Barrera v. E. I. Du Pont De Nemours and Co., Inc.

Decision Date14 August 1981
Docket NumberNo. 80-1050,80-1050
Citation653 F.2d 915
Parties8 Fed. R. Evid. Serv. 1368, 1981 O.S.H.D. (CCH) P 25,613 Jose BARRERA, Plaintiff-Appellee, v. E. I. DU PONT DE NEMOURS AND COMPANY, INC., Defendant-Appellant. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Mehaffy, Weber, Keith & Gonsoulin, Robert Q. Keith, Beaumont, Tex., Brian R. Davis, Austin, Tex., for defendant-appellant.

Tonahill & Hile, Joe H. Tonahill, Jasper, Tex., for plaintiff-appellee.

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

Before CHARLES CLARK and GEE, Circuit Judges, and SPEARS *, District Judge.

GEE, Circuit Judge:

Du Pont appeals Jose Barrera's $300,000 judgment for personal injury. Not without some difficulty, we affirm.

In August 1976, Mr. Barrera, then a 36-year-old pipefitter, was working for an independent contractor on a job at a Du Pont plant near Beaumont, Texas. At the time of the incident, Mr. Barrera was grinding the edges of a freshly cut pipe that Du Pont had cleared and purged, certifying that it was safe for such work. Instead, while Mr. Barrera was grinding, perched with a helper on a scaffold some ten to fifteen feet off the ground, some gas from the severed line ignited with a "boom," according to Mr. Barrera, a "puff," according to his helper. The force of the ignition was insufficient to do any property damage or to injure Mr. Barrera physically in any way: one witness likened the report to the pop made when a gasoline lantern is lit, another testified that its force would have been sufficient to move a handkerchief but not a book. Nonetheless, Mr. Barrera became highly agitated and was taken to a physician, who prescribed a tranquilizer. His helper was not affected. This was all.

Mr. Barrera continued to work for S.I.P. Company, his employer at the time of the Du Pont incident, for some three months and was then laid off. During this period he received tranquilizers and some form of relaxation therapy. About a month later still, while he was working as a pipefitter for a subsequent employer, Technicon, a similar incident occurred. 1 On this occasion he slipped and fell, injuring his left knee. According to Mr. Barrera, a relief valve popped off with a loud noise, causing this fall. Also according to him, the Technicon accident was caused by the Du Pont incident because it had left him with a fear of loud noises. The Technicon field superintendent testified, however, that the plant had been idle some two and one-half years, that the pipes there contained no pressure, and that it would have been impossible for a valve to pop off. The Technicon accident left Barrera on crutches, but he refused knee surgery that an orthopedic surgeon recommended.

During this period Mr. Barrera retained counsel, who referred him to a psychiatrist, a Dr. Bailey. Bailey, diagnosing plaintiff as suffering from "anxiety neurosis," admitted him to the Beaumont Neurological Center for eighteen days, during which he received medication and apparently improved. 2

After his release from this treatment, Barrera apparently did not work for some three months until he moved to Michigan and began working for a contractor, Azco, on a power plant. According to plaintiff's own testimony, by this time he had stopped taking medication and was handling his work "beautifully." Shortly thereafter, in June of 1977, a fifth and final incident occurred, when he tripped on some cables at work, fell, reinjured his left knee, and "aggravated the nerves" all over again. This injury resulted in his receiving knee surgery, as well as other treatment from a psychologist and a chiropractor. In August 1978, Michigan Vocational Rehabilitation authorities referred plaintiff to Dr. Pieper, a clinical psychologist, who diagnosed plaintiff's condition as "post-traumatic neurosis" characterized by fear, anxiety, and apprehension. He apparently did not work again until trial, in November of 1979.

The medical witnesses appear to agree that Mr. Barrera is suffering from a serious emotional disorder and further agree that his condition affects his concentration, attention, and stability and makes him accident prone. At trial, two physicians testified that a connection of his condition with the Du Pont incident of August 1976 was "possible," one had no opinion, and a fourth testified that the more significant event was the Azco accident that caused the knee injury and consequent surgery.

A jury trial resulted in a judgment for plaintiff in the amount of $300,000 for his anxiety neurosis. Motions for instructed verdict and for judgment n.o.v. were denied.

Cause-in-fact and Foreseeability

For purposes of our analysis, we shall assume negligence on the part of Du Pont. This is a Texas diversity case, however, and in Texas a finding of proximate cause is an additional prerequisite to tort liability. For a defendant's negligence to be deemed the proximate cause of a plaintiff's emotional injury, two elements must be established: that the negligent conduct was a cause in fact of the injury and that it was reasonably foreseeable to the defendant that injuries to the plaintiff's nervous system would be a natural and probable consequence of the negligent conduct. Kaufman v. Miller, 414 S.W.2d 164, 167 (Tex.1967). In Kaufman the Texas Supreme Court held, as a matter of law and based on the above formulation, that a truck driver's neurosis resulting from his emotional reaction to a trifling collision in which no one was physically injured was not reasonably foreseeable by the driver who bumped his rig lightly in the rear. In its opinion the court observed that "(r)ecovery is also generally denied when the plaintiff is unusually or peculiarly susceptible to emotional trauma and that fact is unknown to the negligent tortfeasor." Id. at 169. Of this, more later.

We have had occasion ourselves to construe and apply the Kaufman rule. In Hall v. Atchison, Topeka & Santa Fe Railway Co., 504 F.2d 380 (5th Cir. 1974), we recognized limitations upon it and declined to apply it to a situation where the injury suffered was not limited to psychological injury:

The defendant has urged that the injury sustained by Mrs. Hall in this case was not foreseeable as a matter of law, and has relied heavily on Kaufman v. Miller, Tex.1967, 414 S.W.2d 164. In Kaufman, the Texas Supreme Court held that it was not foreseeable, as a matter of law, that the plaintiff, the driver of a vehicle which was struck by the defendant's vehicle, without substantial damage to either vehicle or any personal injury, would later suffer a "conversion reaction neurosis" to which he was "peculiarly susceptible" as the result of an earlier accident. Kaufman denied recovery for the particular sort of psychological injury allegedly sustained as a result of the accident, but the Texas Supreme Court carefully limited its holding to the facts of the case, and declined to fashion a broad rule denying liability in all circumstances involving the infliction of psychological injury because it recognized that "this field of law is in a developing process, as is the field of psychiatry." Id. at 171.

In relying upon the narrow holding of Kaufman, the defendant obscures the distinction between that case and the one before us. Kaufman should be grouped with those cases denying recovery for intentionally or negligently inflicted emotional distress or other psychological injury not springing from some physical injury also inflicted in the same tortious conduct. In such cases, the courts have traditionally been reluctant to impose liability.

Id. at 385-86.

This is such a case as we envisioned in Hall, and to it Kaufman may apply. Here the defendant submitted a jury instruction phrased in terms of Kaufman language and, indeed, all but tracking this portion of its language. This was refused. After the court had instructed the jury and it had retired, the court invited objections to its charge. At this time, Du Pont's counsel renewed and broadened its complaint:

I would reurge that the Court instruct the Jury substantially to the effect that if they find the Plaintiff was unusually susceptible to mental or emotional or nervous disturbance at the time of the incident of August, 1976, and if the Defendant had no knowledge of that effect, then under the law of Texas, and particularly Kaufman against Miller, by the Texas Supreme Court, and the restatement of Torts, Section 436(a) 3; likewise, the Federal decision of Cooper against Miller, in 380 F.Supp. at 409, 4 and had the court charged the Jury as such, then we may have averted a finding of liability and damages that might otherwise eventuate.

The difficulty here is that the law of Texas is unsettled as to whether the proposition picked from Kaufman and offered to the court as a charge is, standing alone, a correct one. Kaufman itself does not so hold. Instead, it holds as a matter of law that where all of several factors, two major and perhaps additional minor ones, are combined there can be no recovery:

(1) Third-party Injury : the mental shock in question results from injury or threatened injury not to plaintiff but to a third person;

(2) Unusual Susceptibility : the plaintiff is peculiarly susceptible to emotional trauma, and this is unknown to the tortfeasor (that sought here as a charge);

(3) Other Factors : the court's discussion of these is neither definitive nor, in our view, entirely clear; however, among them may be that the third party to whom injury was feared was the wrongdoer himself, that at the time plaintiff received his mental shock it was already apparent that no one had actually been physically injured, and that his neurosis developed slowly and did not incapacitate plaintiff until months had passed.

Concluding, the Texas court, writing almost fifteen years ago, makes plain the intentionally nondefinitive character of its decision:

We recognize that this field of law is in a developing process, as is the field of...

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