Diamond Offshore Management Co. v. Horton

Citation193 S.W.3d 76
Decision Date02 March 2006
Docket NumberNo. 01-04-00438-CV.,01-04-00438-CV.
CourtCourt of Appeals of Texas

Chester J. Makowski, and John F. Ungerr, Royston, Rayzor, Vickery & Williams, L.L.P., Houston, TX, for Appellant.

Edward John O'Neill, Jr., Howrey, LLP, John C. Schwambach Jr., John Stevenson & Associates, P.C., John W. Stevenson, Houston, TX, for Appellee.

Panel consists of Justices NUCHIA, KEYES, and HANKS.



In this personal injury suit for negligence, unseaworthiness, and maintenance and cure under the Jones Act,1 appellant, Diamond Offshore Management Company (Diamond), appeals from a jury verdict awarding damages to appellee, Lamar Horton. In two issues on appeal, Diamond asserts that the evidence is factually insufficient to support the jury's finding (1) that Horton's injury was causally connected to and resulted from Horton's arm injury and (2) on comparative fault, which assessed 90% of responsibility to Diamond and only 10% to Horton.

We affirm.


Diamond's employee, Horton, worked as a deck coordinator2 on an offshore drilling vessel, the Ocean Spur. At the end of October 2001, Horton and Jerry Neal, a crane operator, were attempting to move pipes in a cargo basket from one level of the Ocean Spur to a higher level, when one of the pipes, or stabilizers, suddenly struck Horton on his right arm.3 Horton initially complained of an arm injury, but a few months after the accident, Horton consulted Dr. Bradley Bartholomew, who later testified that the accident also caused a herniated disc in Horton's back.

A jury found that both parties' negligence caused Horton's injuries.4 The jury attributed 10% of negligence to Horton, with the remaining 90% to Diamond and awarded $737,664 in actual damages. In accordance with the jury's apportionment of negligence, the trial court awarded Horton $663,906.60 and post-judgment interest. Diamond filed a "Motion For New Trial, Or In The Alternative, Motion for Remittitur." The trial court denied Diamond's motion for new trial, and this appeal ensued.

Jones Act

In its first issue on appeal, Diamond argues that the evidence is factually insufficient to support the jury's finding of negligence because there was no causal connection between the accident to Horton's arm and his back injury.

The Jones Act provides a cause of action for maritime workers injured by an employer's negligence. Federal law provides that a party asserting an admiralty action may bring the action in state court. See 28 U.S.C. § 1333(1) (2000). When a state court hears an admiralty case, that court occupies essentially the same position occupied by a federal court sitting in diversity: the state court must apply substantive federal maritime law but follow state procedure. See Texaco Ref. & Mktg., Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.1991); see also General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993).

Under the Federal Employers' Liability Act (FELA), a related statute, the causation burden is not the common law proximate cause standard. Rather, the causation burden is "whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957); Landry v. Oceanic Contractors Inc., 731 F.2d 299, 302 (5th Cir.1984). This burden has been termed "featherweight." See Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352 (5th Cir.1988); Smith v. Trans-World Drilling Co., 772 F.2d 157, 162 (5th Cir.1985). The Jones Act expressly incorporates FELA and the case law developing that statute. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998). Thus, the causation standard under the Jones Act is the same as that under FELA. Id.; see also American Dredging Co. v. Miller, 510 U.S. 443, 456, 114 S.Ct. 981, 989-90, 127 L.Ed.2d 285 (1994); see also Brown & Root, Inc. v. Wade, 510 S.W.2d 408, 410 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ ref'd n.r.e.).

Jones Act Liability

Texas courts have long recognized that in addition to a less stringent burden of proof, the standard of appellate review in a Jones Act case is also less stringent than under the common law. See Texas & Pac. Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex.1972); Brown & Root, 510 S.W.2d at 410. As with the law on causation, FELA's standard of appellate review applies in Jones Act cases. Maritime Overseas, 971 S.W.2d at 406. Thus, the purpose of the Jones Act standard of review is to vest the jury with complete discretion on factual issues about liability. Id. Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court's review is complete. See Roberts, 481 S.W.2d at 800 (citing Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946)). Essentially, we may not conduct a traditional factual sufficiency review of a jury's liability finding under the Texas "weight and preponderance" standard. Maritime Overseas, 971 S.W.2d at 406 (citations omitted); see also Brown & Root, 510 S.W.2d at 410. Rather, courts of appeals must apply the less stringent federal standard of review. Maritime Overseas, 971 S.W.2d at 406.

Diamond contends that the evidence is factually insufficient to support a causal connection between Horton's arm injury aboard the Ocean Spur and his back injury because Dr. Bartholomew's diagnosis was based solely on Horton's self-diagnosis complaint. To determine whether the evidence is factually sufficient, we review Horton's evidence of causation.

Horton testified that when he first started working for Diamond at the age of 28, he had to pass a physical examination that tested the strength of his back and arms. Horton stated that he passed with no restrictions. Horton testified that, on the day of the accident, he put pipes in the cargo basket and signaled someone5 to raise the basket. Horton described the accident as follows:

[Horton] He got over, and I went to pushing it over to the end of the basket. And before I get to the end of the basket, [Neal] floor-boarded it. I didn't hear him say he would come down.

[Counsel] What do you mean he floor-boarded it?

[Horton] Well, he let down on the whip line. The whip line is fast, that's why they call it a whip line. He let it go and that pipe, the stabilizer hit me and knocked me back. And then it hit me and then it pinned me to the basket and it snapped me in the basket a little bit. The basket was about four or five feet high, you know. And it came about—right here on me standing up. And I was pushing it and it knocked me down and knocked me back. Then it kind of jerked me in the basket a little bit and had me pinned.

After getting up, Horton testified that he walked into the living quarters in the break room and lay down on the bench. And my arm was dangling in the, you know, on the floor. And I couldn't feel myself for a minute, you know. My whole body kind of went numb, because it hit so hard, you know, I never been in that position. I played football, I got hit before, and never like that.

The next day, Horton left the rig after Diamond fired him. Horton testified that three days after leaving the Ocean Spur, he visited an emergency room because

[My] right arm is swollen up a little bit, and it was hurting. It was throbbing and, I mean, it was swollen and, you know, I had a—I was having pains up here, this shoulder just hurting, throbbing, I mean. And it was swollen, I mean. You could see how big my arm is, this one here was swollen about twice that size.

When asked whether his back hurt at that time, Horton responded, "My back at that time, I thought it was my kidneys, but I really didn't pay it no attention, because my shoulder injury was killing me and that was more—that was my prime objective, you know, getting this fixed."

Horton's medical records from a February 23, 2002 visit to an emergency room indicate that he had pain in his back. In his medical records dated February 24, 2002, Horton complained about arm, neck, and back pain. Horton testified that before the accident he had had no physical problems with his back. Horton answered "no" when asked if he had had any accidents after the accident aboard the Ocean Spur.

Dr. Bartholomew, a neurosurgeon, testified by deposition, and without objection, that he first saw Horton on June 6, 2002. During this visit, Dr. Bartholomew explained that he wanted to determine why Horton came to see him so he asked him, as he asks his patients, "if your back's hurting, when did it start, any previous problems; and then I examine him and review any diagnostic studies." In taking Horton's medical history, Dr. Bartholomew recalled that Horton told him that he had been hit by a 400-pound stabilizer on the right arm and shoulder area and that it pinned his right arm. When Dr. Bartholomew asked why Horton had waited so long to visit an emergency room, Horton responded that he wanted to "tough it out, as he'd already been told it was a sprain or strain and he thought it would get better." Dr. Bartholomew said that Horton also complained of "back pain that started at the same time." Dr. Bartholomew testified that "[Horton] did tell me [the back pain] was related to this same injury."

Based on Horton's examination and medical history, Dr. Bartholomew was worried about a herniated disc or some other neck trauma. After Horton's second examination, Dr. Bartholomew recommended that Horton undergo an MRI, which was conducted on November 5, 2002. Based on the results of the MRI, Dr Bartholomew testified that one of the discs (L4/5) in Horton's back looked different from the others. He explained that the disc was black,

[W]hich means it's lost some of its water content, and that can be from really one or...

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