The Dallas Court of Appeals sitting en banc recently denied review of a panel decision that reversed an $8.8 million dollar asbestos verdict and rendered a take-nothing judgment in favor of an employer in Bell Helicopter Textron, Inc. v. Dickson. The Court found missing any evidence that the employer knew in the 1960s that the millboards at issue contained asbestos. Because there was no evidence the employer had actual, subjective knowledge of any asbestos exposure risk, the employer could not be held liable under Texas law.
A manager for Bell Helicopter in the 1960s, Billy Dickson designed testing enclosures for helicopter parts and then supervised the construction of those enclosures. Although Dickson did not do any construction himself, he was present for up to four hours per month while crews worked with asbestos-containing millboards to build the enclosures. After Dickson developed mesothelioma and died, his three sons and wife sued his employer for wrongful death, alleging negligence and gross negligence.
Under Texas law, employers can be held liable in asbestos wrongful death suits under a theory of gross negligence. Texas defines gross negligence as (1) an action that, when viewed objectively from the defendant’s standpoint at the time of the event, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Under the objective component, extreme risk is not a remote possibility or even a high probability of minor harm, but rather the likelihood of a plaintiff’s serious injury. The subjective prong, in turn, requires that the defendant knew about the risk, but that the defendant’s acts or omissions demonstrated indifference to the consequences of its acts.
At trial, Plaintiffs’ expert quantified Dickson’s exposure to asbestos stemming from the construction crews’ cutting of millboards and opined that Dickson’s likelihood of developing mesothelioma was “considerably more than doubled” by his exposure to the asbestos in the millboards. Plaintiffs’ expert relied on studies of asbestos-containing millboard from 1970 and later. In March 2017, a jury awarded $8.8 million to Dickson’s heirs.
On August 23, 2019, the Texas appeals court reversed the trial court’s verdict and rendered judgment that plaintiffs take nothing. The court held that Plaintiffs failed to prove by clear and convincing evidence either the objective or subjective elements of gross negligence. The court’s reasoning contrasts what it calls generalized asbestos knowledge and later developments in scientific understanding with particular, contemporaneous knowledge that cutting the actual millboards in use posed an extreme degree of risk. Bell admitted that, in the 1960s, it knew generally about the risks of asbestos exposure and that the company continued to use asbestos-containing products. The court, however, explained that this general knowledge was not evidence that Bell had actual knowledge during Billy’s employment in the 1960s that cutting the particular millboards it used in helicopter-parts testing posed an extreme risk. As such, Plaintiffs had no evidence of the subjective awareness element of gross negligence, and Bell was entitled to judgment as a matter of law.
On March 26, 2020, the Fifth District Court of Appeals denied Plaintiffs’ request for en banc rehearing and thereby sparked a debate among the justices as to whether some members of the court have a “bias against jury verdicts.” The dissent from the denial of en banc rehearing criticized the panel for allegedly ignoring evidence that supported the verdict and misapplying the standard of review. The dissent also pointed out perceived inconsistencies in the court’s approach to the same evidence offered by the same expert in two cases decided only two years apart. In Goodyear Tire & Rubber Co. v. Rogers, the court of appeals affirmed the jury verdict in favor of a former Goodyear employee, citing evidence that Goodyear knew about the hazards of asbestos exposure before and during the time Rogers worked there, and, unlike Bell, measured the concentrations of asbestos in the very building in which Rogers worked.
Two differences—one analytical and one factual—between Dickson and Goodyear Tire & Rubber Co. v. Rogers, is that there allegedly was evidence that Goodyear knew about the hazards of asbestos exposure before and during the time Rogers worked there and, unlike Bell, measured the concentrations of asbestos in the very building in which Rogers worked.
Defendants sued for the manufacture or use of asbestos should be mindful not only of the date of the scientific basis for an opposing expert’s opinions, but also for distinctions between generalized knowledge of risk and specific knowledge related directly to products used or manufactured, especially when they monitored, tracked, or offered training on asbestos levels or exposure.