COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-08-00226-CV

LINDA FAUST AND DONNIE 

FAUST

APPELLANTS

V.

BNSF RAILWAY COMPANY APPELLEE

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. INTRODUCTION

Appellants Linda Faust and Donnie Faust sued Appellee BNSF Railway 

Company (BNSF) for personal injuries and damages that they allegedly

sustained from exposure to chemicals released by BNSF‘s wood treatment 

facility in Somerville, Texas. After a lengthy trial, a jury rendered a verdict in 

favor of BNSF, concluding that BNSF‘s negligence, if any, did not proximately 
2

cause Linda‘s stomach cancer. In two issues, the Fausts argue that the trial 

court committed reversible error by overruling their objection to a specific 

causation instruction and that the evidence is factually insufficient to support the 

jury‘s ―No‖ answer to question number 1. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Fausts live in Somerville. Linda moved there and married Donnie in 

1980. Donnie has lived in Somerville most of his life. The Fausts‘ home is 

located approximately 4,000 feet from the Somerville Tie Plant.

Donnie began working at the plant in 1974. He performed a number of 

different duties, including working as a ―roustabout,‖ driving a trash truck, and 

operating various machinery. Donnie came into contact with creosote when he 

worked at the plant and often had creosote on him when he came home from the 

plant.

Linda worked a number of different jobs that were located near the plant,

shopped near the plant, and, many times, visited Donnie at the plant during his 

lunch break. She smoked between one-half and one full pack of cigarettes every 

day for twenty-five years; began experiencing headaches, nausea, and stomach 

pain in the early 1980s; and had a twelve-year medical history of stomach 

problems. In 1998, Linda was diagnosed with diffuse signet cell stomach cancer 
3

and Helicobacter pylori infection (H. pylori). She subsequently underwent a 

radical complete gastrectomy, in which her entire stomach was removed.1

BNSF‘s predecessor, the Atchison, Topeka & Santa Fe Railway (AT&SF), 

began operating the plant in 1905.2 The plant, which occupied a 200-acre tract 

of land in Burleson County and operated twenty-four hours a day, treated railroad 

ties and other wood products with chemicals to preserve the wood and increase

the products‘ service life. A mixture of creosote3and extender oil (predominantly 

30% creosote and 70% oil) was the primary chemical applied to the ties in one of 

four treating cylinders measuring 8 feet in diameter by 155 feet in length.

4 Each

treating process (commonly referred to by plant employees as a ―charge‖) lasted 

between eight and twenty-four hours, depending on whether the ties had been air 

dried or needed to be vapor dried in the treating cylinder using a drying agent.

5

 

1

Linda successfully treated the H. pylori before undergoing the surgery to 

remove her stomach.

2BNSF sold the plant to Koppers, Inc. in 1995. Koppers currently operates 

the plant.

3

The creosote used at the plant—a black, oily material—was derived from 

coal tar. The International Agency for Research on Cancer (IARC) classifies 

creosote as probably carcinogenic to humans.

4One of the Fausts‘ experts testified that the plant also treated wood 

products with pentachlorophenol (PCP), a now-banned pesticide, and copper 

chromium arsenate (CCA), another pesticide. The expert agreed, however, that 

the plant had not used PCP and CCA since 1981.

5

The primary solvent that the plant used to accelerate the wood-drying 

process was naptha.
4

The plant generated several types of waste:

drainage from a treating cylinder consisting of creosote mixture and 

possibly wood fragments that accumulated in a ―pit‖ located in front of the

cylinder door when the door was opened after the completion of a charge;

―kickback‖ (also known as ―drippage‖), which consisted of residual 

creosote mixture that dripped off of treated ties that were removed from a 

cylinder and onto rock ballast or ―screening‖ that was laid directly 

underneath the tracks on which the ―trams‖ that carried the ties rolled;

6

before the plant began using chains, treated wood slats (spacers) that 

were placed in between the ties during the treatment process;

sawdust used to absorb chemicals and to clean the cylinders and pits;

boiler emissions, which may have included dioxins7and polycyclic 

aromatic hydrocarbons (PAHs),8from burning treated wood in a boiler9

wastewater (also called ―sap water‖) resulting from the process of vapordrying wood products; and

emissions released into the atmosphere from several different sources.

 

6

In 1992, the plant built a ―drip pad‖—a concrete pad with an underlying 

reservoir—to help collect kickback from the treated wood products. Before 1992, 

the kickback dripped onto the soil or ballast.

7Dioxin is a byproduct of incomplete combustion of a source containing 

chlorine. The IARC classifies dioxin as carcinogenic to humans.

8PAHs are a byproduct of incomplete combustion of organic materials. 

According to one of BNSF‘s experts, PAHs are found ―all over the place. 

Everywhere.‖ But the IARC classifies benzo[a]pyrene, a PAH, as probably 

carcinogenic to humans.

9

From the late 1930s to the early to mid 1980s, the ―Babcock-Wilcox‖ boiler 

supplied steam energy for the treating process. The ―Keeler‖ boiler came online 

to replace the Babcock-Wilcox boiler in the mid 1980s. Both boilers were 

biomass, or wood-fired, boilers.
5

The amount of waste that the plant generated and the means by which the plant

disposed of it or used it was hotly contested at trial.

The Fausts alleged that BNSF negligently allowed the release of toxic and 

hazardous chemicals, solvents, and substances into the soil, groundwater, water, 

and air in and around the plant; that they have been and continue to be exposed 

to the toxic chemicals released from the plant; and that their bodies, real 

property, and home have been contaminated by the chemicals, proximately 

causing them injuries and damages, including, but not limited to, cancer. At trial, 

each side offered expert testimony relevant to, among other things, the disputed

fact issues of negligence and causation. As part of its charge, the trial court 

submitted the following instruction to the jury: ―In order to prove specific 

causation for exposure from the Somerville Tie Plant, the Plaintiffs must exclude, 

with reasonable certainty, other plausible causes of Linda Faust‘s stomach 

cancer, such as her history of smoking cigarettes and her Helicobacter pylori 

infection.‖10 Jury question number 1 asked whether ―the negligence, if any, of 

[BNSF was] a proximate cause of Linda Faust‘s stomach cancer.‖ The jury 

answered, ―No,‖ and, as instructed, did not proceed to answer any of the 

remaining questions. In accordance with the jury‘s verdict, the trial court entered 

 

10The trial court also instructed the jury that ―[t]he only substances whose 

exposure you are to consider are PAHs and dioxin; you are not to consider any 

exposure to other chemicals, including chromium (VI), arsenic, CCA, or PCP.‖
6

a take-nothing judgment on the Fausts‘ claims against BNSF, and it denied the 

Fausts‘ motion for new trial. The Fausts filed their notice of this appeal.

III. SPECIFIC CAUSATION INSTRUCTION

In their first issue, the Fausts argue that the trial court committed reversible 

error by overruling their objection to the specific causation instruction. They 

contend that the instruction was erroneous because it (1) improperly heightened 

their burden of proof, (2) improperly shifted the trial court‘s gatekeeper function to 

the jury, and (3) constituted an impermissible comment on the weight of the 

evidence. They further argue that the inclusion of the instruction was harmful 

because the jury expressed some confusion about it and rendered its verdict 

shortly after the trial court addressed a jury note inquiring in part about the 

instruction. BNSF responds that the Fausts failed to preserve part of their first 

issue for appellate review, that the trial court did not abuse its discretion by 

including the instruction in the charge, and that, even if erroneous, the trial 

court‘s inclusion of the instruction was harmless.

A. Preservation of Error

An objection to the jury charge must timely and plainly make the trial court 

aware of the complaint, and the complaining party must obtain a ruling. Ford 

Motor Co. v. Ledesma, 242 S.W.3d 32, 43–44 (Tex. 2007); State Dep’t of 

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (op. on 

reh‘g); see Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274 (requiring a party 

objecting to a charge to point out distinctly the objectionable matter and the 
7

grounds of the objection). If a party fails to do this, error is not preserved, and 

the complaint is waived. Payne, 838 S.W.2d at 241.

The Fausts asserted the following objection to the specific causation 

instruction at the charge conference:

Mr. Woodfill: With respect to the instruction, Your Honor, the 

other objection we had was to paragraph 2, information regarding 

Linda Faust‘s cigarette smoking and the Helicobacter -- H. pylori 

bacteria infection. We believe that this is an improper role of the 

Court’s gatekeeper function and should not be included in the 

instruction. And we believe it‘s unfairly prejudicial to the client. It 

can be argued in the proximate cause section that‘s addressed in 

Question Number 1, I believe. Additionally, Your Honor, we don‘t 

believe that there was any evidence -- Well, that‘s enough. 

[Emphasis added.]

The Fausts‘ objection did not timely and plainly make the trial court aware that 

they were objecting on the grounds that the instruction improperly heightened 

their burden of proof and constituted an impermissible comment on the weight of 

the evidence, nor were these arguments apparent from the context of the 

objection. See, e.g., Fethkenher v. Kroger Co., 139 S.W.3d 24, 31–32 (Tex. 

App.—Fort Worth 2004, no pet.) (holding that appellant‘s objection did not make 

trial court aware of complaint that instruction was an impermissible comment on 

weight of the evidence). We cannot agree with the Fausts‘ contentions that an 

objection to the shifting of the gatekeeper function from the trial court to the jury 

―is necessarily‖ an objection to the trial court adding elements to the Fausts‘ 

burden of proof that do not exist under the law and ―is necessarily‖ an objection 
8

that the trial court is commenting on the weight of the evidence. This argument

conflicts with the dictates of rule of appellate procedure 33.1(a) and Payne.

Citing Payne, the Fausts argue that their objection at the charge 

conference was sufficient to preserve this issue with regard to any of the legal 

bases for the objection because they submitted a proposed jury charge in writing 

that did not include the specific causation instruction. Payne did not hold that 

submitting a jury charge in writing that omitted a later complained-of instruction 

was sufficient to preserve error as to the inclusion of the instruction on any legal 

basis. Rather, Payne held that ―[t]here should be but one test for determining if a 

party has preserved error in the jury charge, and that is whether the party made 

the trial court aware of the complaint, timely and plainly, and obtained a ruling.‖ 

Payne, 838 S.W.2d at 241. Consistent with its holding, the supreme court 

reasoned in part that the State had preserved its charge error issue for appellate 

review because it had requested that the trial court question the jury about 

Payne‘s knowledge of the culvert, and the trial court‘s refusal to do so 

―constituted a clear refusal to submit a premise defect theory to the jury.‖ Id. at 

239. Thus, the trial court could not have clearly refused to submit the premise 

defect question if it was not aware that the State had requested that the question 

be submitted.

Here, unlike in Payne, the Fausts are not complaining on appeal about the 

trial court‘s refusal to include in the charge a specifically requested question. 

Instead, they are complaining about the inclusion of an instruction that was not 
9

part of the proposed jury charge that they submitted to the trial court. The 

difference is significant because in Payne, the State timely made the trial court 

aware that it specifically desired the inclusion of the question in the charge. Id. 

In this case, there is nothing in the record to indicate that the Fausts timely made 

the trial court aware that they were objecting to the instruction on the grounds 

that it heightened their burden of proof and amounted to a comment on the 

weight of the evidence, including by merely omitting the specific causation 

instruction from their proposed jury charge. Therefore, other than identifying the 

proper standard for preserving charge error, Payne is factually distinguishable

from this case and, consequently, inapposite.

Accordingly, we hold that of the three arguments the Fausts assert on 

appeal, the objection lodged at the charge conference was sufficient to preserve 

for appellate review only their second argument—that the instruction improperly 

shifted the trial court‘s gatekeeper function to the jury. See Ledesma, 242 

S.W.3d at 43–44; Payne, 838 S.W.2d at 241; see also Tex. R. App. P. 33.1(a).

B. No Abuse of Discretion

The Fausts argue that ―[t]o the extent the cases require a scientific expert 

to exclude other plausible causes  ̳with reasonable certainty,‘ that requirement 

relates solely to the trial court‘s determination under Rule 702 on whether the 

testimony is reliable and admissible.‖ [Emphasis added.] They thus maintain 

that the instruction ―clearly incorporated elements for the court, not the jury, to 

consider when making a determination as to the admissibility of the offered 
10

testimony‖ and, therefore, that the instruction ―improperly place[d] in the hands of 

the jury the trial court‘s gatekeeper function.‖ BNSF responds that the instruction 

correctly stated the law, had evidentiary support, and assisted the jury in 

resolving contested fact issues.

A trial court must submit ―such instructions and definitions as shall be 

proper to enable the jury to render a verdict.‖ Tex. R. Civ. P. 277; Union Pac. 

R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). An instruction is proper if 

it (1) assists the jury, (2) accurately states the law, and (3) finds support in the 

pleadings and evidence. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 

S.W.3d 851, 855 (Tex. 2009). Rule 277 affords the trial court considerable 

discretion in deciding what instructions are necessary and proper. Tex. R. Civ. 

P. 277; State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997). In 

fact, a trial court is afforded even more discretion when submitting instructions 

than when submitting questions. GuideOne Lloyds Ins. Co. v. First Baptist 

Church of Bedford, 268 S.W.3d 822, 836–37 (Tex. App.—Fort Worth 2008, no 

pet.). Thus, determining necessary and proper jury instructions is a matter within 

the trial court‘s discretion, and appellate review is for abuse of that discretion. 

Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its 

discretion if it acts in an arbitrary or unreasonable manner or without reference to 

any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
11

The Fausts‘ argument disregards the distinction between the trial court‘s 

responsibility to determine whether proffered scientific evidence is based on a 

reliable foundation and, therefore, admissible and a proponent‘s burden to prove 

causation in a toxic tort case in which an expert relies on epidemiological studies 

to support his opinion that the plaintiff‘s exposure to a particular substance 

caused the plaintiff‘s complained-of injury.11

Rule 702 requires the proponent of expert testimony to show not only that 

the expert is qualified, but also that the expert‘s testimony is relevant to the 

issues in the case and is based on a reliable foundation. E.I. du Pont de 

Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). When a party 

objects to the reliability of its opponent‘s scientific expert testimony, the trial 

court—in exercising its gatekeeper function—is responsible for making the 

preliminary determination of whether the proffered testimony meets the 

standards of scientific reliability. Id. at 556–57; see Helena Chem. Co. v. Wilkins, 

47 S.W.3d 486, 499 (Tex. 2001); see also Exxon Pipeline Co. v. Zwahr, 88 

S.W.3d 623, 629 (Tex. 2002). If the trial court sustains an objection to expert 

testimony, the proponent of the evidence may complain on appeal that the trial 

court abused its discretion by excluding the evidence. See Ledesma, 242 

S.W.3d at 39; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718–19 

 

11See generally Lakie v. SmithKline Beecham, 965 F. Supp. 49, 55 (D.D.C. 

1997) (stating that the ―defendant confuses, at times ignores, the crucial 

distinction between the admissibility of expert scientific testimony and the weight

such testimony should be afforded by the trier of fact‖) (emphasis in original).
12

(Tex. 1998). If, on the other hand, the trial court overrules an objection to expert 

testimony, the opponent of the evidence may complain on appeal that the 

evidence is legally insufficient to support the jury‘s causation finding because the 

scientific evidence is unreliable and, thus, no evidence.12 See Havner, 953 

S.W.2d at 714; Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280, 285 (Tex. 

App.—Texarkana 2000, no pet.). A party must object to the evidence before trial 

or when the evidence is offered to preserve a complaint on appeal that scientific 

evidence is unreliable. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409–11 

(Tex. 1998). But see Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 

S.W.3d 227, 232 (Tex. 2004) (reasoning that an objection is not needed to 

preserve a no-evidence challenge to conclusory testimony).

Distinct from the trial court‘s rule 702 reliability determination is a 

complainant‘s burden to prove causation, a fact question, in a toxic tort case. In 

addition to explaining that an appellate court must go beyond an expert‘s bare 

conclusions when performing a legal sufficiency review and determine whether 

the expert‘s opinion is scientifically reliable, the supreme court in Havner

identified the evidentiary standard that a plaintiff must satisfy to prove causation 

 

12When determining whether expert testimony constitutes some evidence, 

i.e., is legally sufficient, the appellate court must look beyond the expert‘s bare 

conclusions and make a threshold determination whether the expert‘s opinion is 

scientifically reliable. Havner v. Merrell Dow Pharm., Inc., 953 S.W.2d 706, 711–

14 (Tex. 1997). The appellate court performs this sufficiency review because if 

the expert‘s testimony is not scientifically reliable, it is, legally, no evidence and, 

thus, cannot survive a legal sufficiency review. Id. at 714.
13

in a toxic tort case: general and specific causation. Havner, 953 S.W.2d at 714. 

General causation asks whether a substance is capable of causing a particular 

injury in the general population, and specific causation asks whether that 

substance caused a particular individual‘s injury. Id.; Georgia-Pacific Corp. v. 

Stephens, 239 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. 

denied). The cases—both state and federal—are legion that a plaintiff in a toxic 

tort case must prove general and specific causation. See, e.g., Golden v. CH2M 

Hill Hanford Group, Inc., 528 F.3d 681, 683 (9th Cir. 2008); Knight v. Kirby Inland 

Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); Amorgianos v. Nat’l R.R. 

Passenger Corp., 303 F.3d 256, 268 (2d Cir. 2002); King v. Burlington N. 

Santa Fe Ry. Co., 762 N.W.2d 24, 34 (Neb. 2009); Parker v. Mobil Oil Corp., 857 

N.E.2d 1114, 1120–21 (N.Y. 2006); Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 

270 (Tex. App.—Beaumont 2006, pet. denied); Brookshire Bros., Inc. v. Smith, 

176 S.W.3d 30, 36–37 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on 

reh‘g).

―By far the most difficult problem for plaintiffs to overcome in toxic tort 

litigation is the burden of proving causation.‖ James v. Bessemer Processing 

Co., Inc., 714 A.2d 898, 909 (N.J. 1998) (citing Ayers v. Jackson Twp., 525 A.2d 

287, 301 (N.J. 1987)). This is because, in some cases, ―controlled scientific 

experiments can be carried out to determine if a substance is capable of causing 

a particular injury or condition, and there will be objective criteria by which it can 

be determined with reasonable certainty that a particular individual‘s injury was 
14

caused by exposure to a given substance.‖ Havner, 953 S.W.2d at 714–15. 

―However, in many toxic tort cases, direct experimentation cannot be done, and 

there will be no reliable evidence of specific causation.‖ Id. at 715. Therefore, to 

prove causation, the plaintiff may attempt to demonstrate through circumstantial 

evidence that exposure to the substance at issue increases the risk of the 

plaintiff‘s particular injury. See id. As in this case, this may be achieved through 

testimony in which an expert relies on epidemiological studies to support his 

opinion that the plaintiff‘s exposure to a particular substance caused the plaintiff‘s 

complained-of injury. Id. Epidemiological studies examine existing populations 

to attempt to determine if there is an association between a disease or condition 

and a factor suspected of causing that disease or condition. Id.

But ―[e]vidence that a chemical can cause a disease is no evidence that it 

probably caused the plaintiff‘s disease.‖ In re Allied Chem. Corp., 227 S.W.3d 

652, 656 (Tex. 2007) (orig. proceeding); see Merck & Co., Inc. v. Ernst, 296 

S.W.3d 81, 96 (Tex. App.—Houston [14th Dist.] 2009, pet. filed) (―Proving one 

type of causation does not necessarily prove the other, and both are needed for 

a plaintiff in a toxic-tort suit to prevail‖). Therefore, ―[t]o raise a fact issue on 

causation . . . , a claimant must do more than simply introduce into evidence 

epidemiological studies that show a substantially elevated risk.‖ Havner, 953 

S.W.2d at 720 (emphasis added). To prove specific causation, the complainant 

must show that he is similar to those in the studies. Id. This burden to show 

similarity includes ―proof‖ that the injured person was exposed to the same 
15

substance, that the exposure or dose levels were comparable to or greater than 

those in the studies, that the exposure occurred before the onset of injury, and 

that the timing of the onset was consistent with that experienced by those in the 

study. Id.; Matt Dietz Co. v. Torres, 198 S.W.3d 798, 804 (Tex. App.—San 

Antonio 2006, pet denied). The burden of proof also requires that ―if there are 

other plausible causes of the injury or condition that could be negated, the 

plaintiff must offer evidence excluding those causes with reasonable certainty.‖ 

Havner, 953 S.W.2d at 720 (emphasis added).

Although the issue here concerns the ―other plausible causes‖ aspect of 

the specific causation inquiry, the supreme court recently addressed a different

part of the inquiry—dose—in the context of an asbestos exposure case. In BorgWarner Corp. v. Flores, the supreme court held that to prove specific causation in 

an asbestos exposure case, there must be some evidence of an aggregate dose 

of exposure to the plaintiff that was a substantial factor in causing the asbestosrelated disease. 232 S.W.3d 765, 769–70 (Tex. 2007). In explaining the 

significance of dose, the supreme court cited Havner and reiterated that ―[w]e 

have held that epidemiological studies are without evidentiary significance if the 

injured person cannot show that  ̳the exposure or dose levels were comparable to 

or greater than those in the studies.‘‖ Id. at 771 (emphasis added). Borg-Warner

did not involve an inquiry into the reliability of an expert‘s testimony, i.e., the 

exercise of the trial court‘s gatekeeper function; rather, it considered the legal 

sufficiency of the specific causation evidence as a quantitative measure.
16

Case law reveals that instructing the jury about the appropriate causation 

standard is sometimes required, as it was here. See Hawley, 284 S.W.3d at 

859–62. In Hawley, a health care liability case against a hospital involving lost 

chance of survival, the trial court refused to give the jury an instruction that a 

patient‘s recovery is barred if a condition preexists the negligence of the health 

care provider and at the time of the negligence, the condition resulted in the 

patient having a 50% or less chance of cure or survival. Id. at 855, 859–60. The 

hospital argued on appeal that the trial court erred by not instructing the jury that 

the plaintiff ―must have had a greater than fifty percent (50%) chance of survival‖ 

for the hospital‘s alleged negligence to be the proximate cause of the plaintiff‘s 

death. Id. at 859. The supreme court agreed, reasoning that ―[t]he instruction 

would have provided to the jury the standard it was required by law to apply in 

making its finding on a hotly-contested issue.‖ Id. at 862. This was necessary 

because,

[a]s this Court stated over a century ago when considering alleged 

charge error, ―[w]e must look at the court‘s charge as practical 

experience teaches that a jury, untrained in the law, would view it.‖ 

It asks too much of lay jurors, untrained in the law, to distill the 

correct Texas legal standard for loss of chance from the general 

proximate cause instruction given by the trial court. Columbia‘s 

requested loss of chance instruction would have assisted the jury, 

was an accurate statement of applicable law, and was supported by 

the pleadings and evidence. The trial court abused its discretion by 

refusing to give it.

Id. (citations omitted).
17

Here, the record demonstrates that there was evidence of other plausible 

causes of Linda‘s gastric cancer: H. pylori and cigarette smoking. Peter Shields, 

M.D., testified for BNSF that H. pylori is an established cause of stomach cancer 

and that, by itself, it was a substantial cause of Linda‘s stomach cancer. He also 

testified that there is a ―pretty broad consensus‖ that smoking can cause stomach 

cancer and that he could not imagine what evidence someone could review in 

this case to conclude that smoking was not the cause or a substantial contributor 

to Linda‘s stomach cancer.

The Fausts elicited testimony in an effort to exclude cigarette smoking and 

H. pylori as causes of Linda‘s stomach cancer. James Dahlgren, M.D. opined 

that Linda‘s stomach cancer was caused by dioxins and PAHs from the plant, 

and he testified that he was able to exclude both H. pylori and smoking as 

causes of Linda‘s stomach cancer.

13

 The Fausts thoroughly cross-examined Dr. 

Shields about his causation opinions.

Accordingly, although we agree with the Fausts that it is the role of only the 

trial court to determine whether an expert‘s testimony is reliable, we disagree 

with their argument that the burden to exclude other plausible causes of injury

 

13Dr. Dahlgren relied on epidemiological studies to support his causation 

opinion.
18

relates solely to the trial court‘s rule 702 reliability inquiry.14 The Fausts had the 

burden to prove causation—both general and specific—in this chemical exposure 

case, and they attempted to meet that burden primarily through the testimony of 

an expert witness who relied on epidemiological studies. There was evidence of 

other plausible causes of Linda‘s gastric cancer, and the Fausts made an effort

to exclude those causes through Dr. Dahlgren‘s testimony. The complained-of

instruction is an accurate, albeit arguably incomplete, statement of the law, 

identifying what Linda must show to raise a fact issue as to causation.15 See

Havner, 953 S.W.2d at 714–15, 720. And instructing the jury that other plausible 

causes of Linda‘s gastric cancer must be excluded with reasonable certainty 

assisted the jury by providing it with ―the standard it was required by law to apply 

in making its finding on a hotly-contested issue‖—causation.16 See Hawley, 284 

S.W.3d at 855, 862; Havner, 953 S.W.2d at 720. We hold that the trial court did 

 

14See, e.g., Mendes-Silva v. United States, 980 F.2d 1482, 1487 (D.C. Cir. 

1993) (―Dr. Bulle gave specific testimony on his basis for ruling out viral causes 

and other explanations for the encephalomyelitis, and Dr. Lane suggested in 

response that alternative explanations for Ms. Mendes-Silva‘s illness nonetheless 

remained. The evaluation of these competing explanations presents  ̳a classic 

battle of the experts, a battle in which the [factfinder] must decide the victor.‘‖).

15The Fausts do not argue that the instruction was improper because it 

identified only part of specific causation.

16When objecting to the instruction, the Fausts‘ attorney said, ―It can be 

argued in the proximate cause section that‘s addressed in Question Number 1, I 

believe.‖
19

not abuse its discretion by including the specific causation instruction in the jury 

charge.

C. Harm

Even if the instruction was improper, we cannot conclude that it was 

harmful. A judgment will not be reversed for charge error unless the error was 

harmful because it probably caused the rendition of an improper verdict or 

probably prevented the petitioner from properly presenting the case to the 

appellate courts. Tex. R. App. P. 44.1. We review the entire record to determine 

whether the submission or refusal to submit an instruction probably resulted in an 

improper judgment. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 

749, 756 (Tex. 1998).

The Fausts argue that the instruction was harmful because the jury 

expressed some confusion about it in a note and rendered its verdict shortly after 

the trial court responded to the note inquiring about the instruction. The note 

stated,

The instructions indicate that ―In order to prove specific 

causation for exposure from Somerville Tie Plant, the Plaintiffs must 

exclude, with reasonable certainty, other plausible causes of Linda 

Faust‘s stomach cancer, such as her history of smoking cigarettes 

and her H. Pylori infection.‖

On question 2 it gives us the ability to give a % to both Linda & 

the railroad. The question is if we say the smoking/infection are not 

causes, how can we give a % to Linda? Or vice versa if we say the 

smoking/infection were partial causes how can we give the RR a %?

The instructions seem to contradict Question 2.
20

The trial court responded, 

Your observation that a contradiction exists is well-taken.

You are, therefore, instructed that you are not to answer 

Question 1b as to Linda Faust, nor are you to answer Question 2.

The instruction given you in paragraph 3 on page 3 still 

applies.

But it is just as reasonable to conclude that the trial court ameliorated the jury‘s 

confusion when it withdrew Linda‘s name from jury question number 1 and 

withdrew jury question number 2 (the proportionate responsibility question) in its 

entirety. This consequently limited the jury to making a finding in regard to only

BNSF‘s negligence, if any, that proximately caused Linda‘s stomach cancer.

Also, by the time the trial court charged the jury, it had already exercised 

its gatekeeper function and permitted the Fausts‘ designated causation expert, 

Dr. Dahlgren; negligence expert, Nicholas Cheremisinoff, Ph.D.; and dose 

expert, Paul Rosenfeld, Ph.D.; to testify at trial. Before trial, BNSF had moved to 

strike each of the experts‘ testimony on the grounds that the testimony was 

irrelevant and scientifically unreliable, but the trial court exercised its gatekeeper 

function and permitted the Fausts to elicit expert testimony from each of them. 

There is nothing in the record demonstrating that the jury played any role in 

determining the admissibility of Dr. Dahlgren‘s, Dr. Cheremisinoff‘s, Dr. 

Rosenfeld‘s, or any other expert‘s testimony before they presented their opinions

in evidence.
21

Further, the charge is crystal clear regarding exactly what the jury was to 

do and not to do in performing its ultimate duty as factfinder. For example, the 

charge informed the jury that it was ―the sole judge[] of the credibility of the 

witnesses and the weight to be given their testimony‖; that it was to ―consider 

only the evidence introduced here under oath‖; and, among other things, that it 

was to ―not consider or discuss anything that is not represented by the evidence 

in this case.‖ No part of the charge specifically or inferentially instructed or 

otherwise informed the jury that it was not to assess the weight and credibility of 

the Fausts‘ experts‘ testimony in the event it concluded that the testimony was

irrelevant or scientifically unreliable. The jury is presumed to have followed the 

trial court‘s instructions. See Hawley, 284 S.W.3d at 862 (citing Golden Eagle 

Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003)). Accordingly, it is 

mere speculation to conclude that the jury—contrary to both the entire charge

and the presumption that the jury followed the trial court‘s instructions—somehow 

read the complained-of instruction as adding an additional component to the 

jury‘s responsibility to determine the weight and credibility of the experts‘ 

testimony that is akin to the trial court‘s gatekeeper function of allowing or 

disallowing an expert to offer opinion testimony.

Moreover, both the Fausts‘ and BNSF‘s causation experts relied on 

epidemiological studies to support their opinions. To be considered reliable 

scientific evidence of general causation, an epidemiological study must (1) have 
22

a relative risk of 2.017 and (2) be statistically significant at the 95% confidence 

level.18 Havner, 953 S.W.2d at 717–18, 723–24. To the extent the Robinson

factors, the Bradford Hill criteria, or both are relevant to the court‘s gatekeeper 

function,19 they each have their own detailed requirements.20 Consequently, in 

the absence of additional, detailed instructions, the specific causation instruction 

did not fully arm the jury with the tools that it needed to even exercise a 

gatekeeper function. See Exxon Corp. v. Makofski, 116 S.W.3d 176, 180 (Tex. 

App.—Houston [14th Dist.] 2003, pet. denied) (―Undoubtedly, the tools used to 

test the reliability of expert testimony will vary depending on the field of expertise 

 

17This means that the risk of an injury or condition in the exposed 

population is more than double the risk in the unexposed or control population. 

Havner, 953 S.W.2d at 717–18.

18This means that if the study was repeated numerous times, the 

confidence interval would indicate the range of relative risk values that would 

result 95% of the time. Havner, 953 S.W.2d at 723–24.

19The Havner court cautioned that ―[o]ther factors must be considered‖ 

because epidemiological studies show only an association. Havner, 953 S.W.2d 

at 718.

20The Robinson factors include: (1) the extent to which the theory has 

been or can be tested, (2) the extent to which the technique relies upon the 

subjective interpretation of the expert, (3) whether the theory has been subjected 

to peer review and publication, (4) the technique‘s potential rate of error, 

(5) whether the underlying theory or technique has been generally accepted as 

valid by the relevant scientific community, and (6) the nonjudicial uses that have 

been made of the theory or technique. Robinson, 923 S.W.2d at 557. The 

Bradford Hill criteria include: (1) the strength of association, (2) consistency of 

association, (3) specificity of association, (4) temporality, (5) biological gradient 

or dose-response relationship, (6) plausibility, (7) coherence, (8) experimental 

evidence, and (9) analogy. Havner, 953 S.W.2d at 718 n.2.; Torres, 198 S.W.3d 

at 804 n.4.
23

involved. But it is impossible to ignore the Havner factors here, as the field of 

expertise is the same—the epidemiological evidence connecting a chemical 

exposure and a disease.‖); Austin, 25 S.W.3d at 287 (―[A] trial court could not 

properly review the reliability of scientific testimony based on epidemiological 

studies if it were required to ignore the basic principles articulated in Havner that 

the scientific community employs in conducting such studies.‖).

Finally, as BNSF points out, the entire record demonstrates that the jury 

could have reasonably concluded that the Fausts failed to carry their burden of 

proof that BNSF was negligent or that BNSF‘s negligence proximately caused 

Linda‘s stomach cancer, notwithstanding the instruction.

For all of these reasons, we hold that even if the trial court abused its 

discretion by overruling the Fausts‘ preserved objection to the specific causation 

instruction, the error was not harmful. See Tex. R. App. P. 44.1. We overrule 

the Fausts‘ first issue.

IV. EVIDENTIARY SUFFICIENCY

In their second issue, the Fausts argue that the evidence is factually 

insufficient to support the jury‘s finding that BNSF‘s negligence, if any, was not 

the proximate cause of Linda‘s stomach cancer. In light of the broad-form 

submission, the jury‘s ―No‖ answer to question number 1 could have been based 

upon the jury‘s refusal to find either that BNSF was negligent or that any such 

negligence was a proximate cause of Linda‘s stomach cancer. See Hutchison v. 

Pharris, 158 S.W.3d 554, 562 (Tex. App.—Fort Worth 2005, no pet.) (stating that 
24

appellate court need not address evidentiary sufficiency to support negligence 

finding of broad-form submission if court held that evidence supported proximate 

cause finding); Carr v. Jaffe Aircraft Corp., 884 S.W.2d 797, 802–03 (Tex. App.—

San Antonio 1994, no pet.). Therefore, to sustain this issue, the evidence must 

be factually insufficient to support the jury‘s refusal to find both that BNSF was 

negligent and that any such negligence was a proximate cause of Linda‘s 

stomach cancer.

A. Standard of Review

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing 

all of the evidence in the record pertinent to that finding, we determine that the 

evidence supporting the finding is so weak, or so contrary to the overwhelming 

weight of all the evidence, that the answer should be set aside and a new trial 

ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on 

reh‘g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150 

Tex. 662, 244 S.W.2d 660, 661 (1951). When the party with the burden of proof 

appeals from a failure to find, as in this case, the party must show that the failure 

to find is against the great weight and preponderance of the evidence. Cropper 

v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see Herbert v. 

Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
25

B. Factually Sufficient Evidence to Support Jury’s “No” 

Answer—Negligence21

Much of the evidence that the Fausts presented in regard to whether 

BNSF was negligent came from the testimony of Dr. Cheremisinoff, who

performed a ―responsible care analysis‖ of the plant for the Fausts. Dr. 

Cheremisinoff described his task and the methodology that he used to perform 

the analysis as follows:

[Dr. Cheremisinoff]: Okay. What I do is I look at the 

operations. Since I‘m a chemical engineer, I‘m able to dissect the 

manufacturing process. So I looked at the manufacturing process to 

make treated wood ties, and I determined the amount of waste that 

was generated and the types of waste. So after quantifying those 

wastes, I then examined what practices were used by the railroad to 

manage those wastes; and I compared those practices to the 

available standards of the day and the technologies of the day to 

manage those wastes; and I -- I rendered an opinion as to whether 

they did -- they used proper technologies, procedures, and practices 

to -- to manage those wastes.

. . . .

[Fausts‘ counsel]: Doctor, when you conduct a responsible 

care analysis, are you -- and you‘re trying to look at what a company 

did, are you looking at whether they acted responsible or were 

negligent in a particular case or situation?

[Dr. Cheremisinoff]: It can be. In this case, that‘s exactly what 

I focused on.

 

21Jury question 1 defined ―Negligence‖ as the ―failure to use ordinary care, 

that is, failing to do that which a person of ordinary prudence would have done 

under the same or similar circumstances or doing that which a person of ordinary 

prudence would not have done under the same or similar circumstances.‖ See

IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 

(Tex. 2004) (identifying elements of negligence cause of action as the existence 

of a legal duty, a breach of that duty, and damages proximately caused by the 

breach).
26

[Fausts‘ counsel]: When you‘re doing a responsible care or 

negligence analysis, do you look at how a company manages its 

hazardous or its toxic waste?

[Dr. Cheremisinoff]: Well, yes. When I talk about responsible 

care, it‘s almost exclusively with regard to dangerous or hazardous 

materials. That‘s my area of expertise.

. . . .

[Fausts‘ counsel]: Okay. In forming your opinions in this 

case, Doctor, can you tell the ladies and gentlemen of the jury about 

the methodology that you used.

[Dr. Cheremisinoff]: Well, yeah. The methodology is 

essentially the same. What I do is essentially a reconstruction of the 

practices. I look at the manufacturing operation, and I do what is 

known as a material balance. I know what chemicals go into the 

process and what chemicals go out with the product -- in this case 

treated wood ties -- and then I determine what portion of the 

chemicals entered into different waste streams: air, water, and solid 

waste. That‘s part of the analysis.22

Dr. Cheremisinoff opined that BNSF negligently operated the plant because it 

failed to properly dispose of waste; emitted harmful toxins into the atmosphere; 

failed to use a pollution control device on its boilers; failed to perform any air 

monitoring of the emissions from the boilers; failed to inform its employees of the 

risks associated with exposure to the chemicals used at the plant; and, among 

other things, failed to heed various recommendations, including to provide its 

 

22In forming his opinions, Dr. Cheremisinoff reviewed internal memoranda 

and correspondence between BNSF, the State, vendors, and chemical suppliers; 

reviewed the plant‘s operating procedures; reviewed the boiler operations; 

reviewed remedial investigation reports; reviewed depositions and other experts‘ 

reports; reviewed relevant scientific literature; interviewed a number of former 

plant employees; and visited the plant twice.
27

employees with protective clothing and equipment. In performing the factual 

sufficiency review, we will address Dr. Cheremisinoff‘s opinions and all of the 

other evidence pertinent to the jury‘s refusal to find that BNSF was negligent. 

See Pool, 715 S.W.2d at 635; Garza, 395 S.W.2d at 823.

1. Disposal of Waste

a. Waste Fed into Boilers from 1980 to 1994

Dr. Cheremisinoff opined that BNSF was negligent because it burned toxic 

waste in its boilers, emitting harmful dioxins and PAHs into the atmosphere. He 

opined that BNSF burned a total of 47,875,261 pounds (or 119,688 drums) of 

toxic cylinder drainage waste, kickback waste, and treated wood waste in its 

boilers from 1980 to 1994.23

(1) Cylinder Drainage

In arriving at the 47 million pound burned-waste figure, Dr. Cheremisinoff

calculated in part that 3.5 tons of cylinder drainage emptied from the cylinder 

every time its door opened and that 30% of that amount (10% from 1986 to 1994) 

was ultimately fed into the boiler as fuel.

24

Dennis Davis, who began working at the plant in 1971, agreed with Dr. 

Cheremisinoff‘s figure that 3.5 tons of cylinder drainage emptied from the cylinder 

 

23Dr. Cheremisinoff‘s drum figures are based on a fifty-five gallon capacity

drum (or barrel).

24Dr. Cheremisinoff testified on cross-examination that 3.5 tons of cylinder 

drainage equaled roughly ―six plus drums.‖ However, he also testified that the 

same amount equaled ―[f]our drums.‖
28

each time the door opened. Davis testified that between two and ten barrels of 

―mulk,‖ which consisted of creosote mixture, debris, wainscot, and sand, emptied

into the pit when a cylinder door opened; that employees cleaned up the ―mulk‖ 

with sawdust and wood chips after every charge; and that the waste was then 

taken to the fire room to be burned at night.

Donnie Faust testified that he saw the cylinder doors open only between 

twenty and thirty times and that approximately ten to one hundred gallons of 

cylinder drainage emptied from the cylinder when the door opened. Donnie

cleaned a pit only once, but he did not see where the waste was taken.

A number of witnesses‘ testimony conflicted with Dr. Cheremisinoff‘s 

opinions regarding the amount of cylinder drainage and the burning of waste in 

the boilers. Donald Corwin, a combustion and incineration consulting engineer

who testified for BNSF, disagreed with Dr. Cheremisinoff‘s figures that 3.5 tons of 

drainage emptied from a cylinder each time the door opened following a charge, 

describing the figures as ―[w]ay too high.‖ He opined that less than five gallons 

emptied from the cylinder and that the material was collected in the sump, 

reclaimed, and reused.

Sam Barkley was the plant‘s superintendent from 1971 to 1986. He 

testified that a ―minute amount‖ or a ―gallon‖ of cylinder drainage emptied into the 

pit when the cylinder door opened and that the creosote mixture went down a 

drain to be separated and reused. Barkley recalled that the engineers would 

―pull vacuums‖ on the product while it was still in the cylinders in order to 
29

recapture as much of the creosote mixture as possible for separation and reuse. 

When the pits were cleaned, which was not during every shift, a ―small‖ amount 

of cylinder waste was collected and put in barrels and landfilled, not burned in the 

boiler.

Vernon Welch was the plant‘s superintendent from 1986 to 1994. He 

testified in his deposition that 100% of the cylinder drainage was reclaimed, 

cleaned, and reused or disposed of off-site in later years. If sawdust was used to 

clean a pit in later years, it was disposed of in a dumpster.

Mike Mendoza worked at the plant for thirty-nine years and testified in his 

deposition that none of the cylinder drainage that accumulated in the pits was 

burned in boilers. Instead, the drainage was reclaimed and reused. Mendoza 

testified that sawdust was used to clean the pits and that the sawdust was 

burned in a boiler, but that the pits were not cleaned every day.

Bobby Urbanowsky, who worked at the plant from 1977 to 1995, testified 

that, depending on how powerful of a vacuum was applied to the cylinder before 

the charge completed, only two to five barrels of cylinder drainage emptied from 

a cylinder when its door opened. Of the two to five barrels of drainage, the 

portion that consisted of creosote and liquid went down a drain to be reclaimed 

and reused. When he cleaned up the waste that remained in the pit (bark, wood 

products, slush), it filled only ―a couple of barrels,‖ and he never saw where the 

barrels were taken. Urbanowsky opined that 3.5 tons of cylinder waste could 

empty from a cylinder only if its door opened when the cylinder was still full of 
30

treating material. Although he did not know how often the pit was cleaned, when 

he was responsible for cleaning the pit, he did not do so after every charge.25

Mark Stehly, BNSF‘s assistant vice-president of environmental and 

research and development, testified that he had seen the cylinder doors open 

after a charge, that only a ―very small amount‖ of product emptied out, and that 

the product went down a drain and was ultimately reused. Similarly, David 

Malter, an industrial hygienist for AT&SF from 1980 to 1987, testified that only a 

―few gallons‖ emptied from the cylinder when its door opened. David Shaw, the 

plant‘s current manager, testified that when Koppers took over the plant, only

about two to three gallons of treating mixture emptied from the cylinder when its 

door opened after a charge.

A 1980 ―Industrial Hygiene Report‖ produced by the National Institute for 

Occupational Safety and Health (NIOSH) mentioned nothing about burning 

cylinder drainage in the boiler. The report did, however, state that ―[a] vacuum is 

applied at the end of the treatment cycle to remove excess creosote solution.‖ 

Dr. Cheremisinoff agreed on cross-examination that his calculations would be too 

high if no cylinder drainage was burned in the boiler.

 

25A 1982 letter to the Texas Department of Water Resources stated that 

―cylinder sludge‖ consisting of wood chips, sawdust, and dirt contaminated with 

treating mixture is removed from the treating cylinders ―once every sixteen 

months, at which time it is handled off-site for disposal.‖ [Emphasis added.] Dr. 

Cheremisinoff agreed during cross-examination that the cylinders are cleaned 

every sixteen months.
31

(2) Kickback

Dr. Cheremisinoff opined that from 1980 to 1994, millions of pounds of 

kickback from treated wood products contaminated the track area and ballast

located outside the cylinders and that a percentage26 of the contaminated ballast 

was fed into the boiler every day.

27 To transport the contaminated ballast to the 

boiler to be burned, Dr. Cheremisinoff opined that workers fed the material into a 

―hog‖28 and that pneumatic lines moved the material into the boiler.29

Likewise, Davis testified that sawdust was used to soak up kickback and 

that the waste was burned in the boiler. He described the rock that the kickback 

settled onto as ―little screening,‖ not ballast. Davis opined that between two and 

eight barrels of kickback waste was collected and burned each day.

Donnie Faust testified that before 1992, a ―bunch‖ of kickback dripped off 

of the trams and onto the soil. He said that you could not help but get it on you 

because it was ―everywhere.‖

 

26For example, based on the 1984 figures, Dr. Cheremisinoff opined that

twenty drums of contaminated ballast (containing sand and moisture) were fed 

into the boilers every day.

27Dr. Cheremisinoff referenced a 1994 Pollution Prevention Plan prepared 

by Radian Corporation that stated ―[a]bout 80 tons of waste [is] typically 

generated each year from cleanup of creosote drips along tracks.‖

28Dr. Cheremisinoff opined that a hog is ―basically a chipper. You . . . use 

this to shave, chop up wood chips into smaller particles.‖

29He was not sure if a hog was used as part of this process in the 1980s.
32

Contrary to Dr. Cheremisinoff‘s, Davis‘s, and Donnie‘s testimony, Corwin 

testified that Dr. Cheremisinoff‘s kickback figures were off by a factor of a 

thousand. For example, Dr. Cheremisinoff calculated that the plant generated 

11,179,485 pounds of kickback in 1984. Corwin opined that the figure should 

have been approximately 11,000 pounds. Corwin also opined that it was not 

plausible that contaminated ballast was fed into the boiler through pneumatic 

lines because the rocks would tear up the system.

Welch testified that the ballast under the tram track was never removed but 

that the screening around the track was ―occasionally scraped‖—maybe once a 

year or less—to remove contaminated material and was then shipped off.

Barkley testified that only a ―minute‖ amount of kickback dripped from the 

treated product and trams onto the screening. He also opined that it was not 

possible to put ballast or screening into a hog without destroying it; according to 

Barkley, the hog was for wood.

Mendoza testified the contaminated ballast and rock underneath the tram 

track was collected with a tractor ―every so often,‖ not every day, and filled into 

holes in the yard.

And Urbanowsky testified that the amount of kickback from the treated 

wood products that fell onto the area around the track depended on ―how good a 

vacuum they had pulled on‖ the product in the cylinder. He recounted that before 

the drip pad was installed, the trams had compartments that caught kickback and 

that some of that material would ―slosh[]‖ out onto the ballast. Urbanowsky
33

opined that ―a barrel or two, maybe, at the most‖ would drip from the treated 

product or trams and onto the ground and that the plant workers would either 

scoop it up (if there was enough of it) or cover it with dirt. He said that the 

contaminated ballast would be cleaned up ―[i]f you [had] a bad enough mess‖ 

and that he did not think that contaminated ballast was collected on a daily basis. 

Urbanowsky did not know how the plant disposed of contaminated ballast, but he 

did not think it was possible for the ballast to be thrown into a hog—and he had 

never seen or heard of that being done before—because the rocks would ―mess 

the hog up‖ and the ―[s]uction may not be strong enough to push it‖ up into the 

boiler. He recalled that from 1992 to 1995, after the drip pad was installed, the 

kickback cleaned up from the drip pad was put in barrels and ―shipped out,‖ not 

burned in the boiler, as Dr. Cheremisinoff‘s figures reflect.

(3) Treated Wood

Dr. Cheremisinoff opined that from 1980 to 1989, hundreds of thousands 

of pounds of treated wood spacers were burned in the plant‘s boilers, 

contributing to the release of dioxins and PAHs into the atmosphere.

30

 Donnie 

Faust testified that he was responsible for driving a trash truck at the plant in the 

late 1970s and early 1980s and that, except for the early years, he transported 

four tons of treated wood to the boiler every night to be burned. Davis testified 

that he fed treated wood into the Babcock-Wilcox boiler every night and 

 

30Dr. Cheremisinoff also opined that the plant was negligent because 

treated material was shipped to the plant from several other locations.
34

sometimes during the day and that treated wood was shipped to the plant from 

off-site to be burned.31

Contrary to Dr. Cheremisinoff‘s, Donnie‘s, and Davis‘s testimony, Corwin 

opined that, based on his calculations, no more than one ton of treated wood was 

burned per day.32 He also testified that the plant quit using wood spacers in 

1985 or 1986 and that Dr. Cheremisinoff‘s figures were too high because they 

included calculations for treated wood for the years 1987 and 1988. Corwin‘s 

 

31Urbanowsky testified that treated sawdust from cutting treated wood at 

the sawmill was fed into the boiler, too, but his testimony about the quantity of 

treated sawdust fed into the boiler was vague.

32Corwin testified:

[BNSF counsel]: All right. Now, the -- on the treated wood 

poundage right here, is -- you feel that this -- Based on your 

understanding of what went on at the Somerville tie plant, do you 

think [Dr. Cheremisinoff‘s] treated wood calculations are appropriate 

or correct?

[Corwin]: They‘re not quite correct.

[BNSF counsel]: Why not?

[Corwin]: Well, the one number, if you take a look at 1981, the 

730,000 is based on a 1 ton per day number. And then he took that 

number and ratioed the total volume production for the rest of the 

time to that number. He should have taken the 1 ton per day, 

calculated what the total mass volume flow rate -- or total volume is 

that would be associated with that and then ratio it down.

[BNSF counsel]: Did Dr. Cheremisinoff take into consideration 

the burying of any of the strips at all?

[Corwin]: No, he did not.
35

figures are consistent with a figure set out in a 1981 draft permit for the 

installation of the Keeler boiler, which identified a ―Wood Waste Production 

Rate[]‖ at ―1 ton/day maximum‖ of wood strips. The document stated that ―[t]his

waste is currently [landfilled],‖ but it indicated that ―[i]n the future[,] these kiln 

sticks will be chipped up and stored in a surge bin from which they will be slowly 

metered into the boiler where they will be used as fuel.‖

Stehly, who in 1982 was the director of environmental quality for AT&SF, 

testified that he knew treated wood was being burned to fuel the boiler; that the 

treated wood constituted a ―relatively small amount‖ of the total wood that was 

burned; and, significantly, that the plant was allowed to burn treated wood 

because it had a permit issued by the State to do so.

33

Mendoza agreed that treated wood or sawdust was shipped to the plant 

and burned in the Babcock-Wilcox boiler, but he recalled that a ―very little 

amount‖ of treated wood was burned in the Keeler boiler. Similarly, Welch 

testified that treated wood spacers were buried and that ―very little‖ treated wood 

chips or sawdust was burned. And Barkley testified that the plant burned treated 

wood but that it ―didn‘t have that much volume of it.‖

 

33Dr. Cheremisinoff agreed that the plant had a 1981 permit that allowed it 

to burn one ton of treated wood per day and a 1994 permit that allowed it to burn 

four barrels of treated wood per month.
36

b. Incinerator

Dr. Cheremisinoff opined that BNSF was negligent because it did not use 

an incinerator to dispose of creosote-treated wood waste. According to Dr. 

Cheremisinoff, unlike the plant‘s boiler, which was designed to generate energy, 

an incinerator would have operated at temperatures high enough to completely

destroy the waste and any toxins.34 He testified that the plant had considered 

installing an incinerator as early as the 1970s and had even completed an 

application for a permit to install a trench incinerator, but that the plant ultimately 

withdrew the application and did not install an incinerator.

Corwin, however, testified that a trench incinerator would not have 

achieved complete combustion of creosote-treated wood waste and that it would 

not have been appropriate to use at the plant. He opined that the Keeler boiler 

achieved complete combustion of wood products and dioxins and that its level of 

combustion was greater than that of an incinerator.

c. Other Disposals of Waste

The Fausts contend on appeal that BNSF was negligent because it 

disposed of sap water in several unlined lagoons or pits to evaporate over time 

 

34Dr. Cheremisinoff opined that the waste fed into the boilers was not 

burned for a long enough period of time or at a high enough temperature to 

destroy dioxins and PAHs.
37

and spread cylinder drainage and kickback about the property to control dust.

35

But unlike with fly ash, bottom ash, vapor emissions, and fugitive emissions, Dr. 

Cheremisinoff did not include naturally evaporating sap water or waste spread for 

dust control as ―emission sources‖ in his emissions calculations.

36

 And like the 

evidence pertinent to the amount of creosote-treated waste produced and burned 

in the boiler, the evidence regarding the spreading of creosote mixture for dust 

control was conflicting.

37

2. Air Emissions, Pollution Control, and Air Monitoring

Dr. Cheremisinoff opined that BNSF negligently operated the plant 

because it emitted significant quantities of dioxins and PAHs into the 

atmosphere. He calculated the levels of toxins in the fly ash and bottom ash 

emitted from incompletely combusting creosote-treated wood waste in the 

boilers, in the emissions from unloading and charging cylinders, and in the 

fugitive emissions from treated wood ties on the drip pad.

 

35Davis and Mendoza also recalled a procedure referred to as a ―Santa Fe 

flush,‖ in which wastewater was flushed into a ditch located on the plant‘s 

property when there was a heavy rainstorm.

36Indeed, Gale Hoffnagle testified for BNSF that the sources of PAHs at 

the plant include ―the boiler stacks and then the process itself, including opening 

of the treatment cylinder, the vents from the process . . . [,] the storage tanks for 

creosote, and the wood that‘s laying out in the -- in the yard. They all emit some

PAHs.‖

37Welch recalled that reclaimed diesel and water were used to address 

dust.
38

Dr. Cheremisinoff also opined that BNSF was negligent because it did not 

use a pollution control device on its boilers, which would have captured dioxins 

and PAHs ―as particulate forms.‖ He testified that various types of pollution 

control devices, including dry scrubbers, wet scrubbers, countercurrent 

scrubbers, rotary kilns, afterburners, and cyclones, had been available for 

commercial use for years.

Dr. Cheremisinoff further opined that BNSF was negligent because it did 

not perform any air monitoring of the boilers‘ emissions, which would have 

informed BNSF of the quality of the emissions from the boilers‘ stacks, and did 

not perform any air models, which would have informed BNSF of Somerville‘s 

exposure to the plant‘s emissions. He reasoned that BNSF could have used 

opacity sensors on its boilers, performed stack testing, or had a certified stack 

test performed.

Contrary to Dr. Cheremisinoff‘s testimony, Corwin testified that Dr. 

Cheremisinoff‘s ash numbers were high and, thus, incorrect because they were 

off by a factor of ten.38 He also opined that Dr. Cheremisinoff‘s overall dioxin and 

PAH emission figures were high because they were based on amounts of waste 

that were not fed into the boiler, as addressed in detail above, and because the 

boiler had a higher combustion efficiency than what was calculated—the boiler 

completely combusted dioxins and PAHs. Corwin further opined that it was 

 

38Corwin testified that burning wood typically produces only .5% ash, not 

5% ash as Dr. Cheremisinoff calculated.
39

obvious that the Keeler boiler had a multiclone on it (the original permit showed a 

model number and specifications for a multiclone) and that the multiclone—

though not truly a ―pollution control device‖ as it was used on the Keeler boiler—

operated to enhance the combustion process of the unit, thus ensuring ―that 

you‘re burning out the carbon to get all the energy from it to have very little 

emissions on organics.‖39 Corwin testified that black smoke emitted from the 

boilers‘ stacks as a result of ―upset conditions‖ and was part of the combustion 

process. And as Dr. Cheremisinoff agreed, the plant had never been cited for 

any air permit violations.

Stehly testified that the plant never performed any air models because 

there was no indication that the plant‘s emissions were harming anyone. Stehly‘s 

testimony is supported by the evidence demonstrating that the plant burned 

significantly less creosote-treated waste than that calculated by Dr. 

Cheremisinoff and either buried or burned other amounts of waste.

3. Employee Safety and Information

Dr. Cheremisinoff opined that BNSF was negligent because it did not 

inform its employees of the dangers associated with working around the 

chemicals used at the plant or provide them with protective clothing and 

equipment when they worked around the chemicals, as recommended by 

 

39Dr. Cheremisinoff seemed to concede on cross-examination that he was 

wrong about the Keeler boiler not having a multiclone on it.
40

numerous material safety data sheets (MSDS) and several NIOSH studies.40 Dr. 

Cheremisinoff testified that without using appropriate protective equipment, 

chemicals could soak through clothes and contact the body or be taken home 

and be exposed to others, and he saw no evidence that BNSF informed the 

Fausts about the chemicals that they were exposed to.

Donnie testified that when he cleaned the cylinders, he was never given a 

respirator, rubber gloves, or an apron; instead, the plant provided him with only a 

hard hat and safety glasses. He also said that no one explained to him what was 

in creosote and that he did not learn of an MSDS until Koppers took over.

Likewise, Davis testified that the plant never told him to avoid contact with 

creosote,

41 that he was not given rubber gloves until the late 1990s, and that he 

did not know what an MSDS was before 1995. Urbanowsky testified that he was 

not told that the chemicals he worked with were hazardous or that he should 

wear gloves or other protective equipment.

 

40For example, several MSDSs recommended using rubber/neoprene 

gloves, overalls or an apron, and a face shield to protect against clothing 

contamination and skin contact from creosote. The 1980 NIOSH report 

recommended that employees who came into contact with creosote wear 

appropriate clothing and shower before leaving the plant, if necessary. The 1977 

NIOSH report similarly recommended that protective clothing be worn. Dr. 

Cheremisinoff also testified about a 1980 letter drafted by David Malter in which 

Malter recommended, among other things, that protective clothing be provided to 

employees who have the potential for contact with creosote and that a general 

meeting be held to advise the employees of the meaning of the NIOSH results.

41In fact, Davis recalled being told that creosote was not harmful.
41

Welch, on the other hand, testified that the plant had safety meetings; that 

MSDSs were explained to employees, were on file, and were available for 

viewing; that industrial hygienists gave presentations to employees; and that 

employees were furnished with protective gloves, coveralls, and, depending on 

the position, respirators and possibly face shields.

Similarly, Barkley testified that protective equipment, including gloves, 

boots, respirators, and aprons, were provided to employees; that MSDSs were 

available for employees to view; and that he attended safety committee meetings 

once a month. Barkley also authored a document entitled ―Procedures For Use 

of Respirators,‖ which stated in part that ―[q]ualified personnel will instruct 

persons required to use respirators as to the proper respirator and its correct 

application‖ and that ―[i]ndividuals entering treating cylinders for inspection or 

cleaning will wear an approved air supplied respirator.‖

And Malter testified that the plant had a ―formal hazard communication 

program‖ and communicated with employees about MSDSs and potential 

chemical hazards. When he visited the plant in 1981, employees used PVC rain 

suits and respirators when cleaning cylinders, and the plant made skin creams 

available to employees though the industrial hygiene program.

Finally, we note that while Dr. Cheremisinoff opined that employees 

wearing creosote-contaminated clothing could have exposed others in their 

homes to creosote, Dr. Rosenfeld, the Fausts‘ dose expert, unequivocally 
42

testified that he did not calculate a daily dose for Linda‘s take-home exposure 

from Donnie‘s possibly contaminated clothing.

4. Factual Sufficiency Conclusion

In the face of conflicting evidence, including conflicting expert testimony, 

we may not substitute our own judgment for that of the jury‘s. See, e.g., Quiroz 

ex rel. Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 84–85 (Tex. App.—El 

Paso 2007, pet. denied) (holding evidence factually sufficient to support jury‘s 

failure to find defendants negligent). Having considered and weighed all of the 

evidence in the record pertinent to the jury‘s refusal to find that BNSF was 

negligent, the evidence supporting the finding is not so weak, or so contrary to 

the overwhelming weight of all the evidence, that the answer should be set aside. 

See Pool, 715 S.W.2d at 635; Garza, 395 S.W.2d at 823; King’s Estate, 150 Tex. 

at 664, 244 S.W.2d at 661. Accordingly, we hold that the evidence is factually 

sufficient to support the jury‘s refusal to find that BNSF was negligent.42 We 

overrule the Fausts‘ second issue.

 

42We therefore do not address the sufficiency of the evidence to support 

the jury‘s refusal to find that BNSF‘s negligence, if any, proximately caused 

Linda‘s stomach cancer. See Tex. R. App. P. 47.4; Hutchison, 158 S.W.3d at 

562; Carr, 884 S.W.2d at 802–03.
43

V. CONCLUSION

Having overruled the Fausts‘ two issues, we affirm the trial court‘s 

judgment.

BILL MEIER

JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: January 27, 2011