Faust v. BNSF Railway Co.
337 S.W.3d 325
Tex. App.2011Background
- Fausts sued BNSF for Linda Faust's stomach cancer claiming exposure from the Somerville Tie Plant; verdict favored BNSF with take-nothing judgment.
- Plant operated 1905–1995; treated wood with creosote and extender oil; produced waste including cylinder drainage, kickback, spacers, sawdust, boiler emissions, and sap water.
- Linda smoked heavily and had H. pylori infection; she had diffuse signet cell stomach cancer diagnosed in 1998 and underwent gastrectomy.
- Donnie Faust worked at the plant; exposure to creosote documented; plant used multiple waste handling and emission pathways debated at trial.
- The trial court gave a specific causation instruction requiring exclusion of other plausible causes (smoking, H. pylori); the jury answered No on proximate causation.
- Fausts appealed arguing improper causation instruction and insufficiency of evidence; the court affirmed, addressing preservation, gatekeeping, and sufficiency issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the specific causation instruction was reversible error | Fausts argued instruction heightens burden, shifts gatekeeper, and comments on weight | BNSF argued error not preserved for all grounds; instruction proper and harmless if error occurred | No reversible error; any error was not harmful |
| Whether the evidence was factually insufficient to support the jury's No on proximate causation | Fausts contended evidence supports causation via exposure | BNSF contended substantial evidence supports the jury's finding of no proximate causation | Evidence factually sufficient to support the jury's No finding on proximate causation |
Key Cases Cited
- Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) (preservation and jury-charge objections must be timely and plain)
- State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992) (test for preserved error in jury charges)
- Havner v. Garza, 953 S.W.2d 706 (Tex. 1997) (general and specific causation in toxic-tort cases; Havner factors)
- Hawley v. Columbia Grande Healthcare, 284 S.W.3d 851 (Tex. 2009) (loss-of-chance-type instruction; necessity to guide jury)
- Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) (applies reliability/sufficiency review to expert testimony)