PLAINTIFF’S RESPONSE TO AMENDED MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, MUNDY INDUSTRIAL MAINTENANCE, INC., MUNDY SERVICE CORPORATION, MUNDY INDUSTRIAL CONTRACTORS, INC. AND MUNDY INDUSTRIAL SERVICE, INC.
Plaintiff Janette D. Goodman, Individually and as Wrongful Death Beneficiary, and as Personal Representative of the Estate, and on Behalf of All Wrongful Death Beneficiaries of Kenneth Hugh Goodman, Deceased, (“Plaintiff”) files this Response in opposition to the Amended Motion for Summary Judgment filed by Defendants Mundy Industrial Maintenance, Inc., Mundy Service Corporation, Mundy Industrial Contractors, Inc. and Mundy Industrial Service Inc. (“Defendant” or “Mundy”), and would respectfully show the Court as follows:
Decedent Kenneth Goodman was a 40-year employee of Exxon Mobil Corporation at its oil refinery in Baytown, Texas. Defendant Mundy was a general contractor hired by Exxon to perform construction and repair work at the oil refinery. During this construction work, Mundy used, installed, and removed various types of asbestos-containing products, including pipe insulation, in Mr. Goodman’s presence. As a result of exposure to asbestos, Mr. Goodman developed and died from mesothelioma, a rare and fatal form of cancer primarily caused by asbestos exposure. Plaintiff, Mr. Goodman’s widow, has brought negligence and gross negligence/malice claims against Mundy based on its activities at Exxon Baytown that exposed Mr. Goodman to asbestos-containing dust.
Mundy has moved for a no-evidence summary judgment, claiming that there is no evidence to support Plaintiff’s claims for negligence, gross negligence and malice, strict liability, fraud or misrepresentation, concert-of-action, and breach of warranty. However, Plaintiff did not bring most of these claims against Mundy, as shown in the Fifth Amended Asbestos Petition attached as Exhibit 1 to Mundy’s summary judgment motion. Plaintiff has only brought claims against Mundy for negligence, gross negligence and malice, and joint and several liability.
Regarding Plaintiff’s negligence cause of action, Mundy moves for summary on the grounds that it did not owe a duty to Mr. Goodman and there is no evidence that its activities harmed Mr. Goodman or were a substantial factor in causing his injuries. Contrary to these claims, Mundy had a duty not to injure Exxon workers, such as Mr. Goodman, and the evidence shows that this duty was breached when Mundy exposed Mr. Goodman to a variety of asbestos-containing products, including Kaylo and Unibestos brand pipe insulation. Further, there is medical evidence in this case that Mr. Goodman’s exposure to asbestos-containing products used by Mundy was a substantial contributing factor to his development of mesothelioma.
Regarding Mundy’s gross negligence and malice, Plaintiff’s evidence raises a genuine issue of material fact that asbestos objectively posed an extreme risk of harm to Mr. Goodman and that Mundy subjectively knew or should have known of the dangers posed by exposure to dust from asbestos-containing products. Plaintiff will also show that Mundy is jointly and severally liable to Plaintiff because it contributed to causing an indivisible injury to Mr. Goodman.
Mundy also moves for a traditional summary judgment, apparently challenging the elements of duty, knowledge and causation. In this regard Mundy generally cites sections of Mr. Goodman’s testimony without any explanation of how that evidence has any bearing on the claims brought against Mundy. The only other evidence relied on is an affidavit by Mundy’s corporate representative, but again there is no application of this evidence to any law applicable in this case. Mundy has therefore failed to meet its burden of demonstrating that the evidence in this case negates one or more of the elements of Plaintiff’s claims. Moreover, Plaintiff has raised genuine issues of material fact on each element of its claims against Mundy.
Finally, Mundy asserts the affirmative defense that the Texas statute of repose bars suit against it. However, under Texas law the statute of repose does not apply here because Mundy exposed Mr. Goodman to asbestos-containing products during its construction activities and before those products were annexed to an improvement to real property. See Brown & Root, Inc. v. Shelton, No. 12-01-00259-CV, 2003 Tex. App. LEXIS 6642, at *20 (Tex. App.–Tyler July 31, 2003, no pet.) (not designated for publication); White v. CBS Corp., 996 S.W.2d 920, 925 (Tex. App. – Austin 1999, pet. denied).
For the foregoing reasons, Mundy’s no-evidence and traditional summary judgment motions should be denied in their entirety.
STATEMENT OF INTENT TO USE SUMMARY JUDGMENT EVIDENCE
Exhibit 1:Excerpts of the Deposition of Kenneth Goodman, taken herein on March 26, 2004;
Exhibit 2:Defendant’s, Mundy Industrial Maintenance, Inc., Second Supplemental Answers to Plaintiff’s Master Specific Interrogatories to Contractor Defendants, produced herein on Jan. 17, 2007;
Exhibit 3:Excerpts of the Deposition of Albert Benjamin Ramsey, taken herein on May 21, 2007;
Exhibit 4:Affidavit of Todd Kale, June 8, 2007, with attached exhibits:
Exhibit A:Excerpts from Contract between Mundy Construction Company and Humble Oil & Refining Company, Aug. 12, 1966;
Exhibit B:Excerpts from Contract between Mundy and Humble Oil & Refining Co., Oct. 6, 1972;
Exhibit C:Excerpts from Mundy’s Health Hazard Compliance Program for Asbestos, May 2, 1977;
Exhibit 5:Unibestos brochure published by Pittsburgh Corning Corporation, July 1962, attached as exhibit 4 to the Deposition of Robert E. Buckley, Sept. 26, 1983, taken in Frey v. Fibreboard Corp., United States District Court, Western District of Texas, No. 79-CA-183;
Exhibit 6:Excerpts of Asbestos: Publication of Identifying Information, 55 Fed. Reg. 5144 (Feb. 13, 1990);
Exhibit 7:Excerpts of the Deposition of Victor L. Roggli, M.D., taken herein on September 7, 2006, including the following exhibits attached thereto: Curriculum Vitae of Victor L. Roggli, M.D., attached as exhibit 1; Report of Victor L. Roggli, M.D., Feb. 8, 2005, and Report of Dr. Stephen Swisher, October 20, 2003, attached as exhibit 2;
Exhibit 8:Death Certificate of Kenneth Hugh Goodman, issued May 23, 2005;
Exhibit 9:Excerpts of the Deposition of Dr. Ronald Dodson, taken herein on September 13, 2006, including the following exhibits thereto: Curriculum Vitae of Ronald F. Dodson, Ph.D., attached as exhibit 2; Report of Dr. Ronald Dodson, Aug. 27, 2005;
Exhibit 10:Affidavit of Richard A. Lemen, Ph.D., April 19, 2004, and excerpts of exhibit B attached thereto: Asbestos Timetables–A Guide for Policymakers by Richard A. Lemen, Ph.D.;
Exhibit 11:Tex. Rev. Civ. Stat. Ann. art. 8306, §§ 20 and 26(a) (1948);
Exhibit 12:Excerpts of Occupational Health Regulation No. 3 of the Texas State Department
of Health (Effective July 1, 1958);
Exhibit 13:Emergency Standard for Exposure to Asbestos Dust, 36 Fed. Reg. 234 (Dec. 7, 1971);
Exhibit 14:Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 110 (June 7, 1972);
Exhibit 15:Defendant’s, Mundy Industrial Maintenance, Inc., Second Amended Answers to Plaintiff’s Master General Interrogatories, produced herein on Oct. 13, 2006;
Exhibit 16:Excerpts from National Safety Congress Transactions, 1972, Vol. 13, Labor Safety; and
Exhibit 17:Excerpts from National Safety Congress Transactions, 1970, Vol. 13, Labor Safety.
MUNDY’S NO-EVIDENCE MOTION SHOULD BE DENIED.
Summary Judgment Standard
A no-evidence motion for summary judgment should not be granted if the respondent brings forth “more than a scintilla of probative evidence to raise a genuine issue of material fact.” Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists if the evidence “as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). In order “[t]o defeat a motion made under [Rule 166a(i)], the non-movant is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex R. Civ. P. 166a(i), Comment. As long as Plaintiff raises a fact issue, she is not required to prove she would prevail at a trial on the merits. See Greene v. Thiet, 846 S.W.2d 26, 33 (Tex. App. – San Antonio 1992, writ denied); Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex. App. – Dallas 1980, no writ).
The general requirements of summary judgment practice govern the consideration of a no-evidence motion. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.–Houston [1st Dist.] 1999, no pet.). When reviewing a motion for summary judgment the court should view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. See id.; Morgan v. Anthony, 27 S.W.3d 928, 930 (Tex. 2000); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Keszler v. Mem’l Med. Ctr. of E. Tex., 105 S.W.3d 122, 125 (Tex. App.—Corpus Christi 2003, no pet.).
The Summary Judgment Evidence Raises Genuine Issues of Material Fact Regarding the Duty, Breach, and Causation Elements of Plaintiff’s Negligence Claim Against Mundy.
Mundy’s no-evidence motion for summary judgment on Plaintiff’s negligence claim should be denied because as a matter of law Mundy owed a duty not to injure Mr. Goodman through its construction work. Moreover, the evidence as a whole would permit a reasonable jury to conclude that (1) Mr. Goodman was exposed to asbestos-containing pipe insulation used by Mundy employees at the Exxon Baytown oil refinery, and (2) this exposure caused or substantially contributed to Mr. Goodman’s mesothelioma.
From December 19, 1946 until his retirement on August 15, 1986, Mr. Goodman worked at the Exxon oil refinery in Baytown, Texas. See Deposition of Kenneth Hugh Goodman, March 26, 2004, (“Goodman Depo.”), at 15:21-16:23, attached hereto as Exhibit 1. The Baytown refinery is a large facility powered by steam that is generated by boilers and transported to the various units by miles of steam pipes. See id. at 23:7-24:1. The steam pipes are insulated with pipe covering that must be removed and re-installed when repairs are performed. See id. at 25:24-26:25.
Over the course of his career, Mr. Goodman worked all over the Baytown refinery. His initially worked with blueprints, and then he was consecutively assigned to the tank farm, the sheet metal department, the labor department and the boilermaker department. See id. at 18:2-19:20. In 1972, Mr. Goodman became a supervisor. See id. at 20:5-11. As a supervisor, Mr. Goodman walked through the units in order to oversee the work that was being performed. See id. at 22:11-17, 125:5-23. He often supervised workers on turnarounds, which is a process where a unit is overhauled by tearing out and replacing the pipe and insulation. See id. at 25:7-16.
During his entire tenure as a supervisor at Exxon, Mr. Goodman worked around Mundy employees who used asbestos-containing products in their construction and repair work. See id. at 59:13-60:9, 76:7-78:25, 175:18-176:15. Mr. Goodman recognized Mundy employees because they wore hats with the company’s logo. See id. at 77:24-78:5. The first time he recalls working around Mundy was in the early 1970s, when he started as a supervisor. See id. at 171:7-22, 194:17-195:2. Thereafter, Mr. Goodman supervised Mundy employees on almost all the unit turnarounds at Exxon from the early 1970s through the mid-1980s. See id. at 76:17-24, 171:11-17, 175:18-176:1. This testimony is consistent with Mundy’s admission that Mundy Construction Company worked short-term turnarounds at Exxon from 1966-1984. See Defendant’s, Mundy Industrial Maintenance, Inc., Second Supplemental Answers to Plaintiff’s Master Specific Interrogatories to Contractor Defendants, Jan. 17, 2007, at 4, attached hereto as Exhibit 2.
- Mundy Owed a Duty of Care to Mr. Goodman.
Contrary to Mundy’s contention that it did not owe a duty to Mr. Goodman, Mundy is liable for injuries caused by its own activities. A contractor has an independent duty under Texas law not to injure bystanders by its activities, including other workers in the vicinity. See In re Weekly Homes, L.P., 180 S.W.3d 127, 132 (Tex. 2005); Brown & Root, Inc. v. Moore, 92 S.W.3d 848, 853 (Tex. App. – Texarkana 2002, pet. denied). Specifically, a contractor is liable if its work installing or disturbing asbestos-containing insulation injuries the employees of the premises owner. See Moore, 92 S.W.3d at 853. This liability flows from the general rule that a general contractor may be liable for injuries arising from either a premises defect or from its activity on the premises. Clayton W. Williams, Jr., Inc. v. Olivio, 952 S.W.2d 523, 527 (Tex.1997); see also Restatement (Second) of Torts §§ 383-85 (a contractor working on the property at the direction or consent of the property’s possessor is subject to liability for injuries it causes as though it were the possessor.) As here, a contractor is liable for negligent activity when injuries are sustained by or as a contemporaneous result of the activity itself. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985).
Mundy’s corporate representative, Albert Benjamin Ramsey, openly acknowledged Mundy’s duty not to injure Exxon’s employees while performing work on Exxon’s premises. Mr. Ramsey testified on this point as follows:
Q:Sir, you’d agree with me that Mundy or Mundy employees certainly had the responsibility to work with due care with the use of asbestos or asbestos-containing products in order not to expose plant employees to those sorts of activities created or potentially created by Mundy employees?
A:Yes, sir, we’d expect the same in return from – from the owner employees.
- And would you agree with me that Mundy had to take reasonable steps in the decade [sic] of 1960s and 1970s in order to protect or to not expose via its activities plant employees?
A: Yes, sir, I would agree with that.
Deposition of Albert Benjamin Ramsey, May 21, 2007, (“Ramsey Depo.”), 158:7-14, 236:21-25, excerpts attached hereto as Exhibit 3.
Not only did Mundy have a duty not to injure Mr. Goodman under Texas law, Mundy also contractually assumed a duty to indemnify Exxon for any injuries caused to Exxon’s employees as a result of Mundy’s willful or negligent acts. The contract between Mundy Construction and Humble Oil and Refining Company (now known as Exxon) provided that Mundy “agrees to indemnify and hold Humble harmless form all claims, actions, demands, loss and causes of action arising . . . From (a) injuries to or deaths of persons, including employees and representatives of Humble, which result in whole or in part from the willful acts or negligence of [Mundy], its employees, agents, or subcontractors . . . .” Contract between Mundy Construction Company and Humble Oil & Refining Company, Aug. 12, 1966, (“1966 Contract”), at 2, excerpts attached as Exhibit A to Affidavit of Todd Kale, June 8, 2007, (“Kale Affidavit”), attached hereto as Exhibit 4. This provision demonstrates that Mundy agreed to and was aware that liability would arise from any injuries it caused to Exxon’s employees through its work at the Exxon Baytown facility. Mundy’s corporate representative testified that Mundy stands by the contractual indemnity provisions it signed with Exxon. See Ramsey Depo. at 135:13-136:15 (Exhibit 3).
Thus, by operation of law, as well as Mundy’s contract with Exxon, Mundy had a duty not to injure Mr. Goodman through its construction activities on Exxon’s premises. See Weekly Homes,180 S.W.3d at 132; Williams, 952 S.W.2d at 527; Keetch, 845 S.W.2d at 264; Redinger, 689 S.W.2d at 417. Mundy’s duty to Exxon’s employees specifically included protecting Mr. Goodman from injuries due to Mundy’s work with asbestos-containing products. See Moore, 92 S.W.3d at 853.
2. Mundy Exposed Mr. Goodman to Asbestos-Containing Products.
Mundy breached its duty to Mr. Goodman by exposing him to dust from asbestos-containing products. Mr. Goodman supervised Mundy employees on almost all the unit turnarounds at Exxon from the early 1970s through the mid-1980s. See Goodman Depo. at 76:17-24, 171:11-17, 175:18-176:1 (Exhibit 1). This work brought him in close proximity to Mundy employees who were removing and installing pipe insulation. See id. at 60:7-9, 76:7-77:23.
Mundy employees used, installed and removed asbestos-containing pipe insulation around Mr. Goodman:
Q: Describe for me the work you saw them [Mundy] doing.
A: Well, when they moved in to–to start replacing Exxon people helping us with the manpower, they’d do the same work as Exxon insulators, pipefitters. We used them for everything. They were really just an additional to our mechanical department.
Q:And what kind of work did you see the Mundy people do?
A:I saw them taking insulation off, pulling pipe out, reinstalling new insulation on the new pipe, working the towers, all the mechanical work.
A:They used the same type of products, the same brands as the Exxon people used; just practically the same thing.
A:The pipe covering, Kaylo pipe covering, Unibestos pipe covering, the–the block insulation. It’s the same products, the same brand names.
Q:Was the dust visible?
Q:Did you breathe that dust?
Id. at 76:9-22, 77:10-23 (objections omitted). Mr. Goodman later testified that in addition to seeing Mundy employees using Kaylo and Unibestos, he also recalled them using Ruberoid, Armstrong, and Johns-Manville insulation products. See id. at 176:5-15.
The brands of pipe insulation that Mr. Goodman saw Mundy employees using unquestionably contained asbestos. Unibestos, manufactured by Pittsburgh Corning Corporation from 1962 through 1972, contained 95% long-fiberhead amosite asbestos. See Unibestos brochure, printed July 1962, at 2, attached as exhibit to Deposition of Robert E. Buckley, Sept. 26, 1983, attached hereto as Exhibit 5. Mr. Goodman was able to identify Unibestos by the packaging it came in as well as by its distinctive tan color. See Goodman Depo. at 40:5-22, 43:3-6 (Exhibit 1). Kaylo insulation was manufactured until 1972 and contained 15% asbestos. See Asbestos: Publication of Identifying Information, 55 Fed. Reg. 5144 (Feb. 13, 1990), excerpts attached hereto as Exhibit 6. Mr. Goodman was able to identify Kaylo because it came in a box with the Kaylo logo. See Goodman Depo. at 34:10-35:9 (Exhibit 1). In addition, Johns-Manville manufactured three different types of asbestos-containing pipe insulation: Magnesia (containing 12-18% asbestos) until 1970, Superex (containing 8-14% asbestos) until 1972, and Thermobestos (containing 5-10% asbestos) until 1973. See Asbestos: Publication of Identifying Information, 55 Fed. Reg. 5144 (Feb. 13, 1990) (Exhibit 6). Again, Mr. Goodman was able to identify Johns-Manville brand pipe insulation by its packaging. See Goodman Depo. at 33:1-15 (Exhibit 1).
Mr. Goodman testified that both Unibestos and Kaylo was used by the insulators at Exxon Baytown until the middle 1970s. See id. at 35:14-16, 41:4-7. Moreover, up until 1984 it was proper for industrial hygienists to assume that insulation already in place was asbestos-containing unless testing confirmed otherwise. See Moore, 92 S.W.3d at 854 (Tex. App. – Texarkana 2002, pet. denied) (discussing testimony of industrial hygiene technician for contractor Brown & Root).
Both Kaylo and Unibestos were used by insulators on all the units that had turnarounds. See Goodman Depo.at 35:20-24, 41:4-13 (Exhibit 1). Kaylo and Unibestos were both made of very hard material because they were designed for high-temperature pipes. See id. at 41:22-42:25. In order to install Kaylo, Unibestos or any other asbestos-containing insulation, the workers had to cut it with bandsaw or a handsaw. See id. at 32:6-15, 33:13-22, 36:1-37:2, 39:11-17, 41:16-25, 43:7-10. This was an extremely dusty process that released visible dust into the air. See id. at 32:16-23, 33:25-34:7, 38:11-22, 39:20-24, 44:5-14.
The bandsaws used to cut the insulation were used right in the unit where the turnaround work was being performed. See id. at 37:4-9, 43:7-15. Mr. Goodman was therefore present while Unibestos and Kaylo pipe covering was sawed by insulators, including those that worked for Mundy. See id. at 37:11-38:4, 43:16-44:4, 60:7-9, 76:7-78:14. He recalled watching workers cut the insulation to make sure the job was going right. See id. at 43:21-44:4. Mr. Goodman breathed the asbestos-containing dust produced by the sawing of Unibestos, Kaylo and other asbestos-containing insulation. See id. at 32:16-23, 33:25-34:7, 38:11-22, 39:15-24, 44:5-14, 77:24-78:14. Mr. Goodman specifically recalled that Mundy’s work with Kaylo and Unibestos insulation created visible dust that he breathed. See id. at 77:10-78:14.
The summary judgment evidence therefore raises genuine issues of material fact that Mr. Goodman worked around Mundy employees beginning in the early 1970s, that Mundy employees worked on almost all the turnarounds he supervised, that Mundy used Kaylo and Unibestos pipe insulation in his presence, that Mr. Goodman saw Kaylo and Unibestos used at Exxon Baytown until the middle 1970s, and that Mr. Goodman breathed the dust generated by Mundy’s activities of cutting, sawing and installing the insulation. See id. at 35:14-16, 37:11-38:22, 41:4-7, 43:16-44:14, 60:7-9, 76:7-78:14, 171:7-22, 175:18-176:1, 194:17-195:2 (Exhibit 1). The summary judgment evidence is more than sufficient to raise issues of fact regarding Mr. Goodman’s exposure to asbestos-containing insulation installed and removed by Mundy employees at the Exxon Baytown refinery and Mundy’s liability for injuries caused to Mr. Goodman by this negligent activity.
3. Mundy’s Use of Asbestos Products Was a Substantial Contributing Factor to Mr. Goodman’s Development of Mesothelioma.
Mundy has also challenged the causation element of Plaintiff’s negligence claim. However, the summary judgment evidence establishes not only that Mr. Goodman was exposed to asbestos-containing dust caused by Mundy’s activities at Exxon Baytown, but that such exposure was a substantial contributing factor in causing his development of mesothelioma. The question of causation is “one of fact particularly within the province of a jury.” Texas Dep’t of Transp. v. Olson, 980 S.W.2d 890, 893 (Tex. App. – Fort Worth 1998, no pet.). The issue of causation must be left to the jury if there is any evidence “on which reasonable minds may reach different conclusions.” Id. at 892; see also Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (explaining that a fact question exists if the evidence as a whole “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”). In order to defeat a motion for summary judgment on causation, plaintiffs “are not required to prove they would prevail at a trial on the merits; they need only produce evidence sufficient to raise an issue of fact with respect to the causation.” Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613, 620 (Tex. App. – Houston [1st Dist.] 1997), aff’d, 997 S.W.2d 217 (Tex. 1999).
Proximate cause includes two elements: cause in fact and foreseeability. See Berly v. D & L Sec. Servs. and Investigations, Inc., 876 S.W.2d 179, 182 (Tex. App. – Dallas 1994, writ denied). Cause in fact means “that the act or omission was a substantial factor in bringing about the injury and without it, the harm would not have occurred.” Id. To show cause in fact, a plaintiff’s evidence of exposure to asbestos-containing products may be direct, indirect, or circumstantial. Click v. Owens-Corning Fiberglas Corp., 899 S.W.2d 376, 377-78 (Tex. App.‒ Houston [14th Dist.] 1995, no writ); Keene Corp. v. Gardner, 837 S.W.2d 224, 227 (Tex. App.— Dallas 1992, writ denied). When there are multiple causes of an injury, the plaintiff “must only prove the greater probability is that the defendant’s conduct was a cause” of the injury. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987) (emphasis added).
There may be more than one proximate or producing cause of an injury, and “[a]ll persons who contributed to the injury are liable.” Id.; see also Berly, 876 S.W.2d at 182 (“[I]t is sufficient to prove that the greater probability is that the defendant’s conduct, alone or in contribution with others, was the cause of the harm.”) (emphasis added). In cases involving multiple toxic exposures, the jury decides whether a defendant’s conduct was a “substantial factor” in bringing about the plaintiff’s injury. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1094 (5th Cir. 1974) (applying Texas law). In this context, “substantial factor” is not a quantitative term. For example, in Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633 (Pa. Super. Ct. 1998), a Pennsylvania court applying the substantial factor approach explained that even relatively minor exposures may be considered substantial factors in the causation of disease:
[A] cause can be found to be substantial so long as it is significant or recognizable; it need not be quantified as considerable or large. These latter terms imply a percentage threshold that a plaintiff must surmount before a jury will be permitted to rule in his favor; however, our courts have never required such an approach. In fact, defendants have been found to have been negligent, and their negligence to be a substantial factor in the plaintiff’s harm, even though their negligence was relatively minor vis-a-vis other defendants . . . .
Id. at 636-37.
In Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex. App. — Texarkana 1991, writ denied), cert. denied, 508 U.S. 909 (1993), a defendant argued that the plaintiffs’ exposures to its asbestos products were de minimis in comparison to the plaintiff’s exposure to 140 other asbestos-containing products. The Texarkana Court of Appeals rejected the argument, citing expert testimony like that introduced in this case that “the cumulative exposure to asbestos causes asbestos-related diseases and even the inhaling of small amounts of asbestos can contribute to the disease process.” Id. at 688; see also Keene Corp. v. Belford, 881 S.W.2d 608, 610 (Tex. App. – Corpus Christi 1994, no writ) (finding sufficient evidence that exposure caused plaintiff’s injuries); Gardner, 837 S.W.2d at 227 (finding sufficient evidence of causation where plaintiff worked intermittently over three year period in area where asbestos-containing Monoblock was cut and used); Celotex Corp. v. Tate, 797 S.W.2d 197, 204 (Tex. App. – Corpus Christi 1990, writ dism’d by agr.) (finding sufficient evidence of causation based on “strong circumstantial evidence” of exposure); Click, 899 S.W.2d at 377 (reversing a directed verdict because “appellants have met their burden of proof if they have some evidence that appellees supplied any of the asbestos to which George Click was exposed”). In Celotex Corp. v. Tate, the court explained that “when a defendant has in fact caused harm to the plaintiff, he may not escape liability merely because the harm he has inflicted has combined with similar harm inflicted by other wrongdoers.” 797 S.W.2d at 204. Plaintiffs may meet their burden of proof by showing that a defendant supplied or is otherwise responsible for “any of the asbestos” to which the Plaintiff was exposed. North Am. Refractory Co. v. Easter, 988 S.W.2d 904, 911 (Tex. App. – Corpus Christi 1999, pet. denied).
The other element of proximate cause is foreseeability. The foreseeability of asbestos exposure to end product users is an issue for the jury. See Fuller-Austin Insulation Co., Inc. v. Bilder, 960 S.W.2d 914 (Tex. App.—Beaumont 1998, pet. dism’d). Foreseeability does not require that a defendant “foresee the particular accident or injury which in fact occurs. . . . Nor does foreseeability require that the actor anticipate just how the injury will grow out of a particular dangerous situation.” Brown v. Edwards Transfer Co., Inc., 764 S.W.2d 220, 223-24 (Tex. 1989) (citations omitted). Rather, “[a]ll that is required is that the injury be of such a general character as might reasonably have been anticipated and that the injured party be so situated with relation to the wrongful act that injury might reasonably have been foreseen.” Id. Foreseeability simply means that the defendant “as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Berly, 876 S.W.2d at 183.
Mundy repeatedly cites the inapposite case of IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794 (Tex. 2004), in support of its claim that any negligent conduct on its part was not the proximate cause of Mr. Goodman’s mesothelioma. That case involved the claim of a woman who was released from a mental hospital with a fellow patient, and two days later was in a car accident in which the fellow patient was the driver. See id. at 796. The plaintiff brought claims against the doctor who released her, a nurse at the facility, and the hospital itself, contending that they were negligent in treating her mental condition and in releasing her with a fellow patient who had a history of controlling and manipulating her. See id. at 796-97. Her theory was that the defendant’s actions in releasing her created the conditions that allowed her to be in the car accident with her fellow patient. See id. at 801. Under those circumstances the court held that the defendant’s actions were too attenuated from the car accident to be considered the proximate cause of the plaintiff’s injuries. See id. at 800, 802. It was in this context that the court stated the principle relied on by Mundy, which is that “merely creating the condition that makes harm possible falls short as a matter of law of satisfying the substantial factor test.” Id. at 800.
The facts presented in IHS Cedars Treatment Center are not comparable in any way to the facts presented in this case. Mundy did not just set in motion a chain of events, like the facts presented in IHS Cedars Treatment Center where the release of a patient from a hospital ultimately facilitated a car crash. Here, Mundy’s own work with asbestos-containing insulation created asbestos dust that Mr. Goodman breathed while working around Mundy employees. As set forth in the previous section, the evidence is that it was Mundy’s direct actions that caused Mr. Goodman’s exposure to asbestos and his development of mesothelioma. There is nothing attenuated about Mundy’s conduct in relation to Mr. Goodman’s injuries – there is a direct connection between Mundy’s creation of asbestos dust, and failure to warn or protect Mr. Goodman, and Mr. Goodman’s development of mesothelioma.
The summary judgment evidence establishes that Mr. Goodman’s exposure to asbestos-containing products at the Exxon Baytown oil refinery caused his mesothelioma. Mr. Goodman was diagnosed with mesothelioma in October 2003 by Dr. Stephen Swisher. See Deposition of Victor L. Roggli, M.D., Sept. 7, 2006, (“Roggli Depo.”) at 46:17-47:25, attached hereto as Exhibit 7; Report of Dr. Stephen Swisher, Oct. 7, 2003, attached to Roggli Depo. (Exhibit 7). Mesothelioma is a rare and fatal disease primarily associated with exposure to asbestos. See Thomas A. Sporn & Victor L. Roggli, Mesothelioma, in Pathology of Asbestos-Associated Diseases 104, 104 (Victor L. Roggli et al. eds., 2nd ed. 2003). Due to the rarity of the disease and its strong association with asbestos exposure, the very fact that a person contracts mesothelioma is a scientifically-accepted signal that the person was occupationally exposed to asbestos. Id. Dr. Victor Roggli, a noted board certified anatomical and clinical pathologist, testified in this case that every type of asbestos fiber, including amosite asbestos, can cause mesothelioma and that each and every exposure to asbestos above background levels can contribute to the development of mesothelioma. See Roggli Depo. at 63:18-65:2, 69:6-12 (Exhibit 7).
After conducting his own tests on tissues taken from Mr. Goodman’s body, Dr. Roggli has concluded that: (1) Mr. Goodman did suffer from mesothelioma; (2) Mr. Goodman’s mesothelioma was caused by prior occupational exposure to asbestos; and (3) Mr. Goodman’s mesothelioma caused his death. See id. at 28:25-32:5, 57:12-60:19, 75:2-15 (Exhibit 7); Dr. Roggli’s Report, Feb. 8, 2005, attached as exhibit 2 to Roggli Depo. (Exhibit 7); Death Certificate of Kenneth Hugh Goodman, issued May 23, 2005, attached hereto as Exhibit 8. Notably, the asbestos content in Mr. Goodman’s lungs in terms of asbestos bodies was approximately 600 to 800 per gram of wet lung tissue, an amount 30 to 40 times greater than the expected background level and a good marker of prior exposure to commercial asbestos used in insulation products. See Roggli Depo. at 58:12-59:1 (Exhibit 7). Dr. Ronald Dodson, a well-respected doctor in biological electron microscopy, also studied Mr. Goodman’s lung tissue and similarly concluded that Mr. Goodman had the type and number of asbestos fibers that is consistent with occupational exposure to asbestos. See Dodson Depo. at 27:5-28:14 (Exhibit 9); Report of Dr. Dodson, attached to Dodson Depo. as exhibit 3 (Exhibit 9).
Significantly, Dr. Roggli testified that if Mr. Goodman worked around individuals at Exxon Baytown who were installing, cutting or removing thermal insulation, which created visible dust that entered his breathing zone, that would be a substantial contributing factor to the development of Mr. Goodman’s mesothelioma. See Roggli Depo. at 67:20-68:15 (Exhibit 7). Specifically with regard to Mundy, Dr. Roggli testified that exposure to asbestos insulation used by Mundy employees was a substantial contributing factor to the causation of Mr. Goodman’s disease:
Q.: . . . [H]ypothetically, if there was testimony in this case that Mr. Goodman witnessed individuals from a contractor called Mundy Construction Company  during the same period of time from approximately 1969 or the early 1970s through the early 1980s that those particular contractors would remove asbestos containing thermal insulation which either contained 7 and a half percent chrysotile asbestos and 7 and half percent amosite asbestos or 65 percent amosite asbestos up to 95 percent amosite asbestos, if that contractor was removing those particular products and that created dust, visible dust which entered into Mr. Goodman’s breathing zone, would those exposures be a substantial contributing factor to the development of Mr. Goodman’s mesothelioma?
Id. at 70:9-25 (objection omitted).
As detailed below, the fact that exposure to asbestos can cause fatal diseases had been known for years before Mundy exposed Mr. Goodman to asbestos-containing dust at the Exxon Baytown refinery. As Dr. Roggli has previously testified, “as early as 1955, the link between asbestos exposure and cancer was ‘essentially confirmed,’ and that information, studies, and reports detailing this fact were readily available ‘to anybody who cared to look for them.’” See Brown & Root, Inc. v. Shelton, No. 12-01-00259-CV, 2003 Tex. App. LEXIS 6642, at *20 (Tex. App.–Tyler July 31, 2003, no pet.) (not designated for publication) (involving a case similar to the one at bar in which the plaintiff alleged a negligent activity claim arising out of asbestos exposure against a general contractor hired by his employer/premises owner). Thus, at the time that Mundy conducted the activities that exposed Mr. Goodman to asbestos-containing dust, it was quite foreseeable to a similarly situated company that such activities could result in the development of fatal diseases in workers.
The summary judgment evidence, including the opinions of Drs. Roggli and Dodson and the information available to Mundy at the time of Mr. Goodman’s exposure, raises a genuine issue of material fact that Mundy’s activities were a substantial contributing factor to the development of Mr. Goodman’s mesothelioma and subsequent death. Ultimately it is fact question for the jury to decide the role of Mundy’s conduct in causing Mr. Goodman’s disease. Therefore, Mundy’s motion for summary judgment on this element should be denied.
Mundy Acted With Gross Negligence, Malice Or Conscious Indifference In Failing to Warn or Otherwise Protect Mr. Goodman from Exposure to Asbestos-Containing Products That It Knew to Be Extremely Hazardous to Human Health.
Mundy incorrectly contends that Plaintiff has no evidence of gross negligence or malice. The summary judgment evidence is more than sufficient to raise a fact issue regarding Mundy’s gross negligence and malice in exposing Mr. Goodman to products it knew to be dangerous. Exemplary damages may be awarded if fraud, malice or gross negligence are shown by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code § 41.003(a). The relevant part of Chapter 41 of the Texas Civil Practice & Remedies Code, which deals with exemplary damages, defines malice as:
an act or omission:
(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
The objective prong of malice requires evidence of the likelihood of serious injury to the plaintiff. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). The subjective prong requires evidence that the defendant knew about the peril, but its acts or omissions demonstrated it did not care. Id. Circumstantial evidence is sufficient to prove either prong of malice. Id. A corporation has acted with malice and is liable for punitive damages if the corporation itself or its vice principals act with malice. Ellender, 968 S.W.2d at 921-22.
Texas courts have upheld findings of malice against contractors that expose the employees of premises owners to asbestos dust without offering any warnings or taking any precautions to protect those employees. See Shelton, 2003 Tex. App. LEXIS 6642 (upholding finding of gross negligence and award of $1.25 million in punitive damages to mesothelioma victim); Moore, 92 S.W.3d 848 (upholding finding that contractor acted with malice when evidence was raised that contractor had subjective knowledge of the risks but acted with conscious indifference to the workers at the premises). The summary judgment evidence supports the conclusion that Mundy and its vice principals had both objective and subjective knowledge of the health risks associated with asbestos and failed to warn or otherwise protect Mr. Goodman.
- The Objective Prong of Malice Is Met With Plaintiff’s Evidence That The Extreme Dangers of Asbestos Exposure Were Well-Known.
According to Dr. Richard Lemen, who is the former Deputy Director of the National Institute for Occupational Safety and Health and Assistant Surgeon General of the United States, exposure to all types of asbestos causes diseases such as asbestosis, lung cancer and mesothelioma. See Affidavit of Richard A. Lemen, Ph.D., April 19, 2004, (“Lemen Affidavit”), at 12, attached hereto as Exhibit 10. There is currently no level or concentration of asbestos exposure that can be identified which will assure no risk of asbestos-related disease. See id. Each and every exposure to asbestos contributes to the development of an asbestos-related disease. See id.; Roggli Depo. at 69:6-12 (Exhibit 7).
The dangers of inhaling asbestos were publicly recognized as early as the turn of the twentieth century. See Asbestos Timetables: A guide for policymakers, at 5, excerpts attached as exhibit B to Lemen Affidavit (Exhibit 10). The knowledge regarding asbestos hazards became truly widespread by the 1930s, as the Fifth Circuit has explained:
[S]everal studies published during the 1930’s and 1940’s reported the danger to asbestos plant workers and others exposed to asbestos dust and urged precautionary measures to eliminate hazardous concentrations. The American Conference of Governmental Industrial Hygienists, beginning in 1947, issued guidelines suggesting threshold limit values for exposure to asbestos dust. Even the Fleischer-Drinker report in 1945, relied on by the defendants, cautioned that exposure to high concentrations of asbestos dust could cause asbestosis and recommended the use of ventilation and respiratory protection devices.
Borel, 493 F.2d at 1092-93; see also Asbestos Timetables, at 4-16 (Exhibit 10). Reports of mesothelioma occurring in association with asbestos exposure were increasing by 1949, and were common knowledge by the 1960s. See Asbestos Timetables, at 28-30 (Exhibit 10).
In 1947, the Texas Legislature added asbestosis as an occupational disease compensable under the Workmen’s Compensation Law. See Tex. Rev. Civ. Stat. Ann. art. 8306, § 20 (1948), attached hereto as Exhibit 11. Even at that time it was recognized that disease was “caused by the inhalation of asbestos dust.” See id. at § 26(a). In 1958, the Texas State Board of Health adopted its Occupational Health Regulation No. 3 entitled Maximum Permissible Concentrations of Atmospheric Contaminants in Places of Employment. See Occupational Health Regulations No. 3: Maximum Permissible Concentrations of Atmospheric Contaminants in Places of Employment, excerpts attached hereto as Exhibit 12. This regulation applied to all places of employment in Texas, it identified asbestos as an atmospheric contaminant and prohibited employers, such as Mundy, from allowing their employees to be exposed to more than 5 million particles of asbestos per cubic foot of air in any one work day. Id. at 1, 8. On December 7, 1971, the Occupational Safety and Health Administration (OSHA) adopted an “emergency standard” limiting exposure to airborne asbestos dust to 5 fibers per cubic centimeter (f/cc). See 36 Federal Register 234 (Dec. 7, 1971), attached hereto as Exhibit 13. On June 7, 1972, approximately the same year that Mr. Goodman started working around Mundy employees at Exxon, OSHA decided to retain the 5 f/cc limit and gave industry until July 1, 1976 to control exposures to no more than 2 f/cc on an 8-hour, time-weighted-average basis. See 37 Fed. Reg. 110 (June 7, 1972), attached hereto as Exhibit 14.
In Brown & Root, Inc. v. Moore, the court addressed facts almost identical to those presented here and determined that a contractor that tore out and installed asbestos-containing insulation had engaged in conduct involving an extreme degree of risk to the employees of the premises owner who were present at the time the work was performed. See Moore, 92 S.W.3d at 850, 852. Mundy similarly exposed Mr. Goodman to an extreme degree of risk when it installed and removed Kaylo and Unibestos pipe insulation while Mr. Goodman was in the vicinity. Thus, Plaintiff has created a genuine issue of material fact on the objective prong of the malice inquiry.
2.The Subjective Prong of Malice Is Met With Plaintiff’s Evidence That Mundy Knew of the Dangers of Asbestos Exposure But Failed to Warn or Otherwise Protect Mr. Goodman.
The evidence suggests that Mundy knew about the dangers of working with asbestos at the time its employees exposed Mr. Goodman to dust from asbestos-containing products. First, Mundy has admitted that it was aware that its employees were installing and removing asbestos-containing thermal insulation in the 1950s, 1960s, and 1970s. See Ramsey Depo. at 37:18-23, 85:5-22, 148:15-18 (Exhibit 3). As an employer, Mundy was subject to the 1958 regulation promulgated by the Texas State Board of Health that identified asbestos as a toxic air contaminant and required employers to monitor employees to limit exposure to asbestos dust. See id. at 145:1-9; Occupational Health Regulations No. 3 (Exhibit 12). Mundy’s corporate representative acknowledged that Mundy was aware of the Texas State Board of Health and that it was required to follow all Texas laws, including those governing the occupational safety of its employees. See Ramsey Depo. at 102:22-103:5, 105:25-106:8 (Exhibit 3). Mundy’s corporate representative similarly admitted that it was aware of the Code of Federal Regulations and was required to follow OSHA regulations promulgated in 1971 and 1972 regarding protecting employees from asbestos hazards. See id. at 147:16-148:11, 233:8-15. Mundy has further acknowledged that, because it knew its employees were using asbestos-containing products, it needed to be aware of the state and federal laws governing limits on exposure to those products. See id. at 145:23-146:15, 149:23-150:4.
Exxon in fact informed Mundy that it was required to abide by all state and federal laws and regulations pertinent to its work on Exxon’s premises. See id. at 136:19-137:1; Contract between Mundy and Humble Oil & Refining Co., Oct. 6, 1972, at 5, excerpts attached as Exhibit B to Kale Affidavit (Exhibit 4); 1966 Contract at 4 (Exhibit 4A). Mundy signed contracts with Exxon in which it specifically agreed to be aware of and follow all occupational regulations relevant to its work at Exxon. See id. Mundy’s corporate representative claimed that Mundy followed those applicable laws. See Ramsey Depo. at 136:21-137:3 (Exhibit 3). In fact, Mundy’s own documents acknowledge that in 1970 there were severe restrictions placed upon the use of asbestos. See Health Hazard Compliance Program for Asbestos, May 2, 1977, excerpt attached as Exhibit C to Kale Affidavit (Exhibit 4).
In addition, Mundy became a member of the National Safety Council in 1969. See Defendant’s, Mundy Industrial Maintenance, Inc., Second Amended Answers to Plaintiff’s Master General Interrogatories, Oct. 13, 2006, at 5, attached as Exhibit 15. It has been recognized that membership in the National Safety Council is evidence supporting a finding that a contractor was aware of the health hazards related to the use of asbestos. See Shelton, 2003 Tex. App. LEXIS 6642, at *20 (noting that as a member of the National Safety Council defendant contractor Brown & Root had received the National Safety News that contained articles in 1935, 1966 and 1967 detailing the dangers of exposure to asbestos dust, including the risk of mesothelioma).
Since the 1930s, the National Safety Council has been publishing and distributing to its members information about the health hazards of asbestos exposure. Even after Mundy became a member, there were membership meetings and publications in which the dangers of asbestos exposure were discussed. For example, the Labor Safety section of the National Safety Council published a paper in 1972 that described the state of knowledge among its members and the history of efforts to obtain federal regulations to limit workers’ exposure to asbestos:
Asbestos fibers, as we all know, are in common use in a number of industries. When workers inhale them in the dust of the workplace, they lodge in the body and cannot be removed. And the longer the worker is exposed, the greater his risk of incurring a form of disease that scars and stiffens the lungs, makes it harder to breathe and increases the work load of the heart. There is substantial scientific evidence that for many thousands of workers this will eventually lead to the development of cancerous growths in the body . . . . In May 1971, OSHA issued a standard defining the upper limit of safe exposure to asbestos as 12 fibers per cubic centimeter of air . . . . the [White House] Administration has finally recognized that an asbestos standard of more than two fibers is dangerous to health, and life-threatening.
National Safety Congress Transactions, 1972, Vol. 13, Labor Safety, at 10 (emphasis added), excerpts attached hereto as Exhibit 16. Other similar articles were published in the early 1970s. See id. at 27; National Safety Congress Transactions, 1970, Vol. 13, Labor Safety, at 24, excerpts attached hereto as Exhibit 17.
Despite the information available to Mundy about the dangers that asbestos posed to its workers, Mundy did absolutely nothing to comply with Texas asbestos regulations or OSHA regulations, or take any measures to protect its employees, until 1977. See Ramsey Depo. at 145:10-146:7, 150:5-14, 208:13-209:4, 213:19-22, 215:23-217:19, 232:19-233:23 (Exhibit 3). Moreover, Mundy was aware throughout the 1950s, 1960s, and 1970s that its employees were in daily contact with the employees of the plants where they worked. See id. at 83:7-25, 120:17-20. Nevertheless, Mundy’s corporate representative could not identify a single measure ever taken to warn or protect plant employees, such as Mr. Goodman, from exposure to asbestos dust generated by Mundy’s employees. See id. at 226:13-23, 244:7-13. A contractor’s failure to warn the employees of the premises owner about the hazards of asbestos, and/or the failure to monitor exposure or offer other protection to those employees, has been held to constitute conscious indifference sufficient to support a finding of malice or gross negligence. See Shelton, 2003 Tex. App. LEXIS 6642, at *22-27; Moore, 92 S.W.3d at 854-56.
Here, the summary judgment evidence supports the conclusion that despite Mundy’s knowledge of the dangers of asbestos exposure, it unreasonably delayed protecting its own workers and completely failed to warn or protect Exxon workers such as Mr. Goodman. Therefore, Plaintiff has raised genuine issues of material fact regarding Mundy’s grossly negligent and malicious conduct and summary judgment should be denied.
Mundy is Jointly and Severally Liable for Plaintiff’s Damages.
Mundy incorrectly claims that Plaintiff has brought a cause of action against it based on “concert of action.” Mundy’s Amended Motion for Summary Judgment at 11. Rather, as set forth in the Fifth Amended Petition, Plaintiff has alleged that Mundy is jointly and severally liable for Plaintiff’s damages. In Texas, “[j]oint and several liability has been imposed when the negligence of two or more persons join in producing a single indivisible injury even though there is no concert of activity or common duty.” Ansell Healthcare Prods., Inc. v. Owens & Minor, Inc., 189 S.W.3d 889, 898-99 (Tex. App. – Texarkana 2005, pet. filed); see also Landers v. E. Tex. Salt Water Disposal Co., 248 S.W.2d 731, 734 (Tex. 1952); Austin Road Co. v. Pope, 216 S.W.2d 563, 565 (Tex. 1949). The negligence of the joint tortfeasors does not have to occur simultaneously in order to produce an indivisible injury. See Landers, 248 S.W.2d at 735.
It has been recognized that mesothelioma produces an indivisible injury subjecting defendants to joint and several liability when there has been exposure to multiple asbestos-containing products. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1081, 1094-96 (5th Cir. 1973); Celotex Corp. v. Tate, 797 S.W.2d 197, 204 (Tex. App. – Corpus Christi 1990, writ dism’d by agr.). Here, Plaintiff’s expert Dr. Roggli testified that each and every exposure to asbestos significantly above background level contributed to the development of Mr. Goodman’s mesothelioma. See Roggli Depo. at 69:6-12 (Exhibit 7). He further testified that, Mundy’s use of asbestos-containing insulation around Mr. Goodman was a substantial contributing factor to his mesothelioma. See id. at 70:8-25.
Thus, Mundy’s wrongful conduct in exposing Mr. Goodman to asbestos dust has contributed to an indivisible injury. If a jury finds that Mundy was more than fifty percent liable for Plaintiff’s damages, Mundy will be held jointly and severally liable for all damages. See Tex. Civ. Prac. & Rem. Code § 33.013(b)(1).
MUNDY’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED.
Summary Judgment Standard
The function of summary judgment is “not to deprive litigants of the right to a jury trial,” but rather to eliminate patently unmeritorious claims and defenses. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972); Federal Petroleum Co. v. Gas Equip. Co., 105 S.W.3d 281, 284 (Tex. App.—Corpus Christi 2003, no pet. h.). A traditional summary judgment may not be granted unless the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. Tex. R. Civ. P. 166a(c). When a movant files a motion for summary judgment based on the summary judgment evidence, the motion cannot be granted unless the movant’s evidence, as a matter of law, either conclusively establishes all the elements of the movant’s defense or disproves the facts of at least one element of the plaintiff’s claim. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex. 1991).
In deciding whether a genuine fact issue exists, this Court must, as always, take as true all evidence favorable to the non-movant, and draw every reasonable inference, and resolve any doubts, in favor of non-movant. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Summary judgment may be granted only if reasonable minds could not differ about the conclusions to be drawn from the facts in the record. Childs v. Hausseker, 974 S.W.2d 31, 44 (Texas 1998). All doubts about the existence of a genuine issue of material fact should be resolved against the moving party. See M.D. Anderson, 28 S.W.3d at 23; Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).
Mundy Has Failed To Meet Its Summary Judgment Burden and Plaintiff Has Raised Genuine Issues of Material Fact for Trial.
Mundy’s motion should be denied because it does not give Plaintiff fair notice of the grounds for the motion and because Mundy has not met its burden to negate an element of Plaintiff’s claims and establish entitlement to judgment as a matter of law. Even if it is found that Mundy has met its burden, Plaintiff has presented evidence that raises material issues of fact to be decided at trial.
Mundy spends eighteen pages of its motion citing Mr. Goodman’s deposition testimony about various matters, but cites no law and makes no arguments applying this evidence to the elements of Plaintiff’s claims. Then, in one paragraph, Mundy generally states that the testimony negates three elements of Plaintiff’s claims, contending that: (1) Mundy did not have a duty to protect Mr. Goodman; (2) Mundy did not know of the risk posed by asbestos-containing products used by Mundy; and (3) Mr. Goodman’s injuries were not caused by Mundy’s activities at Exxon. See Mundy’s Amended Motion for Summary Judgment at 33-34. Mundy also relies on the affidavit of its corporate representative, A. Benjamin Ramsey, apparently to challenge these same elements.
A motion for summary judgment must be sufficiently specific “to provide the opposing party with adequate information for opposing the motion and to define the issues.” Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 649 (Tex. App. – Fort Worth 2004, no pet.). The specificity requirement is only satisfied if the motion gives fair notice to the nonmovant about the grounds for the motion. See id.; Upchurch v. Albear, 5 S.W.3d 274, 284-85 (Tex. App. – Amarillo 1999, pet. denied). Mundy scattershot approach has not given Plaintiff fair notice of the grounds for its motion and Plaintiff is forced to speculate as to what evidence Mundy is contending negates particular elements. Mundy’s summary judgment motion should be denied for failure to give fair notice to Plaintiff. Nevertheless, Plaintiff responds and incorporates herein all arguments and evidence made in response to Mundy’s no-evidence motion for summary judgment.
Regarding Mundy’s duty, Mundy contends it did not owe a duty to Mr. Goodman because it did not supply the asbestos-containing products used by Mundy’s employees at Exxon and did not own the premises at Exxon Baytown. Mundy also cites Mr. Goodman’s testimony that he exercised supervision over Mundy’s work. This evidence does not negate the duty element of Mr. Goodman’s negligence claim and Mundy fails to cite any law in support of its argument. Moreover, as detailed in Section III.B.1. supra, Texas law establishes that Mundy is liable for injuries caused by its own activities. See Weekly Homes,180 S.W.3d at 132; Williams, 952 S.W.2d at 527; Keetch, 845 S.W.2d at 264; Redinger, 689 S.W.2d at 417; Moore, 92 S.W.3d at 853. Mundy is not relieved of its duty not to injure Mr. Goodman merely because Exxon provided the products when it was Mundy that used them in a negligent manner that exposed Mr. Goodman to asbestos dust. The fact that Mr. Goodman generally supervised Mundy’s work is similarly unavailing and in fact supports Plaintiff’s position that Mundy worked closely enough with Mr. Goodman that it should have warned him of the dangers posed by its activities and taken precautions not to expose him.
Regarding the element of Mundy’s knowledge, Mundy is apparently relying on evidence that it did not sell or provide the asbestos-containing products used by its employees. Such evidence certainly is not sufficient to meet its burden to negate an element of Plaintiff’s case. Whether Mundy supplied the products has no bearing on whether Mundy knew the insulation contained asbestos and knew of the hazards posed by exposure to dust created by using those products. In fact, Mundy has admitted that it knew its insulators were using asbestos-containing insulation in the 1950s, 1960s, and 1970s. See Ramsey Depo. at 37:18-23, 85:5-22, 148:15-18 (Exhibit 3). Moreover, the evidence outlined in Section III.C., supra, creates a genuine issue of material fact that Mundy did have knowledge of asbestos hazards through state and federal regulations, its contracts with Exxon, and its membership in the National Safety Council.
Finally, with regard to the proximate cause element, Mundy has cited no evidence that even raises an inference that its activities were not responsible for Mr. Goodman’s mesothelioma. It merely argues again that because it did not supply the product, it did not cause Mr. Goodman’s injuries. But Mundy is liable for its own activities that directly caused Mr. Goodman to be exposed to a fatal amount of asbestos. In Sections III.B.2 and III.B.3, supra, Plaintiff has set forth a significant body of evidence that Mundy’s work with Kaylo and Unibestos insulation exposed Mr. Goodman to asbestos fibers and that this exposure was a substantial contributing factor to his mesothelioma. It was Mundy’s creation of asbestos dust around Mr. Goodman, and Mundy’s failure to warn or protect Mr. Goodman, that directly caused Mr. Goodman’s exposure and subsequent disease.
Given the portions of Mr. Goodman’s testimony cited in the motion, Mundy also appears to be relying on evidence that Mr. Goodman was exposed to asbestos from activities attributable to parties other than Mundy. Such other exposure in no way establishes that Mundy’s actions were not the proximate cause of Mr. Goodman’s mesothelioma. The law is that “when a defendant has in fact caused harm to the plaintiff, he may not escape liability merely because the harm he has inflicted has combined with similar harm inflicted by other wrongdoers.” Celotex Corp., 797 S.W.2d at 204.
Mundy has not met its summary judgment burden. The evidence it relies on does not disprove any element of Plaintiff’s negligence and gross negligence/malice claims. Even if the burden has shifted to Plaintiff, her evidence demonstrates material issues of fact regarding Mundy’s conduct that breached its duty not to injure Mr. Goodman, Mundy’s knowledge that asbestos products were used by its employees around Exxon workers and that asbestos poses serious health hazards, and that Mundy’s actions in exposing Mr. Goodman to asbestos proximately caused his mesothelioma. Accordingly, Mundy’s traditional summary judgment motion should be denied.
THE STATUTE OF REPOSE DOES NOT BAR PLAINTIFF’S CLAIMS AGAINST MUNDY.
Mundy claims that the Texas statute of repose for construction, Texas Civil Practice and Remedies Code section 16.009, bars Plaintiff’s claims because any asbestos installation by Mundy took place more than ten years ago. As Mundy states, the statute of repose only applies to construction and repairs to improvements to real property. See Williams v. U.S. Natural Res., 865 S.W.2d 203, 206 (Tex. App. – Waco 1993, no writ). However, Mundy does not even attempt to argue that the asbestos-containing insulation used by Mundy employees constituted an improvement to real property. The evidence in this case in fact establishes that such insulation was not an improvement to real property at the time Mundy was using it and Mr. Goodman was exposed.
In order for a manufactured product to be an improvement to real property, it must be permanently attached or annexed to the building. See Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995). A product is not annexed to real property until it has actually been installed. See White v. CBS Corp., 996 S.W.2d 920, 925 (Tex. App. – Austin 1999, pet. denied). Texas case law clearly holds that injuries caused during construction, prior to the time the product is annexed to real property, do not fall within the statute of repose. See Shelton, 2003 Tex. App. LEXIS 6642 at *12-*15; White, 996 S.W.2d at 924-25. Annexation is therefore a bright line test for determining whether the statute of repose applies. See Shelton, 2003 Tex. App. LEXIS 6642 at *13, *16.
In Brown & Root Inc. v. Shelton, the plaintiff was an employee at a tire plant where contractor Brown & Root had performed renovations using asbestos-containing products. See 2003 Tex. App. LEXIS 6642 at *1-2. The court noted that at least some of the plaintiff’s exposure occurred prior to the time the products were annexed to the property. Specifically, “Brown & Root engaged in pre-annexation activity such as mixing asbestos-containing fireproofing, mixing refractory mix, sawing pipecover, and removing old gaskets in the presence of Mr. Shelton and other workers.” Id. at *14 (emphasis added). The court further explained that the evidence in the case established that “such activity created asbestos-laden dust, that workers, including [the plaintiff], were forced to breathe this dust, and that such occurrences took place during the pre-installation and pre-construction phases. As such these pre-annexation occurrences do not fall under the protection fo the statute of repose.” Id. at *14-*15 (emphasis added). Even though the products at issue were ultimately annexed to the property and therefore eventually constituted improvements to real property, the pre-annexation exposure precluded the application of the statue of repose. See id. at *12; see also White, 996 S.W.2d at 925 (holding that the statute of repose did not apply to bar the plaintiff’s asbestos exposure claims because the plaintiff was exposed to the turbines at issue before they had been installed and annexed to real property).
Here, the undisputed evidence is that most of Mr. Goodman’s exposure to the asbestos-containing insulation used by Mundy took place prior to annexation during the pre-installation phase. Before the insulation could be applied to pipe, the insulators working for Mundy had to cut it with a bandsaw or handsaw. See Goodman Depo. at 32:6-15, 33:13-22, 36:1-37:2, 39:11-17, 41:16-25, 43:7-10 (Exhibit 1). The sawing and other manipulation of the insulation by Mundy employees released visible dust into the air that Mr. Goodman breathed. See id. at 32:16-23, 33:25-34:7, 38:11-22, 39:20-24, 44:5-14. As in Shelton, the sawing of hard pipe insulation was a pre-annexation activity. See 2003 Tex. App. LEXIS 6642 at *14. Therefore, at the time Mundy exposed Mr. Goodman to asbestos-containing insulation it was not an improvement to real property and the statute of repose does not apply. See id.; White, 996 S.W.2d at 924-25.
In order to obtain summary judgment based on an affirmative defense, the defendant must “conclusively prove all essential elements of that defense.” Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Because the evidence clearly shows that Mr. Goodman was exposed to the asbestos-containing insulation used by Mundy employees before it became annexed to real property, Mundy has failed to establish that the statute of repose applies to bar Plaintiff’s claims.
Mundy has failed to establish that it is entitled to summary judgment on any basis. Plaintiff has demonstrated the existence of genuine issues of material fact on every element challenged by Mundy’s no-evidence motion for summary judgment. Moreover, Mundy has not negated any element of Plaintiff’s claims and has not conclusively established an affirmative defense. Plaintiff therefore respectfully requests that Defendant’s motion for summary judgment be denied in full.
- ↑ Pursuant to 42 U.S.C. § 1507, the contents of the Federal Register are subject to judicial notice. Plaintiff respectfully requests that the Court take judicial notice of the contents of the Federal Register relied on by Plaintiff as summary judgment evidence in this case.
- ↑ Two other types of insulation used by Mundy employees contained asbestos: Ruberoid Calsilite and Armstrong. See Asbestos: Publication of Identifying Information, 55 Fed. Reg. 5144 (Feb. 13, 1990) (Exhibit 6).
- ↑ See Roggli Depo. at 53:9-54:9 (Exhibit 7); Dr. Roggli’s Curriculum Vitae, attached as exhibit 1 to Roggli Depo. (Exhibit 7). Dr. Roggli specializes in asbestos-related disease, publishing over 75 peer-reviewed articles on the issue and essentially making the study of asbestos-related disease his life’s work. See Roggli Depo. at 54:10-56:15. He has offered expert testimony on asbestos-related disease numerous times, for both plaintiffs and defendants. See id. at 13:24-15:8.
- ↑ See Deposition of Dr. Ronald Dodson, Sept. 13, 2006, (“Dodson Depo.”), at 37:14-41:23, attached hereto as Exhibit 9; Curriculum Vitae of Dr. Dodson, attached as exhibit 2 to Dodson Depo. (Exhibit 9).
- ↑ The standards for gross negligence and malice are exactly the same in this case. The cited definition of malice is contained in the 1995 version of Texas Civil Practice and Remedies Code section 41.001. Although that statute was amended in 2003, the 1995 version applies here because this case was filed prior to the effective date of those amendments in 2003. See Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 447 n.14 (Tex. App. – Texarkana 2006, no pet. h.). The common law gross negligence standard mirrors the cited definition of malice. See id. Like the 1995 definition of malice, the test for gross negligence has both objective and subjective components: objectively the defendant’s conduct must involve an extreme degree of risk and subjectively the defendant must have actual awareness of the extreme risk created by his or her conduct. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21-22 (Tex. 1994).
- ↑ Dr. Lemen is an expert in the historical development of scientific knowledge concerning the hazards of asbestos. See Lemen Affidavit at 1-5 (Exhibit 10).