Opinion
No. 01-01-00748-CV
Opinion issued May 19, 2005.
On Appeal from the 80th District Court, Harris County, Texas, Trial Court Cause No. 98-27920.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellant, Christine House, alleged that appellee, Ethyl Corporation (Ethyl), caused her injuries from chemical exposure by negligently failing to provide a safe workplace and by providing defective equipment. A jury found both parties negligent, allocated 70% of the negligence to House and 30% of the negligence to Ethyl. Accordingly, the trial court's judgment ordered that House take nothing from her suit. In two issues, both of which were presented to the trial court in House's motion for new trial, which the trial court denied, House contends that (1) the jury's allocation of negligence is against the great weight and preponderance of the evidence, and (2) she is entitled to a new trial because affidavits submitted by six of the jurors state that inappropriate jury conduct occurred during the jury's deliberations. We affirm.
Background
In September 1991, House was employed by Jones-Frazier, Inc. (Jones-Frazier), a company that provided industrial cleanup services to petrochemical plants. Ethyl contracted Jones-Frazier to provide industrial cleanup services at Ethyl's chemical plant. House was assigned to work on a late night cleanup operation of Ethyl's "coke" unit. Ethyl provided House with a fire suit, helmet, a "half" face mask, respirator, and specialized clothing referred to as "No-Vacs." Duct tape was used to make the fire suit and helmet fit House. When she finished her cleanup assignment, she noticed that her voice sounded distorted, she felt tired, had a sore throat, and coughed up blood. The next day, House went to the Pasadena General Hospital. House was diagnosed with chemical bronchitis, given medication, and given permission to return to work with the following restrictions: "No exposure to chemicals. No lifting. Limited walking. Office work."
Because she was afraid that she might be fired if she did not return to work and she felt "fine," House returned to work cleaning up chemicals, in contravention of the doctor's orders, and was again assigned to perform work at Ethyl's plant. Ethyl's foreman, "Mr. Bush," instructed House and her co-workers, Leroy Garcia, and a person known only as "Bo," how to remove a hard, white-gray material from the bottom of a large chemical storage tank, referred to as vessel 9490. Mr. Bush informed the workers that they could not use the air supply safety equipment provided by Jones-Frazier, but would instead be provided with and would use Ethyl's equipment. House was provided with a full face respirator mask that supplied a constant flow of air through a hose that was taped to the back of her body to prevent the hose from interfering with her while she worked. House was also provided with gloves, a "slicker" suit, and specialized coveralls known as a "ty-vac." House believed that the safety equipment did not fit property, and she was not assisted with the equipment by any Ethyl employees. House was told that the vessel she was assigned to clean had been "fume-tested" earlier that morning and was safe to enter, but she was not informed that it had contained toluene.
House entered the vessel, but when she reached the bottom of the vessel, she had a metal taste in her mouth, trouble breathing, and passed out. When House awoke, she was outside of the vessel on a nearby platform. Two Jones-Frazier coworkers took her to the Jones-Frazier office. House then went back to the Pasadena General Hospital, where she received more medication. Subsequently, House suffered from bleeding out of her ears and nose, memory problems, difficulty eating, difficulty maintaining her balance, general feelings of pain, hair loss, and problems with her bowels and eyes.
House continued to work in the field of hazardous waste cleanup after her alleged exposures in September 1991. House did not report her injuries to Ethyl, and she did not seek medical treatment again until August, 1994, when she went to Dr. Arch Carson. Dr. Carson diagnosed House with chemical encephalopathy, a brain injury due to chemical exposure, as well as syncope, cerebral dysfunction, and vertigo due to toluene exposure.
House sued Ethyl for negligence in 1998, and a jury trial ensued in 2001. Ethyl's defenses at trial focused on the lack of eyewitnesses to the alleged injury and claimed that no corroborating medical or other scientific evidence of the alleged injury, no evidence of the safety violations that House asserted, and no credible explanation of why House's claimed injuries were not reported until years after they allegedly occurred.
Following the take-nothing judgment, House filed a motion for new trial in which she asserted that the evidence was factually insufficient to show that she was primarily negligent and that jury misconduct had occurred. Affidavits from six of the twelve jurors stated that the jury charge was confusing, explained what the jury discussed during its deliberations, and also stated that the jurors believed that House would receive some monetary compensation from Ethyl, even though House was over 50 percent negligent in causing her injuries. Ethyl responded to the motion for new trial by asserting that the evidence was factually sufficient and that the juror affidavits (1) had to be quashed pursuant to the Rules of Evidence and Rules of Civil Procedure, and (2) were not evidence of juror misconduct based on any outside influence. The trial court denied the motion for new trial.
Factual Sufficiency
In her first issue, House contends that the jury verdict in favor of Ethyl, which allocated 70% of the negligence to her and 30% of the negligence to Ethyl, is against the great weight and preponderance of the evidence.
A party who challenges a jury finding on an issue on which she had the burden of proof, must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. In doing so, we must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Id., citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). It is the jury's province to reconcile conflicting or contradictory evidence of the witnesses. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). The jury is the sole judge of the credibility of the witnesses and the weight to give their testimony. Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex.App.-Houston [1st Dist.] 1991, writ denied). We may not substitute our opinion for that of the trier of fact and determine that we would reach a different result. Id.
House contends that the evidence is factually insufficient to support the jury's apportionment of negligence because (1) she was never told about safety reporting procedures and never attended a safety orientation, (2) she had never used Ethyl's forced air system before, (3) no one from Ethyl demonstrated how to use the forced air system properly or assisted her in "fit-testing" the face mask of Ethyl's forced air system, (4) no one from Ethyl was present to supervise the clean-up operation of vessel 9490, (5) Mr. Bush would not let House use Jones-Frazier's safety equipment, (6) Ethyl violated many of its own safety rules, (7) House was never informed of the contents of vessel 9490, (8) Mr. Bush did not provide her with written results of the fume test that had been performed on vessel 9490 earlier that morning, and (9) no one from Ethyl offered House medical assistance.
However, for each point House asserts, contradictory evidence was presented. Concerning Houses's first six assertions, the record contains conflicting evidence on the issue of the safety procedures and equipment. The record shows that House was not trained in the use of the equipment, had no experience with the equipment, and that none of Ethyl's employees assisted House with the installation of the equipment or with instructions on how to use it. The record also shows, however, that House had ten years' experience as a hazardous waste removal worker and that she had previously worn and was familiar with safety equipment. House earned many safety certifications to work at various chemical plants, including a certification from the Houston Area Contractors' Safety Counsel.
The record also includes evidence that all of Ethyl's safety rules were followed. Ethyl's company policy required that contractors, rather than Ethyl, "fit-test" their employees. An Ethyl foreman testified that there would be no reason for any employee to ever wear ill-fitting equipment because Ethyl provided equipment suitable to fit any size person. An Ethyl foreman further disputed that House was required to wear safety equipment that she was not trained to use and stated his belief that all contractors would have had experience using a forced air system such as Ethyl's.
House's sixth and seventh contentions, that she was insufficiently notified of the contents of the vessel, are also disputed in the record. Evidence was presented that the results of the fume test were available to House and that she could have witnessed the fume testing. Furthermore, Ethyl showed that "haz-com" procedures were properly followed. These allowed all contractors' employees access to information on any chemicals that had been stored in the vessel.
In her seventh assertion, House states that she was not offered medical assistance from Ethyl. Yet, the record shows that, although House had viewed Ethyl's mandatory safety video informing workers to report all injuries and illnesses to Ethyl, House did not report her injuries immediately. Moreover, she never went to the onsite medical facilities at the Ethyl plant, even though she knew that one was available. Likewise, House decided to work on vessel 9490 despite work restrictions from the hospital doctor instructing her to refrain from that type of work.
Ethyl also vigorously disputed whether an exposure to House had even occurred by presenting evidence that there was no "coke" unit at Ethyl in September 1991, nor any type of "coking" procedures. Additionally, although House testified that she was exposed to toluene in September 1991 while working on vessel 9490, according to Ethyl, the work at that vessel had been completed by August 1991. House delayed her reporting of the alleged injury and continued to work as a hazardous waste cleaner even after the alleged exposures that are the basis of her lawsuit. Ethyl also presented expert testimony showing that House's symptoms were inconsistent with the quantity of toluene to which she could have been exposed. Having considered all of the evidence presented, we hold that the jury's apportioning 70% of the negligence to House and 30% of the negligence to Ethyl is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, see Dow Chem. Co., 46 S.W.3d at 242, and therefore hold that the evidence is factually sufficient to support the judgment.
We overrule House's first issue.
Jury Misconduct
In her second issue, House contends that the trial court erred by not granting her motion for new trial, in which she alleged jury misconduct and to which she attached the affidavits of six of the 12 jurors, who stated that they intended to award House $3,000,000. House further contends that one of the jurors, who had paralegal training, exerted an outside influence by providing erroneous information to the jury concerning the apportionment of negligence, which confused the jurors and caused them to believe, falsely, that House would receive 30% of the amount of damages that House's counsel argued for at trial.
House further contends that Rule of Civil Procedure 327 is "fundamentally wrong," however, this issue is being raised for the first time on appeal and was therefore not preserved for review. See Tex.R.App.P. 33.1(a).
Rule of Civil Procedure 327(b) and Rule of Evidence 606(b) both state that jurors may not testify about statements or matters occurring during deliberations, but that they may testify about "outside influences." See Tex. R. Civ. P. 327(b); Tex. R. Evid; 606(b); Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 369 (Tex. 2000).
Rule of Civil Procedure 327(b) state as follows:
b. A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
Tex. R. Civ. P. 327(b).
Rule of Evidence 606(b) state as follows:
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
Tex. R. Evid. 606(b).
House argues that, by providing erroneous information concerning the apportionment of negligence, the paralegal juror exerted an "outside influence," thus bringing the juror's statements within the exception allowed under rules 327(b) and 606(b). "Outside influence," however, must not only arise from information and expertise not in evidence but must also emanate from outside the jury and its deliberations. See Kendall v. Whataburger, Inc., 759 S.W.2d 751, 755 (Tex.App.-Houston [1st Dist.] 1988, no writ); see also Golden Eagle, 24 S.W.3d at 370 (stating "The rules contemplate that an `outside influence' originates from sources other than the jurors themselves."). Thus, comments or statements made by a juror to the other jurors during the course of their deliberations are internal to the jury's deliberations and do not amount to the requisite "outside influence." See Golden Eagle, 24 S.W.3d at 370; Kendall, 759 S.W.2d at 756.
The accounts the jurors referred to in the six post-trial juror affidavits here concern general juror confusion as to the jury charge and personal observations and discussions by the jurors while deliberating. These accounts are internal to the jury's deliberations and do not amount to the requisite "outside influence." See id.
Having failed to allege and prove the existence of an actual "outside influence," as required by rules 327(b) and 606(b), House's second point of error is overruled. See Kendall, 759 S.W.2d at 756.
Conclusion
We affirm the judgment of the trial court.