Georgia-Pacific Corporation v. Bostic

320 S.W.3d 588 (2010)

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Nature of the Case

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Facts

Timothy Bostic's wife, son, father, and mother brought wrongful death claims and a survival action against D and numerous other entities alleging Timothy's death was caused by exposure to asbestos. At the time of trial, D was the sole remaining defendant. Ps alleged Georgia-Pacific was negligent, strictly liable for a product marketing defect, and grossly negligent. D manufactured and sold joint compound products that included chrysotile asbestos. Those D joint compounds were offered in a dry mix formula and a pre-mixed formula. The parties do not dispute that any exposure of Timothy to a D asbestos-containing joint compound would have occurred between 1967 and 1977. Evidence regarding Timothy's work with or around D asbestos-containing joint compound in this ten-year period came from Timothy's and Harold Bostic's deposition testimony read and played by videotape at trial and Timothy's work history sheets. Timothy stated he mixed and sanded joint compound from the age of five. He testified he recalled at a young age helping his father 'mud the holes' with joint compound. He believed he used and was exposed to D’s joint compound before he graduated from high school in 1980. Timothy's work history sheets also indicate he worked with and around other brands of asbestos-containing joint compounds. Timothy also asserted exposure to asbestos fibers from D joint compound as a result of household exposure to Harold's clothing. This alleged exposure would have occurred prior to his parents' divorce in 1972, when he was ten years old, and thereafter when he stayed with his father on weekends, holidays, and at times in the summer. Harold testified he used D joint compound ninety-eight percent of the time that he did drywall work. Harold said he could not positively associate D's product with any specific drywall job. He stated he knew he had used D's product on several jobs, but he could not recall exactly where. Harold testified that Timothy began to accompany him on remodeling jobs in 1967 when Timothy was the age of five. Timothy helped mix joint compound, applied and sanded joint compound to the height Timothy could reach and breathed in the dust from sanded joint compound. The evidence established that Timothy was exposed to numerous asbestos products and asbestos-containing products, both occupationally and through household and bystander exposure. Timothy was exposed to asbestos utilized at Knox Glass. After his graduation from high school, Timothy began remodeling homes on his own. According to the evidence, he was exposed to a number of asbestos-containing products in his remodeling work, including roofing shingles, floor tiles, and ceiling tiles. Timothy identified several manufacturers and marketers of asbestos-containing products he utilized in addition to D joint compounds. It is not disputed that Timothy used S products after his graduation from high school in 1980. However, these uses occurred after D joint compounds no longer contained asbestos. After a second trial, the jury returned a verdict in favor of Ps, finding D seventy-five percent liable and Knox Glass, Inc., a non-party former employer of Timothy, twenty-five percent liable for Timothy's death. The jury awarded $7,554,907 in compensatory damages and $6,038,910 in punitive damages. D filed a motion to recuse Judge Montgomery. Judge M. Kent Sims granted the motion to recuse, and the lawsuit was transferred to Judge Russell H. Roden. The trial court granted D's motion for mistrial and ordered a new trial. Judge Benson granted Ps' motion to vacate the order for new trial and signed a judgment based on the jury's June 2006 verdict. In October 2008, Judge Benson signed the amended final judgment awarding Ps $6,784,135.32 in compensatory damages and $4,831,128.00 in punitive damages. D appealed. D asserts there is legally insufficient evidence that D's asbestos-containing joint compound caused Timothy's mesothelioma, a form of cancer usually linked to asbestos exposure. D asserts there is no evidence Timothy was exposed to D's asbestos-containing joint compound, and even if there was evidence of exposure, there is no evidence of dose. D posits that the record contains no epidemiological studies showing that persons similar to Timothy with exposure to asbestos-containing joint compound had an increased risk of developing mesothelioma. D also asserts that Ps' experts' theory that 'each and every exposure' to asbestos caused Timothy's mesothelioma was rejected by the Texas Supreme Court in Borg-Warner Corp. v. Flores.