Opinion
No. 14-04-01133-CV
Opinion filed August 1, 2006.
On Appeal from the 405th District Court, Galveston County, Texas, Trial Court Cause No. 03CV0588.
Reversed and Rendered.
Panel consists of Justices ANDERSON, EDELMAN, and SEYMORE.
OPINION
This case presents the issue of whether appellant, Exxon Mobil Corporation ("Exxon"), owes a duty to an employee's wife injured by exposure to asbestos brought home on her husband's work clothing, at a time when such an injury was considered a medical curiosity.
Exxon appeals a judgment on a jury verdict in favor of appellee, Louise Altimore, for damages sustained from contracting mesothelioma by allegedly breathing asbestos dust brought home on her husband's work clothes. Because, under the facts of this case, we hold Exxon did not owe appellee a duty, we reverse the judgment of the trial court and render judgment that appellee take nothing on her claims against Exxon.
Factual Background and Procedural History
Appellee was diagnosed with pleural mesothelioma in April 2003. Mesothelioma is a rare and almost universally fatal disease. According to Dr. Gary Raabe, Exxon's epidemiologist expert witness, the only cause of mesothelioma proven by epidemiological studies is asbestos exposure. Appellee brought suit against Exxon and a large number of other defendants alleging her mesothelioma resulted from asbestos exposure for which the defendants were responsible. Appellee's husband, Mike Altimore, was a lifetime Exxon employee. Appellee's complaint against appellant is that (1) Exxon negligently allowed Mr. Altimore to bring asbestos dust home on his work clothes; (2) appellee inhaled the asbestos dust while laundering Mr. Altimore's asbestos laden work clothes; (3) causing her to contract mesothelioma. By the time of trial, Exxon was the only remaining defendant. At the close of the evidence, the case was submitted to the jury as a negligence case and they returned a verdict finding Exxon acted negligently and with malice. The jury awarded appellee $992,901 in actual damages and $992,901 in exemplary damages. Given the amount of the settlement credit, the trial court entered judgment on the jury verdict only for the amount of the exemplary damages. Exxon's post-trial motions for new trial and for remittitur and its motion to modify the judgment were overruled by operation of law. This appeal followed.
Dr. Jay Segarra, appellee's pulmonologist expert witness, testified on the medically accepted causes of mesothelioma: (1) asbestos exposure; (2) aeronite exposure in the nation of Turkey only; (3) therapeutic radiation of the mediastinum, usually for Hodgkin's Disease; (4) severe pleural scarring; and (5) ideopathic, which means there is no evidence of exposure to a substance known to cause mesothelioma, and thus the cause in such cases is unknown.
The corporate history of appellant was not entered into evidence, but was explained by counsel to the jury. In 1911, both Standard Oil of New Jersey and Humble Oil in Texas were formed. In 1919, Standard Oil acquired some ownership interest in Humble Oil. In 1920, Humble Oil opened the Baytown refinery. It began chemical operations at the refinery in 1940. In 1965, Enjay was formed and the chemical operations of Humble Oil were transferred to Enjay. In 1972, Standard Oil changed its name to Exxon. In 1972 and 1973, Humble Oil, Esso, and Enjay merged into Exxon. In 1998, Exxon and Mobil merged. Inasmuch as the parties both refer to Mr. Altimore's employer during the entire time period relevant to this litigation as Exxon, we shall follow their lead and refer to appellant as Exxon or appellant.
Appellee settled with the other defendants in an amount exceeding the actual damages found by the jury in the verdict against Exxon.
DISCUSSION
In eight issues on appeal, Exxon argues the trial court erred when it entered a final judgment in favor of appellee. Because we find Exxon did not owe appellee a duty, we need only address Exxon's first issue.
I. The Elements of Negligence
The elements of a negligence claim are the existence of a legal duty, a breach of that duty, and damages proximately caused by that breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003). Duty is the threshold inquiry in a negligence case. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If there is no duty, liability for negligence cannot exist. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).
II. The Standard of Review
The existence of a legal duty is a question of law for the court to decide from the particular facts surrounding the occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). Because the existence of a duty is a pure question of law, we review the trial court's determination of duty on a de novo basis. Loram Maint. of Way, Inc. v. Ianni, 141 S.W.3d 722, 727 (Tex.App.-El Paso 2004, pet. granted) (citing El Paso Natural Gas Co. v. Minco Oil Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999)). To determine whether the defendant is under a duty, we consider several interrelated factors, including the risk, foreseeability, and likelihood of injury, weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Greater Houston Transp. Co. v. Philips, 801 S.W.2d 523, 525 (Tex. 1990). Of these factors, the foremost consideration is whether the risk is foreseeable. Greater Houston Transp. Co., 801 S.W.2d at 525. Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Isbell v. Ryan, 983 S.W.2d 335, 339 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Foreseeability, however, does not require a person to anticipate the precise manner in which injury will occur once the person creates a dangerous situation through his negligence. Taylor v. Carley, 158 S.W.3d 1, 9 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Id. III. Was Appellee's Injury Foreseeable?
A duty may also exist as a matter of law because of a special relationship between the parties. Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 292 (Tex. 1996). Because there was no allegation or evidence that a special relationship existed between the parties, we need not address this issue.
To answer this question, we must determine whether the evidence introduced at trial establishes that it was foreseeable to Exxon that, during the time period relevant to this case, an employee's spouse was at risk of contracting a serious illness as a result of inhaling asbestos dust brought home on the work clothes of her husband, an Exxon employee.
A. What is the Relevant Time Period?
Mr. Altimore worked as a machinist at Exxon's Baytown, Texas refinery between 1942 and 1977. Mr. Altimore began his career at Exxon working in the oil refinery, and at some point during his career, he moved to the polyolefins unit. It is undisputed that in 1972, Jesse Stovall made Mr. Altimore the supervisor of the air-conditioned tool room within the polyolefins unit. Mr. Altimore worked in the tool room until he retired from Exxon in 1977. There was testimony from the various fact witnesses that, before he moved into the air-conditioned tool room, Mr. Altimore was exposed to asbestos while performing his duties as an Exxon machinist. Accordingly, the time period relevant to this inquiry starts in 1942 when Mr. Altimore went to work in the Baytown refinery, and ends in 1972 when he began working in the air-conditioned tool room.
While it does not impact our decision, there was some disagreement in the record on when Mr. Altimore transferred to the polyolefins unit. Jesse Stovall testified Mr. Altimore moved in 1959, when the polyolefins unit was new. Roy Calma testified he went to work in the polyolefins unit in 1966 and Mr. Altimore was already there working as a machinist in the unit. (7RR259-262) Bruce Larson, a retired Exxon industrial hygienist, testified Mr. Altimore worked in the refinery until 1968, when he moved to the polyolefins unit. (10RR 90-91) Appellee testified Mr. Altimore moved to the polyolefins unit in 1971 or 1972.
Mr. Altimore died in 1992 from pulmonary problems and heart failure.
B. During the Relevant Time Period, What Did Exxon Know About the Risk of Take-Home Exposure to Asbestos?
Dr. Richard Lemen, appellee's epidemiologist expert witness, testified that, as of 2004, research had not been able to identify an asbestos exposure level below which there is not a risk for developing cancer. According to Dr. Lemen, the Occupational Health and Safety Administration ("OSHA") issued a statement that it was not aware of a toxic substance that has more clearly demonstrated detrimental health effects on humans exposed to such a substance than asbestos. Dr. Lemen testified OSHA has determined the diseases caused by asbestos exposure include asbestosis, lung cancer, and pleural mesothelioma. Dr. Raabe explained to the jury the only cause of mesothelioma proven by epidemiological study is asbestos exposure. Dr. Jay Segarra, appellee's pulmonologist expert witness, testified housewife bystander asbestos exposure causing mesothelioma, as alleged by appellee, was an accepted concept in the medical and scientific literature of 2004. However, the current understanding of the risks associated with asbestos exposure is not static, rather it is based on an expanding body of knowledge acquired over time. Indeed, over the last century greater knowledge has gradually accrued with time and extensive international research. Dr. Lemen, and to a lesser extent the other expert witnesses in this case, provided a detailed history of the evolution of the comprehension of the risks associated with asbestos exposure. Inasmuch as our decision in this case rests on the answers to the questions, what did Exxon know about the risks associated with asbestos exposure, and when did Exxon know it, we examine the evolution of that knowledge at some length. 1. Dr. Lemen's Testimony
Dr. Lemen has masters and Ph.D. degrees in epidemiology. Dr. Lemen served in the United States Public Health Service ("USPHS") from 1970 until his retirement in 1996. Dr. Lemen rose to the rank of rear admiral in the USPHS. Dr. Lemen spent his career working in the area of occupationally-related diseases and injuries. Among his many accomplishments during his service with the USPHS, Dr. Lemen served as Assistant Surgeon General and Deputy Director of the National Institute For Occupational Safety and Health ("NIOSH").
Asbestosis and mesothelioma are two separate diseases, each caused by exposure to asbestos. Asbestosis is a non-cancerous scarring of the lung tissue caused by the inhalation of asbestos fibers. As more asbestos fibers are inhaled, the scarring of the lungs increases and breathing capacity decreases. If the scarring is severe enough, the disease may prove fatal. Mesothelioma is a rare and almost universally fatal form of cancer where tumors develop in the serosal lining of the body cavities with pleural mesothelioma being the most common. With pleural mesothelioma the tumors develop not in the lungs, but in the pleura lining the lungs. The tumors then spread in a diffuse manner into the surrounding areas of the body. Death usually occurs within nine to twelve months of diagnosis.
It was undisputed at trial that Exxon was a leader of the petroleum industry in industrial hygiene and medical research and made extensive efforts to stay abreast of advances in industrial hygiene and medicine as they occurred.
Dr. Lemen reported there had already been significant advances in asbestos research by 1942, the year Mr. Altimore went to work at the Baytown refinery. These advances included establishing by epidemiological study that asbestos exposure caused disease, specifically asbestosis. Dr. Lemen also reported that by 1942 there had already been case reports in both Great Britain and the United States linking asbestos exposure with lung cancer. The United States Public Health Service ("USPHS") had also become involved in asbestos research by 1942. The USPHS had not only reported that prolonged exposure to asbestos dust caused a pulmonary fibrosis different from silicosis, it had also made recommendations for dealing with the problems associated with asbestos exposure. These included generally controlling the levels of dust containing toxic substances to prevent the development of the disease and a specific level of asbestos exposure that was thought to be safe: five million particles per cubic foot.
According to Dr. Lemen, epidemiology is a subcategory of public health that tries to understand why certain people get disease, other people do not get disease and what are the causes of the diseases that people get and ultimately how those diseases can be prevented. By its very nature, epidemiology has to wait until the disease or death occurs before any statistics can be compiled. An epidemiological study examines existing populations to attempt to determine if there is any causal association between a disease or condition and a factor suspected of causing that disease or condition. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 715 (Tex. 1997). An anecdotal case report or case study is not an epidemiological study, but a report that a certain person has a particular disease. The case study will give a great deal of background information about that individual. The case studies are published so that doctors and other professionals will read them and report if they have encountered a similar situation. If enough case studies are published reporting similar factual situations, this may lead to an epidemiological study to investigate if there is a causal association between the exposure and a particular disease.
E.R.A. MEREWETHER C.W. PRICE, REPORT ON EFFECTS OF ASBESTOS DUST ON THE LUNGS AND DUST SUPPRESSION IN THE ASBESTOS INDUSTRY (London, H.M. Stationary Office 1930). Merewether and Price studied asbestos textile workers in Great Britain. They concluded that asbestos exposure caused asbestosis. They also considered workers other than in the manufacturing areas and concluded that asbestos exposure at the same levels would be a hazard to those workers using asbestos products as well. Merewether and Price concluded that workers should be given a "sane appreciation of the risk," because of the danger that, if the workers do not understand the risks associated with asbestos, they are less likely to take precautions to protect themselves.
S. Roodhouse Gloyne, Two Cases of Squamous Carcinoma of the Lung Occurring in Asbestosis, TUBERCLE 5, 5-10 (1935) (Gr. Brit.). Dr. Gloyne reported two persons with non-fatal asbestosis who developed carcinoma of the lung. Dr. Gloyne's study focused on workers in the asbestos textile manufacturing industry. That same year, in the United States, researchers Lynch and Smith published similar findings.
UNITED STATES PUBLIC HEALTH SERVICE, EFFECTS OF THE INHALATION OF ASBESTOS DUST ON THE LUNGS OF ASBESTOS WORKERS (1935). In addition, Dr. Dreessen of the USPHS conducted a study of asbestos textile workers along the eastern coast of the United States and published his study in 1938. His recommended exposure level came out of this study.
Dr. Lemen also reported that Exxon was involved in these early research efforts. In 1937, Roy Bonsib, Exxon's chief safety inspector, published the article "Dust Producing Operations in the Production of Petroleum Products and Associated Activities." Bonsib makes it clear Exxon recognized by 1937, if it was dusty enough to see the airborne particles of dust, it was not safe for workers to be working in those conditions without taking safety precautions. To reduce the risk of workers developing disease, Bonsib recommended reducing the levels of airborne dust in the workplace and preventing workers from breathing that dust. Finally, Bonsib recommended further studies and prompt adoption of adequate precautionary measures. According to several witnesses, Bonsib's report served as the backbone of Exxon's industrial hygiene program for more than three decades. The Bonsib report did not, however, address the issue of the risk of housewife bystander exposure.
In 1946, the American Council of Governmental Industrial Hygienists adopted the five million particles per cubic foot standard first put out by the USPHS in 1938. That same year, the Fleisher-Drinker study of asbestos insulation workers in United States Navy shipyards during the Second World War was the first major study involving workers using asbestos products as opposed to workers in asbestos mines or asbestos product manufacturing plants. This study concluded working with asbestos insulation was a safe occupation and the five million particles per cubic foot standard appeared to be a safe level of exposure.
In 1949 Exxon's industrial hygienists and safety personnel prepared a report entitled "Summary of the Plant Industrial Hygiene Problems." According to Dr. Lemen, this confidential Exxon report demonstrates that, based on the scientific literature of the period, Exxon did not have an awareness there was a risk of developing lung cancer as a result of asbestos exposure. Dr. Lemen continued that this report also shows that by 1949, Exxon had identified categories of refinery workers at risk for exposure to asbestos and it was not limited to insulators. Finally, Dr. Lemen testified that, at that time, while there were many case reports linking lung cancer and asbestos exposure, there were still no epidemiological studies making that connection.
The authors of this report were C. Berry, Ph.D.; J.W. Hammond, M.S.; R.S. Bonsib, E.M.; and N.V. Hendricks, M.S.
In 1955, Dr. Richard Doll published an epidemiological study in Great Britain that, according to Dr. Lemen, is credited with establishing the causal relationship between asbestos exposure and lung cancer.
In 1957, the state of Texas passed a regulation limiting asbestos exposure to five million particles per cubic foot for all industries operating in Texas.
In 1960, Dr. Wagner from South Africa, published "Diffuse Pleural Mesothelioma and Absestos Exposure in the Northwestern Cape Province." Dr. Wagner's paper established that mesothelioma is casually associated with asbestos exposure. That same year, Dr. Eisenstadt reported two foremen at a Port Arthur, Texas refinery had developed mesothelioma. According to this case report, they were exposed in a refinery and were using asbestos products. Dr. Lemen testified that, by 1960, there were still no epidemiological studies in the United States that connected asbestos exposure in persons working with asbestos end products, as opposed to workers actually manufacturing the products, with disease.
Those studies began appearing during the 1960's. In 1964, the New York Academy of Science held an international conference addressing asbestos-related disease research. Papers were presented covering the whole body of international research concerning asbestos and asbestos-related diseases. Exxon personnel attended the meeting and Dr. R.E. Eckardt, an Exxon medical research department employee, wrote a report for Exxon summarizing the information presented at the conference. Among the papers summarized by Dr. Eckardt was J.G. Thompson's paper: "Asbestos in the Urban Dweller." According to Dr. Eckardt, Thompson reported that families of asbestos workers may develop asbestosis from brushing off clothes and those living near asbestos factories may develop asbestosis or tumors of the lung. Dr. Lemen testified that Dr. Eckardt did a good job summarizing the content of the meeting when he concluded that minor exposures to asbestos may result in pulmonary changes. Dr. Eckardt recommended taking whatever measures were necessary to control dust exposure to eliminate asbestosis, bronchial carcinomas, and mesothelioma, all of which seemed to be related to asbestos exposure. According to Dr. Eckardt, the conference demonstrated that the growing body of scientific evidence indicated asbestos exposure was a far more serious problem than had been previously thought, and control measures would have to be more fully developed than they were in the past.
Report from R.E. Eckardt, Exxon medical research department employee, to Exxon Corp., Esso Research and Engineering Company Summary of the Conference of Biological Effects of Asbestos (Oct. 1964).
In 1964 the first epidemiological study of end users of asbestos products was prepared by doctors I.J. Selikoff, E.C. Hammond, and J. Churg: "The Occurrence of Asbestosis Among Insulation Workers in the United States." Dr. Selikoff presented this paper at the 1964 New York conference and it would be included in the book he published in 1965 containing all papers presented at the conference. Dr. Selikoff and his colleagues also presented a second paper at the New York conference: "Neoplasia Among Insulation Workers." These studies examined insulation workers who were members of the North American Asbestos Worker's Union. In these papers, the authors reported an increased incidence of lung cancer and mesothelioma among the studies' population and they concluded these diseases appeared to be causally related to asbestos exposure. In addition, they reported cancer among people indirectly exposed to asbestos insulation work, such as carpenters, steam fitters, and other building trade workers. According to Dr. Lemen, the authors questioned whether the Threshold Limit Value ("TLV") of five million particles per cubic foot was protective of workers as more than ten percent of the workers in the studies had died as a result of asbestos related disease. Finally, Dr. Selikoff and other participants in the New York conference, called for more epidemiological studies to establish that asbestosis, lung cancer, and mesothelioma were causally related to asbestos exposure because there were still asbestos researchers who doubted there was a connection.
Dr. William Marr, a shipyard doctor, published a study of shipyard insulators in the Industrial Hygiene Journal in 1964. Dr. Marr reported the insulators were not exposed at levels above the TLV, yet workers were still contracting asbestos related diseases. According to Dr. Lemen, the significance of Dr. Marr's study to the medical and scientific community was that the TLV may not be protective of workers.
In 1965, doctors Selikoff, Hammond, and Churg published "Relation Between Exposure to Asbestos and Mesothelioma." This study concluded mesothelioma was a disease caused by asbestos in multiple work environments. Dr. Hammond, of the American Cancer Society, stated that a only a few years earlier, hardly anyone believed that insulation workers were at risk for lung cancer as they were only exposed to asbestos at levels below the TLV. The researchers held this belief because it was thought at the time that if you kept exposures below the TLV, you would not get asbestosis, and if you do not get asbestosis, there would also be no lung cancer.
Dr. Lemen testified this growing belief that lung cancer was caused by asbestos exposure was not universal in 1965. The previous year, Dr. Schepers, a medical doctor from South Africa who attended the 1964 New York conference, made a comment during the conference that was included in Dr. Selikoff's 1965 book. Dr. Schepers stated that, as of 1964, there seemed to be less certainty that asbestos was associated with lung cancer and that, ultimately, he believed the carcinogeneity of asbestos would be treated as of low order.
In 1967, doctors Lieben and Pistawka published a case study reporting that the daughter of an insulation worker had contracted mesothelioma. According to Dr. Lemen, the first reports of take home asbestos exposure being connected with disease had come out in the 1960's.
Also in 1967, Leroy Balzer, Ph.D. and Clark Cooper, M.D. published "Work Environment of Insulating Workers." This study examined San Francisco, California insulators who were exposed to asbestos at levels below the TLV who were still getting asbestos related diseases. Once again, according to Dr. Lemen, the significance of this article to the medical and scientific community was the possibility the TLV did not adequately protect workers.
According to Dr. Lemen, 1972 was a crucial year in the history of asbestos research. By 1972, the experts were in agreement, if a person gets enough exposure to asbestos, that person could get asbestosis and cancer. Once that central tenet had been generally accepted, the debate focused on what constituted a safe level of exposure for workers. Thus, in June of 1972, OSHA released its initial asbestos exposure standard: five fibers per cubic centimeter over an eight hour time-weighted average. This was the first asbestos exposure standard to cover all industries on a nationwide basis. As part of these OSHA asbestos regulations, employers were prohibited from allowing workers to take their work clothes home to be laundered if the worker had been exposed to asbestos. Also in 1972, while it had insufficient information to issue a single standard protective of all asbestos related disease, NIOSH proposed an asbestos exposure standard of two fibers per cubic centimeter. Both the OSHA and NIOSH standards were designed to protect primarily against asbestosis. Despite the growing knowledge of the risks associated with asbestos exposure, in 1972, NIOSH performed a Health Hazard Evaluation of the Mobil Oil refinery in Augusta, Kansas. This study, published in April 1973, examined the level of asbestos exposure for insulation workers in a refinery setting. The study concluded that asbestos was not toxic at the concentrations encountered in the insulators' work.
By 1974, knowledge of the risks of asbestos exposure reached the point where the doctors and others involved with asbestos research realized asbestos might pose a risk beyond the workplace. In an October 1974 memorandum, Fred Venable, the industrial hygienist at Exxon's Baton Rouge refinery, reported that Exxon's failure to require the use of coveralls by employees and laundering by Exxon violated OSHA regulations and threatened employees and employees' families. Venable also stated Exxon had previously been complacent when addressing asbestos issues but there had been a change in thinking since the appearance of two cases of mesothelioma among Exxon employees. Two years later, in 1976, the USPHS announced there was no safe dose for asbestos exposure. That same year, the year before Mr. Altimore retired from Exxon, Dr. Selikoff and his research colleagues published an article reporting that household exposure to asbestos had been established as potentially hazardous. In Dr. Lemen's opinion, this article confirmed that end users of asbestos products and their family members could be at risk due to asbestos exposure. However, prior to this time period, reports of asbestos related disease occurring in non-occupationally exposed individuals had been considered medical curiosities.
Irving J. Selikoff et al., Asbestosis Among Household Contacts of Asbestos Factory Workers, 1979 ANNALS N.Y. ACAD. OF SCI. 387.
Dr. Lemen testified that it was not until Dr. Selikoff and his research colleagues published "Asbestos Disease in Maintenance Workers of the Chemical Industry" in 1977 that it was clear that, when dealing with hazardous levels of household exposure, industry had to be concerned not only with insulation workers but also with all employees working in areas where asbestos might be handled. Finally, Dr. Lemen testified he was not aware of any epidemiological studies of refinery workers before 1980 that demonstrated a doubling of the risk for asbestos related disease.
2. Other Witnesses' Testimony Regarding Exxon's Knowledge of the Risks of Asbestos
James Hammond, Exxon's former Chief Industrial Hygienist and Director of Industrial Hygiene, testified that by 1961, it was common knowledge to Hammond that asbestos exposure increased the risk of mesothelioma. Hammond also testified that Exxon started an active search for alternative products for asbestos in 1967. According to Hammond, Exxon started this search after Exxon learned it took less exposure to asbestos to cause mesothelioma than it did to cause asbestosis. Dr. Neill Weaver, Exxon's former medical director, testified he learned in medical school in 1944 that asbestos caused disease and could kill. He also testified the association between asbestos and lung disease would not be established among the scientific community until the early 1970's. Dr. Raabe testified while by 1977 even the skeptics accepted there was a causal association between mesothelioma and asbestos exposure, there was still no epidemiological evidence of occurrence in refineries. Dr. Raabe also testified while there are anecdotal case reports, there had still been no epidemiological studies of household asbestos exposure. Finally, both Dr. Jay Segarra and Dr. Sam Hammar testified that, at the time of trial, housewife bystander exposure to asbestos causing mesothelioma was not a unique or new concept and was well accepted in the medical community. C. Appellee's Injury Was Not Foreseeable.
James Hammond started working at Exxon in 1947 and he served as the industrial hygienist at Exxon's Baytown facility. He retired in 1978. James Hammond is not to be confused with Dr. E.C. Hammond an epidemiologist with the American Cancer Society. Mr. Hammond is deceased, but he testified at trial via videotaped deposition.
Dr. Weaver served as the medical director of Exxon's Baton Rouge refinery from 1956 until 1964, when he became Exxon's medical director. Dr. Weaver served in that position until 1974.
Dr. Segarra is a pulmonologist. Dr. Sam Hammar is a board certified pathologist. Both testified for appellee.
The imposition of a duty on Exxon to protect appellee from exposure to asbestos dust depends on the foreseeability of the risk of injury to appellee from asbestos fibers carried on her husband's clothing. See Isbell, 983 S.W.2d at 339 (Stating that foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others). Based on the evidence introduced during the trial, Exxon did not become aware of the take-home risk of asbestos exposure until 1972 when OSHA prohibited employers from allowing workers who had been exposed to asbestos to wear their work clothes home. Exxon was put on notice in 1972 that asbestos posed a risk to persons, such as employee families, who were never on the employer's premises. It follows that in 1972 the risk to appellee of contracting a serious illness had become foreseeable, triggering, for the first time a duty to protect appellee and those persons similarly situated. However, by that time, Mr. Altimore was working in the air-conditioned tool room and was no longer working in an environment where he was being exposed to asbestos dust. Accordingly, we conclude as a matter of law, Exxon did not owe a duty to appellee and we sustain Exxon's first issue on appeal. Because resolution of this issue is dispositive of this appeal, we do not address Exxon's other issues.
CONCLUSION
Having found Exxon did not owe appellee a duty, we reverse the judgment of the trial court and render judgment that appellee take nothing on her claim against Exxon.