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Owens-Corning Fiberglass Corporation v. Hays3/26/1996
AFFIRM and Opinion Filed.
March 26, 1996
O P I N I O N
A.G. Hays, Jr., Nelson Bowman, James Patrick McGue, Murray D. Jones, Benjamin Baird, Raymond Mayo, and the Davis plaintiffs (collectively appellees) sued Owens-Corning Fiberglas Corporation in seven separate cases for damages allegedly resulting from asbestos exposure. The trial court consolidated the cases for trial, and the jury returned a verdict against Owens-Corning on all but two claims. In five points of error, Owens-Corning contends (1) the trial court erred in consolidating the cases for trial, (2) the evidence is legally insufficient to support the jury's findings in the wrongful death case, (3) the evidence does not support compensatory damage awards for fear or risk of cancer and the awards are excessive, and (4) the punitive awards are excessive and violate due process. We affirm the trial court's judgment.
BACKGROUND
Davis, Jones, Mayo, Baird, McGue, Bowman, and Hays were exposed to Kaylo, an asbestos-containing product, between 1945 and 1970. Although the length, time, and place of the asbestos exposures varied, all the men claimed to have been exposed to Kaylo while working in Virginia.
At the time of trial, Davis had died from mesothelioma, a rare form of cancer. The remaining six men were still alive, but had been diagnosed with asbestosis. The remaining six men and two of their wives sued for damages resulting from the men's exposure to Kaylo.
At the end of appellees' case-in-chief, the trial court dismissed the wives' loss of consortium claims under Virginia law. The jury found Owens-Corning (1) was negligent in not placing a warning label on the Kaylo it sold or distributed, and (2) breached an implied warranty that Kaylo was not unreasonably dangerous. The trial court entered judgement pursuant to the jury's verdict after deducting the necessary offsets resulting from settlements with other defendants. This appeal followed.
CONSOLIDATION
In its first point of error, Owens-Corning contends the trial court erred in consolidating the seven cases for trial. Owens-Corning maintains the consolidation (1) was inappropriate under the factors in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993), and (2) prejudiced Owens-Corning. Appellees respond that Owens-Corning waived its complaint by not properly objecting to the consolidation at trial.
1. Applicable Law
To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. Tex. R. App. P. 52(a). A party waives its right to complain on appeal about a trial court's decision to consolidate cases if the party fails to object to the consolidation before trial. See Crawford v. Continental Panhandle Lines, Inc., 278 S.W.2d 566, 568 (Tex. Civ. App.--Amarillo 1954, no writ).
2. Application of Law to Facts
The record reflects that Owens-Corning objected when the trial court proposed to consolidate more than 96 asbestos cases for trial. Owens-Corning later objected when the trial court proposed consolidating "more than 75," "more than 73," and "more than 70" cases. Owens-Corning objected that consolidation was improper because of the "volume of evidence and complexity of . . . issues" that a jury would be required to consider in such a large consolidated trial. Additionally, it objected that Owens-Corning was not a defendant in all of the cases.
The trial court ultimately decided to consolidate only seven cases. Owens-Corning did not object when the court proposed this smaller consolidation. By not re-urging its objection, the trial court could assume
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