 6 RR 109.

Mr. Walters first went to a doctor because he was experiencing left chest pain and shortness of breath; he suspected he had broken a rib in a surfing accident. 6 RR 35-36, 157, 166, 203. Dr. Maguire testified that “it didn’t take long at all to make the diagnosis of mesothelioma” — an invariable fatal cancer of the lining of the lung. 6 RR 157, 160. A chest radiograph showed a left pleural effusion — “a collection of fluid in the chest cavity . . . that compresses the lung and makes that part of the lung nonfunctional.” 6 RR 36, 46, 161. Mr. Walters was tearful upon hearing the diagnosis and the “miserable prognosis.” 6 RR 45; 11 RR Hammar at 16. Sadly, he hoped it was an April Fool’s Day joke. 6 RR 206-207.

But mesothelioma plays no pranks. As the fluid collecting around his lung prevented Mr. Walters even from taking a breath, his doctors performed numerous thoracenteses to drain it away as it collected again and again: his doctors anesthetized his chest and inserted a large bore needle between his ribs into his chest cavity and drew out the fluid. 6 RR 37-38, 40, 160; 11 RR Hammar 15 at 7. All efforts to prevent further fluid buildup, by injection of talc and roughening of the chest wall, failed. 6 RR 41, 163-64. Over the course of his illness, several gallons of fluid were removed from Mr. Walters’ chest cavity. 6 RR 40. His doctors drained as much as three quarts of fluid from Mr. Walters’ chest cavity in a single day. 6 RR 48-49, 162; 11 RR Hammar 15 at 18. Eventually, the fluid began building so quickly that his doctors inserted a permanent chest tube to continually drain it. 6 RR 168.

Because Mr. Walters was so young and otherwise healthy, his doctors hoped to remove the cancerous tissue and extend his life. 6 RR 44-45. In March 1994, Dr. Koumjian performed a thoracotomy: the surgeon made a 10-inch incision — opening Mr. Walters “from stem to stern” — spread his ribs apart with a clamp and examined the left and central chest cavity. 6 RR 39-40, 58-59, 162-63; 11 RR Hammar 16. The surgeon discovered that the tumor had invaded so far that removal of the affected tissue throughout his left chest wall would have killed him. Id.; 11 RR Hammar 15 at 2-3. The tumor also surrounded Mr. Walters’ heart, spread through his diaphragm and invaded his abdominal cavity as well. 6 RR 43-45, 164. As Dr. Maguire put it, “It was growing like wildfire.” 6 RR 160.

When surgery was unsuccessful, Mr. Walters and his wife, wanting to try anything that might save Mr. Walters’ life, tried an experimental chemotherapy called Taxsol. 6 RR 47, 50, 208; 11 RR Hammar 15 at 7, 9, 13. It failed. 6 RR 48, 160. Yet Mr. Walters suffered horrible side effects: he lost all his hair, experienced fevers, weakness, dizziness, and dry heaves. 6 RR 47-48; 11 RR Hammar 15 at 14. The treatment caused a great deal of pain as well, forcing Mr. Walters to use both time-release and instant morphine. 6 RR 210-11; 11 RR Hammar 15 at 15. Mr. Walters incurred medical expenses of $101,473. 6 RR 51-52.

Mr. Walters became increasingly short of breath. 6 RR 46. He began to weaken and, on at least one occasion, “passed out . . . while walking,” fell and struck his left cheek bone. 6 RR 46; 11 RR Hammar 15 at 8. The inability to breathe eventually renders the mesothelioma victim bedridden, id., and near the end of his life, Mr. Walters was “totally disabled.” 6 RR 170. Dr. Maguire testified that “there’s nothing worse than not being able to breathe. That’s like torture.” 6 RR 165. Mr. Walters was on oxygen at the end of his life, but eventually he suffocated to death. 6 RR 51.

Dr. Sam Hammar testified that mesothelioma causes incredible pain as the tumor surrounds and compresses the many nerves and organs in the torso. 6 RR 43-44. Drs. Brody and Hammar both testified that mesothelioma is an extremely painful, horrible way to die. 4 RR 31, 121; 6 RR 50. Dr. Maguire explained — and Mrs. Walters concurred — that Mr. Walters experienced a “stabbing, knife-like pain” with every breath. 6 RR 158, 211. His intensified pain was met with increasing morphine, which produced the uncomfortable side affect of severe constipation. 6 RR 210-11; 6 RR 48. When Mr. Walters’ pain became “unbearable,” he was treated with a continuous intravenous infusion. 6 RR 169. Mr. Yoder visited Mr. Walters the day before he died; he was unconscious, in a morphine-induced coma. 6 RR 110-11. The last morning of Mr. Walters’ life, the morphine was twice as high, 6 RR 112-13, a bleak testament to the pain’s intensity. He died on August 15, 1994. 6 RR 165.

Defense expert Samuel Forman agreed that mesothelioma victims suffer from mental anguish. 8 RR 88. But Dr. Maguire noted that Mr. Walters was a charming man who faced his pain and illness with as much strength as he could muster. 6 RR 166. As is typical of cancer victims, Mr. Walters had difficulty initially accepting his diagnosis. 6 RR 49-50. He tried to cope through extensive reading and listening to audio tapes about positive thinking. 6 RR 50; 11 RR Hammar 15 at 9-10. Dr. Maguire testified that Mr. Walters did everything possible to “gamely fight this losing battle.” 6 RR 166.

2.The Jury’s Award to Mrs. Walters of $450,000 in Past Damages and $1.8 Million in Future Compensatory Damages for Her Loss of Consortium Was Not Excessive.

An award for loss of consortium is meant to compensate a victim’s spouse for the loss of “affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.” Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978).Determining the size of the award is within the jury’s discretion. Id. at 667; K Mart Corp. v. Rhyne, 932 S.W.2d 140, 145 (Tex. App. — Texarkana 1996, no writ).

Mrs. Walters experienced great pain and loss as well as she suffered through Mr. Walters’ illness with him. 6 RR 208. Sissy Walters was married to Doug for 16 years; he was her strength, her excitement, her support. 6 RR 184. When he was healthy, Mr. and Mrs. Walters “always did everything together,” and Mrs. Walters described her husband as her guide and her best friend. 6 RR 185-86. With him, she felt cared for, protected and supported. 6 RR 184. Doug Walters “made life exciting.” Id. But he also offered level-headed comfort at the end of each day. 6 RR 185-86. Mrs. Walters described a warm physical bond with her husband as well: she told the jury that they “always held hands” and shared “this warmth that you could always feel.” 6 RR 185. They enjoyed an active sex life. 6 RR 205. They ran and exercised together. 6 RR 188. Mr. and Mrs. Walters bought a motor home and went camping once a month, or as often as they could get away, often by the ocean Mr. Walters loved. 6 RR 187. Mrs. Walters described these trips as their “release.” Id.

The Walters married in 1978. 6 RR 184. Doug Walters fell in love with Sissy and raised her three children as if they were his own. 6 RR 179-80, 183.[21] Mr. Walters bought braces for her youngest child even before he married Sissy. 6 RR 183. When the children were grown, the Walters continued to spend a great deal of time with their extended family, having “some kind of get together with the whole family” at least every two weeks. 6 RR 186. Mr. and Mrs. Walters often bicycled together down by the ocean, stopping for dinner with their children. 6 RR 189.

But after Mr. Walters’ diagnosis, Mrs. Walters had to become the caretaker, the protector. Doug Walters was no longer able to join in household tasks. 6 RR 170. Sissy Walters stopped working and stayed with her husband every moment until his death, holding his hand during many medical procedures. 6 RR 206. Mrs. Walters described this period as a hellish nightmare from which she could not wake. 6 RR 208, 227. When Mr. Walters could no longer sleep in bed, the Walters bought a recliner for him to sleep in, and Mrs. Walters slept on the sofa right next to him — for four-and-a-half months. 6 RR 226. Doug Walters himself said, “When you have cancer, you are not in this by yourself . . . We both have cancer, not just me.” Id. Mr. Walters’ doctors repeatedly described Mrs. Walters as “very concerned and supportive” as Mr. Walters endured his debilitating illness. 6 RR 45, 49; 11 RR Hammar 15 at 9, 17. Dr. Maguire discussed all aspects of Mr. Walters’ illness with him and his wife, and testified plainly about how painful and difficult these conversations were for everyone. 6 RR 165.

Mr. Yoder testified how deeply affected Sissy Walters was by the loss of her husband at such a young age, even though Mrs. Walters is remarkably strong. 6 RR 109-10. She described it as the worst thing that ever happened to her: “They stole my husband away from me and I can never get him back.” 6 RR 227. To hold on to her husband, even now, Mrs. Walters returns to restaurants and camping sites they visited together. 6 RR 110. And she planned a trip to Padre Island, the trip she and Doug discussed but were never able to take together. 6 RR 110, 187-88. The jury’s award was a reasonable attempt to compensate Sissy Walters for her immeasurable loss.

3.The Jury’s Awards to Both Richard and Arlene Walters of $67,500 in Past Damages and $85,000 in Future Damages Was Not Excessive.

Mr. Walters’ parents were also entitled to compensation for their loss of the companionship and society of their son. See Moore v. Lillebo, 722 S.W.2d 683, 686 (Tex. 1986). Mr. Walters’ parents relied so heavily on their son, that upon hearing the diagnosis, Mrs. Walters’ first fear was the need to tell his parents this terrible news. 6 RR 205.

Because he was an only child, Mr. Walters’ parents depended entirely on their son for the substantial support they needed due to age and poor health. 6 RR 202-203. Mr. Walters’ mother suffers from emphysema, chronic obstructive pulmonary disease, and frequent bronchitis, and requires 24-hour-a-day oxygen. 6 RR 202. Mr. Walters worked regularly in his parents’ yard and around their home, offering them his labor as well as his companionship and emotional support. 6 RR 202-203. And, again, because Mr. Walters was an only child, his death left his parents with no other family at all: “What greater pain can mortals feel than this: To see their children dead before their eyes?”[22]

  1. Pittsburgh Corning Corporation was the sole Defendant below and is referred to either as “Pittsburgh Corning” or “Defendant.”
  2. Non-jurisdictional (i.e. preliminary) motions must be disposed-of prior to the beginning of trial, or at the pre-trial conference if there is one, or such motions are waived. See Garcia v. Texas Employers’ Ins. Ass’n, 622 S.W.2d 626, 633 n.3 (Tex. App. — Amarillo 1981, writ ref’d n.r.e.); Tex. R. Civ. P. 175. See also Miller v. Stout, 706 S.W.2d 785, 787-88 (Tex. App. — San Antonio 1986, no writ) (setting forth some examples of preliminary, non-jurisdictional motions).
  3. Moreover, even if the trial court should have applied Virginia law, application of Virginia law as set out in Plaintiff’s motion of March 1996 would not affect the outcome of the case and does not require reversal. See 3 CR 635-40.
  4. Non-jurisdictional (i.e. preliminary) motions must be disposed-of prior to the beginning of trial, or at the pre-trial conference if there is one, or such motions are waived. See, supra, note 2. Again, Appellant did not even inform the trial court of its judicial notice motions at the scheduled pre-trial conference on May 16. See discussion, supra, at 5 n.2.
  5. In its Motion for New Trial, Defendant also argued particular aspects of Virginia law. 10 CR 2053-54.
  6. Pittsburgh Corning manufactured its defective asbestos-containing products right here in Texas, and developed its knowledge of the hazards of asbestos largely in Texas. See 2 RR 47-48.
  7. Indeed, if out-of-state plaintiffs do not have standing to bring wrongful death or survival actions in Texas, the legislature could not reasonably have decided that a forum non conveniens statute was needed to deal with the “thousands upon thousands” of personal injury and wrongful death claims pending in Texas for the injuries and deaths of out-of-state residents. See Transcription of “Senate Session Dup Tape” concerning Senate Bill 220, 3/18/97, tape 1 of 2, at 3-4 (attached as Appendix A). Appellee respectfully requests that the Court take judicial notice of the transcript pursuant to Tex. R. Evid. 201.
  8. See, e.g., Strach v. St. John Hosp. Corp., 408 N.W. 441, 453 (Mich. App. 1987) (“day in the life” videotape of Plaintiff showing mobility problems associated with Plaintiff’s paralysis offered to illustrate Plaintiff’s testimony regarding daily activities after alleged malpractice not hearsay because not offered to prove the truth of the matter asserted); Arnold v. Burlington Northern R.R. Co., 748 P.2d 174, 176 (Or. App. 1988) (videotape of Plaintiff performing representative daily activities offered as demonstrative evidence to illustrate and supplement Plaintiff’s testimony not hearsay).
  9. Contrary to Appellant’s suggestion, Appellant’s Br. at 20 n.33, Plaintiff did argue at trial that the videotape was not hearsay because it was not being offered for the truth of the matter asserted. 6 RR 213-14, 225.
  10. Owens-Corning Fiberglas Corp. v. Wasiak, 917 S.W.2d 883, 894 (Tex. App. — Austin 1996), aff’d, 972 S.W.2d 35 (Tex. 1998) (admission of video scrapbook was harmless because it was cumulative of photographs and wife’s testimony); Keene Corp. v. Rogers, 863 S.W.2d 168, 179 (Tex. App. — Texarkana 1993, no writ) (erroneous admission of videotape deposition was harmless because it was cumulative of other evidence). See also Texas Dep’t of Human Serv. v. White, 817 S.W.2d 62, 63 (Tex. 1991) (even if admission of arguably prejudicial photograph was error, to obtain reversal based on admission of evidence, appellant must show that error amounted to such a denial of rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment).
  11. Nor does Pittsburgh Corning contest that Plaintiff’s counsel presented each witness with the proper definition of “unreasonably dangerous” as a predicate for his opinion. 4 RR 127, 129 (Dr. Brody); 5 RR 191 (Dr. Egilman); 6 RR 56 (Dr. Hammar); 6 RR 171 (Dr. Maguire).
  12. The jury’s finding that Pittsburgh Corning was grossly negligent was significant only as a predicate to any award of punitive damages. The jury declined to award punitive damages in this case, however, and any testimony regarding gross negligence was thus manifestly harmless. This discussion, therefore, is limited to Dr. Egilman’s testimony concerning Pittsburgh Corning’s negligence, although Dr. Egilman’s experience and expertise qualified him to address both negligence and gross negligence.
  13. On appeal, Appellant apparently has abandoned its objection to the document as cumulative.
  14. See 5 RR 14, 17.
  15. Dr. Gaze specifically remembered talking to Mr. Russell Brittingham (Pittsburgh Corning president), Mr. Robert Buckley (Pittsburgh Corning vice-president of sales), Mr. Carl Baumler (Pittsburgh Corning vice-president of manufacturing) and Dr. D’Eustacio (Pittsburgh Corning research director), and Mr. Frank Maston. 5 RR 11. See also 5 RR 84 (identifying positions held by these Pittsburgh Corning executives).
  16. See 5 RR 87.
  17. The report was distributed to Russell Brittingham (president of Pittsburgh Corning), Bryl Stout (Pittsburgh Corning’s vice president of manufacturing), Mr. Gregory (Pittsburgh Corning’s technical director), and Larry Griffith (Mr. Francis supervisor). 5 RR 94.
  18. Dr. Forman admitted that he knows nothing about the actual knowledge of Pittsburgh Corning. 8 RR 25, 84-85, 87.
  19. See, e.g., Ford Motor Co. v. Cammack, — S.W.2d —, 1998 WL 740901 (Tex. App. — Houston. [14th Dist.] Sept. 3, 1998) (slip copy) (upholding a verdict of $5.5 million in a single plaintiff wrongful death case based on products liability); Rehabilitation Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151 (Tex. App. — Austin 1998, no writ) (upholding $1.25 million compensatory damage award to 71-year-old woman with limited mobility whose legs were broken in transport from bed to wheelchair); Harris v. Balderas, 949 S.W.2d 42 (Tex. App. — San Antonio 1997, no writ) (holding $4 million compensatory damage award to car accident victim not excessive); White v. Sullins, 917 S.W.2d 158 (Tex. App. — Beaumont 1996, writ denied) (upholding $1.9 million in compensatory damages and $5 million in punitive damages against an intoxicated motorist who struck and injured a police officer); Bundick v. Weller, 705 S.W.2d 777 (Tex. App. — San Antonio 1986, no writ) (holding that a $4.8 million jury verdict for a shooting victim was not excessive). Cf. Miles v. Ford Motor Co., 922 S.W.2d 572 (Tex. App. — Texarkana 1996), aff’d in part and rev’d on other grounds, 967 S.W.2d 377 (Tex. 1998) ($30 million compensatory damages in a personal injury products liability case, upheld on liability issues without challenge to amount of damages).
  20. See, e.g., Ford Motor Co. v. Wood, 703 A.2d 1315 (Md. App.), cert. denied, 709 A.2d 139 (Md. 1998) (affirming a verdict of over $8 million for a wrongful death caused by mesothelioma due to asbestos exposure).
  21. Sissy Walters had one son and two daughters from her first marriage. 6 RR 179.
  22. Euripides, The Suppliant Women 1120 (422 B.C.).