John Dori v. Bondex International, Inc.

Opinion filed June 8, 2006 Opinion filed June 8, 2006 In The Eleventh Court of Appeals ____________ No. 11-04-00179-CV __________ JOHN DORI, Appellant V. BONDEX INTERNATIONAL, INC., Appellee On Appeal from the 32nd District Court Nolan County, Texas Trial Court Cause No. 18,422 M E M O R A N D U M   O P I N I O N This is an appeal from a take-nothing judgment in a toxic-tort personal injury suit. John Dori sued Bondex International, Inc. alleging that he contracted mesothelioma from exposure to its joint compound.[1] The jury found that Bondex=s products were defectively designed, but the jury awarded Dori no damages. The trial court entered a take-nothing judgment in Bondex=s favor. We affirm. Background Facts In December of 1998, Dori began experiencing back pain. He sought medical treatment from an orthopedic back specialist and an arthritis doctor. They provided him no relief, so he consulted a gastroenterologist. She scheduled an ultrasound and determined that he had an accumulation of fluid in his lower abdomen. Two to three liters of fluid were drained and sent for testing. This testing suggested malignant mesothelioma, and Dori was referred to an oncologist. The oncologist ran additional tests including a laparoscopy. The laparoscopy revealed the presence of several white growths dispersed throughout his abdominal cavity. Initially, they were reported as non-cancerous, but Dori was subsequently advised that his sample had been sent to the Fox Chase Cancer Center near Philadelphia and that specialists there had determined that he suffered from well-differentiated papillary malignant mesothelioma. This disease is incurable and is always fatal. According to the National Cancer Institute, mesothelioma is a rare form of cancer in which malignant (cancerous) cells are found in the protective sac that covers most of the body=s internal organs. This protective sac is called the mesothelium. The mesothelium of the chest is called the pleura, the abdominal cavity the peritoneum, and the heart the pericardium. There are 2,500 to 3,000 reported cases of mesothelioma a year in the United States, compared with 170,000 cases of lung cancer. Most mesothelioma involves the parietal pleura membrane surrounding the lungs. Peritoneal mesothelioma is extremely rare and usually amounts to approximately 150 cases a year in the United States. Dori=s doctors treated his illness by addressing his symptoms. He underwent periodic fluid draining procedures and had his gallbladder, spleen, appendix, 19-20 inches of his large intestine, and the mesothelial linings removed. He also underwent chemotherapy. At the time of trial, Dori=s medical bills were approximately $230,000. Dori was employed by the Heritage Foundation, a think tank. He was ultimately discharged because his post-surgical condition prevented him from working. Dori was making between $26,000 and $27,000 a year when he was discharged, but he was scheduled to receive a promotion which would have increased his earnings to $40,000 a year. Because of his physical condition, Dori is essentially limited to staying home at his parent=s house. Issue Dori challenges the trial court=s judgment with one issue. Dori argues the jury=s no-damage finding is against the great weight and preponderance of the evidence because the jury found that Bondex=s products contained a design defect which was a producing cause of his mesothelioma and because the objective evidence presented at trial established his illness and its effects. Standard of Review When conducting a factual sufficiency review, we cannot substitute our judgment for that of the jury. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982). We are required to consider and weigh all of the evidence in the case and remand for a new trial only if we conclude that the jury=s verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The Jury=s Verdict. The trial court=s charge contained three liability questions. The first was a general negligence question, and the second was a marketing defect question. The jury found for Bondex on both. The third question asked: Was there a design defect in the asbestos products manufactured and/or distributed by Defendant Bondex International, Inc. at the time such products left its possession that was a producing cause of the asbestos-related injuries, if any, of plaintiff, John Dori? The jury answered yes to this question. Question four was predicated on an affirmative answer to one or more of the liability questions and asked: What sum of money, if paid now in cash, would fairly and reasonably compensate John Dori for his injuries that resulted from the acts, omissions and/or products in question? Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Plaintiff. The charge contained separate answer blanks for physical pain and mental anguish, disfigurement, physical impairment, medical care, and lost wages. The jury wrote A0@ in each blank. Question five was a future damage question with separate blanks for physical pain and mental anguish and physical impairment. The jury wrote A0@ in both blanks. Was the Jury Required to Award Damages? Initially, we must determine the effect of the jury=s design defect finding. Dori argues that it established both Bondex=s breach of duty and causation. Because he has objective evidence of injury, the jury=s zero damage findings are, by necessity, against the great weight and preponderance of the evidence. Bondex essentially asks this court to ignore question three=s producing-cause language. Bondex contends the damage questions limited the jury=s consideration to injuries that resulted from their products and that, because there was no evidence that a Bondex product caused Dori to contract mesothelioma, the trial court=s judgment should be affirmed. Dori=s argument is based upon the zero damages rule. He argues that, when there is objective evidence of an injury, jury findings of no injury or damage are against the great weight and preponderance of the evidence. See, e.g., Davis v. Davison, 905 S.W.2d 789, 790 (Tex. App.CBeaumont 1995, no pet.). Dori correctly notes that this court has distinguished between objective and subjective damages and has concluded that the jury may disbelieve the plaintiff=s testimony about subjective injuries but it cannot disregard unrefuted, objective injury evidence. See, e.g., Kraatz v. Faubion, 617 S.W.2d 277, 279 (Tex. Civ. App.CEastland 1981, no writ). Dori contends that his mesothelioma is an objective condition which has caused him to suffer significant pain, mental anguish, physical impairment, and disfigurement. Because the jury found a design defect that was a producing cause of his injuries, he concludes the jury was required to award some damages. The continued viability of the zero damages rule is at best questionable. See Golden Eagle, 116 S.W.3d at 776 (O=Neill, J., concurring). In Golden Eagle, the court held that the mere failure to award damages for physical impairment is not against the great weight and preponderance of the evidence simply because there is objective evidence of injury. Id. at 774. Furthermore, even in Kraatz, 617 S.W.2d at 277, we recognized limitations to the zero damages rule when the claimant argued that the jury=s finding of an injury in one question required a damage award in a subsequent question. In Kraatz, the plaintiff was involved in a collision between a tractor and a pickup. The jury awarded him damages for medical bills and lost earnings but not for physical pain or mental anguish. The plaintiff argued that, because the jury found that he had been injured in the accident, the findings of no physical pain or mental anguish damages were against the great weight and preponderance of the evidence. Id. at 279. We overruled plaintiff=s point of error, noting that his contention was that the jury=s findings were in conflict. That point, however, had not been preserved and could not be considered by us on appeal. Dori did not object to the jury=s verdict on the basis of conflicting answers. On appeal, Dori does not contend the jury=s answers are in conflict B instead he argues only that the zero damage findings are against the great weight and preponderance of the evidence. Bondex contends that the jury=s findings should be reconciled but, if they cannot, that Dori waived any error by not objecting to the verdict prior to the jury=s release. Bondex relies principally upon Srite v. Owens-Illinois, Inc., 870 S.W.2d 556 (Tex. App.CHouston [1st Dist.] 1993), rev=d sub nom on other grounds, Owens-Illinois, Inc. v. Estate of Burt, 897 S.W.2d 765 (Tex. 1995),[2] for its argument that, because the jury was instructed to limit its damage award to injuries resulting from its products and there was no evidence that Dori=s mesothelioma was caused by a Bondex product, the jury=s zero damages findings are correct. Bondex reads too much into Srite=s holding. The Houston court did correctly predict the supreme court=s subsequent analysis in Golden Eagle by holding that the zero damages rule conflicts with the standard of review articulated in Pool. The Houston court also affirmed a jury=s verdict of no past damages for several asbestos claimants. However, all but one claimant received future damages. Their claims relied almost entirely on subjective complaints like shortness of breath, and they had other health problems such as obesity which contributed to their physical condition. In this case, there is no question that Dori has well-differentiated papillary malignant mesothelioma; that it is incurable; and that he has incurred significant medical bills, lost his job, and undergone major surgery. There is no claim that his disease was caused by some voluntary activity such as smoking, that his physical limitations are due to other physical conditions like obesity, or that the jury=s total verdict fairly compensates him for his injury. Finally, there is no claim that his injuries can be attributed to a damage element that was not included within the past or future damage questions. Srite, therefore, is informative but not controlling. We cannot agree with Bondex=s argument that the jury=s findings can be reconciled by treating the damage questions as the causation issues. Question three not only asked the jury if Bondex=s asbestos products contained a design defect, it asked if this defect Awas a producing cause of the asbestos-related injuries, if any, of plaintiff, John Dori.@ The court instructed the jury that A[p]roducing cause@ meant Aan efficient, exciting, or contributing cause that, in a natural sequence, produced the injury.@ The jury unanimously answered this question yes. Unless the record demonstrates otherwise, we must presume that the jury followed the trial court=s instructions. In re K.R., 63 S.W.3d 796, 800-01 (Tex. 2001). Bondex does not challenge the jury=s design defect finding. We have, therefore, an unchallenged finding of producing cause. We do, however, agree with Bondex that Dori=s argument is based upon the premise that the jury=s answers are in conflict and that this issue was not preserved. Jury findings are in conflict when one answer establishes a cause of action or defense while another destroys it. The test is whether, when taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff and, when taking it alone in the other, a judgment should be entered in favor of the defendant. Waltrip v. Bilbon Corp., 38 S.W.3d 873, 877 (Tex. App.CBeaumont 2001, pet. denied). Tex. R. Civ. P. 295 provides a procedure for correcting conflicting jury answers. Under Rule 295, the trial court may instruct the jury of the conflict and retire the jury for further deliberations. However, the trial court must be made aware of the conflict before the jury is discharged, or error is waived. Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107 (Tex. App.C Eastland 1992, writ den=d); Kraatz, 617 S.W.2d at 277; Sands Motel v. Hargrove, 358 S.W.2d 670 (Tex. Civ. App.CTexarkana 1962, writ ref=d n.r.e). Dori strongly disagrees with this characterization of his appeal. Dori notes that appellant is the master of his appeal and sets forth the bases for that appeal, that we cannot sua sponte grant an appeal on grounds not raised by appellant, and that the appellee cannot modify an appellant=s argument. Dori has carefully and thoughtfully drafted his briefs to challenge the jury=s verdict on factual sufficiency grounds and has avoided any direct reference to conflicts in the jury=s findings. But, the clear import of his argument is that the jury=s liability finding required a damage award. Dori reasons that the jury=s affirmative answer to question three resolved the question of causation in his favor and that a causation element cannot be read into the damage questions. A finding of no damages, in light of the jury=s determination that his mesothelioma was caused by Bondex=s design defect, is per se against the great weight and preponderance of the evidence. Dori=s well-crafted argument is simply another way of saying the jury=s verdict contained conflicting answers.[3] The jury=s finding of a design defect which was the producing cause of Dori=s asbestos-related injuries cannot be reconciled with the jury=s subsequent determination that no injury resulted from Bondex=s products. Because Dori did not raise this issue before the trial court, we find that the jury=s design defect finding does not mandate a damage award. See Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 867 (Tex. App.CAustin 2006, n.p.h.)(absent a conflict complaint the court must give effect to each jury finding in the ordinary fashion). Are the Jury=s No-Damage Findings Against the Great Weight and Preponderance of the Evidence? Even though the jury=s design defect finding cannot be asserted as a mandatory basis for an award of damages, its no-damage findings must still be based upon factually sufficient evidence. Dori properly preserved this issue with his motion for new trial and presents it in his briefs with this court. Consistent with the supreme court=s instruction in Pool, 715 S.W.2d at 635, we will consider and weigh all of the evidence to determine if the jury=s no-damage findings are against the great weight and preponderance of the evidence and will detail the basis for our conclusion. Mesothelioma is one of the rarest cancers reported in the United States. There was no dispute that Dori has well-differentiated papillary malignant mesothelioma, a form of peritoneal mesothelioma. There was substantial dispute as to whether this form of mesothelioma is caused by asbestos, whether the type of asbestos to which Dori was exposed could account for his illness, and whether his exposure was sufficient to cause well-differentiated papillary malignant mesothelioma. Both parties relied upon expert testimony and utilized individuals regularly involved in asbestos litigation. Neither side challenges the qualifications of the other=s experts or the reliability of their opinions. The jury, therefore, had the task of resolving any conflicts in the testimony. 1. Mesothelioma and Asbestos There was no dispute that asbestos is the cause of most mesothelioma. The dispute concerned asbestos=s role in Dori=s particular illness. One of Dori=s experts, Dr. Douglas A. Pohl, a board-certified pathologist, testified that at least 90% of all mesothelioma cases are caused by exposure to asbestos. He described studies which have shown a connection between mesothelioma and specific trades that used asbestos products, such as insulators, auto mechanics, drywall workers, and plasterers. When an individual breathes asbestos fibers, the fibers can migrate from the lung to the pleura and the mesothelial cells which line and lubricate the lung as it expands and contracts against the chest wall. Dr. Arnold R. Brody, a professor of pathology at Tulane University Medical School, testified that the fibers can then move into the body=s blood flow or lymphatic system. In the peritoneal cavity is a series of lymph nodes called mesenteric lymph nodes which can collect asbestos fibers. The fibers can travel from the nodes to the fluid that moistens the mesothelial surfaces and into the peritoneal cavity where they affect the mesothelial cells in the peritoneum. The asbestos fibers can cause the mesothelial cells to divide improperly and lack a complete set of DNA. Dr. Pohl described a study, which was published in the 2001 American Journal of Epidemiology, of Chinese asbestos workers who were exposed only to chrysotile asbestos. According to Dr. Pohl, a Alongitudinal study@ of workers from 1972 through 1996 was performed. The researchers found that workers= mortality rates due to pleural and peritoneal mesothelioma increased as a result of working with asbestos. Dr. Pohl testified that OSHA, the EPA, and the NIOSH have all concluded that asbestos causes mesothelioma. Dr. Brody testified that the World Health Organization has identified asbestos as a cause of mesothelioma. There is, however, evidence in the scientific literature of mesothelioma cases that were not caused by asbestos or at least with no known asbestos exposure. Some researchers believe that 42% of all peritoneal mesothelioma cases are idiopathic, or have no known cause. Dr. Allan Feingold, an M.D. who specializes in lung disorders, testified for Bondex. He testified that mesothelioma usually develops in the parietal pleura membrane and is usually caused by amosite and crocidolite fibers. People who are heavily exposed to these fibers can contract peritoneal mesothelioma, but well-differentiated papillary malignant mesothelioma is generally not caused by asbestos. Dr. Pohl disagreed, testifying that all types of mesothelioma have been associated with asbestos. Dr. Feingold was aware of four cases of well-differentiated papillary malignant mesothelioma being linked to asbestos. It is usually reported in individuals with no possible asbestos exposure and insufficient latency to develop the disease. Dr. Feingold testified that Dr. Victor Roggli, a pathologist from Duke University, has recently published a book in which he concluded a history of asbestos exposure was not present in most cases of well-differentiated papillary malignant mesothelioma. Dr. Roggli relied, at least in part, on a prior study which reported that more than 50% of the cases of well-differentiated papillary malignant mesothelioma were not related to asbestos. 2. Chrysotile Asbestos and Mesothelioma There are three principal types of asbestos: crocidolite, amosite, and chrysotile. Chrysotile is the most common and accounts for 95% of the asbestos in the United States. Bondex=s joint compound contained chrysotile fiber asbestos. Bondex disputed whether chrysotile asbestos can cause well-differentiated papillary malignant mesothelioma.[4] Dr. Pohl and Dr. Brody both testified that crocidolite, amosite, and chrysotile have each been associated with mesothelioma and that the published literature says chrysotile asbestos causes mesothelioma of the pleura and peritoneum. Dr. Brody agreed that crocidolite and amosite are more potent and that the potential of chrysotile asbestos to cause mesothelioma has been much debated. Dr. Barry Castleman, who holds a Ph.D. in public health, testified that the EPA has accepted chrysotile as a cause of mesothelioma. Dr. Pohl described studies of Canadian miners who mined only chrysotile asbestos and factory workers who used only chrysotile asbestos but who still contracted mesothelioma. He also described an experiment conducted on rats that concluded chrysotile asbestos causes pleural mesothelioma. Dr. Brody acknowledged that one study concluded that only crocidolite asbestos causes mesothelioma. He also agreed that Dr. Andrew Churg is a preeminent pathologist who believes chrysotile is associated with mesothelioma at a much lower rate than either amosite or crocidolite asbestos. Dr. Churg believes that, for chrysotile to cause mesothelioma, there must be sufficient exposure to cause asbestosis or pleural plaque, which is a high level of exposure. Dr. Brody additionally acknowledged that Dr. Roggli, with whom he had written several papers, had also concluded that low doses of chrysotile asbestos will not cause mesothelioma and that asbestos exposure is not present in most cases of well-differentiated papillary malignant mesothelioma. Dr. Feingold described a study which found no documented case of peritoneal mesothelioma in miners who were heavily exposed to chrysotile asbestos. He also described a study conducted in 1982 of women who worked at two British factories during World War II making gas masks. One factory used crocidolite asbestos and the other chrysotile. The study concluded that workers using crocidolite were at increased risk for mesothelioma while those who used chrysotile were not. 3. Secondhand Exposure There was no evidence Dori ever used a Bondex product. Nor did he contend that he was present when others used one. Any exposure was incidental. There was substantial dispute whether Dori=s illness could result from incidental exposure. Dr. Pohl testified that there is no safe threshold level for asbestos and that anyone breathing above the level of asbestos in regular air is at risk. Dr. Pohl and Dr. Brody both testified that wives, children, and pets have contracted mesothelioma from exposure to asbestosis dust brought home by their husband/father/owner. Dr. Pohl opined that Dori=s illness resulted from exposure to asbestos dust through his grandfather. Dori testified that he believed he was exposed to Bondex through his grandfather, Peter Dori, who built custom homes and manufactured pre-hung doors. When Dori was a child, Peter built four houses. Peter normally used plaster walls, although Dori recalled one job site where his grandfather used drywall. Peter subcontracted out most of the plaster work; but Peter and his employees would do occasional patchwork, cleanup work, or repairs. They used Bondex Joint Compound to repair wall damage. The joint compound came in five-pound boxes which were made of thin cardboard. The compound was a powder. It was mixed with water, applied, and sanded after drying. Mixing and sanding caused some dust. The dust would get on the workers= clothes. Dori=s uncle, Joseph Dori, worked for Peter as a young man. He testified that, if Peter used Bondex Joint Compound on the four houses built while Dori was a child and if Peter did all of the mixing, application, and sanding himself, he probably would have worked with the compound for approximately six hours. Peter had a detached garage at his house which was used to store supplies. There were probably two boxes of leftover Bondex Joint Compound in the garage. There were also bags of cement, mortar, and possibly lime. Dori grew up close to Peter=s house and liked to spend time with his grandfather. He went to job sites with him. When Dori was at Peter=s house, he and his cousins played in Peter=s garage. They played soccer and sometimes hit one of the boxes inside the garage with a ball. Dori could not testify that the boxes contained a Bondex product, but he did testify that when the ball hit a box it Araised up a mess@ and caused a puff of dust to escape. Family members testified that Dori and his cousins played in the garage during visits to Peter=s house from 1967 to 1972. Dori believes they hit a ball into a box 30 to 40 times during this period. Dori helped his grandfather clean the garage several times. Sometimes they swept it out, and sometimes they hosed it out. Dr. Brody testified that there is no safe level for asbestos exposure and that there are cases of brief exposure to asbestos resulting in mesothelioma. He testified that cancer is a disease which occurs because of genetic errors and that different people have different susceptibilities. Dr. Brody agreed that as a general rule one needs more exposure to chrysotile asbestos to contract mesothelioma but opined that some individuals can get it from low doses. He also agreed that generally one would need more exposure for peritoneal mesothelioma but testified that some individuals will be more susceptible than others. Dr. Castleman testified that there is some debate over dose response because scientist do not have a way to measure or observe the low dose, low risk curve. Instead, they extrapolate from high dose and high risk to low dose and low risk. He understands that some believe low level exposure to chrysotile asbestos will not increase the risk of mesothelioma, but he disagrees and believes that low level exposures still carry some risk of mesothelioma. Dr. Feingold disagreed with these conclusions. He testified that the cases of secondhand exposure involved a worker who was heavily exposed to asbestos and family members who were exposed to the worker for a number of years. Dr. Feingold concluded that Dori=s incidental exposure to Bondex Joint Compound could not have been the cause of his well-differentiated papillary malignant mesothelioma. Conclusion After reviewing all of the evidence, deferring as we must to the jury=s resolution of fact questions and considering only the jury=s damage findings, we cannot say that those findings were so against the great weight and preponderance of the evidence as to be manifestly unjust. There was considerable disagreement between the expert witnesses over whether Dori=s illness was caused by exposure to Bondex Joint Compound. The evidence was factually sufficient to support a conclusion that Dori was not exposed to asbestos from that compound or that his illness did not result from any exposure. Dori=s issue is overruled, and the judgment of the trial court is affirmed. RICK STRANGE JUSTICE June 8, 2006 Panel consists of: Wright, C.J., and McCall, J., and Strange, J. C O N C U R R I N G   O P I N I O N I join in the judgment but write separately because (1) the two jury answers can be reconciled and (2) once reconciled, it is clear that the jury did not find that Bondex=s products caused appellant=s unique type of mesothelioma. The third question, answered in the affirmative, was whether there was a design defect in the products manufactured or distributed by Bondex that Awas a producing cause of the asbestos-related injuries, if any, of plaintiff, John Dori.@ At that point, the jury=s answer was that the design defect was a producing cause of asbestos-related injuries of appellant if there were any such asbestos-related injuries. The jury next answered question four, and it is clear from that answer that the jury did not think there were any asbestos-related injuries. As the majority states, there was substantial dispute among the experts whether this form of mesothelioma was caused by asbestos. The jury heard expert testimony that well-differentiated papillary malignant mesothelioma was generally not caused by asbestos. The jury may have had this testimony in mind, as well as the extremely limited exposure of appellant to Bondex=s products, when it answered that appellant had no injuries that Aresulted from the acts, omissions and/or products@ of Bondex. The jury=s answer to question four determined that appellant=s mesothelioma was caused by something other than Bondex=s products. The evidence is both legally and factually sufficient to support the take-nothing judgment. Moreover, if the answers are considered to be in conflict, the majority=s rationale is correct. TERRY McCALL JUSTICE June 8, 2006 Panel consists of: Wright, C.J., and McCall, J., and Strange, J. [1]Dori=s original petition included three other plaintiffs and twenty-five defendants. Only Dori=s claims against Bondex are before us. [2]The supreme court considered only the calculation of prejudgment interest and did not address the remainder of the Houston court=s decision. [3]Cf. Kitchen v. Frusher, 181 S.W.3d 467, 472-73 (Tex. App.CFort Worth 2005, no pet.)(analyzing alleged conflict between liability question which asked if plaintiff had performed compensable work with a damage finding that the reasonable value of that compensable work is zero). [4]Cf. Celotex Corp. v. Tate, 797 S.W.2d 197, 203 (Tex. App.CCorpus Christi 1990, writ dism=d by agr.), where the court affirmed a jury finding that plaintiff=s pleural mesothelioma was caused by exposure to chrysotile asbestos fibers.