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Click here for the full text of this decision FACTS:Physicians diagnosed Louise Altimore 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. Altimore brought suit against Exxon and a large number of other defendants alleging her mesothelioma resulted from asbestos exposure for which the defendants were responsible. Louise’s husband Mike Altimore was a lifetime Exxon employee. Mike worked as a machinist at Exxon’s Baytown refinery, between 1942 and 1977. Mike began his career at Exxon working in the oil refinery, and at some point during his career, he moved to the polyolefins unit, where he was exposed to asbestos. In 1972, Jesse Stovall made Mike the supervisor of the air-conditioned tool room within the polyolefins unit. Mike worked in the tool room until he retired from Exxon in 1977. Louise’s complaint against appellant is that Exxon negligently allowed Mike to bring asbestos dust home on his work clothes, and Louise inhaled the asbestos dust while laundering Mike’s asbestos laden work clothes, which caused 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 Louise $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. An appeal followed. HOLDING:Reversed and rendered. In its first issue, the court stated, Exxon argued that it did not owe Louise a duty, because the lack of foreseeability is a proper reason for rejecting a duty, and at no relevant time did medical research reveal a foreseeable risk to Louise. The elements of a negligence claim, the court stated, are the existence of a legal duty, a breach of that duty and damages proximately caused by that breach. To determine whether the defendant is under a duty, the court stated that it must 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. The court followed the Texas Supreme Court’s two-prong test for foreseeability: 1. The injury must be reasonably foreseeable in general; and 2. The injury must be reasonably foreseeable in relation to the injured party in particular. In other words, the test requires foreseeability of both general danger and danger that a particular plaintiff or one similarly situated would be harmed. The court found that Louise’s injury was not foreseeable to Exxon when it occurred before 1972, when OSHA regulations prohibiting employers from allowing workers who had been exposed to asbestos to wear their work clothes home. In 1972, the court found, there were still mixed messages from the medical and scientific community on the risks associated with asbestos exposure and there was no clear consensus on that risk. As a result of the OSHA regulations, the court found, 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. After the release of those regulations, the court stated, the risk to Louise of contracting a serious illness had become foreseeable, triggering Exxon’s duty to protect Louise and those persons similarly situated. By that time, however, Mike was working in an air-conditioned tool room and was no longer working in an environment where he was being exposed to asbestos dust. Accordingly, the court concluded that as a matter of law, Exxon did not owe a duty to Louise during the relevant time period. Thus, the court reversed judgment of the trial court and rendered judgment that Louise take nothing on her claim against Exxon. OPINION:Anderson, J.; Anderson, Edelman and Seymore, J.J.

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