Full opinion text
OPINION WALKER, Chief Justice, delivered the opinion of the Court as to Part I, joined by BURGESS and STOVER, Justices, and as to Part III, joined by STOVER, Justice, and as to Part IV, the judgment of the court. BURGESS, Justice, delivered the opinion of the Court as to Part II, joined by STOVER, Justice. This appeal follows entry of a money judgment exceeding four million dollars based upon a unanimous jury verdict. Mobil Oil Corporation (Mobil) is appellant and Anna Mae Ellender, James G. Ellender, Dwain A. Ellender, Ricky Ellender, W. Craig Ellender, Arnold Kent Ellender, Jr. and Florence Faye Ellender Hoyt are appellees. Trial ended on December 3, 1993, by return of the jury’s verdict. Plaintiffs’ Motion for Judgment was filed February 2, 1994, with hearing held on February 9, 1994. Final judgment was signed March 14,1994, and file stamped March 23,1994. The trial of this case involved questions of Mobil’s negligence and gross negligence in the death of Eli Arnold Ellender. On appeal, Mobil takes no issue with the jury’s finding that Mobil’s negligence proximately caused the death of Eli Arnold Ellender. Mobil does however, take issue regarding the amount of actual damages, contending entitlement to settlement credit. Thus, we affirm the trial court’s judgment upholding the jury’s finding that Mobil’s negligence proximately caused Mr. Ellender’s death. In this case, the jury not only found Mobil negligent, but also determined such negligence amounted to gross negligence and further, that Mobil acted with “malice” toward the decedent, Mr. Ellender. The jury awarded appellees, plaintiffs below, $622,-888.97 as compensatory damages and $6,000,-000 as punitive or exemplary damages against Mobil. The trial judge, Michael Bradford, applied the punitive damage “cap” reducing punitive damages by approximately 2.5 million dollars. PART I Mobil brings seventeen points of error to this Court. Initially, we address point of error ten which contends: The trial court erred in rendering judgment against Mobil and in overruling its post-verdict motions because the evidence, verdict and judgment are improper because they do not conform to the standards articulated in Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex.1994), or Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex.1981), and, as a result, Mobil was denied substantive and procedural rights under Texas law. Query: Does Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex.1994) apply to this case? APPLICATION OF MORIEL Moriel provides: Inasmuch as we are remanding this for retrial, we consider it advisable, in the exercise of our common law duties, to articulate procedural standards for the trial court. The standards we announce apply to all punitive damage cases tried in the future. Moriel, 879 S.W.2d at 26 (emphasis added) (effective date June 8,1994). The preceding directive seems clear enough — beginning June 8, 1994, Moriel requirements apply to “all punitive damage cases.... ” Our present case was tried during November and December of 1993; therefore, we should conclude Moriel simply does not apply to this present appeal. However, it is simply not so simple. On June 22, 1994, just fourteen days following the Moriel decision, our Texas Supreme Court decided Ellis County State Bank v. Keever, 888 S.W.2d 790 (Tex.1994). Factually, Glenn Keever brought suit against Ellis County State Bank for malicious prosecution arising out of the arrest and indictment of Keever for hindering secured creditor Bank from retrieving collateral. Based on the jury verdict, the trial court rendered judgment for Keever, awarding actual and punitive damages. The Dallas Court of Appeals reversed the judgment as to prejudgment interest on the punitive damages, but otherwise affirmed Ellis County State Bank v. Keever, 870 S.W.2d 63 (Tex.App. — Dallas 1992). Clearly, Keever was tried prior to Moriel. Our Supreme Court granted writ, remanding, in part, with instruction “to reconsider the punitive damage award in accordance with the standards articulated in Moriel." Keever, 888 S.W.2d at 799. Repetitive, but poignant, “[t]he standards we announce apply to all punitive damage cases tried in the future.” Moriel, 879 S.W.2d at 26 (emphasis added). Keever’s subsequent history, following remand to the Dallas Court, is worthy to tell. Upon remand, the Dallas Court seemingly followed Supreme Court direction by detailing relevant evidence supportive of the jury’s findings and the trial court’s judgment. Ellis County State Bank v. Keever, 913 S.W.2d 605, 611 (Tex.App. — Dallas 1995). Although the Dallas Court in its “Application of Law to Facts” keenly addressed each requirement of Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981) (often referred to as the “Kraus factors”), on November 16, 1995, the Texas Supreme Court again reversed and remanded Keever to the Dallas Court “for further proceeding.” The Court determined that the detailing of evidence pursuant to Kraus must be accompanied by an explanation of “why” such evidence either supports or does not support the punitive damage award. Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex.1995). We reserve a discussion of the “why” requisite for later in this opinion. Though the clear dictate of Moriel is post-active, Keever speaks contrarily: Although Moriel was decided after the court of appeals’ decision in this case, its holding should be applied to a pending case in which a party has preserved the complaint that the court of appeals failed to properly scrutinize a punitive damage award. Here, the Bank specifically argues in its application for writ of error that the court of appeals failed to adequately consider the Kraus factors. Also in its motion for rehearing en banc in the court of appeals, the Bank presented a point of error complaining that ‘the court of appeals erred in failing to order remittitur of punitive damages awarded against the Bank,’ arguing under this point that the punitive damage award was ‘patently unreasonable’ and ‘so excessive as to indicate passion or prejudice on the part of the jury.’ Although the Bank did not specifically refer to the Kraus factors in the motion for rehearing, it adequately preserved this issue below under our practice of ‘construing] liberally points of error in order to obtain a just, fair and equitable adjudication of the rights of the litigants.’ Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). Keever, 888 S.W.2d at 799. In view of what we perceive to be somewhat, of a quagmire, only judicial obstinance would compel us to pursue this opinion as if Moriel did not apply. We cannot ignore, however, what appears to be an impediment, an encroachment, an infringement or lessening of appellees’ right to a just, fair and equitable adjudication of their rights as litigants. Appellees tried their lawsuit without knowledge or beneficial guidance from Mor-iel. Likewise, the trial judge pursued this trial according to the law existing at trial time. Now, only Mobil can receive the benefits of Moriel scrutiny. Mobil requests this Court to render judgment that appellees take nothing against Mobil and alternatively to remand this case for a new trial. We readily admit the “safe” address to this case is to seek reason for remand to provide appellees the justness of a trial under now existing law. We choose to ignore the easy way out and leap headlong into this appeal. Further, we intend to recognize Keever and apply Moñel post-actively. Since Monel requires a detailed analysis of the evidence, microscopically viewed through application of the Kraus factors, we set forth the evidence, first by parties overview, then through more precise detailing. In so doing, we sustain appellant’s point of error ten only as to requiring Moriel/Kmus analysis. We find no error in the trial court’s conformity to required standards. Thus we overrule the substantive elements of appellant’s point of error ten. APPELLEES’ OVERVIEW OF THE EVIDENCE The decedent, Mr. Eli Ellender, was a millwright working out of Union Local 2484. Mr. Ellender worked for contractors at Mobil's Beaumont Plant during the mid-sixties and early seventies. While intermittently on Mobil’s premises, Mr. Ellender worked on pumps, product lines, and steam cleaning equipment. During his work periods at Mobil, Mr. Ellender was in daily contact with benzene. Long-time co-workers of Mr. El-lender testified they and decedent daily washed and cleaned their tools and hands in benzene, sometimes more than once a day. This daily activity exposed Mr. Ellender to benzene at concentrations of up to 1,000 p.p.m. in air. The benzene to which Mr. Ellender was exposed was provided by Mobil, with Mobil’s knowledge. Others, including former Mobil employees, testified workers used benzene to clean and wash clothes, tools and hands. APPELLANT’S OVERVIEW OF THE EVIDENCE Over the course of more than twenty-seven years, the decedent was employed by various construction companies and worked as a millwright or machinist who repaired and serviced equipment. Those construction companies and their workers in turn were hired by independent contractors by various owners and operators of refineries and plants. Between 1963 and 1977, the decedent worked periodically as an independent contractor millwright at Mobil’s chemical plant and refinery, as well as at other facilities owned and operated by companies unrelated to Mobil. The decedent was never employed by Mobil and did not work continuously at Mobil facilities. Like other millwrights, decedent was called in only on an as-needed basis to repair or service equipment. Mobil manufactures a wide range of chemicals, as do many other companies with facilities in the Beaumont area. In Beaumont, Mobil currently has a refinery and a chemical plant. Mobil’s Beaumont refinery has never manufactured benzene. In the mid-1960’s to mid 1970’s, Mobil Chemical had two chemical plants in Beaumont. One plant, which Mobil Chemical still owns and operates, is an ole-fins and aromatics plant (0 & A plant). The 0 & A plant has two units: (i) an olefins unit that manufactures ethylene, propylene, bu-tylene and other products, and (ii) an aromatics unit that manufactures benzene. The other plant, which Mobil no longer owns, manufactured a white powder known as tere-phthalic acid or TPA (TPA plant). Tere-phthalic acid does not contain benzene; it is produced by the oxidation of paraxylene. The decedent worked primarily at the TPA plant and only a short time at the 0 & A plant. Mobil contends there is no evidence TPA causes leukemia. EXCLUSION OF EVIDENCE In this appeal, Mobil makes no challenge to Jury Question 1 which provides: Did the negligence, if any, of Mobil proximately cause the death of Eh Arnold El-lender? Answer: ICYes” or “No.” Answer: Yes We view Mobil’s decision not to challenge the jury’s negligence finding as acknowledging that Mr. Ellender died of and from acute myelogenous leukemia (AML), proximately caused by Mobil’s negligence. In light of Mobil’s decision not to challenge the jury’s negligence findings, we overrule appellant’s point of error seventeen contending the trial court erred in excluding Mr. Ellender’s sworn deposition testimony from his prior asbestos products liability suit in which Mr. Ellender admitted he had never been exposed to any chemicals, such admission bearing directly on Mobil’s defense. We conclude any error committed by the trial court’s exclusion of this evidence is now moot for Mobil’s failure to challenge the factual finding that it was Mobil’s negligence in exposing Mr. Ellender to benzene which brought about his death. Point of error seventeen is overruled. ERROR AS ALLEGED BY MOBIL Mobil brings the following points of error relating to the jury’s affirmative findings of gross negligence, malice and exemplary damages: Point of Error One The trial court erred in rendering judgment against Mobil and in overruling its Rule 301 motion because there is no evidence or legally insufficient evidence of gross negligence. Point of Error Two The trial court erred in rendering judgment against Mobil and in overruling its motion for new trial because there is factually insufficient evidence of gross negligence or the jury’s gross negligence finding is against the great weight and preponderance of the evidence. Point of Error Three The trial court erred in rendering judgment against Mobil and in overruling its Rule 301 motion because there is no evidence or legally insufficient evidence of malice. Point of Error Four The trial court erred in rendering judgment against Mobil and in overruling its motion for new trial because there is factually insufficient evidence of malice or the jury’s malice finding is against the great weight and preponderance of the evidence. Point of Error Five The trial court erred in rendering judgment against Mobil and in overruling its post-verdict motions because there is no evidence or legally insufficient evidence to support the exemplary damages. Point of Error Six The trial court erred in rendering judgment against Mobil and in overruling its post-verdict motions because there is factually insufficient evidence to support the exemplary damages or the exemplary damages are against the great weight and preponderance of the evidence. Point of Error Seven The trial court erred in rendering judgment against Mobil on the exemplary damage award and in overruling its post-verdict motions because there is no evidence or legally insufficient evidence that any Mobil vice principal committed any act of gross negligence or malice, which is a legal prerequisite to exemplary damage liability. Point of Error Eight The trial court erred in rendering judgment against Mobil on the exemplary damage award and in overruling its post-verdict motions because there is factually insufficient evidence that any Mobil vice principal committed any ,aet of gross negligence or malice, which is a legal prerequisite to exemplary damage liability. Point of Error Nine The trial court erred in rendering judgment against Mobil and in overruling its post-verdict motions because the exemplary damages are excessive. Point of Error Eleven The trial court erred in rendering judgment against Mobil, in overruling Mobil’s objections to the jury charge and in overruling its post-verdict motions because Question 12 was defective and cannot support the award of exemplary damages. Point of Error Twelve The trial court erred in rendering judgment against Mobil, in overruling its objections to the jury charge and in overruling its post-verdict motions because the Texas system for awarding and reviewing exemplary damages in general and as applied in this case violates Mobil’s constitutional rights under the Fourteenth Amendment to the Constitution of the United States and the due course of law provisions in article I, sections 13 and 19, of the Constitution of the State of Texas. JURY’S FINDINGS Jury Questions 10 and 11, being conditioned upon the negligence finding in Jury Question 1, provided: Question 10 Was such negligence of Mobil “gross negligence”? “Gross negligence” means more than momentary thoughtlessness, inadvertence or eiTor of judgment so as to constitute an entire want of care as to establish that the acts or omissions of Mobil were the result of actual conscious indifference to the rights, safety or welfare of the persons effected? Answer “Yes” or “No.” Answer: Yes Question 11 Did Mobil act with “malice” towards Eli Arnold Ellender? “Malice” means an act that is carried out by Mobil with a flagrant disregard for the rights of others and with actual awareness on the part of Mobil that their acts will, in reasonable probability, result in either human death or great bodily harm? Answer “Yes” or “No.” Answer: Yes Question 12 What sum of money, if any, should be assessed against Mobil as exemplary damages for the death of Eli Arnold Ellender? “Exemplary damages” means an amount that you may, in your discretion, award as an example to others and as a penalty or by way of punishment, in addition to any amount that you may have found as actual damages. Answer in dollars and cents: $ 6 million Mobil contends the foremost error committed by the trial court was its refusal to apply Moriel scrutiny, post-trial, to gross negligence, malice and exemplary damage findings. Appellees vigorously argue Moriel does not and should not apply to this appeal. Appellees further contend that, assuming ar-guendo Moriel does apply, the Moriel standards have been met or exceeded in the present case. Since this Court is determined to analyze this appeal pursuant to Moriel requirements, we must make clear the standard for reviewing the evidence. According to Mor-iel, to reach punitive damages, the record must contain legally sufficient evidence of Mobil’s gross negligence. Otherwise, we must reverse the judgment of the trial court. Moriel, 879 S.W.2d at 24. However, if the evidence of gross negligence is legally sufficient, we may not reverse the trial court’s judgment. Id. Moriel, 879 S.W.2d at 25, instructs: In evaluating legal sufficiency, we are required to determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex.L.Rev. 515, 522, 523 (1991) (‘[T]he court must be persuaded that reasonable minds could not differ on the matter.... Ultimately, the test for “conclusive evidence” ... is similar to the test for “no evidence” ... the court asks whether reasonable minds could differ about the fact determination to be made by the jury.’); [Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 363-65 (I960)] (‘The rule as generally stated is that if reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will be held to be the legal equivalent of no evidence.’); see also Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984); Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884 (1946); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); McDonough v. Zamora, 338 S.W.2d 507, 515-16 (Tex.Civ.App.— San Antonio 1960, writ ref d n.r.e.). Thus, as to gross negligence, we are not concerned with Mobil’s factual insufficiency or great weight and preponderance of the evidence points. Our sole concern is whether there is some evidence of gross negligence on the part of Mobil which overcomes Mobil’s legal insufficiency/no evidence contention. See Universal Serv. Co., Inc. v. Ung, 904 S.W.2d 638, 642 (Tex.1995). Factual insufficiency or great weight and preponderance review in gross negligence eases applies where the amount of punitive damages awarded has been preserved. See Moriel, 879 S.W.2d at 30-31. It is as to the amount of punitive damages the Kraus factors become significant. Kraus, 616 S.W.2d at 908. We cannot simply review questions of gross negligence by traditional standards requiring appellate courts to look only at the evidence favoring the verdict. Apache Corp. v. Moore, 891 S.W.2d 671, 680 (Tex.App.— Amarillo 1994). Moriel requires that before a gross negligence finding can be sustained, the evidence must show both that the act was likely to result in serious harm and that the defendant was consciously indifferent to the risk of harm. Moriel, 879 S.W.2d at 22-23. Therefore, we are obligated to review all factors attributable to the exemplary damage award, setting forth in detail those facts supporting the award, and then determine whether there is legally sufficient evidence to support the objective and subjective components and the finding. Apache Corp., 891 S.W.2d at 681. It is Mobil’s burden on appeal to establish there is no evidence to support the jury’s finding of gross negligence. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920-21 (Tex.1981). The finding of gross negligence will be upheld if there is legally sufficient evidence (1) the defendant’s conduct created an extreme risk of harm and (2) the defendant was aware of the extreme risk. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). “In evaluating legal sufficiency, we are required to determine whether the proffered evidence as a whole rises to a level which would enable reasonable and fair-minded people to differ in their conclusion.” Apache Corp., 891 S.W.2d at 681 (citing McDonough v. Zamora, 338 S.W.2d 507, 515-16 (Tex.Civ.App. — San Antonio 1960, writ ref d n.r.e.)). Moriel provides a “functional interpretation” of gross negligence requiring both an objective and subjective analysis. “Objectively, the conduct of defendant must involve an “extreme degree of risk,” a threshold significantly higher than the objective “reasonable person” test for negligence.” Moriel, 879 S.W.2d at 22. “Subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct.” Id. In reviewing the objective component of gross negligence, “extreme risk” must amount to more than a remote possibility of injury or a high probability of minor harm. Id. “Extreme risk” is satisfied by showing “likelihood of serious injury.” Id. Further, in reviewing evidence of gross negligence, we examine the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. Id. at 23. Succinctly stated, to uphold the gross negligence finding, Monel requires legally sufficient evidence showing that the presence, use and control of benzene at Mobil’s facility, during the pertinent time periods between 1968 and 1977, created an extreme risk to Mr. Ellender, that such risk exceeded remote possibility, creating “a likelihood” of serious injury, Wal-Mart Stores, Inc., 868 S.W.2d at 327, and conjunctively, that Mobil had actual awareness of the extreme risk created by its conduct, extreme risk being a function of both the magnitude and the probability of the anticipated injury. Moriel, 879 S.W.2d at 22. The evidence must be legally sufficient to support both standards, i.e., the objective and the subjective. Proof of Mobil’s “subjective” state of mind does not require “direct evidence” for such may be proven by either direct or circumstantial evidence. Id. at 23. OBJECTIVE EVIDENCE OF MOBIL’S GROSS NEGLIGENCE Query: Did Mobil’s conduct involve an extreme degree of risk creating a likelihood of serious injury to Mr. Ellender? During the times Mr. Ellender worked at Mobil’s premises, he was exposed to benzene when required to open pumps containing benzene for the purpose of changing seals and gaskets. Mr. Ellender was also exposed to benzene from Mobil’s ditches and sewers. There is also evidence Mr. Ellender was exposed to benzene through fugitive emissions such as leaks from stacks, valves and pumps. In 1989, Dr. Sheppard, called in as a medical consultant by Mr. Ellender’s treating physician, diagnosed acute myeloblastic leukemia (AML) which was confirmed by the attending pathologist. Dr. Sheppard is Board-certified in Internal Medicine and was twice Chief of Staff for Park Place Hospital. Dr. Sheppard testified Mr. Ellen-der’s AML was caused by occupational exposure to benzene. Dr. Gardner, Board-certified in Internal Medicine, former Chief of Staff and current Clinical Professor of Hematology/Oncology at UTMB/Galveston, testified Mr. Ellender died of AML due to benzene exposure. Dr. Dement, of Duke University, agreed with the AML diagnosis and that Mr. Ellender’s occupational benzene exposure was the cause of his disease. Dr. Dement’s credentials include associate professor of occupational and environmental medicine at Duke University, certified industrial hygienist, former industrial hygiene engineer with NIOSH (the federal agency responsible for occupational health research), former Chairman of ACGIH (agency establishing threshold limit values), and director of the National Institute of Environmental Health Sciences’ Office of Disease Prevention and Exposure Research. Dr. Bingham, University of Cincinnati professor of environmental health, former head of OSHA (Occupational Safety and Health Association), and toxicologist, testified Mr. Ellender’s occupational benzene exposure caused his AML. A benzene data sheet published by the National Safety Council in 1960 states in pertinent part “[b]eeause the appearance and pleasant smell of benzene give no warning of its toxic effect and because a victim may become incurably poisoned before he feels ill, benzene is one of the most insidious poisons ever to find wide industrial use.” National Safety Council, Benzene (1950). Mobil stipulated its National Safety Council membership since 1922. Benzene’s destructive effect on human blood and blood-forming organs was known in the early 1900’s. In 1926, the National Safety Council reported “[t]he most characteristic pathological effect of [benzene] is perhaps its destructive influence upon the cells of the blood and the blood-forming organs.” Winslow, C.E.A. Et Al, Final Report of the Committee on Benzol 27 (1926). In 1948, the American Petroleum Institute (API) informed its members that “[¡Inasmuch as the body develops no tolerance to benzene, and as there is a wide variation in individual susceptibility, it is generally considered that the only absolutely safe concentration for benzene is zero.” Amerioan Petroleum Institute, API Toxologioal Review — Benzene 4 (1948). Mobil stipulated its API membership since 1919. Other petroleum chemical companies knew of benzene’s harmful effect. In 1943, a Dr. Soley reported to Shell Development Company that “prolonged exposure to low concentrations [of benzene] may be most dangerous”. Soley, M.H., REPORT to Shell Development CompaNY on Benzenes, NitRobenzenes, Anilines and Xylidines 2 (1943). In 1948, Exxon’s industrial hygienist noted the definite correlation between cancer and benzene. Exxon was informed in 1953, 10 years prior to Mr. Ellender’s first exposure to benzene at Mobil, that “no concentration of benzene is considered to be safe....” Exxon was informed a warning should be placed on benzene containers using the word “poison”. Conoco also knew of the hazards of benzene in the 1950’s. In language virtually identical to the 1948 API study, Conoeo’s 1953 safety manual stated “as there is a wide variation in individual susceptibility it is generally considered the only absolutely safe concentration for benzene is zero.” CONOCO, Conooo Safety Manual 145 (1953). Dr. Potts, Mobil’s regional medical director for the western region, inclusive of Beaumont, from 1960 to 1983, knew while in medical school in the 1940’s benzene caused blood disease. Dr. Potts knew in the 1950’s washing hands and tools in benzene was hazardous to workers. Dr. Potts testified he had access to the API and National Safety Council reports in the 1950’s and probably saw the 1948 API study. Dr. Potts testified he felt Mobil knew the hazards of benzene in the 1950’s. Dr. Potts further testified as to discussing benzene hazards with Mobil’s Beaumont plant physician, Dr. Stewart, in the 1950’s. Dr. Esslinger, Mobil’s Beaumont plant doctor throughout the 1960’s, knew, as of 1960, benzene should be avoided, it was toxic and harmful to the body. Mobil’s director of epidemiology and medical information services, reported in 1983 “[e]vidence that exposure to high doses of benzene is related to [AML] is strong and was first reported about 70 years ago.” The evidentiary record clearly shows Mobil knew the dangers of benzene by the late 1940’s and 1950’s, 10 years prior to Mr. El-lender’s appearance on Mobil’s premises. Co-workers with Mr. Ellender testified Mobil never provided any warnings during the 1960’s or 1970’s that benzene was harmful or that it eaused cancer or leukemia. Further, Mobil had no safety program for contractors. Mobil’s own witnesses agreed Mobil management declined to tell them of the dangers of benzene in the 1960’s and early 1970’s. Interestingly, Mr. Cunningham, a safety officer at Mobil’s plant, did not know benzene could cause leukemia or other ramifications of benzene until Mobil’s attorney informed him of such prior to his 1993 deposition in this ease. Mr. Dunham, a Mobil industrial hygienist, testified he saw no warning signs at Mobil’s Beaumont plant prior to or during 1978. Dr. Esslinger, former medical director for Mobil Chemical in Beaumont, testified he knew workers used benzene to wash their hands and a worker washing his hands or tools in benzene, indicated the worker was not properly warned of benzene hazards. Former Mobil industrial hygienist, Mr. Witzke, testified it was common for workers at Mobil to wash clothes in benzene and he personally saw this being done at least once while at Mobil’s Beaumont plant during 1973-1976. Mobil did not provide contractors such as Mr. Ellender with protective equipment. During the 1950’s and 1960’s, Mobil did not tell its own employees to wear respirators to protect themselves from benzene exposure. Dr. Dement testified Mobil’s industrial hygiene program was poor and practically nonexistent for contractors. Mobil did no benzene monitoring at all prior to 1973 and, in fact, Mobil’s unwritten policy was not to conduct benzene monitoring for workers like Mr. Ellender. Mr. Dunham admitted personal monitoring is the only sure way to assess worker exposure to benzene. According to Dr. Dement, technology for the air sampling of benzene has existed since the 1920’s and by 1950 a variety of techniques and devices were available. Mobil never monitored Mr. Ellender or his co-workers. Mobil did no medical surveillance monitoring of contract employees. In 1988, Mobil had not yet labeled all benzene containing process lines as required by OSHA. Dr. Potts testified Mobil believed it had no obligation to inform workers of injury causing materials unless Mobil was “very sure” it would affect the workers. Up to 1988, Mobil was not notifying workers of benzene exposure levels above action levels and permissible exposure levels. Dr. Dement testified a worker’s right to know about his exposure to benzene is a matter of safety and necessary for worker protection and that the failure to inform workers • of benzene exposure reflected Mobil’s unconscionable disregard for worker safety. Mobil’s current and former employees, called by Mobil to testify at trial, agreed workers had a right to know. Appellees contended Mobil’s failure to warn and inform workers of benzene hazards, failure to provide protective equipment and failure to monitor and test workers for exposure to Mobil benzene while on Mobil premises amounted to gross negligence in light of Mobil’s knowledge long before Mr. Ellender’s exposure. Dr. Bingham testified Mobil exhibited, conscious disregard toward Mr. Ellender. Dr. Dement testified Mobil demonstrated disregard for worker safety, its policy not to monitor contractors like Mr. Ellender reflected its conscious disregard for worker safety and welfare, and Mobil’s corporate management policies on industrial hygiene were grossly inadequate. Appellees contend not only did Mobil deliberately disregard worker safety, but it used worker health and safety as a bargaining chip in its negotiations with OSHA. Mobil counters the foregoing evidence by pointing out the decedent’s entire work history at Mobil’s facilities does not reflect a single complaint about exposure — to benzene or any other chemicals. Mobil contends when Mr. Ellender was deposed in another ease against certain asbestos manufacturers for asbestosis, decedent unequivocally denied under oath he had ever been exposed to chemicals. The trial court excluded this evidence and, as noted above, the propriety of that ruling is now moot. Mobil contends when Mr. Ellender sought medical treatment shortly before his death, he never mentioned exposure to benzene. The medical records disclose no reference to benzene. Mobil posits that only after Mr. Ellender died did some members of his family or anyone else claim his AML was due to purported benzene exposure. Mr. Ellender’s primary treating physician did not testify at trial. However, Dr. Shepherd, a physician who consulted with the treating physician, testified he was asked to assist in the diagnosis because Mr. Ellender complained of a nonspecific illness, muscle aches and pains, weakness and some fever. After receiving test results, Dr. Shepherd made a written diagnosis of “acute leukemic crisis,” noted “crepitation of both lung fields” and wondered about possible congestive heart failure and pulmonary edema. Within three days of seeking treatment, Mr. Ellen-der died of “cardiac arrest brought on by the cessation of cardiac and respiratory function.” Mobil points out Dr. Sheppard did not know Mr. Ellender had pulmonary asbestosis and did not review Mr. Ellender’s medical records from the Texas Lung Institute, even though prior to the decedent’s diagnosis of leukemia he had been diagnosed with tuberculosis and pulmonary asbestosis. Mobil also highlights Mr. and Mrs. Ellender recovered at least $142,000 when they settled their prior asbestos products suit. Mobil points out that in 1963, when Mr. Ellender first worked at Mobil, the only in-dustrywide standards were guidelines proposed by the American Conference of Governmental Industrial Hygienists (ACGIH), a group of occupational health professionals. ACGIH recommended “threshold limit values” for certain substances, proposing a threshold limit value for benzene in 1963 of 25 parts per million (ppm). In 1974, the ACGIH adopted a threshold limit value of 10 parts per million. Congress first developed industry-wide standards after 1970, Mobil emphasizes, when it created OSHA and passed the Occupational Safety and Health Act. The first OSHA standard for benzene was issued in 1971 and incorporated the ACGIH threshold limit values, calling them “permissible exposure limits.” Compliance with these OSHA standards involved evaluat-mg potential exposure. Mobil proffers that from 1974-1977, it conducted air testing and medical testing at the refinery and 0 & A plant, which found no abnormalities suggesting benzene exposure. It is Mobil’s specific contention that “[statistically, Mobil's Epidemiology studies confirm that under Moñel ⅛ substantive test for gross negligence, Mobil was reasonable in believing that its operations created no ‘extreme risk’ of ‘serious harm’ to the decedent.” Mobil claims these studies show that for Mobil refinery workers who worked in the 1960’s and 1970’s, when the decedent worked on Mobil premises, there was no increased risk of dying from leukemia. Further, Mobil points out, no Mobil worker contacted had contracted leukemia from 1962, when the plant opened, through 1981. Although Mobil highlights its air testing and medical testing procedures, we find no evidence in the record where Mobil shared its concern regarding the effects of benzene with any contractors or employees of contractors other than its own. Again, Mobil tendered no evidence that it ever informed workers like Mr. Ellender of the need for industrial hygiene monitoring or medical testing of employees exposed to benzene. Does the evidence in this case propel beyond ordinary negligence? “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent. Only if the defendant’s act or omission is unjustifiable and likely to cause serious harm can it be grossly negligent.” Moriel, 879 S.W.2d at 22. We conclude the evidence is legally sufficient to show Mobil’s conduct regarding the presence and use of benzene at its Beaumont facilities created an extreme degree of risk to contract workers such as Mr. Ellender, which in turn created a likelihood workers such as Mr. Ellender would suffer serious injury. SUBJECTIVE EVIDENCE OF MOBIL’S GROSS NEGLIGENCE Query: Did Mobil have actual, subjective awareness of the risk involved to Mr. Ellen-der, but nevertheless proceeded with conscious indifference to the rights, welfare and safety of Mr. Ellender?’ Mr. Ellender, along with other co-workers, was exposed to benzene in many ways with high potential for heavy benzene exposure. There is evidence Mr. Ellender and other coworkers performed their labor under Mobil’s direction. Mobil told contract workers like Mr. Ellender where to work and had complete authority to stop work or shut down if anything appeared unsafe. Mobil's practices and procedures leading to Mr. Ellender’s benzene exposure were long-standing and widely known. Mobil allowed and encouraged workers to use benzene to wash their hands, tools and clothes. Mobil allowed workers to be exposed to benzene contained in piping and equipment. Mr. Witzke, Mobil’s industrial hygienist admitted that during his 1973-1976 tenure at Mobil “it was a normal occurrence that ... benzene was leaked to the ground or spilled to the ground on the disconnection and connection operations. So there was always benzene being spilt onto the ground.” Mr. Ellender and workers similarly situated were exposed to benzene from Mobil ditches and sewers. Workers were also exposed to benzene through fugitive emissions into the air. Moriel's subjective component may be proven by direct or circumstantial evidence. Moriel, 879 S.W.2d at 23. Accord Apache Corp., 891 S.W.2d at 682. Clearly, monitoring and sampling are the best ways to determine a worker’s benzene exposure, allowing protective, preventive steps to be taken to avoid further exposure. However, the evidence reveals it was Mobil’s unwritten policy not to monitor contract workers like Mr. Ellender. When Mobil’s industrial hygienists attempted to monitor contract workers like Mr. Ellender, Mobil insisted such procedure be stopped. Mobil did not tell contract workers about the hazards of benzene exposure until the mid-to-late 1980’s, after Mr. Ellender ceased to work at Mobil. Mobil neither required nor provided workers such as Mr. Ellender with protective gear to prevent benzene exposure. Mobil posted no signs warning of the presence of benzene or of the hazards of benzene exposure during Mr. Ellender’s tenure at Mobil. Mobil’s sampling for benzene exposure at its Beaumont plant was nonexistent prior to 1972 or 1973 and was almost non-existent prior to 1976 although the technology and methodology had existed since the 1920’s. Mobil failed to institute a benzene leak detection/prevention program until 1985, although the technology had been available for decades. Dr. Esslinger testified Mobil had an obligation to tell workers about their exposure to benzene. There is evidence Mobil was providing itself with inadequate data to assess contract workers’ benzene exposure at the plant even into the late 1980’s. Mobil’s air monitoring for benzene exposure at the plant neither accurately nor adequately represented contract worker exposure to benzene even by the late 1980’s. As late as 1988-89, Mobil continued its policy of not notifying workers in the plant about benzene exposure levels. Mobil did not distribute benzene exposure warnings and information to workers at the plant nor did Mobil pass on to contract workers literature from API or the Chemical Manufactures Association warning of the dangers of benzene exposure. Mobil, though aware of the dangers associated with benzene, did not provide warning signs to workers until approximately 1987. Though Mobil knew the hazards associated with worker exposure to benzene, it failed to inform workers of these hazards and failed to control their exposure. According to Dr. Dement, there was no rational reason not to tell workers about their benzene exposure. Mobil excluded any reference to benzene hazards in its 1967 “Mobil Safety and Security Regulations for Contract Workers.” In 1926, the National Safety Council recommended protective measures to guard against benzene exposure, e.g., that enclosed apparatus be used for handling benzene, proper ventilation, use of respirators to prevent inhalation, use of gloves to prevent absorption through the skin, systematic medical examinations, and worker education. These precautions were available to Mobil in 1926, when the report was published. Samples taken at Mobil in the 1960’s and 1970’s reflected excessive exposure to benzene. By brief, Mobil points out “[t]he decedent was not diagnosed with leukemia until 1989, 26 years after he first worked part-time on Mobil’s premises and 12 years after he last worked on Mobil’s premises.” Again, Mobil has not challenged the facts, the finding, nor the law as to its negligence being the proximate cause of Mr. Ellender’s death resulting from exposure to benzene on Mobil’s premises. Clearly, there is direct and circumstantial evidence, with reasonable inferences therefrom, that Mobil had actual, subjective awareness of the risk of benzene exposure to Mr. Ellender, but proceeded with conscious indifference as to his rights, safety and welfare. We find the case of Apache Corp., 891 S.W.2d at 671, beneficially comparative. In Apache Corp., plaintiffs claimed negligence and gross negligence stemming from allegations Apache company men working on the Key 1-11 well took kickbacks in the form of money, cocaine, alcohol, prostitutes, and the like in exchange for giving work to various companies. It was alleged Apache was aware of these ongoings prior to the blowout of that well. Our Amarillo Court affirmed the punitive damages awarded and our Texas Supreme Court denied writ. In that case, Apache knew about its workers taking “kickbacks” which admittedly affected job performance; however Apache did not stop such practices. In our present case, Mobil knew of the dangers associated with benzene exposure but did not prevent such exposure, protect Mr. Ellender from those dangers, or warn him of them. In Apache Corp., the defendant did not conduct required testing prior to continuing its operation. Though evidence reveals Mobil did certain testing, we find no evidence Mobil shared such information with workers like Mr. Ellender. In Apache Corp., the defendant knew there were “leaks” on the equipment but determined to continue operations anyway. Mobil knew workers were being exposed to benzene through various and sundry means, not the least of which was the use of benzene to wash hands, clothes and tools, and did not prevent or limit such exposure. In Apache Corp., the defendant knew “the relief valve needed a steady flow of nitrogen to operate properly and prevent the blowout; yet Apache did not adequately monitor the flow_” Id. at 682. Mobil failed to adequately sample and monitor exposure and apprise workers of the dangers associated with benzene. We believe the facts of our present case to be more compelling, supportive of gross negligence than are the facts in Apache Corp. Mobil’s policy was to not monitor contract workers like Mr. Ellender for benzene exposure and further, Mobil prohibited its industrial hygienists from doing so. We conclude there is legally sufficient evidence to support the subjective prong now required in upholding the gross negligence finding. Appellant’s points of error one and two are overruled. MALICE FINDING Mobil contends the jury’s malice finding should be set aside because there is no evidence of malice. For authority, appellant cites Ware v. Paxton, 359 S.W.2d 897, 898, 902 (Tex.1962), and Kroger Food Co. v. Singletary, 438 S.W.2d 621, 625-627 (Tex.Civ.App. — Beaumont 1969, no writ). Appellant makes no meaningful application of these cases. Mobil contends it had a “reasonable basis for its conduct and its belief that its operations created no extreme risk of serious harm to the decedent or the other workers.” Though it is unclear in appellant’s brief, it appears Mobil is contending its conduct should be evaluated in a manner similar to appellate evaluation in bad faith insurance eases. If Mobil is suggesting “reasonable basis” should be applicable in non-insurance gross negligence cases, we hereby reject such a proposal. Other than these generalities, Mobil makes no articulable argument regarding its position. Appellees only respond generally to Mobil’s no evidence/insufficiency of the evidence points regarding malice. Nor do appellees challenge the trial court’s “capping” of punitive damages pursuant to Tex. Civ. PRAC. & Rem.Code § 41.007, which is not required where malice is found. Though ap-pellees bring no cross-point as to the trial court’s failure to disregard “capping” under § 41.007, in view of the evidentiary record we simply cannot sustain appellant’s points of error three and four, for the record indeed supports the malice finding. We do however, observe for, but do not so hold, that a finding of malice supported by legally sufficient evidence should obviate any requirement for application of Kraus factors in punitive damage eases. MOBIL’S VICE PRINCIPAL POINTS Mobil’s points of error seven and eight contend the evidence neither legally nor factually supports any finding that any Mobil vice principal committed any act of gross negligence or malice. Appellant uses as its primary authority Hays v. Houston G.N.R.R., 46 Tex. 272 (1876) and Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934), overruled in part by Wright v. Gifford-Hill & Co., Inc., 725 S.W.2d 712 (Tex.1987). We reject Mobil’s argument and overrule points of error seven and eight. The record is clear Mobil neither argued nor contended for its vice principal position at the time of trial. Mobil first raised the vice principal question in its post-verdict motions. This Court has previously held: “[w]hen some, but not all, of a cluster of issues necessary to sustain a ground of recovery are given and answered by the jury without objection or request, the trial court may make written findings on [the] omitted issues.... If no written findings are made, the omitted issues are deemed to have been found by the court in such a manner to support the judgment”. Gulf States Utilities Co. v. Dryden, 735 S.W.2d 263, 266 (Tex.App. — Beaumont 1987, no writ); Phelan v. Lopez, 701 S.W.2d 327, 331 (Tex.App. — Beaumont 1985, no writ); Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668-9 (Tex.1990). We conclude Mobil’s failure to challenge the “deemed findings” by points of error or argument amounts to a waiver of Mobil’s position in this appeal. A “deemed finding” must be challenged in the same manner as express findings by the trial court or the jury, or the same is waived. See Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). Points of error seven and eight are overruled. EXEMPLARY DAMAGES Mobil points of error five, six, nine, eleven and twelve question the exemplary damage award. Mobil points out, to our agreement, that courts of appeals share the duty with trial courts to prevent erroneous and excessive exemplary damage awards. We recognize this to be a clear import of Moriel. In order to proeedurally safeguard against the potential of excessive awards, our Texas Supreme Court established criteria to control those potentials. In Kraus, 616 S.W.2d at 910, our highest civil court set forth guiding factors to determine the reasonableness of an award of exemplary damages. Questions relating to exeessiveness are to be considei’ed at all levels — trial, post-trial review by trial court, and through the appellate process. At all levels, consideration must be given to: “(1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.” Kraus, 616 S.W.2d at 910; see also Moriel, 879 S.W.2d at 16-17, 28, 29 and n. 26. It is Mobil’s contention the trial court failed, thus erred, in providing the jury with proper Kraus instructions and further, that the trial court erred in failing to properly apply the Kraus factors to post-verdict review. During charge conference, Kraus was not mentioned. However, in objecting to the court’s submission on gross negligence, Mobil’s counsel contended: “It would unfairly apprise the jury of — or adequately apprise the jury of exactly what is required did not impose sufficient procedural boundaries on the jury in their decision as to whether or not punitive damages should be awarded; and we would incorporate the same objection into that question that inquires as to the amount of exemplary damages to be awarded ...” Although Mobil objected to the trial court’s submission of the gross negligence issue, Mobil made no tender to the trial court of what Mobil considered to be a proper question and definition. In other words, Mobil failed to submit to the trial court a requested instruction on gross negligence covering what Mobil now contends to be the missing Kraus factors. Mobil further failed to request or clearly object to, or submit any requested punitive damage question. On May 23, 1994, a hearing on Mobil’s motion for new trial was held. The following colloquy took place: MR. BAKER: Also, your Honor, we would assert that the jury was not guided by any factors with regard to establishing the amount of punitive damages. Typically Texas Courts have focused on what they call the Kraus factors, which are from the Kraus versus Alarm Heights Bank case. In this case the jury had — had no instruction or guidelines given to them in that regard. We believe that not only the jury should have been guided by those, but in evaluating the jury’s finding of punitive damages, this Court should apply those factors or a variance of those factors in determining whether or not this award is supported in the evidence. And we would — as we asserted in our motion earlier at the hearing on the motion for judgment, we think that the Court should, in its evaluation of the gross negligence, make findings in that regard, as well as findings with regard to the punitive — the amount of the punitive damages. THE COURT: We used — I think we used the pattern jury charge regarding the submission on gross negligence and punitive damages, didn’t we? MR. BAKER: Yes, sir. THE COURT: Was there any objection at the time of the submission on the lack of these guidelines? MR. BAKER: Yes, your Honor. MR. FERGUSON: Just for the record, I’m going to disagree with that. I think the record will speak to whether or not there was any objection or any submission of Kraus factors, and I don’t want my silence to be construed as any waiver or admission that that was done. THE COURT: Was there an alternative charge that included those factors submitted to the Court? MR. BAKER: I think there was an objection, your Honor. I do not think there was a submission that included those— THE COURT: All right. MR. BAKER: — factors. THE COURT: Did you have any other response to that? MR. FERGUSON: Your Honor, none' other than the fact that if the defense doesn’t request any instructions, then the Court obviously is under no obligation to do so. We submitted the case according to the pattern jury charge under the law in effect at the time the case was tried. Moñel and its progeny that has followed thereafter has specifically held that if you want, for example, the Kraus factors, you have to preserve error; and in order to preserve error, it was incumbent upon the defendant to request the submission of the issue. And they have not done that. I think any substantive inquiry is moot at this time until they can get over the procedural hurdle, which they cannot. THE COURT: All right. I understand your position on that. I’ll overrule that objection. At trial, gross negligence was defined by statute as follows: “Gross Negligence” means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected. Tex. Civ. PRAC. & Rem.Code Ann. § 41.001(5). The definition of gross negligence given by the trial court tracks almost verbatim the statutory definition. We assume our State legislature, in its wisdom and its awareness of Kraus, was then (1987) satisfied that such definition appropriately included a consideration of Kraus factors. Again, Mobil failed to tender any expansion or clarification to the trial court. EVALUATION OF KRAUS FACTORS Having determined that legally sufficient evidence supports the jury’s finding of gross negligence authorizing the recovery of punitive damages, we now determine whether the amount of the award reasonably relates to Mobil’s gross negligence and whether the punitive damages awarded are reasonably proportioned to actual damages. See Kraus, 616 S.W.2d at 910, (citing Southwestern Inv. Co. v. Neeley, 462 S.W.2d 705 (Tex.1970)). Whether the amount of damages awarded by the jury is excessive is a question of fact over which our Texas Supreme Court has no jurisdiction. Kraus, 616 5.W.2d at 910. However, “[wjhether the Court of ... Appeals applied an erroneous standard in determining the excessiveness of damages presents a question of law within the jurisdiction of [the Texas Supreme] Court.” Id. at 910. Intermediate Courts of Appeals are now compelled to re-review the evidence supportive of an affirmative finding of gross negligence and apply such evidence, along with any other evidence, in determining whether or not the exemplary damages awarded are reasonable. Although, in this case, we have detailed evidence supportive of both the objective and subjective prong of Moriel, we must now re-address such evidence as same applies to each individual Kraus requirement. Further, upon completion of this task, we must then clearly explain “why” such recited evidence either supports or does not support the punitive damage award. The scope and standard for reviewing punitive damage awards now exceeds original Kraus requirements. Following Kraus, our Texas Supreme Court in Pool v. Ford Motor Co., 715 S.W.2d 629, 685 (Tex.1986), set forth a standard of “detailing” relevant evidence only when the reviewing Court determined to reverse on factual insufficiency. In Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex.1993), Pool was expanded to require Courts of Appeals to “detail” evidence supportive of the jury’s affirmative finding on an issue. Now, Morid prompts the additional requirement of explaining “why” such evidence either does or does not support the punitive damage award. Moriel, 879 S.W.2d at 31. The major concern in Kraus was whether the “amount” of punitive damages was reasonable in proportion to actual damages. Kraus, 616 S.W.2d at 910. The five factors set forth in Kraus were simply factors to guide intermediate Courts of Appeals in determining whether an award of exemplary damages was reasonable. It is now clear, through Morid and Keever, that “reasonable” is no longer the touchstone consideration. Moriel and Keever, 888 S.W.2d at 790 and 915 S.W.2d at 478. Explaining “why” the evidence either does or does not support punitive damages requires revisiting gross negligence evidence on a factual sufficiency standard. In compliance, we consider relevant evidence through the guidelines enumerated in Kraus. The only feasible means of so doing is through a restatement of the evidence supportive of gross negligence. It shall also become necessary to restate such evidence yet a third time under the discussion of “why”. We base this conclusion on our review and analysis of Keever, 870 S.W.2d at 63 (affirmed in part, reversed and remanded in part with instruction to reconsider punitive damage award in accordance with standards articulated in Moriel, 888 S.W.2d at 790); Keever, 913 S.W.2d at 605 (opinion on remand again remanded in Keever, 915 S.W.2d at 478). For clarity, when Keever was first remanded to the Dallas Court, that Court acknowledged: This case comes before us on remand to determine the sufficiency of the evidence to support the jury’s award of punitive damages in light of the procedural standard set forth in Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994). We detail the relevant evidence which, in our opinion, supports each factor. Keever, 913 S.W.2d at 605. The Dallas Court sets forth in detail the evidence found to be sufficient to support all Kraus factors holding the jury’s award of punitive damages was not legally excessive. On November 16, 1995, our Texas Supreme Court again reversed the Dallas Court for failure to detail all the evidence and explain “why” that evidence either supports or does not support the punitive damage award. Thus, it appears that our requirement is to first detail evidence supportive of the jury’s gross negligence finding; detail the evidence supportive of the jury’s punitive damage finding under Kraus; and detail the evidence relating to “why” the evidence supports such award. In view of Keever ⅛ history, we find no avenue of escape; therefore, we proceed. KRAUS FACTORS The Nature of Mobil’s Wrong Mobil’s negligent conduct proximately caused Mr. Ellender’s death which resulted from exposure to benzene. This of course is simple negligence and does not rise to the plateau of gross negligence. In considering the nature of Mobil’s wrong, as that wrong relates to Mr. Ellender and his family, we find in the record that benzene was provided by Mobil and was used by workers to clean their hands and tools with Mobil’s knowledge. Mobil knew workers such as Mr. El-lender would be exposed to benzene through their required task of opening pumps containing benzene to change seals and gaskets. In 1950, the National Safety Counsel published, “[bjecause the appearance and pleasant smell of benzene give no warning of its toxic effect and because a victim may become incurably poisoned before he feels ill, benzene is one of the most insidious poisons ever to find wide industrial use.” National Safety Council, Benzene (1950). Decades prior to Mr. Ellender’s exposure to benzene on Mobil’s premises, Mobil knew of the harmful effects such exposure could have. Dr. Potts, Regional Medical Director for the western region, including Beaumont, 1960-1983, knew, while he was in medical school in the 1940’s, that benzene caused blood disease. Dr. Potts knew in the 1950’s washing hands and tools in benzene was hazardous to workers. Dr. Potts testified he felt Mobil knew the hazards of benzene in the 1950’s and admitted discussing benzene hazards with Mobil’s Beaumont plant physician, Dr. Stewart, in the 1950’s. While Mobil knew the dangers associated with benzene by the late 1940’s and 1950’s, Mobil consciously decided not to warn the workers in its Beaumont plant. Mobil’s own witnesses agreed that Mobil management declined to tell them about benzene dangers in the 1960’s and early 1970’s. Mobil’s plant doctor during the 1960’s testified he knew workers used benzene to wash hands and tools and, if a worker washed his hands or tools in benzene, it indicated the worker was not properly warned of benzene hazards. The nature of Mobil’s wrong is best captured in the definition of “gross negligence.” Mobil had far superior knowledge of benzene and its harmful and devastating propensities than did Mr. Ellender. This knowledge obviates any momentary thoughtlessness, inadvertence or error of judgment. The jury had before it sufficient facts to warrant finding Mobil’s actions or inactions constituted an entire want of care toward persons like Mr. Ellender. The jury had sufficient evidence, both legally and factually, to conclude Mobil’s conduct was the result of actual conscious indifference to the rights, safety and welfare of Mr. Ellender. The record contains legally and factually sufficient evidence to conclude Mobil’s conduct constituted a flagrant disregard for the rights of Mr. Ellender and that Mobil was actually aware their acts would, in reasonable proba