Court Renders Judgment for Employer in EL Gross Negligence Case

The Dallas Court of Appeals has concluded that an employer was not liable for damages in an employers’ liability case following an employee’s death from mesothelioma.. The case, Bell Helicopter Textron, Inc. v. Dickson, et al., No. 05-18-00979-CV (Dallas, August 23, 2019), was decided after a jury trial in which the plaintiffs’ expert testified that the employee had been injuriously exposed to “bystander exposure” to asbestos in the course and scope of his employment. The employer appealed the adverse judgment.

The case focused on the concept of causation. The employer argued that the evidence to support a causal relationship between the work and the employee’s disease was legally insufficient to support the judgment. The plaintiffs – the employee’s surviving spouse and three children – countered that the evidence of causation was sufficient to support the judgment.

At trial, the plaintiffs’ expert, Edwin Holstein, M.D., testified that he had reviewed the employee’s medical records and deposition testimony. Holstein testified the term “bystander exposure” was relevant to the employee’s case because he had been an engineer at Bell and, because of union rules, he was not allowed to touch any tools. As a result, the employee was a bystander to the work performed by others in constructing enclosures for testing work, allegedly exposing him to asbestos. He stood “a foot or two or five or eight feet away from the work they were doing.” Dr. Holstein testified the “bottom line” was that, “for the exposures that [the employee] had at Bell, he was a bystander.” Following extensive additional testimony concerning Dr. Holstein’s training and experience, the trial court certified Dr. Holstein to be 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.”

Dr. Holstein testified he was able to make an approximation of the employee’s asbestos exposure at Bell based on the employee’s deposition testimony detailing his work history. Dr. Holstein testified that the employee’s injurious exposures occurred “several times per month for about six years” when the employee was standing nearby while asbestos boards were cut in order to construct an enclosure to insulate the surrounding area from the heat that was generated during testing.

Dr. 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.” The doctor testified that he understood that the employer had used the millboard to construct the enclosures, and the millboard was “between 25 percent and 75 percent asbestos.” The employer’s counsel objected that there was no foundation for this testimony and “no evidence of that in [Billy’s] testimony.” The trial court sustained counsel’s objection.

Ultimately, Dr. Holstein testified that the employee’s asbestos exposure at Bell “Considerably more than doubled his risk of getting mesothelioma, which ultimately he did get.”

On appeal, the court observed that three provisions in the Texas Labor Code 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. The plaintiffs in this case were pursuing a gross negligence theory in attempting to recover exemplary damages against the employer in this case.

Gross negligence consists of both objective and subjective elements. In essence, the plaintiffs were required to establish that the employer was aware that the cutting of boards and the employee’s supervision of the construction of enclosures posed an extreme degree of risk and that the employer had actual, subjective awareness that the employee could develop mesothelioma as a result of supervising the construction but nevertheless proceeded to allow him to supervise the construction.

The case focused on whether the plaintiffs had proved that the millboards contained asbestos. The court of appeals held that they had not done so.

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. 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. We conclude appellees presented no evidence to prove by clear and convincing evidence either the objective or subjective elements of gross negligence. (Citations omitted)

The court of appeals reversed the trial court’s judgment and rendered judgment that the plaintiffs take nothing on their claims.