Coastal Tankships, U.S.A., Inc. v. Anderson

• Decision Date: 31 May 2002
• Docket Number: No. 01-99-01345-CV.,01-99-01345-CV.
• Parties: COASTAL TANKSHIPS, U.S.A., INC., Appellant, v. Florence ANDERSON, Administratrix of the Estate of Morris Anderson, Deceased, Appellee.
• Court: Texas Court of Appeals

87 S.W.3d 591

COASTAL TANKSHIPS, U.S.A., INC., Appellant, v. Florence ANDERSON, Administratrix of the Estate of Morris Anderson, Deceased, Appellee.

No. 01-99-01345-CV.

Court of Appeals of Texas, Houston (1st Dist.).

May 31, 2002.

Rehearing Overruled August 8, 2002.

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Chester Joseph Makowski, Royston, Rayzor, Vickery & Williams, Houston, for appellant.

Paul Dodson, Huseman & Pletcher, Corpus Christi, for appellee.

Panel consists of Justices COHEN, BRISTER,^* and SMITH.^**

EN BANC OPINION

TERRY JENNINGS, Justice.

Jennings writes for the majority of the en banc Court, joined by Chief Justice Schneider and Justices Hedges, Taft, Nuchia, and Radack. Justice Brister concurs in the judgment of the en banc Court. Justice Cohen joins sections I through IV(D) of the majority opinion, does not join section IV(E), and dissents from the judgment of the en banc Court, joined by Justices Mirabal and Smith.

In this personal injury suit for unseaworthiness under the general maritime law and for negligence under the Jones Act,¹ appellant, Coastal Tankships, U.S.A., Inc (Coastal), appeals from a jury verdict awarding damages to appellee, Florence Anderson, administratrix of the estate of Morris Anderson.² Coastal presents six issues for our review. In its first and second issues, which are dispositive of the appeal, Coastal contends that (1) the trial court abused its discretion in allowing Anderson's medical expert to testify that exposure to the chemical naphtha³ caused Anderson's bronchiolitis obliterans organizing pneumonia (BOOP) and, thus, (2) there was legally insufficient evidence of medical causation to support the jury's verdict. We reverse and render.

We note at the outset, in regard to these two issues, that our primary role is to ascertain whether the trial court abused its discretion in finding reliable, and thus in admitting, expert testimony under Texas Rule of Evidence 702. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998). If expert testimony is not reliable, it is not evidence. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 721-29 (Tex.1997). Due to the confusion regarding the appropriate way to analyze the reliability of the expert opinion in this case and the application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its Texas progeny, a thorough review of the facts of this case and the applicable case law is necessary.

I. Facts and Procedural Background

Coastal owned and operated the steam tanker S.S. COASTAL MANATEE. Anderson joined the crew of the COASTAL MANATEE on July 6, 1994 as a utility hand in the steward's department. He was healthy and physically capable of performing his duties when his voyage began. Before then, he had suffered no chronic illnesses, pneumonia, or respiratory problems; had never smoked; had been physically active; and had passed Coastal's health examination. During the voyage, the COASTAL MANATEE twice loaded naphtha, which the vessel carried for approximately 11 days. Viewed in the light most favorable to Anderson, both times naphtha was loaded, he and other crew members smelled particularly strong chemical fumes throughout the ship. Anderson and at least one other crew member, radio electronics officer Butch Smith, smelled fumes in their quarters. The fumes once drove Smith out of his room to sleep elsewhere.⁴ Anderson soon began having headaches, shortness of breath, nausea, dizziness, shoulder stiffness, and tightness in his chest. Anderson was sent to his quarters to rest for at least five days, and his condition worsened until he was so ill that he could no longer perform his duties. None of the other approximately 29 crew members aboard the COASTAL MANATEE became ill from the fumes or developed BOOP, and only one to three other crew members felt occasional nausea. On September 23, 1994, Anderson had to be taken ashore aboard a motor launch. When he came ashore, Anderson was sick, had labored breathing, and looked like he "was caving in."

A few days later, Anderson went to the hospital under the care of Dr. Eugene Brown, who referred Anderson to pulmonary specialist Dr. David Miller. Dr. Miller became Anderson's treating physician and diagnosed Anderson with BOOP. The evidence in the light most favorable to Anderson shows that, despite objective testing indicating his respiratory health gradually improved, he felt symptoms associated with BOOP until his death of prostate cancer, which was unrelated to his BOOP.

Anderson sued Coastal for his personal injuries, alleging negligence under the Jones Act and unseaworthiness under general maritime law. The case was tried to a jury. Over the objection of Coastal, the videotaped deposition testimony of Dr. Miller, Anderson's sole testifying expert on medical causation, was introduced into evidence.

Dr. Miller, who had been board certified in pulmonary disease and internal medicine for 15 and 20 years respectively, testified that he saw "lots of ... common inhalation type problems" in his practice. Dr. Miller stated that Anderson told him he had inhaled a "gaseous" material (naphtha) while working aboard the COASTAL MANATEE and related the acute symptoms he had suffered.⁵ Dr. Miller noted that Anderson's oral history was consistent with Dr. Miller's experience of those injured by chemical exposure. Dr. Miller ordered chest x-rays and lung-function tests. After reviewing the lung-function test results, examining Anderson, and reviewing Anderson's medical records, Dr. Miller initially diagnosed Anderson with pneumonia secondary to chemical inhalation. The lung x-rays showed abnormal areas, which were also consistent with Anderson's symptoms and with injury from chemical inhalation. Dr. Miller then ordered a surgical biopsy, which revealed that Anderson had BOOP. In the end, Dr. Miller diagnosed that Anderson had sustained a "significant inhalation injury," consistent with the inhalation of fumes aboard the vessel, and opined that "chemical inhalation" had caused Anderson's acute lung problems. In reaching this conclusion, Dr. Miller ruled out several other possible causes of Anderson's BOOP by considering Anderson's work and personal history, temporal proximity of the fumes and symptoms, medical records, and test results.⁶

On cross-examination, Dr. Miller conceded that BOOP is usually idiopathic.⁷ Nonetheless, Dr. Miller believed there was a causal relationship between the chemical exposure and Anderson's BOOP, based on his examination, the test results, the timing of the illness, and Anderson's history.⁸ Furthermore, although Dr. Keith Wilson, Coastal's own medical-causation expert, agreed that BOOP is idiopathic about a third of the time, he conceded that BOOP has some recognized causes, including some toxic fume exposures.⁹ Dr. Wilson also testified that chemical pneumonia, which Dr. Brown concluded Mr. Anderson first had, can cause BOOP.

However, Dr. Miller was not aware of any literature associating BOOP with exposure to chemicals other than oxides of nitrogen, which he conceded are found "everywhere." Similarly, Dr. Wilson testified that he was unable to find any literature connecting BOOP to naphtha exposure. Dr. Wilson also testified without dispute that the medical literature associates BOOP with only limited chemical agents, such as nitrogens of oxide, which naphtha does not contain. Additionally, Dr. Miller acknowledged (1) he was not a toxicologist,

(2) he did not know how much naphtha Anderson was exposed to or for how long, and (3) his diagnosis presumed that there was a causal relationship between naphtha exposure and BOOP.

Aside from the above expert testimony, the only other evidence of causation in the record was (1) Dr. Brown's statements in the medical records, the discharge summary, and other notes; (2) the naphtha material safety data sheet (MSDS);¹⁰ and (3) lay testimony that Anderson was healthy before inhaling the fumes, but ill very soon afterwards.

The jury found Coastal negligent and the vessel unseaworthy and awarded Anderson $1,254,500, including damages for past physical pain and mental anguish.

II. Standard of Review

We, as an appellate court, may not disturb a trial court's determination that a witness is or is not qualified as an expert unless a clear abuse of discretion is shown. Gammill, 972 S.W.2d at 718-19; Hernandez v. State, 53 S.W.3d 742, 750 (Tex App.-Houston [1st Dist.] 2001, no pet.). We will not conclude that a trial court abused its discretion simply because we would have ruled differently in the same circumstances or the trial court committed a mere error in judgment. See Hernandez, 53 S.W.3d at 750. The test is not whether the facts present an appropriate case for the trial court's action in the opinion of the reviewing court; rather, we gauge an abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). Thus, a trial court enjoys wide latitude in determining whether expert testimony is admissible. Hernandez, 53 S.W.3d at 750; see Hon. Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L.REV. 1133, 1159 (1999) [hereinafter "Brown — Procedural"].

III. Expert Testimony

An expert may testify on scientific, technical, or other specialized subjects if the testimony would assist the fact finder in understanding the evidence or determining a fact issue. See TEX.R.EVID. 702.

A. Daubert

In Daubert, the Supreme Court held that the Frye¹¹ "general acceptance" test was no longer applicable under the new Federal Rules of Evidence and offered some "general observations." 509 U.S. at 593, 113 S.Ct. at 2796. These "general observations" set new standards for the admissibility of expert testimony. The Court held that "the trial judge must...