Recently, the Texas Court of Appeals (1) upheld a jury’s finding of gross negligence and (2) explained how a trial court should calculate exemplary damages under Texas law, in The Goodyear Tire & Rubber Company, v. Vicki Lynn Rogers, et al., No. 05-15-00001-CV, 2017 WL 3776837 (Tex. App. Sep. 13, 2017).  In this case, the decedent, Carl Rogers, passed away from mesothelioma.  From 1974 to 2004, he worked as a tire builder at a Goodyear facility in Tyler, Texas, where he allegedly was exposed to asbestos from overhead insulation and from brakes in tire building machines located in the Tyler facility.  Mr. Rogers’ wife (as the representative of his estate) and two daughters sued his employer, The Goodyear Tire & Rubber Company (“Goodyear”), for wrongful death allegedly caused by Goodyear’s gross negligence.  Typically, workers’ compensation is the exclusive remedy for plaintiffs who attribute the cause of death to the negligence of a decedent’s employer.  However, Texas’ workers’ compensation law allows a plaintiff’s surviving spouse and heirs to recover exemplary damages when the employee’s death resulted from the employer’s gross negligence.

The jury found by clear and convincing evidence that Goodyear’s gross negligence caused Mr. Rogers’ mesothelioma, and ultimately, his death.  To calculate exemplary damages, the trial court asked the jury to determine plaintiffs’ past and future pecuniary loss, past and future loss of companionship and society, and past and future mental anguish.  In addition to making those findings, the jury assessed $15 million in exemplary damages, with 90 percent of the award apportioned to the widow and 5 percent to each daughter.  After the jury’s verdict, the trial court conducted its own calculation of damages according to section 41.008(b) of the Texas Civil Practice and Remedies Code, which lowered the total award to $2,890,000.  On appeal, Goodyear unsuccessfully challenged the jury’s finding of gross negligence, but prevailed in its challenge to the trial court’s calculation of exemplary damages, reducing the total award to $1,150,000.

To prove gross negligence, “a plaintiff must demonstrate, by clear and convincing evidence that: (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”  U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012).

The Texas Court of Appeals first addressed the objective component of gross negligence, and described extreme risk as the likelihood of the plaintiff’s serious injury, rather than a remote or even high probability of minor harm.  While Goodyear conceded that mesothelioma is a serious injury, it argued the plaintiffs did not prove the likelihood of that injury.  To support this argument, Goodyear used the plaintiffs’ best evidence regarding dosage, which increased the risk of developing mesothelioma by 22 times over that of someone who was not
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