Texas SC agrees to rehear asbestos case against Dow

By Marilyn Tennissen | Nov 25, 2014

The Texas Supreme Court has set a date for oral arguments in the rehearing of an asbestos case against The Dow Chemical Co.

The case deals with the question of whether a premises defendant is liable for a contract employee’s exposure to asbestos. 

It originated in the Dallas County 160th District Court, and resulted in a jury verdict of $2.64 million against Dow.

When the company appealed, the jury verdict reversed in Dow’s favor in February 2013.

The plaintiffs want the case reheard, and on Nov. 21 the Texas Supreme Court granted the motion and set oral arguments for Jan. 14.

Case background

Back in 1967, Robert Wayne Henderson worked at Dow’s Freeport facility as a contractor for Win-Way Industries Inc.

Win-Way workers were installing asbestos-containing insulation on pipes, while a few feet away Dow employees were tearing off old pipe insulation and installing new insulation.

Henderson contracted mesothelioma and died, which his family blames on the asbestos exposure at the Dow facility. The family sued Dow, Alcoa Inc., Crane Co. and Hercules Inc.

They argued Henderson’s asbestos exposure did not come from the work he was doing for Win-Way, but from the asbestos dust released by the work of the Dow employees being done within feet of his work area.

Chapter 95 arguments 

After the case was filed in Dallas County, it was transferred to the Asbestos MDL in Harris County for pretrial proceedings.

In response to the suit, Dow argued that the claims against it were barred by Chapter 95 of the Texas Civil Practice and Remedies Code.

Chapter 95 states that a property owner is not liable for personal injury, death or property damage to a contractor or an employee of a contractor unless it 1) retains control over the work, other than the right to order the work to start or stop or inspect progress, and 2) that the property owner had actual knowledge of the danger.

The MDL pretrial court granted summary judgment in favor of Dow on the claims that Henderson “was injured by exposure to respirable asbestos as the result of the activities of (Mr. Henderson) and/or the activities of (Mr. Henderson’s) employer on any premises of (Dow),” and denied Dow’s summary judgment motion on all other claims, including “claims that (Mr. Henderson) was injured by virtue of the activities of Dow employees.”

Henderson’s case then went back to Dallas County Judge Jim Jordan’s trial court, where a jury trial was held. The jury found Dow negligent and attributed 30 percent of the responsibility for Henderson’s injuries to Dow. They returned a $2.64 million against the company. The jury applied 70 percent of the blame to Alcoa Inc.

Dow appealed, and argued that contrary to the MDL pretrial court’s ruling, Chapter 95 “does not distinguish between a property owner’s liability for exposure caused by the activities of contractors and their employees on the one hand, and exposures caused from its own employees’ activities on the other.”

The company claimed there was no evidence at trial that Dow had both control over Henderson’s work and actual knowledge of the danger, which makes Chapter 95 apply to all of the claims against Dow. In deposition, Henderson had said that he worked for a single independent contractor and stated that Dow had no control over his work.

But the family argued that Henderson was helping insulators by mixing up insulation cement, while Dow employees were spending eight to 10 hours per week within five to 10 feet of him tearing off pipe insulation from steam lines and sawing and cutting block insulation.

They claimed that Dow substantially contributed to Henderson’s injuries by exposing him to air at its premises contaminated with asbestos dust and fibers due to the work of its employees, as opposed to work that Henderson was on the premises to perform. They said therefore Chapter 95 does not apply.

The family also argued that even if Chapter 95 does apply, Dow “would still nonetheless have owed Mr. Henderson a duty, because it exercised some control over the injury causing work since it obviously had control of its own employees.”

At trial, Dow requested a directed verdict and objected to question No. 1 on the charge of the court, which instructed the jury to “consider only the activities of the Dow Chemical employees at Dow Chemical Co. facilities.”

The question “incorrectly stated the law,” Dow argued, because any negligence claim regarding Henderson’s exposure to asbestos at Dow’s Freeport facility was subject to Chapter 95.

Additionally, Dow requested jury instructions and questions pertaining to Dow’s “control over the manner in which the work was performed” and Dow’s “actual knowledge of the danger” to Henderson. The trial court denied both of Dow’s requests.

Following the trial, Dow sought a motion for judgment notwithstanding the verdict, but it was denied.

But when the company appealed, and the Court of Appeals for the Fifth District of Texas in Dallas found in favor of Dow on Feb. 8, 2013. It reversed the trial court’s judgment and rendered a take-nothing judgment in favor of Dow.

Petition for review

The family submitted a petition for review to the Supreme Court, which was denied May 2.

In a brief submitted to the Supreme Court on Oct. 21, the plaintiffs argued that there is a conflict between what the 5th District Appellate Court ruled in the case, and what the 14th District Appellate Court ruled in another (Oncor v Murillo).

“The Fifth Court in this case adopted a categorical rule of law that Chapter 95 applies to bar a contractor’s contemporaneous negligent activity in a claim … In contrast, the Fourteenth Court adopted the diametrically opposite rule of law based on virtually identical fact and the same statutory language.”

In short, the family argued, the conflict between the courts is “irreconcilable” unless the Supreme Court intervenes to resolve it.

Henderson’s family is now seeking a rehearing, which the Texas Supreme Court has granted.

The family is represented by Denyse F. Clancy, John Langdoc and Christine Tamer of Baron & Budd PC in Dallas.

Dow is represented by Stephen G. Tipps, Amy Pharr Hefley, David P. Herrick, Matthew Eagan and Macey Reasoner Stokes.


Trial Court Case No. DC10-007003

Appellate Case No. 05-11-01277-CV

Supreme Court Case No. 13-0175

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