Maritime Overseas Corp. v. Ellis

MARITIME OVERSEAS

CORPORATION,

Appellant, ELLIS, Appellee.

Richard

No. C14-91-00795-CV. Appeals Texas,

Court of (14th Dist.).

Houston

July 1994.

Rehearing Sept. Overruled

27, 1982, steward, the chief in order to com- problem, sprayed bat a roach industrial Diazinon, strength pesticide, galley, pantry, dry diluting storeroom without proper fifty parts at the ratio of water to one part excessively applied It was concentrate. by the chief in a steward small enclosed pantry room which no ventilation and had morning, nearby other areas. The next crew insecticide, strong members noticed a odor of captain misap- and when this learned of Greene, III, Thomas B. Maureen McPher- plication, pantry and other he ordered the Broocks, Antonetti, Spector, son Linda Marc areas to so remove the be cleaned as to Nenninger,-Houston, appellant. Jane for Appellee participated chemical. this clean-up approximately for five hours without O’Quinn, Gary Riebsehlager, John M. being protective furnished inhalation Houston, appellee. for gear, any gloves gear protect nor other arms, hands, or other skin areas from Expert

contact with the insecticide. testimo- ny would reflect that was ex- appellee later CORRECTED MAJORITY OPINION ON posed of to levels 100 to 200 times that FOR EN MOTION REHEARING exposure. considered for human Subse- safe BANC quent exposure, appellee intense this be- DRAUGHN, Justice. nausea, gan experiencing symptoms head- of Act, general ache, maritime problems. Jones eye ship and When later, days the trial court after a verdict entered port reached in New Orleans two judgment personal injury damages for appellee received treatment at the New Or- Appellant, Ellis. Hospital Richard Maritime Overseas emergency leans room. General error, Corporation, points in fifteen raises diagnosis of hospital The records showed a legal evidentiary challenges to and the actual findings organophosphate exposure with awarded, punitive damages and and to the myosis constriction, muscle twitch- pupil with exclusion certain affirm evidence. We ing along weakness with other muscle judgment part and reverse and render in symptoms. Diazinon is a of this member part. family compounds known as or- chemical The central issue this case is one of first ganophosphates, have been shown impression requires because it us to examine degrees. in varying be toxic to humans the issues of causation and as to a doctor, emergency later that room testified Act, toxic tort in the context a Jones representing on a scale of 1 with 10 General in state Maritime case tried court. normal, completely appellee death determination, To our assist us we have organophosphate exposure at a level suffered outstanding legal briefs, been favored During of 6 to this initial visit to the arguments, developing oral case law hospital, appellee given was tests which blood record, parties. both From these and it reflected his blood and levels of serum part appellate an essential of our clear that enzyme, acetylcholinesterase, an essential task, is to examine the standard for review- cholinesterase, also called was below normal. ing weight credibility wit- human ner- Cholinesterase is essential to the testimony ness under and state law. federal messages system vous because enables properly To review this and the other eviden- normally nerve to be transmitted from one raised, tiary place first issues we must them cell Appellee’s another. red blood level setting. factual relevant .40, average cholinesterase while Appellee range appellee’s age was a .44 to 1.09. steward’s assistant aboard for men of was .53 or August OVERSEAS ALASKA. On His serum level cholinesterase S/T $8,576,000.00in actual .54, range appellee suffered average is 1.90 to 3.80. while the appellee damages. concedes that Appellant Later concluded that these expo- findings symptoms re- effects from clinical and other suffered short-term effect, impairment and, that overex- flected neurotoxic nerve sure to Diazinon damage organophosphate poisoning. posure to is toxic to humans and from Diazinon system However, hospitalized damage the nervous can cause Hospital. giv- Thus, appellant New He was temporary Orleans General does some basis. eye problems en medication for and advised damages for the treat- not contest follow-up to return visit. He returned in New Orleans ment received experience ship prob- to his continued to days two of work. 1982 or the loss of later he saw another doc- lems. One month damages awarded for Appellant does contest eyes. continuing problems tor for with his permanent claim of as a crew member for He continued to work ground appel- that damage on the neurotoxic the remainder of expert testimony speculative was and lee’s probability. not based on reasonable 1983, appellee against In filed suit June Essentially, appellant’s attack is directed at Act, 46 appellant under the Jones delayed to the and the issue causation as (1988)1 gross § U.S.C.AApp. alleging 688 jury by permanent damage found based negligence, general and under maritime law on the circumstantial and evidence Appellee alleging unseaworthiness. claimed before them. suffering that he from was neurotox- by ic Diazinon. effects caused examining Before evi

Appellee’s deposition and the testi- parame point, the challenged dence mony regarding his medical indicate records of our review should exam appellate ters eye that continued to suffer appellee from a trial court has ined. It is axiomatic problems, sleeping, that he had trouble denying granting in or a mo wide discretion anxious, memory was depressed, he and had Champion Corp. tion for new Int’l v. trial. problems, high pressure, had that he blood 898, Appeals, 762 S.W.2d Court Twelfth gastrointestinal prob- and that he suffered (Tex.1988). uphold trial 899 must We Appellee’s appellee lems. testified wife showing of a court’s mani decision absent irritable, depressed, more had head- appel Id. Because fest abuse of discretion. aches, weakness, memory problems, muscle factually lant insufficient contends there job. and hold a had been unable to damages, award of support evidence jury appellee The in favor of found on both consider, necessarily must but not detail claims approximately and awarded opinion, sup both in this all of the evidence $8,576,000.00 damages, in actual million in $1 judgment. porting contrary to the Plas punitive damages, exempla- and million in $1 Tex., Corp., Inc. v. States Steel 772 United ry damages pay for failure to maintenance 442, (Tex.1989); Pool v. Ford S.W.2d 445 The trial court cure. awarded (Tex.1986). Co., 629, 635 Motor 715 S.W.2d $1,871,728.00 prejudgment an additional only may verdict if the set aside the We interest, making total of approximately support damages, evidence too weak million. $12.6 finding against if the the overwhelm or is so one, it is point ing weight manifest of error contends the evidence unjust clearly wrong. v. denying appellant’s ly See Garza trial court erred (Tex.1965). Alviar, 821, motion trial because insuf- 395 823 for a new there is S.W.2d finding applicable determined support jury ficient standard is any as a provides: in cases death of seaman result 1. The Act Jones personal injury repre- personal such Any personal injury shall suffer seaman who may maintain an ac- sentative of the seaman employment may, his elec- course of his at right damages tion for at law with the of trial law, tion, damages maintain an action by jury, action all statutes confer- and in such by jury, right of trial and in such with the ring right regulating of action for death or modify- the United actions all statutes of States employees appli- railway shall be in the case of ing extending right the common-law or rem- or injury edy personal apply; cable. ... shall in cases 784 party proof has the law, burden of chal are to be determined federal and a lenged issue. Raw Hide Oil & Gas v. Max jury’s liability verdict on issues in FELA (Tex. Exploration, 264, us 766 S.W.2d cases, 276 employer whether for the employee, 1988, denied).

App. writ cannot be appeal using reviewed on local — Amarillo “weight and sufficiency standards.” Texas Appellant asserts that apply we must fed- Roberts, Railway v. Co. 481 eral law to this case because Pacific 798, (Tex.1972). 800-801 The test causes of action are both federal causes of was stated in Rogers the landmark case of action. supreme The Texas court has stated: Co., 500, Missouri R. 352 U.S. Pacific applicable invoked, "Where properly 443, (1957): S.Ct. L.Ed.2d 493 general preempts maritime law state Under this statute the test of a case is remedies, causes action and consistent simply proofs justify whether the with rea- long standing with the Congress desire of son employer the conclusion that negli- judiciary uniformity to achieve gence played any part, slightest, even the admiralty jurisdiction. the exercise of producing injury or death for which Refining Texaco Marketing & v. Estate of added). sought, (emphasis are Tran, (Tex.1991), Dau Van 808 S.W.2d specific language This approv was cited with denied, cert. S.Ct. applied al and was to Jones Act cases (1991). Texaco, L.Ed.2d 245 the court Ferguson Lines, Inc., v. Moore-McCormick determining plaintiff whether a could 521, 522-23, 457, 458, 352 U.S. 77 S.Ct. 1 recover anguish damages, mental allowed un (1957). L.Ed.2d 511 Supreme And the U.S. law, der prohibited state but general under repeatedly Court has held that the FELA maritime law. Id. at 63. Because the court and the co-equal Jones Act are statutes plaintiff found that the properly had invoked which interpreted are to be applied in general law, remedies under maritime way. the same Kernan v. Dredg American court reversed the award of for Co., ing 426, 394, 355 U.S. 78 2 S.Ct. L.Ed.2d anguish. mental Although Id. at 64. we do (1958). 382 accordingly We followed this line interpret this case to hold that a state reasoning as to in causation a Jones Act entertaining court general a Jones Act or Root, Wade, case in Brown & Inc. v. 510 may maritime only cause of action look to 408, (Tex.App 410 [14th guidance.2 federal ease law for . —Houston 1974, n.r.e.); Dist.] writ ref 'd see also Nobles To the extent that state law and Co., v. Transportation Southern 731 Pacific materially federal law do not conflict or there (Tex.App S.W.2d 697 [14th Dist.] . —Houston other, is a vacuum in may one or the both n.r.e.). 1987, writ refd However, considered. it is clear from our plaintiffs negligence The and causation interpretation law, questions of the in burden in Jones Act cases has been charac sufficiency of the in evidence Jones Act very light, terized as “featherweight.” even cases, guided we must be by federal law. Co., Smith v. Drilling Trans-World 772 F.2d Appellant agree that substan (5th 157, Cir.1985); Rogers 162 Eagle v. Off apply, tive federal law should but not as to Services, Inc., 300, Drilling shore 764 F.2d what the federal standard is. To determine (5th Cir.1985); Landry 304-05 v. Oceanic review, the Jones Act standard of we must Contractors, Inc., (5th 299, 731 F.2d 302 Cir. analogously do so via cases under the Feder 1984); Towing Chisholm v. Sabine Trans & Employers’ (FELA), Liability al Act 45 Co., Inc., (5th 60, portation, 679 F.2d 62 § seq., U.S.C. 51 et because the Jones Act Cir.1982) Black, and Gilmore & The Law of specifically incorporates rights and reme (2d Ed.1975). Admiralty, p. 377 railway dies available to workers under the firmly FELA. It ques is established Appellant, however asserts that the federal sufficiency tions of of evidence for the standard of involving review for causation arising eases under the FELA in state courts toxic chemical is that set out the U.S. Indeed, Supreme recently the Texas Dept. Highways Dopyera, Court has State v. 834 S.W.2d — (Tex.), denied, U.S. -, held that preempt federal maritime law does not 53 cert. 113 S.Ct. (1992). the State's limitations its consent to be sued. 121 L.Ed.2d 567 prece- Act Supreme injured Dow seaman under the Jones Daubert v. Merrell Court — Pharmaceuticals, Inc., -, mentioned, required U.S. now previously is dents 2786, 125 (1993), L.Ed.2d infers S.Ct. epidemiological study, produce a favorable stronger a far opinion from that standard apparently preferred scientific which is a federal Act cases. Daubert involved Jones damage, proof of tort method for toxic originating in California. diversity suit prove causation. Brock Merrill order to Plaintiffs, par minor and their two children Pharmaceuticals, Inc., F.2d Dow ents, sued, had alleging serious birth defects Cir.1989). (5th relevant We find other dis- use of prenatal been caused the mother’s Daubert, this tinctions between Benedectin, drug designed prevent cases, will discuss Benedictin which we other re morning Supreme The Court sickness. expert general later after review judgment summary had been versed a evidence. Dauberts, against the entered and ruled (1) necessary acceptance” “general expansive Appellants are even more than precondition admissibility of scientific evi standards of Daubert their the federal Evidence, and dence under Federal Rules of They position. assert that the evi (2) judge assign Federal Rules to the trial case be insufficient to dence would ensuring that the task of negli Texas sustain the verdict even under —Id. at and relevant. reliable They gence and causation standards. refer -, put It to rest the 113 S.Ct. 2794-96. opinion court’s appellate us a recent sister Frye supersed rule notion that so-called their Merrell Dow position. supportive to the ed Rules of Evidence as the Federal Havner, 1994 Pharmaceuticals Inc. v. WL admissibility expert opinion evidence. Rule, years, (Tex.App. Corpus Christi no Frye for 70 existence — expert opinion writ) held that must have yet publication (opinion not released gained acceptance iñ general in the field Havner, permanent reports). law belongs Frye admissible. v. which it to be appellate judg a panel of the court reversed (D.C.Cir. States, 293 Fed. United 1014 jury in toxic ment based on verdict tort 1923). essence, says that Daubert involving negligence Benedictin. also justification only judicial excluding real perceived it applied It what to be federal expert testimony is for trial the federal Indeed, law. it Daubert standard to Texas courts to consider relevance and reliabili beyond beyond appel went Daubert —even ty expert opinion in a of evidence liberal position that causation con lant’s ruled —and of required fashion as Federal Rules expressed in of reasonable clusions terms Evidence. Id. probability by qualified wit nothing case find in the Daubert We evidence, ness, not even a amount to no “featherweight” which eliminates the burden scintilla, ap a matter law. Id. Even proof in a Jones Act case to establish only pellants by alleging here insuf concede negligence and causation. find that And we conflicting ficiency grounds “that there is us, Daubert, case before unlike Hide, supra. on the Raw evidence issue.” admissibility question expert testi of the totally ignores conclusion the ex Havner’s objec Appellant mony is moot. levied no training, experience, knowledge, pert’s even admissibility expert wit tions to the of the treatment, analysis and chemical test-tube Indeed, object appellee. it did not nesses analysis. say, composition Needless we any at time until after their panel disagree conclusion Instead, jury. appel to the presented long standing sister court. Our view of our methodology lan lant on the scientific seizes quali precedents experts Texas reveals to in concludes guage referred Daubert and training, experience, fied on basis their sup here is not treatment, testify knowledge, who ported by methodology and proper scientific probability not terms of reasonable medical support the dam is therefore insufficient to — causation, U.S. -, only constitute some evidence ages in this case. verdict Id. of the frequently that an determinative issue. 113 at 2796. We do not believe but are S.Ct. 786

Lenger Physician’s v. Hospital, Gen. Christophersen Signal 455 v. Corp., Allied (Tex.1970). (5th S.W.2d 703 Cir.), banc, F.2d 66 reh. en 939 F.2d — (5th Cir.1991), denied, cert. If binding precedent Havner becomes -, 1280, 117 (1992). 112 S.Ct. L.Ed.2d 506 form, present presume its that our in- The Fifth Circuit held that courts should structions to the based on Tex.R.Civ.P. “critically reasoning process by evaluate the certainly 226a will have to be eliminated or experts which connect data to their con longer judicial modified. No could we with consistently clusions order for courts to integrity jurors they instruct “are the rationally disputes resolve the before judges credibility sole of the witnesses I, Brock, them.” Brock 874 F.2d at 310. In weight given and the to be to their testimo- analyzed ny.” types the Fifth Circuit of evi regarding typically dence causation offered event, generally Texas law is con in a toxic tort case. court The noted that the regarding expert sistent with federal law tes most useful and type conclusive of evidence timony on causation. damages, To recover epidemiological study attempts is the plaintiff prove by competent must evidence a relationship “to define a between a disease causal nexus between the event sued suspected causing and a factor it....” injuries alleged. Morgan See Regarding general population such Compugraphic Corp., S.W.2d studies, the court added: (Tex.1984). “Causal connection ... must probabilities; otherwise, rest reasonable relationship To define that [between a dis- actually the inference that such did occur can cause], alleged epidemiolo- ease and its speculation conjecture.” be no more than gist general population, examines the com- Myers, Insurance Co. North America v. paring among the incidence of the disease (Tex.1966); 411 S.W.2d see also people exposed ques- those to the factor Corp., Gideon v. Johns-Manville Sales exposed. tion epidemiolo- to those not (5th Cir.1985). 1129, 1137 F.2d Whether the gist then uses statistical methods rea- probabilities evidence rests in reasonable de soning biological to allow her to draw a pends upon expert’s the substance of the being inference between the factor studied testimony. Myers, 411 at 713. “Ex etiology. the disease’s pert testimony possible that the event is a cause of ordinarily the condition cannot mentioned, epidemio- Id. As the court also treated as evidence of reasonable medical logical necessarily studies do not exclude oth- when, probability except in the absence of possible er causes for the same disease. Id. explanation, other reasonable causal it be epidemiological Two studies of the effects of likely comes more than not that the condition drug the Benedictin were into evi- admitted Lenger, did result from the event.” study dence Brock. See id. at 312. One Here, appellee’s at 707. expert all of support statistically significant did a con- witnesses testified that severe and nection between Benedictin and birth de- lengthy exposure pro to Diazinon caused his study greater fects. Id. The other found a longed damage. They expressed neural their defects, risk of birth but that the risk was bases, opinion ranging on from reasonable statistically significant. also not Id. Be- probability to without a doubt. plaintiffs present cause the did not sta- tistically significant epidemiological supportive methodology proof

As position, of its defects, drug that the causes birth the court directs us to three fifth circuit cases. Brock v. Merrill Dow held that the evidence was insufficient to Pharmaceuti- cals, Inc., (5th Cir.1989) (Brock 874 F.2d 307 enable a trier of fact to make a reasonable I); Pharmaceuticals, 315; Brock v. Merrill Dow inference as to causation.3 at See id. (5th Cir.1989) (Brock Inc., II); II, 884 F.2d 166 Brock 884 F.2d at 167. I, logical requirement "statistically

3. In Brock the Fifth Circuit found lack of studies to a "the II, epidemiological proof significant epidemiological proof.” conclusive to be fatal to Brock the Brock’s case." 874 F.2d at On rehear- F.2d But 313. at 167. the realistic conclusion in the ing, changed opinion puts great weight epidemiological the court this sentence and others indicating requirement epidemio- premiere type proof a to of conclusive studies as the establish expert no meth- again methodologies, In a later Fifth Circuit offered the expert’s that the questions odology support an testi his conclusion addressed about to at mony regarding types plant in a toxic tort case. used the were causation chemicals Christophersen, supra. Christopher- form of found See cancer associated with sen, expert’s expert trial court had excluded an of- Id. Because the the decedent. opinion exposure sup- to certain chemicals at to methodology no fered well-founded causation, 1109. plant caused cancer. Id. at In de regarding port opinion his termining trial court whether the erred expert’s Fifth concluded that Circuit testimony, excluding this the Fifth Circuit hunch opinion more than a was no scientific requirements set forth three threshold support judgment in inadequate to (1) admissibility expert testimony: plaintiff. favor of the qualified express whether witness Christophersen emphasize Brock and both (2) issue, expert opinion topic at on the importance epidemiological studies expert the data which the re whether in federal tort cases. establish causation toxic experts type are of the same other lies I, 313; Christopher F.2d at See Brock reasonably rely upon forming their field Furthermore, sen, 1115. both 939 F.2d at (3) opinions, reaching whether expert opinions position cases take the conclusion, the expert used “well-founded unsupported by type some well-founded reasoning, methodology or mode of one ‘suffi consti reasoning methodology or scientific ciently gained general established to have support speculation, tute mere insufficient to acceptance in the field in it particular I, 315; judgment. Brock F.2d at See belongs’.” Id. at Even if 1110-11. the testi Christophersen, 939 F.2d 1115. Daubert mony requirements, may meets these three it given has now the field federal closed testimony’s “potential excluded if still be responsibili “gatekeeping” trial some courts prejudice substantially outweighs unfair admissibility determining ties in of ex 1110; probative its Id. at value.” see also testimony. support pert gives In dicta Fed.R.Evid. type approach methodology some scientific Christophersen The trial court in criti- had reliability evi of scientific evaluate expert’s testimony — grounds cized the on the Daubert, at -, dence. S.Ct. underlying facts opin- that the and data at 2797. incomplete ion were inaccurate and contends the conclusions Appellant methodology offered no scientific appellee’s experts speculation amounted support his conclusion. Id. at 1113-15. unsupported by they because were scientific criticisms, reviewing these Fifth Cir- unnamed, epidemiological studies other cuit first found that the over-estimat- unproved methodologies estab well-founded exposure the duration of ed the decedent’s lishing link between Diazinon certain chemicals and had no data accurate damage; neurotoxic permanent regarding composition the chemical scienti requires Daubert a well-founded now plant alleged expo- fumes in the where causa methodology fic in order establish Thus, sure occurred. Id. at 1113. the court involving poisonous tion in tort cases all agreed properly the trial court could courts, however, with the Texas chemicals. reject opinions expert founded on critical by Corpus exception of the Hamer ease are 1114. untrustworthy. facts that at court, ap adopted have not this Christi expert question testified also proach. of used to kind evidence most often establish studies, this epidemiological Turning are to the evidence in causation animal testimony of testing. appellee offered the testing, and in vitro Id. at 1115. find that witnesses, were testimony regarding main several four of whom Despite his Inc., (3rd ceuticals, Cir. opposing 911 F.2d 946-52 causation in toxic tort cases. For Brock, 1990). Rothman, Epide “Modem somewhat view of well as Also see KJ. and critical (1986), weight miology” places methodologies which excellent less an including review of scientific significance testing epidemiological such as stud epidemiological studies and their weaknesses, see v. Merrell Dow Pharma- ies. DeLuca medical doctors who examined and treated subject available scientific literature on the of him. non-treating expert One organophosphates.4 was Dr. Ed- He testified detail Ezrailson, qualified ward who was organophosphates without about how like Diazinon objection as an system witness. Dr. Ezrail- attack deadly. the nervous and can be biochemistry, son has a Ph.D. in great had studied He testified in detail about how human subject toxicology, poison overexposure how effects organophosphates results in beings. damage. health human He had done explained neurotoxic He how the pharmacology, completed advanced studies in organophosphate inhalation of an causes the postdoctoral fellowship Baylor his first acetylcholinesterase, at inactivation of an en- College of Pharmacology Medicine its zyme necessary De- for the transmission of nerve Later, partment. completed he signals a second pathway from one nerve to another. postdoctoral study Baylor subjects at explained He that such inhalation tempo- can pharmacology molecular rarily destroy and cellobiose enzyme, thereby and cause latter, physics; involving study disruptive signal. continuous nerve This how nerve cells communicate and symptoms electrical causes such cramps as muscle and impulses are sent from pains, cell to cell. He among chest others. He also stated joined faculty Baylor, was awarded that such inhalation can also cause the en- completed study grant and zyme for the Environ- to become neurotoxic with the ultimate Agency cells, mental Protection on the toxic effect result that it kills nerve and that it can organophosphates on lab animals. delayed have a go neurotoxic effect that can years years, ease, and and as in this even He testified that he was familiar with the a lifetime. makeup toxicology chemical of Diazinon poisonous properties. and that it had specifically, known More Dr. Ezrailson reviewed records, He discussed ship his extensive review of the logs, deposition (7) exposure depression; Ezrailson's referenced the fol- between "Behav- (1) lowing "Sequelae Organo- articles: Organophosphate of Acute ioral Effects of Pesticides in phosphate Tabershaw, Midski, Poisoning” by by Dr. I.R. Men” Levin and not admitted into evidence; (8) orga- which concluded that "Spatial Memory Impairment to certain nophosphates delayed symptoms can Receptor result Following Central Muscarinic Loss (did organophos- not list Prolonged diazinon as one of the Organophosphate” by Treatment with studied); (2) phates McDonald, “Delayed evidence, Neurotoxicity and not admitted into Consequences Organophosphates Other following daily exposure Ester- studied the effects ase," Baron, by insecticides, diazinon, Ronald not including admitted into evi- two over a dence, noting (9) organophosphates fourteen-day period; "Delayed certain Neurotoxic Ef- delayed have been Organophosphorous shown to cause a Compounds,” fects of Some neurotoxic effect, Johnson, evidence, neuropathy always pro- but that by not admitted into by period approximately days ceeded (article neurotoxicity days 7-14 manifests itself 7-14 after ex- diazinon); (3) posure did not organophosphates mention “Correla- but not all induce de- (10) Recovery layed neurotoxicity; tions Between Rate of Neurotoxic Est- “Evidence of Necrosis Muscles,” Sensitivity Organic Wecker, erases and by and Phos- in Human Intercostal Mrak, phate Dettbam, evidence, Delayed Neurotoxicity,” by Induced Car- not admitted to rington, study not admitted into evidence but does not which concerned a of a man who received diazinon; (4) "Long even mention Term Effects a fatal dose of malathion and diazinon but did (11) Organophosphate delayed neurotoxicity; Sarin on EEG in Mon- not link diazinon to Humans,” Burchffel, Man,” keys by Duffey Poisoning "Fatal Diazinon Hen- evidence, dricks, evidence, stating many, admitted into but not admitted into which con- organophosphates person not all have been found to cerned who committed suicide in- (5) delayed neurotoxicity; cause gesting two articles diazinon but did not link diazinon with entitled, Acetylcholinesterase (12) delayed neurotoxicity; Finklestein "Brain "Central Actions of Karczmar, Poisoning,” After Acute Organophosphate Agents," by Parathion and "CNS In- not ad- evidence, Organophosphate Poisoning: volvement in Acute mitted into which studied the mental Correlates, Specific Toxicity, exposure organophosphates, Pattern of Clinical effects of to certain Treatment,” diazinon; (13) including and Antidotal "Organophosphate both of which con- not parathion Polyneuropathy,” by Lotty, and were cerned neither admitted into admitted into evi- dence, symptoms organo- evidence but does not consider or discuss diazi- that concluded of non; (6) “Anxiety Exposure phosphate delayed neurotoxicity usually Associated with to induced Levin, Organophosphate Compounds,” by begin exposure one to three weeks after acute evidence, delayed admitted into which concerned effects and lists six chemicals that cause toxicity neuro- exposure on farm workers who received chronic but does not list diazinon as one of those organophosphates relationship study. and found no in the included exposure to Dr. Johnson based concerning appellee’s case Diazinon. this appellee exposure. diagnosis on his examination of He also reviewed Diazinon appellee’s medical records by fed- and on a review of Safety required Data Sheet Material exposure Diazinon showing prolonged Diazinon law from the manufacturers of eral Dr. depressed of cholinesterase. dangers of Diazinon and levels to alert users to the these, was with that he familiar he Johnson testified exposure; from concluded organophosphate regarding literature exposure had suffered an Richard Ellis recall studies could not space poisoning, in an that was 100 but he Diazinon enclosed only long-term and dealing humans. with Diazinon 200 times that considered safe for exposure on humans. symptoms the Mate- effects of Diazinon He reviewed the which Safety overexpo- rial Data Sheet listed for Dr. Appellee also called Francis J. Waick- Diazinon; headaches, these sure were Dr. man as witness. Waiekman nervousness, weakness, vision, nau- blurred immunology, certified in clinical aller- board sea, cramps, respiratory difficulty, muscle medicine, gy, utilization re- environmental twitches, convulsions, and reflexes. loss of assurance, quality pediatrics. view and and symptoms of others were Most these latter, initially speciality, which This his by initially or Ellis. He also later exhibited expertise him further prompted to seek laboratory findings reviewed the after post- also has the other fields. He taken exposure reflected normal levels which below areas, including many graduate courses cells and of cholinesterase blood immunology. clinical toxicology, allergy, and confirma- plasma. blood These were further people have and treats who He also evaluates exposure. of his of a diagnosis tion severe poi- who chemical sensitivities and have been education, by exposure pesti- training, experi- organophosphate Based on soned his ence, literature, his of He that from examination extensive review scientific cides. testified analysis Ellis, of rec- Richard he found central nervous detailed the medical of memory, problems, including loss system ords and of this Dr. Ezrailson facts probability responses, and diminished rea- concluded that reasonable slow verbal recall, expected permanent injury soning less than from Richard Ellis had suffered system by age Ellis’ and education. to his nervous caused his severe man of Waiekman symptoms muscle prolonged exposure to listed weakness Diazinon. also instability. Dr. dis- Waiekman emotional Another witness for was extensively long term cussed effects Johnson, Osteopa- Dr. Alfred R. a Doctor of by neurotoxicity can caused delayed which thy, who at the Environmental Health works He de- organophosphates like Diazinon. Dallas, provides Inc. This Center center per- can cause scribed how such substances public, emphasizing health care to the nerve, injury to the axon manent effect health and treatment environmental ultimately cell can cause the nerve has exposure. Dr. testified that he Johnson body die. suffering patients treated and other specifically about exposure Dr. Waiekman testified from to Diazinon or other similar ques- He that there “no diagnosis for Rich- causation. stated chemicals. Dr. Johnson’s sys- expo- Ellis’ central nervous “organophosphate Ellis toxic tion” that Richard ard damage observed caused relating problems in the form tem that he were sure with also said exposure his to Diazinon. He delayed toxicity permanent reaction and connec- is “no doubt” about causal damage.” Dr. Johnson testified there nerve his can cen- tion between the Diazinon exposure to Diazinon cause Further, case he discussed Ellis’ system symptoms, problems. that the tral nervous appear, top Environmental length symptoms such consultant of time before agreed Ellis’ couple Agency, who vary individual from a Protection can with the “unquestionably” problems testi- were to a months. health weeks few Johnson also that, poisoning. He Diazinon opinion, based reason- caused fied system Richard Ellis’ central nervous appellee’s current stated probability, able medical permanent. August damage problems caused were Finally, appellee testimony offered the Appellant presented of three Austin, Dr. Richard psychologist doctors, clinical Campbell, Dr. Velma Dr. Eric Com- experience who has had treating people stock, who and Dr. Francisco Perez. Camp- Dr. poisoned by have been various chemicals. appellee bell emergency treated in the room personally Dr. Austin examined and evaluat- the New Hospital. Orleans General appellee, gave ed him battery psycholog- Campbell pesticides testified that some can tests, ical reviewed the medical records delayed neurological symptoms, cause but appellee, doctors who had treated elicited knowledge, that to her Diazinon is not one of appellee’s family historical information from these. friends, and reviewed scientific literature Dr. psychologist special- Perez is a clinical regarding organophosphate poisoning. Dr. izing in neuropsychology and behavioral Austin concluded that suffered ner- medicine. Perez did appellant, not examine system vous damage resulting in emotional but his psychological reviewed medical and problems by caused poisoning the Diazinon records and regard- reviewed the literature in 1982. Dr. Austin was familiar with a ing organophosphates. Perez testified that study, evidence, admitted into per- that was opinion worsening his patient’s of a by formed on behalf of Savage, the EPA Drs. psychological typical symp- condition is not a Keefe, others, entitled “Chronic Neuro- tom exposure caused to Diazinon. Perez logical Sequelae of Organophosphate Acute concluded, based on his review of the records Poisoning.”5 Pesticide study This involved literature, appellant’s symptoms are testing of chronically exposed individuals to a likely expo- most unrelated to the Diazinon variety organophosphate pesticides, sure. including agreed Diazinon. Dr. Austin many suffers from of the same im- Comstock, Dr. Eric toxicologist, medical pairments and exhibits similar test results although primarily now consulting forensic those resulting discussed in the literature expert, experience testified that he had organophosphate poisoning. from Dr. Austin past treating persons exposed to toxic sub- testified that there are authoritative studies stances, 80-100 of which involved Diazinon. showing that organophosphate poisoning can Comstock also appellant’s reviewed delayed cause neurotoxic effects. records organo- and the literature about Appellee presented also testimony from phosphates, but appellant. never examined Carter, Dr. family James doctor from his agreed Comstock appellant initially ex- hometown. Dr. Carter testified that he saw hibited mild exposure, acute effects from the and treated Ellis at his clinic in 1982 after including eye irritation, weakness, slight di- exposure. symptoms the Diazinon His were arrhea, headaches, vomiting, but based dizziness, vision, headaches, blurred numb- experience on his and review of the records legs pain. ness his arms and and chest literature, Comstock stated that in his years, appellee the next two was also treated opinion appellant has suffered no stomach, vision, cramps, blurred muscle exposure. effects related to the Diazinon weakness, cramps, fatigue anxiety. having episodes he passing testified, specific out Comstock without eviden- spells. and blackout tiary proof, Carter also testified that Diazinon is an “unrestricted Ellis, prior exposure, good to the pesticide, use” which means that it does not psychological cause, health and had no cause, or mental or has not been shown to se- problems vere, until after the to Diazi- impairing long-term effects. This was non. contrary to from Dr. Ezrailson that 5. The two studies admitted into evidence changes include: cides & brain-function in a controlled (1) Neurological Sequelae "Chronic Rea, Butler, Laseter, of Acute Or- environment” Leon, and De- ganophosphate Poisoning,” Savage, Pesticide by appellant, offered into evidence Keefe, Mounce, Heaton, Burear, Lewis and of- environmentally studied whether controlled con- by appellee fered into evidence which evaluated improve symptoms patients ditions who neurological organophos- the latent effects of exposed organophosphate have been to other phate poisoning patients, on 100 none of which pesticides, other than diazinon. diazinon; (2) exposed had been "Pesti- when, spe- other reasonable absence Diazinon was not unrestricted and was likely “more explanation, becomes cifically precluded golf from use on courses. causal from that did result personal experience than not” the condition that his Comstock noted Lenger, 455 S.W.2d at treating persons exposed to has not the event. Diazinon Here, expert clearly the evidence was based that Diazinon neu- indicated causes Furthermore, probability and rotoxicity. opined on reasonable Comstock more by stronger the instances. But even widely Diazinon has been used some that pre- that, telling, the circumstantial evidence public many years if it caused was Lenger’s “possible” fulfill delayed neurotoxicity, this have been sented which would would standard, there an ab- was Finally, that cause because identified. Comstock testified explanation causal supports conclusion of other reasonable none of the literature sence change good health delayed neurotoxicity, in this seaman’s Diazinon that causes Diazinon his subse- exposure Diazi- to to concluding literature before and that there is symptoms were delayed neurotoxicity.6 continuing which quent, not cause non does traced, orga- to However, specifically analogously, into evi- this was introduced “possible This nophosphate poisoning. no for the authori- dence and basis unknown Lenger to applied when ty’s conclusion as related was cause” standard of Comstock not too removed given. The reflects Dr. Com- the facts of this case is far record that “featherweight” credibility challenged by vigorous standard of stock’s from the previously to criticism Act enumerated. cross examination referred Jones judge testimony by previous of his in a implied disagree appellant’s also We toxic tort court ease. scientific, apply suggestion that should we testimony legal reviewing all of the rather than standard evidence expert After sufficiency to cau circum- review evidence as concerning and other evidence Act, negligence ad- in a or Texas stances of the to an sation Jones essence, they that mittedly dangerous suggesting are chemical and the state case. after, before, “beyond a rea exposure, apply we should a version his health we Act, or rather than a Jones that the more sonable doubt” find evidence than satisfies negligence preponderance Act causa- of the evidence standard. Jones standard Wilson, 273, 239 Benoit v. 150 Tex. precisely, tion. Or stated more we find See (1951). acknowledge the We there was sufficient evidence before the justify methodology” approach finding employer’s their “scientific federal “general negligence as dicta under the obser exposing admitted mentioned Daubert, on dangerous pesti- of a section of and relied extreme levels chemical vations” — Daubert, injury play part producing appellants. did cide -, final sought for which 113 S.Ct. at 2796-98. Whatever were Co., may given ap application R. Rogers awarded. v. Missouri form and Pacific courts, nothing find supra. finding proach that the evi- the federal we addition initial, “featherweight” that it even its undefined dence satisfies this so-called to indicate form, completely erase negligence burden of in Jones is intended causation negligence of evidence for previously Act cases set out in the cited liberal standard injuries to cases, involving and causation in cases we also find Act. proof under greater seamen the Jones sufficient under standard evidentiary rules. for causation under Texas adopt such a strict scientific Should cases, methodology standard toxic tort are to determine causation Juries entitled juries, or qualified on no real need for expert testimony on based there would be based matter, Indeed, they judges for that determine probability. reasonable medical A credibility rely weight evidence. can that the event programmed with the computer properly “possible injury cause” of the or condition insecticides, well as other did non, noted the article en- certain 6. Comstock specifically "Poisoning Organophosphate Insec- titled Due neuropathy. produce (author unknown) that Diazi- ticides,” concluded preferred current methodology scientific ingestion pill, mother’s of a is obvious. Even would expert be sufficient. The evidence and impossible, more difficult if not is the retro- entered, facts of the case could be and the active determination of the condition of the computer, speed with impul- the of electrical fetus before and exposure. after the Added ses, compare could the evidence to its meth- to this is the effect of other unknown factors odology litmus respond: “accepted By way on the fetus. evidentiary further rejected, according presently to preferred contrast, here, the health of before methodology.” speed The efficiency exposure the severe expo- was normal. The applying such a standard is obvious. It elim- direct, indirect, sure was not and the extent element, unpredictable inates that the human exposure specifically shown to be juror; with all of his or her attendant weak- 100 to 200 times that considered to be safe nesses, such as common sense and human Indeed, days humans. even after several experience. A strict scientific standard is cleanups, brought three a biochemist judges attractive us because it has an aura by appellant board found the chemical still perceived certainty around it. And we all present instance, in amounts that in were one certainty. is, however, desire There no cer- times, another, times, stronger science, law, tainty in legal nor in but the than the maximum safe amounts recom- expert standard for generally evidence has by mended Appellee’s the manufacturer. notwithstanding served us well imperfec- its exposure health after the was also known. it, tions. constantly tuning We are fine but Evidence showed that he had initial and con- removing without it from its foundation. It tinuing symptoms eye prob- included designed jury, to aid the replace it. lems, loss, blackouts, memory pains, chest Nor should be removed from moorings, its headaches, control, severe loss of muscular the human elements: pres- advocates to nausea, fatigue, and numbness in arms and it, judges it, ent regulate and the legs. experienced psychologi- He also severe jurors it, guided by to be in order to decide problems, cal and other along mental the issue. thoughts of suicide. findWe these evidentia- Aside from evidentiary the scientific is ry significant expert distinctions and the wit- sues, significant we also note the factual dis nesses were along entitled consider them tinctions between this case and the Brock knowledge with their expertise other here, and Daubert cases. The chemical un making their conclusion that a causal nexus Benedictin, designed like was not orally to be exposure exists between the to Diazinon and humans, ingested by matter, by nor for that And, appellee’s injury. turn, creatures, living except other insects. weigh entitled to along and evaluate them Diazinon an organophosphate specifically expert Therefore, with all the evidence. con- by formulated to kill destroying insects their trary contentions, appellant’s we do not systems. nervous It is known to be toxic to find the Brock and Daubert cases to be com- systems the nervous ingested, humans if parable precedents adverse determinative of improperly inhaled or touched. And it can this case. ingested Also, be fatal if by humans. If accept appellant’s interpretation, cases, contrast to the Benedictin the extent would, by dicta, impliedly Daubert overrule a overexposure of the toxic chemical long precedents, including line of federal symptoms is clear-cut. The he ex Shipping Corp., Sentilles v. perienced Inter-Caribbean continuing, were immediate and 361 U.S. according They S.Ct. L.Ed.2d to the evidence. were the (1959). type symptoms Sentilles was a Act Jones case known to be caused overexposure alleged Only previously the seaman that his Diazinon. their dura permanency tion latent tubercular aggravated were contested. condition was cases, alleged exposure Benedictin and activated a fall he was to sustained on board early ship. an unborn stages fetus The best its medical evidence development. comparative difficulty in was that the activation of the latent tubercu- determining might accident, even the extent of the consequence chemical’s losis be a fetus, embryonic via “probably condition,” or it aggravated his Diazinon, chemical, definitely. exposure to a toxic although say would say that injury. appel- ever one item and “We don’t select We overrule caused any particular aggravation.” cause of is the point error find that lant’s first 109, 80 at The U.S. Id. 361 U.S. S.Ct. was sufficient. evidence reversed, Supreme holding Court jury’s sustained the conclusion four, two, points three and of error aggravation of the the accident caused the punitive damages of appellant challenge the latent that: seaman’s tuberculosis. It stated jury $1,000,000 appellee by as awarded to the jury’s power to draw inference “The the finding gross negligence of their a result aggravation petitioner’s tuber that the no. appellant response question in to against condition, shortly so after the cular evident four, appel point of error Specifically, accident, by impaired was the failure not be damages cannot punitive lants assert that testify to it was medical witness gen the Act or recovered under either Jones ... of the in fact the cause The members At the time this cause maritime law. eral witnesses, jury, not the medical were dam argued, exemplary clear that was was legal to determination of the sworn make under Act. ages were not available the Jones They question of entitled causation. were 1345, Patrick, Bergen v. F.2d St. 816 F/V circumstances, including all the to take the (9th Cir.1987); Kopczyknski v. The see testimony into consideration.” Cir.1984), 555, (9th Jacqueline, 742 F.2d 560-61 (em 109-10, at 361 U.S. 80 S.Ct. at 175. denied, 1136, 471 U.S. 105 S.Ct. rt. ce added). phasis (1985). However, the 86 L.Ed.2d 696 comparative No battle scientific method- recoverability general under of such ologies required and other Sentilles Complaint maritime law allowed in Act Nor do we it to be Jones cases. find (5th Inc., Merry Shipping 650 F.2d 622 Cir. jury here. required our case was 1981). this Following the submission of instructed accordance with Tex.R.Civ.P. cause, has Supreme the Texas Court vindi they judges 226a that the sole of the were Drilling appellant’s position cated Penrod credibility weight of the witnesses (Tex. Williams, Corp. v. S.W.2d given testimony. pre- They their were 1993). punitive damages Penrod held that qualified expert sented with witnesses who “non-pecuniary” and not re were therefore challenged by were not as to appellants general Act seaman in coverable Jones admissibility credibility or of their meth- It maritime claims. unseaworthiness considering odology. conflicting After ruling its on the rationale ex grounded testimony experts, of all the and other evi- Supreme in Miles pressed the U.S. Court dence, they judged credibility weight. it’s evaluations, Apex Corp., 111 S.Ct. Marine they Based on their answered Penrod, (1990); question “yes” inquired no. 1 as to 112 L.Ed.2d 275 appellant’s negligence played whether even therefore sustain 296-297. We part ill- slightest producing injury point reverse appellant’s of error four and now, as ness to Richard Ellis. We cannot judgment punitive damages awarded position appellant’s suggest, would sit as a negligence. Points of gross super-juror thirteenth and reach outside mooted necessarily two and three are error apply evidence to some scientific methodolo- ruling. by this re-weigh its gy standard the evidence and six, points appellants of error five already credibility jury over what the has excluding court erred in contend trial simply power do not have that found. We appellee’s alleged alcohol certain evidence of Benoit, appellate at 796. supra, court. Appellant cites to several references abuse. Instead, conclude, reviewing after allegedly record the trial court where Act through lens of the Jones appellee’s objection testimo- to the sustained standard, weigh jury was entitled Carter, Perez, ny Drs. or records of conflicting expert testimony based regarding appellee’s alleged use along Austin probability with the circum- reasonable evidence, find extreme alcohol. stantial that the

The record ously shows that the trial court concerning mentioned alcohol use from had sustained motion in limine re the files of Dr. Austin. These were some garding appellee’s alleged evidence of notes, party’s use third During Dr. Austin’s. appellant questioned alcohol. When appel- Austin, appellant cross-examination of Dr. witness, Carter, lee’s Dr. James appel- about attempted to offer the entire file of Dr. Aus- alcohol, lee’s testimony use occurred tin including these notes. There was a dis- presence outside the jury. of the The record presence cussion out of re- shows no offer to admit this evidence exhibit, garding this but the discussion is not ruling by and no the trial court. contained in the record. In connection with By failing to offer this obtain exhibit, appellant filed a motion in this ruling admission, regarding its appellant can attaching court an affidavit of the court re- complain about the exclusion of this evi porter in the trial this case and asked appeal. dence on Lakeway Land Co. v. Kiz supplement the record page “new” er, 820, 796 (Tex.App.—Austin S.W.2d 1229 included in the statement of facts. The denied). writ that, affidavit states request appel- at the of counsel, lant’s reporter the court reviewed appellant Before offered the testimo prepared her notes and a corrected version ny Perez, of Dr. Francisco the trial court page of reflecting appellant’s offer of stated that it testimony regard would allow 1A, appellee’s objection, exhibit and the trial ing appellee’s only of use alcohol insofar itas ruling, sustaining objection. court’s Ap- contributing could be a appellee’s cause of pellant reply referencing later filed a brief symptoms. The trial court refused to allow Appellee this affidavit. has filed a motion to testimony regarding alleged alcohol use or strike this reply affidavit and the brief. We arrest, any prior DWI prejudi based on its took this motion with the case. Perez, was, however, cial effect. Dr. allowed testify that he noticed handwritten refer Appellee subsequently filed a supplemental ences to alcohol use in Dr. Richard Austin’s motion to strike this and affidavit attached a notes, opinion, and in his Dr. Austin should new affidavit reporter the same court explored have this possible as a cause of copy of her during notes taken trial. In appellee’s symptoms. Dr. Perez noted that affidavit, reporter the new the court states potential assessment of alcohol abuse is es original that the by appel- affidavit submitted sential psychological from a standpoint, lant, was in error to the extent it asserts that question organic where there is a impair of 1A, the record reflects an offer of exhibit ment, because prolonged excessive alcohol objection, ruling by and a the trial court. produce organic abuse can changes. reporter now states that a review of her notes, notes, stenographic handwritten We find no error in the trial court’s exclu- trial, audio memory records of the and her sion testimony regarding of past DWI ar- indicate that exhibit 1A was not offered into ground rest on the probative that the value objec- evidence and there subsequent was no testimony of this outweighed by prej- its ruling by tion and the trial court. The re- udicial effect. See Tex.R.Civ.Evid. 408. The porter confirms that the page amended trial court did allow some about included statement of facts is accurate appellee’s use of possible alcohol and the in that it reflects of no offer the exhibit or relationship between excessive alcohol use ruling by trial court. Attached to this symptoms alleged by ap- such as those they copy reporter’s new affidavit hand- is\a pellee. Appellant has not established that indicating ruling written notes no offer or on part error on the of trial court exhibit 1A. Based on our review of the excluding testimony by regarding Dr. Perez subsequent record and the affidavits and alcohol use was “calculated to cause and did notes, supporting grant appellee’s motion improper judgment.” cause rendition of an Tex.RApp.P. to strike the initial affidavit. 81(b)(1). Appellant Thus, record, also contends the trial court including 1A, in excluding facts, erred page Defendant’s exhibit amended from the statement of which contained previ- the handwritten notes indicates that after the discussion off the finding, jury record, attorney willing awarded this affirmative voiced his exemplary damages in except ex stipulate everything, million ness to $1 1A, argues Aus jury question Appellant were records no. hibit business tin. 1A contained the handwritten demanded Exhibit no evidence there was apparently Appellee cure, notes. third-party appellant ever maintenance with agreed cure, to the admission of exhibit one or that pay maintenance refused to however, notes; appel out these handwritten arbitrarily capriciously appellant acted ruling on the admission lant no obtained v. failing to these amounts. Harrell pay exceptions. made these exhibits and no bill 123, 129-30 Co., Transp. Bay 718 F.2d Dixon ruling appellant failed obtain a Because (5th Cir.1983), upheld a court lower evidence, regarding this has finding legally insufficient evidence court’s complaint appellate re preserved arbitrary pay capricious refusal to of an Co., Disposal Supply Inc. view. Industrial shipowner and cure where the maintenance Serv., Inc., Perryman Bros. Trash v. opinions treating relied the advice (Tex.App Antonio . —San physicians stopping payments, and where n.r.e). 198B, points ref d We overrule writ shipowner of seaman did not inform the five and six. error newly and a discovered further treatments ten, Lykes Bros. ap- condition. In Neveaux through points error seven Co., Inc., Steamship 476 F.2d 178-79 pellant challenges the submission (5th Cir.1973), arbitrary no regarding cure the court found questions maintenance and pay and exemplary capricious award on the refusal to maintenance and the or Appellant delayed payment shipowner issue of maintenance and cure. cure the where supported no evidence the submission from seaman that investigate claims to claim cure no of issues on maintenance and and included elaborative details. no requisite supported finding the to evidence that, Gaspard v. Appellee contends under imposition exemplary damages appel- Co., Inc., Taylor Diving Salvage & 649 F.2d pay lant’s failure to and cure maintenance (5th Cir.1981), not be there need evi- 372 willful, arbitrary, capricious. and payment pre- or dence a demanded seaman Upon injury, a is seaman entitled shipowner sup- to bills to the sented medical the to and cure until date of arbitrary capricious maintenance finding and port cure, beyond possible maximum or the date cure.7 We pay maintenance and refusal to improve which further not treatment would Gaspard, In distinguishable. Gaspard find Drilling the v. Marlin condition. Johnson payments and had not demanded the seaman (5th Cir.1990). Co., 77, Punitive 893 F.2d 79 ship- the no bills to presented had medical proof if the damages are available there shipowner’s left the after the seaman owner shipowner’s pay failure to maintenance facts, Based on these employ. Id. at 374. willful, arbitrary, capricious. cure was willful, arbitrary, or no the trial court found (5th AWI, 100, Inc., 823 F.2d 103 Breese capricious pay failure to maintenance Cir.1987). first The Fifth Circuit noted: cure. Id. and cure duty provide to maintenance 10, jury jury question In no. the provide only obligations to not embraces found never reached maximum pay for 12, and to a subsistence allowance jury question no. medical cure. Under actually by the expenses incurred willfully, jury appellant found that acted the seaman, steps to all reasonable pay but take arbitrarily, capriciously failing seaman, injured the when he Based on ensure that appellee. and cure maintenance the Drilling, The court found that Appellee ments. Id. at 387-88. 7. also cites Tullos v. Resource Inc., (5th Cir.1985) supporting diagnoses physicians 750 F.2d 380 were not so clear and of the be jury his that there need not evidence contention removal of a issue as to validate consistent shipowner the of his claim seaman notified arbitrary capricious of mainte- denial on Tullos, however, and cure. maintenance not cure. Id. at 388. Tullos does nance and shipowner of did medi- seaman advise notify shipown- seaman need not hold that a claim, diagnoses the doctors con- cal but the er his claims. shipowner pay- and the discontinued flicted 796 ill,

or becomes proper involving receives care and in cases interest claimants under treatment. general Jones Act and maritime law have taken somewhat of pathway. a dual Under evidence, reviewing Id. at 375. In general law, maritime prejudg award of Fifth Circuit found before the seaman ment nigh interest is “well automatic.” employment terminated his he had suffered G., Tubing, Reeled Inc. v. Chad 794 M/V symptoms decompression sickness (5th Cir.1986). 1026, Similarly, F.2d 1028 occasions, reported number had these prejudgment in a interest Jones Act claim symptoms shipowner, ship- and the may tried to court allowed at the unreasonably owner denied the seaman Hooks, Ceja discretion court. v. Mike decompression treatment in a tank. Id. at Inc., (5th Cir.1982). 1191, 690 F.2d Thus, shipown- the court found that the However, pre federal courts have ruled er steps did take reasonable to ensure judgment interest is not available cases proper the seaman received care and treat- brought under the Act Jones that are tried to supported ment and this failure Inc., jury. Son, Simeon v. T. Smith & finding. (5th 1421, Cir.1988), denied, F.2d cert. support this the evidence does 1106, 3156, 490 U.S. 109 S.Ct. 104 L.Ed.2d appellant arbitrarily conclusion that (1989); Barrios v. Louisiana Construc capriciously proper refused ap- treatment Materials, (5th Cir.1972); tion 465 F.2d 1157 pellee. Such an type intentional of refusal Boats, Vidrine, Bros. Inc. v. Sanford requires as a minimum either a notice or (5th Cir.1969); F.2d 972-73 see also employer, demand communicated to the or Trawlers, Inc., Cano v. Gonzalez 809 S.W.2d specific justify facts which the inference that (Tex.App. Corpus no Christi — employer simply ignored knew writ). denying stated One rationale behind pay. refused find no We prejudgment jury-tried interest Jones Act record that notified apparently grounded cases is in the notion way payment of claims for he left after jury awarding that in damages for the ship, appellant or that arbitrarily refused to various elements some makes allowance for pay. The apparently first notice was by delay. loss Zapata caused See Barton v. lawsuit, alone, standing it cannot be a Co., F.Supp. 778, 397 779-780 Offshore self-fulfilling Thus, employer. notice to the (E.D.La.1975); Lines, Moore-McCormack the trial court in submitting question erred Richardson, (2d 583, Inc. v. F.2d 295 593-94 no. 12 because there was no Cir.1961), denied, 989, cert. 368 U.S. 82 S.Ct. jury which the find appellant could arbitrari- 606, (1962). 7 L.Ed.2d 526 stated Another ly capriciously payment denied of main- large reason for part this rule is that a of the appellee. tenance and cure to We sustain damage in award such cases is attributable to appellant’s points eight of error and nine and wages future lost future medical ex only exemplary damages reverse award- penses, prejudgment interest is nec Having points, ed. sustained these we need essary compensate under federal law to for seven, points not address and ten. yet Wyatt losses which have not accrued. v. eleven, point appellant error con- Co., 951, Drilling Penrod F.2d 955 n. 735 3 awarding appel- tends trial court erred (5th Cir.1984). prejudgment because, lee interest as a mat- law, appellee ter of is not to prejudg- entitled Appeals Fifth The U.S. Circuit Court of ment appellant interest. Because did not prejudgment has its extended interest ratio- request apportionment or obtain an of dam- this, encompass nale to such cases as where ages between his claims under the Jones Act the recovery sought is both under Jones Act law, general appel- those under maritime negligence general and the maritime doctrine prejudg- lee asserts that he is not entitled unseaworthiness, jury. which tried to Wyatt Drilling ment v. interest. See Penrod It damage has that ruled “When award is (5th Cir.1984). Co., 951, F.2d 735 955 jury finding based on a verdict both Jones error, examining unseaworthiness, point negligence this Act without law, ‘any prejudgment providing determining find that under federal basis for award, jury. Quality Parking, portion damage any, is v. Control if attrib Cavnar (Tex.1985). Inc., Appellee rather than utable to unseaworthiness Jones prejudg- impermissible to that this negligence, it is award concludes assessment Act Bunge judge procedural is a prejudgment v. ment interest interest.’” Colburn (5th and, Inc., opposed to a substantive one Towing, 883 F.2d Cir. matter as court, 1989). thus, though case tried to state even a Jones Act This was held to be true law He analo- suggested jury procedural prevails. party “that the state neither diversity damages of federal gizes between the to the converse requested to allocate procedural rules are the federal Act claims.” cases where and unseaworthiness Jones Root, Inc., law.8 along substantive applied 810 F.2d with state McPhillamy v. Brown & Cir.1987). (5th However, courts McPhillamy holds it is clear the federal also evidentiary footing regard in maritime law prejudgment unless “there is an interest law separating damages unsea issue and federal caused substantive Co., Drilling negligence, prevails. Domangue Act Penrod worthiness and Jones (5th Cir.1984); Wyatt, jury apportion dam cannot be asked to 748 F.2d ages.” supra. In that there was at 532. single single harm from a cause and Appellee argues also that the has plaintiff] if court stated that “even he [the any apportionment of waived apportionment, asked for he would not

had identify strictly unseawor- general maritime been to it.” Id. The same have entitled object or damages by failing to re- thiness exists this case. situation However, in quest apportionment. such an Appellee counters that claim is based McPhillamy, federal view the decisions and, primarily general maritime law on Colburn, Domangue, is clear that therefore, in- prejudgment he is entitled footing” “evidentiary there must be an However, argument is consider- and, terest. types damages; separating the two ably weakened a review of issues impliedly, plaintiff it is who must ask for jury to the and their submitted answers McPhillamy, apportionment. 810 F.2d at thereto, judgment on which the was based. damaging argument more to this Even In question no. was asked wheth- McPhillamy that where is the conclusion appellant’s negligence played er cause, even single single from a no there harm part producing injury slightest or illness to apportioning exists for dam- realistic basis discussed, previously criti- appellee. As ages; plaintiff if in that case had and even phrased cal in accor- issue causation was he apportionment, an would asked for dance with the Act standard. Even Jones Appellee’s it. to situation have been entitled unseaworthiness, though jury ap- the found damages result from one is the same. His clearly pellee’s argument causation cause, exposure to a toxic substance. standard, grounded on the Act and to Jones pre if this acknowledge that issue We solely gener- that his claim is based on assert being under judgment interest were tried con- al maritime is inconsistent with that law law, reach a we would Texas substantive wording issue. tention and the of that central because, the fed unlike different conclusion law, empowers only the trial argues law Appellee alternatively that eral Texas past, prejudgment on rulings judge assess interest prejudgment federal interest on limitations, statutory on fu jury incon and with certain in Act cases tried to a are Jones Cavnar, C prejudg damages supra; & regarding ture as well. sistent with Texas law Nationwide, Thompson, injury Inc. v. 37 damages personal on H ment interest Tex. (June Sup.Ct.J. 1067, 1059, 1994 278167 correctly as WL points He out that the cases. 25, 1994); art. 5069- Tex prejudgment interest under sessment Tex.Rev.Civ.Stat.ANN. (Vernon Hence, 6(a) 1.05, § judge Supp.1994). assigned if it is as law is trial supporting the denial of rationale pled. No is submitted to federal properly issue Tallentire, 207, doctrine, Logistics, federal shore Inc. "reverse Erie” Under the 2485, (1986). respect preempts state law maritime law substantive, L.Ed.2d 174 S.Ct. procedural matters. but Off- prejudgment Appellee interest in Jones Act eases attended the Seafarers Internation- theoretical, to jury tried conflicts with al Union school for merchant marines. The statutory, allowing pre- and now basis for evidence indicated that this is not the school judgment jurisprudence. interest in Texas Academy same as the Merchant Marine that study the course of is somewhat differ- also aware we We are that are not intract ent. There is no indication in the that record ably pronouncements bound to follow appellee completed training. this disputed Fifth Circuit on federal law issues. Rather, only obligated we are to follow deci years During appellee the two sailed be- Supreme sions the U.S. Court and the incident, appellee fore the insecticide worked Supreme Drilling Texas Court. Penrod v. GSU, general utility, as a steward which is Williams, (Tex. Corp. v. department the lowest level in the steward 1998). But we are also aware that Penrod ship. Appellee ordinary also worked as dealing with an on which federal issue seaman, which is the lowest level in the deck Here, appeals courts of divided. were we department. ordinary The level above sea- opinion find no such division of between fed ordinary man An able-bodied seaman. regard prejudgment eral courts with inter experience must six seaman have months Thus, est in Act Jones cases. we find the department pass deck test to be- weight of the numerous decisions the fifth come an The able-bodied seaman. persua circuit court question to be that, average showed able-bodied Accordingly, on this sive federal issue. salary monthly seaman AB could earn a appellants point sustain of error number $4,000.00-6,000.00. judgment pre eleven and reverse for Appellee’s expert on Dr. judgment appellee. interest awarded to Mayor. Assuming appellee Tom re- that twelve, appellant point of error position mained in the same he had at the sup claims there is insufficient evidence to incident, Mayor time of the Dr. calculated port past the awards and future lost present appellee’s lost value future wages. Regarding wages, appel lost future $834,763.00. wages from 1983 forward at jury lant contends the based its award $701,983.00 figure This fu- total includes (1) following assumptions: three erroneous wages ture from lost the date of trial appellee that suffered from neuro- $132,769.00 wages in lost from 1983 to the (2) toxicity; appellee was entitled to the Assuming appellee date of trial. had of- wages employed an able-bodied seaman become an able-bodied seaman (8) round; year appellee’s capability Mayor wages calculated future lost to work has been reduced 90% his $2,100,000.00 approximately appel- exposure to Diazinon. wages lee’s lost 1983 to date trial from

Appellee’s appellee $360,000.00. counsel claims attend- jury awarded Bowling University study $320,000.00 engi- $1,890,- ed wages Green past lost neering Thus, wages. then attended Merchant Ma- 000.00 in future lost Point, Academy Piney Maryland. Ap- apparently agreed rine have would pellee’s appellee counsel further asserts that of attained the status able-bodied seaman. had trained with the Marine Acad- Merchant considering all We find that the evi- after emy years for two and had almost almost dence, jury to the the was entitled make completed training his when the insecticide condition, appel- inference that because of his record, however, incident occurred. in- deprived opportunity lee com- of the to Bowling appellee dicates that attended Green plete em- training higher and attain the School, State Vocational Paducah Area Voca- ployment status. thus find the We evidence School, Oakridge tional and Associated Uni- point and error sufficient overrule of twelve. versity. Appellee technology civil at studied Paducah, thirteen, Bowling point appellant and and he In error Green studied of sup testing Oakridge. nondestructive It is to at is claims there insufficient evidence port past appellee complete the for and future medical true did the awards evi- study expenses. at of all of the courses these schools. We have reviewed extend into the regard past manent and will therefore dence to and future medical factually is the suffi- expenses and find the evidence suffi- future. We find evidence jury’s support support jury to the award for each of cient the awards for these cient to Appellant these. does not attack the evi- point We overrule of error fifteen. elements. $38,000 concerning the for dence award regard last three insufficien With to these expenses, why past it is or indicate concerning damages, cy points of we error excessive, to refer other than to lack all of the evidence in the have reviewed issue. As the future medical causation record, not to all of the we elect detail but $850,000, is from award there af inasmuch as we are supporting evidence probable that the of future Dr. Johnson cost reversing these awards. firming and not $600,000. Ap- medical treatment would be obli with our review This is accordance pellant apparently seeks discount gations insufficiency points of error. Pool credibility by referring to fact Johnson’s Co., 635; Ellis v. Ford Motor 715 S.W.2d osteopathic physician he is licensed Tex.Sup. Keever, County Bank v. State and “not a medical doctor.” Dr. Austin also (June 1120, 25, Ct.J. objection that the cost of testified without 1994). psychological for future treatment Accordingly, judgment in- we reverse $250,000. probably previ- we would As damages in exemplary it stated, sofar as awards ously jury judge entitled $1,000,000.00,each, gross neg- for amount of credibility weight witness. malicious, arbitrary ligence for failure to factually therefore find the evidence is We pay and cure. also reverse maintenance We award, support sufficient to prejudgment interest. We award point overrule error thirteen. nothing judgment take render fourteen, point appellant error af- regard three elements. We these sup there insufficient contends judgment. firm remainder of the porting past physi the awards and future anguish. pain cal and mental The evaluation SEARS, CANNON, LEE, JJ., ELLIS of these elements does not lend itself to concur. calculation, precise mathematical peculiarly jury. within the discretion of BROWN, C.J., recused. judgment We will not substitute our therefor BOWERS, J., deceased. showing unless is an of bias there affirmative Fabrics, prejudice. Hancock Inc. v. Mar ROBERTSON, Justice, concurring and tin, (Tex.Civ.App.— 596 S.W.2d dissenting. n.r.e). Dist.] Houston writ ref'd [14th Corporation appeals as Maritime After consideration all of the evidence Overseas severity ap- judgment appel- permanent from a rendered favor of nature of damages. pellee’s damage, find for more million nerve the evidence lee than $12.6 chal- factually jury’s Appellant points fifteen of error sufficient raises warrant elements, sup- ap sufficiency lenging for these and overrule of the evidence award challeng- pellant’s point porting of error fourteen. the award ing amounts of the awards of actual fifteen, point of error damages, punitive damages, the awards of contends there was insufficient evidence and the exclusion of certain evidence. support past phys the awards for and future argued panel of this impairment. Again, examined This case was before ical we have panel of 1992. The consisted all the record and find that court in June of evidence the Robertson, Junell, Draughn. and ap is to there sufficient evidence show that Justices 31, 1992, majority opinion a damage and pellant permanent nerve On December has issued, joined by Junell and physically Justices that makes him was muscle weakness Robertson, unstable, distances, found insufficient long and in which we unable to walk damages award. support to the generally physical The evidence limits his activities. opin- an ample per- Draughn dissented without is that this condition is Justice evidence Junell, having sought pain anguish, past ion. Justice not reelec- and mental and and future tion, day. physical impairment. Subsequently, appel- retired that rehearing grant- lee’s motion for bane en was Appellee awas steward’s assistant aboard and ago ed over fourteen months this case August the OVERSEAS ALASKA. On S/T re-argued banc, before court the en 27,1982, sprayed the chief steward undiluted sitting Chief Justice not Brown because of galley, diazinon in pantry, dry the and store- then, (who his recusal. Since Justice Bowers morning, room. The next crew members rehearing) of was member the court on has strong noticed odor of insecticide and the away. passed ripe This case is for resolu- captain cleaning sprayed ordered of ar- the tion. Appellee participated clean-up eas. any approximately pro- for five hours without holdings majority: I concur in three the gear prevent tective to inhalation or dermal (1) damages punitive that not are recoverable appellee began Subsequently, contact. com- (2) general in a maritime that there is plaining eye of a headache irritation. appellant arbitrarily no evidence that denied ship port When the in New reached Orleans justifying maintenance and cure an award later, days appellee two treatment received (3) punitive damages, prejudgment that Hospital at the New Orleans General emer- However, wrongfully interest was awarded. gency room. by the instead of extended discussion majority, merely I note that as a matter of Testimony exposure orga- indicated that to law, prejudgment substantive federal interest nophosphates can lower the levels of an en- simply is damage recoverable when a zyme acetylcholinesterase, called also called jury finding award based verdict both cholinesterase, which nor- is essential unseaworthiness, negligence Act Jones messages mal transmission of from one nerve providing determining for without basis organophosphate. to another. Diazinon is portion award, any, damage if Cholinesterase levels are measured test- attributable to the rather unseaworthiness ing red cells blood and the blood serum. negligence. v. than Jones Act Colburn performed emergency Blood tests (5th Inc., Bunge Towing, 883 F.2d appellee’s room revealed that of choli- level Cir.1989). though This is true even neither depressed. red Appellee’s nesterase was party suggests jury requested “that the .40, cell blood level cholinesterase was damages allocate between Act the Jones average range while the for men of McPhillamy unseaworthiness claims.” age Appellee’s is .44 to 1.09. serum level Root, Inc., (5th Brown & 810 F.2d 529 Cir. .54, cholinesterase was .53 or while the aver- 1987). Further, 3.80, McPhillamy holds that un age range examining is 1.90 to The evidentiary footing is an sepa less “there for physician, Campbell, Velma concluded rating caused unseaworthi expo- appellee organophosphate suffered negligence, ness Jones Act can exposure sure but determined that this apportion damages.” be asked Id. enough hospitalize appellee or not serious single at 532. In that case there was a harm Appellee antidote medications. administer single from cause and the court stated that eye received medication for irritation and plaintiff] ap if for [the “even he had asked follow-up was advised to return for a visit. portionment, he would not have been entitled Appellee returned to work and served as present to it.” are same facts appellant for crew member rest this ease. year. holding majority against

I dissent to of the June filed suit (the § opinion U.S.C.AApp. there is sufficient under 46 Act) jury’s finding alleging support gross negligence, suf- Jones $8,576,000 damages. Finally, alleging general fered actual under maritime law unsea- summary disposition ap- I dissent worthiness. Appellee claimed that he was pellant’s points suffering 15 com- error from neurotoxic effects plaining past Appel- caused to diazinon. awards and future testimony expenses, past physical deposition and future lee’s and the

801 apply fed- that we must Appellant asserts regarding his medical records indicate that appellee’s prob- this case because eye eral law to appellee continued suffer from lems, causes of sleeping, causes of action are both federal he had trouble that he anxious, supreme has memory Texas court stated: depressed, had action. The was high pressure, he problems, that had blood invoked, applicable properly Where gastrointestinal prob- that he suffered preempts maritime law state general appellee Appellee’s testified that lems. wife remedies, consistent of action causes irritable, depressed, is more has head- Congress longstanding desire of weakness, aches, memoxy problems, muscle uniformity in judiciary achieve and the job. a been unable to hold and has jurisdiction. admiralty of the exercise both appellee in of on found favor v. Estate Marketing & Refining Texaco appellee approximately claims and awarded Tran, 61, (Tex.1991), 64 808 S.W.2d Dau Van punitive including million million in $1 $12.6 301, denied, 908, 112 116 502 S.Ct. cert. U.S. exemplary damages, in dam- and million $1 (1991). Texaco, court 245 L.Ed.2d pay ages for maintenance and cure. failure determining plaintiff could whether appellee an addition- The trial court awarded anguish damages, un allowed recover mental $1,871,728.00 prejudgment al in interest. law, prohibited general state but under der one, law. Id. at 63. Because the court point maritime appellant of error contends plaintiff properly invoked found that the had denying appellant’s the trial court erred in law, general under maritime remedies trial is insuf- motion for new because there damages for court reversed award jury finding support ficient evidence In American $8,576,000.00 anguish. mental appellee suffered actual —Miller, U.S. -, Company v. Dredging damages. Appellant concedes (1994), 981, 114 127 L.Ed.2d 285 S.Ct. expo- from the suffered short-term effects made clear that exercis Thus, supreme court appellant sure to diazinon. does not personam jurisdiction in a maritime ing in damages contest the medical treatment may adopt remedies a state court such in 1982 received New Orleans as it to them such incidents sees and attach days Appellant the loss of two work. attempt long as it does not to make fit so contest awarded for does changes maritime law.” in the “substantive delayed neurotoxicity ground claim of on the There, court held that the doctrine appellee’s expert testimony specula- procedural concerned non conveniens tive and based reasonable forum that, law and opposed to substantive probability. therefore, subject on the did the federal law grant A has trial court wide discretion — at -, preempt state law. Id. ing Champion trial. Int'l motion for new Corpora See also Exxon 114 S.Ct. at 983. Appeals, Corp. Court v. Twelfth Choo, v. Kam 881 S.W.2d tion Chick (Tex.1988). uphold We must S.W.2d (Tex.1994). question of causation Since showing the trial court’s decision absent law, our review the one of substantive Id. Because a manifest abuse discretion. me that federal case law case law convinces factually insuf contends there was con regarding evidence of causation should support the award of dam ficient evidence trol this case. consider, weigh, examine ages, must however, Plas-Tex., is consis- Generally, Texas law Inc. United of the evidence. all (Tex. regarding expert testi- law Corp., tent with federal 772 S.W.2d States Steel damages, 1989). only mony if on causation. To recover may verdict We set aside the by competent evidence a plaintiff prove support the find must evidence is too weak event sued finding between the against or if the is so the over causal nexus ing, Morgan v. injuries alleged. See it is and the whelming weight of the evidence that 729, 732 Corp., 675 wrong. Compugraphic S.W.2d manifestly unjust clearly See (Tex.1984). (Tex. ... must Alviar, connection “Causal Garza v. otherwise, 1965). probabilities; rest reasonable 802 that such actually inference did occur can typically causation offered in a toxic tort speculation

be no more conjecture.” than case. The court noted that the most useful Myers, Insurance Co. North America v. type epide conclusive of evidence is the (Tex.1966). 710, 411 S.W.2d 713 See also miological study attempts “to define a v. Gideon Corp., Johns-Manville Sales 761 relationship between disease and a factor (5th Cir.1985). 1129, 1137 F.2d Whether the suspected causing it....” Id. at 311. Re probabilities evidence rests in reasonable de garding studies, such the court added: pends upon expert’s the substance of the relationship [between To define that a dis- testimony. Myers, 411 S.W.2d at “Ex 713. cause], alleged epidemiolo- and its ease pert testimony that the possible event is a gist general population, examines the com- ordinarily cause of the condition cannot be paring among the incidence the disease as treated evidence of reasonable medical people exposed ques- those to the factor in probability when, except in the absence of exposed. epidemiolo- tion to those explanation, other reasonable causal be gist then statistical uses methods and rea- likely more comes than not that the condition soning biological to allow her to draw a Lenger did Physi result from the event.” v. inference being between the factor studied (Tex. Hosp., 703, cian’s 455 Gen. S.W.2d 706 etiology. disease’s 1970). mentioned, Id. As epidemio- the court also present juries Toxic tort cases such as this logical necessarily do studies exclude oth- upon with questions which medical or scienti possible er causes for the same disease. Id. experts may disagree. fic See Brock v. Mer epidemiological Two studies of the effects of Pharmaceuticals, Inc., rell Dow 874 F.2d drug Bendectin were admitted into evi- (5th 307, Cir.), reh’g, 309 884 modified dence id. study Brock. See at 312. One (5th denied, Cir.1989), F.2d 167 cert. 494 U.S. support did not a causal connection between 1046, (1990) 1511, 110 108 S.Ct. L.Ed.2d 646 Bendectin and birth defects. Id. The other (hereinafter as I referred to Brock and Brock greater study defects, found a risk of birth II). injury Whether substance caused an signifi- statistically but that the risk was not is a question requires scientific the testi plaintiffs cant. Because the did not mony professionals. medical See present any statistically significant epidemio- Myers, Insurance Co. North America v. logical proof drug that the causes birth de- (Tex.1966). expert’s 411 S.W.2d 713 An fects, the court held that the evidence was “must based ‘reasonable insufficient to enable a trier of fact make a probability', opposed to a mere reasonable inference as to causation.1 See ‘possibility', anything ‘possi since almost 315; II, id. at Brock 884 F.2d at 167. Yelin, ble’ in the field of medicine.” v. Duff (Tex.App. S.W.2d 370 [1st 721 case, In again a later the Fifth — Houston Circuit 1986), (Tex.1988). 751 Dist.] questions expert’s aff'd addressed about an testi Thus, proof if the consists of mere medical regarding mony causation a toxic tort case. possibilities, it is insufficient to establish a Christophersen Allied-Signal See Corp., Duff, causal connection. 751 S.W.2d at 176. (5th Cir.1991), 939 F.2d 1106 de cert. —nied, -, S.Ct. Confronting challenge to the evidence of (1992). Christophersen, L.Ed.2d 506 causation in a toxic tort the Fifth Cir- expert’s opinion trial court had excluded an “critically cuit held courts should evalu- plant reasoning certain chemicals at process ate the which the ex- determining perts caused cancer. Id. at 1109. In connect data to their conclusions excluding consistently rationally order for whether the trial court erred courts I, disputes testimony, resolve the Brock the Fifth forth before them.” Circuit set Brock, requirements F.2d the Fifth Circuit three threshold the admis (1) analyzed types regarding sibility testimony: of evidence of expert whether the I, indicating requirement 1. In Brock the Fifth epidemio- Circuit found "the lack of of conclusive epidemiological proof logical conclusive to be requirement "statisticaEy fatal to to a studies II, significant Brock's 874 F.2d at epidemiological proof." case.” 313. On rehear- Brock ing, changed the court this sentence and others F.2d at 167. methodology sup- to expert fered no well-founded qualified express to an witness is causation, (2) issue, regarding the port opinion opinion topic the at whether the his on expert’s expert the upon which the relies are of the Fifth concluded data Circuit type experts opinion in the field reason- a scientific hunch same other was no more than ably rely forming opinions, support judgment their in inadequate to a and was (3) conclusion, reaching the plaintiff. whether the favor of Id. expert methodology a or used “well-founded Christophersen has Appellee contends that reasoning, ‘sufficiently one estab- mode for evi requirements the Brock lessened general acceptance in gained to have lished in toxic tort supporting causation dence belongs’.” it Id. particular the field in which Neither Brock nor Chris disagree. cases. I the meets at 1110-11. Even if epidemiological studies holds that tophersen may still be requirements, three these in toxic required to establish causation are un- testimony’s “potential excluded if cases; however, their both cases note tort substantially pro- outweighs its prejudice fair 313; I, Brock 874 F.2d at importance. See value.” Id. at 1110. See also bative Fed. F.2d at 1115. Further Christophersen, 939 403. R.Evid. more, expert opin indicate that both cases Christophersen criti- The trial court had type by of well-found unsupported ions some expert’s testimony grounds on cized reasoning methodology or con ed scientific underlying opin- that the facts and data sup to speculation, mere insufficient stitute incomplete ion were inaccurate and and that I, port judgment. a Brock 874 F.2d at See expert methodology offered no scientific 315; Christophersen, 939 F.2d at 115. Both support Id. to his conclusion. at 1113-15. Christophersen now been Brock and have criticisms, reviewing Cir- these the Fifth Dow, by strengthened Daubert Merrell expert first found that the cuit over-estimat- — -, Inc., U.S. S.Ct. exposure ed to the duration of the decedent’s (1993). L.Ed.2d certain chemicals and had no accurate data in Brock on the standards set forth Based regarding composition the chemical Daubert, Christophersen, appel- and now alleged expo- plant fumes in the where the appellee’s lant contends conclusions Thus, Id court sure occurred. at 1113. speculation to because experts amounted agreed properly the trial court could they unsupported scientific studies were reject opinions expert founded on critical methodologies estab- or other well-founded untrustworthy. are facts that Id. at 1114. lishing exposure and link between diazinon expert in question The also testified that the neurotoxicity. My of the evi- delayed review kind of often evidence most used establish syllo- agree. Appellee’s me to dence leads studies, epidemiological are animal causation adopted gism,2 appears to have been testing, testing. and in vitro Id. at 1115. majority, is: testimony regarding main Despite his organophosphates delayed can cause Some methodologies, meth- offered no neurotoxicity; odology support his conclusion organophosphate; in an Diazinon types plant of chemicals used at the were Diazinon, therefore, delayed must cause cancer associated with form of found neurotoxicity. Id. Because the of- the decedent. energy Exposure to majority production. ATP cer- however, Appellee asserts and the seems neurotoxicity; tainly organophos- does cause agree diazinon is an that because rationale, simply majority’s because under the any organo- phate, study scientific that links organophosphate studies and scientific ATP is an neuropathy phosphate neurotoxicity should organophosphates to neurotox- have linked some neurotoxicity. be sufficient to link diazinon neurotoxicity. linked icity, must also ATP contrary commonly runs to all This rationale "Organophos- principles. scientific compound, understood one of chemical Diazinon is a distinct phate" family name that is broad chemical many organophosphates, and is itself different encompasses group compounds. variety (e.g., a diverse of brand names marketed under (adenine fact, example, triphosphate) is "Spectricide”). also exhibit 63 For ATP ATP,however, pesticides organophosphate. organophosphate occurs nat- an lists over different unique urally body, relatively large appendix, its chemical each with human composition. are metabolism name and amounts of ATP essential our fallacy. issue, This is as framed generally accepted has been in the scientific — majority, organophos- not whether community. at -, S.Ct. delayed phates neurotoxicity; cause the issue recognized 2797. While the court simply: diazinon, does one of inquiry one, is a “[t]he flexible focus of

many organophosphates, cause neu- course, solely principles must be rotoxicity? methodology, not on the conclusions that generate.” they (emphasis supplied) Id. Supreme the While United States Court question was with the faced of the admissi- Appellee testimony offered the of four ex- bility Daubert, in prin- of evidence the same perts on the issue of causation. Dr. Edward ciples the court there announced apply to Ezrailson, biochemistry, a in who holds Ph.D. weighing sufficiency the evidence. In- of testified that he of has studied the effects deed, approving in Brock v. Merrell Dow humans, organophosphates using certain on Pharmaceuticals, above, referred to tests, animal for the Environmental Protec- Daubert court sanctioned the reversal of the Agency. tion Dr. Ezrailson that his admitted judgment for insufficient evidence of causa- study EPA was of the effects of malathion tion “rather than wholesale exclusion under parathion protein the skeletal muscle uncompromising ‘general an acceptance’ published in No paper metabolism rats. test,” noting that devices such reversal of study. as a of result this on the Based judgment judgment or of direction are “the exposure amount of appellee’s and duration appropriate safeguards where basis of diazinon, Dr. ap- Ezrailson concluded that testimony scientific meets the standards of caused, pellee’s symptoms were reasonable — Rule (emphasis supplied). 702.” U.S. at by probability, exposure. this -, S.Ct. cross-examination, On Dr. Ezrailson subject Daubert court that the held of agreed his research involved a of review expert’s testimony must be “scientific the scientific literature. He testified that he — at -, knowledge.” Id. 113 S.Ct. relied, extent, upon opinions to some “Scientific,” said, “implies at 2795. the court chapters writing authors text- grounding procedures methods book entitled “Toxic Effect of Pesticides.” science;” “knowledge” that the word agreed Dr. Ezrailson with a statement subjective than or “connotes more belief un compounds text that individual within a simi- supported speculation.” Finally, Id. in or may extremely range lar chemical class from qualify knowledge,” der to as “scientific “an practically agreed toxic to nontoxic. He also inference or must assertion be derived with the statement that red blood cell choli- scientific method.” Id. nesterase, plasma, rather than that in blood determining Daubert commands that provided a more accurate reflection reasoning whether the or un- methodology acetylcholinesterase inhibition of in the nerve derlying “expert testimony” scientifically cells. Dr. Ezrailson that the testified aver- valid, “many factors will bear inquiry.” on the age time acetylcholinester- for restoration of — -, U.S. at 113 S.Ct. at 2796. person exposure ase in with diazinon setting forth While a “definitive checklist two weeks to three months. test,” supreme or court stated that the key Dr. testified that question Ezrailson he based answered is “whether it (and been) conclusion, part, on at least in his review can be has tested.” Id. Other (1) theory Although scientific literature. considerations are: whether or technique subjected peer has been review Ezrailson testified about fourteen different (2) publication; potential or regarding the known scientific articles the effects of ex- (3) error; posure rate of organophosphates,3 whether the conclusion the record eon- studied); testimony (2) phates 3. Dr. "Delayed Neurotoxicity Ezrailson's referenced the fol- (1) lowing "Sequelae Organo- Consequences Organophosphates articles: of Acute Other Ester- Tabershaw, ase,” phosphate Baron, Poisoning” by Dr. I.R. Ronald into not admitted evi- dence, exposure orga- noting which concluded that organophosphates to certain that certain nophosphates delayed symptoms delayed can result have been shown to cause a neurotoxic (did effect, organophos- not list one neuropathy always pro- diazinon as of the but that this relating actually ganophosphate toxic only were two articles that tains delayed toxicity reac- form of damage A admitted into evidence.4 review only damage,” permanent two articles nerve but indicates tion and Ellis, exposure, anyone, the effects of diazinon other than addressed he had not seen ingestion poi- neurotoxicity these concerned fatal delayed from diazinon who had soning. the articles concludes that expo- None exposure. Dr. testified that Johnson delayed neurotoxicity. Tes- diazinon causes delayed central to diazinon can cause sure timony about the conclusions of some symptoms and that system nervous symptoms of articles indicated that appear symptoms length of time before such neurotoxicity organophos- certain caused couple from vary with the individual can usually to three occur within one phates testi- Dr. Johnson weeks to a few months. exposure. weeks after that, opinion, reason- in his based fied current probability, appellee’s able medical appellee Another witness by August 1982 caused problems were Johnson, Osteopa- of Dr. R. a Doctor Alfred Dr. based exposure diazinon. Johnson Health thy, Environmental who works appellee diagnosis on examination of Dallas, provides of Inc. This center Center appellee’s medical records and on a review of public emphasizing the to the health care depressed and showing exposure to diazinon environmental health effect and treatment of testi- of cholinesterase. Dr. Johnson has levels exposure. Dr. testified that he Johnson with the literature suffering fied he was familiar patients treated and other poisoning, he regarding organophosphate but exposure diazinon similar from or other dealing only diagnosis not studies with Dr. was “or- could recall chemicals. Johnson’s (10) neurotoxicity; days layed "Evidence of Necrosis by period approximately 7-14 ceeded Wecker, Muscles,” (article diazinon); (3) by not "Correla- in Human Intercostal did mention evidence, Mrak, Dettbam, Recovery Est- Between Rate of Neurotoxic not admitted to tions and Sensitivity Organic study erases and of the and Phos- received of man who which concerned phate Delayed Neurotoxicity,” by Car- Induced but and diazinon did a fatal dose of malathion (11) rington, does not neurotoxicity; not admitted into evidence but delayed not link diazinon to diazinon; (4) "Long Man,” mention Term Effects Poisoning by even Hen- “Fatal Diazinon Organophosphate evidence, dricks, Sarin on EEG Mon- which con- not admitted into Burchfiel, Humans,” by Duffey keys and not by person in- who committed suicide cerned evidence, many, stating admitted into but gesting not link diazinon with diazinon but did organophosphates all have been found not (12) delayed neurotoxicity; Actions of “Central (5) delayed neurotoxicity; by articles cause two Karczmar, Agents,” by Organophosphate not ad- entitled, Acetylcholinesterase "Brain Finklestein evidence, studied the mental into which mitted Poisoning,” Acute Parathion and "CNS In- After organophosphates, exposure to effects of certain Poisoning: Organophosphate volvement in Acute diazinon; (13) including "Organophosphate not Correlates, Toxicity, Specific Clinical Pattern by Lotty, Polyneuropathy,” not admitted into evi- Treatment,” of which con- and Antidotal both dence, organo- symptoms of that concluded parathion into and neither were admitted cerned usually delayed neurotoxicity phosphate induced not diazi- evidence but does consider discuss exposure begin one to three weeks after acute non; (6) "Anxiety Exposure to with Associated delayed cause neuro- lists six chemicals that Levin, by Organophosphate Compounds,” not toxicity does not list diazinon. but evidence, into which concerned effects admitted exposure who received chronic on farm workers evidence include: two studies admitted into relationship organophosphates no and found (1) Neurological Sequelae Acute Or- "Chronic (7) depression; "Behav- between Poisoning," by Savage, ganophosphate Pesticide Organophosphate Effects of Pesticides ioral Mounce, Burear, Keefe, Heaton, of- Lewis and Midski, by Levin and not admitted into Men" by appellee which evaluated fered into evidence evidence; (8) Impairment “Spatial Memory organophosp- neurological effects latent Receptor Following Loss Central Muscarinic patients, of which poisoning none hate Prolonged Organophosphate” Treatment diazinon; (2) exposed “Pesti- had been evidence, McDonald, not admitted into changes in a controlled cides & brain-function following daily exposure to effects studied the Rea, Butler, Laseter, De- diazinon, environment” Leon, insecticides, including over two by appellant, which into evidence offered (9) fourteen-day period; “Delayed Ef- Neurotoxic environmentally controlled con- studied whether Compounds," Organophosphorous fects Some evidence, symptoms patients improve who Johnson, delayed ditions not admitted into pesticides, exposed than diazi- other days have been neurotoxicity 7-14 after ex- manifests itself organophosphates de- posure induce non. but all long-term agreed diazmon and the effects of diazinon Austin suffers from exposure on many impairments humans. of the same and exhibits test similar results to those discussed in the Appellee also called Dr. Francis J. Waiek- resulting organophosphate literature from man as an witness. Dr. Waiekman’s poisoning. Dr. Austin testified that there specialty pediatrics, area but he has showing orga- are authoritative studies areas, postgraduate many taken courses in nophosphate poisoning can cause including allergy, toxicology, and clinical im- testimony regarding neurotoxic effects. The munology. He is pedia- board certified in these studies indicated no conclusion that trics, allergy, immunology, clinical utilization delayed neurotoxicity. diazinon causes assurance, quality review and and environ- Finally, mental medicine. Waickman majority Dr. evaluates relies testi- people Carter, and treats mony who have chemical sensitiv- of Dr. James described as “a ities exposed pesti- and who have been family doctor” from Ellis’ hometown. Dr. Carter, however, appellee, In his examination of Dr. cides. never treated Ellis until symptoms years Waickman exposure. found central ner- almost two after his diazinon (Dr. system Specifically, vous involvement. Dr. Tim While Lee Carter Car- James uncle) responses purportedly Waickman found slow verbal ter’s saw Ellis five or six reasoning exposure, below normal and recall. Based months after his there no docu- examination, on his Dr. any Waickman testified mentation of that visit in rec- appellee’s problems delayed that are neuro- ords. The of first indication a visit even exposure. toxic effects from diazinon Dr. Dr. Tim Lee Carter is a letter Tim Lee familiar Waickman testified that he appellee’s August with wrote Carter counsel the scientific regarding literature diazinon any of 1983. That letter does not describe of and organophosphates symptoms and he has no doubts Dr. James Carter later long-term had; instead, that these chemicals can cause ef- claimed merely Ellis it asks Waickman, on beings. fects human Dr. apprised how- keep counsel to him ever, any offered case progress litigation. no histories or studies There is then kind, any personal experiences nor of three record visits 1984. Dr. Tim Lee research, patients linking prescribed February, diazmon with Carter an antibiotic in fever, delayed neurotoxicity. complaint associated with another pre- May, antibiotic a cold and later Finally, appellee testimony offered Tagament, treating peptic scribed used in Austin, psychologist Dr. Richard a clinical ulcers, in October. Dr. James Carter saw treating experience people who has had who briefly May Ellis for the flu in did 1984 and poisoned by have been various chemicals. again not see Ellis until 1986. Other than personally Dr. Austin examined and evaluat- bronchitis, ingrown an visits for toenail and appellee, gave ed him battery psycholog- Dr. Carter’s medical records are unremarka- tests, ical reviewed the medical records of ble. doctors who had treated appellee, elicited appellee’s family historical information from expert Unlike the in Christophersen, friends, opinions and reviewed scientific literature their on witnesses here based facts, regarding organophosphate poisoning. underlying Dr. accurate such as estimation appellee’s exposure Austin concluded that suffered ner- of the duration to diaz- Thus, system damage resulting vous in emotional inon. should turn to there whether problems poisoning supporting caused ex chemical was sufficient evidence testimony that, study, perts’ Dr. Austin was familiar with a 1982. reasonable medical evidence, injuries performed probability, admitted into that was diazinon caused the al Keefe, Savage, leged by appellee. on EPA Drs. Christopher behalf of the Brock and others, Neurological require expert’s entitled “Chronic sen that conclusions re Sequelae Organophosphate garding of Acute Pesti- upon causation rest well-founded Poisoning.” study I, testing cide This methodology. involved scientific See Brock variety 315; chronically exposed of individuals Christophersen, to a F.2d at 939 F.2d at pesticides, including requires expert’s diazinon. Dr. 1115. that an con- Daubert headaches, diarrhea, weakness, tation, slight rest “sci regarding causation elusions — experience at -, on his vomiting, but based 113 and knowledge.” entific literature, of the records and review experto testified Appellee’s all at S.Ct. suf- that has concluded past on Comstock they conclusions based their to the diazi- delayed effects related orga- fered no treating exposed to experience patients exposure. published non scientific nophosphates and/or expo showing between studies a connection is an “un- that diazinon Comstock testified delayed organophosphates neuro- sure it pesticide, means restricted use” however, admitted, toxicity. experts These or has not been shown not cause does published document that none of the studies long-term severe, effects. impairing cause delayed neurotoxici ed a connection between experience personal noted that Comstock study exposure Only one ty and diazinon. diazinon has not treating persons exposed to by appellee’s experts addressed referenced delayed neuro- diazinon causes indicated that a fatal study this concerned diazinon and Furthermore, testified Comstock toxicity. pesticide and not whether ingestion of the widely by the used has been that diazinon exposure delayed fatal can cause less than that, it years if caused many public neurotoxicity. Testimony also indicated neurotoxicity, would have been delayed compounds within the effects Finally, testified identified. Comstock widely. vary a similar chemical class can supports the conclusion none of the literature Appellant presented testimony of three neurotoxicity, delayed that diazinon causes doctors, Campbell, Eric Dr. Corn- Velma concluding diazi- that there is literature stock, Camp- Perez. Dr. and Dr. Francisco neurotoxicity.5 non does not cause emergency appellant in the room bell treated upon a well- if rests Even Hospital. the New Orleans General methodology, will nevertheless founded Campbell pesticides can testified that some finding a of causation support insufficient to delayed neurological symptoms, but cause fail to show a statisti- if the studies or tests knowledge, diazinon not one of her is expo- relationship cally significant between these. injury kind of and the sure to substance special- psychologist a clinical Perez is 315; I, F.2d Brock alleged. Brock at See izing neuropsychology and behavioral II, Although the studies 884 F.2d at 167. appellant, did not examine medicine. Perez a experts support upon by appellee’s relied psychological and but reviewed medical pesticides falling with- certain conclusion that regard- records and reviewed the literature can classification organophosphate a ing Perez testified that organophosphates. neurotoxicity, do delayed studies cause these worsening patient’s psychological condi- of a sig- relationship, statiscally not establish typical symptom not caused tion is a otherwise, and between diazinon nificant or concluded, exposure to diazinon. Perez delayed neurotoxicity. a well-found- Absent and litera- on his of the records based review methodology showing some con- ed scientific ture, symptoms are most appellant’s diazinon and the exposure to nection between exposure. likely to the diazinon unrelated appellee, injuries alleged by kind con- cau- regarding Comstock, toxicologist, appellee’s experts clusions Dr. Erie medical speculative and insufficient treating per- sation were experience he testified that had infer- substances, jury make a reasonable enable the exposed to toxic 80-100 sons I, 874 to causation. See Brock F.2d re- ence as involved diazinon. Comstock also II, 315; at 167. None of 884 F.2d and the at Brock appellant’s medical records viewed seen or treated appellees experts had ever organophosphates, but did literature about neurotoxicity” “delayed single agreed person with appellant. not examine Comstock Despite over thir- poisoning. mild due to diazinon initially exhibited acute appellant use, including use eye ty years of wide including irri- diazinon’s exposure, from the effects insecticides, non, did not as well as certain other specifically that the article en- noted Comstock ‘‘Poisoning Organophosphate neuropathy. Insec- produce titled Due unknown) ticides,” (author that diazi- concluded pesticide, appel- point, as a common appellant household cussed in the I first believe is experts point single lee’s not could case entitled to a remittitur. history, study study— animal or in vitro Appellee testify did trial. His moth- any epidemiological study much less on hu- er testified that “at times he feels better but delayed mans —to link diazinon as cause he has a lot of headaches and so much chest neurotoxicity. majority The has not under- pain but has has times he felt better for a taken the review commanded by Daubert of period.” short Other than headaches and “reasoning methodology or underlying pain, appellee complains chest of stomach testimony” to assess its validity. scientific aches, insomnia, memory muscle aches and Because there is no “scientific knowledge,” as loss. This million is shocking- dollar award Daubert, commanded concluding that ly Further, appellant argues excessive. and diazinon causes neurotoxicity, appel- agree, I physical pain the awards for and damages

lee’s should be limited to those re- suffering physical (point impairment and for sulting exposure. from short-term Conse- 15) of error are cumulative. These awards quently, appellant’s point first of error should compensate appellee injury. for an identical be sustained. only “physical impairment” The majority appellant’s impairment

The com- physical dismiss can assert is the due plaints damages pain on the amounts pains awarded and and nausea. —aches past past vein, only for future expenses, medical “suffering” appellee same can pain physical and future anguish, very and mental is symptoms. assert due to these same past physical impairment future This ease of an suffering the bare conclusion that all the evidence physical damage has actual disfigurement, for been considered and we “find it sufficient to is no there evidence of either in the record. support jury’s Thus, findings.” injuries I disagree. pain case— suffering physical impairment in-—are jury $38,000 The past awarded for distinguishable, and to award expenses $850,000 for future medical ex permits recovery. both a double I believe penses. point appellant error appellant is entitled to a remittitur. sought a new trial or a remittitur based $250,000 insufficient past physi- evidence. I believe awarded impairment $1,000,000 to a remittitur entitled future medical cal for future First, expenses physical impairment. point for two reasons. there is of error 15 evidence, appellant sought insufficient discussed the first trial new remittitur point, appellant’s injuries resulted from because of insufficient evidence. However, to diazinon. there is the to the addition reasons discussed $850,000 further reason that the award of is error, point first are there additional rea- Johnson, osteopath, excessive. Dr. an testi why appellant’s point sons is Ap- well-taken. appellant’s fied expenses future medical pellee offered no he evidence that has suf- $600,000,6 probably

would upon be based physical impair- fered or will suffer actual $10,000 year injec program of vitamin C only ment. The medical tests ever conduct- tions, visits, regular living, doctor clean and appellee, neurological ed on including tests sauna-type therapy. shocking This award tests, peripheral such as EEG and nerve ly excessive. have been normal. The evidence offered— $228,000 past physi- appellee’s descriptions symp- awarded for limited his $4,000,000 toms, pain anguish opinions cal and mental responses that his verbal “slow,” physical pain anguish. for future and mental are and that he “looks older than his 14, sought In point chronological age,” support of error a new insufficient to —is physical impairment. trial or a insufficient remittitur based award for To recov- past impairment evidence. In addition to the reasons dis- er for and future Austin, appel- psychologist, estimated $250,000. psychological lee’s future to be treatment costs injured party the bur- must sustain [the] physi- proving

den of that the effect his any beyond imped- impairment extends

cal earning capacity beyond to his

iment pain suffering to extent that it

produces separate distinct loss that which he should substantial

compensated. Whisenhunt,

Allen v. 603 S.W.2d (Tex.Civ.App. [14th Dist] — Houston added). dism’d) (emphasis In this

writ proved

Ellis that the effect has not any pain

impairment beyond extends

suffering earning capacity. See and loss Chicken, v. Church’s Fried

also Valdez (no (W.D.Tex.1988) recov

F.Supp.

ery physical manifestations —avoidance

stimuli, difficulty sleeping, etc.—related to anguish). appellant, I

the mental believe least, very is entitled a remittitur. discussed, respectful-

For all the reasons I

ly dissent. J.,

MURPHY, opinion. concurs ARCHITECTS,

WOMACK-HUMPHREYS

INC., Appellant, BARRASSO, Appellee.

Vincenzo

No. 05-93-00469-CV. Texas, Appeals of

Court of

Dallas.

Aug.

Case Details

Case Name: Maritime Overseas Corp. v. Ellis

Court Name: Court of Appeals of Texas

Date Published: Sep 1, 1994

Citation: 886 S.W.2d 780

Docket Number: C14-91-00795-CV

Court Abbreviation: Tex. App.