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Linda Faust and Donnie Faust v. BNSF Railway Company
Citation: Not availableDocket: 02-08-00226-CV
Court: Court of Appeals of Texas; January 26, 2011; Texas; State Appellate Court
Original Court Document: View Document
Linda and Donnie Faust filed a lawsuit against BNSF Railway Company for personal injuries and damages related to Linda's stomach cancer, which they allege resulted from chemical exposure at BNSF's wood treatment facility in Somerville, Texas. After a jury trial, the jury found that BNSF's negligence did not proximately cause Linda's cancer. The Fausts appealed, claiming reversible error due to the trial court's rejection of their objection to a specific causation instruction and arguing that the evidence was insufficient to support the jury's negative response to causation. The Fausts reside approximately 4,000 feet from the Somerville Tie Plant, where Donnie worked since 1974 and frequently came into contact with creosote. Linda, who had a significant smoking history and a twelve-year record of stomach issues, was diagnosed with stomach cancer in 1998 and underwent a total gastrectomy. The plant, operated by BNSF's predecessor since 1905, used creosote and other chemicals to treat wood. Experts noted that creosote is classified as probably carcinogenic, and while the plant previously used banned pesticides, it had not done so since 1981. The plant was sold to Koppers, Inc. in 1995. Linda successfully treated an H. pylori infection prior to her surgery. The plant produced various types of waste, including drainage from creosote mixtures, kickback or "drippage" from treated ties, treated wood slats, sawdust, boiler emissions possibly containing dioxins and PAHs, wastewater from vapor-drying, and atmospheric emissions. In 1992, a concrete "drip pad" was constructed to collect kickback, which had previously dripped onto soil. Dioxin and benzo[a]pyrene (a PAH) are classified as carcinogenic or probably carcinogenic to humans, respectively. The plant operated two wood-fired boilers, the Babcock-Wilcox until the mid-1980s and then the Keeler boiler. The amount and disposal methods of the waste were contested in court. The Fausts accused BNSF of negligence for releasing hazardous chemicals that allegedly contaminated their property and caused health issues, including cancer. At trial, expert testimonies were presented regarding negligence and causation. The jury was instructed to exclude other plausible causes for Linda Faust’s stomach cancer, such as smoking and a Helicobacter pylori infection, before determining causation. They ultimately found no proximate cause linking BNSF's negligence to cancer. Following the verdict, the trial court issued a take-nothing judgment against the Fausts and denied their motion for a new trial. The Fausts appealed, arguing the court erred by overruling their objection to the causation instruction, claiming it increased their burden of proof, shifted gatekeeping to the jury, and improperly influenced the evidence's weight. They noted the jury showed confusion regarding the instruction before rendering their verdict. BNSF contends that the Fausts did not adequately preserve their first appellate issue regarding jury instructions, asserting that the trial court acted within its discretion in including the instruction, and that any error was harmless. To preserve an error regarding a jury charge, a party must clearly and timely object, specifying the grounds for the objection and receiving a ruling from the trial court, as established in Ford Motor Co. v. Ledesma and Payne. The Fausts objected to the inclusion of information about Linda Faust's smoking and a bacterial infection, claiming it was prejudicial and outside the court's role as gatekeeper, but they failed to clearly articulate their objections regarding the burden of proof or the weight of the evidence during the charge conference. Their argument that their objection inherently included these issues does not align with the requirements of rule 33.1(a) or the precedent set in Payne. Additionally, the Fausts claimed that submitting a proposed jury charge without the disputed instruction was sufficient for preservation, but Payne clarified that the key factor is whether the trial court was made aware of the complaint in a timely and plain manner. Unlike the State in Payne, the Fausts did not request the inclusion of a specific question in the charge, which further undermines their position on appeal. The court distinguishes the current case from Payne based on the Fausts' failure to timely object to a jury instruction, which they claimed increased their burden of proof and commented on evidence weight. Unlike Payne, where the State expressed a clear desire for an instruction, the Fausts did not adequately preserve their objection regarding the omission of a specific causation instruction. Thus, only their argument that the instruction improperly shifted the trial court's gatekeeper function to the jury was preserved for appellate review. Regarding the merits, the Fausts argue that the instruction improperly assigned the trial court's role in assessing expert testimony reliability to the jury, while BNSF contends that the instruction was legally correct, supported by evidence, and helped the jury resolve factual disputes. The trial court is required to provide appropriate jury instructions that assist in rendering a verdict, and it has discretion under Rule 277 to determine what is necessary. An instruction is deemed proper if it aids the jury, accurately reflects the law, and is backed by pleadings and evidence. The court's discretion in submitting instructions is broader than in submitting questions, and abuse of discretion occurs when the court acts arbitrarily or unreasonably. The Fausts' argument fails to recognize the difference between the trial court's role in determining the admissibility of scientific evidence and the burden on the proponent to prove causation in toxic tort cases, especially when relying on epidemiological studies. Rule 702 mandates that the party presenting expert testimony must demonstrate the expert's qualifications and the relevance and reliability of the testimony to the case. When the opposing party challenges the reliability of scientific expert testimony, the trial court must assess whether it meets scientific reliability standards. If the court excludes the testimony, the proponent may appeal claiming an abuse of discretion. Conversely, if the court admits the testimony, the opponent can appeal arguing the evidence is legally insufficient for causation due to its unreliability. To preserve the right to challenge the reliability of scientific evidence on appeal, a party must object during trial or when the evidence is presented, although a no-evidence challenge to conclusory testimony does not require an objection. In toxic tort cases, the burden of proving causation is distinct from the trial court's reliability determination. Plaintiffs must establish both general causation (the substance's ability to cause injury in the population) and specific causation (the substance's role in causing the individual's injury). This evidentiary standard is upheld across numerous state and federal cases. Proving causation is often the most challenging aspect for plaintiffs, particularly when direct scientific experimentation is unfeasible, leaving a lack of reliable evidence for specific causation. To establish causation in a toxic tort case, a plaintiff must demonstrate through circumstantial evidence that exposure to a specific substance increases the risk of their injury. This often involves expert testimony backed by epidemiological studies that link exposure to the injury. However, showing that a chemical can cause a disease does not suffice to prove it likely caused the plaintiff’s specific condition. Both general and specific causation must be proven. To raise a factual issue on causation, plaintiffs must present more than just epidemiological studies indicating elevated risk; they must also establish that their exposure was similar in nature and timing to those studied. This includes proving that the plaintiff was exposed to the same substance, that the exposure levels were comparable or higher, that the exposure occurred prior to the injury, and that the onset timing aligns with the subjects in the studies. Additionally, plaintiffs must exclude other plausible causes of the injury with reasonable certainty. A recent Texas Supreme Court ruling emphasized the importance of demonstrating significant exposure levels, particularly in asbestos cases, where the aggregate dose must be shown to be a substantial factor in causing the disease. The court noted that juries may need specific instructions on causation standards, as highlighted in a health care liability case where the jury was not informed that a plaintiff must have a greater than 50% chance of survival for negligence to be considered a proximate cause of death. The court emphasized that lay jurors, lacking legal training, struggle to interpret complex legal standards, such as the Texas legal standard for loss of chance, from general instructions on proximate cause. Columbia's proposed loss of chance instruction was deemed necessary as it accurately reflected the law and was supported by pleadings and evidence. The trial court's refusal to include this instruction constituted an abuse of discretion. Evidence presented indicated that Linda's gastric cancer could have stemmed from multiple plausible causes, including H. pylori and smoking. Dr. Peter Shields testified that H. pylori is a well-established cause of stomach cancer and that smoking is recognized as a substantial contributor. Conversely, Dr. James Dahlgren attributed Linda's cancer to dioxins and PAHs from a plant and attempted to exclude H. pylori and smoking as causative factors. While the Fausts challenged Dr. Shields' opinions, the court noted that the burden of proving causation lay with them, relying primarily on expert testimony and epidemiological studies. The court found that the trial court’s causation instruction, although possibly incomplete, correctly outlined the necessary proof for causation. Even if the instruction was improper, the court determined that it was not harmful, as no evidence suggested that the jury's confusion about the instruction led to an improper verdict. The assessment of harm is based on whether the error likely affected the judgment or the ability to present the case on appeal. The note emphasizes that to establish specific causation for Linda Faust's stomach cancer linked to exposure at Somerville Tie Plant, the plaintiffs must rule out other plausible causes, including her smoking history and H. pylori infection. The jury faced confusion regarding how to assess causation while considering these alternative factors, leading to a perceived contradiction in the instructions. The trial court acknowledged this contradiction and instructed the jury not to answer certain questions related to Linda Faust, thereby limiting their focus to BNSF's negligence that may have caused her cancer. The court permitted expert testimony from the Fausts' designated experts, despite BNSF's objections regarding relevance and reliability. The record indicates the jury did not influence the admissibility of any expert testimony. The jury was clearly instructed on their role as factfinders, with explicit directions on evaluating witness credibility and considering only evidence presented under oath. There was no indication that the jury was to disregard the experts' testimony based on perceived irrelevance or unreliability. Both parties' causation experts relied on epidemiological studies, which must demonstrate a relative risk of 2.0 and statistical significance at the 95% confidence level to be deemed reliable evidence for general causation. The instructions and the presumption that the jury adhered to them undermine any speculation that they misinterpreted their duties regarding the experts' testimony. Robinson factors and Bradford Hill criteria each have distinct requirements relevant to the court's gatekeeper function concerning expert testimony. The absence of detailed instructions regarding specific causation left the jury inadequately equipped to exercise this function. It is essential to consider the Havner factors, particularly given that the expertise relates to epidemiological evidence linking chemical exposure to disease. A trial court cannot evaluate the reliability of scientific testimony without acknowledging established principles from the scientific community. Despite potential errors in the trial court's decision regarding the specific causation instruction, the jury could reasonably conclude that the Fausts did not meet their burden of proof in establishing BNSF's negligence or its connection to Linda's stomach cancer, rendering the alleged error non-harmful. In their appeal, the Fausts argue the evidence was insufficient to support the jury's finding that BNSF's negligence did not proximately cause Linda's stomach cancer. The broad-form submission allows for the possibility that the jury's negative response was based on either a lack of negligence or a lack of proximate cause. The appellate court's standard for reviewing factual sufficiency requires finding that the evidence supporting the jury's conclusion is overwhelmingly weak or contrary to the overall evidence. The Fausts must demonstrate that the jury's failure to find negligence was against the great weight of the evidence. Much of their evidence came from Dr. Cheremisinoff, who conducted a responsible care analysis of the plant. Dr. Cheremisinoff, a chemical engineer, analyzed the manufacturing process of treated wood ties, focusing on waste generation and management practices employed by BNSF. He assessed whether BNSF adhered to contemporary waste management standards and technologies, ultimately opining that the company acted negligently. His analysis included defining negligence as a failure to exercise ordinary care, referencing legal standards from a Texas case. Cheremisinoff emphasized that responsible care is primarily concerned with hazardous materials and outlined his methodology, which involved reconstructing manufacturing practices and performing a material balance to determine waste streams. He concluded that BNSF was negligent for several reasons, including improper waste disposal, harmful emissions from its boilers, lack of pollution control devices, absence of air monitoring, failure to inform employees about chemical exposure risks, and neglecting to provide protective gear. Specifically, he stated that BNSF burned approximately 47.9 million pounds of toxic waste in its boilers from 1980 to 1994, contributing to the release of harmful dioxins and PAHs into the atmosphere. This figure was partly based on calculations regarding the waste produced during cylinder drainage operations. The review of Dr. Cheremisinoff's opinions will be considered alongside other evidence relevant to the jury's decision on BNSF's negligence. Dennis Davis, an employee since 1971, supported Dr. Cheremisinoff's claim that 3.5 tons of drainage emptied from a cylinder when its door opened, stating that between two and ten barrels of a "mulk" mixture (creosote, debris, wainscot, and sand) would spill into a pit. Employees cleaned this "mulk" using sawdust and wood chips, which was later burned. Donnie Faust, another witness, estimated that ten to one hundred gallons of drainage emptied from the cylinder during a door opening, although he cleaned a pit only once and did not see the waste's final disposal. Contradictory testimonies emerged regarding the amount of drainage and waste disposal methods. Donald Corwin, a combustion engineer for BNSF, disputed Cheremisinoff's figures, suggesting less than five gallons would empty and that the material was collected for reuse. Sam Barkley, plant superintendent from 1971 to 1986, claimed only a "minute amount" of drainage entered the pit, with much of it being reclaimed and reused. Barkley noted engineers would vacuum the cylinders to maximize creosote recovery. Vernon Welch, who led the plant from 1986 to 1994, stated that by later years, all cylinder drainage was either reclaimed or disposed of off-site. Mike Mendoza, a long-term worker, confirmed that accumulated drainage was not burned, emphasizing that sawdust used for pit cleaning was the only material incinerated. Bobby Urbanowsky testified that the volume of drainage varied based on vacuum strength but suggested that only two to five barrels emptied during door openings, with most drainage being reclaimed. Mark Stehly, BNSF's assistant vice-president, also indicated that only a small amount of product was discharged and subsequently reused. David Malter, an industrial hygienist employed by AT&SF from 1980 to 1987, reported that only a small quantity of treating mixture, approximately "a few gallons," was released from the cylinder when its door opened. Current plant manager David Shaw corroborated this, stating that during Koppers' takeover, only two to three gallons were emptied post-charge. A 1980 NIOSH Industrial Hygiene Report did not mention burning cylinder drainage in the boiler but indicated that a vacuum was applied to remove excess creosote solution. Dr. Cheremisinoff acknowledged that his calculations of contamination would be inflated if cylinder drainage was not incinerated in the boiler. A 1982 letter to the Texas Department of Water Resources noted that "cylinder sludge," comprising contaminated wood chips and sawdust, was removed from the cylinders for off-site disposal every sixteen months, a schedule confirmed by Dr. Cheremisinoff. Dr. Cheremisinoff further testified that millions of pounds of kickback from treated wood contaminated the track area, with some of this contaminated ballast being burned in the boiler daily. He described the transport process involving a "hog" and pneumatic lines. Davis supported this by stating that sawdust was used to absorb kickback waste, which was then incinerated. Testimonies from Faust indicated extensive kickback contamination on the soil before 1992. Dr. Cheremisinoff estimated that twenty drums of contaminated ballast were burned daily, referencing a 1994 Pollution Prevention Plan indicating approximately 80 tons of waste generated annually from creosote cleanup. Contrarily, Corwin disputed Dr. Cheremisinoff's figures, suggesting they were exaggerated by a factor of a thousand, asserting that the actual kickback generated in 1984 was around 11,000 pounds, not over 11 million. He also claimed it was implausible for contaminated ballast to be transported to the boiler via pneumatic lines due to the risk of damaging the system. Welch noted that the ballast under tram tracks was rarely removed, and Barkley characterized the kickback dripping onto the screening as minimal. Mendoza testified that the collection of contaminated ballast occurred sporadically rather than daily, suggesting a less frequent cleanup routine. Urbanowsky remarked that the amount of kickback contamination depended on the effectiveness of the vacuum system used. Testimony indicated that before a drip pad was installed, tram compartments collected kickback material, which sometimes spilled onto the ballast. Urbanowsky estimated that "a barrel or two" of treated product dripped onto the ground, with plant workers either scooping it up or covering it with dirt, although he noted that contaminated ballast was not cleaned daily. He was uncertain about its disposal but believed it could not be fed into a hog due to operational issues. After the drip pad's installation from 1992 to 1995, cleaned kickback was stored in barrels and shipped out, rather than being burned in the boiler. Dr. Cheremisinoff claimed that from 1980 to 1989, hundreds of thousands of pounds of treated wood were burned in the plant's boilers, releasing dioxins and PAHs. Faust testified he transported four tons of treated wood to the boiler nightly in the late 1970s and early 1980s, while Davis confirmed he fed treated wood into the boiler regularly. In contrast, Corwin argued that only one ton of treated wood was burned daily and that the plant ceased using wood spacers in 1985 or 1986, challenging the higher figures presented by Dr. Cheremisinoff. Corwin criticized the methodology used in calculating treated wood volumes, asserting that Dr. Cheremisinoff did not account for the burial of wood strips, which the Keeler boiler's draft permit suggested a maximum production rate of one ton per day for wood waste. Kiln sticks will be processed into chips and stored in a surge bin before being gradually fed into the boiler for fuel. Stehly, former director of environmental quality for AT&SF, confirmed that treated wood was used as fuel in the boiler under a state-issued permit, indicating it constituted a minor portion of the total wood burned. Mendoza noted minimal treated wood usage in the Keeler boiler, while Welch and Barkley also stated that only a small volume of treated wood was burned at the plant. Dr. Cheremisinoff highlighted that the plant had permits from 1981 and 1994 allowing for the burning of treated wood, specifying one ton per day and four barrels per month, respectively. Dr. Cheremisinoff criticized BNSF for not utilizing an incinerator for creosote-treated wood waste, arguing that an incinerator would destroy toxins effectively, unlike the plant's boiler. Although the plant considered installing an incinerator in the 1970s, the application was later withdrawn. Corwin countered that a trench incinerator would not ensure complete combustion and asserted that the Keeler boiler was more efficient than an incinerator in burning wood products and dioxins. The Fausts claimed BNSF was negligent for disposing of sap water in unlined lagoons and spreading waste for dust control. Dr. Cheremisinoff opined that the waste was not combusted adequately to eliminate dioxins and PAHs, yet did not categorize evaporating sap water or waste spread for dust control as emission sources in his calculations. Additionally, evidence regarding the amount of creosote-treated waste and the spreading of the creosote mixture was inconsistent. Dr. Cheremisinoff also suggested BNSF operated negligently due to significant emissions of dioxins and PAHs, measuring toxins in fly ash, bottom ash, and other emission sources, while Davis and Mendoza recalled a procedure known as the "Santa Fe flush." Wastewater was discharged into a ditch on the plant property during a heavy rainstorm. Gale Hoffnagle, testifying for BNSF, identified sources of polycyclic aromatic hydrocarbons (PAHs) at the plant, including boiler stacks, treatment cylinder openings, process vents, creosote storage tanks, and wood on-site. Welch mentioned that reclaimed diesel and water were used for dust control. Dr. Cheremisinoff asserted BNSF's negligence for failing to install pollution control devices on boilers, which could have captured dioxins and PAHs, and for not conducting air monitoring or modeling of emissions that could have assessed exposure levels in Somerville. He suggested that BNSF could have employed various monitoring technologies, including opacity sensors and stack testing. In contrast, Corwin challenged Dr. Cheremisinoff's findings, arguing his ash emission figures were significantly overstated and that the boiler operated with higher combustion efficiency than calculated. Corwin also noted that the Keeler boiler was equipped with a multiclone that, while not a true pollution control device, improved combustion and reduced organic emissions. He explained that black smoke from the stacks resulted from "upset conditions" in the combustion process and highlighted that the plant had never faced air permit violations. Stehly testified that no air modeling was conducted due to a lack of evidence suggesting harm from emissions and that the plant burned less creosote-treated waste than Dr. Cheremisinoff estimated. Additionally, Dr. Cheremisinoff criticized BNSF for not informing employees about chemical dangers or providing protective gear, although he appeared to concede that he was mistaken about the absence of a multiclone on the Keeler boiler during cross-examination. Dr. Cheremisinoff testified that without proper protective equipment, employees could be exposed to harmful chemicals, specifically creosote, which could contaminate clothing and potentially expose others at home. Testimonies from Donnie and Davis indicated they were not provided adequate protective gear or information about the hazards of creosote until later, with Davis recalling being misinformed that creosote was not harmful. In contrast, other testimonies, including that of Welch and Barkley, suggested that the plant did hold safety meetings, provided protective equipment, and made Material Safety Data Sheets (MSDSs) available to employees. Dr. Cheremisinoff mentioned a 1980 letter recommending safety measures, including the provision of protective clothing and employee education on chemical hazards, while NIOSH reports from 1977 and 1980 emphasized the necessity of protective clothing and hygiene practices for employees handling creosote. The conflicting testimonies regarding the plant's safety practices led to a jury's decision not to find BNSF negligent. The appellate court upheld this decision, affirming that the evidence was sufficient to support the jury's finding and did not address the causation of Linda's stomach cancer due to a lack of evidence. Ultimately, the trial court's judgment was affirmed.