                             NUMBER 13-10-00325-CV

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


UNION CARBIDE CORPORATION
AND GST SETTLEMENT FACILITY,                                                      Appellants,

                                                v.

OSCAR TORRES AND DORA TORRES,                                                      Appellees.


                      On appeal from the 107th District Court
                           of Cameron County, Texas.


                             MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Appellants GST Settlement Facility, successor-in-bankruptcy to Garlock Sealing

Technologies LLC (Garlock), and Union Carbide Corporation (UCC) appeal from a

judgment following a jury trial in favor of appellees Oscar and Dora Torres. 1               The


      1   The final judgment in this case was signed on March 22, 2010, and appellants filed their
Torreses sued appellants, alleging that Oscar developed mesothelioma as a result of his

exposure to asbestos while working at a UCC chemical plant and with gaskets

manufactured by Garlock.

        In three issues, 2 UCC argues that the evidence is legally insufficient to establish

that: (1) UCC controlled the manner of Oscar’s work; (2) UCC had actual knowledge

that the Garlock gaskets were dangerous; and (3) Oscar’s exposure to asbestos at UCC’s

plant was a substantial factor in causing his mesothelioma. In one issue, Garlock argues

that the Torreses failed to present legally sufficient evidence that Oscar’s exposure to its

gaskets was a substantial factor in causing Oscar’s mesothelioma. We affirm in part and

reverse and render in part.

                                           I.       BACKGROUND

        In 2009, Oscar was diagnosed with mesothelioma, a cancer affecting the lining of

the lungs that is caused almost exclusively by exposure to respirable asbestos fibers.

Oscar initially sued nineteen defendants alleging causes of action for premises liability,

products liability, negligence, and fraud. At the time of trial, two defendants remained:

(1) UCC, a premises liability defendant; and (2) Garlock, a products liability defendant. 3


respective notices of appeal on June 3 and 8, 2010. We abated the appeal on June 17, 2010 due to
bankruptcy proceedings concerning the defendant Garlock Sealing Technologies LLC. We reinstated the
appeal on July 11, 2018 and granted appellant’s motion to substitute GST Settlement Facility as successor
in bankruptcy to Garlock Sealing Technologies LLC. The appeal was abated again on May 17, 2019 to
allow the parties to attend mediation. The parties were unable to reach a settlement, and this Court
reinstated the appeal on September 5, 2019.

        2  UCC identifies four issues in the “Issues Presented” portion of its brief, but the argument section
of the brief is organized around three issues. Further, UCC purports to challenge both the legal and factual
sufficiency of the evidence supporting various jury findings. However, the argument section of UCC’s brief
presents only no-evidence or legal sufficiency challenges to those findings. We frame our analysis around
the issues as they are developed in the body of UCC’s brief.

        3   The Torreses non-suited a third defendant during trial.
                                                       2
The record generally establishes that Oscar, while working as a pipefitter at UCC’s

Brownsville chemical plant, was exposed to pipe insulation containing amosite asbestos

fibers and the Garlock 7705 gasket 4 containing crocidolite asbestos fibers. 5 Appellants

did not dispute at trial that Oscar suffered from mesothelioma or that his condition was

caused by asbestos exposure.

A.      Diagnosis

        Oscar, who was 71 years old at the time of trial, began experiencing dizziness and

shortness of breath in 2008. After various medical examinations and tests, Oscar was

diagnosed with mesothelioma. Oscar was referred to William Roy Smythe, M.D., a

thoracic surgeon focusing on the treatment of mesothelioma patients.                      Dr. Smythe

testified that mesothelioma develops from the inhalation of asbestos fibers and the

penetration of the fibers through the air sac of the lung. He explained that the body’s

inflammatory reaction to the fibers causes genetic damage.                         As the damage

accumulates, a patient can develop mesothelioma.

        After examining Oscar’s occupational history, Dr. Smythe concluded that Oscar’s

condition was caused by his exposure to asbestos at the UCC plant. Dr. Smythe ruled

out removing Oscar’s tumor after discovering a heart arrhythmia. At the time of trial,

Oscar planned to have chemotherapy treatment.                  Dr. Smythe stated that a person




        4 As described by one witness, “A gasket basically sits between two mating surfaces [connecting
sections of pipe] and . . . serves to seal the joint.”

        5 While the record reflects that Oscar’s primary exposure was to “Kaylo” insulation and Garlock

gaskets, there is also evidence that Oscar may have had varying levels of exposure at the plant to other
brands of asbestos insulation as well as fireproofing products which contained asbestos.

                                                   3
Oscar’s age has a fifty percent chance of completing a full course of chemotherapy, and

only half of those who complete the treatment respond positively. Those that do will have

their life extended by an average of three months. According to Dr. Smythe, Oscar would

eventually die from the condition.

B.    Asbestos Exposure

      Oscar testified that he worked as a pipefitter at UCC’s Brownsville plant between

1975 and 1977. He was employed by Brown & Root (B&R), an independent contractor

hired by UCC to perform maintenance and repair at the plant.             Oscar routinely

assembled, disassembled, fabricated, removed, and installed pipes at the plant. Oscar

was exposed to asbestos from insulation and gaskets from this work. Oscar described

working as a welder and a pipefitter at other locations, but he maintained that this other

work did not expose him to asbestos products.

      1.     Insulation Exposure

      UCC stopped purchasing and installing new asbestos insulation in 1972, but

asbestos insulation remained throughout its Brownsville plant during Oscar’s employment

as a pipefitter. Oscar described working almost every day in the vicinity of “insulators”

i.e., workers who removed and installed insulation that covered the pipes.         Oscar

estimated he was within twenty feet of insulators as they worked, and he recalled that

insulators would often work on scaffolding above him. He described insulators cutting

insulation with a saw, which created a lot of dust. Oscar often removed insulation himself




                                            4
before repairing a pipe. 6 This created visible dust, which Oscar breathed. Sometimes,

his clothes were covered in insulation dust.

        According to other employees who worked at the Brownsville plant with Oscar,

pipefitters often removed old insulation when repairing a pipe. Ruben Ruiz, a welder,

stated that pipefitters used saws to cut into insulation, which released a cloud of dust.

The insulation dust covered the clothes of workers. Jesus Valenzuela, another welder,

testified that he and Oscar worked within two to three feet of insulators. He described

insulators cutting insulation and breaking it into pieces resulting in visible dust, which he

breathed.      Valenzuela also described working underneath insulators who were on

scaffolding, which resulted in dust falling on the workers below. Ruben Rodriguez, a

pipefitter, stated that all the pipefitters cut pipe insulation using a chisel and hammer.

        Gran Townsend, an industrial hygienist, was employed by UCC at its Brownsville

plant during Oscar’s tenure. Townsend testified that when UCC bought the plant in

1958, all the insulation contained asbestos. He recalled that pipefitters would remove

old insulation prior to repairing a pipe. Townsend authored a November 2, 1982 internal

memo which acknowledged the continued existence of asbestos insulation throughout

the Brownsville plant.

        Kerry Weikel, a UCC maintenance systems technician, worked at the Brownsville

plant with Oscar. Weikel stated that UCC often scheduled insulators to work above other

workers, including pipefitters, which resulted in dust falling on the workers below.



        6
         Oscar later testified that he did not remove any pipe insulation himself. However, we must
assume that the jury resolved the conflicting testimony in favor of its verdict. See City of Keller v. Wilson,
168 S.W.3d 802, 820 (Tex. 2005).
                                                      5
      2.     Gaskets

      Oscar testified that he removed Garlock 7705 gaskets from the flanges connecting

pipes in the plant’s acid unit two to three days a week. The gaskets contained 85 to 86

percent crocidolite asbestos. Oscar used a metal spatula and a wire brush to break apart

and remove the old gaskets. If the gasket could not be removed easily, Oscar would

have to scrub the gasket with a wire brush for anywhere from five to twenty minutes. He

was necessarily within arm’s length of the gaskets during removal. This process created

visible dust that Oscar inhaled. Rodriguez and another coworker, Francisco Robledo,

described a similar process for removing gaskets. Townsend testified that UCC used

and installed gaskets made of asbestos during Oscar’s time at the plant.

      Weikel testified that crocidolite gaskets manufactured by Garlock were used in the

plant’s acid unit between 1975 and 1977. Weikel observed pipefitters removing gaskets

using a wire brush. During turnarounds, pipefitters sometimes used a power brush.

Weikel stated that the removal of gaskets created visible dust.

B.    Expert Testimony—Causation

      Samuel Hammar, M.D., a clinical pathologist focusing on pulmonary pathology,

testified that there are two families of asbestos fibers: (1) the serpentine family which

includes chrysotile or white asbestos; and (2) the amphibole family, which includes two

asbestos types used commercially—amosite and crocidolite. Dr. Hammar explained

that most thermal insulation was composed of a combination of amosite and chrysotile

fibers. Some gaskets were made with pure chrysotile fibers, while others contained

predominantly crocidolite fibers. According to Dr. Hammar, all forms of asbestos cause


                                            6
cancer, but crocidolite is the most carcinogenic on a fiber-per-fiber basis. According to

a peer-reviewed study, “crocidolite is five times more potent than amosite and 500 times

more potent than chrysotile.”

      Dr. Hammar explained that there is no level of exposure where asbestos does not

present a risk of causing cancer.    The permissible exposure limit (PEL) set by the

Occupational Safety and Health Administration (OSHA) is .1 fiber particles per cubic

centimeter of air as an eight-hour time-weighted average, which is seventy times the

background concentration of asbestos.          OSHA developed the PEL based on

epidemiological studies of those with high exposure. According to those studies, at least

seven out of 100,000 people whose exposure was within the PEL developed

mesothelioma. Based on his review of Oscar’s work history, Dr. Hammar concluded that

Oscar’s condition was caused by his exposure to asbestos—from both insulation and

gaskets—while working as a pipefitter at UCC’s plant. Dr. Hammar did not believe that

Oscar had any significant occupational exposure to asbestos other than his time working

at the UCC plant.

      Ronald Gordan, Ph.D., a pathologist specializing in electron microscopy,

performed an asbestos fiber burden test on a sample of Oscar’s lung tissue. Dr. Gordan

found roughly equal amounts of crocidolite and amosite asbestos fibers in the sample.

Dr. Gordan stated that these types of asbestos fibers are found only in the lungs of

persons who have been exposed to asbestos occupationally.




                                           7
        Richard Lemen, Ph.D., an epidemiologist, 7 testified that researchers have been

unable to identify a safe concentration of asbestos below which people would not be at

risk of developing asbestos-related cancer.              Rather, he explained that any level of

exposure to asbestos can potentially contribute to the development of mesothelioma.

Dr. Lemen stated that crocidolite is the most potent type of asbestos for causing

mesothelioma.

        Dr. Lemen believed that Oscar was likely exposed to Kaylo brand insulation, which

was composed of twelve to eighteen percent asbestos. He noted that studies have

shown that visible dust from asbestos insulation exposes a worker to asbestos at a level

that is 100 times the PEL set by OSHA. He agreed that Oscar was exposed to 100 times

the PEL based on Oscar’s representation that he saw visible dust from insulation.

        William Longo, PhD, a material scientist, conducted simulations to determine the

release of fibers during the removal of gaskets containing encapsulated asbestos fibers.

Dr. Longo explained that he used “Tyndall lighting,” which is a technique employing the

use of high intensity light to make microscopic particles visible. In his studies, Dr. Longo

used a wire brush to scrape the gaskets, which he determined released between 1.5 and

10 asbestos fibers per cubic centimeter, with an average release of 3.7 fibers per cubic

centimeter.




        7 Dr. Lemen explained that epidemiology is a field of medicine that studies certain populations to

determine what causes various diseases. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 715
(Tex. 1997) (“Epidemiological studies examine existing populations to attempt to determine if there is an
association between a disease or condition and a factor suspected of causing that disease or condition.”).

                                                    8
       Donna Ringo, a certified industrial hygienist, testified on behalf of Garlock. It was

her opinion that Oscar’s removal of gaskets did not increase his risk of developing

mesothelioma. Ringo based her opinion on air monitoring surveys of workers removing

gaskets from steam lines or gas lines. According to Ringo, the surveys indicated that

the workers were exposed to asbestos at a level that was less than or equal to the PEL.

However, the surveys only involved chrysotile gaskets, not crocidolite gaskets.

       Ringo believed that Oscar’s only significant exposure to asbestos was from

thermal insulation.      She explained that “insulation work would be hundreds if not

thousands of times higher in exposure” than gasket work. Ringo stated that four to five

fiber years   8   is the lowest cumulative dose documented for the development of

mesothelioma.       This threshold dose was developed from a study which calculated

cumulative doses of “cohorts of people who were getting sick.” Ringo testified that

Oscar’s exposure was at least at the level of those in the study.

       John Craighead, M.D., an anatomic and clinical pathologist, also testified for

Garlock. Dr. Craighead opined that Oscar’s mesothelioma was caused by amosite-

containing thermal insulation. He stated that there is a body of epidemiological literature

on insulation exposure similar to Oscar’s exposure. Dr. Craighead explained that these

studies establish that persons who remove asbestos insulation from pipes are at a high

risk of developing mesothelioma. And he agreed that the level of amosite in Oscar’s

lungs indicated that his exposure to asbestos was above background levels.                        Dr.

Craighead did not believe that gaskets were a risk factor for mesothelioma because they


       8  Ringo expressed the dose level as “fiber years” which measures cumulative exposure of fibers
per cubic centimeter over a number of years.
                                                  9
contained nonfriable 9 asbestos.           He disagreed with Dr. Gordan’s conclusion that

Oscar’s lung tissue sample contained crocidolite fibers.

        Fred Boelter, a certified industrial hygienist, conducted studies to determine the

release of asbestos fibers from removing gaskets. According to his studies, the average

fiber release generated from gasket removal was .026 fibers per cubic centimeter, which

is below OSHA’s PEL.

        Eric Chatfield, Ph.D., a microscopist, disagreed with Dr. Gordan’s conclusion that

there was a crocidolite fiber in Oscar’s lung sample. It was his opinion that the fibers

were all amosite.

C.      Knowledge of Risk and Failure to Warn

        Dr. Lemen testified that both UCC and Garlock would have been aware, during the

period of Oscar’s exposure at the plant, that any exposure to asbestos puts a person at

risk of developing cancer. However, he noted that it was not until the 1990s that the

scientific community began to recognize that encapsulated asbestos contained in gaskets

was harmful to workers. Nevertheless, Dr. Lemen believed that a reasonable company

would have applied warnings to products containing primarily crocidolite asbestos, such

as the Garlock 7705 gaskets. Referencing a 1968 UCC internal memo, Dr. Lemen

stated that UCC was aware of the causal relationship between crocidolite and

mesothelioma.

        James Heffron, Garlock’s corporate representative, testified that Garlock did not

provide warnings or instructions for the safe use of its 7705 gasket prior to 1980, except


        9 As explained by other witnesses, friable asbestos products are those which are easily crumbled
and, therefore, more susceptible to releasing asbestos fibers when handled.
                                                  10
for a standard OSHA warning. Heffron stated that, prior to 1980, Garlock did not conduct

any tests of its gaskets to determine if the removal process exposed a person to respirable

asbestos fibers. Weikel testified that there were no warnings for the Garlock gaskets.

      Townsend testified that UCC was aware that asbestos could cause mesothelioma

prior to Oscar’s time at the Brownsville plant. He stated that there were no labels on the

installed insulation indicating whether it contained asbestos. Weikel testified that UCC

did not put up warning signs when workers removed insulation during shutdowns or

turnarounds. From 1975 to 1977, Townsend did not worry about asbestos exposure

from gaskets because he believed gaskets were incapable of releasing asbestos fibers.

However, Townsend acknowledged that applying friction to an asbestos product would

potentially generate respirable asbestos. Weikel was also aware that the removal of

gaskets created visible dust.

      Oscar testified that UCC did not warn him about the hazards of asbestos. He also

stated that the gaskets themselves were not affixed with a warning. No one instructed

Oscar on how to control dust generated from gasket removal. When insulators were

working nearby, Oscar stated that there were no warnings posted and UCC did not

instruct him to wear a respirator. He recalled that paper masks were available, but they

were not required. Oscar stated that the paper masks were not useful because they

would “clog.” Oscar’s co-workers Agustin Cruz, Ruiz, Valenzuela, and Rodriguez all

testified that UCC did not warn them that asbestos was dangerous.




                                            11
D.    Control

      Several witnesses who worked at the plant during the relevant time period testified

regarding UCC’s supervision of B&R employees. According to Townsend, B&R did not

employ its own industrial hygienist; therefore, UCC’s hygienist oversaw and monitored

the work of B&R employees. UCC regulated the safety of all workers at the plant. UCC

required B&R pipefitters to use materials, supplies, and tools that UCC provided. UCC

was responsible for telling B&R workers what work to do and when they were to do it.

According to Weikel, UCC employed maintenance area coordinators or operators who

were responsible for advising B&R maintenance workers regarding the procedures to use

for various repairs. Operators informed a B&R foreman when they saw a B&R employee

doing a repair incorrectly—such as when a pipefitter was tightening or bolting flanges

incorrectly or using the wrong gasket. B&R pipefitters could not begin working on a job

until a UCC safety inspector gave permission. When work was completed, a UCC

employee would inspect the work prior to approving the job.

      Weikel testified that B&R pipefitters were not free to do repair work their own way

if it differed from UCC’s preferred method. Weikel agreed with the assertion by the

Torreses’ counsel that B&R foremen were essentially “puppets” of UCC. Ruiz testified

that UCC operators were always close by supervising B&R workers. Cruz stated that

UCC operators would tell B&R employees “the procedures to use on different repairs.”

E.    Jury Verdict

      The jury returned a verdict in favor of the Torreses, allocating responsibility as

follows: Garlock 45%, UCC 45%, and B&R 10%. The jury awarded $1,500,000 for


                                          12
future physical pain and mental anguish and future medical expenses, and $1,500,000 to

Dora Torres for future loss of consortium. The trial court reduced the award for the

responsibility allocated to non-party B&R and entered judgment accordingly.               This

appeal followed.

                                II.    STANDARD OF REVIEW

       We will sustain a legal sufficiency or “no-evidence” challenge if the record shows

one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law

or evidence bar the court from giving weight to the only evidence offered to prove a vital

fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the

evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson,

168 S.W.3d 802, 810 (Tex. 2005). More than a scintilla of evidence exists when the

evidence rises to a level that would enable reasonable and fair-minded people to differ in

their conclusions.     Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

Evidence does not exceed a scintilla if it is so weak as to do no more than to create a

mere surmise or suspicion that the fact exists. Id.

       It is the province of the jury to resolve conflicts in the evidence. City of Keller, 168

S.W.3d at 820.       Accordingly, we must assume that the jury resolved all conflicts in

accordance with its verdict. Id. In conducting a legal sufficiency review, a court must

consider the evidence in the light most favorable to the verdict and indulge every

reasonable inference that would support it. Id. at 822. If the evidence allows only one

inference, neither jurors nor the reviewing court may disregard it. Id. However, if the

evidence at trial would enable reasonable and fair-minded people to differ in their


                                             13
conclusions, then jurors must be allowed to do so.           Id.   A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this

zone of reasonable disagreement. Id.

                                     III.    CHAPTER 95

       By its first two issues, UCC argues that there is legally insufficient evidence

establishing its liability as a premises owner under Chapter 95 of the Texas Civil Practice

and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 95.

A.     Applicable Law

       Chapter 95 of the Texas Civil Practice and Remedies Code is titled “Property

Owner’s Liability for Acts of Independent Contractors and Amount of Recovery.” Id.

Sections 95.002 and .003 establish limitations on a property owner’s liability for personal

injury, death, or property damage to independent contractors. See id. §§ 95.002, .003;

Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015). Section 95.003, entitled

“Liability for Acts of Independent Contractors,” provides:

       A property owner is not liable for personal injury, death, or property damage
       to a contractor, subcontractor, or an employee of a contractor or
       subcontractor who constructs, repairs, renovates, or modifies an
       improvement to real property, including personal injury, death, or property
       damage arising from the failure to provide a safe workplace unless:

       (1)    the property owner exercises or retains some control over the
              manner in which the work is performed, other than the right to order
              the work to start or stop or to inspect progress or receive reports; and

       (2)    the property owner had actual knowledge of the danger or condition
              resulting in the personal injury, death, or property damage and failed
              to adequately warn.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.003.


                                              14
       Chapter 95 applies “to all negligence claims that arise from either a premises

defect or the negligent activity of a property owner or its employees.” Abutahoun, 463

S.W.3d at 50. However, it applies only when the injury results from a condition or use of

the same improvement that the contractor is constructing, repairing, renovating, or

modifying.   Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016).               The

property owner has the burden to establish that Chapter 95 applies to the plaintiff’s claim.

See Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—Houston [1st Dist.] 2005, no

pet.). Once the defendant has shown that Chapter 95 applies, the plaintiff has the

burden to establish both prongs of § 95.003. Id.

B.     Control

       In its first issue, UCC challenges the legal sufficiency of the evidence supporting

the jury’s findings that UCC “exercise[d] or retain[ed] some control over the manner in

which [Oscar’s] pipefitting work at [UCC’s] premises was performed, other than the right

to order the work to start or stop or to inspect progress or receive reports.” UCC argues

that B&R, an independent contractor, was Oscar’s employer and controlled the details of

his work. Therefore, UCC contends that it cannot be held liable as a premises owner

under Chapter 95. Oscar responds that the evidence establishes that UCC controlled

the manner in which B&R maintenance workers, including Oscar, performed their work.

       The type of control contemplated by § 95.003(1) refers to a property owner’s right

to control the means, methods, or details of the manner in which the work is performed

to the extent that those doing the work are not entirely free to do the work in their own

way. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791–92 (Tex. 2006); Elliott-


                                            15
Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999); Torres v. Chauncey Mansell &

Mueller Supply Co., 518 S.W.3d 481, 492 (Tex. App.—Amarillo 2017, pet. denied). A

right of control must extend to the operative detail of the contractor’s work. Chi Energy,

Inc. v. Urias, 156 S.W.3d 873, 880 (Tex. App.—El Paso 2005, pet. denied). It is not

enough that the owner has the right to order the work to stop and start, to inspect

progress, or to receive reports, or that the owner recommends a safe manner for the

independent contractor’s employees to perform the work. See Dow Chem. Co. v. Bright,

89 S.W.3d 602, 606–09 (Tex. 2002).

      UCC relies primarily on evidence that Oscar and other B&R workers received their

instructions from a B&R foreman.       However, this fact alone is not dispositive.     A

defendant may retain control over the work even if the defendant is not present,

supervising, or directing the work at the time of the injury. Hernandez v. Amistad Ready

Mix, Inc., 513 S.W.3d 773, 776 (Tex. App.—San Antonio 2017, no pet.); see Lee Lewis

Constr. v. Harrison, 70 S.W.3d 778, 782, 784 (Tex. 2001); Tovar v. Amarillo Oil Co., 692

S.W.2d 469, 469 (Tex. 1985) (per curiam). Furthermore, if the defendant retains some

control over the operative detail of the work, the defendant is not excused from liability

merely because others also retained some control over the work or some responsibility

for workplace safety. Hernandez, 513 S.W.3d at 776; see Lee Lewis Const., 70 S.W.3d

at 782, 784; Tovar, 692 S.W.2d at 469. According to several witnesses, UCC operators

instructed B&R foremen how B&R employees were to perform their work. In that regard,

B&R foremen were considered “puppets” of UCC. And UCC’s instructions were not

limited to ordering work to stop and start and recommending a safe manner to perform


                                           16
the work. Rather, UCC instructed B&R pipefitters how to do repairs—including how to

tighten a bolt on a flange and which gasket to use. Further, UCC operators were always

present during repairs, and they inspected the work when it was finished to determine if

it was satisfactory. If it was not, the operators instructed B&R workers to correct it. UCC

required B&R workers to use only the tools and supplies that UCC provided. UCC also

controlled the sequence and timing of maintenance work such that it controlled the

proximity of the workers to each other.      This resulted in Oscar working underneath

insulators which further exposed him to insulation dust.

      We conclude that there is more than a scintilla of evidence supporting the jury’s

finding that UCC exercised some control over the means, methods, and details of Oscar’s

work. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1); Ramirez, 196 S.W.3d 788,

791–92; Ridgway, 135 S.W.3d at 601. We overrule UCC’s first issue.

C.    Actual Knowledge

      By its second issue, UCC argues there is legally insufficient evidence that it had

actual knowledge that the Garlock gaskets were dangerous. Question 4 of the jury

charge reads in pertinent part as follows:

      Did the negligence, if any, of [UCC] proximately cause [Oscar’s] asbestos-
      related injury?

      With respect to the condition of the premises, [UCC] was negligent if:

      1. the condition posed an unreasonable risk of harm, and

      2. [UCC] had actual knowledge of the danger, and

      3. [UCC] failed to exercise ordinary care to protect [Oscar] from the danger
          by both failing to adequately warn [Oscar] of the condition and failing to
          make the condition reasonably safe.

                                             17
(emphasis added).         The jury was not asked specifically whether UCC had actual

knowledge that the Garlock gaskets were dangerous, and UCC did not object to question

4 on this basis. 10 In the context of a jury trial, the sufficiency of the evidence is reviewed

in the light of the charge submitted if no objection is made to the charge. Romero v. KPH

Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal–Mart Stores, Inc. v. Sturges,

52 S.W.3d 711, 715 (Tex. 2001). With respect to the negligence question, the jury was

asked only whether UCC had actual knowledge of the “danger.” In that regard, the jury

was not limited solely to considering whether UCC had actual knowledge that the Garlock

gaskets were dangerous. Rather, even if there was insufficient evidence to show UCC

had actual knowledge that the Garlock gaskets were dangerous, the jury’s affirmative

answer to Question 4 could still have been based on UCC’s actual knowledge of the

danger resulting from insulation removal. UCC concedes its actual knowledge of the

broader danger posed by asbestos in its brief when its states: “UCC does not dispute

that it had learned airborne respirable asbestos was a health risk by the time [Oscar]

worked at the Brownsville plant.” By restricting its argument to whether it had actual

knowledge that the Garlock gaskets were dangerous, as opposed to other sources of

asbestos at its plant, UCC has failed to demonstrate reversible error. See TEX. R. APP.

P. 44.1(a).

        At any rate, even had the more specific question been posed to the jury, we

conclude that there is legally sufficient evidence that UCC had actual knowledge that the


         10 Specifically, UCC did not object that the instruction should be phrased more narrowly to focus

solely on its actual knowledge of the danger posed by Garlock gaskets. Neither did UCC propose its own
instruction containing such language.
                                                   18
Garlock gaskets were dangerous.         Actual knowledge requires knowledge that the

dangerous condition existed at the time of the accident, as opposed to constructive

knowledge, which can be established by facts or inferences that a dangerous condition

could develop over time. Ineos, 505 S.W.3d at 568; City of Corsicana v. Stewart, 249

S.W.3d 412, 414–15 (Tex. 2008) (per curiam).         Circumstantial evidence establishes

actual knowledge only when it either directly or by reasonable inference supports that

conclusion. Ineos, 505 S.W.3d at 568; State v. Gonzalez, 82 S.W.3d 322, 330 (Tex.

2002).

         Here, the record reflects that the Garlock gaskets were composed primarily of

crocidolite asbestos, which was widely known in the industry at the time to be the most

carcinogenic type of asbestos fiber. As early as 1968, UCC was aware of the causal

relationship between crocidolite and mesothelioma.        While there was evidence that

scientists did not believe encapsulated asbestos products posed a danger until after

Oscar’s tenure, UCC’s industrial hygienist at the time acknowledged that applying friction

to an encapsulated asbestos product—as Oscar did to the gaskets—could generate

respirable fibers. In addition, UCC’s maintenance system’s technician knew that the

removal of gaskets created visible dust. We must presume that the factfinder reconciled

this conflicting evidence in favor of its verdict. See City of Keller, 168 S.W.3d at 820.

         We conclude that there is more than a scintilla of evidence that UCC had actual

knowledge that the Garlock gaskets were dangerous at the time Oscar was exposed to

them. See Ridgway, 135 S.W.3d at 601. For the foregoing reasons, we overrule UCC’s

second issue.


                                            19
                          IV.    SUBSTANTIAL FACTOR CAUSATION

       Both UCC and Garlock argue that there is legally insufficient evidence that Oscar’s

exposure to asbestos at the UCC plant or from the Garlock gaskets was a substantial

factor in causing Oscar’s mesothelioma.

A.     Applicable Law

       Causation in toxic tort cases is discussed in terms of general and specific

causation.   Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).

General causation is whether a substance is capable of causing a particular injury or

condition in the general population, while specific causation is whether a substance

caused a particular individual’s injury. Id. “Substantial factor” is a term used to describe

the level of proof required to establish specific causation in cases where the plaintiff is

exposed to multiple sources of the same toxin.          Bostic v. Georgia-Pac. Corp., 439

S.W.3d 332, 352 (Tex. 2014). Appellants do not dispute general causation. That is,

they do not dispute that asbestos is capable of causing mesothelioma. However, each

appellant argues that Oscar failed to establish that his relative exposure to asbestos from

their particular products or premises was a substantial factor in causing his mesothelioma.

       The Texas Supreme Court first adopted the substantial factor causation test in

Borg-Warner Corp. v. Flores. 232 S.W.3d 765 (Tex. 2007). In Flores, the plaintiff was

a mechanic who claimed to have developed asbestosis from his exposure to brake pads.

Id. at 766. The Court identified the following failures in the plaintiff’s proof of causation:

       [W]hile some respirable fibers may be released upon grinding some brake
       pads, the sparse record here contains no evidence of the approximate
       quantum of Borg–Warner fibers to which Flores was exposed, and whether
       this sufficiently contributed to the aggregate dose of asbestos Flores

                                             20
       inhaled, such that it could be considered a substantial factor in causing his
       asbestosis.

Id. at 772. The Court rejected as legally insufficient a theory of causation that “any

exposure” to asbestos can cause asbestosis. Id. at 771. It noted that the most widely

cited standard for proving causation in asbestos cases was the Lohrmann “frequency,

regularity, and proximity” test from the United States Fourth Circuit Court of Appeals. Id.

at 769 (citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986)). The

Court agreed that such a test was appropriate, but it declined to adopt the test wholesale.

Id. Rather, the Court explained that in cases of multiple exposures, “proof of mere

frequency, regularity, and proximity is necessary but not sufficient[.]”        Id. at 772.

Emphasizing toxicology’s central tenet that “the dose makes the poison,” the Court

provided the following guidance: “Thus, substantial-factor causation, which separates

the speculative from the probable, need not be reduced to mathematical precision.

Defendant-specific evidence relating to the approximate dose to which the plaintiff was

exposed, coupled with evidence that the dose was a substantial factor in causing the

asbestos-related disease, will suffice.” Id. at 773.

       Later, in Bostic, the Court extended the substantial factor causation test to all

asbestos-related diseases, including mesothelioma, while also incorporating a “doubling

of the risk” requirement:

       [I]n the absence of direct proof of causation, establishing causation in fact
       against a defendant in an asbestos-related disease case requires
       scientifically reliable proof that the plaintiff’s exposure to the defendant’s
       product more than doubled his risk of contracting the disease. A more than
       doubling of the risk must be shown through reliable expert testimony that is
       based on epidemiological studies or similarly reliable scientific testimony.


                                            21
Bostic, 439 S.W.3d at 350.      The Court reiterated that “proof of ‘any exposure’ to a

defendant’s product will not suffice and instead the plaintiff must establish the dose of

asbestos fibers to which he was exposed by his exposure to the defendant’s product[.]”

Id. at 353. “[T]he defendant’s product is not a substantial factor in causing the plaintiff’s

disease if, in light of the evidence of the plaintiff’s total exposure to asbestos or other

toxins, reasonable persons would not regard the defendant’s product as a cause of the

disease[.]” Id. The Court concluded that the causation evidence was legally insufficient

because the plaintiffs failed to establish even an approximate dose to which Bostic was

exposed. Id. at 355.

B.     UCC

       In its third issue, UCC argues that the Torreses failed to establish by legally

sufficient evidence that Oscar’s exposure to asbestos at its Brownsville plant was a

substantial factor in causing his mesothelioma. UCC maintains that the Torreses failed

to quantify Oscar’s exposure to asbestos from both gaskets and insulation. UCC further

maintains that the Torreses’ expert witnesses relied on the “any exposure” theory rejected

by Flores and Bostic.

       We first note that UCC is a premises liability defendant, where Flores and Bostic

involved product liability defendants. The substantial factor causation test announced in

Flores and Bostic applies to cases where a products liability defendant is one of many

whose products contributed to a plaintiff’s exposure. For instance, Flores was exposed

to several brands of brake pads, and Bostic was exposed to multiple brands of drywall

joint compound. Bostic, 439 S.W.3d at 353; Flores, 232 S.W.3d at 766. Here, the


                                             22
evidence establishes that Oscar’s only significant exposure to asbestos—whether

originating in gaskets or insulation—occurred at UCC’s Brownsville plant. There is no

evidence that Oscar suffered occupational exposure to asbestos at any other location.

As it concerns UCC, this is not a multiple exposure case. Thus, the Torreses did not

need to quantify the exposure to gasket-originated asbestos separately from insulation-

originated asbestos.

       In Bostic, the Court acknowledged the possibility that a plaintiff can establish direct

proof of causation with reliable expert testimony that the plaintiff’s exposure to a particular

toxin is the only possible cause of his disease and the only possible source of the toxin is

the defendant’s product. Bostic, 439 S.W.3d at 352. We believe this observation holds

equally true for a premises liability defendant. Here, UCC does not dispute that asbestos

exposure is the only possible cause of Oscar’s mesothelioma.              And the evidence

established that the only possible source of Oscar’s exposure was UCC’s Brownsville

plant. See City of Keller, 168 S.W.3d at 822.

       We further note that the evidence satisfies both Lohrmann’s “frequency, regularity,

and proximity” test as well as Flores and Bostic’s emphasis on dose. See id. at 352

(explaining that “even in the single-exposure case, proof of dose would be required” to

establish specific causation). Oscar described working within twenty feet of insulators

every day for a period of three years. During this same period, he recalled working two

to three days a week in the plant’s acid unit removing pipe insulation and Garlock gaskets.

At times, it would take Oscar up to twenty minutes of scrubbing with a wire brush to

remove a gasket. This work placed him within arm’s length of respirable asbestos fibers.


                                              23
Thus, the Torreses presented evidence of frequent, regular, and proximate exposure to

asbestos.     See Flores, 232 S.W.3d at 772 (stating that Flores “seemingly” satisfied

Lohrmann’s frequency-regularity-proximity test where the evidence showed that “Flores

worked in a small room, grinding brake pads composed partially of embedded asbestos

fibers, five to seven times per week over a four year period”).

       With respect to dose, Dr. Hammar testified that the PEL established by OSHA was

based on epidemiological studies of those occupationally exposed to asbestos. At the

PEL of .1 fibers per cubic centimeter, 7 out of 100,000 people developed mesothelioma.

Dr. Lemen testified that by breathing in visible dust from asbestos insulation, Oscar was

exposed at a level 100 times the PEL. According to Dr. Longo’s studies, workers who

removed asbestos gaskets were exposed on average to 3.7 fibers per cubic centimeter,

which is 37 times the PEL. 11 According to Dr. Gordan, a biopsy of Oscar’s lung tissue

confirmed the presence of both crocidolite and amosite asbestos fibers at a level only

seen in those with occupational exposure.              This evidence establishes that Oscar’s

exposure greatly exceeded a threshold dose developed from epidemiological studies.

The record further establishes that Oscar’s only significant occupational exposure

occurred at UCC’s Brownsville plant. We conclude that this evidence is legally sufficient

to establish specific causation—that Oscar’s exposure to asbestos at UCC’s Brownsville

plant caused his mesothelioma. See Havner, 953 S.W.2d at 714.

       For the foregoing reasons, we overrule UCC’s third issue.



        11 Garlock’s expert Ringo cited studies which indicated that 4 to 5 fiber years was the lowest

cumulative dose documented for the development of mesothelioma, and she testified that Oscar’s exposure
was at least at the level of those in the study.
                                                  24
C.     Garlock

       In its sole issue, Garlock argues that the Torreses failed to demonstrate that

Oscar’s exposure to its gaskets in particular was a substantial factor in causing his

mesothelioma. Garlock argues that the Torreses failed to present evidence establishing

Oscar’s aggregate dose of asbestos exposure, the dose attributable to its product, or that

such a dose more than doubled Oscar’s risk of developing mesothelioma. The Torreses

respond that the evidence establishes the dose to which Oscar was exposed and that the

crocidolite fibers found in his lungs could have only come from the Garlock gaskets.

       In our consideration of UCC’s causation issue, we attributed evidence of Oscar’s

asbestos exposure solely to UCC because the record established that Oscar’s only

significant exposure was at UCC’s Brownsville plant. However, Garlock is a products

liability defendant, and its gasket was one of many asbestos products which Oscar was

exposed to at the Brownsville plant. See supra note 5. Therefore, with respect to their

claims against Garlock, the Torreses were required to meet the substantial factor

causation test for multiple exposure cases as announced in Flores and Bostic.

       In Flores, the Court found the evidence of causation legally insufficient because

the plaintiff failed to establish his aggregate dose and failed to “introduce evidence

regarding what percentage of that indeterminate amount may have originated with Borg-

Warner’s products” as opposed to “other brands of brake pads.” 232 S.W.3d at 772.

Similarly, in Bostic, the Court noted that the plaintiffs failed to quantify the aggregate dose,

failed to quantify the dose attributable to Georgia-Pacific, and failed to show that the dose




                                              25
attributable to Georgia-Pacific more than doubled Bostic’s chances of developing

mesothelioma. 439 S.W.3d at 360.

       As stated above, the Torreses presented evidence of Oscar’s average exposure

to asbestos fibers when removing gaskets paired with frequency-regularity-proximity

evidence.    While this evidence arguably demonstrates a dose attributable solely to

Garlock gaskets, there is no evidence showing that such a dose more than doubled

Oscar’s risk of developing mesothelioma. Bostic requires that more than doubling of the

risk “be shown through reliable expert testimony that is based on epidemiological studies

or similarly reliable scientific testimony.” Id. at 350.

       The plaintiff “must show that he or she is similar to those in the studies.
       This would include proof that the injured person was exposed to the same
       substance, that the exposure or dose levels were comparable to or greater
       than those in the studies . . . and that the timing of the onset of injury was
       consistent with that experienced by those in the study.”

Id. at 359 (quoting Havner, 953 S.W.2d at 720).               “Without such a showing,

‘epidemiological studies are without evidentiary significance.’” Id. (quoting Flores, 232

S.W.3d at 771).

       The Torreses’ failure to produce such evidence may be due to Dr. Lemen’s

acknowledgment that there existed no studies at the time examining the risk of developing

mesothelioma from working with gaskets. In 1998, the Texas Supreme Court declared

that asbestos litigation had reached its maturity. See In re Ethyl Corp., 975 S.W.2d 606,

610 (Tex. 1998). But the record in this case reflects that the scientific community has

only recently appreciated the risk posed by encapsulated asbestos products such as the

Garlock gasket. Without the benefit of epidemiological studies, the Torreses relied on


                                              26
Dr. Longo’s Tyndall lighting study quantifying the release of asbestos fibers from gaskets

during the removal process. In Bostic, the Court concluded that a similar study by Dr.

Longo was insufficient to establish substantial factor causation in a multiple-exposure

case.     See Bostic, 439 S.W.3d at 355 (concluding that Dr. Longo’s study of

concentrations of asbestos released by workers performing drywall work was legally

insufficient to establish causation). The Torreses have failed to demonstrate through

epidemiological studies or similarly reliable scientific testimony a dose attributable to the

Garlock gaskets that more than doubled Oscar’s risk of developing mesothelioma. See

id. at 350. Under Texas’s established precedent for multiple exposure cases, we are

constrained to conclude that the evidence is legally insufficient to establish that Oscar’s

exposure to the Garlock gaskets was a substantial factor in causing his condition.

        We sustain Garlock’s sole issue.

                                    V.     CONCLUSION

        We reverse the portion of the judgment against Garlock and render judgment that

the Torreses take nothing on their claims against Garlock. We affirm the remainder of

the judgment.



                                                                LETICIA HINOJOSA
                                                                Justice

Delivered and filed the
19th day of December, 2019.




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