Texas appeals court reinstates benzene case against Goodyear

ERJ staff report (TB)

Beaumont, Texas -- A Texas state appeals court has reversed a summary judgment finding in Goodyear's favour in a lawsuit that alleges a longtime Goodyear employee's exposure to benzene in the workplace caused his fatal renal cancer.

Charlcie Pink filed the lawsuit on behalf of her husband Veryl, who worked at Goodyear from 1963 to 1997 and died in 2005. In November 2009, the 172nd District Court granted Goodyear's “no-evidence” motion for summary judgment, which claimed Ms. Pink had presented no evidence demonstrating that benzene exposure in the Goodyear plant had caused her husband's cancer.

A majority of judges in the Court of Appeals for the Ninth District of Texas at Beaumont, however, decided Sept. 9 to reinstate the case.

“In evaluating summary judgment evidence, an appellate court does not judge the credibility of the witnesses or weigh the evidence,” stated the decision written by Justice David Gaultney. Rather, it must assume in the absence of specific trial court rulings that the evidence presented by the plaintiff's witnesses is true, the majority said.

The appeals court noted affidavits from several of Veryl Pink's co-workers that it was common practice in the 1960s and 1970s to wash their hands in benzene. The court also noted the statements of Mr. Pink's oncologist, Dr. Mahesh Kanojia, that benzene exposure was the likely cause of his cancer.

While Goodyear filed briefs during the appeals process casting doubt on the reliability of Dr. Kanojia's analysis, the trial court did not rule on the admissibility of Dr. Kanojia's testimony or the truthfulness of the co-workers, the appeals court said. Without express rulings on this evidence, the appeals court must allow it in the record and reverse any “no-evidence” summary judgment, it ruled.

Chief Justice Steve McKeithen dissented, saying the “no-evidence” ruling was correct.

“A conclusory statement by an expert cannot be considered probative evidence if no basis for the opinion is offered, or the basis provides no support,” Justice McKeithen wrote in his dissent. “(Charlcie) Pink not only provided no quantitative proof that Veryl Pink experienced benzene exposure sufficient to cause his disease, Pink provided no evidence that any quantity of benzene exposure will cause renal cell carcinoma.”

Goodyear officials and Daryl L. Moore, Charlcie Pink's attorney, could not be reached for comment.

From Tire Business (A Crain publication)