REVERSE and RENDER and Opinion Filed August 23, 2019




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00979-CV

               BELL HELICOPTER TEXTRON, INC., Appellant
                                 V.
    SHIRLEY DICKSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
  ESTATE OF BILLY DICKSON, DECEASED, RANDALL C. DICKSON, DARYL W.
                DICKSON, DEANA K. BOAZ KIZER, Appellees

                         On Appeal from the 95th Judicial District Ct
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-05995-D

                              MEMORANDUM OPINION
                          Before Justices Bridges, Brown, and Whitehill
                                   Opinion by Justice Bridges
       Bell Helicopter Textron, Inc. appeals the trial court’s judgment awarding damages and

post-judgment interest to appellees Shirley Dickson, individually and as representative of the estate

of Billy Dickson, deceased, Randall C. Dickson, Daryl W. Dickson, and Deana K. Boaz Kizer on

their claims arising from Billy Dickson’s death from mesothelioma. In four issues, Bell argues

the evidence is legally and factually insufficient to support the jury’s findings on the causation

elements of appellees’ gross negligence claim, the trial court erred by excluding evidence of Billy’s

asbestos exposure at locations other than Bell, and the trial court erred in applying the exemplary

damage cap. We reverse the trial court’s judgment and render judgment that appellees take nothing

on their claims.
       On May 30, 2012, appellees filed in the 191st District Court in Dallas County an original

asbestos petition and jury demand asserting, among other things, that Billy suffered from

mesothelioma and alleging claims of products liability, strict products liability, negligence, and

gross negligence against seven defendants. Billy was an engineer at Bell from 1962 to 1968 who

did not perform any hands-on work with asbestos-containing materials but who supervised others

who built testing enclosures that Billy designed. Bell was not one of the named defendants. On

July 2, 2012, the case was transferred by the Multidistrict Litigation Panel to the 11th District

Court in Harris County. On February 27, 2013, appellees filed their second amended petition

naming Bell as a defendant. On December 15, 2013, Billy died.

       On June 11, 2014, plaintiffs’ fourth amended petition was filed naming as plaintiffs Billy’s

wife and three children (“appellees”). As the case progressed, appellees settled some of their

claims and dismissed others, leaving Bell as the only defendant. Appellees’ claim against Bell

was limited to a claim of gross negligence. Prior to trial, the case was transferred back to Dallas

County.

       At trial, Dr. Edwin Holstein testified he is a medical doctor with specialties in internal

medicine and preventative medicine with a subspecialty in occupational medicine. Holstein

testified he taught both medical doctors and industrial hygienists about asbestos and other dusts

that can be harmful to humans. Holstein testified he reviewed Billy’s medical records and

deposition testimony. Holstein testified the term “bystander exposure” was relevant to Billy’s case

because Billy was an engineer at Bell and, because of union rules, he was not allowed to touch any

tools. As a result, Billy was a bystander to the work performed by others in constructing enclosures

for testing work, allegedly exposing Billy to asbestos, and he stood “a foot or two or five or eight

feet away from the work they were doing.” Holstein testified the “bottom line” was that, “for the

exposures that [Billy] had at Bell, he was a bystander.” Following extensive additional testimony

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concerning Holstein’s training and experience, the trial court certified Holstein as an expert on

issues of occupational and preventative medicine, particularly the causation of asbestos-related

diseases generally and specifically “the asbestos-related disease that Billy Dickson was diagnosed

with and the causation thereof.”

       Holstein testified he had reviewed Billy’s deposition and described Billy’s exposure to

asbestos at Bell as “intermittent” with “relatively brief periods of exposure” during which “the

exposure would be intense.” The exposures occurred “several times per month for about six

years.” In testing helicopter components, Bell constructed enclosures to insulate the surrounding

area from the heat that was generated during testing. Holstein testified, “According to [Billy’s]

testimony, they used an asbestos-containing millboard,” which was “a little bit like a wall panel,

Sheetrock about half an inch thick typically and comes in sheets.” Holstein testified they used the

millboard to construct the enclosures, and the millboard was “between 25 percent and 75 percent

asbestos.” Bell’s counsel objected that there was no foundation for this testimony and “no

evidence of that in [Billy’s] testimony and far exceeds that.” The trial court sustained counsel’s

objection. Holstein then was asked if, based upon his review of Billy’s testimony, he could “get

an indication . . . as to what type of asbestos-containing insulation boards he was – he was

identifying?” Holstein responded that Billy did not give a brand name, and Holstein could not

“assign a brand name,” but Holstein testified “asbestos-containing millboard for purposes of

insulation was a standard product.” Holstein testified there were “only approximately five

manufacturers of it,” and he relied on “certain studies” concerning the “composition of those

millboards” and the “air concentration that stemmed from the cutting of those millboards.”

       In response to questioning, Holstein agreed that the studies he relied upon were “the 1970

study done by Carter,” the “1999 study on Micarta panel work simulation practices by Hatfield

and Longo,” the “Marinite board study” in “May 2001 by Hatfield and Longo,” and a study in

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1989 in Virginia on behalf of the E.P.A. Holstein testified he was able to make an approximation

of Billy’s asbestos exposure at Bell based on Billy’s deposition testimony detailing his work

history. Holstein described Billy’s work history as follows:

       Okay. So he was an engineer. He designed the enclosures, and then he took his
       plans to the workmen and said, I want you to build these enclosures for this
       experiment we’re now going to do on the helicopter component in order to insulate
       it because there’s going to be a lot of heat in there, so we need to build this enclosure
       to keep the heat in. And then he would come into the laboratory area and he would
       supervise it to make sure it was being built correctly. He testified he spent about
       half of his work day for six years, from 1962 to 1968, about half of each work day
       was spent in that area. But they weren’t building these enclosures every time he
       was there, that was something that he might supervise three or four times a month
       on average. And when he would be supervising it, he might be there for half an
       hour. Sometimes it was 15 minutes, sometimes it was 45 minutes, but on average
       about half an hour.

Holstein testified Billy’s asbestos exposure at Bell “Considerably more than doubled his risk of

getting mesothelioma, which ultimately he did get.”

       Holstein testified concerning the history of medical studies into the effects of asbestos,

beginning with a 1927 medical article describing a person who had worked with asbestos and died

from scarring of the lungs. Holstein testified the Walsh-Healey Act was passed in 1951, Bell was

required to comply with the Act, and the Act restricted asbestos exposure to 5 million particles per

cubic foot. Holstein testified a 1958 Texas law also limited asbestos exposure to 5 million particles

per cubic foot, and Bell would have been on notice as to the hazards of asbestos no later than 1951.

In 1960, the publication of an article reporting 33 cases of mesothelioma established beyond a

reasonable doubt that asbestos caused asbestosis, lung cancer, and mesothelioma.

       On cross-examination, Holstein agreed Billy’s deposition testimony was that the cutting of

asbestos board occurred ten or twenty times or “more” but it could not have been as many as a

hundred times. Holstein testified his calculation that the board cutting occurred 252 times was “an

approximation,” and Billy’s testimony elsewhere in his deposition supported the higher number.

Bell’s counsel asked if Holstein was aware Bell had a record retention policy under which
                                                 –4–
documents were only kept for thirty years, and Holstein said he was not aware of Bell’s policy.

Holstein conceded “there would be no surprise” Bell did not have corporate documents from the

1960s for Holstein to review if Bell has a 30-year document retention policy. Holstein agreed that

Billy was an engineer who designed the enclosures and who was responsible for “making sure the

heat enclosure would work.”

         The jury subsequently found by clear and convincing evidence that the harm to Billy was

proximately caused by the gross negligence of Bell. The trial court rendered judgment on the

verdict and denied Bell’s motion for new trial. This appeal followed.

         In its first issue, Bell argues the evidence is legally insufficient to support the jury’s

findings on the objective, subjective, and/or causation elements of appellees’ gross negligence

claim.

         In section 408.001, the labor code provides that “[r]ecovery of workers’ compensation

benefits is the exclusive remedy of an employee ... or a legal beneficiary against the employer for

the death of ... the employee.” TEX. LAB. CODE ANN. § 408.001(a). Paragraph (b) of that section

provides that “[t]his section does not prohibit the recovery of exemplary damages by the surviving

spouse or heirs of the body of a deceased employee whose death was caused . . . by the employer’s

gross negligence.” Id. § 408.001(b). Section 408.002 provides, “A right of action survives in a

case based on a compensable injury that results in the employee’s death.” These three provisions

generally prohibit an employee receiving workers’ compensation benefits or his beneficiaries from

bringing suit against the employer for actual damages. However, the provisions permit the spouse

and heirs of a deceased employee to bring suit for the death of the employee and to recover

exemplary damages from the employer for its gross negligence notwithstanding the fact that

workers’ compensation benefits were paid for the employee’s death. See Wright v. Gifford–Hill




                                                –5–
& Co., 725 S.W.2d 712, 714 (Tex.1987); City of Dallas v. Gatlin, 329 S.W.3d 222, 226 (Tex.

App.—Dallas 2010, no pet.).

       In reviewing an award for exemplary damages, we conduct a legal sufficiency review under

the “clear and convincing” evidence standard. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137

(Tex. 2012). “‘Clear and convincing’ means the measure or degree of proof that will produce in

the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to

be established.” TEX. CIV. PRAC. & REM. CODE § 41.001(2); Waldrip, 380 S.W.3d at 137. The

standard for legal sufficiency works in tandem with the standard of review—“whenever the

standard of proof at trial is elevated, the standard of appellate review must likewise be elevated.”

City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005) (quoting S.W. Bell Tel. Co. v. Garza,

164 S.W.3d 607, 627 (Tex. 2004)). Accordingly, our legal sufficiency review must consider all

the evidence. Id.

       Gross negligence consists of both objective and subjective elements. Waldrip, 380 S.W.3d

at 137. Plaintiffs must prove by clear and convincing evidence that 1) when viewed objectively

from the defendant's standpoint at the time of the event, the act or omission 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. Id.

       Under the objective component, “extreme risk” is not a remote possibility or even a high

probability of minor harm, but rather the likelihood of the plaintiff's serious injury. Id. The risk

must be examined prospectively from the perspective of the actor, not in hindsight. Columbia

Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). 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. Waldrip, 380 S.W.3d at 137. In essence,

                                                 –6–
appellees must establish that Bell was aware that the cutting of boards and Billy’s supervision of

the construction of enclosures posed an extreme degree of risk and that Bell had actual, subjective

awareness that Billy could develop mesothelioma as a result of supervising the construction but

nevertheless proceeded to allow Billy to supervise the construction. See id.

       Here, the evidence showed Billy himself designed the testing enclosures and supervised

their construction. Billy was a “bystander” to the construction process. In his deposition, Billy

testified he did not know where the boards he used for the enclosures came from. Billy did not

know any specific brand name associated with the boards, and there were no labels, tags, or

packaging he saw with the boards. When asked how he gained an understanding or belief that the

boards contained asbestos, the following exchange occurred:

       Billy: Well, based on what it – what the inside of the boards looked like, they later
       determined that that’s what asbestos looks like, fibers.

       Q: When did you determine that?

       Billy: Oh, it was recently.

       Q: How did you determine that?

       Billy: The last few years.

       Q: What was the source of information that brought you to that conclusion?

       Billy: Well, it’s just that I’ve learned what it looked like.

Based on a review of Billy’s deposition testimony, Holstein concluded the millboard used in the

construction of the testing enclosures contained asbestos and was “a standard product” produced

by “only approximately five manufacturers.” In extrapolating Billy’s approximate asbestos

exposure at Bell based on Billy’s deposition testimony detailing his work history, Holstein relied




                                                 –7–
on studies conducted in 1970 and later years. Holstein testified Bell would have been on notice as

to the hazards of asbestos no later than 1951.1

           However, Holstein offered no testimony concerning what Bell knew about the millboard

used to construct testing enclosures between 1962 and 1968 when Billy was supervising the

construction. Billy himself did not know until a “few years” before his deposition that the “inside

of the boards looked like” asbestos. Thus, Billy did not know at the relevant time that the boards

might contain asbestos, and there is no evidence that Bell knew of a risk to him but proceeded to

allow Billy to use asbestos-containing boards. Bell’s knowledge of the “hazards of asbestos”

generally is no evidence that Bell was aware that the cutting of boards and Billy’s supervision of

the construction of enclosures posed an extreme degree of risk to Billy and that Bell had actual,

subjective awareness that Billy could develop mesothelioma as a result of supervising the

construction but nevertheless proceeded to allow Billy to supervise the construction. See id.

Further, all of the studies Holstein relied upon in approximating Billy’s asbestos exposure were

conducted after the relevant 1962 to 1968 time period and were no evidence of Bell’s awareness

of an extreme risk posed by the cutting of the boards between 1962 and 1968. The risk must be

examined prospectively from Bell’s perspective, not in hindsight. See Hogue, 271 S.W.3d at 248.

We conclude appellees presented no evidence to prove by clear and convincing evidence either

the objective or subjective elements of gross negligence. See Waldrip, 380 S.W.3d at 137. We

sustain Bell’s first issue. Because of our disposition of Bell’s first issue, we need not address

Bell’s remaining issues.




       1
         There is no evidence in the record that Bell failed to comply with any laws imposing limits on asbestos exposure. Holstein acknowledged
that it was unlikely Billy was ever exposed to asbestos in excess of the limitations on exposure of the Walsh-Healey Act or Texas law. Further,
Holstein testified that Billy would “almost certainly not have had exposures that on an eight-hour time-weighted average basis would have gone
above the 5 million particles per cubic foot of the Walsh-Healey Act.”

                                                                     –8–
       We reverse the trial court’s judgment and render judgment that appellees take nothing on

their claims.




                                                /David L. Bridges/
                                                DAVID L. BRIDGES
                                                JUSTICE

170979F.P05




                                             –9–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 BELL HELICOPTER TEXTRON, INC.,                      On Appeal from the 95th District Court,
 Appellant                                           Dallas County, Texas
                                                     Trial Court Cause No. DC-12-05995-D.
 No. 05-17-00979-CV          V.                      Opinion delivered by Justice Bridges.
                                                     Justices Brown and Whitehill participating.
 SHIRLEY DICKSON, INDIVIDUALLY
 AND AS REPRESENTATIVE OF THE
 ESTATE OF BILLY DICKSON,
 DECEASED, RANDALL C. DICKSON,
 DARYL W. DICKSON, DEANA K.
 BOAZ KIZER, Appellees

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:

       Appellees Shirley Dickson, individually and as representative of the estate of
       Billy Dickson, deceased, Randall C. Dickson, Daryl W. Dickson, and Deana K.
       Boaz Kizer take nothing on their claims.

       It is ORDERED that appellant Bell Helicopter Textron, Inc. recover its costs of this
appeal from appellees Shirley Dickson, individually and as representative of the estate of Billy
Dickson, deceased, Randall C. Dickson, Daryl W. Dickson, and Deana K. Boaz Kizer.


Judgment entered August 23, 2019.




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