TCJL has asked the Texas Supreme Court to accept review of a 5th District Court of Appeals (Dallas) decision that could have substantial adverse effects on Texas employers. The case, Goodyear Tire & Rubber Co. v. Rogers, arose from the death of a longtime Goodyear employee from mesothelioma. The decedent’s estate and survivors filed suit for punitive damages against Goodyear and several other industrial facilities in which the decedent may have been exposed to asbestos. All defendants but Goodyear settled with the plaintiffs. At trial, Goodyear introduced evidence that the decedent, a smoker, had received massive doses of radiation to treat his lung cancer. The plaintiffs’ experts failed to rule out the possibility that the radiation could have caused the decedent’s mesothelioma. The parties also disputed whether the plaintiffs’ evidence that working at Goodyear increased the decedent’s risk of mesothelioma to 1 in 45,000 presented an “extreme degree of risk” required for a finding of gross negligence, we well as whether Goodyear was subjectively aware of any extreme degree of risk. The jury found that Goodyear was grossly negligent, and the trial court awarded the plaintiffs almost $3 million in punitive damages. The Court of Appeals affirmed the jury’s finding of gross negligence.

In its brief, TCJL argues that the Court of Appeals the Court of Appeals’ opinion destabilizes a well-established body of law stretching back to SCOTX’s landmark decision in Transportation Insurance Company v. Moriel, 879 S.W.2d 10 (Tex. 1994) and raises the unsettling specter of a return to the “some evidence of an entire want of care” standard of Burk Royalty v. Walls, 616 S.W.2d 911 (Tex. 1981). If not corrected, the opinion will subject Texas employers of all types and sizes to two distinct threats: (1) the imposition of punitive damages for conduct barely distinguishable from negligence; and (2) the effective abrogation of the exclusive remedy of the workers’ compensation system for a potentially significant number of workplace injuries. Specifically, the Court of Appeals regressed to a pre-Moriel standard in its refusal to consider all evidence bearing on gross negligence, contravening another key SCOTX precedent, Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004) (“In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true”).

The Court of Appeals’ decision also has potentially disastrous policy implications for the workers’ compensation system. By diluting the definition of gross negligence and lowering the standard of review, the Court of Appeals seriously weakens the exclusive remedy that underwrites the provision of workers’ compensation insurance benefits to begin with. Threatened with increasing numbers of ordinary negligence claims repackaged as “gross negligence” claims for punitive damages, employers will have added incentive to flee a system that has ceased to serve the beneficial purposes for which it was created. As we say in our brief, “If decisions like this one go uncorrected, they could return us to the 19^th-century condition in which an employee injured at work would have to file a civil lawsuit to recover his or her health care costs and lost wages. That might be a good outcome for certain legal practitioners, but certainly not for Texas businesses and their employees.”