Coastal Tankship, U.S.A., Inc. v. Florence Anderson, Administratrix of the Estate of Morris Anderson

Dissenting opinion issued May 31, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-99-01345 -CV

____________

COASTAL TANKSHIPS, U.S.A., INC., Appellant

V.

FLORENCE ANDERSON, ADMINISTRATRIX OF THE ESTATE OF

MORRIS ANDERSON, DECEASED, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 95CV0220

DISSENTING OPINION

I join parts I through IV(D) of Justice Jennings's opinion for the en banc Court.

However, I disagree with part IV(E) of that opinion and thus with the conclusion and

judgment. Accordingly , I respectfully dissent.

Sufficiency of Evidence Other Than Dr. Miller's Causation Opinion

I agree with the majority that Anderson had to prove causation by expert

testimony . Unlike the majority, however, I would hold that Dr. Brown's written

diagnosis and testimony by Coastal's Dr. Wilson , along with the naphtha material

safety data sheet ("MSDS"), supplied the general causation link that Dr. Miller's

opinion lacked.

1. Additional Comments on the Standard of Review

Under the Jones Act, we inquire whether the evidence reasonably justifies the

conclusion that Coastal's negligence played any part, "even the slightest," in

producing the injury at issue. E.g. , Maritime Overseas Corp. v. Ellis , 971 S.W.2d

402, 406 (Tex. 1998). It would be hard to imagine a standard of review more

favorable to a plaintiff. Certainly, this standard of review is more favorable than that

under the traditional evidentiary standards: under the Jones Act, the jury enjoys

complete discretion in deciding factual liability issues, and we uphold the verdict if

it is supported by some, "even the slightest" evidence. (1) Id. at 406 ; Offshore Pipelines

v. Schooley , 984 S.W.2d 654, 663 (Tex. App.--Houston [1st Dist.] 1998, no pet.).

2. Dr. Brown's Opinion

Coastal did not sufficiently object under Robinson and Havner to Dr. Brown's

medical records; (2) thus, Coastal may not now challenge the use of Dr. Brown's

causation opinions within those records to support general or specific causation. See

Maritime Overseas Corp, 971 S.W.2d at 409 ("To preserve a complaint that scientific

evidence is unreliable and thus, no evidence, a party must object to the evidence

before trial or when the evidence is offered. ").

I set out Dr. Brown's initial file note of September 27, 1994 in full:

[Anderson] presented a long history, very carefully given,

that he was in a foreign port when they took on a load of

naphtha. The fumes were extremely heavy and gagged

him, and caused him kind of a respiratory type breathing

problem that resulted in some chest pain. He had a hacking

cough, which is documented in the communications. He

had a diagnosis of tracheobronchitis, which is documented

in the communications sent to me.

Here in my office I got a history that he was a long time

employee of Reynolds Metals, never any serious illnesses.

He had a hernia operation in 1971. There is no history of

any on the job illnesses that I know of. Socially, he doesn't

drink coffee or tea, and he does not smoke or use tobacco

products. Only upon occasion does he drink any alcohol

whatsoever. As I listened carefully, the man related that he

had been confined to his room and "quarantined" for six

days. It got more difficult for him to breathe, and he had

progressively more chest pain. He also went on to relate

that they took on a load and that the fumes were very

difficult to tolerate and caused a lot of bronchospasm,

coughing and chest discomfort.

He got to my practice in sort of a circuitous route, in that

Dr. Vela here in Corpus Christi was unable to see him, and

they wanted somebody who had dealt with [text whited

out] in the past. Having dealt with high chain aeromatic

hydrocarbons since the early 70's, when I was the medical

director at Coastal States Gas Producing here in Corpus

Christi, I became familiar with the types of pneumonia that

this particular product could cause.

Head, eyes, ears, nose and throat revealed a bright red

pharynx and bright red ears. This man was using the

accessory strap muscles of respiration and appeared quite

ill. Otherwise the head, eyes, ears, nose and throat were

normal. Ausculation of the lungs revealed that he was

barely moving any air at all, and it sounded as if he might

have some sort of emphysema or chronic obstructive

pulmonary disease. I went on to ask about asbestos, and

the only history I got of asbestos was that he had worked at

Reynolds Martin for 30 years and had had chest films every

year, and that nothing had ever come up abnormal.

Today we did an EKG, which revealed a sinus rhythm with

a right ventricular conduction delay. He had a pulmonary

function testing, which revealed extremely restricted FEV-1 of only about 50% of predicted [illegible] and extremely

restricted air flow. A chest x-ray revealed a fleecy

peribronchiolar infiltrate around the hilum of the lungs and

almost a consolidated pneumonia in the lung bases

bilaterally, but more pronounced on the right than the left.

I went back and re-examined the patient and found out that

he was actually a little bit more hypoxic than I felt. At this

point I felt like I needed to back up [sic] the expertise of

the hospital and the pulmonologist.

My impression was that he had an aspiration/chemical

type pneumonia secondary to the breathing of a high chain

aeromatic hydrocarbon such as naphtha. The history

o[whited out] contamination I figured probably would have

resulted in a dead patient. Long standing exposure to

asbestos, if he had it, and I am not sure he did, would result

in markedly different looking chest film, which would be

read as asbestosis. At any rate, I felt that the man's

wellness was in jeopardy and that I needed the support of

the hospital and consultation of Dr. David Miller, local

pulmonologist.

I think the prognosis is guarded at this point.

(Emphasis added.) The discharge summary that Dr. Brown co-signed also states in

part as follows:

Patient was admitted to the hospital due to shortness of

breath and due to his history of exposure to naphtha from

working as a merchant marine. Patient was also exposed

to asbestos from working at Reynolds Aluminum Foil Plant

locally for 30 years. He was exposed to Naphtha while

working as a merchant marine for the past 4 years. Upon

admission, a chest x-ray was done which showed diffuse

infiltrates in both lungs, most severe in the lower right lobe

consistent with pneumonitis (3) secondary to chemical

exposure. CT scan done with contrast to evaluate

interstitial lung disease showed fibrosis in both lung bases

with a predominantly peripheral distribution. Possibilities

include usual interstitial pneumonitis secondary to

rheumatologic disease, asbestosis is less likely due to the

absent [sic] of pleural plaques a condition that can result in

this case. Other conditions that can result in basilar

fibrosis are scleroderma and chronic aspiration. Repeat

chest exam done on the 1st of October 1994, showed a

worsening of the right base, preexisting infiltrates and they

are still present. Repeat chest exam on the 3rd of October

showed unimproved bibasilar pneumonia and no new

complications. Repeat on the 5th showed no new

complications. Lung biopsy which was performed on the

30th of September 1994, path report shows diagnosis as

previously stated. Biopsy was done on the right lower and

middle lung biopsy and showed bronchiolitis obliterans,

organizing pneumonia [BOOP].

(Emphasis added.) In various other documents, Dr. Brown reiterates in shorthand his

diagnosis of BOOP secondary to toxic exposure. (4)

Contrary to Coastal's argument, Dr. Brown's diagnostic records are not like

those in Burroughs Wellcome Co. v. Crye . 907 S.W.2d 497 (Tex. 1995). In Crye ,

neither a Robinson/Havner nor a Jones Act case, the Court held that medical records

were no evidence that Polysporin spray caused frostbite. Id. at 500 . But there, the

uncontroverted evidence showed the plaintiff had a physical reaction to the spray that

her own expert testified would not indicate frostbite, and the medical records were

mere recitations of medical history or were based on lay or flawed expert opinions,

including an expert opinion based on assumed facts that varied materially from the

actual, undisputed facts . Id. at 499-500 . Here, in contrast, Dr. Brown was the first

to diagnose causation; he based that initial diagnosis on what approximates a

differential diagnosis and on his lengthy personal experience (including as medical

director of Coastal States Gas Producing Company) with pneumoniae due to high-chain aromatic hydrocarbons; and he reiterated (albeit summarily) this causation

diagnosis after Anderson underwent multiple medical tests. Expert causation

testimony must rest in reasonable medical probability, but reasonable probability is

determined from the opinion's context and substance, not by semantics or a particular

term's use. Id. at 500 . Dr. Brown's diagnosis meets this test. This is so even if

Anderson did not present Dr. Brown as his trial expert because we must consider the

entire record in a sufficiency review. Dr. Brown's written diagnosis is some evidence

of specific causation, because it is a differential diagnosis, and also of general

causation, because Coastal did not properly object to this aspect of Dr. Brown's

diagnosis. See Ellis , 971 S.W.2d at 409 .

3. Other Evidence of General Causation

Besides Dr. Brown's diagnosis, the pathology report comments that multiple

conditions can, in general, be "associated with" BOOP, including toxic industrial

fumes, drugs, infections, chronic aspiration, collagen vascular disease, bronchial

obstruction, and "idiopathic ." It is thus significant that the naphtha MSDS, which

federal regulations required Coastal to post on this vessel , states "pneumonitis" is a

potential effect of overexposure to naphtha ; (5) that Coastal's counsel agreed at oral

argument that "pneumonitis" is the same thing as "pneumonia"; (6) and that Dr. Wilson,

Coastal's own expert, testified that chemical pneumonia , which Drs. Brown and

Miller concluded Anderson first had, can cause BOOP. (7) These were Coastal's

documents, Coastal's admission, and Coastal's expert . I consider these to be highly

significant pieces of evidence.

For example, federal regulations require an MSDS for "hazardous chemicals,"

which are defined in pertinent part as any chemical that is a "health hazard." 29

C.F.R. § 1910.1200 (c) (2001). "Health hazard" is defined as "a chemical for which

there is statistically significant evidence based on at least one study conducted in

accordance with established scientific principles that acute or chronic health effects

may occur in exposed employees." Id. The chemical's manufacturer or importer, or

an employer that opts to do its own testing, (8) must "identify and consider the available

scientific evidence concerning such [health] hazards." The regulation further declares

that "evidence which is statistically significant and which is based on at least one

positive study conducted in accordance with established scientific principles is

considered to be sufficient to establish a hazardous effect if the result of the study

meets the definitions of health hazards in this section," noting also that the

regulation's Appendix B must be consulted for criteria to be used in the chemical's

evaluation, the data to be reported, and the chemical's listing as hazardous. Id. at (c),

(d)(2). Appendix B provides, among other things, that the results of any studies that

"are designed and conducted according to established scientific principles, and which

report statistically significant conclusions regarding the health effects of a chemical,

shall be a sufficient basis for a hazard determination and reported on any [MSDS]."

Id. , Appendix B, 4.

We do not know who compiled this naphtha MSDS or exactly what testing

procedures that entity used. It could have been The Coastal Corporation, whose

name, address, and phone number appeared at the top of the MSDS, or one of the 17

apparently related corporations also listed there. See 29 C.F.R. § 1910.1200 (c),

(d)(1)-(2), (g)(1) (2001) (allowing the chemical's manufacturer or importer, or an

employer that opts to do its own testing, to conduct the chemical's testing and

develop the MSDS ; also defining "employer" as "a person engaged in a business

where chemicals are either used, distributed, or are produced for use or distribution,

including a contractor or subcontractor"). Taking the evidence in the light most

favorable to the judgment, we should assume the MSDS was done by some Coastal

corporate body. But even without this assumption, whichever entity compiled this

MSDS had to meet the above regulations in determining the chemical's health

hazards. This fact makes the MSDS a sufficiently reliable link in the general

causation chain, especially given (1) that that link was Coastal's own business

document and (2) our "even the slightest evidence" standard of review.

4. Conclusion

The trial judge would not have abused his discretion if he impliedly determined

that (1) specific causation was reliably proved by Dr. Miller's opinion and (2) general

causation was reliably proved by Dr. Brown's written diagnosis and Coastal's own

expert and document. (9) Applying the Jones Act "featherweight" causation standard,

I would accordingly hold there is legally sufficient evidence that Anderson's naphtha

exposure "played any part, even the slightest" in causing his BOOP. See Ellis , 971

S.W.2d at 406 . I would thus overrule Coastal's issues one and two and reach its

remaining issues.

For these reasons, I respectfully dissent from the en banc Court's judgment.

Murry B. Cohen

Justice

Panel consists of Justices Cohen, Brister, (10) and Smith. (11)

Justice Brister dissented from the panel's decision to affirm the trial court's judgment.

En banc consideration was requested. Tex. R. App. P. 41.2(c).

A majority of the Court voted for en banc consideration of the panel's decision. See

id .

The en banc Court consists of Chief Justice Schneider and Justices Cohen, Mirabal,

Hedges, Taft, Nuchia, Jennings, Radack, Keyes, Brister , Wilson, (12) and Smith.

Justice Jennings, writing for the majority of the en banc Court, joined by Chief Justice

Schneider and Justices Hedges, Taft, Nuchia, and Radack. See Tex. R. App. P. 47.5.

Justice Brister concurring in the judgment of the en banc Court.

Justice Cohen, joined by Justices Mirabal and Smith, joining only sections I through

IV(D) of the en banc Court's majority opinion and dissenting from the judgment of

the en banc Court. See id .

Justices Keyes and Wilson not participating. See id.

Publish. Tex. R. App. P. 47 .

1. Traditional no-evidence review requires something more than a mere

evidentiary scintilla, which means "a barely perceptible manifestation," "the

slightest particle or trace," and "a spark; a remaining particle; a trifle; the

least particle."

Waldrep v. Texas Employers' Ins. Ass'n , 21 S.W.3d 692, 697

(Tex. App.--Austin 2000, pet. denied) (quoting W. Wendell Hall, Standards

of Review in Texas , 29 St. Mary's L.J. 351 , 480 n.858 (1998)). That is, the

evidence need rise only "to a level that would enable reasonable and

fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc.

v. Havner , 953 S.W.2d 706, 711 (Tex.1997) (citing Burroughs Wellcome Co.

v. Crye , 907 S.W.2d 497, 499 (Tex. 1995) ). Our standard of review here is

even lighter than this.

2.

Dr. Brown's medical records were part of plaintiff's exhibit 28. Coastal's only

objection to that exhibit was, "There is an objection to the record to the extent

they [sic] include opinions regarding medical causation for the reasons that we

have previously discussed." Coastal did not then mention Dr. Brown or

explain why his causation opinions, as opposed to Dr. Miller's, were

unreliable. Plaintiff's exhibit 28, which fills an entire reporter's record

volume, is comprised of 288 pages of medical records from one medical center

and three doctors, including Drs. Miller and Brown. A Robinson/Havner

objection must be specific. See, e.g. , Scherl v. State , 7 S.W.3d 650, 651-52

(Tex. App.--Texarkana 1999, pet. ref'd) (under equivalent criminal rule);

Chisum v. State , 988 S.W.2d 244, 250-51 (Tex. App.--Texarkana 1998, pet.

ref'd) (same); Hon. Harvey Brown, Procedural Issues Under Daubert , 36

Hous. L. Rev. 1133 , 139-41 (Winter 1999) . Coastal's "previously discussed"

challenges concerned mainly Dr. Miller's causation opinions, not Dr. Brown's,

making the objection ambiguous. Compare Tex. R. Evid. 103(a)(1) (requiring

statement of specific objection ground, unless context makes ground

apparent--which context does not here); Tex. R. App. P. 33.1(a)(1)(A) (same).

Additionally, Coastal neither specified to which of these many pages it was

objecting, nor claimed all 288 pages were inadmissible. In fact, no one

disputes that many pages were admissible. Nor did Coastal object to

Anderson's offering the stack of records without first segregating out the

admissible from the inadmissible portions. For these reasons, too, the trial

judge did not abuse his discretion in overruling Coastal's objection to exhibit

28--especially given that Coastal did not carry its initial burden to object

specifically. See, e.g. , Brown & Root v. Haddad , 180 S.W.2d 339, 342 (Tex.

1944); Leaird's, Inc. v. Wrangler, Inc. , 31 S.W.3d 688, 692 (Tex. App.--Waco

2000, pet. denied); Ideal Mut. Ins. Co. v. Sullivan , 678 S.W.2d 98, 101 (Tex.

App.--El Paso 1984, writ dism'd) . Compare Hurtado v. Texas Employers'

Ins. Ass'n , 574 S.W.2d 536, 538-39 (Tex. 1978).

3. "Pneumonitis" means an "inflammation of the lungs." Stedman's Medical

Dictionary (27th ed. 2000) at 1141;

see note 6, below.

4. Dr. Brown's records occasionally indicate BOOP secondary to toxic or

infectious exposure, but this wording seems to have come from the pathology

report, in which the pathologist simply listed the known causes of BOOP. In

any event, we must review the evidence in the light most favorable to

Anderson.

5. The MSDS indicated that naphtha can irritate mucous membranes and the

respiratory tract and can act as an asphyxiant; that overexposure can lead to

headache, nausea, drowsiness, fatigue, pneumonitis, pulmonary edema, and

central nervous system depression; and that naphtha can cause stomach

irritation, unconsciousness, congestion, and hemorrhaging of the lung and

internal organs.

6.

See also Stedman's Medical Dictionary (27th ed. 2000) at 1141

("pneumonia" and "pneumonitis" both characterized as "inflammation of the

lungs," with each term cross-referencing the other).

7. Coastal argues that we may not consider Dr. Brown's initial diagnosis of

pneumonitis secondary to chemical exposure because later pathology tests

revealed Anderson had BOOP, not chemical pneumonia. This argument does

not take the evidence in the light most favorable to Anderson. Viewed in the

appropriate light, Dr. Brown's diagnosis could be interpreted to mean either

that he believed Anderson had an initial bout of chemical pneumonia that

turned into BOOP or that Anderson's BOOP, even if initially mistaken for

chemical pneumonia, appeared nonetheless to be caused by chemical

inhalation. That is, the diagnoses of chemical pneumonia and BOOP are not

necessarily inconsistent or mutually exclusive.

8. Any of these three entities may conduct the chemical's testing and develop the

MSDS.

29 C.F.R. § 1910.1200 (d)(1)-(2), (g)(1) (2001) .

9.

Moore v. Ashland Chemical, Inc. and Cavallo v. Star Enterprises , on which

Coastal and the majority rely, are distinguishable because the appellate courts

there held the trial judge's ruling on "close" issues was within his discretion,

the opposite of what Coastal seeks to do here . See Moore v. Ashland

Chemical, Inc. , 151 F.3d 269, 278-79 (5th Cir. 1998) ; id. at 279 (Benavides,

J., concurring); Cavallo v. Star Enters. , 892 F. Supp. 756 (E.D. Va. 1995),

aff'd in part on same grounds, rev'd in part on other grounds , 100 F.3d 1150 ,

1159 (4th Cir.); see also Green v. Texas Workers' Comp. Ins. Facility , 993

S.W.2d 839, 844 (Tex. App.--Austin 1999, pet. denied) .

10. The Honorable Scott Brister, who became Chief Justice of the Fourteenth

Court of Appeals on July 16, 2001, continues to participate by assignment for

the disposition of this case, which was submitted on May 7, 2001.

11. The Honorable Jackson B. Smith, retired Justice, Court of Appeals, First

District of Texas at Houston, participating by assignment.

12. The Honorable Davie L. Wilson, who retired from the First Court of Appeals

on March 31, 2002, continues to sit by assignment for the disposition of this

cause, which the Court voted to consider en banc before Justice Wilson's

retirement.