*1 Thomas, holding I has effec- think the Thomas similar circumstances Under (b) 414- tively of section repealed subsection Appeals pro- held of Criminal due Court supreme says that court which requires Stoppers the Crime cess of law Stoppers may compel production of a Crime by report produced examined the trial and report. holds the trial Thomas that both camera, judge in but not disclosed to Appeals may court of Criminal Court 114. attorneys. at The trial S.W.2d those have a consti- do so. If both of courts judge required to determine whether the was even duty produce to the record tutional Stoppers report contained material Crime refused, I supreme after court has be- defendant, Bra- favorable to the see evidence have the constitutional lieve we also same 83, 87, Maryland, dy v. 373 U.S. 83 S.Ct. duty though the court has not supreme even (1963), to L.Ed.2d been for relief. asked if it In it to the defendant did. disclose addition, judge required to was ruling error six point I would defer findings report seal make fact proce- trial to follow and order the at 114. I be- appellate review. 837 S.W.2d to us in Thomаs and send his dure set out procedure here. lieve we should follow that Stop- and the Crime findings of fact sealed those, I receiving pers report. After majority proce- to follow this declines point rule on of error six. appellant seek did not to obtain dure Stoppers report from Texas the Crime Court, by required
Supreme Tex.Gov’t (Vernon 1990). §§ 414.007-.008 Ann. Code Thomas, Except holding for the I would Thomas, appellant sought re-
agree. Court, Supreme from the Texas which
lief Nevertheless, it. 837 at 108.
denied S.W.2d appeal. The granted on direct he was relief CORPORATION, Appellant, KEENE produc- held Appeals of Criminal Court constitutionally required even tion was though Supreme the Texas Court had denied ROGERS, Rogers, Jr., L. Eleanor Jessie If Id. Thomas was
production. at 113-14. Lofton, Emma L. and Jo Robert though production he had entitled to even Lofton, Appellees. Court, Supreme it Texas been denied No. 6-92-027-CV. deny appellant it to I not see how we can do Why require to relief a defendant seek here. Texas, Appeals Court trial has supreme court when Texarkana. duty grant the re- constitutional same Sept. 1993. lief? like Thomas holds that circumstances production
these, thе defendant is entitled courts, if law even the record criminal grant refuses to it. Supreme Court
the Texas Thomas,
If, to this appellant like entitled ap- supreme court’s
relief even without requiring I see no her
proval, purpose approval. Relief should instead
seek that presently charge
sought person from the duty power and the has both the
who judge. production Appellant
order trial —the production under that. She moved for did 614, just like Thomas did.
Tex.R.Crim.Evid. at n.
837 S.W.2d *3 Russell, Mercy, Atchley, Waldrop,
John R. Hlavinka, Texarkana, appellant. for Budd, Rosenthal, P.C., Brent M. Baron & Dallas, appellees. CORNELIUS, C.J., and BLEIL
Before GRANT, JJ. OPINION GRANT, Justice. Corporation appeals judg- from a Jr., Rogers, favoring
ment Jessie L. Eleanor Lofton, Emma Rogers, Robert L. and Jo Lofton in two consolidated asbestos cases. ISSUES (1) error, points In ten Keene contends presiding judge that the trial District Judicial the First Administrative refusing to recuse their discretion abused (2) the trial court erred judge, to recuse to the quently referred the motion including of the term in not a definition (3) First Administrative jury charge, Presiding Judge that the “exposure” in the jury im- it. Keene giving who also denied trial court erred Judicial District (4) cause,” “proximate the motion to recuse when proper definition of later resurrected jury giving grant Judge that the trial court erred Brown to asked “unreasonably improper collecting dan- definition to aid them turnover relief (5) gerous,” the trial court erred premised judgment agаinst Keene. testimony first, admitting evidence the of one theory into the same this motion on expert videotaped deposition of an- and the presiding judge overruled it as well. and the other, that the trial court erred judgment trial court entered based reports proper au- admitting certain without plaintiffs. jury verdict for five thentication. *4 judgment for the appeals only the judgment affirm the of the trial court. We jury Rogerses the Loftons. The award- and Rogerses the Loftons damages to the ed FACTS crediting After for a combined million. $1.8 Rogers worked as a boilermaker Jessie against figure the amounts received this 1950s, 60s, helper during the and insulator through settlement with the other defen- shipyards in several Alabama 70s dants, judgment entered for the trial court as- plants. industrial He now suffers from $780,- appellees in the combined sum of bestosis, lung nonmalignant scarring a by exposure to asbestos. Robert Lof- caused Mobile, longshoreman ton in the worked as RECUSAL Alabama, shipyards from 1958 until 1989. first contends that trial mesothelioma, He now suffers from a fatal judge presiding judge of the adminis and the lung cancer of the associated with asbestos overruling judicial district erred in trative exposure. Corpora- Both men sued Keene motions for recusal. Keene takes two part original- tion as of a consolidated lawsuit Judge position that because Brown’s son- ly involving plaintiffs ten and seven defen- for the firm worked as an associate in-law Rogers alleged Both and Lofton dants. judge trial representing plaintiffs, occupa- their current maladies from resulted recusing himself abused his discretion not exposure products, tional to asbestos includ- judge presiding and the abused his discretion ing products Rog- made Keene. Eleanor upholding judge’s trial decision. joined ers and Jo Emma Lofton the lawsuit seeking compensation for loss of consortium. contend that both trial, During the course of the all of the untimely un recuse were Keene’s motions to except defendants for Keene settled with the requires such motions to der Rule 18a that trial, plaintiffs. plaintiffs At offered days the date least ten before “[a]t be filed proof that the hazards of asbestos had been hearing.” Tex.R.Civ.P. set for trial or other and that the hazards known since 1930s requirement placed in ten-day 18a. The pro- were knowable to Keene at the time it having party wait until the rule to avoid allegedly products. culpable duced the This thus minute to file such a motion and last proof consisted of testimonial and documen- of a trial. This disrupt the commencement tary relating evidence to the hazards of as- not ten-day requirement of Rule 18a does bestos. party contemplate the situation which 17, 1991, of the recusal until of this cannot know the basis September
On the trial Budd, longer timely. is no after a motion for recusal began. cause On October Baron & Production Co. v. representing Rog- Exploration and the law firm Lofton and See Sun (Tex.1989) ers, son-in-law, Jackson, 206 Judge hired 783 S.W.2d Joe Brown’s J., (Spears, concurring). See also Sam Andy October Keene Waters. On moved Sparks, Recusal: Rule 18A—Sub Judge Brown to recuse himself based on Judicial Procedure, 723 12 St. L.J. development, this new and the trial court stance or Mary’s (1981). during trial An incident that occurs denied the motion. The trial court subse- 172 (1978) significance (judge’s in the
may take on due to the son was associate added defendant); very timing present representing its occurrence. law firm Wil case, although Keene made its motion almost mington Towing Towing Cape Co. v. Fear trial, sought Co., (E.D.N.C.1986) weeks into the two motion F.Supp. relationship on recusal based between the tentatively (judge’s accepted employ son had counsel, appellees’ judge and which did not representing party); ment with firm Diversi day until the exist before filed the Inc., foods, Diversifoods, F.Supp. Inc. v. timely filed Although motion. not under the (N.D.Ill.1984) (judge’s husband worked rule, good filing existed for the late cause defendant, representing for firm but he did of the motion recuse did because basis case). lawyer pending See not act as a began. at not exist the time also, Administration, Texas CouRT Office of Relating To parts Keene based its motion two Service Provisions Judicial 18b, the substantive rule on re- Retirement Tex.R.Civ.P. Judicial Judicial Conduct appeal (judge disqualified from conduct cusals. On from denial of motion, reviewing may recusal re- of a a trial his son is a member trial if the pro verse the court’s decision participating law firm which trial court its discretion. abused ceeding). Keene has failеd to show Tex. 18a(f). 18b(2)(a) Rule R.CrvP. states Judge on this Brown’s son-in-law worked any pro- shall himself in recuse “[a] fact, case, and, unlikely this would be *5 ceeding impartiality might in which his rea- not until two given that the firm did hire him 18b(2)(f)(ii) sonably questioned.” Rule re- be weeks the trial. into quires judge judge if the recusal of a or judge lawyer-relative of the The fact that a judge’s spouse anyone or within the third firm in a participating is a law affiliated with them, degree relationship of of to either or provide itself reasonable trial does not of a spouse person by of “is such known impartiality. questioning judge’s basis for judge to have an interest that could be sub- on an ad Each situation has be determined stantially by the of the affected outcome basis, considering such as wheth- hoc factors proceeding.” contends that the fact of lawyer-relative er and extent the to what appel- represented that Baron & Budd in case and judge participating is contingency on a fee basis indicates that lees lawyer-relative whether the will be substan- judge’s son-in-law had a substantial stake proceed- tially by the outcome of the affeсted and, therefore, case in the outcome of this case, showing ing. present In there is no Judge Brown have himself should recused any by lawyer-relative; participation 18b(2)(a) rule from the case either under showing lawyer-relative there no that the is 18b(2)(f)(ii).1 rule substantially by outcome will be affected son-in-law, however, Judge Brown’s is no other proceeding; and there are such, and, he no associate owns salaried re- significant factors that militate toward has no finan interest firm and direct quiring a recusal. in interest outcome. Several federal cial reflect summary, the record does not equivalent federal courts have examined the anyone related to Judge that Brown knew 18b(2) have found that a trial to Rule and degree of spouse him or within the third his employee judge’s relationship of a law had an that could relationship who interest appearing disquali does not firm in his court substantially by affected the outcome actually relative fy the unless the cases, judge’s impartiality these nor that the 455(a), § on the 28 U.S.C.A. works case. See (iii) questioned under these (West could (b)(5)(ii), Supp.1993); United Judge Inc., Brown did facts. find Weinberger Equifax, rel. v. We ex States (5th refusing Cir.1977), denied, in to recuse abuse his discretion cert. 434 F.2d 456 557 18b(2)(a) 768, Rule or Rule 1035, either 54 782 himself under 98 L.Ed.2d U.S. S.Ct. none, record, part and we found Judge engaged have alleges 1. Keene also Brown indicating Since appellees' that such contact occurred. parte with the in ex communications trial, by supported rec- allegations are not during demonstrating thus Keene’s ord, counsel appeal. consider on shall not them impartiality. does not cite to we lack of
173
18b(2)(f)(ii),
job
at a time
judge,
Proof that he worked at a
site
presiding
and
sold,
asbestos-containing product
motions,
when an
did not abuse his
who heard the
marketed,
by
or manufactured
a Defen-
denying
motions.
the recusal
discretion
present
being used on the
dant was
point
overrule this
of error.
We therefore
itself,
insufficient, in
job
and of
site is
proof in this case.
meet his burden of
EXPOSURE
point
insisting upon
this defini
Keene’s
that the trial court
Keene next contends
reg
concepts
“frequency,
tion
rooted
“expo
refusing
to define the word
erred
argues that
ularity,
proximity.” Keene
and, specifically,
charge
used in the
sure” as
plaintiff
concepts
these
must be tied
utilizing
tendered
in not
the definition
or she re
exposure
to the kind of
that he
Trial
have considerable dis
Keene.
courts
Citing,
product.
ceived to the defendant’s
submitting explanatory
cretion in
instruc
Pittsburgh Corning Corp., 782
Lohrmann v.
jury.
Fibreboard
tions and definitions
(4th Cir.1986).
1156,
The court
F.2d
1163
Pool,
658,
(Tex.App.
Corp.
v.
S.W.2d
support
that: “To
a rea
Lohrmann stated
denied).
1991,
-Texarkana
writ
The failure of
causation
sonable inference
substantial
requesting an instruction to tender it
party
evidence, there must be
from circumstantial
substantially
appellate
correct form bars
exposure
specific product
to a
evidence of
Placencio v. Allied Industrial Inter
review.
period
regular
over some extended
basis
(Tex.1987).
national,
Fur
causе natural event, sequence, produces an and without PROXIMATE CAUSE not have cause such which event next that the trial contends than one may There be more occurred. giving jury definition of court erred cause of In order proximate an event. cause, cause which omitted the foresee proximate proximate act or omission be a urged ability person two element. The must that a complained of be such court, liability one using ordinary in the trial have foreseen theories care would event, event, negligence the other based on on some similar based charge, liability. Question might Two result therefrom. strict asked, dealing negligence, “Was with erred contends that the trial court any, negligence, if Defendants with foreseeability, failing jury to instruct Plaintiffs De respect to the Plaintiff and/or proximate element cause. an essential cause of proximate cedent listed below a argues substantive Keene first that Texas injury to those Plaintiffs asbestos-related issue govern the of this law should resolution Four, Question Plaintiffs Decedent?” and/or law, being Alabama opposed Alabаma asked, dealing liability, strict “Was to Keene’s exposure state where unreasonably dangerous proxi condition dispute not products occurred. Keene does injury any Plaintiffs cause of mate the case Alabama law should control Plaintiffs listed below?” Decedents and/or appel- it that since the general but contends charge “proximate defined cause” prove and court did did not lees way: following any law on this judicially notice Alabama issue, presumed to be Alabama law should be means that “PROXIMATE CAUSE” Citing, as Texas Creavin the same law. probable natural and cause which (Tex.App.- Moloney, 773 S.W.2d events, inter- sequence of without the denied). Corpus Christi writ independent cause vention of new or injury and without which produces case, thought it the court In the Creavin injury have occurred. such would not no the trial court itself took relevant proximate may be more than one There Pennsylvania motion law on its own notice *7 negligence of two cause of an event. The offer parties fact that did not beyond the the combine parties may more concur and оr any proof of the law in that state. injuries. con- proximately cause Causes case, present response attorneys in the they join together combine judge, agreed cur and when inquiry by the trial negli- produce given If one is applied result. to the case. substantive Alabama law and com- gent negligence charge, and such concurs the trial hearing jury on the At a party following negligence stated, or of another “The Court has been bines with party perceives to this Alabama person who is not a to be the third what the Court produce and the combine to the Alabama submissions.” lawsuit two law and by the given for negligent party is liable cause instruction injury, proximate each language of the Ala- negligence closely tracks the resulting injury the court Jury proximate on Instruction proximate cause bama Pattern be deemed the each will cause.3 injury. (5th indepen- Co., new or Cir. the intervention without Talc 949 F.2d Southern cause, 1991). injury specifically produces and without Slaughter held The court in dent support purely injury evidence can occurred." circumstantial would not have which such case, finding 171-72. present § of causation. Id. at 33.00. In the Civ. A.PJ.I: court's definition sentence trial first prox- Charge Jury defines The Alabama Pattern explains that: proximate cause proximate by explaining "The imate cause that: " that cause means ‘PROXIMATE CAUSE’ in the injury cause which of an is that cause events, sequence of probable natural and which in the probable sequence natural Supreme approved The Alabama UNREASONABLY DANGEROUS Court Jury by Alabama Pattern Instructions trial contends that Keene next April order dated 1973. The Alabama defining “unreasonably dan court erred in Supreme expressly approved has Court also failing gerous” and in to substitute Keene’s in pattern proximate the use of the cause Question Number tendered definition. pres in the struction used court charge asked “At the time the Three Edwards, Corp. marketed, ent case. General Motors sold, products were and/or and/or (Ala.1985). 1176, 1193-96 Foresee distributed, asbestos-containing 482 So.2d were ability specifically is not mentioned Defendants to products manufactured proximate Alabama definition of cause but is the Plaintiffs Plaintiffs Dece which and/or unreasonably danger implicit phrase probable exposed, were “natural and dents charge “unreason jury ous?” The defined sequence of events.” ably “dangerous as to an extent dangerous” asserts that should ordinary beyond contemplated by the proved have Alabama law was on the what objected to the court’s consumer.”4 so, subject they do and because failed to following a sub definition and offered the presumed trial court should have Alabama stitute: to be the same as Texas law law. Such places goods If a manufacturer seller presumption is not mentioned under Rule dangerous put the market which are when Evidence, 202 of the Texas Rules of but has purpose to their intended and the manu- been set forth Texas case law. See Creav facturer or seller knows or Maloney, 773 The record in v. S.W.2d 698. goods dangerous should know that the are party in does not reflect that either manner, customary used their when present requested case the court to take duty to or seller is under a manufacturer judicial Although notice of the Alabama law. give adеquate warnings and instructions specifically that it the trial court did not state dangerous condition. respect with to such law, judicial taking notice of Alabama was give adequate warnings and in- Failure to it the court effect announced that was under these circumstances ren- structions applying specifically Alabama law and stated goods unreasonably dangerous. ders the using that it Alabama submissions in the was only way that the Keene contends that the jury charge. find that this sufficient We asbestos-containing products in this ease parties notice to the that the court was tak unreasonably dangerous under a could be judicial notice of Alabama law. When a liability theory if manufacturer strict court on its motion seeks out the own law dangerous condition. failed to warn of state, necessary party it another is not requested trial that the court hold at provide information con products that the were as a matter of law cerning appropriate law. “unavoidably unsafe” under Restatement (1965). § k A (SECOND) 402A cmt. Torts Furthermore, by object failing to unavoidably unsafe un- product is considered *8 any in аpplication of Alabama law at time the being incapable of comment k when it is der any complaint proceeding, Keene waived use, ordinary intended for its and made safe law. about the trial court’s use of Alabama outweigh the of its use so but the benefits basing a manu- court not err in its courts should not hold The trial did hazards that long strictly so as the proximate cause instruction on the Alabama facturer or seller liable gives proper warn- point or seller pattern jury charge. overrule this manufacturer We product k states that such a ings.5 Comment of error. ordinary events, contemplated the of which would and without the intervention cause, injury independent produces the new or consumer.” injury which not have and without occurred.” such prod- example of such k uses as 5. Comment rabies, can cause which itself the vaccine for ucts § 402A cmt. i 4. Restatement of Torts (Second) damage injected, which is the when but serious products unreasonably dangerous defines deadly way the disease. only to cure known beyond “dangerous that to an extent as those 176 defective, may unreаsonably containing as ‘una- “is not nor is it dan- asbestos be viewed ” Instead,
gerous.” voidably the manufacture and sale 493 unsafe.’ F.2d at 1088. unavoidably products is language holding of unsafe reasonable as that asbestos- reads this risk, despite long unavoidably the so as the manufacturer per are containing products se properly or "seller warns consumers. unsafe comment k. better inter- under But a pretation suggests language law, Under Alabama the issue whether products may courts to be una- find asbestos unavoidably assump product is unsafe is an Insula- voidably unsafe in individual cases. risk tion of the affirmative defense. Atkins containing per products tion are not asbestos Corp., 335 v. American Motors So.2d unavoidably se unsafe. (Ala.1976). plead 143 The defendant must defense, such a and the defendant bears the refusing The did not to trial court err proof present the issue. the burden jury proposed submit Keene’s defini- to risk, case, pleaded assumption unreasonably dangerous. over- tion of We request but the trial court refused Keene’s to point rule of error. this unavoidably products treat the asbestos as products unsafe and instead dealt with the POINTS EVIDENTIARY unreasonably dangerous as manufactured. the trial Keene contends in fail Keene contends that the erred admitting court erred into evidence give unavoidably unsafe to instruction expert testimony Wagoner. Dr. Joseph appellees’ pleadings because raised rulings Appellate should reverse courts failure issue of to warn because expert testimony regarding when Appeals Fifth has federal Circuit Court court abuses its discretion. Southwestern containing that “insulation materials stated Sims, Bell Tel. S.W.2d Co. may ‘unavoidably un asbestos be viewed as ” 1981, no (Tex.Civ.App.-Houston [1st Dist.] Paper Borel v. Fibreboard Products safe.’ writ). epidemiologist, Wagoner, an testified (5th Cir.1973), Corp., 493 cert. F.2d study that in did a of the medical 1969 he denied, 127, 42 95 S.Ct. U.S. regarding which he literature asbestos from (1974). L.Ed.2d 107 manufacturers of asbestos- concluded that appellees pleaded asbestos be containing products should have known dangerous unreasonably products were both product cause fore use of the could 1964 that condition of the because of defective illness. of а failure to warn. products However, by to raising the failure warn issue appellees’ asked for counsel When pleadings, did not nec- their asbestos Wagoner’s opinion as whether essarily products una- admit that the were unreasonably dangerous, coun products are unsafe, voidably as Keene contends. objected that sel for the defendants one of appellees’ petition raises the failure to warn question legal for a conclusion.6 called regard marketing a claim of de- issue may offer an Although expert witness fects, any unavoidably un- relation to fact, opinion question on a mixed of law Therefore, appellees’ plead- claim. safe expert provided proper must be with judicially that Keene’s ings do not admit analyze legal concepts the facts. Birch unavoidably products should treated as Hospital, 747 v. Texarkana Memorial field unsafe. (Tex.1987). The defendant’s S.W.2d objection
Moreover, erroneous because it failed puts emphasis on undue Borel, problem apprise trial court opinion in Fifth which Circuit’s *9 to question. Wagoner qualified Dr. “insulation materials the court stated that Honor, legal object. for a attorney Owens-Corning I This calls representing Fi- Your An testify- Wagoner have actually objection, We now Dr. berglas Corporation conclusion. made pathology, pulmonology, ing epidemiology, objection parties agreed at trial that an but the right thing warnings, doing the count and by any benefitted all of the fiber defendant in the case dangerous unreasonably products. I ob- objected appel- to defendants. Defense counsel being expert ject Wagoner as the question by used “unreasonably dangerous” to Dr. stat- lees' seasons. ing: all 177 testimony the former as admissible under question prop if the had question answer the 804(b)(1) in objection exception contained Rule proper hearsay A erly framed the issue. Rule Rules of Evidence. pointed appellees out that of the Texas would have (1) 804(b)(1) party against proper pred requires that the supply Wagoner failed to with a offered, testimony person a response. E is or icate on which to base his See whom interest, Stores, oрportunity had an Terry, v. 63 with a similar Z Mart Inc. S.W.2d denied). 1990, wit- motive to cross-examine the (Tex.App.-Texarkana writ and similar unavailable point ness and that the declarant is This of error is overruled. party at- testify in in which a to the case next contends that testimony. tempts to offer his or her depo admitting videotaped in court erred such of Dr. Thomas Mancuso because sition 804(a), witness is Rule Under hearsay. trial inadmissible The evidence was unavailable, things, among other considered only if overturned ruling court’s should be due cannot attend the trial when the witness trial court abused its discretion. Otero- offering party to death or illness. The (Tex. State, 352, Miranda v. S.W.2d hearsay exception must under a statement 'd) 1988, (interpreting App.-Amarillo writ ref unavailability prove of the declarant. hearsay exception in Texas Rules an identical (Tex. White, 860, 862 v. 525 S.W.2d Hall Evidence). of Criminal 1975). Texas, unavailability In of witness dead, has means that the witness is become 1960s, Mancuso, During the Dr. insane, testify, be physically unable to is medicine, specialist in industrial made sever court, yond jurisdiction or that the reports Phillip Carey Manufacturing al to the of the witness is unknown whereabouts Company regarding problems health associ find diligent search has been made to using products contain ated with insulation witness, has been or that the witness reports, In asbestos. Dr. Mancuso away by the adverse kept from the trial developing safety procedures recommended Hall, at 862. party. 525 S.W.2d protect people working with asbestos gave a products. Dr. Mancuso stated, trial, appellees’ counsel “We At videotaped deposition Mississippi in for use past get Dr. attempted on cases to have litigation present unconnected my And it’s Thomas Mancuso to come live. deposition, In that Dr. Mancuso as case. understanding eighties man is in his that the Phillip Carey implemented serted that never health to that he has refused because of safety proposed.7 measures that he The appellees appear live trial before.” appellees deposition pres offered prove Mancuso’s nothing offered more to to demonstrate that the hazards of ent case unavailability. an attor Mere comments generally were knowable to those asbestos proof declarant’s ney not sufficient of a are industry at the time the defen the asbestos Corp., unavailability. v. Exxon Garza produced products question. dants Antonio (Tex.Civ.App.-San S.W.2d Pool, Corp. at See Fibreboard 813 S.W.2d writ). Even if counsel’s statement no 667, 669. true, the fact that Maneu- had been taken as previous trials due objected has failed to attend deposition as hear- so necessarily mean that his deposition ill health does not say. defended the industry generally sug- known in the points appellees’ show what was out that counsel 7. Keene that, gested closing argument since Keene those involved could have been known Phillip Carey in the conducted business with industry. Under Tex.R.Civ.Evid. past, have known of Keene either knew or should requested evidence admit- that this could have Dr. Mancuso the hazards of asbestos because purpose and asked for an limited ted for this Phillip Carey of hazards. Keene informed suggests those not be considered for so that it could instruction appellees’ coun- that with this statement request Having purpose. fаiled to this other that, jury implicitly believe sel Phillip Carey led the complain restriction,. that the Keene cannot now safety implement precau- did not might for some have been considered evidence products, producing neither did tions in asbestos it was intro- purpose that for which other than guilt-by-association Keene. Keene calls this a duced. argument. type This evidence was admissible *10 Mancuso, by physical presently pre- report ailment continues and another written and the attending vents him trial. from court it over ob- admitted Keene’s renewed jection. report ap- The second discusses an however, appellees, The that contend parent association asbes- irrefutable between Keene itself convinced the court to utilize a tos and cancer. testimony liberal standard of former admissi bility argued admitting when it in favor of appellees that Keene contend The deposition Miles Wilson’s under the same timely object did not the au to document’s hearsay exception because Wilson was unable objection only thenticity because the came being nearly ninety to attend trial due to after trial court admitted into the the exhibit years old. appellees The cite one case v. evidence. See Atlantic Co. Richfield proposition goose for the for that “sauce Products, Inc., 414, Misty 820 S.W.2d Hooper for gander.” is sauce v. Court 1991, (Tex.App.-Houston writ de [14th Dist.] ney, (Tex.Civ.App.- 256 S.W.2d nied). appellees offered the first docu When writ). Amarillo no We decline to follow ment, objected ground Keene goose Hooper law set forth published reports since not or dis were using hearsay one of to erroneous admission Carey Compa tributed of the Phillip outside purpose cancel out be another defeats ny, they not be used evidence that could as hearsay. hearsay hind the rule on The rule should of of the haz knew or known keep alleged is intended to out statements of properly ards asbestos. The trial court fact, the value rests on the of which credibili objection v. overruled this under Fibreboard ty of an out-of-court declarant. Edwaed W. Pool, 813 at 667. The trial court S.W.2d Cleary, § 246 McCormioK on Evidence evidence, then admitted the documents into (1972). A trial court cannot cure the admis requested to permission but Keene’s counsel hearsay by admitting hearsay sion of more objection. authenticity add an Because the Furthermore, opposing party. for the objection trial court allowed this additional object appellees properly failed to to the argu authenticity Keene’s considered deposition, failing preserve thus to Wilson ment, timely objected. we find that by error the trial court in admit made deposition. ting the Such curative rule 901(b)(1) Rule for authentication allows difficult, job jury’s make more knowledge the exhibit is witness with The in admitting easier. trial court erred object- purports what it to be. When Keene videotaped deposition of Dr. Mancuso. documents, authenticity to ed these point sustain of error. We this appellees responded as follows: Lastly, Keene contends that the trial Honor, agree Your I offer for and will in admitting court erred into evidence Dr. purposes deposition record report by Dr. unsigned Mancuso and written Mancuso, Thomas medical consultant Carey presented Phillip to Manufactur [sic], Philip prove authenticity, Carry Company. report, allegedly written purports what it to be. And that was perceived Mancuso in discusses deposition there of Dr. Thomas Man- exposure connection between asbestos up authenticity of this proves cuso that report certain forms cancer. The also offer, I than document. And will rather part of reflects a reluctance on the the asbes document, por- I pick the whole will out industry recognize tos the connection. just prove up docu- tions these two report appellees proof offered this way. I to do it this Would it ments. wish industry have what knew should right? be all known about the hazards asbestos in the Pool, Corp. early 1960s. See Fibreboard attempted appellees to introduce When the at 813 S.W.2d objec- report, Keene its the second renewed tion, again it. trial court overruled objected unsigned and the report on Later, case, the trial rebuttal ground proper that it lacked authentica- videotaped de- improperly admitted the tion under 901 of the Texas Rules of Rule objection. position hearsay Keene’s appellees also offered over Civil Evidence. The *11 industry discussing deposition volved the asbestos contends that Mancuso’s A to asbestos. let- report physical ailments related not authenticate the because could at the trade inadmissibility deposition itself. ter dated 1935 from someone Corp., F.2d manufac- magazine Dartez v. Fibreboard “Asbestos” to an asbestos See (5th Cir.1985) (an magazine agreed admitted improperly turer indicates that the had exhibit; anything regarding authenticate an asbestosis deposition publish cannot not to rule). applying request federal of a manufacturer. Another an identical at the hearsay objection letter, attorney not make a to the from an did also dated manufacturer, proposed deposition representing at the time it was as an indi- an asbestos for the documents. Our inter- authentication cates that the editors of “Asbestos” should record, however, pretation only is that the the North American data warned to use deposition finally rеport at that as- magazine Mancuso was not offered did when time, representation bestosis, England made to the but a was the data from greater it would be offered and that it hazard from court that South Africa showed authenticity docu- American prove up the asbestos dust than did the North Therefore, preserved ments. its ob- A to a director of research for data. letter that, jection hearsay deposition by suggests mak- manufacturer asbestos appellees actually attempting the time the at- using it at asbestos itself in to make asbestos, tempted play deposition synthetic the video for the the manufacturer had jury. A ingredients court and The trial court erred hazard.” “the first class admitting the documents into evidence. doctor to a manufactur- letter from medical points These of error are sustained. that all er of dated 1943 indicates asbestos guinea pigs exposed to asbestos dust for over question The becomes whether now thirty developed months unmistakable evi- the errors committed the trial court in appellees intro- dence of The asbestosis. admitting dеposition Dr. Mancuso’s and the testimony Wagoner, duced the of Dr. reports allegedly by him two written amount letters, and more let- above detailed several rights to such a denial of Keene’s as was to demonstrate that the ters and memoranda reasonably probably calculated to cause and gener- exposure hazards of to asbestos were improper judg did cause the rendition of an ally industry knowable to those Tex.R.App.P. 81(b)(1). ment. 1960s. erroneously offered this admitted evidence to demonstrate hazards asbestos of evidence The erroneous admission industry to the were knowable asbestos merely properly cumulative of admit that is However, deposition the 1960s. and the Liberty testimony ted is harmless. Gee reports part profu were one of vast Co., 765 S.W.2d Mut. Fire Ins. documentary sion of and testimonial evidence (Tex.1989). by the The errors committed purpose. elicited for the same That evidence admitting deposi Dr. Mancuso’s trial court in testimony Wagoner, Dr. for included the reports were therefore tion and his two merly epidemiologist the Public harmless, mere given that this еvidence was testimony, Wagoner In his Health Service. ly of other evidence offered cumulative knowledge advancement of re discussed the industry knowledge. The errone establish dating garding the hazards of asbestos back therefore did ous admission of evidence that manu to the late 1800s. He concluded rights as a denial of Keene’s amount to such asbestos-containing products facturers of to cause the rendi calculated before 1964 that use of should have known Tex.R.App.P. judgment. improper of an tion Wagoner’s product could cause illness. 81(b)(1). testimony pages in the amounted to over 150 Appellees’ counsel also statement of facts. judgment the trial court is affirmed. qualifications emphasized Wagoner’s and tes timony jury during closing argument. C.J., CORNELIUS, result. concurs of letters Other evidence included a series BLEIL, Dissenting Opinion by J. people in- and memoranda between various *12 courts, skepticism integrity breed FOR REHEARING of the ON MOTION mistrust, principles the and and thwart on BLEIL, Justice, dissenting. judicial system is which the based. Sun majority’s Originally, I concurred with the Jackson, Exploration Prod. Co. v. 783 and judgment. (Tex.1989) 202, J., decision to affirm court’s (Spears, S.W.2d 206 consideration, Upon I further have concluded concurring). Therefore, join in the
that I cannot
decision.
step
further
today
This court
takes a
to-
I dissent.
recognizing
significance
the
main-
ward
judicial system
taining
integrity
disagreement
majority’s
deci-
My
with
good
recognizing
of a
the existence
cause
portion
sion
the RECUSAL
concerns
filing
exception
late
of a motion
to allow the
specifically
portion per-
opinion,
court’s
to recuse in instances which
basis for
18b(2)(a),
pro-
taining to Tex.R.Civ.P.
which
untimely.
agree
I
the motion
with and
arises
judge to be
his
vides for a
recused when
applaud
recognition
the law
that
must
reasonably
impartiality might
questioned.
be
to
filed late when
allow motion to recuse
be
judiciary
give
The
must strive not
to
grounds
diligence
due
arise late or with
parties
all
a fair trial but also to maintain a
are discovered late.
high
public
trust and confidence.
level
agree
majority that
I
trial
with
McGee,
412,
Indemnity
Tex.
Ins. Co. v.
163
disqualified
judge
legally
in this case was not
(1962).
666,
356
668
Sometimes the
S.W.2d
job
his
took a
with a law
son-in-law
himself,
judge may need to recuse
or be
firm
in the trial. The
pаrticipating
that was
recused,
though he has
bias
even
no actual
majori-
my disagreement
reason for
very
weigh
and
his
best to
would do
ty
simple:
judge’s
I
that when a
is
believe
justice equally
contending
between
scales of
a law firm
son-in-law is associated with
which
Jerrico, Inc.,
parties.
446
Marshall v.
See
judge,-
that
participating
is
in a case before
243,
238,
1610, 1613, 64
U.S.
100 S.Ct.
might
judge’s impartiality
then that
reason-
(1980).
problem
is that
L.Ed.2d 182
majority
ably
questioned.8 The
errone-
be
have not served on the
are
people who
bench
question
this
ously bases its resolution of
willing
indulge suspicions
often
too
all
litiga-
showing
no
financial interest
concerning
integrity
judges.
doubts
showing
participation
tion and no
of active
Acquisition Corp.,
Liljeberg v. Health Serv.
appearance
the trial.
to consider the
It fails
864-65, 108
2194, 2204-05,
847,
486
S.Ct.
U.S.
partiality
might
given.
It fails to
that
be
(1988).
appear impartial (1) so no doubts essentially that the son-in-law gives it are suspicions exist as to the fairness or in the litiga- interest has no direct financial Aetna Co. integrity outcome, of the court. Ins. several federal courts tion’s Life Lavoie, equivalent U.S. S.Ct. “federal have examined the (1986). 18(b)(2)” ren- found that a trial Judicial decisions and have L.Ed.2d Rule employee of suggest judge’s relationship to an a law circumstances that dered under require not bias, appearing in the case does firm prejudice or favoritism undermine asked, neg- respond people, would hypothetical most if this 8. Consideration of a illuminates court, wanting that situa- you ative. Their reasons for you want issue: If had а case would probably a concern that the include judge’s work firm tion son-in-law to for the law might say partial. handling side of the suit? I dare the other 18b(l) 18b(2)(e), under or recusal actually on Texas Rule relative works unless the recusal (f), reason fails. (g). This the case. 18b(2),”- Rule equivalent to The “federal simply not valid when are
These reasons reason likewise with-supporting-federal-cases rea- closely The first they are scrutinized. scrutiny. The fact is that interest, son, patently cannot bear financial no direct 18b(2)(a) recu- disqualification and might Texas rule covers (impartiality not relevant to *13 And, only sal, rule covers the federal reasonably questioned) inquiries. whereas be proce- courts a disqualification.9 Texas discussing disqualification under are not we to inform himself effort for Dis- make a reasonable 18b is entitled "Grounds 9. TexR.Civ.P. Judges.” pro- personal financial interests of his qualification It about the and Recusal of residing in his spouse children and minor vides: household. (1) Judges disqualify Disqualification. shall (4) In this rule: proceedings in all in which: themselves trial, (a) pretrial, "proceeding” includes or (a) lawyer they have served as a in the mat- litigation; stages of other lawyer they controversy, ter or a with whom (b) relationship degree calculated the of is during previously practiced law served such matter; according system; civil law to the concerning lawyer as a the association (c) relationships "fiduciary” includes such or trustee, executor, administrator, guard- that, (b) individually as they or as a fidu- know ian; subject ciaiy, they have an interest in the mat- (d) ownership of controversy; "financial interest” means ter in or small, interest, (c) legal equitable however or parties may a or of the be related to either adviser, director, relationship or other by affinity consanguinity the a as them or within party, participant affairs of a degree. active the third (2) except judge that: Recusal. A shall recuse himself (i) ownership or common invest- any proceeding in a mutual in which: (a) impartiality might holds securities is not a "finan- be ment fund that his unless the cial interest" in such securities questioned; (b) management judge participates of the personal prejudice in the he has a bias or con- cerning subject party, pеr- matter or a or fund: the educational, (ii) religious, knowledge disputed evidentiary of facts an office in sonal fraternal, charitable, organization concerning proceeding; or civic is the (c) by lawyer previously interest” in securities held a he not a "financial he or whom organization; practiced a witness con- the law has been material (iii) it; policyhold- proprietary cerning interest of a counsel, deposi- (d) company, of a participated or er in a mutual insurance he as adviser association, savings controversy, or a simi- in a mutual material witness in the matter in tor interest, inter- expressed opinion concerning proprietary is a “financial the merits lar or it, organization only of acting attorney government if the outcome est” in the of while as an service; substantially proceeding affect the could interest; he, (e) individually as a value of the he knows that or (iv) government residing ownership securities is a fiduciary, spouse of minor child or his or in the issuer if interest” has a financial interest in the "financial in his household substantially proceeding party could subject controversy a outcome of the matter in or in securities; proceeding, any affect the value of or other interest that could (v) taxpayer utility or rate- substantially by as a of the an interest affected the outcome interest, any is not a "finan- payer, similar proceeding; or pro- (f) the outcome spouse, person cial interest” unless his or a within he or them, liability substantially ceeding affect degree relationship of could third of to either person within judge related to him spouse person: or a such a or the officer, judges. (i) degree than other party proceeding, the third more a to the or an is (5) director, proceeding may parties waive to a party; or trustee of a fully (ii) disclosed any ground recusal after it is judge is known to have an interest substantially the record. the out- that could be affected (6) he is judge not discover that proceeding; a does If come of (2)(e) subparagraphs or (iii) judge's knowledge likely under to be a recused is to the (2)(f)(iii) devoted substantial until after he has proceeding. material witness in the matter, required to rеcuse is not (g) spouse, person he a within the time he or his or them, person to him related degree relationship if he or to either of or himself first other- acting interest that would spouse person, a divests himself of the is as such require lawyer proceeding. wise recusal. in the clearly not (3) counterpart about his The federal A should inform himself —but (West interests, Supp.1993), § equivalent, U.S.C.A. 455 personal fiduciary financial judge simply he or airing decides whether provided for the motion district means is dural Judiciary disqualified. The federal she is assigned, judge. before an neutral to recuse Rule, § 455 28 U.S.C.A. and Procedure rule, no Under the federal Tex.R.CivP. 18a. (West Supp.1993), not even mention does provided is and the federal procedural means recusal.10 word n adviser, director, relationship or other "Disqualification justice, judge, or is entitled party, participant affairs of a magistrate.” provides: active in the It (a) Any justice, judge, magistrate except or that: (i) disqualify Ownership himself in in a or common in- United States shall mutual impartiality might proceeding rea- securities is not in which his vestment fund that holds sonably questioned. unless interest” in such' securities "financial (b) disqualify management judge participates also himself in He shall fund; following circumstances: educational, personal preju- (ii) religious, bias or Where he has An office in an fraternal, concerning party, personal knowl- organization dice charitable,, or civic *14 evidentiary concerning edge disputed by facts of held not a "financial interest” securities proceeding; the organization; the (2) private practice he served as (iii) Where in policyhold- proprietary a The interest of controversy, lawyer or a law- in the matter in company, deposi- aof er in a mutual insurance practiced yer previously he law association, with whom pro- savings a similar a or tor in lawyer during as a such association interest, served prietary a interest" in the is "financial matter, concerning judge the or the or such pro- organization only of the if the outcome concerning lawyer a witness has been material substantially ceeding affect the value of could it; interest; the (3) governmental Where he has served (iv) Ownership government is a of securities capacity participated employment and in such issuer if the “financial interest” counsel, material witness con- as cerning adviser or substantially proceeding could outcome opin- proceeding expressed or securities; affect the value of particular concerning the merits of the ion (e) magistrate justice, judge, shall ac- No or controversy; case in proceeding cept parties a waiv- to the from he, (4) individually a or as He knows disqualification any ground enumerat- er for of residing fiduciary, spouse his or minor child or (b). ground Where only ed in subsection household, interest in the has a financial his subsection disqualification arises under controversy parly subject or in a matter in (a), provided may accepted it is waiver be any proceeding, other interest that could or by on the record of preceded a full disclosure by substantially the outcome of the affected disqualification. the basis for proceeding; (f) provisions Notwithstanding preceding (5) spouse, person or a within He or his section, magistrate, any justice, judge, of this if them, degreе relationship to either of third of bankruptcy judge to whom a matter has or person: spouse a or the of such assigned disqualified, after sub- been would be officer, (i) party proceeding, a to the or Is judicial devoted to the time has been stantial matter, director, party; or trustee of appearance discov- or (ii) proceeding; acting lawyer in the Is assigned ery, to him or the matter was after (iii) by judge an inter- to have Is known her, individually or as fiducia- that he or she by substantially affected est that could be residing ry, spouse child her or minor or his or proceeding; outcome of the household, a financial interest her has in his or (iv) knowledge likely judge’s to be a to the Is (other party interest that could than an proceeding. material witness outcome), by disqual- substantially affected (c) judge his inform himself about A should judge, justice, required if ification is interests, fiduciary personal and financial spouse bankruptcy judge, or minor magistrate, child, to inform himself a reasonable effort make be, may himself or divests as the case of his personal financial interests about the provides the of thе interest herself residing spouse in his and minor children disqualification. grounds for the household. Procedure Although Rules of Civil (d) the Texas the fol- 10. purposes of this section For the recüsal, first came to recusal now cover lowing phrases have the mean- words or shall 1977, Article by legislative mandate. In courts ing indicated: 200a, trial, Revised Civil Stat- 6 of the Texas (1) pretrial, ap- section "proceeding” includes provision for the review, include a litigation; amended to stages utes was pellate of or other of judges. The substance (2) relationship recusal of district degree is calculated 200a, now found in 6 is system; Article section according civil law Tex § 74.059 (3) relationships 18a and 1988). Tex.Gov’t Code "fiduciary" such includes R.Civ.P. Ann. administrator, trustee, (Vernon Sparks, Recu- executor, Sam Judicial guard- See as ian; Procedure, 12 or St. Rule 18a—Substance sal: (1981). courts The federal Mary’s (4) ownership L.J. means "financial interest” equivalent interest, small, any mandate. such received have not legal equitable however or tioned, re- have been and re- should Although disqualification the terms judges inter- cused. are sometimes used cusal
changeably, use See Wil- such is erroneous. Bruch, Disqual- Kilgarlin &
liam W. Jennifer Judges, 17 St. and Recusal of
ification Maey’s (1986). majority L.J. failing recog-
may by fallen into have error Texas, require-
nize this distinction. disqualifica- procedures governing
ments and separate recusal are and distinct.
tion and disqualifica- system, the federal Id. Within AYCOCK, Appellant, R. Charles § 455. Re- governed 28 U.S.C.A. tion by any appear governed cusal does not to be rule. written Texas, Appellee. STATE counterpart to Rule 18b No. B14-90-00638-CR. The federal “equivalent” simply is not the of that rule.11 Texas, Appeals Court majority fail the federal cases cites And (14th Dist.). Houston In the make its decision sounder. majority, cited the rela federal cases Sept. *15 participation pending liti tive’s active determining a decisive gation was factor automatically disqual
whether was 455(b)(5)(ii) § be
ified under 28 U.S.C.A. lawyer acting
cause a close relative as a proceeding. ex rel. See United States Inc., 456,
Weinberger
Equifax,
F.2d
v.
(5th
denied,
Cir.1977),
434 U.S.
cert.
(1978);
98 S.Ct.
Wilmington Towing Cape Tow Fear Co. (E.D.N.C. Co.,
ing F.Supp.
1986); Diversifoods, Diversifoods, Inc. v.
Inc., (N.D.Ill.1984). F.Supp. 137-38 eases, however, says
None of these judge’s question regarding the
reasonable
impartiality can if the relative arise
actually on the works case. litigation,
During complex the trial of this judge’s trial work at son-in-law started attorney’s fact plaintiffs law firm. This might not on the trial
might or cast doubt Here, as this
judge’s impartiality. as soon learned, attorneys moved to
fact was Keene’s judge, questioning impartiali- his
recuse the this case and
ty. the circumstances of Under state, in hold-
the law of this this court errs judge’s might not impartiality that the questioned. Because reasonably ques-
judge’s impartiality was question reviewing jority’s resolution this appellate a federal 11. If we were disqualify judge’s to law, a federal district refusal sounder. rule the ma- under the federal and federal