Opinion
No. 01-04-00438-CV.
March 2, 2006.
Appeal from the 190th District Court, Harris County, Jennifer Elrod, J.
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.
OPINION
In this personal injury suit for negligence, unseaworthiness, and maintenance and cure under the Jones Act, 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.
46 U.S.C.App. § 688 (2002).
We affirm.
Background
Diamond's employee, Horton, worked as a deck coordinator 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. 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.
The deck coordinator is an experienced person aboard the offshore drilling vessel who helps to train the roustabouts.
Although the parties dispute how and when the accident actually happened, neither party disputes that Horton sustained an injury while working aboard the Ocean Spur.
A jury found that both parties' negligence caused Horton's injuries. 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.
The jury found that the Ocean Spur was not unseaworthy. Although the jury found that Diamond failed to provide maintenance and cure, the jury awarded zero dollars as damages.
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 someone to raise the basket. Horton described the accident as follows:
Presumably, Horton signaled Neal.
[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 two things. One is we all lose water content as we get older, so if he was 60 years old, I'd look at this and I'd expect pretty much all of these to have — look darker, but I mean he was 28, so there's no reason, absent trauma, for this disc to be dark from loss of water content.
Dr. Bartholomew further testified,
Also something that makes me believe it's more likely trauma than degenerative changes, all the other discs look completely normal. They're all bright white, and also the fact that this disc is pushing back, like that little mushroom cap I showed you, can be a source of irritation to the nerve, causing pain going down the leg.
When asked if he would consider it normal for a person at Horton's age to have a herniated disc absent a traumatic injury, Dr. Bartholomew answered, "No." Dr. Bartholomew was also asked, "[I]t's your belief that Lamar needs that [back] procedure as a result of the injury he sustained at work in November 2001?" Dr. Bartholomew responded, "Based on his complaints of pain; yes, sir." When asked if he thought it was fair to say that based on everything he had seen, Dr. Bartholomew's opinion that Horton's back condition was related to his work injury, Dr. Bartholomew answered that his back condition was related to his work injury.
On cross-examination, Dr. Bartholomew admitted that someone could get a ruptured disc in many different ways. When asked whether Horton's statements were the only things that tied Horton's back pain to the injury at the jobsite, Dr. Bartholomew stated that he had to "rely on his history of him having no previous back problems, and then saying that this is what I associate the beginning of my back pain with." Horton told Dr. Bartholomew that he had no history of trauma to his back, other than the accident aboard the Ocean Spur. Dr. Bartholomew stated that the MRI does not show how a patient was injured and that one must rely on what the patient says. Dr. Bartholomew stated that when Horton came to see him, Horton stated that his arm and neck were hurting initially and that his back began to hurt shortly after the accident.
Justin Upton, a roughneck working on the Ocean Spur, testified by deposition that the pipe that hit Horton was approximately five inches in diameter and three to four feet in length. Neal testified that the pipe weighed approximately 200 pounds, but other evidence indicated that it weighed 400 pounds.
We review Horton's evidence of causation under the Jones Act standard of review — whether some evidence about which reasonable minds could differ supports the verdict. See Maritime Overseas, 971 S.W.2d at 406. The jury heard evidence that Horton was hit with a pipe that weighed approximately 200 pounds or more. The blow from the pipe pushed him back and pinned him between the pipe and the basket holding the pipes. The jury also heard Horton testify that he had passed a physical examination that tested his back before starting work for Diamond and that he had not had any subsequent accidents or back injuries since leaving Diamond. The jury heard Dr. Bartholomew's expert testimony that the MRI of Horton's back showed that his injury appeared to have been caused by some type of trauma and that, in Dr. Bartholomew's opinion, Horton's herniated disc was caused by his accident aboard the Ocean Spur. After considering this evidence, we conclude that Horton presented some evidence that supports the verdict. Stated another way, Horton's evidence, although circumstantial, satisfies the "featherweight" burden of proof — that Diamond's negligence played a part, albeit slight, in producing Horton's injury.
Diamond also argues that lay testimony can establish causation, but the lay witness must establish a sequence of events to provide a strong, logically traceable connection between the event and the condition. Because we conclude that Horton presented sufficient evidence, consisting of lay and expert testimony, to support the verdict, we need not address this complaint. See TEX.R.APP. P. 47.1.
Although Diamond contends that Dr. Bartholomew's testimony of causation was not probative because it was based solely on Horton's claims that his back began to hurt shortly after the accident, the testimony shows that Dr. Bartholomew's opinion was also based on the results of the MRI. Specifically, Dr. Bartholomew testified that Horton's MRI indicated that some type of trauma had occurred. We also note that Dr. Bartholomew's testimony that the accident aboard the Ocean Spur caused Horton's back injury was not necessary for the jury to find Diamond liable. See Angelina Cas. Co. v. Spencer, 310 S.W.2d 682, 685 (Tex.Civ.App.-Beaumont 1958, writ ref'd n.r.e.) (holding that expert testimony needed only insofar as subject matter requires scientific interpretation); Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 894 (Tex.App.-Texarkana 2004, pet. denied) ("The trier of fact is usually allowed to decide the issue of causation in cases when general experience and common sense will enable a layperson to fairly determine the causal relationship between the event and the condition."). Indeed, the jury did not need expert testimony to determine that a blow from a heavy pipe can play "any part, even the slightest, in producing" Horton's injury — a herniated disc. See Maritime Overseas, 971 S.W.2d at 406.
Diamond points out that Dr. Bartholomew's testimony did not reveal any typical acts that could cause a ruptured disk and that he had no way of knowing whether Horton's injuries were caused by an intervening event subsequent to the accident on the rig. A similar argument was asserted in Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 663-64 (Tex.App.-Houston [1st Dist.] 1998, no pet.), to no avail. In Schooley, we stated that the plaintiff "was not required to disprove all possible sources of the Yersinia bacteria other than the water on the [vessel]." Id. at 664 (citing Hernandez v. Altenberg, 904 S.W.2d 734, 739 (Tex.App.-San Antonio 1995, writ denied)). We conclude that whether Horton's injury was caused by another source was an issue for the jury to decide after considering all the evidence. See Offshore Pipelines, 984 S.W.2d at 663 (stating that "the jury enjoys complete discretion in deciding factual issues on liability").
Diamond further contends that the evidence of its experts negates the jury's finding of causation. Because we have found that the testimony of Horton and Dr. Bartholomew sufficiently meets the Jones Act standard of review, the testimony of Diamond's experts is immaterial. See Maritime Overseas, 971 S.W.2d at 406 ("Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court's review is complete."). Moreover, "[i]t is within the jury's province to weigh conflicting testimony, and as long as there is evidence supporting the verdict, it will be upheld." Gautreaux v. Ins. Co. of N. Am., 811 F.2d 908, 913(5th Cir. 1987). We conclude that Horton presented evidence in support of the verdict.
We overrule Diamond's first issue on appeal.
Percentage of Negligence
In its second issue on appeal, Diamond argues that the evidence was factually insufficient to support the jury's apportionment of negligence. In question 1A, the jury attributed 90% of the negligence to Diamond and 10% of the negligence to Horton. The trial court entered judgment in accordance with the jury's answers.
Diamond admits that the record contains conflicting evidence about how the accident occurred. Nonetheless, Diamond argues that even if Horton's version of events was believed by the jury, "no reasonable juror would allocate the bulk of the negligence to Diamond, and only 10% to Horton."
In a Jones Act case, the jury has complete discretion in resolving factual issues on liability. Offshore Pipelines, 984 S.W.2d at 663. The jury was entitled to believe that Horton was moving pipes in the cargo basket when Neal floor-boarded the basket without warning, thus injuring Horton. Neal admitted that when lifts are being performed, it is his responsibility to make sure they are done safely. Although Horton was experienced, and the evidence indicated that Diamond constantly stresses that employees should avoid getting in positions where they can get trapped between two objects, we cannot conclude that the jury's apportionment was unreasonable. Moreover, Diamond has not cited a single instance, and we find none, in which an appellate court reversed the jury's apportionment of negligence in a Jones Act case and rendered a new percentage of negligence attributable to the parties, which is a conclusion based on the jury's weighing of the evidence. In light of the evidence presented, we conclude that factually sufficient evidence supports the jury's apportionment of negligence.
Diamond does cite authorities where the trial court found that the employee was more than 10% at fault, but none of the authorities reverse and render on the jury's apportionment of negligence.
We overrule Diamond's second issue on appeal.
Conclusion
We affirm the judgment of the trial court.