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Mobil Oil Corp. v. Bailey
Citations: 187 S.W.3d 265; 2006 WL 560584Docket: 09-04-225-CV
Court: Court of Appeals of Texas; April 13, 2006; Texas; State Appellate Court
Mobil Oil Corporation and its subsidiaries appealed a wrongful death judgment in favor of Pearlie Bailey and others, who claimed that James Bailey’s lung cancer was caused by asbestos exposure while working at Mobil's facilities. The jury initially found that Mobil's negligence was the cause of Bailey's death, awarding $350,000 in actual damages (mostly offset by settlement credits) and $500,000 in exemplary damages due to malice. Mobil contested the judgment, arguing the Baileys failed to provide sufficient medical evidence linking asbestos exposure to Bailey's cancer, as there were no medical indicators of asbestos-related disease in his lungs. Instead, Mobil argued that Bailey's long history of heavy smoking was the likely cause of his lung cancer. The appeal centered on the admissibility of expert testimony regarding medical causation and the sufficiency of evidence supporting the jury's findings. Ultimately, the court found that the Baileys did not present adequate probative evidence of medical causation, leading to a reversal of the trial court's judgment and a ruling in favor of Mobil. The legal standard for the admission of scientific expert testimony was referenced, requiring that such testimony be relevant and based on a reliable foundation. The Robinson Court established that under Rule 702, proffered testimony must be (1) scientific knowledge and (2) relevant to assist the trier of fact in understanding evidence or determining factual issues. 'Scientific knowledge' requires reliability, while relevance necessitates a valid scientific connection to the inquiry. The Court clarified that the 'legal sufficiency of scientific evidence' falls outside the scope of Rule 702. Robinson remains the authoritative case regarding the admissibility of expert testimony, including scientific testimony, in Texas. In the 1997 case of Merrell Dow Pharmaceuticals, Inc. v. Havner, the Texas Supreme Court addressed the legal sufficiency of causation evidence in a products liability context. Although the court limited its review to the legal sufficiency of evidence, it integrated the admissibility standards from Robinson into its analysis of no evidence appeals. The Havner Court's approach is stricter than traditional no evidence reviews, arguing that evaluating the reliability of scientific evidence is essential, rather than merely reviewing the transcript of expert testimony. The court acknowledged the complexities of aligning scientific standards with legal burdens of proof but affirmed that well-designed epidemiological studies could support causation claims in toxic tort cases. This rationale connects the necessity for a substantial increase in risk with the no evidence standard and the more likely than not burden of proof. Ultimately, the Havner Court's no evidence standard applies to litigants relying on scientific studies to establish causation when direct evidence is absent, as demonstrated by the plaintiffs' reliance on epidemiological studies to link limb reduction defects with the drug Bendectin. To establish causation for a birth defect linked to a mother's ingestion of Bendectin during pregnancy, the Havners were required to demonstrate that the risk of the defect was more than doubled compared to a control population. This involved not only presenting epidemiological studies with significantly elevated risks but also ensuring the claimant's circumstances matched those in the studies. Key factors include proof of exposure to the same substance, comparable or greater dose levels, timing of exposure before the injury, and alignment of injury onset with the study findings. Additionally, plaintiffs must exclude other plausible causes of the injury with reasonable certainty. The Havner case emphasized that expert testimony must account for other potential causes; failure to do so can render the testimony speculative. The Texas Supreme Court's decision in City of Keller clarified that in legal sufficiency reviews, courts should consider evidence favoring the verdict while disregarding contrary evidence unless it overwhelmingly undermines the supporting evidence. Furthermore, jurors must evaluate the reasonableness of credibility determinations and cannot dismiss clear, credible, and uncontested testimony. When challenging expert testimony, the opinion alone is insufficient; the expert's underlying data must be evaluated for reliability, with the proponent bearing the burden to demonstrate this reliability. If expert testimony is deemed unreliable, it is not considered evidence. The Court in Helton established that unreliable expert testimony should be considered 'no evidence.' This determination hinges on the reliability of the underlying principles, research, and methodology of the expert's conclusions. Expert testimony is deemed unreliable if it lacks a scientific foundation and is merely subjective or speculative, as highlighted in Exxon Pipeline Co. v. Zwahr. Additionally, expert testimony may be unreliable if there is a significant analytical gap between the data and the opinion presented. When evaluating the reliability of expert testimony, the court focuses on the analysis used to reach conclusions rather than the correctness of those conclusions themselves. In toxic tort cases, evidence of both 'general' and 'specific' causation is typically required. General causation refers to a substance's potential to cause an injury in the general population, while specific causation pertains to a substance's role in causing an individual’s injury. Proof of one type does not automatically validate the other, especially when direct, reliable medical testing for specific causation is absent. Regarding the Baileys' claim that Mobil waived its objection to the trial court's failure to exclude the plaintiffs' causation experts, the record shows Mobil filed timely written objections based on the reliability standards from Havner, Robinson, and Daubert prior to testimony. Under Coastal Transport Company, parties must object to scientific evidence before trial or when it is presented to preserve claims of unreliability. Mobil's objections were appropriately preserved for appellate review. At trial, one plaintiff, Bailey, along with two others, claimed asbestos-related illnesses due to exposure, although their exposure circumstances and health outcomes varied. Specifically, Ladner was diagnosed with asbestosis, having minimal smoking history and significant exposure from laundering her husband's asbestos-contaminated work clothes over many years. Myers, the second plaintiff, claimed she developed mesothelioma from washing her father's asbestos-contaminated work clothes over approximately sixteen years while living with him, alongside a minimal smoking history. Expert testimony from Dr. Gary Friedman indicated no link between smoking and mesothelioma, asserting that mesothelioma originates outside the lungs. The jury heard extensive evidence regarding the relationship between asbestos exposure and diseases like asbestosis and mesothelioma, necessitating the plaintiffs to establish general causation—demonstrating asbestos as a carcinogen that increases the risk of various asbestos-related diseases. The Baileys, as proponents of expert testimony, were tasked with demonstrating specific causation, i.e., providing credible evidence that asbestos exposure at Mobil caused James's lung cancer while ruling out his heavy smoking as a plausible alternative cause. Dr. Friedman and Dr. Richard Lemen served as their medical causation experts, with both indicating that James's asbestos exposure significantly increased his lung cancer risk. Dr. Friedman noted that such exposure doubled his risk, while Dr. Lemen highlighted a synergistic effect wherein smoking combined with asbestos exposure greatly heightened lung cancer risk. The Baileys pointed to scientific literature supporting their experts' views, although some of this literature was either difficult to locate or lacked clarity regarding methodology. Notably, one exhibit acknowledged the synergy between cigarette smoke and asbestos but cautioned that the relationship between asbestos and lung cancer, particularly without the presence of asbestosis, remains unresolved within the scientific community. The authors emphasized that diverse methodologies across disciplines complicate definitive conclusions about asbestos as a carcinogen in the absence of asbestosis, indicating a need for more integrated understanding across different fields of study. Concerns are raised regarding the certainty of asbestos's role in causing or contributing to bronchogenic carcinoma, particularly in relation to the Baileys' causation experts. Eight potential conclusions regarding this relationship are identified, with some being mutually exclusive, as detailed in Table 4. Notably, conclusions vary from certainty that asbestos did not cause the carcinoma (if no asbestos is found) to the possibility of causation without definitive evidence. The Baileys' experts failed to clarify their reliance on Plaintiffs' Exhibit 16 or its acceptance in the scientific community. According to the Havner ruling, if foundational data is unreliable, any opinions derived from it are also unreliable. Additionally, even reliable data can yield unreliable testimony if based on flawed methodologies. Dr. Jerrold L. Abraham's commentary (Plaintiffs' Exhibit 17) asserts that the presence of asbestosis is irrelevant to attributing lung cancer to asbestos exposure, arguing that asbestos inhalation causes both conditions. However, mere logical reasoning does not suffice to establish causation. Abraham's observations highlight potential conflicts of interest within the scientific community, as many experts serve as witnesses in legal cases. He suggests that scientific articles need to acknowledge their medico-legal implications to prevent bias. The complexity of causation related to asbestos is acknowledged, with a call for open discussion to resolve the ongoing controversy. Dr. Abraham's commentary serves as a response to Dr. Andrew Churg's editorial on asbestos and lung cancer, rather than an epidemiological analysis. It raises critical questions about scientific methodologies, particularly the varied criteria for diagnosing asbestosis across studies—some requiring radiologic evidence while others demand biopsy confirmation. The commentary lacks the reliability necessary for independent validation of causation opinions regarding James's lung cancer, as highlighted by Robinson's admissibility standards. Plaintiffs' Exhibit 18, a study from The Lancet, investigates the link between asbestos exposure and lung cancer, finding an association even without evident pulmonary fibrosis. However, it references two studies that challenge this link: one on asbestos-cement workers in Louisiana, which found no increased lung cancer rates among those without small opacities, and another on South African miners that only noted increased lung cancer in those with pulmonary fibrosis. While the methodology in Exhibit 18 is deemed reliable under Havner/Robinson standards, the Havner court clarified that a single reliable study does not suffice as legal evidence of causation. The Baileys' causation experts failed to adequately explore or explain reliable scientific methodologies related to the link between asbestos exposure and lung cancer in heavy smokers, nor did they substantiate the acceptance of the 'synergism' theory within the scientific community. Each of the Baileys' causation experts attributed James's lung cancer equally to his heavy smoking and asbestos exposure. According to the Havner precedent, plaintiffs must provide evidence excluding other plausible causes of injury with reasonable certainty. The court found no scientifically reliable evidence to support the jury's verdict favoring the Baileys, leading to the reversal of the trial court's judgment and a ruling in favor of Mobil. Justice David Gaultney dissented, arguing that a specific objection to the reliability of a learned treatise was necessary when it was introduced as evidence. He contended there was sufficient evidence supporting the jury's verdict but acknowledged charge error necessitating a new trial. Mobil challenged the legal sufficiency of evidence proving that Mr. Bailey's lung cancer was caused by exposure to asbestos at its facilities. The majority opinion referenced Havner to evaluate the expert testimony's reliability. It noted that while asbestos is a recognized carcinogen, the key issue in this case was the specific circumstances under which asbestos exposure leads to lung cancer. A cited Supreme Court decision affirmed the connection between asbestos exposure and related cancer, highlighting the dispute over whether such exposure can cause lung cancer in the absence of asbestosis. Dr. Lemen, the plaintiffs' epidemiologist, acknowledged existing controversy within the scientific community regarding the necessity of asbestosis for diagnosing asbestos-related lung cancer. He affirmed that studies support the diagnosis of lung cancer related to asbestos exposure, even without asbestosis present. Exposure to asbestos has been linked to lung cancer even in the absence of asbestosis, a condition previously thought necessary for such a diagnosis. While there is ongoing debate on this matter, a significant number of medical professionals and research studies support the notion that lung cancer can occur without the presence of asbestosis. Notably, Dr. Mark's research and contemporary medical texts, such as Rosenstock and Cullen's work from 1996, affirm that asbestosis is not a prerequisite for asbestos-related lung cancer. Additionally, a 1996 expert panel in Helsinki concluded that lung cancer could develop without prior asbestotic disease. The relationship between asbestos exposure and lung cancer is complicated by smoking, which is the leading cause of lung cancer. The risk of developing lung cancer is significantly heightened for individuals exposed to asbestos, with studies indicating a synergistic effect whereby the risks from asbestos and smoking multiply rather than simply add together. The literature suggests that asbestos workers who smoke have a markedly increased risk of lung cancer, underscoring the importance of considering both factors in assessing lung cancer risk. The reliability of expert opinions on this topic is supported by their non-judicial applications, as noted by the Supreme Court in Havner. Reliance on scientific evidence for non-judicial purposes, such as medical textbooks for disease prevention or diagnosis, supports a court's finding of reliability. Testimony indicates that recent medical texts assert one need not have asbestosis to develop lung cancer, highlighting a significant non-judicial application and acceptance within the medical community. Dr. Friedman, a pulmonary and occupational medicine expert, testified that Bailey's lung cancer was due to smoking and asbestos exposure, which work synergistically. He clarified that asbestosis is not required to link lung cancer to asbestos exposure, noting that these are separate diseases. High levels of asbestos exposure may cause both asbestosis and lung cancer, but the latter can occur independently of the former. Dr. Friedman referenced a consensus report from 19 experts stating that asbestosis is not a prerequisite for asbestos-related lung cancer and presented evidence through slides, which were not included in the record. The court admitted three exhibits as learned treatises without objection, but these would not reach the jury. A party must object to evidence at trial to preserve the right to appeal, and timely, specific objections are required to inform the court of the grounds for objection. A learned treatise is recognized as a reliable authority if established by a witness or through judicial notice, with the rationale for its exception to hearsay rules based on the treatise's accuracy and professional scrutiny. The excerpt emphasizes the motivations and qualifications of authors of learned treatises, highlighting their impartiality and lack of financial incentives, distinguishing them from expert witnesses. Courts recognize that evidence meeting the learned treatise exception is inherently reliable, and parties should object to its admission if deemed unreliable. When a learned treatise is introduced, timely objections are crucial for allowing the offering party to substantiate the treatise’s reliability. If a party indicates "no objection," it may waive the right to challenge its reliability. The excerpt further discusses the necessity of specific objections to preserve claims of expert testimony unreliability. In particular, it notes that objections must address the foundational data used by the expert to properly assess reliability. The excerpt concludes with a reference to a specific article on asbestos and lung carcinoma, which is part of the evidence supporting expert testimony. The section addresses the relationship between pulmonary fibrosis, asbestosis, and lung carcinoma concerning asbestos exposure. It highlights that while heavy occupational exposure to asbestos typically leads to asbestosis, low-level exposure can result in aggressive lung cancer without the development of asbestosis. The article critiques the notion that both carcinoma and asbestosis must coexist for causation attribution, arguing that this view oversimplifies biological realities. It references Plaintiffs' Exhibit 17, a commentary admitted as a 'learned treatise,' which cites recent epidemiological data indicating increased lung cancer risk among asbestos-exposed workers, even without radiological evidence of pulmonary fibrosis. Another document, Plaintiffs' Exhibit 18, supports this by suggesting a link between asbestos and lung cancer without the necessity of visible pulmonary fibrosis. The appellant contends that these articles, admitted under the learned treatise exception to hearsay, were not part of the trial record prior to the admissibility ruling, thus should not be considered by the court. However, learned treatise statements can serve as substantive evidence for the jury, though they cannot be received as exhibits. The appellate review of evidence for legal sufficiency and scientific reliability encompasses all trial evidence, irrespective of the timing of document admission. The court emphasizes that the exclusion of learned treatises from the jury does not impede reliability assessments, which should consider all relevant evidence presented during the trial. The reference to the Havner case establishes that a sufficient evidentiary basis exists when a reasonable and fair-minded assessment can support differing conclusions. Courts are tasked with allowing parties to present the best available evidence, which must be assessed under the standards set forth in Robinson. A trial court should evaluate the totality of the evidence, considering all relevant factors affecting the reliability of studies, to determine if there is sufficient legal evidence for a judgment. The reliability of the underlying theories and evidence will vary by case, and in this instance, expert testimony was deemed reliable enough to assist the jury. Key evidence, including Plaintiffs' Exhibits 16, 17, and 18, supported the causation claims made by the plaintiffs. Notably, evidence such as Mr. Bailey's lung cancer diagnosis, his exposure to asbestos, and his smoking history were not contested on appeal. The court concluded that the evidence presented was legally sufficient to support the jury's finding. However, the trial court erred by not submitting a contributory negligence question to the jury, despite a request for it. The determination of whether multiple proximate causes exist for an injury, including whether Mr. Bailey’s smoking contributed to his lung cancer, is critical to the case. The court emphasized that all controlling fact issues supported by evidence must be presented to the jury. The appellees argued that there was no evidence showing Mr. Bailey had subjective knowledge of the synergistic link between smoking and lung cancer. They cited a federal district court opinion asserting that contributory negligence requires proof of the victim's negligence and awareness of the product's dangers, particularly in the context of asbestos-related diseases. For smoking to qualify as contributory negligence in cases involving asbestos-related diseases, the plaintiff must demonstrate awareness of the connection between smoking and the disease, as well as an understanding of the risks of continuing to smoke. However, it is argued that a smoker does not need to grasp the scientific basis for lung cancer causation to be deemed partially responsible if their smoking contributed to their lung cancer. The judgment of the trial court should be reversed, and the case remanded for a new trial due to errors in jury instructions on contributory negligence. The excerpt references the Texas Rules of Evidence, noting that Rule 702 permits expert testimony when specialized knowledge aids the fact-finder. It differentiates between the admissibility of expert testimony and the legal sufficiency of that evidence as highlighted in prior cases. The absence of supporting learned treatises from the record complicates appellate review for reliability, suggesting that while such materials should not be presented to jurors, they should still be part of the record to facilitate effective legal review. Additionally, it is acknowledged that even if a synergistic effect between asbestos exposure and heavy smoking were proven, it would not diminish the established role of smoking in the development of lung cancer but could potentially exacerbate the impact of asbestos exposure.