Maritime Overseas Corp. v. Ellis

• Citation: 971 S.W.2d 402
• Parties: 41 Tex. Sup. Ct. J. 683 MARITIME OVERSEAS CORPORATION, Petitioner, v. Richard ELLIS, Respondent. NO. 94-1057.
• Decision Date: 03 July 1998
• Court: Supreme Court of Texas

Page 402

971 S.W.2d 402

41 Tex. Sup. Ct. J. 683

MARITIME OVERSEAS CORPORATION, Petitioner, v. Richard ELLIS, Respondent.

NO. 94-1057.

Supreme Court of Texas.

Argued Nov. 5, 1997.

Decided April 16, 1998.

Rehearing Overruled July 3, 1998.

Linda Broocks, Thomas B. Greene, III, Houston, Joe R. Greenhill, Austin, Marc A. Antonetti, Jane Nenninger Bland, Houston, Margaret Niver McGann, Salt Lake City, UT, Sally Mann Romano, Houston, for Petitioner.

John M. O'Quinn, Gary M. Riebschlager, Eugene A. Cook, Kendall C. Montgomery, Mareen McPherson Spector, Joe H. Reynolds, Gael Plauche, Christian A. Steed, Houston, for Respondent.

BAKER, Justice, delivered the opinion of the Court, in which ENOCH, SPECTOR, ABBOTT and HANKINSON, Justices, join.

This case involves Richard Ellis's Jones Act claims for injuries he sustained aboard a vessel owned by Maritime Overseas Corporation. The trial court rendered judgment on the jury's verdict for Ellis for actual and exemplary damages and awarded prejudgment interest. The court of appeals affirmed the actual damages award, but reversed the awards of exemplary damages and prejudgment interest.

Maritime asserts that the court of appeals used an improper standard to review the factual sufficiency of Ellis's damages evidence. Maritime also contends that the court of appeals should have applied a Daubert-Robinson-Havner review to determine whether any well-founded scientific methodology supported some of the actual damages award. ¹ We conclude, under the facts of this case, that the court of appeals properly disposed of Maritime's claims. Accordingly, we affirm the court of appeals' judgment.

I. BACKGROUND

A. FACTS

Ellis served as a steward's assistant in the housekeeping and galley department aboard the S/T Overseas Alaska, a 700-foot oil tanker owned by Maritime. In late August 1982, while the ship was at sea, the chief steward attempted to control a roach problem by spraying Diazinon, an industrial strength pesticide, in small, enclosed, unventilated areas, including the pantry, a storeroom and other nearby areas. The chief steward did not dilute the Diazinon properly. On the morning after the spraying, crew members noticed a strong insecticide odor. The captain ordered several crew members, including Ellis, to clean up the excess Diazinon. Ellis participated in the cleanup for about five hours without wearing inhalation protective gear or special equipment to protect his skin from contact with the insecticide. He was exposed to Diazinon levels up to 200 times over what is considered safe for human exposure.

After the cleanup, Ellis complained of a headache, eye irritation, and a runny nose. The ship reached New Orleans two days later, and Ellis was sent to the New Orleans General Hospital Emergency Room. At the hospital, emergency room personnel found Ellis had myosis with pupil constriction, muscle twitching, and muscle weakness along with other symptoms. Ellis's blood tests revealed that he had depressed levels of acetylcholinesterase, an essential enzyme. The insecticide Diazinon is an organophosphate, which is toxic to humans in varying degrees. The emergency room doctor testified at trial that on a scale of one to ten, with one representing normal health and ten representing death, Ellis suffered organophosphate exposure of a level of six to seven. The examining physician concluded that Ellis suffered from Diazinon exposure and gave Ellis medication for eye problems. The examining physician did not hospitalize Ellis, but she recommended follow-up care. About a month later, Ellis saw another doctor for continuing problems with his eyes.

Months after his exposure to Diazinon, Ellis began to complain of memory defects, irritability, gastrointestinal problems, anxiousness, fatigue, indigestion, nausea, muscle pain and stiffness, leg cramps, dizziness, insomnia, high blood pressure, and black-out spells. At trial, Ellis's experts testified that his Diazinon exposure had caused him to suffer from "delayed neurotoxicity" or "neuropathy." Ellis's experts also testified that his condition is irreversible.

B. PROCEDURAL HISTORY

About ten months after his exposure to Diazinon, Ellis sued Maritime for gross negligence under the Jones Act and unseaworthiness under general maritime law. Based on the jury's verdict, the trial court rendered judgment for Ellis for $8,576,000 in actual damages, $1,000,000 in punitive damages, $1,000,000 in exemplary damages for failure to pay maintenance and cure, and $1,871,728 in prejudgment interest. The damages totaled about $12.6 million. Maritime filed post-verdict motions for judgment notwithstanding the verdict and new trial or, in the alternative, for remittitur. Maritime alleged that the actual and exemplary damages were excessive because the evidence was factually insufficient to support the damage awards. The trial court overruled all of Maritime's motions.

In the court of appeals, Maritime only complained about the trial court's denial of its motion for new trial and motion for remittitur; it did not challenge the trial court's denial of its motion for judgment notwithstanding the verdict. The case was first argued before a three-judge panel of the court of appeals. The panel majority held that the evidence was factually insufficient to support the damages award. There was a dissent without an opinion. Later, the court of appeals granted Ellis's motion for en banc rehearing. Following argument, the en banc court affirmed the actual damages award, but reversed the trial court's judgment for exemplary damages and prejudgment interest. 886 S.W.2d 780.

This Court granted Maritime's application for writ of error on two issues. First, Maritime contends that the court of appeals erred by not using the proper standard to review the factual sufficiency of Ellis's actual damages evidence. Maritime argues that the court of appeals should have applied a traditional factual sufficiency review to the damages award instead of a featherweight causation standard because the trial court submitted the damages question to the jury based upon a preponderance of the evidence burden of proof. Second, Maritime contends, within the framework of its factual sufficiency review argument, that the court of appeals should have examined whether any well-founded scientific methodology supported the jury's actual damages award.

At oral argument in this Court, Maritime stated that it was not making a no evidence complaint. Rather, Maritime asserted that its only complaint is that the court of appeals did not properly conduct a factual sufficiency review. However, under its factual sufficiency argument, Maritime argues that there is no evidence of long term injury from delayed neurotoxicity. In essence, Maritime would have this Court conduct a no evidence review of the evidence about delayed neurotoxicity within the Court's review of whether the court of appeals properly reviewed the factual sufficiency of the evidence. We decline to do so.

II. COURT OF APPEALS' FACTUAL SUFFICIENCY REVIEW

A. THE JONES ACT 46 U.S.C. § 688

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). 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. & Mkt. 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 proof justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury for which the claimant seeks damages." Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506-07, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957); Landry v. Oceanic Contractors Inc., 731 F.2d 299, 302 (5 th Cir.1984). This burden has been termed "featherweight." See Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352 (5 th Cir.1988); Smith v. Trans-World Drilling Co., 772 F.2d 157, 162 (5 th Cir.1985); see also Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959). The Jones Act expressly incorporates FELA and the case law developing that statute. See Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). Thus, the causation standard under the Jones Act is the same as that under FELA. See 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 [14 th Dist.] 1974, writ ref'd n.r.e.).

B. STANDARDS OF REVIEW

1. Jones Act Liability

Texas courts have long recognized that in addition to the burden of proof being less stringent, 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, Inc., 510 S.W.2d at 410. As with the law on causation, FELA's standard of appellate review applies in Jones Act cases. See Ferguson, 352 U.S. at 523, 77 S.Ct. at 458. Thus, the purpose of the Jones Act standard of review is to vest the jury with complete discretion on factual issues about liability. See Rogers, 352 U.S. at 506-07, 77 S.Ct. at 448-49. 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, a Texas court of appeals...