Disputed Issues of Fact and Law

This case is in its post-judgment, pre-appellate phase. On August 28, 2001, after a three-week trial, the jury returned a verdict awarding compensatory damages to the Hernandez family from Kelly-Moore in the amount of 40,515,000 and punitive damages to Alfredo Hernandez, Jr. in the amount of $15,000,000. The specific jury awards to each plaintiff are set forth in Exhibit A to this Memorandum. After reducing the compensatory awards by the amount of settlements received by the Hernandez family, applying the statutory punitive damages cap, and adding prejudgment interest, the trial court entered judgment on the jury verdict on September 21, 2001.

Thus, plaintiffs now have, and Kelly-Moore is now liable on, a judgment awarding the Hernandez family a total of $40,950,383.56 in compensatory damages and $2,750,000 in punitive damages (for a total award of $43,700,383.56), with post-judgment interest running on that amount at an annual rate of ten percent. Kelly-Moore has filed a motion to disregard jury findings and for judgment notwithstanding the verdict and a motion for new trial or remittitur. These motions will be scheduled for hearing should the parties’ attempt to resolve this matter through mediation prove unsuccessful.

Kelly-Moore’s motion for new trial or remittitur lists 46 specific grounds for relief, and its motion to disregard jury findings attacks each of the 32 jury findings. Plaintiffs cannot reliably predict which of the many complaints that Kelly-Moore has identified in its motions will be emphasized by the company in the argument on post-trial motions or later in the appellate process. From the arguments advanced in Kelly-Moore’s post-trial motions, however, plaintiffs anticipate that the following disputes will be issues on appeal:

  1. Whether the Compensatory Damages Are Excessive.
  2. Whether the Evidence Supports the Jury’s Finding of Gross Negligence and the Assessment of Punitive Damages.
  3. Whether the Trial Court Committed Reversible Error in Excluding the Testimony of Certain Improperly Designated Witnesses.
  4. Whether Any Alleged Error in Jury Selection Was Properly Preserved for Review and Warrants a New Trial.
  5. Whether the Evidence Supports the Jury’s Findings of Breach of Duty and Causation.

Concise Settlement of Points


Kelly Moore has complained in its post-trial motions that the compensatory damages awarded to the Hernandez family for Mr. Hernandez’s terminal illness are “excessive” and “unjustified” when compared to other allegedly similar cases. There is no doubt that the grand total of the damages awarded in the judgment is large. . Viewed individually, though, the awards to each plaintiff are not striking. It is only in the aggregate that the verdict seems unusually large. But the evidence of Mr. Hernandez’s severe and prolonged suffering is unique in Texas caselaw, and fully supports the awards to each plaintiff.

The principal plaintiff is Alfredo Hernandez, a 47 year-old resident of El Paso, Texas. Mr. Hernandez lives with his wife, Elizabeth, and his 9 year-old son, Jaime. He also has a 14 year old daughter, Amy, who lives with his ex-wife, a 21 year-old son, Alfredo, Jr., and a 25 year-old daughter, Isleta. Mr. Hernandez was diagnosed with malignant mesothelioma in July of 2000. Mesothelioma is a cancer of the lining of the lung (not of the lung itself) that is invariably associated with prior asbestos exposure. There is no known cure for mesothelioma, and medical doctors consider the disease to be invariably fatal. In Mr. Hernandez’s case, though, because of his young age and his minor children, his doctors opted for an unusually aggressive approach in responding to his condition. In September of 2000, surgeons performed a right thoracotomy and a right pleural intrapericardial pneumonectomy. In other words, they opened up his chest and stripped the lining from his right lung. Because the tumor had also invaded the lining of his heart, they also removed part of the heart lining. In the process, they had to remove one of his ribs. After his surgery, he began radiation treatments at M.D. Anderson Hospital. He received radiation every day in a six week period. The doctors implemented this aggressive treatment not to cure him of the disease, but to increase his life expectency, which they now estimate to be three years. Mr. Hernandez cannot work, takes pain medication three times a day, and uses supplemental oxygen when moving about the house.

In its motion for new trial, Kelly Moore compares the award in this case to an $8.8 million award to the widow of a mesothelioma victim in Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 780 (Tex. App. – Corpus Christi 1999, pet. denied), to an award of $100,000 to Harris County Hosp. Dist. v. Estrada, 872 S.W.2d 759, 764 (Tex. App. – Houston [1st Dist.] 1993, writ denied) and to a $2 award reduced to $300,000 in Ford Motor Co. v. Durrill, 714 S.W.2d 329, 344-46 (Tex. App. – Corpus Christi 1986, judgm’t vacated by agr., 754 S.W.2d 646 (Tex. 1988). But there are glaring differences between the cases that Kelly Moore cites and this one. In Walters, for example, the decedent left a wife but no children, and died just a few months after contracting the disease. In contrast, Mr. Hernandez has four children, and will likely experience three to four years of physical pain and mental anguish. Estrada involved an award by a judge in a case governed by the cap on damages in the Texas Tort Claims Act. And in Durrill (a rather old case for this type of comparison), the reduction cited by Kelly Moore was on awards for wrongful death (loss of pecuniary and social support), not the award for the decedent’s pain and suffering. The court in Durrill authorized an award of $1.7 for the decedent’s seven and a half days of pain and suffering, and ultimately approved a total award, including punitive damages, of over $12.3 million.

Other reported cases involving catastrophic injuries indicate that the awards of compensatory damages in this case are not nearly as unusual, or as vulnerable on appeal, as Kelly Moore suggests. See, e.g., Torrington Co. v. Stutzman, (upholding a total award of $80 million, including $35 million in compensatory damages and $50 million in punitive damages, to the families of two Marines killed in a helicopter crash); General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, cert. dism’d, 510 U.S. 985 (1993) (approving total award of $22 million, including $14 million in compensatory damages, to family of two brothers killed by exposure to “shrimp dip”); 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 award to victim of automobile accident in product liability case against car manufacturer; amount of award not challenged); Atchison, Topeka & Santa Fe Ry. Co. v. Cruz, 9 S.W.3d 173 (Tex. App.– El Paso 1999, pet. granted and judgment vacated pursuant to settlement) ($16.5 million compensatory award affirmed to survivors of husband, wife, and child killed in railroad crossing accident; $44 million punitive award vacated because of lack of evidence of malice). None of these cases with large awards involves the type of extended physical and mental suffering that Mr. Hernandez has experienced, and will continue to experience, as a result of the defendant’s conduct.

Most important, the awards in this case are fully supported by the evidence. Mr. Hernandez has undergone the pain and disfigurement of have his lung and part of his heart stripped of its lining. Although the surgical procedure will likely prolong his life, it will also prolong the period of his unimaginable pain and of his anguish in the knowledge that he has a terminal disease and will leave behind a young wife and child. Viewed in this context, the awards ranging between $3 and $4 million for past and future pain and suffering and physical disfigurement are not “unjustified.” The awards for loss of household services and consortium to Mrs. Hernandez are not in themselves eye-catching and are properly proportioned between past and future damages. Similarly, the awards to each of the four Hernandez children are not unreasonably high – they simply add up. Kelly Moore complains that the awards to two of the children cannot stand because those children did not testify, but there is no requirement that proof of loss of consortium be supplied by the person that suffered the loss. Their loss was amply demonstrated by the other members of the Hernandez family. Kelly-Moore also argues that the awards to the children are “arbitrary” because they were identical. The jury, though, could reasonably find that over the course of a lifetime, the loss of support sustained by each child is essentially the same. Finally, Kelly Moore argues that the award of future medical expenses cannot stand, because the physician that provided the evidence of the cost of future medical treatment was not licensed in Texas and was supposedly “unfamiliar with the reasonable and necessary charges in this community. This contention is belied by the evidence. Dr. Battifora is a national expert on mesothelioma, and is familiar on the costs of treating the disease throughout the country, including Houston and El Paso. Mr. Hernandez himself received much of his treatment in Houston, not El Paso. The cost of treating mesothelioma is a national issue, and Dr. Battifora was unquestionably qualified to express an opinion on the subject.

Although the awards viewed collectively are large, there is no specific legal basis to set them aside or reduce them. All awards of unliquidated damages are potentially vulnerable to remittitur; we believe that remittitur would be inappropriate in this case.


Kelly Moore argues in its post-trial motions that the evidence is legally and factually insufficient under Louisiana Pacific Corp. v. Andrade, 19 S.W.3d 245, 248 (Tex. 1999) to support the jury’s finding that the company acted with malice, and that therefore the punitive damage award of $2,750,000 should be eliminated in this case. In Andrade, the plaintiff did not produce evidence that the defendant’s personnel “were subjectively aware of or consciously indifferent to the risk of injury to Andrade created by the electrified crane.” Id. at 248. In contrast, in this case the Hernandez’s produced evidence that Kelly Moore had actual, subjective knowledge of the dangers associated with its product but continued to market the product despite this knowledge – even after the product had been banned in some states. This case is more like Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 924-25 (Tex. 1998), in which the Texas Supreme Court upheld a jury finding of gross negligence based on evidence that the decedent’s employer had actual awareness that benzene exposure presented an extreme risk of harm to workers like the decedent, but proceeded with “conscious indifference” regarding the risk. The award of punitive damages, which was reduced pursuant to statute, should not be vulnerable on appeal.


Kelly Moore complains that the trial court excluded testimony from two of Kelly Moore’s proposed witnesses based on a “hypertechnical reading” of Kelly Moore’s discovery designations. Judge Alvarez, however, gave painstaking consideration to these matters and concluded that Kelly Moore’s discovery designations were, in fact, deficient, did not give plaintiffs adequate notice of the subjects on which Kelly Moore sought testimony, and prejudiced plaintiffs. Judge Alvarez’s decisions were discretionary and are not subject to searching review. Similarly, Judge Alvarez’s exclusion of the testimony of the Huertas was entirely justified because these witnesses were not timely designated prior to trial, although Kelly Moore had ample opportunity to do so. Finally, the exclusion of the evidence of the Huertas’ lack of knowledge of the circumstances of Mr. Hernandez’s exposure to Kelly Moore’s products cannot possibly be harmful, reversible error.


In its post-trial motion, Kelly Moore argues that jurors who “might have been neutral or favorable to the defense” were excused from the jury under an improperly “liberal” standard of economic hardship applied by the court, adding that plaintiffs’ counsel willfully misrepresented the probable length of trial in voir dire as three weeks in order to “stack” the jury with jurors favorable to the plaintiffs. Plaintiffs believe that the standard used by the trial court was correct; that Kelly Moore failed to object and preserve error with respect to the excusal from service of any particular prospective juror; and that Kelly Moore will in no event be able to show harm from the alleged error on appeal. And this trial did take three weeks; plaintiffs’ counsel did not misrepresent the probable length of trial in voir dire.


Kelly Moore argues that the evidence is factually and legally insufficient to establish that its asbestos-containing product was negligence, because its product bore warnings that had been approved by OSHA and because Mr. Hernandez did not read the warning. But Kelly Moore is wrong on both the facts and the law. The evidence did not conclusively establish that Kelly Moore put an OSHA-approved warning on the product; although a Kelly Moore executive testified that the product had such a warning, his credibility was seriously challenged on cross-examination. Plaintiffs introduced a letter from the company that made the bags for the product indicating that the company could not determine when such a warning was placed on the product, and the only pictures of the product admitted into evidence did not show a warning on the product. Even if Kelly Moore had introduced evidence that its product bore an OSHA-approved warning, such evidence does not conclusively establish that the product is not defective. Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex. 1978); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 688 (Tex. App. – Texarkana 1991, writ denied), cert. denied, 508 U.S. 909 (1993). And because the plaintiffs challenge the visibility and placement of the alleged warning, the fact that Mr. Hernandez did not recall a warning on the product does not contradict, but rather supports, the jury’s finding of causation. See, e.g., General Motors Corp. v. Saenz, 873 S.W.2d 353, 360 (Tex. 1993) (“If GM’s warning against overloading in this case were not sufficiently prominent, plaintiffs would be entitled to the presumption that reasonable notice would have been heeded.”).