Michael Chisholm, et ux Linda Chisholm v. Barry Maron, M.D.--Appeal from 84th District Court of Hutchinson County

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Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2001 » Michael Chisholm, et ux Linda Chisholm v. Barry Maron, M.D.--Appeal from 84th District Court of Hutchinson County

State: Texas

Court: Texas Northern District Court

Docket No: 07-01-00224-CV

Case Date: 12/14/2001

Plaintiff: Margarita Rodriguez and Fernando Rodriguez, d/b/a America Bail Bonds

Defendant: USS of Texas, Inc.--Appeal from County Court at Law No 2 of Smith County

Preview:Tomasa Rivera, Individually and as Representative of
the Estate of Raul Rivera, Deceased; Isaiah Rivera;
Jolene Rivera Rangel; Raul Rivera, Jr.; and Erica J.
Rivera v. Meister Industries, Inc. and Longhorn
Custom Coating, Inc.--Appeal from 161st District Court
of Ector County
Opinion filed May 18, 2006
Opinion filed May 18, 2006
In The
Eleventh Court of Appeals
No. 11-04-00172-CV
TOMASA RIVERA, INDIVIDUALLY AND AS REPRESENTATIVE OF
THE ESTATE OF RAUL RIVERA, DECEASED; ISAIAH RIVERA;
JOLENE RIVERA RANGEL; RAUL RIVERA, JR.;
AND ERICA J. RIVERA, Appellants
V.
MEISTER INDUSTRIES, INC. AND LONGHORN CUSTOM
COATING, INC., Appellees
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. A-111,506
M E M O R A N D U M O P I N I O N
Appellants, Tomasa Rivera, Individually and as Representative of the Estate of Raul Rivera, Deceased; Isaiah Rivera;
Jolene Rivera Rangel; Raul Rivera, Jr.; and Erica J. Rivera (the Riveras) brought this action against appellees, Meister
Industries, Inc. and Longhorn Custom Coating, Inc. (collectively Meister) alleging that, as a result of Meister=s gross
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negligence, Raul Rivera was exposed to dangerous levels of silica dust while working for Meister as a sandblaster. The
Riveras alleged that Rivera contracted silicosis as a result of his exposure to the silica dust and later died from the
disease. After the jury found in favor of the Riveras on their gross negligence claim, the trial court entered a judgment
notwithstanding the verdict in favor of Meister. In this appeal, the Riveras challenge the trial court=s judgment
notwithstanding the verdict. Because there was no evidence that Meister had an actual, subjective awareness of the risk
associated with Rivera=s exposure to silica dust, we affirm the trial court=s judgment. Background Facts
Meister was in the business of cleaning, coating, and painting used oil field equipment and other types of used
equipment. Charlene Meister and her grandson, Billy Meister Jr., owned the company. Charlene and her late husband,
Bill Meister, founded the company in 1969. During the time period relevant to this appeal, Bill ran the company=s
day-to-day operations and Charlene worked as the company=s office manager.
Meister=s employees cleaned the equipment using an abrasive blasting process (often called sandblasting). Meister=s
employees performed the sandblasting process outdoors. The employees used hoses equipped with nozzles to spray
pressurized air and sand at the equipment to be cleaned. The pressurized sand blasted away debris, oil, or whatever was
on the equipment. The sandblasting was a dusty process and blew sand everywhere.
Raul Rivera worked for Meister as a sandblaster for about four years, from August 1977 until April 1978 and from
July 1978 until May 1981. During the time period of Rivera=s employment, Meister=s sandblasters wore non-air
supplied canvas hoods B meaning there was no air line feeding into the hood B as protection from the sand. At times,
the sandblasters also wore dust particle masks to keep from inhaling the sand. In the mid-1980s, Meister began
providing air supplied hoods to its sandblasters.
In 1982, Raul Rivera became ill with breathing difficulties. In 1984, he was diagnosed with silicosis, a lung disease
caused by prolonged inhalation of silica dust. Silicosis is a progressive, incurable, and painful disease. The disease
results in a chronic shortness of breath. Rivera died as a result of respiratory failure due to the silicosis in 2001. He
was forty-nine years old.
The Riveras brought this action against Meister for gross negligence seeking to recover exemplary damages as
permitted by Article XVI, section 26 of the Texas Constitution and Article 8306, section 5 of the former Workers=
Compensation Act.[1] The Riveras alleged that Rivera was exposed to dangerous levels of silica dust as a result of
Meister=s gross negligence in conducting sandblasting operations. At trial, the Riveras contended that Meister=s failure
to provide Rivera with an air supplied hood for use during sandblasting operations constituted gross negligence.
The jury found in favor of the Riveras on their gross negligence claim and awarded exemplary damages in the amount
of $300,000. Meister filed a motion for judgment notwithstanding the verdict based on the following grounds: (1) that
no evidence supported the jury=s finding of gross negligence, (2) that the Riveras could not recover exemplary
damages because they had not obtained a jury finding on actual damages, (3) that the jury awarded an excessive
amount of exemplary damages, (4) that the exemplary damages award was subject to the $200,000 cap set forth in Tex.
Civ. Prac. & Rem. Code Ann. ' 41.008 (Vernon Supp. 2005), and (5) that Meister was entitled to an offset on the
damages for workers= compensation benefits previously paid to the Riveras as a result of Raul Rivera=s death. Meister
also filed a motion to disregard the jury=s gross negligence finding and the jury=s award of exemplary damages. The
trial court rendered a judgment notwithstanding the verdict, stating that there was no evidence of probative force to
sustain the jury=s verdict.
Issues on Appeal
The Riveras present five issues for review. They argue that the trial court=s judgment notwithstanding the verdict
cannot be sustained on any of the grounds stated in Meister=s motion for judgment notwithstanding the verdict.
Standard of Review
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A trial court may disregard a jury finding on a question that has no support in the evidence and may enter a judgment
notwithstanding the verdict if a directed verdict would have been proper. Tex. R. Civ. P. 301. In their first issue, the
Riveras argue that the trial court erred in granting judgment notwithstanding the verdict because the evidence was
legally sufficient to support the jury=s gross negligence finding. The Riveras had the burden to prove their gross
negligence claim against Meister by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code Ann. ' 41.003(a)(3)
(Vernon Supp. 2005). In reviewing the legal sufficiency of the evidentiary support for a finding that must be proved by
clear and convincing evidence, we must consider 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 the finding was true.
Diamond Shamrock Refining Co. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d
607, 627 (Tex. 2004); In re J.F.C., 96 S.W.3d 256, 264-65 (Tex. 2002). When the burden of proof is by clear and
convincing evidence, the evidence is legally insufficient when no reasonable fact-finder could form a firm belief or
conviction that the matter to be proven is true. Diamond Shamrock, 168 S.W.3d at 170; In re J.F.C., 96 S.W.3d at 266.
Gross Negligence
Gross negligence consists of both an objective element and a subjective element. See Lee Lewis Const., Inc. v.
Harrison, 70 S.W.3d 778, 785 (Tex. 2001);Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). To establish
gross negligence, a plaintiff must prove by clear and convincing evidence (1) that, when viewed objectively, the
defendant=s acts or omissions involved an extreme degree of risk, considering the probability and magnitude of the
potential harm to others, and (2) that the defendant had an actual, subjective awareness of the risk involved but
nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem.
Code Ann. ' 41.001(11) (Vernon Supp. 2005). A consideration of the subjective awareness element determines the
outcome of this appeal. The issue is whether the evidence was legally sufficient to prove that, during the period of Raul
Rivera=s employment, Meister had an actual, subjective awareness of the risk posed by exposure to silica dust but
nevertheless proceeded with conscious indifference to Raul Rivera=s rights, safety, or welfare.
The Evidence at Trial
We have reviewed all the evidence, and we summarize the evidence relevant to the determination of the subjective
awareness element below.
Humberto Aguilar=s Testimony
Aguilar testified that he worked for Meister from 1977 until 1992. He began his employment at Meister as a
sandblaster, and he sandblasted for one year. Meister did not provide him with any training to become a sandblaster.
When Aguilar began his employment, Raul Rivera was working for Meister as a sandblaster. At that time, Meister=s
sandblasters wore non-air supplied canvas hoods when sandblasting. The canvas hoods had a piece of glass in the front
to look through and some air holes on the side. He was instructed to wear a hood for protection from the sand. Aguilar
believes that the sandblasters were using the canvas hoods so that the sand would not hit their eyes. He said that sand
goes everywhere and piles up during sandblasting. Aguilar sometimes wore a paper mask to keep sand from going into
his mouth. Meister=s sandblasters never used air supplied hoods during the time period that Rivera worked for Meister.
Aguilar became a coater at Meister, but occasionally went back to sandblasting. Starting in about 1986, he wore an air
supplied hood while sandblasting. Aguilar said that the air supplied hoods were red and had an air hose attached to
them. Nobody at Meister ever told him that sand could cause a disease. Meister began to have safety meetings in about
1986. Aguilar did not know whether Meister knew that the sand could hurt the employees.
Joe Calvin Redd=s Testimony
Redd testified that he went to work for Meister as a sandblaster in 1982, after Raul Rivera had left his employment
with Meister. He said that Meister sandblasted manifolds and fittings, using sand as the abrasive for blasting. When
Redd first started as a sandblaster, he wore a non-air supplied canvas hood, the same equipment worn by all of
Meister=s sandblasters. Redd also wore a dust particle mask on occasion to protect himself from the sand. The dust
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particle mask had two yellow bands, and it covered the mouth and nose. In about 1984, Meister began providing air
supplied hoods to its sandblasters. Meister did not have regularly conducted safety meetings until after Redd had
worked for Meister for some time. To his recollection, in 1982, Meister did not conduct any air monitoring to
determine the concentrations of dust in the air. When he started at Meister, no one warned him that dust could be bad
for him. Redd heard the word silicosis for the first time in about 1984. Bill Meister never mentioned silicosis to Redd,
and Redd has no recollection about whether Bill Meister knew about silicosis.
Charlene Meister=s Testimony
Charlene Meister testified that she and her late husband, Bill, started Meister in 1969. Charlene is currently the
president and an owner of Meister. Meister primarily handles oil field equipment. Before the equipment can be coated
and painted, the equipment is cleaned by sandblasting, a process that is performed outdoors. The sandblasters use an air
pressure hose with a nozzle attached to it. During the blasting process, the sand cleans off debris that is on the
equipment. Charlene thought that her husband, Bill, was an expert in the sandblasting field.
Raul Rivera worked for Meister as a sandblaster from 1977 through 1981. During that period, Meister=s sandblasters
wore non-air supplied hoods. They also wore white masks with yellow bands. Charlene testified that Bill was in charge
of keeping up with regulations and safety equipment. Bill was always aware of safety and admonished the employees
to be safe. Charlene said that Bill might have warned Rivera that breathing silica dust was dangerous. Charlene said
that Meister changed to air supplied hoods some time in the late-1980s when companies started manufacturing them.
Charlene said that she was surprised to hear that air fed hoods have been around since the 1920s. Meister did not have
formal safety meetings when Rivera worked for Meister. Meister began to have safety meetings in the late-1980s.
Dr. Vernon Eugene Rose=s Testimony
Dr. Rose testified that he is board certified in industrial hygiene and a certified safety specialist. Industrial hygiene
involves recognition, evaluation, and control of health and safety hazards in the workplace. Dr. Rose testified in detail
about the hazards of exposure to silica dust. The risk of overexposure to silica is developing silicosis and other
diseases.
Dr. Rose said that the silicosis problem received national attention back in the 1930s. The Occupational Health and
Safety Administration (OSHA) was set up in 1971 to enact and enforce safety and health issues in the workplace. In
the 1970s, OSHA and the National Institute for Occupational Safety Health (NIOSH) investigated silicosis and other
diseases that do not show up in a person=s body until many years after the person has been exposed to the cause of the
disease. Dr. Rose explained that silica dust is generated when sand is used during abrasive blasting operations. Silica
dust is a small particle dust that has no warning properties. Silica dust is invisible to the naked eye, and it has no smell
or taste. On the other hand, large particle dust has warning properties. A person can see large particle dust or can feel it
if it gets into the person=s eyes or nose. Small particles of silica dust stay suspended in the air and may be inhaled into
the lungs. Because silica dust has no warning properties, a person may inhale it and not even know it.
Because of the hazards associated with silica dust exposure, OSHA passed regulations relating to abrasive blasting in
1971. The regulations require the use of air supplied hoods for employees holding the nozzle of the air pressure hose
during blasting operations. Dr. Rose testified that Meister was subject to the OSHA rules and regulations. Dr. Rose said
that, in 1969, the American National Safety Institute (ANSI) published a standard recommending that sandblasters
wear an air supplied hood during blasting operations. In 1974, NIOSH recommended that sand be banned for use in
sandblasting operations. However, if sand were used, NIOSH recommended that air supplied hoods be used for
sandblasting. Dr. Rose testified that air supplied hoods have been around since at least 1922.
Dr. Rose said that, during the 1970s, employers with questions about abrasive blasting respiratory protection could
have contacted OSHA, safety supply companies, or sand manufacturers. In the 1970s, OSHA sent information to
employers about safety in the workplace. Dr. Rose said that all corporations have federal identification numbers for
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unemployment statistics and other types of reporting. OSHA used a national list of these corporations when sending
out information.
Raul Rivera wore a non-air supplied hood, sometimes referred to as a desert hood, when he sandblasted for Meister.
While the non-air supplied hoods provided some protection from large particle dust, they did not provide adequate
protection from exposure to silica dust. When a person uses a non-air supplied hood, the person is exposed to a silica
dust concentration of about seventy times the OSHA allowable limit. A dust mask B the mask with the yellow bands B
provides very little protection from this amount of silica dust.
Dr. Rose testified that Meister had a duty to follow OSHA regulations. Dr. Rose said that the OSHA regulations
required Meister to provide its sandblasters with an air supplied hood (a hood with a continuous air fed flow-line
respirator). Meister had the duty to keep silica dust exposure below OSHA=s allowable limit. Dr. Rose said that
Meister=s sandblasting operations also failed to comply with other OSHA regulations.
Dr. Rose testified that a person who uses a non-air supplied hood for sandblasting is at an extreme risk of overexposure
to silica and developing silicosis and other diseases. In Dr. Rose=s opinion, Meister=s failure to comply with the
OSHA regulations on abrasive blasting created an extreme degree of risk for persons such as Raul Rivera. Dr. Rose
said that Meister=s conduct caused Rivera=s death.
Dr. Rose testified that, in his opinion, Meister had actual awareness of the hazards of silica dust when Raul Rivera
worked for Meister. Dr. Rose based his opinion on the deposition testimony of Charlene Meister. Charlene testified in
her deposition as follows: (1) that you keep the sand Aoff of you if you can, because this is dirty. And so you protect
yourself from it@; (2) that the sandblasters wore hoods to deflect the sand to keep Ayou from breathing it@; (3) that
the beneficial effect of wearing a hood while blasting Ais that it is going to protect you from the bounce back of the
sand@; (4) that the purpose of the hood was to protect the workers from breathing the sand; and (5) that the
sandblasters wore the dust particle masks as Aextra protection from breathing the dust.@
On cross-examination, Dr. Rose testified that he did not know whether Meister ever received any warnings about
silicosis from any sand manufacturing companies. He also did not know whether Meister ever received any warnings
that the sand it was using contained silica. Dr. Rose assumed that Meister had not received any warnings about silica
dust because Bill Meister and his son, Billy, sandblasted using the same equipment as the employees used. In the
1970s, sandblasting companies had a common practice of using non-air supplied hoods. Dr. Rose testified that the
dangers of breathing silica were not a matter of ordinary, common knowledge. Dr. Rose did not know whether OSHA
had ever cited Meister for any safety violations. He was aware of Charlene Meister=s testimony that OSHA first
visited Meister after Raul Rivera left his employment. Dr. Rose agreed that Meister, as an employer of about twenty-
five employees, was an unsophisticated employer and that many employers of this size were unlikely to understand the
concept of dust that is invisible to the eye causing damage to the lungs.
Dr. Gerald Abraham=s Testimony
Dr. Abraham testified that he is a pathologist specializing in the area of occupational and environmentally related
diseases. Dr. Abraham testified that Raul Rivera=s death was caused by silica exposure resulting in silicosis that
progressed to the point where he could no longer breathe. Dr. Abraham explained that silica dust particles are invisible
to the human eye. When silica dust particles are small enough to stay in the air and get inhaled into the lungs, they are
called respirable. A person may be exposed to respirable silica dust and not even know it.
Tomasa Muro Rivera=s Testimony
Tomasa Muro Rivera testified that she is the widow of Raul Rivera. She said that Raul Rivera came home covered in
sand after his work shifts at Meister. She said that his hair, face, ears, and nostrils were completely covered in sand
when he came home from work.
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Subjective Awareness Element
Actual awareness means that the defendant knew about the peril but its acts or omissions demonstrated that it did not
care. Ellender, 968 S.W.2d at 921. The Riveras argue that the evidence was legally sufficient to prove Meister had an
actual, subjective awareness of the risk posed by exposure to silica dust but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of others. The Riveras rely on the following evidence to support their
argument: (1) Charlene Meister=s statement that Bill Meister might have warned Raul Rivera that breathing silica dust
was dangerous; (2) Dr. Rose=s opinion testimony that Meister was aware of the hazards of silica dust; (3) Dr. Rose=s
testimony that Meister was subject to, and failed to comply with, OSHA rules and regulations regarding abrasive
blasting; and (4) testimony that Meister failed to conduct safety meetings and lacked a corporate safety policy.
Charlene Meister did not provide any direct testimony B nor did any other witness B that Bill Meister knew of the
risks posed by silica dust. However, the Riveras contend that Bill=s knowledge of the risks may be inferred by
Charlene=s testimony that he Amight@ have warned Raul Rivera of the dangers of breathing silica dust. Charlene=s
testimony that Bill Amight@ have warned Rivera gives rise to an equal inference that Bill Amight not@ have warned
Rivera. The equal inference rule prohibits a jury from inferring an ultimate fact from meager circumstantial evidence
that could give rise to any number of inferences, none more probable than the other. Lozano v. Lozano, 52 S.W.3d 141,
148 (Tex. 2001)(Phillips, C.J., concurring and dissenting); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392
(Tex. 1997); Mills v. Mest, 94 S.W.3d 72, 74-75 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). Thus, in cases
with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of
the fact=s existence or non-existence. Lozano, 52 S.W.3d at 148; Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640
(Tex. App.CHouston [14th Dist.] 2003, pet. denied).
The record does not contain any evidence that Bill Meister or anyone else at Meister knew of the risks posed by silica
dust. Aguilar testified that nobody at Meister told him sand could cause a disease and that he did not know whether
Meister knew sand could hurt the employees. Redd testified that, when he started at Meister in 1982, nobody at Meister
warned him or told him dust could be bad for him. Redd said that he did not hear the word silicosis until about 1984
and that Bill Meister never mentioned silicosis to him. Thus, there was no evidence that Bill Meister warned any other
employees about silica dust. The evidence showed that, when Bill Meister and Billy Meister sandblasted, they used the
same equipment that Meister=s employees used. The evidence supports the conclusion that Bill Meister did not know
of the risks posed by exposure to silica dust and that, therefore, he did not warn and could not have warned Rivera
about the dangers of silica dust. Thus, there is nothing in the record to corroborate the possibility that Bill Meister
warned Raul Rivera about silica dust. Therefore, the equal inference rule prohibited the jury from inferring that Bill
Meister was aware of the risks posed by silica dust. Charlene Meister=s testimony that Bill might have warned Rivera
was no evidence that Meister had actual, subjective awareness of the risks posed by silica.
Dr. Rose=s opinion that Meister had actual awareness of the hazards of silica dust was based on Charlene Meister=s
testimony. Charlene testified that sandblasting was a dirty process and that the sandblasters tried to keep the sand off
of themselves. She said that the sandblasters wore hoods to protect themselves from the sand and to keep from
breathing it. She said that the hoods protected from the bounce back of the sand and deflected the sand. Charlene also
said that the sandblasters wore dust particle masks as extra protection from the sand.
Charlene=s testimony shows that Meister provided hoods and masks to its employees in an attempt to protect them
from breathing the sand that was used during sandblasting operations. Meister also wanted to keep the sand off of the
employees because sandblasting was a dirty process. Meister was trying to protect the employees from visible sand that
was used during sandblasting operations. This evidence does not prove Meister knew anything about the invisible silica
dust that was generated during sandblasting operations. Thus, while Charlene=s testimony shows that Meister
attempted to protect its workers from the sand that was used during sandblasting operations, the testimony was no
evidence that Meister had any knowledge about the dangers posed by silica dust or that its sandblasting operations
generated silica dust.
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Dr. Rose testified that Meister=s sandblasting operations failed to comply with OSHA rules and regulations.
Specifically, he said that the OSHA regulations required Meister to provide Raul Rivera with an air supplied hood for
use in sandblasting. Dr. Rose also said that OSHA sent safety information to employers about safety in the workplace.
However, there was no evidence that Meister was aware of the OSHA rules and regulations, nor any evidence that
Meister received any safety information from OSHA and, specifically, any information relating to abrasive blasting.[2]
The record shows that OSHA first visited Meister after Rivera left his employment. Additionally, there was no
evidence that Meister received, or was aware of, any information or warnings relating to silica dust from any other
source, such as the NIOSH recommendations or information from sand manufacturing companies.
The Riveras assert that Meister=s lack of a safety policy and failure to conduct safety meetings support a gross
negligence finding. These omissions fail to show that Meister knew anything about the risks of exposure to silica.
Therefore, the absence of a safety policy and safety meetings will not support an inference of subjective awareness.
Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999).
In Ellender and Lee Lewis, the Texas Supreme Court upheld jury findings of gross negligence. The evidence in
Ellender showed that the employer knew about the danger associated with benzene exposure. Based on that knowledge,
the employer went to great lengths to protect its employees from the benzene risks. Ellender, 968 S.W.2d at 924. The
employer, however, did nothing to protect contract workers from the same danger, even though the contract workers
worked side by side with its employees. The Texas Supreme Court held the evidence was legally sufficient to prove the
employer had actual awareness of the extreme risk benzene exposure involved but that the employer nevertheless
proceeded in conscious indifference to the rights, safety, or welfare of the contract workers. Id.
The evidence in Lee Lewis showed the employer knew about the risks of fatal falls at multi-story construction projects.
Lee Lewis, 70 S.W.3d at 786. The construction project presented a fall hazard because workers had to work on the
exterior of the ninth and tenth floors of the building. Based on the knowledge of the fall risk, the employer provided its
employees with independent lifelines as part of their fall-protection equipment. However, although the employer knew
that its subcontractor=s employees were not using independent lifelines for fall protection, the employer did nothing to
remedy the situation. The Texas Supreme Court concluded the evidence was legally sufficient to prove the employer
was subjectively aware of the risk of fatal falls for its subcontractor=s employees but that the employer was
consciously indifferent to the risk. Id. at 786.
This case is factually distinguishable from Ellender and Lee Lewis. Here, there was no evidence, certainly no clear and
convincing evidence, that Meister had an actual, subjective awareness of the risks posed by silica dust. Additionally,
there was no evidence that Meister knew its sandblasting operations generated any silica dust. The trial court did not err
in granting a judgment notwithstanding the verdict in favor of Meister.
We overrule the Riveras= first issue. Based on our disposition of their first issue, we need not address their other
issues.
This Court=s Ruling
We affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
May 18, 2006
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
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[1]Act of March 28, 1917, 35th Leg., R.S., ch. 103, part I, ' 5, 1917 Tex. Gen. Laws 269, (repealed by Act of Dec. 11,
1989, 71st Leg., 2nd C.S., ch. 1, ' 16.01, 1989 Tex. Gen. Laws 114)(amendments omitted)(current version at TEX.
LAB. CODE ANN. ' 408.001(b) (Vernon 2006).
[2]Dr. Rose=s attempt to impute knowledge of OSHA regulations to Meister was insufficient to establish the required
subjective awareness for gross negligence, as opposed to the lesser standard for ordinary negligence.
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