Maritime Overseas Corp. v. Ellis

• Decision Date: 28 July 1994
• Docket Number: No. C14-91-00795-CV,C14-91-00795-CV
• Parties: MARITIME OVERSEAS CORPORATION, Appellant, v. Richard ELLIS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 780

886 S.W.2d 780

MARITIME OVERSEAS CORPORATION, Appellant, v. Richard ELLIS, Appellee.

No. C14-91-00795-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 28, 1994.

Rehearing Overruled Sept. 1, 1994.

Thomas B. Greene, III, Maureen McPherson Spector, Linda Broocks, Marc Antonetti, Jane Nenninger, Houston, for appellant.

John O'Quinn, Gary M. Riebschlager, Houston, for appellee.

Before the court en banc.

CORRECTED MAJORITY OPINION ON MOTION FOR REHEARING EN BANC

DRAUGHN, Justice.

In this Jones Act, general maritime case, the trial court after a jury verdict entered judgment for personal injury damages to Richard Ellis. Appellant, Maritime Overseas Corporation, in fifteen points of error, raises legal and evidentiary challenges to the actual and punitive damages awarded, and to the exclusion of certain evidence. We affirm the judgment in part and reverse and render in part.

The central issue in this case is one of first impression because it requires us to examine the issues of causation and damages as to a toxic tort in the context of a Jones Act, General Maritime case tried in state court. To assist us in our determination, we have been favored with outstanding legal briefs, oral arguments, and developing case law by both parties. From these and the record, it is clear that an essential part of our appellate task, is to examine the standard for reviewing the weight and credibility of expert witness testimony under federal and state law. To properly review this and the other evidentiary issues raised, we must first place them in the relevant factual setting.

Appellee was a steward's assistant aboard the S/T OVERSEAS ALASKA. On August 27, 1982, the chief steward, in order to combat a roach problem, sprayed an industrial strength pesticide, Diazinon, in the galley, pantry, and dry storeroom without diluting it at the proper ratio of fifty parts water to one part concentrate. It was excessively applied by the chief steward in a small enclosed pantry room which had no ventilation and other nearby areas. The next morning, crew members noticed a strong odor of insecticide, and when the captain learned of this misapplication, he ordered the pantry and other areas to be cleaned so as to remove the chemical. Appellee participated in this clean-up for approximately five hours without being furnished any inhalation protective gear, nor any gloves or other gear to protect his hands, arms, or other skin areas from contact with the insecticide. Expert testimony would later reflect that appellee was exposed to levels of 100 to 200 times that considered safe for human exposure. Subsequent to this intense exposure, appellee began experiencing symptoms of nausea, headache, and eye problems. When the ship reached port in New Orleans two days later, appellee received treatment at the New Orleans General Hospital emergency room.

The hospital records showed a diagnosis of organophosphate exposure with findings of myosis with pupil constriction, muscle twitching and muscle weakness along with other symptoms. Diazinon is a member of this family of chemical compounds known as organophosphates, which have been shown to be toxic to humans in varying degrees. The emergency room doctor, testified later that on a scale of 1 to 10, with 10 representing death and 1 as completely normal, appellee suffered organophosphate exposure at a level of 6 to 7. During this initial visit to the hospital, appellee was given blood tests which reflected that his blood and serum levels of an essential enzyme, acetylcholinesterase, also called cholinesterase, was below normal. Cholinesterase is essential to the human nervous system because it enables messages to be transmitted normally from one nerve to another. Appellee's red blood cell level of cholinesterase was .40, while the average range for men of appellee's age is .44 to 1.09. His serum level of cholinesterase was .53 or .54, while the average range is 1.90 to 3.80. Later expert testimony concluded that these clinical findings and other symptoms reflected neurotoxic nerve impairment and damage from organophosphate poisoning. However, appellee was not hospitalized at New Orleans General Hospital. He was given medication for eye problems and advised to return for a follow-up visit. He returned to his ship and continued to experience problems. One month later he saw another doctor for continuing problems with his eyes. He continued to work as a crew member for the remainder of 1982.

In June 1983, appellee filed suit against appellant under the Jones Act, 46 U.S.C.A.App. § 688 (1988) ¹ alleging gross negligence, and under general maritime law alleging unseaworthiness. Appellee claimed that he was suffering from delayed neurotoxic effects caused by the exposure to Diazinon. Appellee's deposition testimony and the testimony regarding his medical records indicate that appellee continued to suffer from eye problems, that he had trouble sleeping, that he was depressed, anxious, and had memory problems, that he had high blood pressure, and that he suffered gastrointestinal problems. Appellee's wife testified that appellee was depressed, more irritable, had headaches, muscle weakness, memory problems, and had been unable to hold a job.

The jury found in favor of appellee on both claims and awarded appellee approximately $8,576,000.00 in actual damages, $1 million in punitive damages, and $1 million in exemplary damages for failure to pay maintenance and cure. The trial court awarded appellee an additional $1,871,728.00 in prejudgment interest, making a total of approximately $12.6 million.

In point of error one, appellant contends the trial court erred in denying appellant's motion for a new trial because there is insufficient evidence to support the jury finding that appellee suffered $8,576,000.00 in actual damages. Appellant concedes that appellee suffered short-term effects from the exposure to Diazinon and, in effect, that overexposure to Diazinon is toxic to humans and can cause damage to the nervous system on some temporary basis. Thus, appellant does not contest damages for the medical treatment appellee received in New Orleans in 1982 or for the loss of two days of work. Appellant does contest damages awarded for appellee's claim of delayed and permanent neurotoxic damage on the ground that appellee's expert testimony was speculative and not based on reasonable medical probability. Essentially, appellant's attack is directed at the issue of causation as to the delayed and permanent damage found by the jury based on the circumstantial and expert evidence before them.

Before examining the expert evidence challenged by this point, the parameters of our appellate review should be examined. It is axiomatic that a trial court has wide discretion in granting or denying a motion for new trial. Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988). We must uphold the trial court's decision absent a showing of a manifest abuse of discretion. Id. Because appellant contends there was factually insufficient evidence to support the award of damages, we must consider, but not necessarily detail in this opinion, all of the evidence both supporting and contrary to the judgment. Plas-Tex., Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). We may set aside the verdict only if the evidence is too weak to support the damages, or if the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The applicable standard is determined by which party has the burden of proof on the challenged issue. Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 275 (Tex.App.--Amarillo 1988, writ denied).

Appellant asserts that we must apply federal law to this case because appellee's causes of action are both federal causes of action. The Texas supreme court has stated:

Where applicable and properly invoked, general maritime law preempts state causes of action and remedies, consistent with the long standing desire of Congress and the judiciary to achieve uniformity in the exercise of admiralty jurisdiction.

Texaco Refining & Marketing v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 245 (1991). In Texaco, the court was determining whether a plaintiff could recover mental anguish damages, allowed under state law, but prohibited under general maritime law. Id. at 63. Because the court found that the plaintiff had properly invoked remedies under general maritime law, the court reversed the award of damages for mental anguish. Id. at 64. Although we do not interpret this case to hold that a state court entertaining a Jones Act or general maritime cause of action may only look to federal case law for guidance. ²

To the extent that state law and federal law do not materially conflict or there is a vacuum in one or the other, both may be considered. However, it is clear from our interpretation of the law, that in questions of the sufficiency of the evidence in Jones Act cases, we must be guided by federal law. Appellant and appellee agree that substantive federal law should apply, but not as to what the federal standard is. To determine the Jones Act standard of review, we must do so analogously via cases under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., because the Jones Act specifically incorporates the rights and remedies available to railway workers under the FELA. It is firmly established that questions of sufficiency of evidence for the jury in cases arising under the FELA in state courts are to be determined by federal law, and a jury's verdict on liability issues in FELA cases, whether for the employer or employee, cannot be reviewed on appeal using local "weight and sufficiency standards." Texas and Pacific...