Diamond Offshore Company v. Lamar Horton

Opinion issued March 2, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00438-CV

DIAMOND OFFSHORE MANAGEMENT COMPANY, Appellant

V.

LAMAR HORTON, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2002-22966

O P I N I O N

In this personal injury suit for negligence, unseaworthiness, and maintenance

and cure under the Jones Act,

appellant, Diamond Offshore Management Company

(Diamond), appeals from a jury verdict awarding damages to appellee, Lamar Horton.

In two issues on appeal, Diamond asserts that the evidence is factually insufficient

to support the jury’s finding (1) that Horton’s injury was causally connected to and

resulted from Horton’s arm injury and (2) on comparative fault, which assessed 90%

of responsibility to Diamond and only 10% to Horton.

We affirm.

Background

Diamond’s employee, Horton, worked as a deck coordinator

on an offshore

drilling vessel, the Ocean Spur. At the end of October 2001, Horton and Jerry Neal,

a crane operator, were attempting to move pipes in a cargo basket from one level of

the Ocean Spur to a higher level, when one of the pipes, or stabilizers, suddenly

struck Horton on his right arm.

Horton initially complained of an arm injury, but a

few months after the accident, Horton consulted Dr. Bradley Bartholomew, who later

testified that the accident also caused a herniated disc in Horton’s back.

A jury found that both parties’ negligence caused Horton’s injuries.

The jury

attributed 10% of negligence to Horton, with the remaining 90% to Diamond and

awarded $737,664 in actual damages. In accordance with the jury’s apportionment

of negligence, the trial court awarded Horton $663,906.60 and post-judgment interest.

Diamond filed a “Motion For New Trial, Or In The Alternative, Motion for

Remittitur.” The trial court denied Diamond’s motion for new trial, and this appeal

ensued.

Jones Act

In its first issue on appeal, Diamond argues that the evidence is factually

insufficient to support the jury’s finding of negligence because there was no causal

connection between the accident to Horton’s arm and his back injury.

The Jones Act provides a cause of action for maritime workers injured by an

employer’s negligence. Federal law provides that a party asserting an admiralty

action may bring the action in state court. See 28 U.S.C. § 1333 (1) (2000). When a

state court hears an admiralty case, that court occupies essentially the same position

occupied by a federal court sitting in diversity: the state court must apply substantive

federal maritime law but follow state procedure. See Texaco Ref. & Mktg., Inc. v.

Estate of Dau Van Tran , 808 S.W.2d 61, 64 (Tex. 1991); see also General Chem.

Corp. v. De La Lastra , 852 S.W.2d 916, 920 (Tex. 1993).

Under the Federal Employers’ Liability Act (FELA), a related statute, the

causation burden is not the common law proximate cause standard. Rather, the

causation burden is “whether the proofs justify with reason the conclusion that

employer negligence played any part, even the slightest, in producing the injury or

death for which damages are sought.” Rogers v. Missouri Pac. R.R ., 352 U.S. 500,

506 , 77 S. Ct. 443, 448 (1957); Landry v. Oceanic Contractors Inc ., 731 F.2d 299,

302 (5th Cir. 1984). This burden has been termed “featherweight.” See Johnson v.

Offshore Exp., Inc ., 845 F.2d 1347, 1352 (5th Cir. 1988); Smith v. Trans-World

Drilling Co ., 772 F.2d 157, 162 (5th Cir. 1985). The Jones Act expressly

incorporates FELA and the case law developing that statute. See Maritime Overseas

Corp. v. Ellis , 971 S.W.2d 402, 406 (Tex. 1998). Thus, the causation standard under

the Jones Act is the same as that under FELA. Id .; see also American Dredging Co.

v. Miller , 510 U.S. 443, 456 , 114 S. Ct. 981 , 989–90 (1994); see also Brown & Root,

Inc. v. Wade , 510 S.W.2d 408, 410 (Tex. Civ. App.—Houston [14th Dist.] 1974, writ

ref’d n.r.e.).

Jones Act Liability

Texas courts have long recognized that in addition to a less stringent burden

of proof, the standard of appellate review in a Jones Act case is also less stringent

than under the common law. See Texas & Pac. Ry. v. Roberts , 481 S.W.2d 798, 800

(Tex. 1972); Brown & Root , 510 S.W.2d at 410 . As with the law on causation,

FELA’s standard of appellate review applies in Jones Act cases. Maritime Overseas ,

971 S.W.2d at 406 . Thus, the purpose of the Jones Act standard of review is to vest

the jury with complete discretion on factual issues about liability. Id . Once the

appellate court determines that some evidence about which reasonable minds could

differ supports the verdict, the appellate court’s review is complete. See Roberts , 481

S.W.2d at 800 (citing Lavender v. Kurn , 327 U.S. 645 , 66 S. Ct. 740 (1946)).

Essentially, we may not conduct a traditional factual sufficiency review of a jury’s

liability finding under the Texas “weight and preponderance” standard. Maritime

Overseas , 971 S.W.2d at 406 (citations omitted); see also Brown & Root , 510 S.W.2d

at 410 . Rather, courts of appeals must apply the less stringent federal standard of

review. Maritime Overseas , 971 S.W.2d at 406 .

Diamond contends that the evidence is factually insufficient to support a causal

connection between Horton’s arm injury aboard the Ocean Spur and his back injury

because Dr. Bartholomew’s diagnosis was based solely on Horton’s self-diagnosis

complaint. To determine whether the evidence is factually sufficient, we review

Horton’s evidence of causation.

Horton testified that when he first started working for Diamond at the age of

28, he had to pass a physical examination that tested the strength of his back and

arms. Horton stated that he passed with no restrictions. Horton testified that, on the

day of the accident, he put pipes in the cargo basket and signaled someone

to raise

the basket. Horton described the accident as follows:

[Horton] He got over, and I went to pushing it over to the end of the

basket. And before I get to the end of the basket, [Neal]

floor-boarded it. I didn’t hear him say he would come

down.

[Counsel] What do you mean he floor-boarded it?

[Horton] Well, he let down on the whip line. The whip line is fast,

that’s why they call it a whip line. He let it go and that

pipe, the stabilizer hit me and knocked me back. And then

it hit me and then it pinned me to the basket and it snapped

me in the basket a little bit. The basket was about four or

five feet high, you know. And it came about—right here

on me standing up. And I was pushing it and it knocked

me down and knocked me back. Then it kind of jerked me

in the basket a little bit and had me pinned.

After getting up, Horton testified that he

walked into the living quarters in the break room and lay down on

the bench. And my arm was dangling in the, you know, on the

floor. And I couldn’t feel myself for a minute, you know. My

whole body kind of went numb, because it hit so hard, you know,

I never been in that position. I played football, I got hit before,

and never like that.

The next day, Horton left the rig after Diamond fired him. Horton testified that three

days after leaving the Ocean Spur, he visited an emergency room because

[My] right arm is swollen up a little bit, and it was hurting. It was

throbbing and, I mean, it was swollen and, you know, I had a—I

was having pains up here, this shoulder just hurting, throbbing, I

mean. And it was swollen, I mean. You could see how big my

arm is, this one here was swollen about twice that size.

When asked whether his back hurt at that time, Horton responded, “My back at that

time, I thought it was my kidneys, but I really didn’t pay it no attention, because my

shoulder injury was killing me and that was more—that was my prime objective, you

know, getting this fixed.”

Horton’s medical records from a February 23, 2002 visit to an emergency room

indicate that he had pain in his back. In his medical records dated February 24, 2002,

Horton complained about arm, neck, and back pain. Horton testified that before the

accident he had had no physical problems with his back. Horton answered “no” when

asked if he had had any accidents after the accident aboard the Ocean Spur.

Dr. Bartholomew, a neurosurgeon, testified by deposition, and without

objection, that he first saw Horton on June 6, 2002. During this visit, Dr.

Bartholomew explained that he wanted to determine why Horton came to see him so

he asked him, as he asks his patients, “if your back’s hurting, when did it start, any

previous problems; and then I examine him and review any diagnostic studies.” In

taking Horton’s medical history, Dr. Bartholomew recalled that Horton told him that

he had been hit by a 400-pound stabilizer on the right arm and shoulder area and that

it pinned his right arm. When Dr. Bartholomew asked why Horton had waited so

long to visit an emergency room, Horton responded that he wanted to “tough it out,

as he’d already been told it was a sprain or strain and he thought it would get better.”

Dr. Bartholomew said that Horton also complained of “back pain that started at the

same time.” Dr. Bartholomew testified that “[Horton] did tell me [the back pain] was

related to this same injury.”

Based on Horton’s examination and medical history, Dr. Bartholomew was

worried about a herniated disc or some other neck trauma. After Horton’s second

examination, Dr. Bartholomew recommended that Horton undergo an MRI, which

was conducted on November 5, 2002. Based on the results of the MRI, Dr.

Bartholomew testified that one of the discs (L4/5) in Horton’s back looked different

from the others. He explained that the disc was black,

[W]hich means it’s lost some of its water content, and that can be

from really one or two things. One is we all lose water content as

we get older, so if he was 60 years old, I’d look at this and I’d

expect pretty much all of these to have—look darker, but I mean

he was 28, so there’s no reason, absent trauma, for this disc to be

dark from loss of water content.

Dr. Bartholomew further testified,

Also something that makes me believe it’s more likely trauma

than degenerative changes, all the other discs look completely

normal. They’re all bright white, and also the fact that this disc

is pushing back, like that little mushroom cap I showed you, can

be a source of irritation to the nerve, causing pain going down the

leg.

When asked if he would consider it normal for a person at Horton’s age to have

a herniated disc absent a traumatic injury, Dr. Bartholomew answered, “No.” Dr.

Bartholomew was also asked, “[I]t’s your belief that Lamar needs that [back]

procedure as a result of the injury he sustained at work in November 2001?” Dr.

Bartholomew responded, “Based on his complaints of pain; yes, sir.” When asked if

he thought it was fair to say that based on everything he had seen, Dr. Bartholomew’s

opinion that Horton’s back condition was related to his work injury, Dr. Bartholomew

answered that his back condition was related to his work injury.

On cross-examination, Dr. Bartholomew admitted that someone could get a

ruptured disc in many different ways. When asked whether Horton’s statements were

the only things that tied Horton’s back pain to the injury at the jobsite, Dr.

Bartholomew stated that he had to “rely on his history of him having no previous

back problems, and then saying that this is what I associate the beginning of my back

pain with.” Horton told Dr. Bartholomew that he had no history of trauma to his

back, other than the accident aboard the Ocean Spur. Dr. Bartholomew stated that the

MRI does not show how a patient was injured and that one must rely on what the

patient says. Dr. Bartholomew stated that when Horton came to see him, Horton

stated that his arm and neck were hurting initially and that his back began to hurt

shortly after the accident.

Justin Upton, a roughneck working on the Ocean Spur, testified by deposition

that the pipe that hit Horton was approximately five inches in diameter and three to

four feet in length. Neal testified that the pipe weighed approximately 200 pounds,

but other evidence indicated that it weighed 400 pounds.

We review Horton’s evidence of causation under the Jones Act standard of

review—whether some evidence about which reasonable minds could differ supports

the verdict. See Maritime Overseas , 971 S.W.2d at 406 . The jury heard evidence that

Horton was hit with a pipe that weighed approximately 200 pounds or more. The

blow from the pipe pushed him back and pinned him between the pipe and the basket

holding the pipes. The jury also heard Horton testify that he had passed a physical

examination that tested his back before starting work for Diamond and that he had not

had any subsequent accidents or back injuries since leaving Diamond. The jury heard

Dr. Bartholomew’s expert testimony that the MRI of Horton’s back showed that his

injury appeared to have been caused by some type of trauma and that, in Dr.

Bartholomew’s opinion, Horton’s herniated disc was caused by his accident aboard

the Ocean Spur. After considering this evidence, we conclude that Horton presented

some evidence that supports the verdict. Stated another way, Horton’s evidence,

although circumstantial, satisfies the “featherweight” burden of proof—that

Diamond’s negligence played a part, albeit slight, in producing Horton’s injury.

Although Diamond contends that Dr. Bartholomew’s testimony of causation

was not probative because it was based solely on Horton’s claims that his back began

to hurt shortly after the accident, the testimony shows that Dr. Bartholomew’s opinion

was also based on the results of the MRI. Specifically, Dr. Bartholomew testified that

Horton’s MRI indicated that some type of trauma had occurred. We also note that Dr.

Bartholomew’s testimony that the accident aboard the Ocean Spur caused Horton’s

back injury was not necessary for the jury to find Diamond liable. See Angelina Cas.

Co. v. Spencer , 310 S.W.2d 682, 685 (Tex. Civ. App.—Beaumont 1958, writ ref’d

n.r.e.) (holding that expert testimony needed only insofar as subject matter requires

scientific interpretation); Pilgrim’s Pride Corp. v. Smoak , 134 S.W.3d 880, 894 (Tex.

App.—Texarkana 2004, pet. denied) (“The trier of fact is usually allowed to decide

the issue of causation in cases when general experience and common sense will

enable a layperson to fairly determine the causal relationship between the event and

the condition.”). Indeed, the jury did not need expert testimony to determine that a

blow from a heavy pipe can play “any part, even the slightest, in producing” Horton’s

injury—a herniated disc. See Maritime Overseas , 971 S.W.2d at 406 .

Diamond points out that Dr. Bartholomew’s testimony did not reveal any

typical acts that could cause a ruptured disk and that he had no way of knowing

whether Horton’s injuries were caused by an intervening event subsequent to the

accident on the rig. A similar argument was asserted in Offshore Pipelines, Inc. v.

Schooley , 984 S.W.2d 654 , 663–64 (Tex. App.—Houston [1st Dist.] 1998, no pet.),

to no avail. In Schooley , we stated that the plaintiff “was not required to disprove all

possible sources of the Yersinia bacteria other than the water on the [vessel].” Id . at

664 (citing Hernandez v. Altenberg , 904 S.W.2d 734, 739 (Tex. App.—San Antonio

1995, writ denied)). We conclude that whether Horton’s injury was caused by

another source was an issue for the jury to decide after considering all the evidence.

See Offshore Pipelines , 984 S.W.2d at 663 (stating that “the jury enjoys complete

discretion in deciding factual issues on liability”).

Diamond further contends that the evidence of its experts negates the jury’s

finding of causation. Because we have found that the testimony of Horton and Dr.

Bartholomew sufficiently meets the Jones Act standard of review, the testimony of

Diamond’s experts is immaterial. See Maritime Overseas , 971 S.W.2d at 406 (“Once

the appellate court determines that some evidence about which reasonable minds

could differ supports the verdict, the appellate court’s review is complete.”).

Moreover, “[i]t is within the jury’s province to weigh conflicting testimony, and as

long as there is evidence supporting the verdict, it will be upheld.” Gautreaux v. Ins.

Co. of N. Am. , 811 F.2d 908, 913 (5th Cir. 1987). We conclude that Horton presented

evidence in support of the verdict.

We overrule Diamond’s first issue on appeal.

Percentage of Negligence

In its second issue on appeal, Diamond argues that the evidence was factually

insufficient to support the jury’s apportionment of negligence. In question 1A, the

jury attributed 90% of the negligence to Diamond and 10% of the negligence to

Horton. The trial court entered judgment in accordance with the jury’s answers.

Diamond admits that the record contains conflicting evidence about how the

accident occurred. Nonetheless, Diamond argues that even if Horton’s version of

events was believed by the jury, “no reasonable juror would allocate the bulk of the

negligence to Diamond, and only 10% to Horton.”

In a Jones Act case, the jury has complete discretion in resolving factual issues

on liability. Offshore Pipelines , 984 S.W.2d at 663 . The jury was entitled to believe

that Horton was moving pipes in the cargo basket when Neal floor-boarded the basket

without warning, thus injuring Horton. Neal admitted that when lifts are being

performed, it is his responsibility to make sure they are done safely. Although Horton

was experienced, and the evidence indicated that Diamond constantly stresses that

employees should avoid getting in positions where they can get trapped between two

objects, we cannot conclude that the jury’s apportionment was unreasonable.

Moreover, Diamond has not cited a single instance, and we find none, in which an

appellate court reversed the jury’s apportionment of negligence in a Jones Act case

and rendered a new percentage of negligence attributable to the parties, which is a

conclusion based on the jury’s weighing of the evidence.

In light of the evidence

presented, we conclude that factually sufficient evidence supports the jury’s

apportionment of negligence.

We overrule Diamond’s second issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.