3423491900 - 2007 S.W.3d (14-04-01133-CV); Exxon Mobil...

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2007 S.W.3d (14-04-01133-CV); Exxon Mobil Corp. v. Altimore; EXXON MOBIL CORPORATION, Appellant v. LOUISE ALTIMORE, Appellee In The Fourteenth Court of Appeals NO. 14-04-01133-CV On Appeal from the 405th District Court Galveston County, Texas Trial Court Cause No. 03CV0588 SUBSTITUTE MAJORITY OPINION ON REHEARING Appellee, Louise Altimore's Second Motion for Rehearing is overruled as moot, our substitute opinion of December 7, 2006 is withdrawn, and the following substitute opinion is issued in its place.(fn1) This case presents the issue of whether appellant, Exxon Mobil Corporation ("Exxon"), owes a duty to an employee's wife injured by exposure to asbestos brought home on her husband's work clothing, at a time when such an injury was considered a medical curiosity. Exxon appeals a judgment on a jury verdict in favor of appellee, Louise Altimore, for damages sustained from contracting mesothelioma by allegedly breathing asbestos dust brought home on her husband's work clothes. Because, under the facts of this case, we hold Exxon did not owe appellee a duty, we reverse the judgment of the trial court and render judgment that appellee take nothing on her claims against Exxon. Factual Background and Procedural History Appellee was diagnosed 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.(fn2) Appellee brought suit against Exxon and a large number of other defendants alleging her mesothelioma resulted from asbestos exposure for which the defendants were responsible. By the time of trial, Exxon was the only remaining defendant. Appellee's husband, Mike Altimore, was a lifetime Exxon employee.(fn3) Appellee's complaint against appellant is that (1) Exxon negligently allowed Mr. Altimore to bring asbestos dust home on his work clothes; (2) appellee inhaled the asbestos dust while laundering Mr. Altimore's asbestos laden work clothes; (3) causing her to contract mesothelioma. During trial, Dr. Richard Lemen, appellee's epidemiologist expert witness, testified regarding the actual asbestos exposures endured by the Altimores.(fn4) Initially, Dr. Lemen explained that in order to determine if there are asbestos fibers in a certain location, one must take air samples and that you "can't just eyeball it."(fn5) Dr. Lemen
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testified he did not know what Mr. Altimore's cumulative asbestos exposure was at Exxon and any attempt to calculate that would be sheer speculation with a 100 percent error rate. Dr. Lemen also explained that he cannot tell what Mrs. Altimore's exposure to asbestos would have been from Mr. Altimore's clothing. Despite this testimony, Dr. Lemen went on to opine that (1) because there was evidence the Exxon Baytown facility
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3423491900 - 2007 S.W.3d (14-04-01133-CV); Exxon Mobil...

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