109 F.3d 1006 (5th Cir. 1997), 96-10303, Mosley v. Excel Corp.

Docket Nº:96-10303.
Citation:109 F.3d 1006
Party Name:Ernest MOSLEY, Plaintiff-Appellant, v. EXCEL CORPORATION, Defendant-Appellee.
Case Date:March 26, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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109 F.3d 1006 (5th Cir. 1997)

Ernest MOSLEY, Plaintiff-Appellant,


EXCEL CORPORATION, Defendant-Appellee.

No. 96-10303.

United States Court of Appeals, Fifth Circuit

March 26, 1997

Rehearing and Suggestion for Rehearing

En Banc Denied

April 28, 1997.

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Kevin Thomas Glasheen, Fadduol & Glasheen, Lubbock, TX, for Plaintiff-Appellant.

Robert L. Craig, Jr., Eric Gordon Walraven, Craig, Terrill & Hale, Lubbock, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, JONES and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from a claim against a meat packing company, Excel Corporation ("Excel"), which is a non-subscriber under the Texas Workers' Compensation system and is therefore liable for negligence to its employees. Excel was sued by Ernest Mosley, an employee who suffers from bilateral carpal tunnel syndrome because, according to his contention, Excel negligently failed to provide safe working conditions. The jury returned a verdict in favor of Mosley and awarded $360,000 in damages. The trial judge, however, was not impressed with Mosley's evidence on causation and granted Excel's

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renewed motion for judgment as a matter of law. He further conditionally granted Excel's motion for new trial in the event the judgment as a matter of law was vacated or reversed on appeal. Mosley appeals and seeks to have the judgment as a matter of law reversed, the conditional grant of a new trial vacated and the jury verdict reinstated. We affirm the judgment of the district court.


Excel operates meat packing plants throughout the country, including a plant in Plainview, Texas. Mosley is employed at the Plainview plant and has been an employee there, in various capacities, since 1981. At the time in question, Mosley worked as a supervisor in the "break area" of the plant. 1 As supervisor of the break area, Mosley was responsible for assuring that all jobs in the department were adequately performed.

Mosley, however, contends that chronic absenteeism caused his department to be understaffed. Consequently, he spent between sixty and seventy percent of his time working as a skirt puller, 2 one of several positions in his department, in order to provide adequate personnel for that position. It is this work, replacing the regular skirt pullers, that Mosley contends caused his carpal tunnel syndrome. 3 Mosley contends that Excel failed to provide a safe workplace because of the negligent failure to implement adequate "precautionary" measures--such as decreased production rates and increased staff size--that he alleges would have aided in the prevention of cumulative trauma disorders such as carpal tunnel syndrome. 4

At the conclusion of the trial, the jury returned a verdict for Mosley and awarded damages. The trial judge then granted Excel's renewed motion for judgment as a matter of law, holding that Mosley "failed in [his] burden to produce legally sufficient evidence that any act or omission on the part of Defendant, EXCEL CORPORATION, was a cause in fact of [Mosley's] injuries, and that [Mosley] failed in [his] burden to produce legally sufficient evidence to show that [his] injuries were reasonably foreseeable from the work activities associated with the employment at EXCEL CORPORATION." Accordingly, the district court entered judgment in favor of Excel. Mosley appeals. 5



We review the grant of a judgment as a matter of law using the same standard utilized by the trial court in granting the motion. Crosthwait Equip. Co. v. John Deere Co., 992 F.2d 525, 528 (5th Cir.), cert. denied, 510 U.S. 991, 114 S.Ct. 549, 126 L.Ed.2d 451 (1993). The standard of review, as set forth in Boeing Co. v. Shipman, instructs us to

consider all of the evidence--not just that evidence which supports the non-mover's

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case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[ ] should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motion[ ] ... should not be decided by which side has the better of the case, nor should [it] be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

411 F.2d 365, 374-75 (5th Cir.1969) (en banc). It is therefore our task today to consider all of the evidence, construed in favor of Mosley, and to determine whether the evidence supports the jury's verdict. Upon such review, we conclude that, because of the lack of a "conflict in substantial evidence," the judgment as a matter of law should be affirmed.


Mosley's sued Excel in federal district court in Texas, basing jurisdiction on the total diversity of the parties. 6 See 28 U.S.C. § 1332. Texas substantive law therefore controls Mosley's negligence claim. Thus, Mosley was required to demonstrate that Excel owed a specific duty to him, that Excel breached that duty, that Excel's breach caused his injury, and that he suffered damage as a result of Excel's breach. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The district court held, in granting the judgment as a matter of law, that Mosley failed to establish causation.

Causation has two components, cause in fact, or "but for" cause, and foreseeability. See Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 477 (Tex.1995). Proof of causation requires more than conjecture or guess, and the existence of a causal link between Mosley's injury and Excel's negligence must be demonstrated by the introduction of probative evidence. Id. There need not, however, be direct and positive proof, as the jury may infer proximate cause "from the circumstances surrounding the event." B.M. & R. Interests v. Snyder, 453 S.W.2d 360, 363 (Tex.Civ.App.1970).


We turn now to examine whether Mosley's evidence was sufficient to allow the jury to return a verdict in his favor. It is important to note at the outset that Mosley was required to prove that some negligent act or omission by Excel actually caused his bilateral carpal tunnel syndrome, not merely that his work as a replacement skirt puller led to his injuries.


At trial Mosley presented three witnesses: (1) Steve Steffe, the Safety Director and Occupational Benefits Coordinator at Excel; (2) Andrew Jackson, a former Excel employee; and (3) Chris Flores, a former light duty class instructor at Excel. Mosley also testified on his own behalf. During the testimony of these witnesses and during cross-examination of witnesses called by Excel, Mosley also presented various documentary evidence including several publications relating to ergonomics 7, the records of reported injuries

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at Excel, and his medical file from Excel. Additionally, Mosley introduced into evidence--through no witness--medical records from six treating physicians and/or hospitals, as well as three other ergonomics publications. To determine whether this evidence is sufficient to support a jury verdict that Excel's negligence caused Mosley's injuries, we must examine it in some detail.


Mosley called Steve Steffe to testify regarding the ergonomics program at Excel and the number of cumulative trauma disorders at the plant. Steffe testified that he was currently employed as the safety director and occupational benefits coordinator at Excel and that he had been directly involved with the ergonomics program at the plant in the late 1980's or early 1990's. Through this witness, Mosley introduced two publications detailing ergonomic guidelines and suggestions 8 and the injury log for the plant in 1991 and 1992. 9 Steffe testified that although he was responsible for O.S.H.A. compliance at the plant he could not recall whether he had reviewed the O.S.H.A. guidelines provided in 1990. He further acknowledged that the causes of cumulative trauma disorders, according to the O.S.H.A. publication, included repetitive and/or prolonged activities, forceful exertions, prolonged static postures, awkward postures of the upper body, and cold temperatures among others and that the position of skirt puller involved some of those factors. The materials introduced by Mosley suggested modifying jobs and plant conditions in order to reduce the risk of injuries to workers. Modifications suggested by these publications included reducing the chain speed, increasing staffing, reducing repetitions required by jobs...

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