Linda Faust and Donnie Faust v. BNSF Railway Company ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-00226-CV
LINDA FAUST AND DONNIE APPELLANTS
FAUST
V.
BNSF RAILWAY COMPANY APPELLEE
------------
FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
I. INTRODUCTION
Appellants Linda Faust and Donnie Faust sued Appellee BNSF Railway
Company (BNSF) for personal injuries and damages that they allegedly
sustained from exposure to chemicals released by BNSF‘s wood treatment
facility in Somerville, Texas. After a lengthy trial, a jury rendered a verdict in
favor of BNSF, concluding that BNSF‘s negligence, if any, did not proximately
cause Linda‘s stomach cancer. In two issues, the Fausts argue that the trial
court committed reversible error by overruling their objection to a specific
causation instruction and that the evidence is factually insufficient to support the
jury‘s ―No‖ answer to question number 1. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Fausts live in Somerville. Linda moved there and married Donnie in
1980. Donnie has lived in Somerville most of his life. The Fausts‘ home is
located approximately 4,000 feet from the Somerville Tie Plant.
Donnie began working at the plant in 1974. He performed a number of
different duties, including working as a ―roustabout,‖ driving a trash truck, and
operating various machinery. Donnie came into contact with creosote when he
worked at the plant and often had creosote on him when he came home from the
plant.
Linda worked a number of different jobs that were located near the plant,
shopped near the plant, and, many times, visited Donnie at the plant during his
lunch break. She smoked between one-half and one full pack of cigarettes every
day for twenty-five years; began experiencing headaches, nausea, and stomach
pain in the early 1980s; and had a twelve-year medical history of stomach
problems. In 1998, Linda was diagnosed with diffuse signet cell stomach cancer
2
and Helicobacter pylori infection (H. pylori). She subsequently underwent a
radical complete gastrectomy, in which her entire stomach was removed.1
BNSF‘s predecessor, the Atchison, Topeka & Santa Fe Railway (AT&SF),
began operating the plant in 1905.2 The plant, which occupied a 200-acre tract
of land in Burleson County and operated twenty-four hours a day, treated railroad
ties and other wood products with chemicals to preserve the wood and increase
the products‘ service life. A mixture of creosote3 and extender oil (predominantly
30% creosote and 70% oil) was the primary chemical applied to the ties in one of
four treating cylinders measuring 8 feet in diameter by 155 feet in length.4 Each
treating process (commonly referred to by plant employees as a ―charge‖) lasted
between eight and twenty-four hours, depending on whether the ties had been air
dried or needed to be vapor dried in the treating cylinder using a drying agent.5
1
Linda successfully treated the H. pylori before undergoing the surgery to
remove her stomach.
2
BNSF sold the plant to Koppers, Inc. in 1995. Koppers currently operates
the plant.
3
The creosote used at the plant—a black, oily material—was derived from
coal tar. The International Agency for Research on Cancer (IARC) classifies
creosote as probably carcinogenic to humans.
4
One of the Fausts‘ experts testified that the plant also treated wood
products with pentachlorophenol (PCP), a now-banned pesticide, and copper
chromium arsenate (CCA), another pesticide. The expert agreed, however, that
the plant had not used PCP and CCA since 1981.
5
The primary solvent that the plant used to accelerate the wood-drying
process was naptha.
3
The plant generated several types of waste:
drainage from a treating cylinder consisting of creosote mixture and
possibly wood fragments that accumulated in a ―pit‖ located in front of the
cylinder door when the door was opened after the completion of a charge;
―kickback‖ (also known as ―drippage‖), which consisted of residual
creosote mixture that dripped off of treated ties that were removed from a
cylinder and onto rock ballast or ―screening‖ that was laid directly
underneath the tracks on which the ―trams‖ that carried the ties rolled;6
before the plant began using chains, treated wood slats (spacers) that
were placed in between the ties during the treatment process;
sawdust used to absorb chemicals and to clean the cylinders and pits;
boiler emissions, which may have included dioxins7 and polycyclic
aromatic hydrocarbons (PAHs),8 from burning treated wood in a boiler9
wastewater (also called ―sap water‖) resulting from the process of vapor-
drying wood products; and
emissions released into the atmosphere from several different sources.
6
In 1992, the plant built a ―drip pad‖—a concrete pad with an underlying
reservoir—to help collect kickback from the treated wood products. Before 1992,
the kickback dripped onto the soil or ballast.
7
Dioxin is a byproduct of incomplete combustion of a source containing
chlorine. The IARC classifies dioxin as carcinogenic to humans.
8
PAHs are a byproduct of incomplete combustion of organic materials.
According to one of BNSF‘s experts, PAHs are found ―all over the place.
Everywhere.‖ But the IARC classifies benzo[a]pyrene, a PAH, as probably
carcinogenic to humans.
9
From the late 1930s to the early to mid 1980s, the ―Babcock-Wilcox‖ boiler
supplied steam energy for the treating process. The ―Keeler‖ boiler came online
to replace the Babcock-Wilcox boiler in the mid 1980s. Both boilers were
biomass, or wood-fired, boilers.
4
The amount of waste that the plant generated and the means by which the plant
disposed of it or used it was hotly contested at trial.
The Fausts alleged that BNSF negligently allowed the release of toxic and
hazardous chemicals, solvents, and substances into the soil, groundwater, water,
and air in and around the plant; that they have been and continue to be exposed
to the toxic chemicals released from the plant; and that their bodies, real
property, and home have been contaminated by the chemicals, proximately
causing them injuries and damages, including, but not limited to, cancer. At trial,
each side offered expert testimony relevant to, among other things, the disputed
fact issues of negligence and causation. As part of its charge, the trial court
submitted the following instruction to the jury: ―In order to prove specific
causation for exposure from the Somerville Tie Plant, the Plaintiffs must exclude,
with reasonable certainty, other plausible causes of Linda Faust‘s stomach
cancer, such as her history of smoking cigarettes and her Helicobacter pylori
infection.‖10 Jury question number 1 asked whether ―the negligence, if any, of
[BNSF was] a proximate cause of Linda Faust‘s stomach cancer.‖ The jury
answered, ―No,‖ and, as instructed, did not proceed to answer any of the
remaining questions. In accordance with the jury‘s verdict, the trial court entered
10
The trial court also instructed the jury that ―[t]he only substances whose
exposure you are to consider are PAHs and dioxin; you are not to consider any
exposure to other chemicals, including chromium (VI), arsenic, CCA, or PCP.‖
5
a take-nothing judgment on the Fausts‘ claims against BNSF, and it denied the
Fausts‘ motion for new trial. The Fausts filed their notice of this appeal.
III. SPECIFIC CAUSATION INSTRUCTION
In their first issue, the Fausts argue that the trial court committed reversible
error by overruling their objection to the specific causation instruction. They
contend that the instruction was erroneous because it (1) improperly heightened
their burden of proof, (2) improperly shifted the trial court‘s gatekeeper function to
the jury, and (3) constituted an impermissible comment on the weight of the
evidence. They further argue that the inclusion of the instruction was harmful
because the jury expressed some confusion about it and rendered its verdict
shortly after the trial court addressed a jury note inquiring in part about the
instruction. BNSF responds that the Fausts failed to preserve part of their first
issue for appellate review, that the trial court did not abuse its discretion by
including the instruction in the charge, and that, even if erroneous, the trial
court‘s inclusion of the instruction was harmless.
A. Preservation of Error
An objection to the jury charge must timely and plainly make the trial court
aware of the complaint, and the complaining party must obtain a ruling. Ford
Motor Co. v. Ledesma, 242 S.W.3d 32, 43–44 (Tex. 2007); State Dep’t of
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (op. on
reh‘g); see Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274 (requiring a party
objecting to a charge to point out distinctly the objectionable matter and the
6
grounds of the objection). If a party fails to do this, error is not preserved, and
the complaint is waived. Payne, 838 S.W.2d at 241.
The Fausts asserted the following objection to the specific causation
instruction at the charge conference:
Mr. Woodfill: With respect to the instruction, Your Honor, the
other objection we had was to paragraph 2, information regarding
Linda Faust‘s cigarette smoking and the Helicobacter -- H. pylori
bacteria infection. We believe that this is an improper role of the
Court’s gatekeeper function and should not be included in the
instruction. And we believe it‘s unfairly prejudicial to the client. It
can be argued in the proximate cause section that‘s addressed in
Question Number 1, I believe. Additionally, Your Honor, we don‘t
believe that there was any evidence -- Well, that‘s enough.
[Emphasis added.]
The Fausts‘ objection did not timely and plainly make the trial court aware that
they were objecting on the grounds that the instruction improperly heightened
their burden of proof and constituted an impermissible comment on the weight of
the evidence, nor were these arguments apparent from the context of the
objection. See, e.g., Fethkenher v. Kroger Co., 139 S.W.3d 24, 31–32 (Tex.
App.—Fort Worth 2004, no pet.) (holding that appellant‘s objection did not make
trial court aware of complaint that instruction was an impermissible comment on
weight of the evidence). We cannot agree with the Fausts‘ contentions that an
objection to the shifting of the gatekeeper function from the trial court to the jury
―is necessarily‖ an objection to the trial court adding elements to the Fausts‘
burden of proof that do not exist under the law and ―is necessarily‖ an objection
7
that the trial court is commenting on the weight of the evidence. This argument
conflicts with the dictates of rule of appellate procedure 33.1(a) and Payne.
Citing Payne, the Fausts argue that their objection at the charge
conference was sufficient to preserve this issue with regard to any of the legal
bases for the objection because they submitted a proposed jury charge in writing
that did not include the specific causation instruction. Payne did not hold that
submitting a jury charge in writing that omitted a later complained-of instruction
was sufficient to preserve error as to the inclusion of the instruction on any legal
basis. Rather, Payne held that ―[t]here should be but one test for determining if a
party has preserved error in the jury charge, and that is whether the party made
the trial court aware of the complaint, timely and plainly, and obtained a ruling.‖
Payne, 838 S.W.2d at 241. Consistent with its holding, the supreme court
reasoned in part that the State had preserved its charge error issue for appellate
review because it had requested that the trial court question the jury about
Payne‘s knowledge of the culvert, and the trial court‘s refusal to do so
―constituted a clear refusal to submit a premise defect theory to the jury.‖ Id. at
239. Thus, the trial court could not have clearly refused to submit the premise
defect question if it was not aware that the State had requested that the question
be submitted.
Here, unlike in Payne, the Fausts are not complaining on appeal about the
trial court‘s refusal to include in the charge a specifically requested question.
Instead, they are complaining about the inclusion of an instruction that was not
8
part of the proposed jury charge that they submitted to the trial court. The
difference is significant because in Payne, the State timely made the trial court
aware that it specifically desired the inclusion of the question in the charge. Id.
In this case, there is nothing in the record to indicate that the Fausts timely made
the trial court aware that they were objecting to the instruction on the grounds
that it heightened their burden of proof and amounted to a comment on the
weight of the evidence, including by merely omitting the specific causation
instruction from their proposed jury charge. Therefore, other than identifying the
proper standard for preserving charge error, Payne is factually distinguishable
from this case and, consequently, inapposite.
Accordingly, we hold that of the three arguments the Fausts assert on
appeal, the objection lodged at the charge conference was sufficient to preserve
for appellate review only their second argument—that the instruction improperly
shifted the trial court‘s gatekeeper function to the jury. See Ledesma, 242
S.W.3d at 43–44; Payne, 838 S.W.2d at 241; see also Tex. R. App. P. 33.1(a).
B. No Abuse of Discretion
The Fausts argue that ―[t]o the extent the cases require a scientific expert
to exclude other plausible causes ‗with reasonable certainty,‘ that requirement
relates solely to the trial court‘s determination under Rule 702 on whether the
testimony is reliable and admissible.‖ [Emphasis added.] They thus maintain
that the instruction ―clearly incorporated elements for the court, not the jury, to
consider when making a determination as to the admissibility of the offered
9
testimony‖ and, therefore, that the instruction ―improperly place[d] in the hands of
the jury the trial court‘s gatekeeper function.‖ BNSF responds that the instruction
correctly stated the law, had evidentiary support, and assisted the jury in
resolving contested fact issues.
A trial court must submit ―such instructions and definitions as shall be
proper to enable the jury to render a verdict.‖ Tex. R. Civ. P. 277; Union Pac.
R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). An instruction is proper if
it (1) assists the jury, (2) accurately states the law, and (3) finds support in the
pleadings and evidence. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 855 (Tex. 2009). Rule 277 affords the trial court considerable
discretion in deciding what instructions are necessary and proper. Tex. R. Civ.
P. 277; State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997). In
fact, a trial court is afforded even more discretion when submitting instructions
than when submitting questions. GuideOne Lloyds Ins. Co. v. First Baptist
Church of Bedford, 268 S.W.3d 822, 836–37 (Tex. App.—Fort Worth 2008, no
pet.). Thus, determining necessary and proper jury instructions is a matter within
the trial court‘s discretion, and appellate review is for abuse of that discretion.
Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner or without reference to
any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
10
The Fausts‘ argument disregards the distinction between the trial court‘s
responsibility to determine whether proffered scientific evidence is based on a
reliable foundation and, therefore, admissible and a proponent‘s burden to prove
causation in a toxic tort case in which an expert relies on epidemiological studies
to support his opinion that the plaintiff‘s exposure to a particular substance
caused the plaintiff‘s complained-of injury.11
Rule 702 requires the proponent of expert testimony to show not only that
the expert is qualified, but also that the expert‘s testimony is relevant to the
issues in the case and is based on a reliable foundation. E.I. du Pont de
Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). When a party
objects to the reliability of its opponent‘s scientific expert testimony, the trial
court—in exercising its gatekeeper function—is responsible for making the
preliminary determination of whether the proffered testimony meets the
standards of scientific reliability. Id. at 556–57; see Helena Chem. Co. v. Wilkins,
47 S.W.3d 486, 499 (Tex. 2001); see also Exxon Pipeline Co. v. Zwahr, 88
S.W.3d 623, 629 (Tex. 2002). If the trial court sustains an objection to expert
testimony, the proponent of the evidence may complain on appeal that the trial
court abused its discretion by excluding the evidence. See Ledesma, 242
S.W.3d at 39; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718–19
11
See generally Lakie v. SmithKline Beecham, 965 F. Supp. 49, 55 (D.D.C.
1997) (stating that the ―defendant confuses, at times ignores, the crucial
distinction between the admissibility of expert scientific testimony and the weight
such testimony should be afforded by the trier of fact‖) (emphasis in original).
11
(Tex. 1998). If, on the other hand, the trial court overrules an objection to expert
testimony, the opponent of the evidence may complain on appeal that the
evidence is legally insufficient to support the jury‘s causation finding because the
scientific evidence is unreliable and, thus, no evidence.12 See Havner, 953
S.W.2d at 714; Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 285 (Tex.
App.—Texarkana 2000, no pet.). A party must object to the evidence before trial
or when the evidence is offered to preserve a complaint on appeal that scientific
evidence is unreliable. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409–11
(Tex. 1998). But see Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136
S.W.3d 227, 232 (Tex. 2004) (reasoning that an objection is not needed to
preserve a no-evidence challenge to conclusory testimony).
Distinct from the trial court‘s rule 702 reliability determination is a
complainant‘s burden to prove causation, a fact question, in a toxic tort case. In
addition to explaining that an appellate court must go beyond an expert‘s bare
conclusions when performing a legal sufficiency review and determine whether
the expert‘s opinion is scientifically reliable, the supreme court in Havner
identified the evidentiary standard that a plaintiff must satisfy to prove causation
12
When determining whether expert testimony constitutes some evidence,
i.e., is legally sufficient, the appellate court must look beyond the expert‘s bare
conclusions and make a threshold determination whether the expert‘s opinion is
scientifically reliable. Havner v. Merrell Dow Pharm., Inc., 953 S.W.2d 706, 711–
14 (Tex. 1997). The appellate court performs this sufficiency review because if
the expert‘s testimony is not scientifically reliable, it is, legally, no evidence and,
thus, cannot survive a legal sufficiency review. Id. at 714.
12
in a toxic tort case: general and specific causation. Havner, 953 S.W.2d at 714.
General causation asks whether a substance is capable of causing a particular
injury in the general population, and specific causation asks whether that
substance caused a particular individual‘s injury. Id.; Georgia-Pacific Corp. v.
Stephens, 239 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2007, pet.
denied). The cases—both state and federal—are legion that a plaintiff in a toxic
tort case must prove general and specific causation. See, e.g., Golden v. CH2M
Hill Hanford Group, Inc., 528 F.3d 681, 683 (9th Cir. 2008); Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); Amorgianos v. Nat’l R.R.
Passenger Corp., 303 F.3d 256, 268 (2d Cir. 2002); King v. Burlington N.
Santa Fe Ry. Co., 762 N.W.2d 24, 34 (Neb. 2009); Parker v. Mobil Oil Corp., 857
N.E.2d 1114, 1120–21 (N.Y. 2006); Mobil Oil Corp. v. Bailey, 187 S.W.3d 265,
270 (Tex. App.—Beaumont 2006, pet. denied); Brookshire Bros., Inc. v. Smith,
176 S.W.3d 30, 36–37 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on
reh‘g).
―By far the most difficult problem for plaintiffs to overcome in toxic tort
litigation is the burden of proving causation.‖ James v. Bessemer Processing
Co., Inc., 714 A.2d 898, 909 (N.J. 1998) (citing Ayers v. Jackson Twp., 525 A.2d
287, 301 (N.J. 1987)). This is because, in some cases, ―controlled scientific
experiments can be carried out to determine if a substance is capable of causing
a particular injury or condition, and there will be objective criteria by which it can
be determined with reasonable certainty that a particular individual‘s injury was
13
caused by exposure to a given substance.‖ Havner, 953 S.W.2d at 714–15.
―However, in many toxic tort cases, direct experimentation cannot be done, and
there will be no reliable evidence of specific causation.‖ Id. at 715. Therefore, to
prove causation, the plaintiff may attempt to demonstrate through circumstantial
evidence that exposure to the substance at issue increases the risk of the
plaintiff‘s particular injury. See id. As in this case, this may be achieved through
testimony in which an expert relies on epidemiological studies to support his
opinion that the plaintiff‘s exposure to a particular substance caused the plaintiff‘s
complained-of injury. Id. 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. Id.
But ―[e]vidence that a chemical can cause a disease is no evidence that it
probably caused the plaintiff‘s disease.‖ In re Allied Chem. Corp., 227 S.W.3d
652, 656 (Tex. 2007) (orig. proceeding); see Merck & Co., Inc. v. Ernst, 296
S.W.3d 81, 96 (Tex. App.—Houston [14th Dist.] 2009, pet. filed) (―Proving one
type of causation does not necessarily prove the other, and both are needed for
a plaintiff in a toxic-tort suit to prevail‖). Therefore, ―[t]o raise a fact issue on
causation . . . , a claimant must do more than simply introduce into evidence
epidemiological studies that show a substantially elevated risk.‖ Havner, 953
S.W.2d at 720 (emphasis added). To prove specific causation, the complainant
must show that he is similar to those in the studies. Id. This burden to show
similarity includes ―proof‖ that the injured person was exposed to the same
14
substance, that the exposure or dose levels were comparable to or greater than
those in the studies, that the exposure occurred before the onset of injury, and
that the timing of the onset was consistent with that experienced by those in the
study. Id.; Matt Dietz Co. v. Torres, 198 S.W.3d 798, 804 (Tex. App.—San
Antonio 2006, pet denied). The burden of proof also requires that ―if there are
other plausible causes of the injury or condition that could be negated, the
plaintiff must offer evidence excluding those causes with reasonable certainty.‖
Havner, 953 S.W.2d at 720 (emphasis added).
Although the issue here concerns the ―other plausible causes‖ aspect of
the specific causation inquiry, the supreme court recently addressed a different
part of the inquiry—dose—in the context of an asbestos exposure case. In Borg-
Warner Corp. v. Flores, the supreme court held that to prove specific causation in
an asbestos exposure case, there must be some evidence of an aggregate dose
of exposure to the plaintiff that was a substantial factor in causing the asbestos-
related disease. 232 S.W.3d 765, 769–70 (Tex. 2007). In explaining the
significance of dose, the supreme court cited Havner and reiterated that ―[w]e
have held that epidemiological studies are without evidentiary significance if the
injured person cannot show that ‗the exposure or dose levels were comparable to
or greater than those in the studies.‘‖ Id. at 771 (emphasis added). Borg-Warner
did not involve an inquiry into the reliability of an expert‘s testimony, i.e., the
exercise of the trial court‘s gatekeeper function; rather, it considered the legal
sufficiency of the specific causation evidence as a quantitative measure.
15
Case law reveals that instructing the jury about the appropriate causation
standard is sometimes required, as it was here. See Hawley, 284 S.W.3d at
859–62. In Hawley, a health care liability case against a hospital involving lost
chance of survival, the trial court refused to give the jury an instruction that a
patient‘s recovery is barred if a condition preexists the negligence of the health
care provider and at the time of the negligence, the condition resulted in the
patient having a 50% or less chance of cure or survival. Id. at 855, 859–60. The
hospital argued on appeal that the trial court erred by not instructing the jury that
the plaintiff ―must have had a greater than fifty percent (50%) chance of survival‖
for the hospital‘s alleged negligence to be the proximate cause of the plaintiff‘s
death. Id. at 859. The supreme court agreed, reasoning that ―[t]he instruction
would have provided to the jury the standard it was required by law to apply in
making its finding on a hotly-contested issue.‖ Id. at 862. This was necessary
because,
[a]s this Court stated over a century ago when considering alleged
charge error, ―[w]e must look at the court‘s charge as practical
experience teaches that a jury, untrained in the law, would view it.‖
It asks too much of lay jurors, untrained in the law, to distill the
correct Texas legal standard for loss of chance from the general
proximate cause instruction given by the trial court. Columbia‘s
requested loss of chance instruction would have assisted the jury,
was an accurate statement of applicable law, and was supported by
the pleadings and evidence. The trial court abused its discretion by
refusing to give it.
Id. (citations omitted).
16
Here, the record demonstrates that there was evidence of other plausible
causes of Linda‘s gastric cancer: H. pylori and cigarette smoking. Peter Shields,
M.D., testified for BNSF that H. pylori is an established cause of stomach cancer
and that, by itself, it was a substantial cause of Linda‘s stomach cancer. He also
testified that there is a ―pretty broad consensus‖ that smoking can cause stomach
cancer and that he could not imagine what evidence someone could review in
this case to conclude that smoking was not the cause or a substantial contributor
to Linda‘s stomach cancer.
The Fausts elicited testimony in an effort to exclude cigarette smoking and
H. pylori as causes of Linda‘s stomach cancer. James Dahlgren, M.D. opined
that Linda‘s stomach cancer was caused by dioxins and PAHs from the plant,
and he testified that he was able to exclude both H. pylori and smoking as
causes of Linda‘s stomach cancer.13 The Fausts thoroughly cross-examined Dr.
Shields about his causation opinions.
Accordingly, although we agree with the Fausts that it is the role of only the
trial court to determine whether an expert‘s testimony is reliable, we disagree
with their argument that the burden to exclude other plausible causes of injury
13
Dr. Dahlgren relied on epidemiological studies to support his causation
opinion.
17
relates solely to the trial court‘s rule 702 reliability inquiry.14 The Fausts had the
burden to prove causation—both general and specific—in this chemical exposure
case, and they attempted to meet that burden primarily through the testimony of
an expert witness who relied on epidemiological studies. There was evidence of
other plausible causes of Linda‘s gastric cancer, and the Fausts made an effort
to exclude those causes through Dr. Dahlgren‘s testimony. The complained-of
instruction is an accurate, albeit arguably incomplete, statement of the law,
identifying what Linda must show to raise a fact issue as to causation. 15 See
Havner, 953 S.W.2d at 714–15, 720. And instructing the jury that other plausible
causes of Linda‘s gastric cancer must be excluded with reasonable certainty
assisted the jury by providing it with ―the standard it was required by law to apply
in making its finding on a hotly-contested issue‖—causation.16 See Hawley, 284
S.W.3d at 855, 862; Havner, 953 S.W.2d at 720. We hold that the trial court did
14
See, e.g., Mendes-Silva v. United States, 980 F.2d 1482, 1487 (D.C. Cir.
1993) (―Dr. Bulle gave specific testimony on his basis for ruling out viral causes
and other explanations for the encephalomyelitis, and Dr. Lane suggested in
response that alternative explanations for Ms. Mendes-Silva‘s illness nonetheless
remained. The evaluation of these competing explanations presents ‗a classic
battle of the experts, a battle in which the [factfinder] must decide the victor.‘‖).
15
The Fausts do not argue that the instruction was improper because it
identified only part of specific causation.
16
When objecting to the instruction, the Fausts‘ attorney said, ―It can be
argued in the proximate cause section that‘s addressed in Question Number 1, I
believe.‖
18
not abuse its discretion by including the specific causation instruction in the jury
charge.
C. Harm
Even if the instruction was improper, we cannot conclude that it was
harmful. A judgment will not be reversed for charge error unless the error was
harmful because it probably caused the rendition of an improper verdict or
probably prevented the petitioner from properly presenting the case to the
appellate courts. Tex. R. App. P. 44.1. We review the entire record to determine
whether the submission or refusal to submit an instruction probably resulted in an
improper judgment. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d
749, 756 (Tex. 1998).
The Fausts argue that the instruction was harmful because the jury
expressed some confusion about it in a note and rendered its verdict shortly after
the trial court responded to the note inquiring about the instruction. The note
stated,
The instructions indicate that ―In order to prove specific
causation for exposure from Somerville Tie Plant, the Plaintiffs must
exclude, with reasonable certainty, other plausible causes of Linda
Faust‘s stomach cancer, such as her history of smoking cigarettes
and her H. Pylori infection.‖
On question 2 it gives us the ability to give a % to both Linda &
the railroad. The question is if we say the smoking/infection are not
causes, how can we give a % to Linda? Or vice versa if we say the
smoking/infection were partial causes how can we give the RR a %?
The instructions seem to contradict Question 2.
19
The trial court responded,
Your observation that a contradiction exists is well-taken.
You are, therefore, instructed that you are not to answer
Question 1b as to Linda Faust, nor are you to answer Question 2.
The instruction given you in paragraph 3 on page 3 still
applies.
But it is just as reasonable to conclude that the trial court ameliorated the jury‘s
confusion when it withdrew Linda‘s name from jury question number 1 and
withdrew jury question number 2 (the proportionate responsibility question) in its
entirety. This consequently limited the jury to making a finding in regard to only
BNSF‘s negligence, if any, that proximately caused Linda‘s stomach cancer.
Also, by the time the trial court charged the jury, it had already exercised
its gatekeeper function and permitted the Fausts‘ designated causation expert,
Dr. Dahlgren; negligence expert, Nicholas Cheremisinoff, Ph.D.; and dose
expert, Paul Rosenfeld, Ph.D.; to testify at trial. Before trial, BNSF had moved to
strike each of the experts‘ testimony on the grounds that the testimony was
irrelevant and scientifically unreliable, but the trial court exercised its gatekeeper
function and permitted the Fausts to elicit expert testimony from each of them.
There is nothing in the record demonstrating that the jury played any role in
determining the admissibility of Dr. Dahlgren‘s, Dr. Cheremisinoff‘s, Dr.
Rosenfeld‘s, or any other expert‘s testimony before they presented their opinions
in evidence.
20
Further, the charge is crystal clear regarding exactly what the jury was to
do and not to do in performing its ultimate duty as factfinder. For example, the
charge informed the jury that it was ―the sole judge[] of the credibility of the
witnesses and the weight to be given their testimony‖; that it was to ―consider
only the evidence introduced here under oath‖; and, among other things, that it
was to ―not consider or discuss anything that is not represented by the evidence
in this case.‖ No part of the charge specifically or inferentially instructed or
otherwise informed the jury that it was not to assess the weight and credibility of
the Fausts‘ experts‘ testimony in the event it concluded that the testimony was
irrelevant or scientifically unreliable. The jury is presumed to have followed the
trial court‘s instructions. See Hawley, 284 S.W.3d at 862 (citing Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003)). Accordingly, it is
mere speculation to conclude that the jury—contrary to both the entire charge
and the presumption that the jury followed the trial court‘s instructions—somehow
read the complained-of instruction as adding an additional component to the
jury‘s responsibility to determine the weight and credibility of the experts‘
testimony that is akin to the trial court‘s gatekeeper function of allowing or
disallowing an expert to offer opinion testimony.
Moreover, both the Fausts‘ and BNSF‘s causation experts relied on
epidemiological studies to support their opinions. To be considered reliable
scientific evidence of general causation, an epidemiological study must (1) have
21
a relative risk of 2.017 and (2) be statistically significant at the 95% confidence
level.18 Havner, 953 S.W.2d at 717–18, 723–24. To the extent the Robinson
factors, the Bradford Hill criteria, or both are relevant to the court‘s gatekeeper
function,19 they each have their own detailed requirements.20 Consequently, in
the absence of additional, detailed instructions, the specific causation instruction
did not fully arm the jury with the tools that it needed to even exercise a
gatekeeper function. See Exxon Corp. v. Makofski, 116 S.W.3d 176, 180 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied) (―Undoubtedly, the tools used to
test the reliability of expert testimony will vary depending on the field of expertise
17
This means that the risk of an injury or condition in the exposed
population is more than double the risk in the unexposed or control population.
Havner, 953 S.W.2d at 717–18.
18
This means that if the study was repeated numerous times, the
confidence interval would indicate the range of relative risk values that would
result 95% of the time. Havner, 953 S.W.2d at 723–24.
19
The Havner court cautioned that ―[o]ther factors must be considered‖
because epidemiological studies show only an association. Havner, 953 S.W.2d
at 718.
20
The Robinson factors include: (1) the extent to which the theory has
been or can be tested, (2) the extent to which the technique relies upon the
subjective interpretation of the expert, (3) whether the theory has been subjected
to peer review and publication, (4) the technique‘s potential rate of error,
(5) whether the underlying theory or technique has been generally accepted as
valid by the relevant scientific community, and (6) the nonjudicial uses that have
been made of the theory or technique. Robinson, 923 S.W.2d at 557. The
Bradford Hill criteria include: (1) the strength of association, (2) consistency of
association, (3) specificity of association, (4) temporality, (5) biological gradient
or dose-response relationship, (6) plausibility, (7) coherence, (8) experimental
evidence, and (9) analogy. Havner, 953 S.W.2d at 718 n.2.; Torres, 198 S.W.3d
at 804 n.4.
22
involved. But it is impossible to ignore the Havner factors here, as the field of
expertise is the same—the epidemiological evidence connecting a chemical
exposure and a disease.‖); Austin, 25 S.W.3d at 287 (―[A] trial court could not
properly review the reliability of scientific testimony based on epidemiological
studies if it were required to ignore the basic principles articulated in Havner that
the scientific community employs in conducting such studies.‖).
Finally, as BNSF points out, the entire record demonstrates that the jury
could have reasonably concluded that the Fausts failed to carry their burden of
proof that BNSF was negligent or that BNSF‘s negligence proximately caused
Linda‘s stomach cancer, notwithstanding the instruction.
For all of these reasons, we hold that even if the trial court abused its
discretion by overruling the Fausts‘ preserved objection to the specific causation
instruction, the error was not harmful. See Tex. R. App. P. 44.1. We overrule
the Fausts‘ first issue.
IV. EVIDENTIARY SUFFICIENCY
In their second issue, the Fausts argue that the evidence is factually
insufficient to support the jury‘s finding that BNSF‘s negligence, if any, was not
the proximate cause of Linda‘s stomach cancer. In light of the broad-form
submission, the jury‘s ―No‖ answer to question number 1 could have been based
upon the jury‘s refusal to find either that BNSF was negligent or that any such
negligence was a proximate cause of Linda‘s stomach cancer. See Hutchison v.
Pharris, 158 S.W.3d 554, 562 (Tex. App.—Fort Worth 2005, no pet.) (stating that
23
appellate court need not address evidentiary sufficiency to support negligence
finding of broad-form submission if court held that evidence supported proximate
cause finding); Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 802–03 (Tex. App.—
San Antonio 1994, no pet.). Therefore, to sustain this issue, the evidence must
be factually insufficient to support the jury‘s refusal to find both that BNSF was
negligent and that any such negligence was a proximate cause of Linda‘s
stomach cancer.
A. Standard of Review
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
evidence supporting the finding is so weak, or so contrary to the overwhelming
weight of all the evidence, that the answer should be set aside and a new trial
ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh‘g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150
Tex. 662, 244 S.W.2d 660, 661 (1951). When the party with the burden of proof
appeals from a failure to find, as in this case, the party must show that the failure
to find is against the great weight and preponderance of the evidence. Cropper
v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see Herbert v.
Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
24
B. Factually Sufficient Evidence to Support Jury’s “No”
Answer—Negligence21
Much of the evidence that the Fausts presented in regard to whether
BNSF was negligent came from the testimony of Dr. Cheremisinoff, who
performed a ―responsible care analysis‖ of the plant for the Fausts. Dr.
Cheremisinoff described his task and the methodology that he used to perform
the analysis as follows:
[Dr. Cheremisinoff]: Okay. What I do is I look at the
operations. Since I‘m a chemical engineer, I‘m able to dissect the
manufacturing process. So I looked at the manufacturing process to
make treated wood ties, and I determined the amount of waste that
was generated and the types of waste. So after quantifying those
wastes, I then examined what practices were used by the railroad to
manage those wastes; and I compared those practices to the
available standards of the day and the technologies of the day to
manage those wastes; and I -- I rendered an opinion as to whether
they did -- they used proper technologies, procedures, and practices
to -- to manage those wastes.
....
[Fausts‘ counsel]: Doctor, when you conduct a responsible
care analysis, are you -- and you‘re trying to look at what a company
did, are you looking at whether they acted responsible or were
negligent in a particular case or situation?
[Dr. Cheremisinoff]: It can be. In this case, that‘s exactly what
I focused on.
21
Jury question 1 defined ―Negligence‖ as the ―failure to use ordinary care,
that is, failing to do that which a person of ordinary prudence would have done
under the same or similar circumstances or doing that which a person of ordinary
prudence would not have done under the same or similar circumstances.‖ See
IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798
(Tex. 2004) (identifying elements of negligence cause of action as the existence
of a legal duty, a breach of that duty, and damages proximately caused by the
breach).
25
[Fausts‘ counsel]: When you‘re doing a responsible care or
negligence analysis, do you look at how a company manages its
hazardous or its toxic waste?
[Dr. Cheremisinoff]: Well, yes. When I talk about responsible
care, it‘s almost exclusively with regard to dangerous or hazardous
materials. That‘s my area of expertise.
....
[Fausts‘ counsel]: Okay. In forming your opinions in this
case, Doctor, can you tell the ladies and gentlemen of the jury about
the methodology that you used.
[Dr. Cheremisinoff]: Well, yeah. The methodology is
essentially the same. What I do is essentially a reconstruction of the
practices. I look at the manufacturing operation, and I do what is
known as a material balance. I know what chemicals go into the
process and what chemicals go out with the product -- in this case
treated wood ties -- and then I determine what portion of the
chemicals entered into different waste streams: air, water, and solid
waste. That‘s part of the analysis.22
Dr. Cheremisinoff opined that BNSF negligently operated the plant because it
failed to properly dispose of waste; emitted harmful toxins into the atmosphere;
failed to use a pollution control device on its boilers; failed to perform any air
monitoring of the emissions from the boilers; failed to inform its employees of the
risks associated with exposure to the chemicals used at the plant; and, among
other things, failed to heed various recommendations, including to provide its
22
In forming his opinions, Dr. Cheremisinoff reviewed internal memoranda
and correspondence between BNSF, the State, vendors, and chemical suppliers;
reviewed the plant‘s operating procedures; reviewed the boiler operations;
reviewed remedial investigation reports; reviewed depositions and other experts‘
reports; reviewed relevant scientific literature; interviewed a number of former
plant employees; and visited the plant twice.
26
employees with protective clothing and equipment. In performing the factual
sufficiency review, we will address Dr. Cheremisinoff‘s opinions and all of the
other evidence pertinent to the jury‘s refusal to find that BNSF was negligent.
See Pool, 715 S.W.2d at 635; Garza, 395 S.W.2d at 823.
1. Disposal of Waste
a. Waste Fed into Boilers from 1980 to 1994
Dr. Cheremisinoff opined that BNSF was negligent because it burned toxic
waste in its boilers, emitting harmful dioxins and PAHs into the atmosphere. He
opined that BNSF burned a total of 47,875,261 pounds (or 119,688 drums) of
toxic cylinder drainage waste, kickback waste, and treated wood waste in its
boilers from 1980 to 1994.23
(1) Cylinder Drainage
In arriving at the 47 million pound burned-waste figure, Dr. Cheremisinoff
calculated in part that 3.5 tons of cylinder drainage emptied from the cylinder
every time its door opened and that 30% of that amount (10% from 1986 to 1994)
was ultimately fed into the boiler as fuel.24
Dennis Davis, who began working at the plant in 1971, agreed with Dr.
Cheremisinoff‘s figure that 3.5 tons of cylinder drainage emptied from the cylinder
23
Dr. Cheremisinoff‘s drum figures are based on a fifty-five gallon capacity
drum (or barrel).
24
Dr. Cheremisinoff testified on cross-examination that 3.5 tons of cylinder
drainage equaled roughly ―six plus drums.‖ However, he also testified that the
same amount equaled ―[f]our drums.‖
27
each time the door opened. Davis testified that between two and ten barrels of
―mulk,‖ which consisted of creosote mixture, debris, wainscot, and sand, emptied
into the pit when a cylinder door opened; that employees cleaned up the ―mulk‖
with sawdust and wood chips after every charge; and that the waste was then
taken to the fire room to be burned at night.
Donnie Faust testified that he saw the cylinder doors open only between
twenty and thirty times and that approximately ten to one hundred gallons of
cylinder drainage emptied from the cylinder when the door opened. Donnie
cleaned a pit only once, but he did not see where the waste was taken.
A number of witnesses‘ testimony conflicted with Dr. Cheremisinoff‘s
opinions regarding the amount of cylinder drainage and the burning of waste in
the boilers. Donald Corwin, a combustion and incineration consulting engineer
who testified for BNSF, disagreed with Dr. Cheremisinoff‘s figures that 3.5 tons of
drainage emptied from a cylinder each time the door opened following a charge,
describing the figures as ―[w]ay too high.‖ He opined that less than five gallons
emptied from the cylinder and that the material was collected in the sump,
reclaimed, and reused.
Sam Barkley was the plant‘s superintendent from 1971 to 1986. He
testified that a ―minute amount‖ or a ―gallon‖ of cylinder drainage emptied into the
pit when the cylinder door opened and that the creosote mixture went down a
drain to be separated and reused. Barkley recalled that the engineers would
―pull vacuums‖ on the product while it was still in the cylinders in order to
28
recapture as much of the creosote mixture as possible for separation and reuse.
When the pits were cleaned, which was not during every shift, a ―small‖ amount
of cylinder waste was collected and put in barrels and landfilled, not burned in the
boiler.
Vernon Welch was the plant‘s superintendent from 1986 to 1994. He
testified in his deposition that 100% of the cylinder drainage was reclaimed,
cleaned, and reused or disposed of off-site in later years. If sawdust was used to
clean a pit in later years, it was disposed of in a dumpster.
Mike Mendoza worked at the plant for thirty-nine years and testified in his
deposition that none of the cylinder drainage that accumulated in the pits was
burned in boilers. Instead, the drainage was reclaimed and reused. Mendoza
testified that sawdust was used to clean the pits and that the sawdust was
burned in a boiler, but that the pits were not cleaned every day.
Bobby Urbanowsky, who worked at the plant from 1977 to 1995, testified
that, depending on how powerful of a vacuum was applied to the cylinder before
the charge completed, only two to five barrels of cylinder drainage emptied from
a cylinder when its door opened. Of the two to five barrels of drainage, the
portion that consisted of creosote and liquid went down a drain to be reclaimed
and reused. When he cleaned up the waste that remained in the pit (bark, wood
products, slush), it filled only ―a couple of barrels,‖ and he never saw where the
barrels were taken. Urbanowsky opined that 3.5 tons of cylinder waste could
empty from a cylinder only if its door opened when the cylinder was still full of
29
treating material. Although he did not know how often the pit was cleaned, when
he was responsible for cleaning the pit, he did not do so after every charge.25
Mark Stehly, BNSF‘s assistant vice-president of environmental and
research and development, testified that he had seen the cylinder doors open
after a charge, that only a ―very small amount‖ of product emptied out, and that
the product went down a drain and was ultimately reused. Similarly, David
Malter, an industrial hygienist for AT&SF from 1980 to 1987, testified that only a
―few gallons‖ emptied from the cylinder when its door opened. David Shaw, the
plant‘s current manager, testified that when Koppers took over the plant, only
about two to three gallons of treating mixture emptied from the cylinder when its
door opened after a charge.
A 1980 ―Industrial Hygiene Report‖ produced by the National Institute for
Occupational Safety and Health (NIOSH) mentioned nothing about burning
cylinder drainage in the boiler. The report did, however, state that ―[a] vacuum is
applied at the end of the treatment cycle to remove excess creosote solution.‖
Dr. Cheremisinoff agreed on cross-examination that his calculations would be too
high if no cylinder drainage was burned in the boiler.
25
A 1982 letter to the Texas Department of Water Resources stated that
―cylinder sludge‖ consisting of wood chips, sawdust, and dirt contaminated with
treating mixture is removed from the treating cylinders ―once every sixteen
months, at which time it is handled off-site for disposal.‖ [Emphasis added.] Dr.
Cheremisinoff agreed during cross-examination that the cylinders are cleaned
every sixteen months.
30
(2) Kickback
Dr. Cheremisinoff opined that from 1980 to 1994, millions of pounds of
kickback from treated wood products contaminated the track area and ballast
located outside the cylinders and that a percentage26 of the contaminated ballast
was fed into the boiler every day.27 To transport the contaminated ballast to the
boiler to be burned, Dr. Cheremisinoff opined that workers fed the material into a
―hog‖28 and that pneumatic lines moved the material into the boiler.29
Likewise, Davis testified that sawdust was used to soak up kickback and
that the waste was burned in the boiler. He described the rock that the kickback
settled onto as ―little screening,‖ not ballast. Davis opined that between two and
eight barrels of kickback waste was collected and burned each day.
Donnie Faust testified that before 1992, a ―bunch‖ of kickback dripped off
of the trams and onto the soil. He said that you could not help but get it on you
because it was ―everywhere.‖
26
For example, based on the 1984 figures, Dr. Cheremisinoff opined that
twenty drums of contaminated ballast (containing sand and moisture) were fed
into the boilers every day.
27
Dr. Cheremisinoff referenced a 1994 Pollution Prevention Plan prepared
by Radian Corporation that stated ―[a]bout 80 tons of waste [is] typically
generated each year from cleanup of creosote drips along tracks.‖
28
Dr. Cheremisinoff opined that a hog is ―basically a chipper. You . . . use
this to shave, chop up wood chips into smaller particles.‖
29
He was not sure if a hog was used as part of this process in the 1980s.
31
Contrary to Dr. Cheremisinoff‘s, Davis‘s, and Donnie‘s testimony, Corwin
testified that Dr. Cheremisinoff‘s kickback figures were off by a factor of a
thousand. For example, Dr. Cheremisinoff calculated that the plant generated
11,179,485 pounds of kickback in 1984. Corwin opined that the figure should
have been approximately 11,000 pounds. Corwin also opined that it was not
plausible that contaminated ballast was fed into the boiler through pneumatic
lines because the rocks would tear up the system.
Welch testified that the ballast under the tram track was never removed but
that the screening around the track was ―occasionally scraped‖—maybe once a
year or less—to remove contaminated material and was then shipped off.
Barkley testified that only a ―minute‖ amount of kickback dripped from the
treated product and trams onto the screening. He also opined that it was not
possible to put ballast or screening into a hog without destroying it; according to
Barkley, the hog was for wood.
Mendoza testified the contaminated ballast and rock underneath the tram
track was collected with a tractor ―every so often,‖ not every day, and filled into
holes in the yard.
And Urbanowsky testified that the amount of kickback from the treated
wood products that fell onto the area around the track depended on ―how good a
vacuum they had pulled on‖ the product in the cylinder. He recounted that before
the drip pad was installed, the trams had compartments that caught kickback and
that some of that material would ―slosh[]‖ out onto the ballast. Urbanowsky
32
opined that ―a barrel or two, maybe, at the most‖ would drip from the treated
product or trams and onto the ground and that the plant workers would either
scoop it up (if there was enough of it) or cover it with dirt. He said that the
contaminated ballast would be cleaned up ―[i]f you [had] a bad enough mess‖
and that he did not think that contaminated ballast was collected on a daily basis.
Urbanowsky did not know how the plant disposed of contaminated ballast, but he
did not think it was possible for the ballast to be thrown into a hog—and he had
never seen or heard of that being done before—because the rocks would ―mess
the hog up‖ and the ―[s]uction may not be strong enough to push it‖ up into the
boiler. He recalled that from 1992 to 1995, after the drip pad was installed, the
kickback cleaned up from the drip pad was put in barrels and ―shipped out,‖ not
burned in the boiler, as Dr. Cheremisinoff‘s figures reflect.
(3) Treated Wood
Dr. Cheremisinoff opined that from 1980 to 1989, hundreds of thousands
of pounds of treated wood spacers were burned in the plant‘s boilers,
contributing to the release of dioxins and PAHs into the atmosphere.30 Donnie
Faust testified that he was responsible for driving a trash truck at the plant in the
late 1970s and early 1980s and that, except for the early years, he transported
four tons of treated wood to the boiler every night to be burned. Davis testified
that he fed treated wood into the Babcock-Wilcox boiler every night and
30
Dr. Cheremisinoff also opined that the plant was negligent because
treated material was shipped to the plant from several other locations.
33
sometimes during the day and that treated wood was shipped to the plant from
off-site to be burned.31
Contrary to Dr. Cheremisinoff‘s, Donnie‘s, and Davis‘s testimony, Corwin
opined that, based on his calculations, no more than one ton of treated wood was
burned per day.32 He also testified that the plant quit using wood spacers in
1985 or 1986 and that Dr. Cheremisinoff‘s figures were too high because they
included calculations for treated wood for the years 1987 and 1988. Corwin‘s
31
Urbanowsky testified that treated sawdust from cutting treated wood at
the sawmill was fed into the boiler, too, but his testimony about the quantity of
treated sawdust fed into the boiler was vague.
32
Corwin testified:
[BNSF counsel]: All right. Now, the -- on the treated wood
poundage right here, is -- you feel that this -- Based on your
understanding of what went on at the Somerville tie plant, do you
think [Dr. Cheremisinoff‘s] treated wood calculations are appropriate
or correct?
[Corwin]: They‘re not quite correct.
[BNSF counsel]: Why not?
[Corwin]: Well, the one number, if you take a look at 1981, the
730,000 is based on a 1 ton per day number. And then he took that
number and ratioed the total volume production for the rest of the
time to that number. He should have taken the 1 ton per day,
calculated what the total mass volume flow rate -- or total volume is
that would be associated with that and then ratio it down.
[BNSF counsel]: Did Dr. Cheremisinoff take into consideration
the burying of any of the strips at all?
[Corwin]: No, he did not.
34
figures are consistent with a figure set out in a 1981 draft permit for the
installation of the Keeler boiler, which identified a ―Wood Waste Production
Rate[]‖ at ―1 ton/day maximum‖ of wood strips. The document stated that ―[t]his
waste is currently [landfilled],‖ but it indicated that ―[i]n the future[,] these kiln
sticks will be chipped up and stored in a surge bin from which they will be slowly
metered into the boiler where they will be used as fuel.‖
Stehly, who in 1982 was the director of environmental quality for AT&SF,
testified that he knew treated wood was being burned to fuel the boiler; that the
treated wood constituted a ―relatively small amount‖ of the total wood that was
burned; and, significantly, that the plant was allowed to burn treated wood
because it had a permit issued by the State to do so.33
Mendoza agreed that treated wood or sawdust was shipped to the plant
and burned in the Babcock-Wilcox boiler, but he recalled that a ―very little
amount‖ of treated wood was burned in the Keeler boiler. Similarly, Welch
testified that treated wood spacers were buried and that ―very little‖ treated wood
chips or sawdust was burned. And Barkley testified that the plant burned treated
wood but that it ―didn‘t have that much volume of it.‖
33
Dr. Cheremisinoff agreed that the plant had a 1981 permit that allowed it
to burn one ton of treated wood per day and a 1994 permit that allowed it to burn
four barrels of treated wood per month.
35
b. Incinerator
Dr. Cheremisinoff opined that BNSF was negligent because it did not use
an incinerator to dispose of creosote-treated wood waste. According to Dr.
Cheremisinoff, unlike the plant‘s boiler, which was designed to generate energy,
an incinerator would have operated at temperatures high enough to completely
destroy the waste and any toxins.34 He testified that the plant had considered
installing an incinerator as early as the 1970s and had even completed an
application for a permit to install a trench incinerator, but that the plant ultimately
withdrew the application and did not install an incinerator.
Corwin, however, testified that a trench incinerator would not have
achieved complete combustion of creosote-treated wood waste and that it would
not have been appropriate to use at the plant. He opined that the Keeler boiler
achieved complete combustion of wood products and dioxins and that its level of
combustion was greater than that of an incinerator.
c. Other Disposals of Waste
The Fausts contend on appeal that BNSF was negligent because it
disposed of sap water in several unlined lagoons or pits to evaporate over time
34
Dr. Cheremisinoff opined that the waste fed into the boilers was not
burned for a long enough period of time or at a high enough temperature to
destroy dioxins and PAHs.
36
and spread cylinder drainage and kickback about the property to control dust.35
But unlike with fly ash, bottom ash, vapor emissions, and fugitive emissions, Dr.
Cheremisinoff did not include naturally evaporating sap water or waste spread for
dust control as ―emission sources‖ in his emissions calculations.36 And like the
evidence pertinent to the amount of creosote-treated waste produced and burned
in the boiler, the evidence regarding the spreading of creosote mixture for dust
control was conflicting.37
2. Air Emissions, Pollution Control, and Air Monitoring
Dr. Cheremisinoff opined that BNSF negligently operated the plant
because it emitted significant quantities of dioxins and PAHs into the
atmosphere. He calculated the levels of toxins in the fly ash and bottom ash
emitted from incompletely combusting creosote-treated wood waste in the
boilers, in the emissions from unloading and charging cylinders, and in the
fugitive emissions from treated wood ties on the drip pad.
35
Davis and Mendoza also recalled a procedure referred to as a ―Santa Fe
flush,‖ in which wastewater was flushed into a ditch located on the plant‘s
property when there was a heavy rainstorm.
36
Indeed, Gale Hoffnagle testified for BNSF that the sources of PAHs at
the plant include ―the boiler stacks and then the process itself, including opening
of the treatment cylinder, the vents from the process . . . [,] the storage tanks for
creosote, and the wood that‘s laying out in the -- in the yard. They all emit some
PAHs.‖
37
Welch recalled that reclaimed diesel and water were used to address
dust.
37
Dr. Cheremisinoff also opined that BNSF was negligent because it did not
use a pollution control device on its boilers, which would have captured dioxins
and PAHs ―as particulate forms.‖ He testified that various types of pollution
control devices, including dry scrubbers, wet scrubbers, countercurrent
scrubbers, rotary kilns, afterburners, and cyclones, had been available for
commercial use for years.
Dr. Cheremisinoff further opined that BNSF was negligent because it did
not perform any air monitoring of the boilers‘ emissions, which would have
informed BNSF of the quality of the emissions from the boilers‘ stacks, and did
not perform any air models, which would have informed BNSF of Somerville‘s
exposure to the plant‘s emissions. He reasoned that BNSF could have used
opacity sensors on its boilers, performed stack testing, or had a certified stack
test performed.
Contrary to Dr. Cheremisinoff‘s testimony, Corwin testified that Dr.
Cheremisinoff‘s ash numbers were high and, thus, incorrect because they were
off by a factor of ten.38 He also opined that Dr. Cheremisinoff‘s overall dioxin and
PAH emission figures were high because they were based on amounts of waste
that were not fed into the boiler, as addressed in detail above, and because the
boiler had a higher combustion efficiency than what was calculated—the boiler
completely combusted dioxins and PAHs. Corwin further opined that it was
38
Corwin testified that burning wood typically produces only .5% ash, not
5% ash as Dr. Cheremisinoff calculated.
38
obvious that the Keeler boiler had a multiclone on it (the original permit showed a
model number and specifications for a multiclone) and that the multiclone—
though not truly a ―pollution control device‖ as it was used on the Keeler boiler—
operated to enhance the combustion process of the unit, thus ensuring ―that
you‘re burning out the carbon to get all the energy from it to have very little
emissions on organics.‖39 Corwin testified that black smoke emitted from the
boilers‘ stacks as a result of ―upset conditions‖ and was part of the combustion
process. And as Dr. Cheremisinoff agreed, the plant had never been cited for
any air permit violations.
Stehly testified that the plant never performed any air models because
there was no indication that the plant‘s emissions were harming anyone. Stehly‘s
testimony is supported by the evidence demonstrating that the plant burned
significantly less creosote-treated waste than that calculated by Dr.
Cheremisinoff and either buried or burned other amounts of waste.
3. Employee Safety and Information
Dr. Cheremisinoff opined that BNSF was negligent because it did not
inform its employees of the dangers associated with working around the
chemicals used at the plant or provide them with protective clothing and
equipment when they worked around the chemicals, as recommended by
39
Dr. Cheremisinoff seemed to concede on cross-examination that he was
wrong about the Keeler boiler not having a multiclone on it.
39
numerous material safety data sheets (MSDS) and several NIOSH studies.40 Dr.
Cheremisinoff testified that without using appropriate protective equipment,
chemicals could soak through clothes and contact the body or be taken home
and be exposed to others, and he saw no evidence that BNSF informed the
Fausts about the chemicals that they were exposed to.
Donnie testified that when he cleaned the cylinders, he was never given a
respirator, rubber gloves, or an apron; instead, the plant provided him with only a
hard hat and safety glasses. He also said that no one explained to him what was
in creosote and that he did not learn of an MSDS until Koppers took over.
Likewise, Davis testified that the plant never told him to avoid contact with
creosote,41 that he was not given rubber gloves until the late 1990s, and that he
did not know what an MSDS was before 1995. Urbanowsky testified that he was
not told that the chemicals he worked with were hazardous or that he should
wear gloves or other protective equipment.
40
For example, several MSDSs recommended using rubber/neoprene
gloves, overalls or an apron, and a face shield to protect against clothing
contamination and skin contact from creosote. The 1980 NIOSH report
recommended that employees who came into contact with creosote wear
appropriate clothing and shower before leaving the plant, if necessary. The 1977
NIOSH report similarly recommended that protective clothing be worn. Dr.
Cheremisinoff also testified about a 1980 letter drafted by David Malter in which
Malter recommended, among other things, that protective clothing be provided to
employees who have the potential for contact with creosote and that a general
meeting be held to advise the employees of the meaning of the NIOSH results.
41
In fact, Davis recalled being told that creosote was not harmful.
40
Welch, on the other hand, testified that the plant had safety meetings; that
MSDSs were explained to employees, were on file, and were available for
viewing; that industrial hygienists gave presentations to employees; and that
employees were furnished with protective gloves, coveralls, and, depending on
the position, respirators and possibly face shields.
Similarly, Barkley testified that protective equipment, including gloves,
boots, respirators, and aprons, were provided to employees; that MSDSs were
available for employees to view; and that he attended safety committee meetings
once a month. Barkley also authored a document entitled ―Procedures For Use
of Respirators,‖ which stated in part that ―[q]ualified personnel will instruct
persons required to use respirators as to the proper respirator and its correct
application‖ and that ―[i]ndividuals entering treating cylinders for inspection or
cleaning will wear an approved air supplied respirator.‖
And Malter testified that the plant had a ―formal hazard communication
program‖ and communicated with employees about MSDSs and potential
chemical hazards. When he visited the plant in 1981, employees used PVC rain
suits and respirators when cleaning cylinders, and the plant made skin creams
available to employees though the industrial hygiene program.
Finally, we note that while Dr. Cheremisinoff opined that employees
wearing creosote-contaminated clothing could have exposed others in their
homes to creosote, Dr. Rosenfeld, the Fausts‘ dose expert, unequivocally
41
testified that he did not calculate a daily dose for Linda‘s take-home exposure
from Donnie‘s possibly contaminated clothing.
4. Factual Sufficiency Conclusion
In the face of conflicting evidence, including conflicting expert testimony,
we may not substitute our own judgment for that of the jury‘s. See, e.g., Quiroz
ex rel. Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 84–85 (Tex. App.—El
Paso 2007, pet. denied) (holding evidence factually sufficient to support jury‘s
failure to find defendants negligent). Having considered and weighed all of the
evidence in the record pertinent to the jury‘s refusal to find that BNSF was
negligent, the evidence supporting the finding is not so weak, or so contrary to
the overwhelming weight of all the evidence, that the answer should be set aside.
See Pool, 715 S.W.2d at 635; Garza, 395 S.W.2d at 823; King’s Estate, 150 Tex.
at 664, 244 S.W.2d at 661. Accordingly, we hold that the evidence is factually
sufficient to support the jury‘s refusal to find that BNSF was negligent. 42 We
overrule the Fausts‘ second issue.
42
We therefore do not address the sufficiency of the evidence to support
the jury‘s refusal to find that BNSF‘s negligence, if any, proximately caused
Linda‘s stomach cancer. See Tex. R. App. P. 47.4; Hutchison, 158 S.W.3d at
562; Carr, 884 S.W.2d at 802–03.
42
V. CONCLUSION
Having overruled the Fausts‘ two issues, we affirm the trial court‘s
judgment.
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: January 27, 2011
43