Fuller-Austin Insulation Co. v. Bilder

Citations: 960 S.W.2d 914; 1998 Tex. App. LEXIS 84Docket: 09-96-132 CV

Court: Court of Appeals of Texas; January 7, 1998; Texas; State Appellate Court

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In the case of Fuller-Austin Insulation Company, Inc. v. Kay and Frank Bilder, the Court of Appeals of Texas reviewed a jury verdict against Fuller, an insulation subcontractor. The Bilder family sought damages for personal injuries and loss of consortium due to Kay Bilder's mesothelioma, which resulted from childhood exposure to asbestos. Kay's exposure occurred while living with her stepfather, Ray Hardy, an insulation installer who frequently worked with Fuller's asbestos products. The jury found Fuller liable for a marketing defect and negligence for failing to warn about asbestos dangers.

Fuller contested the trial court's decision to submit a marketing defect question to the jury, arguing that it had no duty to warn Kay since she was not a foreseeable user of its product and that the risks were unknown at the time of her exposure. The court's review standard for jury charge complaints is based on whether the submitted questions reflect the issues raised in the pleadings and evidence. A marketing defect is established when a product is deemed unreasonably dangerous due to inadequate warnings or instructions.

To prove a marketing defect claim, a plaintiff must demonstrate: (1) inherent risk of harm from the product's intended use; (2) supplier's knowledge or foreseeability of that risk at the time of marketing; (3) the presence of a marketing defect; (4) absence of adequate warnings or instructions rendering the product unreasonably dangerous; and (5) a causal link between the failure to warn and the injury suffered by the user.

By 1956, Fuller was aware or should have reasonably foreseen the health risks associated with inhaling asbestos dust. Testimony revealed that Fuller had maintained workers' compensation insurance since 1944, which covered asbestosis, and that by 1956, it was known that inhalation of dust from their products was harmful. Dr. John Dement, an expert in industrial hygiene, testified that knowledge of asbestos-related diseases dates back to the 1920s and was well-established by the 1930s. He presented literature from 1913 to 1960 indicating that manufacturers of asbestos products should have recognized the dangers of inhaling contaminated dust. Notably, a significant epidemiology study in 1955 linked asbestos inhalation to lung cancer, corroborating earlier findings. Dr. Dement also referred to a 1937 health department publication warning against contamination from toxic materials on work clothing.

During the period from 1956 to 1960, Fuller sold insulation that Hardy used without providing warnings about asbestos dangers, training to handle the dust, or guidelines for exposure. Fuller also failed to supply protective clothing or laundry facilities for contaminated work attire. Had proper warnings been provided, Hardy might have prevented exposing his family to asbestos dust, which contributed to Kay's death. Under strict liability principles, recovery extends beyond users and consumers to include bystanders, as demonstrated in Darryl v. Ford Motor Co. and Owens-Corning Fiberglas Corp. v. Martin. The court rejected Fuller's defense that Mrs. Bilder was not a foreseeable user of asbestos.

The Bilders presented sufficient evidence for a marketing defect theory, leading the trial court to correctly allow the marketing defect jury charge. Fuller's claims of insufficient evidence for the jury's marketing defect finding were overruled. The legal sufficiency review focused solely on evidence supporting the jury's findings, affirming that the court may not overturn the judgment if there is more than a scintilla of evidence. Subsequently, the factual sufficiency of the evidence was assessed by weighing all evidence related to the findings.

The jury's findings must be upheld unless they are manifestly unjust or erroneous, as established in Cain v. Bain and Pool v. Ford Motor Co. The evidence supporting the marketing defect theory exceeds a minimal threshold and validates the jury's conclusion regarding a marketing defect. Fuller's arguments regarding the trial court's error in submitting a premises liability standard of care are unsupported since he was not an owner, occupier, or tenant of the premises where asbestos was used. The trial court's instructions and definitions are reviewed for abuse of discretion, focusing on whether they assist the jury. The definitions provided were deemed sufficiently clear and appropriate, and no evidence was presented indicating Fuller’s ownership or occupancy of the relevant premises. Consequently, the alleged errors did not deny Fuller his rights or lead to an improper judgment. Fuller's claims of insufficient evidence supporting the jury's negligence finding were also dismissed. The elements of negligence require proof of a legal duty, breach of that duty, and resulting damages. Testimony revealed that Kay was exposed to asbestos dust from her stepfather, Hardy, who frequently used insulation supplied by Fuller, and that Fuller failed to warn about the associated health risks, thus supporting the jury's finding of negligence.

Kay's mesothelioma was conclusively linked to daily asbestos exposure in her home, supported by the testimony of Dr. Sammuel Hammar, an asbestos specialist. Legal precedent allows bystanders like Kay to seek damages for injuries from asbestos exposure. The jury's finding of negligence was backed by sufficient evidence, and the court found no manifest injustice in their verdict, thereby overruling points of error six and seven. In point of error two, Fuller contested the submission of a negligence question, arguing a lack of duty to Kay and insufficient causation. However, the court upheld the jury charge based on the pleadings and evidence indicating Fuller's duty to warn Kay, a bystander exposed to asbestos, of its dangers. 

In point of error eight, Fuller claimed the trial court improperly barred cross-examination of the plaintiffs' expert and questioning of its own witness regarding post-1960 asbestos research. Fuller asserted the relevance of this evidence to establish that the link between household exposure and asbestos diseases was not recognized until after 1960. The Bilders countered that Fuller had previously deemed this evidence irrelevant and that the trial court acted correctly in excluding it. The court's discretion over evidentiary matters is emphasized, with the burden on Fuller to demonstrate that the exclusion likely resulted in an improper judgment. Additionally, Fuller's attempts to show ignorance of asbestos risks prior to 1960 were not hindered, as their president testified about the company's awareness of asbestos-related health risks.

Fuller's counsel argued during closing statements that, as of 1960, there was no requirement for zero exposure to asbestos, nor had any government agency mandated warnings regarding its dangers. The implication was that Fuller was unaware of asbestos's harmful effects during the relevant exposure period. The court found that the evidence excluded regarding when Fuller became aware of these dangers was not compelling enough to affect the judgment, leading to the overruling of point of error eight. 

In point of error nine, Fuller contested the exclusion of Dr. Corwin Hinshaw's testimony, which was presented as a transcript from another lawsuit. The trial court upheld a hearsay objection, requiring proof of the witness's unavailability under Texas Rules of Civil Evidence Rule 804(a). Fuller's counsel claimed Dr. Hinshaw was in California, 92 years old, uncooperative, and ill, supported by an affidavit stating he was too ill to travel. However, mere attorney statements were deemed insufficient to establish unavailability, as Fuller's counsel failed to demonstrate efforts to secure Dr. Hinshaw’s deposition or testimony. The trial judge's decision to exclude this evidence was upheld, resulting in the overruling of point of error nine.

In point of error ten, Fuller claimed the trial court erred by not granting an instructed verdict, failing to submit a jury question, and not granting a take-nothing judgment based on the statute of repose, specifically section 16.009 of the Texas Civil Practice and Remedies Code. This statute requires that claims related to construction or repair defects be filed within ten years of substantial completion of the improvement.

The court upheld its decision not to submit a statute of repose question to the jury, determining that the Bilders did not claim their loss resulted from a defect or unsafe condition on real property or construction deficiencies. Kay's claim was centered on Fuller's failure to warn about asbestos exposure, which did not invoke Section 16.009. As a result, the statute was not a critical issue in the case. A directed verdict is appropriate when pleadings are insufficient, evidence conclusively proves a fact for judgment, or evidence is inadequate to raise a factual issue. In this case, Fuller failed to provide evidence linking Kay's injury to an unsafe property condition or construction defect, justifying the trial judge's denial of Fuller's directed verdict request and take-nothing judgment based on the statute of repose.

In another point, Fuller contended that the trial court erred by denying it a dollar-for-dollar settlement credit and enforcing a sliding scale credit election made by Crown, a party that had settled before the jury's deliberation. Fuller had filed for dollar-for-dollar credit prior to trial, while Crown opted for sliding scale credit during the trial. The court ruled in favor of the sliding scale credit, which Fuller argued was invalid due to Crown's status as a nonsuited party at the time of submission to the jury. Texas law mandates that if conflicting credit elections are made, the sliding scale credit applies, as only a "defendant" can make a binding election. Since Crown was not considered a defendant when the case was submitted, the court's decision to apply the sliding scale credit was upheld.

Fuller was incorrectly compelled to accept a sliding scale credit election, and the trial court should have granted him a dollar-for-dollar settlement credit, leading to the sustenance of point of error eleven. In point of error twelve, Fuller contended that the trial court improperly calculated prejudgment interest on the total jury verdict before applying the settlement credit and erroneously accrued this interest during the statutory 180-day settlement period. It was clarified that prejudgment interest should be based on the court's judgment, not the jury's verdict, and it should only accrue starting six months after the defendant received notice of the claim or after the lawsuit was filed, whichever occurred first. Since there is no record of the Bilders notifying Fuller prior to the lawsuit, the prejudgment interest should be calculated from six months post-filing. Therefore, the trial court's calculation method was erroneous, and point of error twelve was also sustained. The case is remanded to the trial court for recalculation of prejudgment interest and the final judgment amount in accordance with section 33.012(b)(1) of the Texas Civil Practice and Remedies Code, while the remainder of the judgment is affirmed.