Appeals court reinstates benzene case against Goodyear, chief justice dissents

David Yates Sep. 14, 2010, 6:28pm


Last year, Goodyear Tire & Rubber had its no-evidence summary judgment motion granted in a benzene lawsuit following five years of litigation.

However, on Thursday, Sept. 9, Texas justices seated on the Ninth Court of Appeals reinstated the case, opining that the plaintiffs "produced some evidence supporting the elements" of their toxic tort claim against Goodyear.

Disagreeing with his peers, Chief Justice Steve McKeithen authored a dissenting opinion, writing that the summary judgment evidence does not establish whether plaintiff Veryl Pink's benzene exposure while employed by Goodyear was a substantial factor in the development of the renal cell carcinoma that led to his death.

Pink, along with his wife Charlcie, sued Goodyear and a number of chemical companies and product suppliers alleging that Pink's exposure to benzene while working at Goodyear caused renal cell carcinoma, court papers say.

Pink, a Goodyear employee from 1963 to 1997, died in 2005. After his death, Charlcie Pink continued the lawsuit.

Court papers show Goodyear's motion for summary judgment asserted there was no evidence of a duty or breach of a duty.

Judge Donald Floyd, 172nd District Court, granted DuPont's motion, prompting Charlcie Pink to file an appeal in May 2009.

On appeal, Charlcie Pink argued the summary judgment evidence establishes that Goodyear, as the sole employer, is responsible for all of her husband's significant benzene exposure, and that he received substantial skin and inhalation exposure by bathing his hands in benzene, court records show.

To substantiate her claims, Charlcie Pink offered the expert testimony of Pink's treating oncologist, Dr. Mahesh Kanojia, who opined in an affidavit that benzene exposure caused his patient's renal cell carcinoma.

In its appeals brief, Goodyear argued that the doctor's opinion was non-conclusory.

Nonetheless, the majority of justices found merit in Dr. Kanojia's conclusion.

"Without an express ruling that the treating oncologist's causation opinion is unreliable ... the treating oncologist's affidavit remains part of the summary judgment proof and provides some evidence to defeat the no-evidence motion for summary judgment on causation," states the Ninth Court's opinion, authored by Justice David Gaultney.

"We reverse the summary judgment granted Goodyear for the reasons stated, and remand the case for further proceedings consistent with this opinion."

In his dissent, Chief McKeithen pointed out Dr. Kanojia's explanation offered no scientific literature supporting his opinion on medical causation, and that Charlcie Pink provided no evidence that any quantity of benzene exposure will cause renal cell carcinoma.

"The summary judgment evidence does not establish a fact issue regarding whether Veryl Pink's exposure to benzene while working at the Goodyear plant was a substantial factor in the development of the renal cell carcinoma that led to his death," he writes.

"Because (Charlcie) Pink failed to produce any evidence sufficient to raise a fact issue on at least one element of each of Pink's claims against Goodyear, the trial court did not err in granting Goodyear's motion for summary judgment. I would affirm the judgment as to Goodyear."

The plaintiff is represented in part by Houston attorney Daryl L. Moore.

Goodyear is represented by attorney David Oliver.

Appeals case No. 09-09-00241-CV
Trial case No. D182-537

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