Document 3NebpmGdqbJ86Yb8Q9dRvqYZn

PLAINTIFF'S EXHIBIT CAUSE NO. 29668 LAVELLE MOORE, Individually and as Personal Representative of the Heirs and Estate of WILLIE MOORE, Deceased, et al Plaintiffs V. OWENS-CORNING FIBERGLAS CORPORATION, et al Defendants 99 IN THE DISTRICT COURT OF ANGELINA COUNTY, TEXAS 217TM JUDICIAL DISTRICT PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT. INC.'S MOTIONS FOR SUMMARY JUDGMENT: TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiffs, LAVELLE MOORE, Individually and as Personal Representative of the Heirs and Estate of WILLIE MOORE, Deceased, LANCE MOORE and LaNITA MOORE, by and through their attorney of record and files this their response to Defendant Brown & Root, Inc.'s ("Brown & Root") Motions for Summary Judgment and would respectfully show the court as follows: I. INTRODUCTION This is an asbestos-related personal-injury action. Plaintiffs allege that Plaintiffs and Decedents were exposed to asbestos dust caused or created by Defendant Brown & Root and that this exposure caused Decedent's asbestos-related injuries and death. Plaintiffs seek compensatory and punitive damages. Defendant Brown & Root filed several motions for summary judgment alleging that Plaintiffs claims are barred by the statute of limitations, that it owned no duty to Plaintiff, and that Plaintiffs have no evidence to support their claims against Brown & Root in negligence and gross negligence. Plaintiffs ask the court to deny each of Brown & Root's motions because Plaintiffs have met their burden and have produced competent summary judgment evidence to prevail on each of their claims and to defeat Brown & Root's no-evidence motion. II. SUMMARY JUDGMENT BURDEN Summary judgment is proper when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law on the issues set out in the motion. See Tex. R. Civ. P. 166a(c), (e); McFadden v. American United Life Ins. Co.. 658 S.W.2d 147, 148 (Tex. 1983). The purpose of a summary judgment is neither to deprive litigants of their right to a trial by jury nor to try a case by affidavit PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 1 and deposition testimony. See Collins v. County of El Paso. 954 S.W.2d 137, 145 (Tex. App.--El Paso 1997, pet. Denied). The function of summary judgment is to eliminate patently unmeritorious claims and untenable defenses. See City of Houston v. Clear Creek Basin Auth. 589 S.W.2d 671, 678 n.5 (Tex. 1979). When deciding whether there is evidence of a disputed issue of material fact that would preclude summary judgment; the court assumes that all evidence favorable to the non-movant is true. See Science Spectrum v. Martinez. 941 S.W.2d 910, 911 (Tex. 1997): Specialty Retailers. Inc, v. De Moranville. 933 S.W.2d 490, 491 (Tex. 1996). The court must view the evidence in the light most favorable to the non-movant, indulging every reasonable inference in favor of the non-movant and resolving all doubts in its favor. See Science Spectrum 941 S.W.2d at 911; Walker v. Harris 924 S.W.2d 375, 377 (Tex. 1996): Specialty Retailers, 933 S.W.2d at 491: Nixon v, Mr. Property Momt. Co. 690 S.W.2d 546, 549 (Tex. 1985). Plaintiffs ask the court to deny Brown & Root's motions for summary judgment because Plaintiffs have put forth summary judgment evidence to support their claims. Although new to Texas jurisprudence, no evidence motions have been a feature of the federal practice since Celotex v. Catrett. See 477 U.S. 317 (1986) ("[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgement; the requirement is that there is no genuine issue of material fact."). See also Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48 (1986): Petroleum Helicopters, Inc, v. Avco Corn. 930 F.2d 389, 391 (5th Cir. 1991). Unless the moving party shows that an adequate time for discovery has passed and there is no evidence to support one or more of the essential elements of the non-movant's claim or defense, the court may not grant a no-evidence summary judgment. See Tex. R. Civ. P. 166a(i). Plaintiffs ask the court to deny Brown & Root's no evidence motions because Plaintiffs have put forth evidence to support its claims. Brown & Root must show it is entitled to judgement as a matter of law. Broad no-evidence challenges to the non-movant's case will not support summary judgment under Texas Rule of Civil Procedure 166a(i). See id. (citing Notes and Comments to Rule 166a(i)). This Court should deny such a motion when the respondent produces summary judgment evidence raising a genuine issue of material fact concerning the challenged elements of its cause of action. To defeat a no-evidence motion under PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 2 Rule 166a(i), a respondent is not required to marshal its proof. Rather, the respondent need only point to evidence that raises a fact issue on the challenged elements. Plaintiffs may defeat a no-evidence motion by asserting a orima facie case of exposure and causation. SeeClick v, Owens-Cornino Fiberolas Coro. 899 S.W.2d 376. 377-78 (Tex. App.--Dallas 1992, writ denied) A plaintiffs evidence of exposure to asbestos may be direct, indirect, or circumstantial. See id See also Celotex v. Tate. 797 S.W.2d 197, 203-05 (Tex. App.--Corpus Christi 1990, no writ): Bush v. Abex Corp.. 581 N.E.2d 1119, 1124 (Ohio App.3d 1989). Courts have recognized that summary disposition of a plaintiffs cause of action is inappropriate where the plaintiff presents circumstantial evidence of a causal link between exposure to toxic asbestos dust and a defendant's failure to warn of the dangers of such. Plaintiffs ask the court to deny each of Brown & Root's summary judgment and no evidence motions. I1L ARGUMENT A. Plaintiffs ask the court to deny Brown & Root's no-evidence motion because it presents senseless assertions concerning the statute of limitations. Plaintiffs ask the court to deny Defendant Brown & Root's no-evidence motion as to the statute of limitations because the motion is frivolous on its face. A pleading is frivolous unless each legal contention is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. See Tex. Civ. Prac. & Rem. Code 10.001(2). Defendant Brown & Root's no-evidence motion is frivolous because it seeks to have Plaintiffs' suit dismissed under a spurious statute of limitations argument. ` Defendant argues that Plaintiffs did not affect service of process until after the running of the limitations period. Defendant's argument has no merit. In Texas, causes of action for personal injury and products liability accrue at the time of the injury or when facts come into existeoca thatauthorize a claimant to seek a judicial remedy. See Johnson & Higgins of Texas. Inc, v. Kennoco Energy, Inc. 962 S.W.2d 507, 514 (Tex. 1998): Moreno v. Sterling Drug, Inc.. 787 S.W.2d 348, 351 (Tex. 1990). Plaintiff Willie Moore was diagnosed with malignant mesothelioma, in November 1994. See Dep. of James R. Bruce at 42 (attached and incorporated hereto as Ex. A). Willie Moore died from mesothelioma in September 1995. See Death Cert, of Willie Moore (attached and incorporated hereto as Ex. B). At the PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 3 time of Willie Moore's death he held a cause of action because the statutory period for filing a personal injury action had not run. Plaintiffs' petition is timely because it was filed and served within the applicable statute of limitations. In Texas, the death of a person in whose favor there is a cause of action suspends the running of the applicable statute for up to twelve months after the death. See Civ. Prac. & Rem. Code 16.062(a). If an executor or administrator of a decedent's estate qualifies before such one-year "extension," the statute of limitations begins to run again at the time of the qualification. See id at 16.062(b). LaVelle Moore was granted Letters of Independent Administration upon Willie Moore's estate on July 30, 1997. See Ltrs. of Indep. Admin, (attached and incorporated hereto as Ex. C). Therefore, under Texas law, Plaintiffs were granted a twelve-month extension in which to file their suit. See id Such extension under Section 16.062(a) would required that the suit be filed before November, 1997. Plaintiffs filed its Second Amended Petition naming Brown & Root, Inc. as a defendant on December 9, 1996. See Plaintiffs' Second Amended Petition at cover (attached hereto as Ex. D). Plaintiffs served Brown & Root with such Second Amended Petition on January 6.1997. See id It is undisputed that the Plaintiffs filed suit and served Brown & Root well within the applicable statute of limitations. Brown & Root's motion has no merit and Plaintiffs ask the court to deny such motion. B. Brown & Root was negligent in its use of asbestos and asbestos-containing products and such negligence caused Willie Moore's death. Plaintiffs have sued Brown & Root for negligence asserting that its failure to use ordinary care while performing maintenance and construction work at Champion Paper Mill1 ("Champion') caused Willie Moore to breath toxic asbestos dust. To prevail, Plaintiffs must show: (1) a duty owed by one person to another: (2) a breach of that duty; and, (3) damage resulting from t' ;t breach. See Abalos. v. Oil Dev. Co. of Texas. 544 S.W.2d 627, 631 (Tex. 1976). The threshold inquiry in a negligence action is whether the defendant owed a duty to the plaintiff. See Abalos 544 S.W.2d at 631; El Chico Coro, v. Poole 732 S.W.2d .306, 311 (Tex. 1987). The existence of a duty is a question of law. See Mitchell v. MissouriKan.-Tex. R.R. Co.. 786 S.W.2d 659, 662 (Tex. 1990). Plaintiffs ask the court to deny Defendant Brown & Root's motion for summary judgment because: (1) Brown & Root owed Willie Moore the common law PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN 4 ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 4 duty of ordinary care; (2) Brown & Root breached this duty when it failed to warn or protect individuals, such as Willie Moore, from the toxic asbestos dust generated from its operations at Champion; and, (3) such failure to protect or to warn was a contributing cause of Willie Moore's death from mesothelioma, an asbestos-related disease. 1. Brown & Root owed Willie Moore the common law duty of ordinary care, a duty it breached when it failed to protect or to warn of the dangers of inhaling asbestos dust created at Brown & Root's jobsites. Defendant Brown & Root is responsible for Willie Moore's injuries because it breached its common law duty of ordinary care. It is undisputed that Willie Moore worked as a carpenter at Champion Paper Mill in Lufkin, Texas and that Brown & Root performed construction work at the mill. See Dep. of Joe David Goins at 31 (attached and incorporated hereto as Ex. E); Dep. of W. Cleon Wilson at 67-69, 134 (attached and incorporated hereto as Ex. F); Agreement between Brown & Root and Southland Paper Mills (Champion) (Aug. 5, 1954) (attached and incorporated hereto as Ex. G). Under the common law, Brown & Root has a duty to exercise ordinary care in the performance of its contract. See Coulson v. Lake L.B.J. Mun. Util. Dist.. 734 S.W.2d 649 (Tex. 1987): Kroger Co. v. Keno 976 S.W.2d 882. 888 (Tex. App.--Tyler 1988, n.w.h). Ordinary care is defined as that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. See Colvin v. Red Steel Co. 682 S.W.2d 243. 245 (Tex. 1984): Great Atl. & Pac. Tea Co. v. Evans. 175 S.W.2d 249, 250-51 (Tex. 1943). Brown & Root failed to act with ordinary care and such failure contributed to cause Willie Moore's asbestos-related disease. Brown & Root breached its duty of ordinary care when it did nothing to protect or warn individuals, such as Willie Moore, of the dangers of breathing asbestos fibers it released as part of its work at Champion. A contractor owes third parties a duty to keep its premises in a reasonably safe condition. Such duty includes a duty to inspect and discover dangerous conditions and to protect others from dangers that the contractor knew or should have known to exist at the location. See W.R. Grimshaw Co. v. Zolter. 396 S.W.2d 477 (Tex. Civ. App.--San Antonio, 1965, no writ). Brown & Root's operations at Champion created an environment filled with asbestos dust. See Dep. of John Hodges at 72-74 (Mar. 4,1 1 The paper mill also has been at times known as Southland Paper Mill, St. Regis Paper Mill, and Champion Paper Mill. PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S Page 5 MOTIONS FOR SUMMARY JUDGMENT; 1999) (attached and incorporated hereto as Ex. H.). "An employer using a product should know what the hazards of that product are . .Dep. of Richard Lemen at 98-99 (attached and incorporated hereto as Ex. I). The duty of ordinary care includes erecting and maintaining warning signs. See Word v. Clifton 399 S.W.2d 424 (Tex. Civ. App. 1966, n.w.h.). Brown & Root never put up caution signs and never roped off their work areas. See Ex. F at 152-53. Despite its role in causing the danger, it did nothing to warn ^ individuals present at the worksite. Such inaction is a breach of the duty of ordinary care. Brown & Root had a duty to Willie Moore to warn him of the presence of harmful asbestos because it negligently created the dangerous condition. One who creates the danger has a duty to do prevent foreseeable injuries to others as a result of that condition. See El Chico v. Poole 732 S.W.2d at 311. Decedent's co-worker, Joe Goins, testified that Champion employees worked side by side with Brown & Root employees. See Ex. E at 37, 34-36 ("They [Champion employees] would be working here, and we might be 10 feet over there working on our job like that, and I've seen him [Willie Moore] working - walking right through the recovery room when they were doling asbestos work thereQ"). Brown & Root employee, Cleon Wilson testified that Champion employees breathed the asbestos dust caused by Brown & Root's work. See Ex. F at 84 ("I've seen him several - I saw several different places and locations where we worked."). Brown & Root did not provide respiratory protection to its employees, nor did it warn others of the need for protection. See id at 111. Brown & Root breached its duty to those defenseless persons and such breach lead to Willie Moore's death. 2. Brown & Root, an independent contractor in control of its jobsite, owed a duty of ordinary care to those its work affected, a duty it breached when it failed to protect or warn individuals such as Willie Moore. Brown & Root was as an independent contractor and controlled its own work. It is undisputed that the agreements entered into between Champion and Brown & Root intended that Brown & Root act as an independent contractor. See Ex. G at 5; Agreement between Brown & Root and Southland Paper Mills (Champion) at 5 (Mar. 6,1957) (attached and incorporated hereto as Ex. J); Agreement between S Brown & Root and Southland Paper Mills (Champion) at 5 (Aug. 29,1962) (attached and incorporated hereto as Ex. K); Agreement between Brown & Root and Southland Paper Mills (Champion) at 5 (May 15, 1964) (attached and incorporated hereto as Ex. L); Agreement between Brown & Root and Southland Paper Mills (Champion) at 5 (Aug. 13, 1968) (attached and incorporated hereto as Ex. M). There is no PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 6 evidence that Brown & Root relinquished its status as an independent contractor or its control over the workplace. To the contrary, Cleon Wilson, a Brown & Root employee who worked at Champion, testified that Brown & Root controlled its work and the manner in which it was preformed, supervising all work daily. See Ex. F at 147-49, 169 ("It would have been - Brown & Root safety, it would have been directly supervising us ..."). John Hodges, a Brown & Root health, safety, and environmental manager, concurs that Brown & Root controlled its work. See Ex. H at 19. 67-68. Mr. Hodges testified as follows: Q. All right. Was it typical that Brown & Root maintain complete control over contractors, employees, and operations in the manner and means of performing work? A. As far as I know, yes. Q. That was typical in your experience of the way brown & Root performed the construction contract, correct? A. Correct. See ]d. at 81-82. Brown & Root exercised control and with such control had the duty to warn - a duty it breached. Brown & Root breached its duty to maintain a safe workplace. A contractor owes the foreseeable plaintiff the duty to keep premises in reasonably safe condition and includes a duty to inspect and discover dangerous conditions. See W.R, Grimshaw Co. v. Zolter. 396 S.W.2d 477 (Tex. Civ. App.--San Antonio, 1965, no writ). One who is in control of an area and permits a dangerous condition to persist has a duty to warn other persons of such dangerous condition. See Seldon v. Green 498 S.W.2d 285 (Tex. Civ. App.--Tyler 1973, no writ). Brown & Root exercised control; therefore, it bore the duty to protect others from hazards associated with work under its control. See Redinaer v. Living. Inc. 698 S.W.2d 415, 418 (Tex. 1985). Brown & Root did not warn anyone of the dangers of breathing asbestos. See. Ex E at l50.(.`They.didn'ttell me.one thing^")..Testimony from Brown & Root employee Charley Baker confirms its pattern of failing to warn or protect its employees and those with whom they came in contact See Dep. of Charley Baker at 49-53 (attached and incorporated hereto as Ex. R) ("What did Brown & Root tell you about asbestos? Nothing.'). Brown & Root did not warn its own employees about the safe handling of asbestos. See Ex. F at 151-52 ("Did - in the 1960s and 1970s, did Brown & Root ever teach you methods to safety - safely work with asbestos products? No they didn't."). Brown & Root PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOTS MOTIONS FOR SUMMARY JUDGMENT; Page 7 did not display any signs around its jobsite to warn others that asbestos was being disturbed or rope off the area. Brown & Root employee. Cleon Wilson testified: Q. In the 1960s and 1970s when you were doing your work at Lufkin, did Brown & Root ever put up any caution signs around work that you were doing with insulation? A. No. Q. In the 1960s and 1970s, did Brown & Root ever rope off or instruct you to rope off an area around where you were working with insulation? A. No. Q. Did - in the 1960s and '70s, did Brown & Root ever instruct you on safe methods for removing insulation from either pipes or boilers? A. No. Ex. F at 153. As a result of Brown & Root's failure to use ordinary care, Willie Moore breathed toxic asbestos dust. See id. at 137 ("He'd be breathing the same air I was breathing in the same area."). As an independent contractor in the performance if its work. Brown & Root negligently caused toxic asbestos fibers to be released into the air - and did nothing to warn or protect those persons most likely to be exposed. Brown & Root argues that Champion was in control of the Brown & Root jobsite and any liability for injury to Willie Moore should be assigned to Champion. Brown & Root's argument twists the law. Generally, if an owner assumes control over the work performed on its premises, it is responsible for injuries resulting therefrom. See Redinger, 698 S.W.2d at 418. For such liability to attach: however, the employer's control must include more than a general right to order the work to stop or start, to inspect progress, or to receive reports. See id. Plaintiffs have put forth contractual evidence of Brown & Root's acknowledged status as an independent contractor in control if its work. See Ex. J-M. Such contracts show that Champion relinquished control to Brown & Root, retaining only the right to inspection and reports. See e-.q. Ex. J at 3-4.- Brown & Root cannot meet its burden under Redinqerto show that Champion exercised control. An occupier of premises can assume that a contractor will perform his responsibilities in a safe and workman like manner, taking proper care and precautions to assure the safety of others. See Jenkins v. Fritzler Development Coro. 580 S.W.2d 63, 65 (Tex. Civ. App.-- Houston [1st Dist.) 1'979, writ refd n.r.e.). Brown & Root took no precautions to assure the safety of others. Brown & Root breached its duty of ordinary care and Willie Moore died. PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 8 3. Every exposure to toxic asbestos dust contributed to Willie Moore's mesothelioma and death. Brown & Root breached its duty to warn, causing individuals such as Willie Moore to breathe harmful asbestos dust. Brown & Root told no one that asbestos was harmful. See Ex. F at 150 ("They didn't tell me anything."). Asbestos was not discussed in Brown & Root safety meetings. See Ex. R at 49-50 ("Never heard it discussed, no."). Brown & Root employee Cleon Wilson testified that, if he had know that asbestos was harmful, he would not have worked with or around it. See Ex. F at 154-55 ("I would have quit. I wouldn't have worked around it."). He testified further that he worked alongside Willie Moore and that the both of them breathed asbestos dust created by Brown & Root. See id at 159-60 ("And if I breathed it, he had to breathe it."). Mr. Wilson - and Willie Moore - breathed asbestos dust in the workplace--dust created by Brown & Root. Brown & Root did nothing to educate or warn them. Regardless of the degree or concentration, assuming an adequate latency period, every exposure to asbestos contributes to the development of a plaintiffs disease. In considering the harmful effects of secondary exposure to asbestos dust, the Fifth Circuit observed: [l]nhaling asbestos dust in industrial conditions, even with relatively light exposure, can produce the disease of asbestosis... Furthermore, the effect of the disease may be cumulative since each exposure to asbestos dust can result in additional tissue changes. Borel v. Fibreboard Paper Prod. Corp.. 493 F.2d 1076,1083 (5th Cir. 1974) (footnote omitted). Willie Moore, left defenseless and ignorant by Brown & Root's acts and omissions, inhaled asbestos fibers and each fiber so inhaled constituted a producing and proximate cause of his latent, progressive, occupational lung disease. Brown & Root breached its duty of ordinary care and each breach was a contributing cause-in fact of Willie Moore's injury. Willie Moore is not required to prove that one particular instance of negligence or knowledge of one specific hazard caused his injury. See Corbin v. Safeway Stores. Inc. 648 S.W.2d 292, 296 (Tex. 1983). Asbestos products are inherently dangerous to human health; "the diseases caused by asbestos exposure are life-threatening or disabling.' 51 F.R. 22612, 22615 (June 20, 1986). "Each and every exposure that Mr. Moore would have had would have contributed in some way to his development of the disease mesothelioma." Ex. I at 192-93. See also Ex. A at 48 ("In your opinion, ail of his exposures up until 1979 were a contributing cause? Yes."); Dep. of Victor Roggli at 55 (attached PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 9 and incorporated hereto as Ex. N) ("[B]oth the exposure to asbestos as a paper mill worker and exposure in the Navy would have acted together to contribute to his total exposure which resulted eventually in this disease.'). It is well accepted within the scientific community that the most common cause of mesothelioma is the inhalation of asbestos fibers. See id at 29. See also 51 F.R. 22612. 22618 ('[T]he excess number of deaths from mesothelioma add to the already considerable weight of evidence for a causal relationship between asbestos exposure and an increased mortality risk from this rare cancer.'). Asbestos fibers may remain suspended in the air currents for many hours, even days. Once an environment contains a significant quantity of free asbestos fibers, the occupants of that environment are subjected repeatedly to asbestos fiber exposure because normal inhalation and exhalation cause the fibers to circulate continually. Willie Moore was exposed repeatedly to re-circulated asbestos dust and Brown & Root did nothing. Brown & Root breached its duty and. because of this breach, Willie Moore inhaled toxic asbestos dust. He has since died from mesothelioma, an asbestos-related cancer of the lungs. See Ex. N at 41. Brown & Root's negligence was a cause of Willie Moore's death from mesothelioma. C. Brown & Root's negligence rose to the level of gross negligence when it repeatedly failed to warn or protect Willie Moore despite legislative mandates. 1. Brown & Root was grossly negligent because it knew that exposure to asbestos was harmful to workers, yet repeatedly failed to warn or protect individuals such as Willie Moore. Brown & Root alleges that Plaintiffs have no evidence to show that its actions rose to the level of gross negligence. The argument has no merit. Gross negligence involves two elements: (1) an act or omission that involves an extreme risk and (2) the actor's subjective awareness, and disregard, of the risk involved. See Frias v. Atlantic Richfield Co. 999 S.W.2d 97,104 (Tex. App.--Houston[14th Oist ] 1999, n.w:b:). Extreme risk involves the likelihood of serious injury-to, the.plaintiff. See id See also Universal Servs. Co. v. Una. 904 S.W.2d 638, 641 (Tex. 1995): Transportation Ins. Co. v. Moriel 879 S.W.2d 10, 22 (Tex. 1994). Subjective awareness is evidenced by knowledge of, yet indifference to. the peril. See Wal-Mart Stores. Inc, v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993). Such conduct can be active or passive in nature. See Burk Royalty Co. v. Walls 616 S.W.2d 911, 922 (Tex. 1981). A repeated failure to warn will support a finding of gross negligence. PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOTS MOTIONS FOR SUMMARY JUDGMENT; Page 10 The court will find gross negligence if it determines that the actor knew the conduct posed substantial risk, but acted with conscious indifference to the rights, welfare, and safety of others. The determination of gross negligence need not rest upon a single act, but may result from a series of acts or omissions, which acts or omissions may be proven by circumstantial evidence. See Burk Royalty Cnfilfi S.W.2d at 922; Moriel. 879 S.W.2d at 22-23: Wal-Mart 868 S.W.2d at 327. The court may infer a conscious indifference from evidence of knowledge of a danger and the repeated failure to warn of such. Brown & Root had actual knowledge of the dangers of exposure to asbestos, yet repeatedly placed workers in asbestos-filled environments without warning or protection. See Ex. F at 151-154; Ex. R at 4653. At the time it allowed Willie Moore repeatedly to breathe asbestos dust, Brown & Root knew that it placed workers in extreme danger of harm. See Corporate Inquiry Report, Ltr. from James W. Hammond to Hans Siegel ("Hammond Report") at 10 (attached and incorporated hereto as Ex. S) ("[DJuring my 31 years with Exxon [1947 to 1978] the contractors' (Brown & Root] supervisors who worked in our facilities were educated by our safety personnel of the hazards associated with the jobs they were going to be doing, including any potential exposures to asbestos dust."). "Our safety people routinely would advise them [Brown & Root] of the hazards that would be associated with that [exposure to asbestos] and what they needed to do about it." ]d. In the presence of actual knowledge of the harm associated with asbestos and actual knowledge of the necessary measures to prevent such harm, Brown & Root repeatedly did nothing. 2. The court may look to repeated violation of Texas air-quality and Federal OSHA standards as an indicator of its conscious indifference to workers. Brown & Root's repeated breach of its duty under Texas and Federal Law points to its gross negligence. Texas and Federal legislation show an industry-wide knowledge of the danger of exposure to asbestos in the 1940's and even as early as-the 1930's. See Ex I at 157 ("In my opinion that period of time [when it was known that asbestos could cause death in exposed workers] was 1930.'); Occupational Health Regulations, No. 3, Maximum Permissible Concentrations of Atmospheric Contaminants in Places of Employment at cover (July 1958) (attached and incorporated hereto as Ex. 0.); Dep. of Howard Cole at 253-57 (attached and incorporated hereto as Ex. P) ("My opinion is that asbestos is known to be a hazard PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT 8ROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 11 in the mid-to late '30s - as early as the mid-to late '30s and late 40's."). Yet Brown & Root took no steps to protect or warn individuals they exposed to this toxic dust. In 1958, the Texas State Board of Health, in accordance with the authority granted to it by the Texas Legislature, set forth standards pertaining to maximum concentrations of atmospheric contaminants. These standards were made applicable to all places of employment in Texas. See Ex. O at 2 (defining "places of employment" as "any place where two or more persons are directly or indirectly employed by another for direct or indirect profit or gain.'). The maximum concentration of toxic asbestos dust was set at five (5) million particles per cubic foot of air. See id at 10. The purpose of these standards was to prescribe the maximum average atmospheric concentration of contaminants to which employers may expose others. See id at 2. The regulations included all employees, whether that of the contractor or that of the business owner. See Ex. I at 182-184 ("[Brown & Root's obligation was] to assure at a minimum that their employees were not exposed to concentrations of asbestos at or above the level in the Texas fTLV] document and to provide protection to their employees to insure that all employees [including non-Brown & Root employees] that might be exposed to their operations would have the same protection.") The standards were set to protect individuals, such as Willie Moore, from breathing asbestos dust and Brown & Root knew of, and consciously disregarded, such standards.. In 1970, Congress, concerned with the health and safety of America's workers, enacted the Occupational Health and Safety Act ("OSHA"). See29 U.S.C. 651 et sea. (1999). The purpose of OSHA was to supplement the various state laws regulating workplace safety and to provide a Federal enforcement vehicle. See jd. The act provides, in part: a) Each employer(1) shall furnish to each of his employ' is employment and a place of employment which are f-ce from recognized hazards that are causing or are nxely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act. Id. at 644(a) (emphasis added). The Act's provisions are mandatory. Every employer is required to comply, there are no exceptions. Moreover, the regulations contemplate the protection of all employees, whether Brown & Root's or Champion's. See Ex. P at 264 ("[l]f they have knowledge of them - of hazards in the workplace, then they're to protect all employees in the workplace, be it their employees or PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOTS MOTIONS FOR SUMMARY JUDGMENT; Page 12 other employees."); Ex. I at 183-84, 187 ("So it (OSHA] throws the burden on to the contractor to not only protect their own workers but any workers that may be exposed throughout the creation of the source of asbestos that they may have created."). As an employer, Brown & Root was put on notice of the harmful effects of breathing asbestos dust and its responsibilities therefore, yet repeatedly failed to warn workers such as Willie Moore. The United States Department of Labor issued mandatory regulations with respect to workplace safety in those industries using asbestos or asbestos-containing products. See 29 C.F.R. 1910.001 (1972) (attached and incorporated hereto as Ex. Q.). These regulations mandate personal protection devices, warning signs, employer monitoring of employees and workplace environments, medical examinations, and record keeping. See id Willie Moore worked at Champion during the time the OSHA regulations were promulgated, yet his co-workers testified that they did not see any warning signs or receive any verbal warnings of the hazards of asbestos. See Ex. F at 150; Ex. E at 48 ("We didn't know it was harmful until probably 1990 or along in there."). Even well after OSHA's mandates and regulations were in effect, Brown & Root continually breached its duty of ordinary care - and such continuous breach in the presence of state and federal mandates is evidence of its gross negligence. Texas Threshold Limit Values and OSHA requirements mandated air measurements to determine whether the average atmospheric contamination of asbestos dust to which any employer exposed its employees and/or invitees was within prescribed perimeters. See Ex. P at 280-81; Ex. I at 183. Plaintiff has put forth evidence that Brown & Root performed no such measurements. See Ex. F at 152-153; Ex. R at 53-54. The repeated and continuous failure to follow Texas and Federal statutory mandates confirms Brown & Root's gross negligence. In its conspicuous violation of the laws promulgated to protect employees such as Willie Moore, Brown & Root placed him at an extreme risk of injury and would exhibit a conscious disregard for his safety. Brown & Root, as an employer subject to OSHA's mandate and Texas law, is deemed to have knowledge of the relevant regulations and the conditions of its facilities. See Ex. P at 257-61. Plaintiffs have shown that Brown & Root had actual knowledge of the use of asbestos at Champion and actual knowledge of the hazards associated with such use. Plaintiffs have shown that Brown & Root had actual and/or constructive knowledge of the relevant sate and federal regulations. Plaintiffs have shown that PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 13 Brown & Root failed to follow the law. Brown & Root's failure to follow State and Federal law confirms its failure to act reasonably. Failure to comply with a statute is negligence perse. See Carter v. William Sommerville & Son. Inc.. 584 S.W.2d 274, 278 (Tex. 1979) (holding that the statute itself states the standard of a reasonably prudent person): Mouohton v. Wolf. 576 S.W.2d 603 (Tex. 1978); Southern Pacific Company v. Castro. 493 S.W.2d 491 (Tex. 1973). Where a specific requirement and absolute duty is imposed by statute, the failure to observe that requirement is clearly negligence per se. See Swoboda v. Brown. 196 N.E. 274 (Ohio 1935). The repeated failure to acknowledge and follow the law concerning the safety and health of its invitees placed Willie Moore at extreme risk of injury and illustrates a subjective awareness, and disregard, of the risk involved. Brown & Root's actions were grossly negligent and caused Willie Moore repeatedly to inhale toxic asbestos dust. Willie Moore worked in an environment filled with asbestos and asbestos dust and no one warned him. Even relatively small exposures to asbestos can cause cancer, yet asbestos diseases are preventable. Willie Moore did not have to contract an asbestos-related illness. He did not have to die from mesothelioma. Sadly, the continuous exposure to asbestos dust--the result of Brown & Root's negligence and gross negligence--was a contributing factor in the development of the Plaintiffs disease. 0. The court should deny Brown & Root's motions because Willie Moore has met his burden of proof. Plaintiffs ask the court to deny each of Brown & Root's motions because Plaintiffs have put forth evidence and case law to sustain their causes of action. Plaintiffs have shown that: (1) Brown & Root had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm to Willie More; (3) that Brown & Root did not exercise reasonable care to reduce or eliminate such risk; and, (4) that Brown & Root's failure to use such care proximately caused Willie Moore's injuries. See Keetch v. Kroger Co. 845 S.W.2d 262, 264 (Tex. 1992): Corbin 648 S.W.2d at 296. Plaintiffs have met their burden and have put forth evidence showing that Brown & Root was negligent and grossly negligent in its manner at Champion Paper Mill. Brown & Root breached its duty to Willie Moore and, because of this breach, he contracted malignant mesothelioma and died. The failure to warn or protect in the presence of unequivocal state and federal mandates is evidence of Brown & Root's gross negligence. PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOT'S MOTIONS FOR SUMMARY JUDGMENT; Page 14 tv. CONCLUSION Brown & Root filed a frivolous no-evidence motion in defiance of the Texas Rules asserting that Plaintiffs have not met the applicable statute of limitations. Plaintiffs have put forth valid summary judgment evidence to show that Brown & Root's allegations are unfounded and that this cause was brought within the applicable limitations period. Brown & Root has the duty to know or investigate applicable law before filing motions or other documents with the court. Plaintiffs ask the court to deny Brown & Root's motion. Brown & Root has asked the court for summary judgment on the issue of negligence and gross negligence, alleging that it had no duty to Willie Moore. Plaintiffs have put forth valid summary judgment evidence to show that Brown & Root owed Willie Moore a common law duty of ordinary care. Brown & root, as a contractor in control of its premises and aware of the hazards of asbestos, it breached its duty when it failed to protect or warn Willie Moore of the dangers of breathing asbestos. Plaintiffs have shown that State and Federal laws, in effect at the time of Willie Moore's exposure, set forth procedures to measure the levels of asbestos in the workplace and to warn and protect employees. Further, Plaintiffs have shown that Brown & Root repeatedly ignored such regulations, despite the knowledge of the resulting harm to others. Plaintiffs have met their burden and ask the court to deny Brown & Root's motions for summary judgment. WHEREFORE PREMISES CONSIDERED Plaintiff respectfully requests that this court deny Defendant Brown & Root's Motion for Summary Judgment and grant Plaintiffs all other relief to which they are entitled. DAVID C. GREENSTONE' State Bar No. 24007271 PETER KRAUS State Bar No. 11712980 SHARON ALICE POUZAR State Bar No. 24010730 4807 W. Lovers Lane Dallas, Texas 75209 214-357-6244 PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN & ROOTS MOTIONS FOR SUMMARY JUDGMENT; Page 15 214-357-7252 Facsimile ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copydTthe foregoing Motion has been served upon counsel for Defendant Brown & Root;'tficrbyfacsimile and hand.delivery on this the 15th day of February 2000. ./ -- j / SHARON ALICE POUZAR c. PLAINTIFFS' CONSOLIDATED RESPONSE TO DEFENDANT BROWN 4 ROOTS MOTIONS FOR SUMMARY JUDGMENT; Page 16 Mike Beers (214) 855-4275 mbeers@jenkens.com Jenkens & Gilchrist ** A PROFESSIONAL CORPORATION 1445 Ross Avenue Suite 3200 Dallas, Texas 75202 (214)855-4500 TELECOPIER (214) 855-4300 www.jenkens.com April 3, 2000 AUSTIN, TEXAS (512) 4990800 HOUSTON. TEXAS (715) 951-3300 LOS ANGELES. CALIFORNIA (310)820-8800 SAN ANTONIO, TEXAS (210) 246-5000 WASHINGTON. D C. (202)326-1500 Affiliate Office CHICAGO. ILLINOIS <312)425-3900 Morton Com, Ph.D. 3208 Bennett Point Road Queenstown, Maryland 21658-1126 Via Federal Express Re: Hollandsworth Moore Dear Dr. Com: Enclosed, please find the materials regarding the above-referenced cases. I am forwarding these materials for your review and familiarization with the case at hand. Ifyou have any questions, please do not hesitate contacting me. Thanks you for your assistance with this matter. We look forward to meeting with you on Wednesday. Sincerely^ MSB:kb Enclosures Tike Beers Paralegal Dallas! 559913 1, 44811.00012