Appendix — Maritime Overseas Corp. v. Ellis
Supreme Court brief1998
Ask Donna
What actually matters in this document.
Text
7 Supreme Court, U.S.
FILED
(v) 98 487 SEP 1 21998
No. OFFICE OF THE CLERK
In The
Supreme Court of the United States
OcTOBER TERM, 1997
e
MARITIME OVERSEAS CORPORATION,
Petitioner,
V.
RICHARD ELLIS,
Respondent.
¢
On Petition for a Writ of Certiorari
to the Supreme Court
of the State of Texas
*
APPENDIX
¢
THOMAS B. GREENE III
Counsel of Record
WARE, SNOW, FOGEL,
JACKSON & GREENE, P.C.
1111 Bagby, 49th Floor
Houston, Texas 77002
(713) 659-6400
Joe R. GREENHILL LINDA BROOCKS
BAKER & Botts, L.L.P. SALLY MANN ROMANO
98 San Jacinto Blvd. OGDEN, GIBSON, WHITE
Austin, Texas 78701 & Broocks, L.L.P.
(512) 322-2517 2100 Pennzoil South Tower
Of Counsel 711 Louisiana
Houston, Texas 77002
(713) 844-3000
Counsel for Petitioner
TABLE OF CONTENTS—APPENDIX
Appendix A:
Opinion of the Texas Supreme Court
(Apr. 16, 1998) .......--0s cece reer etree:
Appendix B:
Judgment of the Texas Supreme Court
(Apr. 16, 1998) ........ 0c eee reece eee reece:
Appendix C:
Order of the Texas Supreme Court overruling
Petitioner's Motion for Rehearing
(Sully 3, 1998)... 02. e cee c cece eeeeecee esses
Appendix D:
Order of the Texas Supreme Court granting
Petitioner's Application for Writ of Error
CS PON rere treet
Appendix E:
Order of the Texas Supreme Court denying
Petitioner’s Application for Writ of Error and
Opinion of Texas Supreme Court Justice Nathan
Hecht dissenting from Denial of Petitioner's
Application for Writ of Error (Nov. 15, 1996)
Appendix F:
En Banc Opinion of the Fourteenth Court of
Appeals of Texas, Houston Division
and dissent (July 28, 1994) .........-----++505>
Appendix G:
Panel Opinion of the Fourteenth Court of
Appeals of Texas, Houston Division
(Dec. 31, 1992) .... 2c ccc cc creer ener cencces
(i)
Page
|
Page
” i a he
Appendix H:
Judgment of the 165th Judicial District Court of
Harris County, Texas, Cause No. 83-42067
(Apr. 29, 1991) ..... 5. . cece e ee ee ete eee e eee neee H-1
Appendix I:
Order of Judge Ken Harrison of the 165th Judicial
District Court of Harris County, Texas, denying
Petitioner's Motion for New Trial or, in the
Alternative, for Remittitur and Motion for
Judgment Notwithstanding the Verdict
(July 17, 19D) sss i ee ian ede wees I-1
Appendix J:
Statutes and Rules Involved ...........-.--55+++ 0085 J-1
Appendix K:
Excerpts from Petitioner's Motion
for New Trial and briefing below .........-----. +++: K-]
(ii)
A-l
APPENDIX A
SUPREME COURT OF TEXAS
No. 94-1057
MARITIME OVERSEAS CORPORATION,
Petitioner,
V.
RICHARD ELLIS,
Respondent.
On Application for Writ of Error
to the Court of Appeals
for the Fourteenth District of Texas
Argued on November 5, 1997
OPINION
Justice BAKER delivered the opinion of the Court, in which
Justice ENocu, Justice Spector, Justice ABBOTT and JUSTICE
HANKINSON join.
Justice GONZALEZ filed a concurring opinion, joined by Justice
Assort with respect to Part Ill only.
Justice Hecut, joined by CuxiEF JUSTICE Puituips, filed a
dissenting opinion.
Justice OWEN not sitting.
This case involves Richard Ellis’s Jones Act claims for injuries
he sustained aboard a vessel owned by Maritime Overseas Corporation.
The trial court rendered judgment on the jury’s verdict for Ellis for
actual and exemplary damages and awarded prejudgment interest. The
court of appeals affirmed the actual damages award, but reversed the
awards of exemplary damages and prejudgment interest.
a
A-2
Maritime asserts that the court of appeals used an improper
standard to review the factual sufficiency of Ellis’s damages evidence.
Maritime also contends that the court of appeals should have applied
a Daubert-Robinson-Havner review to determine whether any well- :
founded scientific methodology supported some of the actual damages
award.’ We conclude, under the facts of this case, that the court of
appeals properly disposed of Maritime’s claims. Accordingly, we affirm
the court of appeals’ judgment.
I. BACKGROUND 7
A. Facts
Ellis served as a steward’s assistant in the housekeeping and galley
department aboard the S/T Overseas Alaska, a 700-foot oil tanker
owned by Maritime. In late August 1982, while the ship was at sea,
the chief steward attempted to control a roach problem by spraying
Diazinon, an industrial strength pesticide, in small, enclosed,
unventilated areas, including the pantry, a storeroom and other nearby
areas. The chief steward did not dilute the Diazinon properly. On the
morning after the spraying, crew members noticed a strong insecticide
odor. The captain ordered severai crew members, including Ellis, to
clean up the excess Diazinon. Ellis participated in the cleanup for
about five hours without wearing inhalation protective gear or special
equipment to protect his skin from contact with the insecticide. He
was exposed to Diazinon levels up to 200 times over what is considered
safe for human exposure.
After the cleanup, Ellis complained of a headache, eye irritation,
and a runny nose. The ship reached New Orleans two days later, and
Ellis was sent to the New Orleans General Hospital Emergency Room.
At the hospital, emergency room personnel found Ellis had myosis
with pupil constriction, muscle twitching, and muscle weakness along
1 See Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993);
E. 1. duPont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995); |
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).
A-3
with other symptoms. Ellis’s blood tests revealed that he had depressed
levels of acetylcholinesterase, an essential enzyme. The insecticide
Diazinon is an organophosphate, which is toxic to humans in varying
degrees. The emergency room doctor testified at trial that on a scale
of one to ten, with one representing normal health and ten representing
death, Ellis suffered organophosphate exposure of a level of six to
seven. The examining physician concluded that Ellis suffered from
Diazonin exposure and gave Ellis medication for eye problems. The
examining physician did not hospitalize Ellis, but she recommended
follow-up care. About a month later, Ellis saw another doctor for
continuing problems with his eyes.
Months after his exposure to Diazinon, Ellis began to complain
of memory defects, irritability, gastrointestinal problems, anxiousness,
fatigue, indigestion, nausea, muscle pain and stiffness, leg cramps,
dizziness, insomnia, high blood pressure, and black-out spells. At
trial, Ellis’s experts testified that his Diazinon exposure had caused
him to suffer from “delayed neurotoxicity” or “neuropathy.” Ellis’s
experts also testified that his condition is irreversible.
B. PROCEDURAL HIsTORY
About ten months after his exposure to Diazinon, Ellis sued
Maritime for gross negligence under the Jones Act and unseaworthiness
under general maritime law. Based on the jury’s verdict, the trial court
rendered judgment for Ellis for $8,576,000 in actual damages,
$1,000,000 in punitive damages, $1,000,000 in exemplary damages
for failure to pay maintenance and cure, and $1,871,728 in prejudgment
interest. The damages totaled about $12.6 million. Maritime filed post-
verdict motions for judgment notwithstanding the verdict and new
trial or, in the alternative, for remittitur. Maritime alleged that the
actual and exemplary damages were excessive because the evidence
was factually insufficient to support the damage awards. The trial court
overruled all of Maritime’s motions.
In the court of appeals, Maritime only complained about the trial
court’s denial of its motion for new trial and motion for remittitur;
it did not challenge the trial court’s denial of its motion for judgment
notwithstanding the verdict. The case was first argued before a three-
judge panel of the court of appeals. The panel majority held that the
A-4
‘ evidence was factually insufficient to support the damages award.
There was a dissent without an opinion. Later, the court of appeals
granted Ellis’s motion for en banc rehearing. Following argument,
the en banc court affirmed the actual damages award, but reversed
the trial court's judgment for exemplary damages and prejudgment
interest. 886 S.W.2d 780.
This Court granted Maritime’s application for writ of error on
two issues. First, Maritime contends that the court of appeals erred
by not using the proper standard to review the factual sufficiency of
Ellis’s actual damages evidence. Maritime argues that the court of
appeals should have applied a traditional factual sufficiency review
to the damage award instead of a featherweight causation standard
because the trial court submitted the damages question to the jury
based upon a preponderance of the evidence burden of proof. Second,
Maritime contends, within the framework of its factual sufficiency
review argument, that the court of appeals should have examined
whether any well-founded scientific methodology supported the jury’s
actual damages award.
At oral argument in this Court, Maritime stated that it was not
making a no evidence complaint. Rather, Maritime asserted that its
only complaint is that the court of appeals did not properly conduct
a factual sufficiency review. However, under its factual sufficiency
argument, Maritime argues that there is no evidence of long term injury
from delayed neurotoxicity. In essence, Maritime would have this Court
conduct a no evidence review of the evidence about delayed
neurotoxicity within the Court's review of whether the court of appeals
properly reviewed the factual sufficiency of the evidence. We decline
to do so.
Il. COURT OF APPEALS’
FACTUAL SUFFICIENCY REVIEW
A. THE Jones Act 48 U.S.C. § 688
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). When a state court hears an admiralty case,
iliac aia eimai |
Dare ash nk a Me ERNE
A-5
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. & Mkt. 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 proof justifies
with reason the conclusion that employer negligence played any part,
even the slightest, in producing the injury for which the claimant seeks
damages.” Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506-07
(1957); Landry v. Oceanic Contractors Inc. , 731 F.2d 299, 302 (Sth
Cir. 1984). This burden has been termed “featherweight.” See Johnson
v. Off Shore Exp., Inc. 845 F.2d 1347, 1352 (Sth Cir. 1988); Smith
v. Trans-World Drilling Co., 772 F.2d 157, 162 (Sth Cir. 1985); see
also Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959).
The Jones Act expressly incorporates FELA and the case law
developing that statute. See Ferguson v. Moore-McCormack Lines,
Inc., 352 U.S. 521 (1957). Thus, the causation standard under the
Jones Act is the same as that under FELA. See American Dredging
Co. v. Miller, 510 U.S. 443, 456 (1994); see also Brown & Root,
Inc. vy. Wade, 510 S.W.2d 408, 410 (Tex. Civ. App.— Houston [14th
Dist.] 1974, writ refd n.r.e.).
B. STANDARDS OF REVIEW
1. Jones Act Liability
Texas courts have long recognized that in addition to the burden
of proof being less stringent, 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, Inc., 510 S.W.2d at 410. As with the law on causation, FELAs
standard of appellate review applies in Jones Act cases. See Ferguson,
352 US. at 523. Thus, the purpose of the Jones Act standard of review
is to vest the jury with complete discretion on factual issues about
liability. See Rogers, 352 U.S. at 506-507. Once the appellate court
determines that some evidence about which reasonable minds could
A-6
differ supports the verdict, the appellate court’s review is complete.
See Roberts, 481 S.W.2d at 800 (citing Lavender v. Kurn, 327 US.
645 (1946)). Essentially, a Texas court of appeals may not conduct
a traditional factual sufficiency review of a jury’s liability finding
under the Texas “weight and preponderance” standard. See Roberts,
481 S.W’.2d at 801; see also Brown & Root, Inc., 510 S.W.2d at 410.
Rather, courts of appeals must apply the less stringent federal standard
of review.
2. Excessive Damages and Remittiturs
Texas courts of appeal have the power to review excessiveness
of damages and to order remittitur in FELA actions and, by
implication, in Jones Act cases as well. See Sweet v. Port Terminal
R.R., 653 SW.2d 291, 294-95 (Tex. 1983); c.f [sic] Nobles v. Southern
Pac. Transp. Co. , 731 SW.2d 697, 699 (Tex. App— Houston (4th Dist.]
1987, writ refd n.r.e.); see also Nairn v. National R.R. Passenger
Corp., 837 F.2d 565, 566 (2d Cir. 1988). The appellate court must
make its own “detailed appraisal of the evidence bearing on damages.”
Nairn, 837 F.2d at 567, (quoting Grunenthai v. Long Island R.R.,
393 U.S. 156, 159 (1968)).
The standard of review for an excessive damages complaint is
factual sufficiency of the evidence. See Rose v. Doctor's Hosp., 801
S.W.2d 841, 847-48 (Tex. 1990); Pope v. Moore, 711 SW.2d 622, 624
(Tex. 1986). The court of appeals should employ the same test for
determining excessive damages as for any factual sufficiency question.
See Pope, 711 SW.2d at 624. When considering a factual sufficiency
challenge to a jury's verdict, courts of appeals must consider and weigh
all of the evidence, not just that evidence which supports the verdict.
See Ortiz v. Jones, 917 SW.2d 770, 772 (Tex. 1996); Lofton v. Texas
Brine Corp., 720 SW.2d 804, 805-(Tex. 1986). A court of appeals
can set aside the verdict only if it is so contrary to the overwhelming
weight of the evidence that the verdict is clearly wrong and unjust.
See Ortiz, 917 S.W.2d at 772; Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). The court of appeals is not a fact finder. Accordingly,
the court of appeals may not pass upon the witnesses’ credibility
or substitute its judgment for that of the jury, even if the evidence
would clearly support a different result. See Pool v. Ford Motor Co.,
OR ie es
se ee! ee Oe Pee
A-7
715 SW.2d 629, 634 (Tex. 1986).
If the court of appeals determines that the evidence supports the
jury’s verdict, it is not required to detail all the evidence supporting
the judgment when it affirms the trial court’s judgment for actual
damages. See Ellis County State Bank v. Keever, 888 S.W.2d 790, 794
(Tex. 1994). On the other hand, when reversing a trial court's judgment
for factual insufficiency, the court of appeals must detail all the
evidence relevant to the issue and clearly state why the jury’s finding
is factually insufficient or so against the great weight and
preponderance of the evidence that it is manifestly unjust. See Keever,
888 S.W.2d at 794; Pool, 715 SW.2d at 635. The court of appeals
must explain how the contrary evidence greatly outweights the evidence
supporting the verdict. See Keever, 888 SW.2d at 794, Pool, 715 SW.2d
at 635.
Because the question of whether damages are excessive and that
a remittitur is appropriate is a factual determination made final in
the court of appeals, this Court lacks jurisdiction to review such
findings. Tex. Const. art V, § 6; TEX. Govt Cope, § 22.225(a); Akin
v. Dahl, 661 SW.2d 917, 921 (Tex. 1983); Sweet, 653 S.W.2d at 295.
C. ANALYSIS
Maritime concedes that the Jones Act imposes a reduced burden
in proving a defendant's liability, but asserts the Act does not relieve
a plaintiff of the burden of proving damages by a preponderance of
the evidence. Initially, Maritime contends that by submitting the
damages question based upon a preponderance of the evidence, Ellis
waived any argument that a featherweight standard applies to the court
of appeals’ review of damages. See De La Lastra, 852 S.W.2d at 916.
Maritime further argues that both federal and Texas appellate courts
have reviewed damage awards for factual sufficiency and excessiveness
using traditional standards of review in Jones Act cases. See Nairn,
837 F.2d at 566; Sweet, 653 S.W.2d at 294-95. Maritime asserts that
the court of appeals used the wrong standard when it reviewed the
actual damages award in this case. We disagree. As explained below,
the court of appeals properly analyzed this case in the context of
Maritime’s point of error and argument in that court.
The record shows that during trial, Ellis offered the testimony of
A-8
five expert medical doctors, four of whom had examined and treated
Ellis. Maritime did not challenge the testimony of any of the five
experts at trial. All five expert witnesses testified that Ellis’s severe
and lanath) exsusure ts Diacinar cease his pola? neural
damages. They expressed their opinions on bases ranging from
reasonable medical probability to without a doubt. In essence, all five
experts testified that Ellis’s prolonged exposure to excessive levels of
Diazinon due to Maritime’s negligence caused the long-term effects
of delayed neurotoxicity. Maritime presented three medical doctor
experts, only one of whom had treated Ellis. These three experts
testified that Ellis’s injuries were not a delayed effect of his Diazinon
exposure.
The jury answered “yes” to the question of whether Maritime’s
negligence played any part, even the slightest, in producing injury
or illness to Ellis. The jury then found, based on a preponderance
of the evidence, that $8,576,000 in actual damages would fairly and
reasonably compensate Ellis for the injuries or illnesses resulting from
the occurrence in question. The trial court rendered judgment for Ellis
on the jury’s verdict for the actual damages together with exemplary
and punitive damages and prejudgment interest.
In the court of appeals, Maritime contended the trial court erred
in denying its motion for new trial because factually insufficient
evidence supported the jury’s finding that Ellis suffered $8,576,000
in actual damages, and because the amount was excessive. However,
as the court of appeals recognized, Maritime’s argument to that court
was not about the amount of actual damages the jury awarded, but
about causation. The court of appeals observed:
Appellant concedes that appellee suffered short-term effects
from the exposure to Diazinon and in effect, that
overexposure to Diazinon is toxic to humans and can cause
damage to the nervous system on some temporary basis.
Thus, appellant does not contest damages for the medical
treatment appellee received in New Orleans in 1982 or for
the loss of two days of work. Appellant does contest
damages awarded for appellee’s claim of delayed and
permanent neurotoxic damage on the ground that appellee's
expert testimony was speculative and not based on
|
|
|
A-9
reasonable medical probability. Essentially, appellant's
attack is directed at the issue of causation as to the delayed
and permanent damage found by the jury based on the
circumstantia) and expert evidence before them.
886 S.W.2d at 783 (emphasis added). Because Maritime contended
there was factually insufficient evidence to support the damages award,
the court of appeals considered all the evidence both in favor of and
contrary to the judgment.
The court of appeals detailed the material testimony of all eight
experts—five for Ellis and three for Maritime. After doing so, the
court of appeals first concluded that the evidence more than satisfied
the Jones Act standard for causation. 886 S.W.2d at 791. The court
of appeals stated that sufficient evidence justified the jury’s finding
that Maritime’s admitted negligence in exposing Ellis to extreme levels
of a dangerous pesticide did play a part in producing the injury for
which the damages were sought and awarded. 886 S.W.2d at 791. In
addition to concluding that the evidence satisfied the “featherweight”
burden of negligence and causation in Jones Act cases, the court of
appeals also concluded that the evidence was sufficient under the
higher standard of proof for causation under Texas common law. The
court of appeals followed applicable law when it analyzed Maritime’s
challenge to causation instead of damages and when it reviewed the
amount of the damages award under traditional factual sufficiency
review. See Rogers, 352 U.S. at 506-07; Nairn, 837 F.2d at 566;
Landry, 731 F.2d at 302; Sweet, 653 S.W.2d at 294-95. Accordingly,
we conclude that the court of appeals followed the appropriate standard
of review in analyzing Maritime’s claims. Again, this Court has no
jurisdiction to decide whether the court of appeals reached the correct
result—that is whether the actual damage award was excessive. See
Akin, 661 SW. 2d at 921. We reject Maritime’s first argument.
Iii. COURT OF APPEALS’ REVIEW
OF SCIENTIFIC EVIDENCE
Maritime’s second contention is that the court of appeals erred
because it did not examine whether any well-founded scientific
evidence supports the actual damages award. Maritime argues that
A-10
the federal standard articulated in Daubert and the state standard
articulated in Robinson and Havner are the proper standards for
reviewing the sufficiency of Ellis’s damages evidence. Significantly,
Maritime does not complain about the trial court’s admission of any
of the scientific evidence from any of Ellis’s five experts. Rather,
Maritime’s position is that if the court of appeals applied a proper
scientific methodology test to Ellis’s experts’ testimony, the testimony
would be legally insufficient to show that the long term conditions
Ellis claims he suffers were caused by delayed neurotoxicity. Thus,
Maritime concludes, by way of its complaints about the court of
appeals’ factual sufficiency review, that there is no evidence of some
of Ellis’s actual damages. Maritime’s argument is flawed.
A. DAUBERT— ROBINSON —HAVNER
In Daubert, the Supreme Court considered “the standard for
admitting expert scientific testimony in a federal trial.” Daubert, 509
U.S. at 579 (emphasis added). Daubert’s focus is on the trial court's
discretion, when faced with an objection to scientific evidence, to
admit or exclude such evidence before or during the trial. The Supreme
Court added that when the trial court concludes that the disputed
scientific evidence is insufficient to go to the jury, the trial court may
grant a summary judgment or a directed verdict. Daubert, 509 U.S.
at 595. However, Daubert does not support the proposition that a
reviewing court can in effect exclude expert testimony that was not
objected to based on its scientific reliability before trial or when it
was offered at trial and then render judgment against the offering party.
Similarly, in Robinson, we granted DuPont's application for writ
of error to decide “the appropriate standard for the admission of
scientific expert testimony.” See Robinson, 923 SW.2d at 554
(emphasis added). Like the Supreme Court in Daubert, we recognized
the special nature of scientific expert testimony. See Robinson, 923
S.W.2d at 554-58. We then explained the trial court’s role as a
“gatekeeper,” and recognized that “[t]he trial court is responsible for
making the preliminary determination of whether the proffered
testimony meets the standards [for scientific reliability].” Robinson,
923 S.W.2d at 556. Like Daubert, Robinson's focus is on a trial court's
discretion in admitting or excluding scientific evidence after a party
y
A-11
lodges an objection to the reliability of its opponent's scientific expert
testimony before trial or when the evidence is offered. See Robinson,
923 S.W.2d at 557.
Under Havner, a party may complain on appeai that scientific
evidence is unreliable and thus, no evidence to support a judgment.
See Havner, 953 SW.2d 706. Havner recognizes that a no evidence
complaint may be sustained when the record shows one of the
following: (a) a complete absence of a vital fact; (b) the reviewing
court is barred by rules of law or evidence from giving weight to the
only evidence offered to prove a vital fact: (c) the evidence offered
to prove a Vital fact is no more than a mere scintilla; or (d) the evidence
establishes conculsively the opposite of the vital fact. See Havner,
953 at S.W.2d 7Il (citing Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. REv. 361, 362-63
(1960)). Here, like in Havner, Maritime contends that because Ellis’s
scientific evidence “is not reliable, it is not evidence,” and the court
of appeals and this Court are “barred by rules of law or of evidence
from giving weight” to Ellis’s experts’ testimony. See Havner, 953
S.W.2d at 7li, 713.
B. ERROR PRESERVATION
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. See Robinson, 923 S.W.2d at 557,
see also Havner, 953 SW.2d at 713 (“If the expert's scientific testimony
is not reliable, it is not evidence.”). Without requiring a timely
objection to the reliability of the scientific evidence, the offering party
is not given an opportunity to cure any defect that may exist, and
will be subject to trial and appeal by ambush. See Marbled Murrelet
v. Babbitt, 83 F.3d 1060, 1066-67 (9th Cir. 1996), cert. denied, 117
S. Ct. 942 (1997); Sumitomo Bank v. Product Promotions, Inc., 717
F.2d 215, 218 (Sth Cir. 1983).
Reviewing courts may not exclude expert scientific evidence aiter
trial to render a judgment against the offering party because that party
relied on the fact that the evidence was admitted. Babbitt, 83 F.3d
at 1067. To hold otherwise is simply “unfair.” Babbitt, 83 F.3d at 1067.
As the Babbitt court explained:
A-12
[P]ermitting [a party] to challenge on appeal the reliability
of [the opposing party's] scientific evidence under Daubert,
in the guise of an insufficiency-of-the-evidence argument,
would give [appellant] an unfair advantage. [Appellant]
would be ‘free to gamble on a favorable judgment before
the trial court, knowing that [it could] seek reversal on
appeal [despite its] failure to [object at trial.”
Babbitt, 83 F.3d at 1067 (citations omitted). Thus, to prevent trial
or appeal by ambush, we hold that the complaining party must object
to the reliability of scientific evidence before trial or when the evidence
is offered.
C. ANALYSIS
In this case, Maritime did not object to the reliability of Ellis's
scientific evidence until after the jury verdict. Maritime nevertheless
argues that the court of appeals should have applied the Daubert-
Robinson-Havner? rationale as part of its factual sufficiency review.
These cases do not support Maritime’s argument because: (1) each
involve admissibility or no evidence considerations, and (2) in each
case the defendants timely objected to the scientific evidence.
2 Maritime also cites Brock v. Merrell Dow Pharms., Inc. , 874 F.2d
307 (Sth Cir.), modified, 884 F.2d 166 (1989), to support its argument
that Ellis’s experts’ testimony was not proper scientific evidence.
However, like Daubert, Robinson and Havner, in Brock, Merrell Dow
challenged the scientific evidence before the jury verdict. Here,
Maritime did not challenge Ellis’s scientific evidence until after the
jury verdict.
Daubert and Havner involve the anti-nausea drug, Bendectin. In
these two cases, plaintiffs asserted that Bendectin caused birth defects.
See Daubert, 509 U.S. at 591; Havner, 953 SW.2d at 708. Robinson
involved a fungicide known as Benlate that DuPont manufactured.
The Robinsons contended that the Benlate they used was contaminated
A-13
and damaged their pecan crop. See Robinson, 923 SW.2d at 551. In
all three cases, causation was hotly contested, as it is in this case,
on delayed effects. In all three cases, the manufacturer objected before
trial or when the evidence was offered that the plaintiffs’ scientific
expert testimony on causation was inadmissible because it was neither
relevant nor based upon a reliable foundation. Daubert, 509 U.S. at
§91: Robinson, 923 S.W.2d at 552; Havner, 953 S.W.2d at 708-09.
Thus, the manufacturers in all three cases properly preserved their
claims that the expert testimony was inadmissible and was no evidence
of causation because it was not relevant and not based on well-founded
scientific methodology.
In Daubert, Merrell Dow moved for summary judgment. The
trial court granted summary judgment on the grounds that the Dauberts
did not establish that the principle on which their experts based their
opinions was generally accepted by the relevant scientific community.
See Daubert v. Merrell Dow Pharms., Inc., 727 F. Supp. 570, 572
(S.D. Cal. 1989). On appeal, the United States Supreme Court held
that the criteria is whether the scientific evidence is relevant and
reliable and thus admissible. The Court remanded Daubert to the
circuit court to determine whether the expert testimony rested on a
reliable foundation and was relevant. See Daubert, 509 U.S. at 597.
On remand, the Ninth Circuit held that the testimony about Bendectin’s
effect was inadmissible under Federal Rule of Evidence 702.
In Robinson, the trial court granted DuPont's pretrial motion and
excluded the Robinsons’ expert testimony on the ground that it was
neither relevant nor based upon a reliable foundation. See Robinson,
923 SW.2d at 552. At trial, the Robinsons again attempted to introduce
their expert’s testimony but the trial court abided by its earlier ruling
and excluded that testimony. The Robinsons then offered a bill of
exception on their expert's testimony. At the close of evidence, the
trial court granted DuPont's motion for directed verdict. The Robinsons
appealed on the grounds that the trial court abused its discretion by
excluding their expert's testimony. This Court followed Daubert and
held that a party must show, in addition to showing an expert witness
is qualified, that the expert’s testimony is relevant and reliable. See
Robinson, 923 SW.2d at 556. Accordingly, although Robinson involves
the exclusion of expert testimony, DuPont timely objected to the expert
testimony before trial and when the evidence was offered. Unlike
a
A-14
Maritime, DuPont did not wait until after the verdict to challenge the
reliability of its opponent’s expert testimony.
In Havner, Merrell Dow objected to the Havners’ scientific
evidence “at several junctures” during the litigation. See Havner, 953
S.W.2d at 708. Merrell Dow moved for summary judgment contending
there was no scientifically reliable evidence that Bendectin caused
limb reduction birth defects or that Bendectin caused the plaintiff's
birth defect. Cf General Elec. Co. v. Joiner, 118 S. Ct. 512 (1997)
(affirming summary judgment when plaintiffs expert evidence did
not show link between polychlorinated biphenyls (PCBs) and cancer).
The trial court held a hearing at which the scientific reliability of
the Havner’s summary judgment evidence was extensively aired. The
trial court then denied Merrell Dow’s motion for summary judgment.
Before trial, Merrell Dow filed a motion in limine again questioning
the scientific reliability of the Havner’s expert testimony. The trial
court denied Merrell Dow’s motion in limine. During trial, Merrell
Dow objected to the admission of the Havners’ scientific evidence.
Merrell Dow also unsuccessfully moved for directed verdict when
the Havners closed their case, complaining about the Havners’ scientific
evidence. The trial court overruled Merrell Dow’s objections and
denied its motion for directed verdict. In Havner, while the issue was
whether the scientific evidence was legally sufficient to be some
evidence of causation, Merrell Dow timely challenged the experts’
testimony at every opportunity in the trial court, and it properly
preserved a no evidence claim. Indeed, this Court emphasized that
the offering party should be allowed the opportunity to “pass[] muster”
under a trial court Robinson objection—‘to present the best evidence
available’—before an appellate court considers whether legally
sufficient evidence supports a judgment. Havner, 953 S.W.2d at 720.
Here, Maritime did not object to the scientific reliability of a
single one of Ellis’s five expert witnesses until after the jury verdict.
Before trial, Maritime did not ask for a Daubert/Robinson-type
hearing. Cf. Havner, 953 S.W.2d at 708-09. During trial, the record
reflects that Maritime made nine objections while Ellis’s five experts
testified. Five objections complained about nonresponsiveness, three
complained about leading questions, and one complained that the
witness was testifying from a document not in evidence. Simply put,
Maritime did not make any objection to the reliability of Ellis’s
eh atheist
A-15
experts before trial or when Ellis offered the evidence. Maritime cannot
complain for the first time after the verdict that the testimony from
Ellis’s five experts does not support the judgment. To allow otherwise
would deny Ellis’s scientific experts the opportunity to “pass[] muster”
in the first instance and usurp the trial court’s discretion as
“gatekeeper.” See Havner, 953 S.W.2d at 720; Robinson, 923 S.W.2d
at 554.
Rules and procedures about error preservation promote certainty
and fairness. Such rules also frame and develop the legal issues for
appeal, giving notice to both the litigants and to appellate courts about
what issues remain. Appellate courts must base their decisions on
the record as made and brought forward, not on a record that should
have been made or could have been made. See Babbitt, 83 F.3d at
1067. For this Court to decide now that Ellis’s scientific evidence is
unreliable under Daubert or Robinson would base appellate review
on a record that was not made.
IV. RESPONSE TO THE DISSENT
We do not disagree with the dissent that “Maritime Overseas’
position has always been . . . that no reliable scientific evidence shows
that diazonon can cause long-term neurotoxicity.” ____ S.W.2d
However, at trial, rather than make objections to the trial court,
Maritime chose to present this argument to the jury by challenging
the reliability of Ellis’s scientific evidence via vigorous cross-
examination, presenting contrary evidence, and through opening
statement and closing argument. Thus, unlike Havner, the “question
of scientific reliability was [not] raised repeatedly” before the trial
court. Havner, 953 S.W.2d at 709.
Nevertheless, the dissent would hold that Maritime’s decision to
argue the weight of both parties’ experts’ testimony to the jury was
sufficient to preserve a complaint about reliability for appeal. When
the reliability of scientific evidence is contested, attempts at persuasion
before the jury and reiterated on appeal cannot amount to preservation
of error for appeal. To allow otherwise would impermissibly permit
a party to strip away the trial court's role as gatekeeper in the first
instance when a party wishes to contest the reliability of scientific
evidence. See Robinson, 923 S.W.2d at 553, 556, 558 (placing a
.
A-16
“heightened responsibility” on trial judges “to ensure that expert
testimony show some indicia of reliability” by holding them
“responsible for making the preliminary determination of whether
the proffered testimony meets the standards [for scientific reliability]”);
see also Daubert, 509 U.S. at 589 (explaining that “the trial judge
must ensure that any and all scientific testimony or evidence admitted
is . . . feliable”). As Justice GONZALEZ rightly points out in his
concurring opinion, “[i]t is impossible for a [trial] court to exercise
its gatekeeper function after the evidence has been admitted and the
jury discharged.” S.W.2d ,
Under the dissent’s approach, the trial court would be converted
at a party’s whim from a gatekeeper to “an idle spectator rendered
powerless to ensure the integrity of courtroom evidence.” Robinson,
923 S.W.2d at 554 (quoting DuPont's argument). We decline to take
away the trial court’s gatekeeping function. To do otherwise would
usurp the orderly and efficient disposition of appeals, deprive the
proffering party of an opportunity to cure any defects in its evidence
that the objecting party might pose, and in some cases, place appellate
courts in the undesirable position of making decisions about evidentiary
reliability absent a fully developed record.
The dissent also goes to great lengths to set forth cases that it
claims stand for the proposition that “a party may complain after
verdict and on appeal that evidence admitted without objection is
neither legally nor factually sufficient to support the verdict.” __
S.W.2d ____. But the dissent’s reliance on these cases is misplaced
for those cases involve no evidence challenges where, on the face of
the record, the evidence lacked probative value. See Calvert, supra,
at 362-63. In contrast, by its own admission, Maritime is not making
a no evidence complaint.
Maritime could have and should have objected to Ellis’s evidence
at trial in a timely fashion for appellate consideration. We have properly
decided the case on the issues preserved at trial and raised on appeal,
as our rules and precedent require.
Vv. CONCLUSION
We conclude that the court of appeals used the proper standard
to review the factual sufficiency of Ellis’s actual damages evidence.
SRST NAO oY ep + Bey ~
A-17
We also conclude that because Maritime did not preserve error about
Ellis’s scientific expert testimony in the trial court, the court of appeals
did not err in conducting its factual sufficiency review. We overrule
Maritime’s other points of error. Accordingly, we affirm the court
of appeals’ judgment.
JAMES A. BAKER
Justice
OPINION DELIVERED: April 16, 1998
CONCURRING OPINION
Justice GONZALEZ, joined by Justice ABBorT with respect to Part
Ill, concurring.
I concur with the Court's judgment. The Court correctly resolves
the main issues: (1) approving the court of appeals’ standard for
reviewing the factual insufficiency of the evidence of a Jones Act cause
of action, and (2) rejecting Maritime Overseas Company's untimely
attempt to challenge the reliability of scientific evidence. See E./. du
Pont de Nemours & Co. v. Robinson, 923 SW.2d 549 (Tex. 1995)
(making trial courts the “gatekeepers” of scientific evidence.) I do
not entirely agree with the Court’s analysis of the Robinson issue.
However, I ultimately reach the same conclusion that Maritime did
not timely raise the issue. I think it is imperative to ventilate any
Robinson issues as early as possible, preferably as a pretrial matter.
To further that policy, we should give trial courts wide discretion to
reject late Robinson objections, and hold that the trial court did not
abuse its discretion in this case.
In Robinson, we made trial courts the gatekeepers of scientific
evidence, charging them with the duty to screen out the speculative
and unreliable. See id. at 556-57. It is impossible for a court to exercise
its gatekeeper function after the evidence has been admitted and the
A-18
jury discharged. Until now, however, we have not discussed in depth
the procedure to preserve a Robinson objection. Preservation was not
an issue in Robinson, wherein we upheld the trial court’s exclusion
of expert testimony after a pretrial hearing on its reliability. During
trial the proponent of the evidence asked the court to reconsider its
pretrial ruling, and made a bill of exceptions when it did not. See
id. at 552.
We sustained a no-evidence point without discussing error
preservation in Burroughs Wellcome Co. v. Crye, 907 SW.2d 497, 499
(Tex. 1995). The facts recited in the opinion do not reveal what steps
Burroughs took to preserve error, other than its objections to the
evidence when it was offered. We also sustained a no-evidence
Robinson complaint in Merrell Dow Pharm., Inc. v Havner, 953
S.W.2d 706 (Tex. 1997). Preservation of error was beyond question
in that case because Merrell Dow repeatedly challenged certain
scientific evidence, raising the issue in a motion for summary
judgment, motions in limine, extensive pretrial hearings on the
motions, objection during the expert's testimony, a motion for a
directed verdict at the close of the Havners’ evidence, and multiple
post-trial motions. /d. at 708-09; Merrell Dow Pharm., Inc. v. Havner,
907 S.W.2d 535, 539 (Tex. App.—Corpus Christi 1994),
The Court resolves the question in this case by characterizing
Maritime’s Robinson argument as a no-evidence complaint, and then
holding that Maritime failed to preserve a legal insufficiency point.
The dissenting opinion also treats Maritime’s arguments as legal
insufficiency points. I think their respective analyses are wrong for
two reasons. First, Maritime’s arguments here are not true no-evidence
points. As the Court observes, Maritime expressly disavows any legal
insufficiency complaint, and instead claims only to challenge the court
of appeals’ standard of review when it evaluated factual insufficiency.
Maritime’s prayer for relief seeks only a new trial. I would take
Maritime’s arguments at face value and not try to read a no-evidence
point into them.
Maritime argues instead that the evidence of causation is factually
insufficient because the record is utterly devoid of reliable scientific
evidence of causation. Such an argument would be a legitimate factual
insufficiency argument if made to a court of appeals. A court of appeals
reviewing factual insufficiency considers all of the evidence to see if
A-19
“the evidence supporting the finding is so weak or the evidence to
the contrary is so overwhelming that the finding should be set aside
and a new trial ordered.” Garza v. Alviar, 395 S.W.2d 821, 821 (Tex.
1965). If there is no evidence to support the verdict, then certainly
the court of appeals could conclude that the evidence is too weak to
support the verdict. If the appellant’s only viable point is factual
insufficiency, the court of appeals should remand for a new trial. See
Wright Way Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex. 1985).
However, an argument proper in the court of appeals may not
be appropriate in our Court because of our limited jurisdiction over
factual insufficiency. Our jurisdiction over factual insufficiency is
limited to whether the court of appeals applied the proper standard
of review. See In re Kiniy'’s Estate, 244 SW.2d 660, 661-62 (Tex. 1951).
Maritime asserts that is only wants us to exercise our limited
jurisdiction over standards of review, but its arguments come perilously
close to asking us to substitute our opinion for that of the court of
appeals. I question whether our jurisdiction would allow us to consider
the merits of Maritime’s argument. See Havner v. E-Z Mart Stores,
Inc. , 846 SW.2d 286, 286 (Tex. 1992) (Gonzalez, J., concurring on
denial of application for writ of error) (cautioning that this Court must
not second-guess the court of appeals’ review of factual insufficiency);
Lofton v. Texas Brine Corp. , 777 SW.2d 384, 388 (Tex. 1989) (Hecht,
J., dissenting) (criticizing the Court for circumventing constitutional
limitations over factual insufficiency through pretextual legal issues).
Compare with Jaffe Aircraft Corp. v. Carr, 867 SW.2d 27, 29-30 (Tex.
1993) (Gonzalez, J., concurring) (noting rare circumstance that allowed
this Court to exercise jurisdiction over a court of appeals’ factual
insufficiency review). In any event, since Maritime only brings a
factual insufficiency point, it is not necessary to decide if Maritime
preserved a no-evidence complaint.
Moreover, whether we categorize Maritime’s arguments as factual
insufficiency or legal insufficiency does not resolve the case for me.
I do not think the usual rules for preserving either factual or legal
insufficiency complaints adequately address the concerns unique to
Robinson issues.
A-20
Ordinarily. both legal and factual insufficiency points may be
preserved by post-judgment motions. See Cecil v. Smith, 804 S.W.2d
509 (Tex. 1991). A court simply looks at the record to determine the
existence and weight of evidence to prove a given point. Appellate
courts and trial courts make such a review without additional
information from outside the record. However, the no-evidence
analysis we describe in Havner is qualitatively different from the
ordinary evidentiary review:
[W]e emphasize that courts must make a determination of
reliability from all the evidence. Courts should allow a party,
plaintiff or defendant, to present the best available evidence,
assuming it passes muster under Robinson, and only then should
a court determine from a totality of the evidence, considering
all factors affecting the reliability of particular studies, whether
there is legally sufficient evidence to support a judgment.
Merrell Dow Pharm., Inc. v. Havner, 953 SW.2d at 720.
It should be apparent that appellate courts constitutionally cannot
conduct such a hearing in the first instance. However, I do not think
that allowing parties to raise Robinson objections for the first time
post verdict, or even during trial, is fair to the litigants or judicially
efficient.
A court should not be required to interrupt trial to conduct a
Robinson hearing which could have been held pretrial. As Merrell
Dow v. Havner illustrates, the trial court's role gatekeeper requires
it to decide complex issues in fields outside its primary expertise.
Some courts have tried innovative approaches, such as selecting neutral
experts in the field to serve as masters, a step I encourage when the
issues are especially complex. See Justice Breyer Calls for Experts
to Aid Courts in Complex Cases, N.Y. Times, Feb., 17, 1998, at A17.
Such innovation is not possible if the trial court is not given advance
warning.
I recognize that there may be instances of good cause for not
making a Robinson objection pretrial, in which case the trial court
should entertain the objection. Also, some opinion testimony may
be so untenable on its face that no Robinson hearing is necessary.
i
4
*.
Py
%
5
a
;
piel y
<i 2p PRU REE
A-21
For example, our Court recognized long before Robinson that courts
are not bound by testimony at odds with indisputable physical facts
and common knowledge because it has no probative value. Humble
Oil & Refining Co. v. Martin, 222 SW.2d 995, 1001-02 (Tex. 1949)
(holding that court could disregard petitioner's “incredible” testimony
that she had secured her automobile by engaging the reverse gear before
it rolled downhill striking pedestrians). Such situations will be
comparatively rare, however. Our discovery rules require the proponent
of expert testimony to identify the witnesses and the substance of their
opinions in response to appropriate discovery. Thus in the ordinary
case, it should be very apparent at the discovery stage that a party
will proffer scientific testimony. The opponent of such testimony
should bring its objections to the trial court's attention so that the trial
court may resolve them without interfering with the eventual trial.
Ill
As a final note, I encourage trial courts to aggressively exercise
their role as gatekeepers of scientific evidence. There are many steps
a court could take to try cases efficiently and fairly, with fidelity to
sound scientific methodology. For example, a court could:
1) require parties to notify opponents and the court sufficiently
in advance of the trial of plans to either offer scientific evidence
or challenge an opponent's evidence;
2) conduct a preliminary hearing on admissibility in advance of
plans to offer the evidence,
3) in complex litigation, appoint a panci of specially trained
scientists or a special master to hear evidence and report on
complicated scientific and statistical matters. The report would
be filed with the clerk’s office. If the parties request it, the
court should conduct a hearing on the report and allow the
parties to cross examine the court experts (the expert's fees
would be taaed as court costs);
render expert testimony inadmissible or rule objections waived
unless the parties fully comply with the notice requirements
set out above.
4
—
A-22
In sum, because a Robinson objection profoundly impacts the
trial of a case, an opponent to proffered scientific evidence should
raise the issue of reliability early in the litigation or risk losing the
objection. I agree with the Court that an opponent to scientific evidence
must object to it when offered, at the very latest. However, I would
go further and hold that if a party knows pretrial about the existence
of Robinson issues but fails to ask for a pretrial hearing, any objection
about the admission or exclusion of such evidence raised for the first
time during trial is waived.
RAUL A. GONZALEZ
Justice
OPINION DELIVERED: April 16, 1998
DISSENTING OPINION
Justice HECHT, joined by CHIEF JusTICE PHILLIPS dissenting.
Maritime Overseas Corporation seeks a new trial because, while
Richard Ellis was undeniably injured by his exposure-te-diazinon,
the scientific evidence does not support the conclusion that he suffers
from permanent neurotoxicity, and thus the $8,576,000 awarded him
in damages is excessive. The Court holds that it could not order a
new trial even if it agreed with Maritime Overseas’ contention,
completely ignoring its decision to grant a new trial in indistinguishable
circumstances just one year ago in Texarkana Memorial Hospital, Inc.
v. Murdock, 946 SW.2d 836 (Tex. 1997). The Court also holds that
Maritime Overseas failed to preserve its complaint for appeal because
it did not object to Ellis’s evidence at trial, even though Maritime
Overseas’ position has always been—in its opening statement, its
extensive examination of the expert witnesses, its closing argument,
its motion for new trial, and on appeal —that no reliable scientific
evidence shows that diazinon can cause long-term neurotoxicity. As
Ellis’s attorney told the jury in his opening statement, Maritime
Overseas’ “position is that this chemical just cannot cause an injury
to a worker's nervous system.” Maritime Overseas’ position has
A-23
never been in doubt.
Not one case the Court cites so much as hints that a party in
Maritime Overseas’ circumstances has failed to preserve error, and
one of those cases, Sumitomo Bank v. Product Promotions, Inc. 7\7
F.2d 215, 218 (Sth Cir. 1983), actually suggests that Maritime Overseas
has preserved its position. The Court refuses to acknowledge, much
less reconcile, its own numerous precedents that require reversal of
a judgment based on non-probative evidence, even though the evidence
was admitted without objection. The Court appears to think that if
it ignores these cases they will somehow go away. The Court steadfastly
evades the one and only issue over which these parties have fought
since the day this litigation began —whether there is reliable evidence
that Ellis suffers from neurotoxicity. I would decide this issue; therefore
I dissent.
It is undisputed that Ellis suffered some injury from his exposure
to diazinon and should recover some damages, but it is equally
undisputed that if he did not suffer long-term neurotoxicity, his
damages are nowhere near $8,576,000. The court of appeals, in
determining the factual sufficiency of the evidence, considered expert
testimony that Ellis not only was injured but that he suffers from
neurotoxicity. Maritime Overseas argues that evidence offered in
support of Ellis’s long-term injury claims is unreliable and therefore
no evidence at all. Thus, Maritime Overseas contends that the court
of appeals erred in considering such testimony in its factual sufficiency
review. The Court correctly summarizes Maritime Overseas’ argument:
“In essence, Maritime would have this Court conduct a no evidence
review of the evidence about delayed neurotoxicity within the Court's
review of whether the court of appeals properly reviewed the factual
sufficiency of the evidence.” Ante at ___ [App. A-4]. Then the Court
says: “We decline to do so.” /d.
But the Court did not “decline to do so” last year in Texarkana
Memorial Hospital, Inc. v. Murdock, 946 S.W.2d 836 (Tex. 1997).
Murdock sued the Texarkana Memorial Hospital for negligence in
delivering her daughter. The child was born with severe congenital
defects and died about a year later. Murdock claimed that she was
A-24
entitled to damages equal to all of the child’s medical expenses, but
the Hospital argued that Murdock could recover only for those
expenses caused by its negligence, excluding expenses for treatment
necessitated by the child’s congenital defects. The district court awarded
Murdock the total expenses, and the court of appeals affirmed, holding
that legally and factually sufficient evidence supported the conclusion
that all the medical expenses were caused by the Hospital's negligence.
Texarkana Memorial Hosp, Inc. v. Murdock, 903 SW.2d 868, 877-880
(Tex. App.—Texarkana 1995), revd, 946 S.W.2d 836 (Tex. 1997). In
this Court, the Hospital argued that there was “no evidence of a direct
causal link between the amount of medical expenses awarded and any
injuries caused by [the Hospital's] negligence.” Murdock, 946 §.W.2d
at 837. We agreed and reversed the award, explaining:
{|W]hile [there] is some evidence of damage caused by [the
Hospital's] negligence, a plaintiff may recover only for those
injuries caused by the event made the basis of suit. Morgan vy.
Compugraphic Corp., 675 SW.2d 729, 732 (Tex. 1984). The
case before us is analogous to other cases where a suit for medical
expenses involved another injury or pre-existing condition. . . .
We . . . hold that a plaintiff should recover only for medical
expenses specifically shown to result from treatment made
necessary by the negligent acts or omissions of the defendant,
where such a differentiation is possible.
Id. at 839-840 (citation omitted). Although the Hospital couched its
complaint in no-evidence terms, for which the remedy is ordinarily
rendition of judgment, we concluded that “[bJecause Murdock . . .
presented legally sufficient evidence that some of the medical expenses
resulted from [the Hospital’s negligence], [she] should be afforded
an Opportunity to develop this evidence further.” /d at 841. Thus, we
remanded the case for a new trial. In support of this conclusion we
cited Stewart Title Guaranty Co. v. Sterling, 822 SW.2d 1, 10-12 (Tex.
1991), in which we remanded a case for a new trial on attorney fees
because the evidence supported an award of some fees for some claims,
even though fees could not be awarded on all claims.
The present case is indistinguishable from Murdock. There, as
here, the argument was that while some evidence showed some
A-25
damages, no evidence suppored all the damages awarded. Although
the Hospital complained of the legal sufficiency of the evidence, it
in effect challenged the court of appeals’ factual sufficiency review
for considering non-probative evidence, and we treated the complaint
as being directed to that reviev, remanding for a new trial rather than
rendering judgment for the Hospital. Maritime Overseas’ application
for writ of error states: “There is no evidence that diazinon causes
delayed neurotoxicity and thusinsufficient evidence that Ellis suffered
$8,576,000 in actual damages.” The arguments in the two cases, while
phrased differently, are indistnguishable in import and effect. The
arguments and the relief sought are the same in both.
Why isn't Murdock contrdling or at least instructive? The Court
refuses to answer, refuses even to cite Murdock. The argument that
there is some significance in tte Hospital's no-evidence challenge and
Maritime Overseas’ insufficieat-evidence challenge is too weak even
for the Court to employ. If anything, Maritime Overseas’ contention
that the evidence of damages is insufficient because there is no
evidence of some damages awirded is more straightforward than the
Hospital’s contention that there was no evidence of the damages
awarded because there was seme evidence of only lesser damages.
But in fact, both arguments cone out at the same place, in substance —
some but not all of the damages are supported by the evidence — and
in result—a new trial excluding the unsupported claims. Maritime
Overseas’ first point of error in his Court asserts: “The court of appeals
erred in failing to examine whether any well-founded scientific
methodology supports the award of . . . actual damages.” Even if
Maritime Overseas could be faulted for misphrasing its point of error,
that mistake cannot dictate the result in the case.
A point of error “is sufficient if it directs the attention of
the appellate court to theerror about which complaint is made.”
Courts are to construe rules on briefing liberally. An appellate
court should consider tke parties’ arguments supporting each
point of error and not merely the wording of the points.
Anderson y. Gilbert, 897 S.\W2d 783, 784 (Tex. 1995) (per curiam)
(citations omitted). Maritime Overseas’ argument in its application
for writ of error is crystal clear:
A-26
In this case, Ellis offered no epidemiological study, no peer-
reviewed theory, nor any evidence of general scientific acceptance
to support the conclusion of his experts that his exposure to
diazinon caused delayed neurotoxicity. The premise upon which
his experts’ conclusion was based—that because some
organophosphates can cause delayed neurotoxicity, diazinon
therefore must cause delayed neurotoxicity—is false logic, as
pointed out by Justice Robertson's concurring and dissenting
opinion, because some organophosphates do not cause delayed
neurotoxicity.
To make the matter even clearer, Maritime Overseas summarizes its
position thusly: “There is no evidence that diazinon causes delayed
neurotoxicity and thus insufficient evidence that Ellis suffered
$8,576,000 in actual damages.”
The result in Murdock was correct, ard the same analysis should
be applied in this case. A party must have a means of contesting the
amount of damages wher there is evidence for some claims but not
all of them. Following #i..rdock, Maritime Overseas is entitled to a
new trial if its evidentiary complaint has been preserved and has merit.
The Court holds that Maritime Overseas’ complaint was not preserved
and does not reach the merits.
As early as 1912, and as recently as last year, this Court has held
that a party may complain after verdict and on appeal that evidence
admitted without objection is neither legally nor factually sufficient
to support the verdict. The Court ignores a solid line of cases
establishing this principle with respect to all kinds of evidence,
including scientific testimony. There is no authority for the Court's
holding that “[t]o 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.” Ante at [App. A-11].
The notion that a party must as a matter of course object to evidence
before trial is a complete stranger to our procedure. Despite this lack
of authority, it seems clear that parties should be required to contest
the reliability of scientific testimony in some way prior to the verdict
A-27
in most instances. However, Maritime Overseas did so in this case.
A
As a rule, a contention that evidence is insufficient to support
a judgment need not be raised before the verdict. Rule 279, Tex. R.
Civ. P., states: “A claim that the evidence was legally or factually
insufficient to warrant the submission of any question may be made
for the first time after verdict, regardless of whether the submission
of such question was requested by the complainant.” Prior to the
verdict, a party may, but is not required to, raise the complete absence
of evidence on a point. This differs from federal procedure, which
requires that a motion for judgment as a matter of law be made before
the case is submitted to the jury “to assure the responding party an
opportunity to cure any deficiency in that party’s proof that may have
been overlooked until called to the party’s attention”. Feb. R. Crv. P.
50(a)(2) advisory committee’s note. Texas procedure does not afford
parties the same protection. Thus, for example, a defendant sued for
reasonable and necessary expenses can wait until after the verdict
to point out that the plaintiff never offered evidence that the expenses
claimed were reasonable. See McCreless Properties, Lid. v. F. W.
Woolworth Co. , 533 SW.2d 863, 868 (Tex. Civ. App.—San Antonio
1976, writ refd n.r.e.); Holt v. Purviance, 347 SW.2d 321, 324-325
(Tex. Civ. App.— Dallas 1961, writ refd n.r.e.). A defendant sued for
attorney fees may wait until after the verdict to assert that no evidence
of the required presentment of the claim was offered. See Jim Howe
Homes, Inc. v. Rogers, 818 SW.2d 901,905 (Tex. App.—Austin 1991,
no writ). A pre-verdict objection to the factual insufficiency of the
evidence cannot preclude submission to the jury of pleaded claims,
Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex. 1985), and thus has
essentially no effect.
Even if evidence is admitted without objection, it may be
insufficient to support a judgment. This Court held eighty-six years
ago that “incompetent testimony can never form the basis of a finding
of facts in an appellate court, notwithstanding its presence in the record
without objection.” Henry v. Phillips, 151 SW. 533, 538 (Tex. 1912).
In that case, testimony admitted without objection was held to be no
evidence on appeal because it was hearsay. /d. at 537. The Court
A-28
repeatedly treated hearsay as no evidence even if it was not objected
to. until Rule 802 of the Texas Rules of Civil Evidence was adopted
in 1983. Zobel v. Slim, 576 SW.2d 362, 369 (Tex. 1978); Cooper
Petroleum Co. v. LaGloria Oil & Gas Co. , 436 SW.2d 889, 891 (Tex.
1969): Aetna Ins. Co. v. Klein, 325 SW.2d 376, 379 (Tex. 1959); City
of Mission v. Popplewell, 294 SW.2d 712, 717 (Tex. 1956); Texas Co.
». Lee, 157 SW.2d 628, 631 (Tex. 1941). But the principle in Henry
has been applied to evidence other than hearsay.
In Casualty Underwriters v. Rhone, 132 SW.2d 97 (Tex. 1939),
Rhone sought compensation for injuries sustained while working on
a construction site. The dispute centered on whether at the time of
his injuries he was employed by the general contractor, Beaumont
Development Corporation, or a subcontractor, McDaniel. The jury
found that Rhone was employed by the general contractor, but the
court of civil appeals reversed, holding as a matter of law that Rhone
was employed by the subcontractor. We affirmed the court of civil
appeals, holding that testimony by Rhone and McDaniel contrary to
its conclusion, though not objected to, was no evidence.
The only testimony in the record which would in the least
tend to support the conclusion that Rhone was working for the
Beaumont Development Corporation was given by Rhone and
McDaniel, each of whom testified that, at the time of the injury,
Rhone was working for it. Those statements did not amount to
any evidence at all. They were but bare conclusions and therefore
incompetent, and the fact that they were admitted without
objection adds nothing to their probative force.
Id. at 99.
The Court followed Rhone in Dallas Railway & Terminal
Company v. Gossett, 294 SW.2d 377 (Tex. 1956). In that case, a bus
passenger, Gossett, recovered damages for injuries she sustained when
the bus struck a car. The bus company, Dallas Railway, impleaded
the driver of the car, Sample, contending that her negligence in driving
the wrong way on a one-way street caused the accident. The jury failed
to find Sample negligent. On appeal, Dallas Railway argued that the
evidence established Sample’s negligence because it was undisputed
— ee we a
A-29
that she was driving the wrong way on a one-way street. The bus driver,
Gossett, Sample, and an accident investigator all testified that they
believed traffic on the street was one-way, but no evidence was offered
showing that traffic was legally restricted. The Court held that the
witnesses’ testimony did not establish that the street was one-way,
explaining: “It is well settled that the naked and unsupported opinion
or conclusion of a witness does not constitute evidence of probative
force and will not support a jury finding even when admitted without
objection.” /d. 380-381.
Two cases cited by Gossett with approval apply the same principle
in other settings. In one, Webb v. Reynolds, 207 SW. 914 (Tex. Comm'n
App. 1919, judgm’t adopted), the court held that a plaintiff's testimony
that he owned a promissory note was no evidence to support his claim
because the statement “was a bare conclusion or opinion of the witness
without 2ay basis of fact”. /d. at 916. Plaintiffs own pleadings asserted
that the note was owned by an estate. /d. The court added: “The fact
that [the testimony] was not objected to could add nothing to its
probative force.” /d. In the other, Perren v. Baker Hotel, 228 SW.2d
311 (Tex. Civ. App.—Waco 1950, no writ), the court held that a wife’s
testimony that her husband had agreed to rent hotel rooms “was nothing
more than a bare conclusion on the part of the witness concerning
a question of law and such testimony had no probative force, even
though it had been admitted without any objection.” /d. at 317.
In Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.
1971), this Court held that a plaintiffs testimony that he was acting
in the course and scope of his employment at the time he was injured
was no evidence to support a finding to that effect. Even though the
testimony was admitted without objection, it was attacked in cross-
examination. The Court stated:
This court has approved the holding that testimony of an
employee (driver) that he was acting within the course of his
employment at the time of an accident is not admissible. If such
testimony is admitted, with or without objection, it has been
held to be incompetent and without probative force. It will not
support a verdict or a finding of fact by a court.
A-30
‘d. at 360 (citations omitted).
In Schafer v. Texas Employers’ Insurance Association, 612 S.W.2d
199 (Tex. 1980), Schaefer claimed compensation benefits, alleging
that he suffered from an occupational disease, atypical tuberculosis.
The carrier disputed that Schaefer contracted his disease at work. His
treating physician, Dr. Anderson, testified “that in his opinion, based
on reasonable medical probability, Schafer’s disease resulted from his
employment.” /d. at 202. The defendant attacked Dr. Anderson’s
opinion on cross-examination but did not object to its admission. The
jury found for Schaefer, but the court of civil appeals reversed and
rendered judgment for the carrier. This Court affirmed, refusing to
take Dr. Anderson's opinion at face value and looking instead to the
basis for it. The Court explained:
The basis for [Dr. Anderson's] opinion is that persons
engaged in “dirty” occupations, such as farmers, tend to have
a greater exposure to the bacteria; that Schaefer frequently
worked in soil contaminated by bird droppings; that Schaefer
suffers from one of the serotypes of m. intracellularis: and.
therefore, he has an occupational disease. Notwithstanding Dr.
Anderson's opinion, there is a crucial deficiency in the proof
of causation. The evidence fails to establish that any bacteria
was present in the soil where Schaefer worked.
Id. at 203. After quoting extensively from Dr. Anderson's testimony,
the Court continued that his opinion was no evidence of the cause
of Schaefer's disease because it lacked any real basis:
Dr. Anderson assumes that Schaefer is infected with an avian
serotype m. intracellularis pathogenic to fowl. He further
assumes that this serotype was present in bird droppings where
Schaefer worked. It is admitted that the particular strain of m.
intracellularis from which Bobby Schaefer suffers has not been
identified. Is is also admitted that the manner in which the disease
was transmitted to Schaefer is unknown. It is further admitted
that there is no evidence that the bacteria is present in the soil
where Schaefer worked, or even in Nueces County.
a a aS lil ae Ye ae ea Te
A-31
We have reviewed the substance of Dr. Anderson’s testimony
in its entirety and we find that it does no more than suggest a
possibility as to how or when Schaefer was exposed to or
contracted the disease. We hold that his opinion is not based
upon reasonable medical probability but relies on mere
possibility, speculation, and surmise. We hold there is no
evidence that the disease suffered by Bobby Schaefer is an
occupational disease “arising out of and in the course of
employment.” The fact that proof of causation is difficult does
not provide a plaintiff with an excuse to avoid introducing some
evidence of causation. To ignore the substance of Dr. Anderson’s
testimony and accept his opinion as “some” evidence simply
because he used the magic words “reasonable probability”,
effectively removes this Court's jurisdiction over any case
requiring expert opinion testimony. Under such view, so long
as an expert states the words “reasonable probability,” in giving
his opinion, there would be some evidence. The question would
then be solely one of sufficiency of the evidence over which this
Court has no jurisdiction.
Id. at 204-205 (citations omitted).
We reaffirmed Schaefer in Burroughs Wellcome Company v. Crye,
907 S.W.2d 497 (Tex. 1995). In that case plaintiff Crye’s treating
physician, Dr. Blesius, testified without objection that Polysporin
sprayed on Crye’s foot caused frostbite. The jury found for Crye, and
the court of appeals affirmed, concluding that the evidence was
factually and legally suffucient to support the verdict. Burroughs
Wellcome Co. v. Crye, 912 SW.2d 251, 259 (Tex. App.— El Paso 1994),
revd, 907 S.W.2d 497 (Tex. 1995). We reversed, despite the admission
of Dr. Blesius’ testimony without objection, because l.is opinion had
no factual basis. We stated:
We hold that Dr. Blesius’ testimony constitutes no evidence that
Polysporin spray caused Crye to sustain a frostbite injury. When
an expert’s opinion is based on assumed facts that vary materially
from the actual, undisputed facts, the opinion is without probative
value and cannot support a verdict or judgment. See Schaefer
A-32
v. Texas Employers’ Ins. Assin., 612 SW.2d 199, 202-05 (Tex.
1980) (reviewing substance of medical expert's testimony and
holding that this testimony constitutes no evidence of causation,
as it is based on assumptions, possibility, speculation, and
surmise).
Id. at 499-500 (citation omitted).
Just last year in Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997), we reiterated that “an expert's bare opinion
will not suffice” to provide evidence of causation of an injury; “[t}he
substance of the testimony must be considered.” /d. at 711. Merrell
Dow asserted in the trial court that scientific evidence of any causal
connection between the use of Bendectin and birth defects was
unreliable, and it “objected to the admission of some, but not all,
of this evidence.” /d. at 709. We held that the expert testimony, even
that admitted without objection, was no evidence to support a judgment
for Havner because the testimony showed that there was no basis for
the experts’ opinions. We said: “When the expert ‘br[ings] to court
little more than his credentials and a subjective opinion,’ this is not
evidence that would support a judgment.” /d. at 712 (citation omitted).
We added:
Justice Gonzalez, in writing for the Court, gave rather colorful
- examples of unreliable scientific evidence in E./. du Pont de
Nemours & Co. v. Robinson, 923 SW.2d 549, 558 (Tex. 1995),
when he said that even an expert with a degree should not be
able to testify that the world is flat, that the moon is made of
green cheese, or that the Earth is the center of the solar system.
If for some reason such testimony were admitted in a trial without
objection, would a reviewing court be obliged to accept it as
some evidence? The answer is no. In concluding that this
testimony is scientifically unreliable and therefore no evidence,
however, a court necessarily looks beyond what the expert said.
Reliability is determined by looking at numerous factors including
those set forth in Robinson and [Daubert v. Merrell Dow
Pharmaceuticals, Inc. , 509 U.S. 579 (1993)]. The testimony of
an expert is generally opinion testimony. Whether it rises to the
A-33
level of evidence is determined under our rules of evidence,
including Rule 702, which requires courts to determine if the
opinion testimony will assist the jury in deciding a fact issue.
While Rule 702 deals with the admissibility of evidence, it offers
substantive guidelines in determining if the expert testimony is
some evidence of probative value.
Id. (emphasis in original).
Within the past few months we denied the application for writ
of error in Williams v. Gaines, 943 SW.2d 185 (Tex. App.—Amarillo
1997, writ denied). In that case, Gaines sued Williams for removing
her as president of a corporation in which he was sole shareholder
and terminating her employment with the corporation. The jury found
that Williams breached his agreement with Gaines and that her
damages included $92,500 as the value of the stock as of a specific
date that Williams promised Gaines but did not convey. The court
of appeals reversed the judgment for Gaines and remanded the case
for a new trial, holding that there was no evidence to support the jury's
damages finding. Gaines and an expert witness had testified without
objection to the value of the stock based solely on data after the date
at issue. The court concluded: “Because the data relied upon by Ms.
Gaines to support the jury's award is based on subsequent data, there
was no probative evidence of the fair market value of one-half of the
{corporation's} stock on [the specified date]”. /d. at 193. The court
explained: “Opinion evidence based on conjecture or speculation lacks
probative value. Incompetent evidence, even if not objected to at trial,
may not be considered as probative in determining the legal and factual
sufficiency of the evidence.” /d. (citation omitted).
To summarize, bare conclusions and assertions unsupported by
facts of record, expert opinions based on facts merely assumed and
not proved, or facts different from those proved, and scientific
testimony without any reliable basis, even if admitted without
objection, are no evidence to support a finding of fact. An expert's
opinion that disease was contracted through working conditions, or
that a spray caused frostbite, or that a medication caused birth defects,
even if admitted without objection, is not probative evidence if the
testimony shows that the opinion lacks any substantial basis. This
A-34
is not to say that the deficiency in the evidence need not be pointed
out in any way before the verdict, but only that it can be done by
cross-examination and means other than objections.
The Court holds: “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.” Ante at ____. [App.
A-11]. Whatever the Court means by objecting to evidence before
trial, the four cases the Court cites as authority do not support this
holding. The first case, Robinson, does not consider the issue. In that
case, the subject evidence was objected to and excluded by the trial
court. Whether any objection was necessary was never addressed by
this Court. In the second case, Havner, we stated quite plainly that
objection was made to the admission of “some, but not all” of the
evidence at issue. “[T]he question of scientific reliability was raised
repeatedly”, but not consistently by objection. Havner, 953 S.W.2d
at 709.
The other two cases, Marbled Murrelet v. Babbiti, 83 F.3d 1060
(9th Cir. 1996), cert. denied, 117 S. Ct. 942 (1997), and Sumitomo
Bank v. Product Promotions, Inc. 717 F.2d 215 (Sth Cir. 1983), the
Court cites for the proposition that “[wJithout requiring a timely
objection to the reliability of the scientific evidence, the offering party
is not given an opportunity to cure any defect that may exist, and
will be subject to trial and appeal by ambush.” Ante at _____ [App.
A-|1]. There are two flaws in the Court's reliance on these cases.
First, as noted earlier, Texas procedure allows the sufficiency of the
evidence to be challenged for the first time after verdict, whereas
federal procedure does not. Thus Texas procedure allows for some
ambush that federal procedure precludes. Second, Sumitomo Bank
holds only that in determing whether there is no evidence to support
a finding such that judgment should be rendered notwithstanding the
verdict, evidence ruled admissible cannot be excluded from
consideration. See also Schudel v. General Elec. Co., 120 F.3d 991,
995 (9th Cir. 1997) (“when deciding a motion for JNOV, a trial court
may not ignore evidence erroneously admitted at trial, [because]
excluding evidence after the verdict is unfair to a party who may
A-35
have relied on the determination that the evidence was admissible.”).
While this reasoning applies in deciding whether to render judgment
notwithstanding the verdict, it does not apply in deciding whether
to grant a new trial. As the court explained in Sumitomo Bank:
The trial judge erred in retroactively striking the summary
exhibits and then gauging the jury’s performance on the fictive
basis that the summary evidence was not before it. Although
acceptable in the context of a motion for new trial, see
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189,
85 L.Ed 147 (1940), this methodology is not appropriate in
connection with a motion for judgment n.o.v.
717 F.2d at 218 (emphasis added). As the court noted, the Supreme
Court explained the difference between motions for judgment n.ov.
and motions for new trial in Montgomery Ward:
Each motion, as the rule recognizes, has its own office. The
motion for judgment cannot be granted unless, as matter of law,
the opponent of the movant failed to make a case and, therefore,
a verdict in movant’s favor should have been directed The motion
for a new trial may invoke the discretion of the court in so far
as it is bottomed on the claim that the verdict is against the weight
of the evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair to the party moving; and may raise
questions of law arising out of alleged substantial errors in
admission or rejection of evidence or instructions to the jury.
311 U.S. at 251 (emphasis added).
Maritime Overseas contends here that it is entitled to a new trial,
not that judgment should be rendered in its favor. Thus, the Court's
reasoning, and the cases it cites, are inapposite. Our rules of procedure
do not require a party to assert before the verdict that the evidence
is insufficient to support a verdict. The factual sufficiency of the
evidence may always be attacked post-verdict, even if no objection
was made to its admissibility. Indeed, as the Supreme Court observed,
one consideration in deciding whether to grant a new trial is whether
A-36
there were substantial errors in the admission or rejection of evidence.
As already demonstrated, our own precedents permit evidence to be
rejected post-verdict as non-probative in at least some instances, even
if it was admitted without objection.
Cc
The Court holds that the reliability of scientific evidence must
be objected to before trial or when the evidence is offered. How one
objects to evidence before trial is not entirely clear. The Court mentions
Merrell Dow's motion for summary judgment and motion in limine
in Havner, suggesting that these are ways in which scientific evidence
can be challenged. As already noted, the Court states that “Merrell
Dow objected to the admission of the Havners’ scientific evidence”,
ante at _____ [App. A-14], but this is only partly true. Merrell Dow
only objected to some of the Havners’ evidence. Had Merrell Dow
been foreclosed from attacking the reliability of evidence to which
it did not object, there would have been evidence to support the verdict.
Thus, the Court's holding that no evidence supported the verdict was
despite the absence of objections.
The Court states that Havner “emphasized that the offering party
should be allowed the opportunity to ‘pass[{] muster’ under a trial court
Robinson challenge —to present the best evidence available before
an appellate court considers whether legally sufficient evidence
supports a judgment.” Ante at __. [App. A-14]. What Havner
actually said was:
In sum, we emphasize that courts must make a determination
of reliability from all the evidence. Courts should allow a party,
plaintiff or defendant, to present the best available evidence,
assuming it passes muster under Robinson, and only then should
a court determine from a totality of the evidence, considering
all factors affecting the reliability of particular studies, whether
there is legally sufficient evidence to support a judgment.
953 S.W.2d at 720. The point was, as we said, that the reliability of
scientific evidence must be determined from a review of all the
evidence, not simply the evidence of one party or the other. Only by
A-37
alchemy can this passage be turned into a requirement that evidence
be objected to before its reliability can be determined.
The Court does not explain the holding in Schaefer and other
cases cited above, where evidence was held to be non-probative even
though it had been admitted without objection. Instead, the Court
refers vaguely to a pretrial “Daubert/Robinson-type hearing.” Ante
at {[App. A-14]. The Court does not explain what kind of hearing
this is, how it is invoked, when it is to be conducted relative to the
commencement of trial, and whether it is required.
Our precedents seem to teach that parties should not be permitted
to attack evidence for the first time after the verdict unless it is plainly
without probative value — such as an opinion based on the moon's being
made of green cheese, or a mere assertion that a person is another's
employee, or that a person was injured in the course of work, or that
a person made an agreement. In most situations, however, if the
probative value of evidence is to be in question, then ordinarily the
issue must be raised before the verdict. This prevents the ambush that
concerns the Court and puts both parties and the trial court on notice
of the contentions in the case. But it hardly makes sense to require
a specific objection to each line of scientific opinion testimony when
a party’s stated, clear position is that the opinion is baseless. In
Schaefer, for example, the carrier's position was plain from its cross-
examination of the claimant's physician: his opinion that the claimant
contracted atypical tuberculosis at work had no basis in fact. Likewise,
in Havner, there could be no mistake that Merrell Dow’s position
throughout, as in all the other Bendectin cases previously tried, was
that there was no reliable evidence that Bendectin caused birth defects.
In the case before us, there was never any doubt about Maritime
Overseas’ position. In his opening statement, Ellis’s attorney told the
jury:
The attorney representing the company told you yesterday
that—well, their position is that this chemical just cannot cause
an injury to a worker's nervous system. That’s just not true. In
fact, you'll hear evidence from the witnesses that it can cause
an injury if it is—if the exposure is sufficiently great and if the
exposure is on the order of what this man was exposed to.
A-38
Maritime Overseas’ counsel responded in his opening statement:
{W]e think the medical evidence will show that the effects of
diazinon are not long-term but, indeed, are confined within a
specific period of time. Certainly no more than months.
And the evidence will show, and we'll bring in a toxicologist
and a neuropsychologist who will testify that there is no
relationship between the current situation exhibited by Mr. Ellis
in the exposure to diazinon on the ship in 1982.
The dispute over this issue pervaded the examination and cross-
examination of the eight expert witnesses. The focus of all the
testimony was not on Ellis’s initial poisoning from his exposure to
diazinon, but whether he suffered any long-term injury. The possibility
that diazinon causes neurotoxicity was thoroughly explored, and
Maritime Overseas established that no studies or other evidence exist
to support the opinions of Ellis’s experts that he suffered from
neurotoxicity caused by exposure to diazinon.
In summation, Ellis’s counsel again addressed the issue:
I acknowledge that the difficulty I have labored under is that
you cannot show clearly a damage to the central nervous system.
Nobody can, but that doesn't mean you don’t have a right to be
treated fairly when you have it.
Maritime Overseas’ counsel stressed in summation:
There wasn't a single article out of all the articles that we all
went over bit by bit, line by line. Not a single one ever says
that diazinon causes these sort of effects [i.e., neurotoxicity].
Not one.
There's an article and it’s Defendant's Exhibit No. 3. I want you
to look on page 149 of that article, in particular. It’s an article
written by Al Johnson together with Dr. Lassetor and two
other people. And one of the conclusions of that article is that
A-39
pesticides—some pesticides have neurotoxic effects, yes. It
doesn't mention diazinon. . . . And the reason is because all
organophosphates are different. Some are nerve gas, some kill
people, some are insecticide. There's not a single article anywhere
that says diazinon causes these effects.
** *
We have never taken the position that Mr. Ellis did not have
acute symptoms due to exposure of the diazinon. Where the case
differs and where we differ from the plaintiff is whether Mr.
Ellis’s current complaints are a result of the exposure to diazinon.
Does he have long-term, delayed neurotoxicity as a result to the
exposue to the diazinon. That's the key issue in this case. All
these other issues that you have to answer, especially the ones
relating to damages, to medical expenses, to loss of wages, it
all falls from ‘hat decision that you have to make.
* * *
We have had article after article referred to, that have all been
discussed, organophosphate poisoning and the effects of
organophosphate poisoning. We've tried to show—and I've been
accused of nitpicking for doing it—that each article relied on
. . . doesn’t support a determination that exposure to diazinon
does cause long-term delayed neurotoxicity, period. It didn’t
support it. And what the plaintiff has tried to do is say the
literature talks about organophosphate exposure, diazinon is an
organophosphate, therefore this has got to be it... .
(Emphasis added.)
The Court states that to determine now whether Maritime
Overseas’ scientific evidence was unreliable “would base appellate
review on a record that was not made.” Ante at ____ [App. A-15].
That simply is not true. Maritime Overseas did not ambush Ellis on
the substance of the expert testimony. The record shows that it was,
in counsel's words, “the key issue” in the case. The parties purported
A-40
to present all available evidence on the issue whether diazinon could
eause neurotoxicity. This is not a case where a party could have offered
more or different scientific evidence had it known that its opponent
objected to the evidence as unreliable. Maritime Overseas reasserted
its contentions in its motion for new trial and on appeal. There can
be no question that Maritime Overseas challenged the reliability of
Ellis’s scientific evidence.
D
The Court does not attempt to argue that Ellis’s evidence had any
probative value. It holds that even if the evidence had no probative
value, it must be considered some evidence to support the judgment
on appeal if it was not objected to. This holding is squarely contrary
to Schaefer, Crye, Havner, and the other cases I have cited. The Court
has two responses.
First, the Court says that to allow an argument that scientific
evidence admitted without objection was nevertheless unreliable and
non-probative would “take away the trial court’s gatekeeping function”
and thus would:
usurp the orderly and efficient disposition of appeals, deprive
the proffering party of an opportunity to cure any defects in its
evidence that the objecting party might pose, and in some cases,
place appellate courts in the undesirable position of making
decisions about evidentiary reliability absent a fully developed
record.
Ante at ____ [App. 16]. Of course, none of these evil effects is
present in this case. Ellis not only understood Maritime Overseas’
position and had every opportunity to cure the defects in his evidence,
he and Maritime Overseas purported to offer all the evidence in
existence on whether diazinon can cause neurotoxicity. There can be
no question in this case that the record was fully developed. To say
that a review of the sufficiency of evidence admitted without objection
deprives the trial court of its gatekeeping function is to say that
Schaefer, Crye, and Havner were wrongly decided. In Schaefer, for
example, a physician testified, just as in the present case, that the
Te ee eee a "
A-4l
plaintiff's injury was caused by a particular agent. Defendant did not
Object to this testimony. Still, this Court held that the evidence had
no probative value because there was nothing in the record to indicate
that the injury could have occurred as the witness testified. The
witness's mere Opinion was not enough to support a judgment. The
same situation is present in this case, except that here the parties clearly
made every effort to produce all available evidence, whereas that is
not at all clear in Schaefer.
Second, the Court says that the cases | have cited —it refers to
none of them by name—are distinguishable because “those cases
involve no evidence challenges where, on the face of the record, the
evidence lacked probative value. . . . In contrast, by its own admission,
Maritime is not making a no evidence complaint.” Anie at _____ [App.
A-18]. I have already explained that Maritime Overseas’ complaint
is really that there is no evidence of some damages, and that the Court's
effort to categorize Maritime Overseas’ position more rigidly is unfair
to the arguments made in its briefs. But assume that all the cases |
have cited involved no-evidence challenges and that this case does
not. What possible difference can that make to the Court? Why is
the necessity of objection to the evidence less important when the
appellate complaint is no evidence? As the Court's own authority,
Sumitomo Bank, points out, the necessity of objection is more
important when the complaint is that there is no evidence to support
a judgment and therefore judgment should be rendered in the
complainant’s favor. When the request is only for a new trial, a
reassessment of evidence admitted without objection is “acceptable”.
Sumitomo Bank, 717 F.2d at 218. Moreover, the trial court's gatekeeping
function which the Court argues must be preserved is “take[n] away”,
ante at [App. A-16], just as effectively in a no-evidence appeal.
The Court's attempts to distinguish Havner, Crye, Schaefer, and
the long line of cases that precedes them are flawed.
E
The use of scientific evidence at trial poses unique problems.
Sometimes, as in Havner, the entire body of evidence is unreliable
from a scientific viewpoint. At other times, as in Crye and Schaefer,
the evidence is unreliable because it is based on assumptions that
A
ee ee
i ——
A-42
cannot be demonstrated. In still other cases, like this one, the evidence
is unreliable only as it pertains to a part of the claims. For the most
part, I agree with the Court that the issue of the reliability of scientific
evidence should be raised in the trial court. The exception is when
the evidence is plainly lacking in probative value —the moon is made
of green cheese. But it is not at all clear what procedures should be
used to raise reliability challenges. The Court refers to motions in
limine, although as a general rule rulings on such motions do not
preserve error. The Court also refers to summary judgments, although
this procedure may not work well when testimony is important to
illuminate the issue. The Court insists that there be an objection, but
Havner shows the difficulty of objecting to an entire case. Moreover,
once the issue has been identified, why should further objection be
necessary?
For over two years, the Supreme Court Advisory Committee,
which advises the Court on all rules of procedure, and the State Bar
of Texas Committee on the Administration of Rules of Evidence, which
monitors the operation of the Rules of Evidence, have tried to fashion
rules governing the timing and manner of objections to scientific
evidence. The seventy-plus members of these highly respected
committees have broad experience and expertise in procedural and
evidentiary matters. Last fall the Advisory Committee, after
considering the work of the State Bar Committee, concluded that the
problem of how and when to object to scientific evidence is complex
and involves many difficult considerations. The Advisory Committee
recommended to this Court that any rules await a development of the
issues in appellate opinions carefully analyzing the various concerns.
That counsel seemed sound at the time, but today’s confusing opinion
makes the alternative of a rules solution far more appealing.
In simply mandating an objection before or during trial, the Court
appears oblivious to the considerations its advisory committees
believed to be complex and difficult. The Court’s analysis is really
confined to a single thought: parties should not be “ambushed”. That
relatively innocuous proposition simply cannot support the addition
to our procedural jurisprudence of a vague and universal duty to object
to scientific evidence before or during trial.
A-43
Maritime Overseas’ challenge to Ellis’s scientific evidence is valid.
Although Ellis’s experts testified that Ellis’s exposure to diazinon caused
neurotoxicity, there was no-basis for their opinions in any scientific
literature or experimentation. The experts reviewed all the literature
regarding neurotoxicity from exposure to pesticides in general and
organophophates in particular; none was omitted. Nowhere in
the literature is there any demonstration that diazinon causes
neurotoxicity.
Ellis’s position is that diazinon is an organophosphate, some
organophosphates cause neurotoxicity (although some do not), and
therefore diazinon causes neurotoxicity. The logical fallacy in this
syllogism is apparent. The record establishes that no scientific evidence
exists for concluding that diazinon is among the organophosphates
that causes neurotoxicity or among those that do not. There is simply
no way to tell.
In Havner, plaintiffs offered extensive epidemiological evidence
showing a relationship between Bendectin and birth defects, but the
relationship was never shown to be statistically significant. We held
that that was no evidence to support a finding that Bendectin causes
birth defects. The evidence in the present case is even weaker than
the evidence in Havner. Here there is no evidence at all, other
than Ellis's experts’ bare opinions, showing a relationship between
diazinon exposure and neurotoxicity. Moreover, all physical medical
evidence —electroencephalograms, peripheral nerve tests, an MRI,
and a CAT scan—have shown Ellis to be in normal health, aside from
problems relating to obesity, high blood pressure, smoking, and
alcohol dependency. Under our precedents, the experts’ unsupported
opinions cannot provide a basis for a judgment against Maritime
Overseas.
** * * *
Because there is no basis for Ellis’s experts’ opinions that his
exposure to diazinon caused him to suffer from neurotoxicity,
those opinions were not probative evidence and should not have
been considered by the court of appeals in assessing the factual
A-44
sufficiency of the evidence of causation of Ellis'’s damages. Accordingly,
+-would-teverse the court of appeals’ judgment and remand the case
to that court to redetermine the factual sufficiency of the evidence.
NATHAN L. HECHT
Justice
OPINION DELIVERED: April 16, 1998
*, eee Le iaatheaie ae
B-1
APPENDIX B
IN THE SUPREME COURT OF TEXAS
No. 94-1057
MARITIME OVERSEAS CORPORATION,
Petitioner,
Vv.
RICHARD ELLIS,
Respondent.
On Application for Writ of Error
to the Court of Appeals
for the Fourteenth District of Texas
JUDGMENT
THE SUPREME COURT OF TEXAS, having heard this cause
on writ of error to the Court of Appeals for the Fourteenth District,
and having considered the appellate record and the argument of
counsel, is of the opinion that the judgment of the court of appeals
should be affirmed.
IT IS THERE ORDERED, in accordance with the Court's
opinion, that:
1) The judgment of the court of appeals is afffirmed;
2) Richard Ellis shall recover from Maritime Overseas
Corporation, which shall pay the costs in this
Court and in the court of appeals.
B-2
A copy of this judgment and of the Court's opinion is certified
to the Court of Appeals for the Fourteenth District and to the District
Court of Harris County, Texas, for observance.
(Opinion by Justice Baker, joined by Justice Enoch,
Justice Spector, Justice Abbott, and Justice Hankinson)
(Concurring opinion by Justice Gonzalez,
joined by Justice Abbott in Part III only)
(Dissenting opinion by Justice Hecht,
joined by Chief Justice Phillips)
(Justice Owen not sitting)
April 16, 1998
AO IOR I aK KOK
j
4
:
Ҥ
7
3
;
C-]
APPENDIX C
RE: Case Number 94-1057
Court of Appeals Number: C14-91-00795-CV
Trial Court Number: 83-42067
Style: MARITIME OVERSEAS CORPORATION
v
RICHARD ELLIS
Dear Counsel:
Today, the Supreme Court of Texas overruled the motion for
rehearing, as supplemented, in the above referenced cause. Justice
Owen not sitting.
Sincerely,
John T. Adams, Clerk
by Courtland Crocker
Deputy
Filed July 3, 1998
cc The Honorable Olen Underwood
D-1
APPENDIX D
RE: Case Number 94-1057 J
Style: MARITIME OVERSEAS CORPORATION
v.
RICHARD ELLIS
From Harris County, Fourteenth District
Dear Counsel:
Today, the Supreme Court of Texas (Justice Owen not sitting)
granted the motion for rehearing of application for writ of error in
the above styled cause. The order of this Court of 15 November, 1996,
denying application for writ of error is withdrawn, and the application
for writ of error is granted on Points of Error Nos. 1 & 2. (Dissenting
opinion on granting of motion for rehearing by Justice Cornyn,’ joined
by Justice Spector, Justice Baker, and Justice Abbott) The motion to
expedite denial of motion for rehearing is dismissed as moot. This
cause has been set for submission and oral argument on Wednesday,
5 November, 1997... .
Sincerely,
John T. Adams, Clerk
by Courtland Crocker
Deputy
Filed July 9, 1997
1 Justice Cornyn dissented on grounds relating to judicial
administration as opposed to any substantive issue in the application.
E-1
APPENDIX E
RE: Case Number 94-1057
Style: MARITIME OVERSEAS CORPORATION
V.
RICHARD ELLIS
Dear Counsel:
Today, the Supreme Court of Texas denied the above referenced
application for writ of error, as supplemented, with the notation “Writ
Denied”. Motion to expedite was dismissed as moot. Dissenting
Opinion by Justice Hecht on denial of application for writ of error.
(Justice Owen not sitting.)
Sincerely,
John T. Adams, Clerk
by Michael C. Murphey, Deputy
Filed Nov. 15, 1996
E-2
IN THE SUPREME COURT OF TEXAS
No. 94-1057
MARITIME OVERSEAS CORPORATION, PETITIONER
V.
RICHARD ELLIs, RESPONDENT
ON APPLICATION FOR WRIT OF ERROR TO THE
Court OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
Opinion Dissenting From Denial of
Application for Writ of Error
Justiceé HECHT, dissenting from the denial of application for writ
of error.
Justice OWEN did not participate in the decision.
By any standard I know of, the application for writ of error in
this case should be granted. Consider this:
e The size of the damage award — over $8.5 million—certainly makes
the case significant to the parties, a seaman and his employer.
¢ The central legal issue—what evidence is necessary to support
lilability in a toxic tort case—is unquestionably important to our
jurisprudence. Each year in this state the issue recurs in hundreds
of cases involving millions of dollars. Yet the issue has not been
authoritatively addressed; it is, to quote the court of appeals, “one
of first impression” in this state. 886 S.W.2d 780, 782 (Tex. App.—
Houston [4th Dist.} 1994) (en banc).
e The issue is debated nationally by courts and commentators. See,
e.g., Daubert v. Merrell Dow, Inc., _. U.S. ___., 113 S. Ct.
2786, 2798, 125 L. Ed. 2d 469, ___ (1993): Brock v. Merrell
Dow Pharmaceuticals, Inc. 874 F.2d 307, 310 (Sth Cir.), modified
E-3
on reh’g, 884 F.2d 166 (Sth Cir. 1989), cert. denied, 494 U.S. 1046,
110 S. Ct. ISU, 108 L. Ed. 2d 646 (1990); Christopherson y, Allied-
Signal Corp., 939 F.2d 1106 (Sth Cir. 1991), cert. denied, ___
U.S. ___, 112 S. Ct. 1280, 117 L. Ed. 2d 506 (1992); PETER W.
HuBeR, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991).
¢ The issue has engendered dissents and conflicts in the courts of
appeals. The appellate court panel’s 2-1 opinion in this case was
reversed by the court en banc, 5-2. 886 S.W.2d 780. The court noted
that its decision conflicted with a unanimous panel opinion of
another court. /d. at 785-786. The latter opinion was itself reversed
by the other court en banc, 5-1. Merrell Dow Pharmaceuticals, Inc.
v. Havner, 907 SW.2d 535, 548-564 (Tex. App.—Corpus Christi
1994)(en banc), revg 907 S.W.2d 535, 539-548 (panel opinion).
¢ This Court has granted the application for writ of error in Havner.
which, as noted, involves a similar issue. 39 Tex. Sup. Cr. J. 237,
No. 95-1036 (Feb. 9, 1996). That case was argued earlier this year
and remains before us pending decision. If nothing else, the Court
should hold the present case for the decision in Havner.
¢ The case has been well briefed by very capable counsel. Plaintiff
is represented by John M. O’Quinn of O’Quinn, Kerensky,
McAninch & Laminack; Joe H. Reynolds of Andrews & Kurth:
and Eugene A. Cook and Gael Plauché of Bracewell & Patterson.
(Mr. Reynolds’ association with the case for the first time shortly
before Justice Owen's departure from Andrews & Kurth to assume
her seat on this Court disqualifies her from participating in the
consideration of the case.) Defendant is represented by Linda
Broocks of Ogden, Gibson, White & Broocks; Thomas B. Greene.
Ill of Ware, Snow, Fogel, Jackson & Greene; and Joe R. Greenhill,
Jane Nenninger Bland, Marc A. Antonetti, and Margaret Niver
McGann of Baker & Botts.
The only relevant consideration omitted from this list is whether
the court of appeals’ decision was incorrect. I am inclined to think
it was, as I shall explain momentarily, although I would not want to
make that decision without the benefit of argument and plenary
consideration of the case. But even if the court of appeals were
correct—a matter that at very least is in some doubt, as shown by
the dissents in the court of appeals—that factor alone could not
outweigh the others. We almost always hear cases as significant as
E-4
this one irrespective of whether the lower court's decision was wrong.
(Take for example Maple Run at Austin Municipal Utility District v.
Monaghan, ___. S W.2d ____. (Tex. 1996), decided within the past
month, in which the Court unanimously affirmed the district court's
decision on direct appeal. Or take Continental Airlines, Inc. v. Kiefer,
920 S.W.2d 274 (Tex. 1996), in which the Court unanimously affirmed
the court of appeals’ judgment.)
The present case is, in so many words, a Supreme Court case.
If another case in the past eight years so deserved to be heard and
yet was denied, I do not recall what it was. Why, then, are there not
the requisite four votes to grant the application for writ of error? I
cannot say, for two reasons. First, I simply do not know why some
of my colleagues have chosen not to vote to grant the application in
this case because they have not told me (they are not obliged to, of
course), and it would be inappropriate for me to speculate as to their
motives. Second, I cannot divulge the explanations some have offered
because the Code of Judicial Conduct makes the Court’s deliberations
secret. See Tex. Cope Jup. Conpuct, Canon 3, part B(11)(1996),
reprinted in Tex. Govt CopDE ANN. Title 2, subtitle G, app. B (Vernon
Supp. 1996) (“The discussions, votes, positions taken, and writings
of appellate judges and court personnel about causes are confidences
of the court and shall be revealed only through a court’s judgment,
a written opinion or in accordance with Supreme Court guidelines
for a court approved history project.”). Any Justice could explain his
or her position, just as I am doing here; none chooses to do so.
There are many reasons to vote to deny an application, and the
Memgeers of the Court often disagree. Most of the time my impression
is that any Justice would be able to give a public explanation for his
or her vote and would be willing to do so if the press of other cases were
not so great. Sometimes, however—and I say this very, very
reluctantly—the explanation for a vote would appear to lack much
substance in the light of public scrutiny. If our votes on applications
were always public, some would change. In this case, I believe the votes
would have been different had they been public. The confidentiality of
an appellate court's deliberations serves several good purposes; changing
the outcomes of cases and evading individual accountability for our
decisions are not among them. I am forced to conclude that the time
has come for the Court to make public its votes on applications.
E-5
The facts of the case are relatively simple. While cleaning
diazinon, a pesticide, out of a ship's pantry, seaman Richard Ellis
was exposed for five hours to 100-200 times the level of the chemical
considered safe. As a result, he experienced nausea, headaches, and
eye problems. When, after two days, the ship put into port, Ellis was
treated at a hospital and released. Ten months later Ellis sued his
employer, Maritime Overseas Corporation, alleging that he was
suffering delayed permanent neurotoxicity from his exposure to the
diazinon causing eye problems, trouble sleeping, depression, anxiety,
irritability, headaches, memory problems, high blood pressure, muscle
weakness, and gastrointestinal problems. Ellis claimed damages under
the Jones Act, 46 U.S.C App. § 688 (1994), and under general maritime
law for unseaworthines of the vessel on which he was injured. Maritime
Overseas does not dispute that Ellis suffered from acute overexposure
to diazinon; it denies, however, that Ellis suffered any permanent injury
from the exposure.
Nearly eight years after Ellis filed suit, the case was tried. (The
case was tried before Judge Ken Harrison about the time ethics charges
were raised concerning his conduct in other cases, which later forced
his resignation. Stephanie Asin, Harrison Resigns Amid Alleged Ethics
Violations — Commission Drops Charges, Inquiry, Hou. Curon.., July
10, 1992, at 25; Attorney Investigated Over Fees Approved by Civil
Court Judge, Hou. CHron., March 12, 1991, at 15.) The jury found
that Maritime Overseas’ negligence caused Ellis’ injury and assessed
$8,576,000 actual damages as follows:
Loss of past earning capacity $ 320,000
Loss of future earning capacity 1,890,000
Past medical expenses 38,000
Future medical expenses 850,000
Past pain and mental anguish 228,000
Future pain and mental anguish 4,000,000
Past physical impairment 250,000
Future physical impairment 1,000,000
The jury also awarded $1,000,000 exemplary damages for gross
negligence and another $1,000,000 exemplary damages for Maritime
Overseas’ willful refusal to pay Ellis maintenance and cure. The district
E-6
court rendered judment on the verdict, including prejudgment interest,
for a total of $12,447,728.
A divided panel of the court of appeals reversed and rendered
judgment for Maritime Overseas, holding that there was no evidence
to support Ellis’ claim that he suffered delayed neurotoxicity from
his exposure to diazinon. The panel consisted of Justices Robertson,
Junell, and Draughn. Justice Draughn noted his dissent without
opinion. The day after the decision was handed down, Justice Junell
retired and was replaced on the court by Justice Bowers. The court
then determined to rehear the case en banc. Chief Justice Brown
recused, and before a decision could issue, Justice Bowers died. The
seven Justices on the en banc court then divided 5-2, Justices Sears,
Cannon, Ellis, and Lee joining Justice Draughn, and Justice Murphy
joining Justice Robertson. The majority reversed the awards of
exemplary damages and prejudgment interest and affirmed the
remainder of the judgment for actual damages.
Maritime Overseas’s principal complaint on appeal is that while
Ellis’ overexposure to diazinon undoubtedly caused an acute reaction
for which he was successfully treated, there was no probative evidence
that diazinon did or even could cause his alleged delayed neurotoxicity.
This is not to say that there was no testimony at all that diazinon caused
the permanent injuries Ellis claimed: to the contrary, his expert
witnesses said so. Maritime Overseas contends, of course, that Ellis’
experts were wrong, and Maritime Overseas’ own experts so testified.
All this testimony is summarized in the court of appeals’ opinions.
886 S.W.2d at 787-791, 804-807. The credibility of the experts as
witnesses was a matter for the jury to decide and is not the subject
of Maritime Overseas’ no-evidence complaint on appeal. Rather,
Maritime Overseas’ argument is that Ellis’ experts’ testimony was not
probative, as is must be to support recovery of damages, because it
had no basis in fact.
Excluding the conflicting opinions of the trial experts, the
scientific evidence on the long-term effects of diazinon appears to
be essentially undisputed. Diazinon is an organophosphate. Exposure
to some organophosphates — malathion and parathion, in particular —
has been shown to cause long-term neurological effects in rats.
Exposure to other organophophates—e.g., adenine triphosphate
(ATP)—does not. ATP occurs naturally in the human body and is
E-7
needed for metabolism. There was no evidence at trial of any study
showing that diazinon causes delayed neurotoxicity in humans or any
other animals. But likewise, there was no evidence at trial of any study
showing the contrary, that diazinon does not cause delayed
neurotoxicity. Each opinion at trial concerning the long-term effects
of exposure to diazinon—from Ellis’ and Maritime Overseas’ experts,
alike —was based solely on the expert's qualifications and experience.
There is nothing approaching hard fact to support either side.
The burden of proof, of couse, is on the plaintiff. The central
issue in this appeal, then, is whether a plaintiff can prove tort liability
with an expert opinion based on nothing more than the witness’
education and experience. In some contexts, such evidence is Clearly
not probative. For example, no hypothesis science has disproved could
ever support a judgment. To take an extreme case, no recovery for
personal injuries suffered in sailing off the edge of the world will be
affirmed on appeal, no matter how many witnesses testified at trial
that the world is flat, or how educated and experienced they claimed
to be, or whether the jury chose to believe them. Even when science
can demonstrate only that a theory is most unlikely, I doubt that it
would be considered on appeal to be probative evidence in support
of recovery. In this case, had there been evidence at trial of studies
demonstrating as conclusively as science can that diazinon does not
cause delayed neurotoxicity, I doubt seriously a judgment for Ellis
would have survived appeal. The deficit in Ellis’ expert testimony
would be apparent.
The real difficulty is when science has not come to a firm conclusion.
On the one hand, the legal system does not require that claims resting
on scientific evidence fail if the evidence is anything but certain. On
the other hand, the law cannot impose liability based on evidence that
science itself would never take very seriously. Saying a thing does not
make it so, however well-degreed the speaker may be, and however
credible he may seem to a jury. There must be more to proof than this,
even in a Jones Act case, in which the burden of proof is very light.
I do not suggest that there is a ready solution to this quandary.
These issues divided the appellate court panel 2-1, then the court en
banc 5-2. The court expressed its disapproval of the panel opinion
of another court of appeals in Merrel! Dow Pharmaceuticals, Inc.
v. Havner, 907 SW.2d 535, 539-548 (Tex. App.—Corpus Christi 1994),
E-8
which involved a similar issue. The unanimous panel opinion in
Havner was later reversed by a divided en banc court 5-1, after one
justice on the panel had retired and another changed positions. We
granted application for writ of error. 39 Tex. Sup. Cr. J. 237, No.
95-1036 (Feb. 9, 1996). My point is simply that we need argument
as much in the present case as we do in Havner.
In my view, it verges on irresponsibility for this Court to refuse
to give plenary consideration to an issue of such consequence. Issues
that stir controversy in and among courts of appeals beg to be resolved,
particularly where, as here, the issue is crucial in hundreds of cases
litigated each year. Even if a majority of this Court believes that the
judgment of the court appeals was correct, it should say so and resolve
the controversy that will continue unabated until it does.
Today the court granted the applications for writ of error in three
cases, and the motions for leave to file petitions for writ of mandamus
in two cases. The issue in Worthy v. Collagen Corporation, No.
96-0675 (opinion below at 921 S.W.2d 711 (Tex. App.— Dallas 1995)),
is whether state law injury claims for collagen implants are preempted
by the Medical Device Amendments to the Federal Food, Drug, and
Cosmetic Act, 21 U.S.C.A. §§ 360c-360/ (West Supp. 1995), after
Medtronic, Inc. v. Lohr, __— U.S. , 116 S. Ct. 2240, 135 L.
Ed. 2d 700 (1996). The issue in Grain Dealers Mutual Insurance
Company v. McKee, No. 96-0022 (opinion below at 911 S.W.2d 775
(Tex. App.—San Antonio 1995)), is whether a corporation's automobile
liability insurance policy covers the president's daughter. In Williams
v. Olivo, No. 96-0044, (opinion below at 912 S.W.2d 319 (Tex. App.—
San Antonio 1995)), the issue is whether a landowner is liable for
injury suffered by a well-driller’s employee who fell on a drill pipe
thread protector. The issue in Aramark Uniform Services, Inc. v. Tysor.,
No. 96-0481 (mandamus; no published opinion below), is whether
a plaintiff is required to make a prima facie showing of entitlement
to exemplary damages before discovering evidence of defendant's net
worth. The issue in X.L. Insurance Company v. Mehaffy, No. 96-0583
(mandamus; opinion below at 918 S.W.2d 687 (Tex. App.— Beaumont
1996)), is whether one of plaintiff's insurers is required to arbitrate
a contribution claim against another of plaintiff's insurers if the only
agreement for arbitration is between plaintiff and the other insurer.
While the issues in these cases are significant, both to the parties
E-9
and to our jurisprudence, none of these cases is any more significant
than the present case. Five votes were required to hear the mandamus
cases; four votes were required to hear the others. Why were these
cases granted and the present case denied? I cannot answer, partly
because I do not know, and partly because I cannot say. I do not know
what has motivated all of my colleagues because a Justice is not
required to give a reason for refusing to vote for an application. What
some have said to me is confidential, although they are free to write
as I have. I do not intend in any way to impugn the motives of other
Justices. I have become convinced, however, that if each of the eight
Justices participating in the decision had been constrained to explain
his or her position publicly, the vote would have been different, and
the application would have been granted.
I am fully aware of the benefits of confidentiality in appellate
deliberations. Justice (now Chief Justice) William H. Rehnquist has
summarized them thus: “candor on the part of the participants, full
preparation [because no staff member is present to assist the justice
on the U.S. Supreme Court—but this Court usually has staff members
present], and a reasonable degree of harmony”. William H. Rehnquist,
Sunshine in the Third Branch, 16 WasxHBurRN L.J. 559, 567 (1977).
To these may be added the burden of offering explanations in more
cases when the Court already has plenty to do. Cuter Justice PHILLIPS
has written an eloquent defense of the Court’s practice not to announce
the votes on applications that are denied, and an argument for not
dissenting from such votes. Dallas Morning News y. Fifth Court of
Appeals, 842 SW.2d 655, 661-663 (TEx. 1992) (separate opinion).
While I have the utmost respect for CHIEF JUSTICE PHILLIPS’ views on
this subject, the premise of his arguments, I think, is that Justices
would not mind explaining their votes publicly if only the press of
other business would allow but should not be forced to do so at the
expense of opinions in cases granted. His arguments are valid only
as long as the premise is valid. If instead a public announcement of
the votes on applications that are denied would make Justices more
deliberate and accountable in their consideration of those applications,
then it seems to me the practice would do great good.
Surely none of the legitimate purposes of confidentiality justifies
voting one way if the vote is not announced publicly and another way
if it is. Confidentiality is intended to facilitate the work of an appellate
court, not determine the outcomes of cases. The decision in a case
E-10
ought never to turn on the fact that individual Justices are not obliged
to explain their positions.
There is much less need for confidentiality in the votes on
applications than in other aspects of the Court's deliberations. Appellate
judges must have an opportunity to explore ideas with each other before
taking public positions. I can scarcely imagine conducting our
deliberations in the same environment as the Legislature, for example.
But the need for candor in deliberations does not justify a lack of
accountability in our decisions. This idea is neither novel nor renegade.
Justice Willilam O. Douglas discussed his views on the subject in his
autobiography:
When I came on the Court [in 1939] Hugo Black talked
to me about his idea of having every vote on every case made
public. In cases taken and argued, the vote of each Justice was
eventually known. But in cases where appeals were dismissed
out of hand or certiorari denied, no votes were recorded publicly.
I thought his idea an excellent one and backed it when he
proposed to the conference that it be adopted. But the requisite
votes were not available then or subsequently. As a result he
and I started to note our dissents from denials of certiorari and
dismissal of appeal in important cases. Gradually the practice
spread to a few other Justices; and finally I ended up in the sixties
noting my vote in all cases where dismissals or denials were
contrary to my convictions.
WILLIAM O. DouGLas, Go East [sic} YOUNG MAN 452 (1974), quoted
in COMMISSION ON REVISION OF THE FEDERAL COURT APPELLATE SYSTEM,
STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR
CHANGE 113 n.2 (1975). Professor Karl Llewellyn has written:
It is as well to remember that neither secrecy of the court's
deliberation or later secrecy about what went on during that
deliberations rests in the nature of things or in any ordinance
of God. The roots of each are either practical or accidental, and
it is only either ignorance or tradition which makes us feel that
we have here something untouchable, a semiholy arcanum. We
tend to forget that in common law history the centuries of the
Year Books rest on a practice of conference, consultation, and
es eS ee ee
E-11
decision going on in open court before ears and eyes of counsel,
the bar at large, and the apprentices . . . . I personally suspect
that our own secrecy practice began when decision began to be
postponed beyond the close of argument, with an eye to avoiding
misapprehension and disappointment, and then to avoiding
financial speculation. And I suspect the carryover into later
secrecy about past deliberations to represent partly a closing of
ranks to protect the court from criticism or attack, and in later
years a similar closing to allow free discussion with no possible
repercussions in a re-election campaign. Thus the storied sanctity
of the conference room represents to me as pragmatic and
nonmystic a phase of appellate judicial work as the handling
of the docket. Our modern fetish of secrecy reminds me of the
shock German lawyers displayed at the notion of such dangerous
things as published dissenting opinions.
KarRL N. LLEWELLYN, THE COMMON Law TRADITION- DECIDING
APPEALS 324 n.308 (1960) (citation omitted), quoted in Arthur S.
Miller & D. S. Sastri, Secrecy and the Supreme Court: On the Need
for Piercing the Red Velour Curtain, 22 Burrao L. Rev. 799,
809-810 (1973).
I recognize the danger that publicly announcing votes on denied
applications could lead an unscrupulous Justice to posturing for ulterior
reasons. And I believe that CHieF Justice PHILLIPS’ concern that the
Court’s time and resources not become too strained is valid. I believe
that maintaining the confidentiality of votes on denied applications
is generally the preferable approach. But when it allows decisions
in cases which would not be made if public explanations were required,
confidentiality becomes indefensible.
I would grant the application for writ of error in this case, set
oral argument, and resolve the important issues presented after plenary
consideration of the merits. To ensure accountability in our decisions,
the Court should announce the votes to grant and those to deny in
this and all other cases in which relief is denied.
Nathan L. Hecht
Justice
OPINION DELIVERED: November 15, 1996
F-1
APPENDIX F
MARITIME OVERSEAS CORPORATION, APPELLANT,
v.
RICHARD ELLIS, APPELLEE.
No. C14-91-00795-CV.
Court of Appeals of Texas,
Houston (14th Dist.).
JuLy 28, 1994
CORRECTED MAJORITY OPINION ON
MOTION FOR REHEARING EN BANC
DRAUGHN, Justice.
In this Jones Act, general maritime case, the trial court after a
jury verdict entered judgment for personal injury damages to Richard
Ellis. Appellant, Maritime Overseas Corporation, in fifteen points
of error, raises legal and evidentiary challenges to the actual and
punitive damages awarded, and to the exclusion of certain evidence.
We affirm the judgment in part and reverse and render in part.
The central issue in this case is one of first impression because
it requires us to examine the issues of causation and damages as to
a toxic tort in the context of a Jones Act, General Maritime case tried
in state court. To assist us in our determination, we have been favored
with outstanding legal briefs, oral arguments, and developing case
law by both parties. From these and the record, it is clear that an
essential part of our appellate task, is to examine the standard for
reviewing the weight and credibility of expert witness testimony under
federal and state law. To properly review this and the other evidentiary
issues raised, we must first place them in the relevant factual setting.
Appellee was a steward’s assistant aboard the S/T OVERSEAS
ALASKA. On August 27, 1982, the chief steward, in order to combat
a roach problem, sprayed an industrial strength pesticide, Diazinon,
in the galley, pantry, and dry storeroom without diluting it at the proper
F-2
ratio of fifty parts water to one part concentrate. It was excessively
applied by the chief steward in a small enclosed pantry room which
had no ventilation and other nearby areas. The next morning, crew
members noticed a strong odor of insecticide, and when the captain
learned of this misapplication, he ordered the pantry and other areas
to be cleaned so as to remove the chemical. Appellee participated
in this clean-up for approximately five hours without being furnished
any inhalation protective gear, nor any gloves or other gear to protect
his hands, arms, or other skin areas from contact with the insecticide.
Expert testimony would later reflect that appellee was exposed to levels
of 100 to 200 times that considered safe for human exposure.
Subsequent to this intense exposure, appellee began experiencing
symptoms of nausea, headache, and eye problems. When the ship
reached port in New Orleans two days later, appellee recieved treatment
at the New Orleans General Hospital emergency room.
The hospital records showed a diagnosis of organophosphate
exposure with findings of myosis with pupil constriction, muscle
twitching and muscle weakness along with other symptoms. Diazinon
is a member of this family of chemical compounds known as
organophosphates, which have been shown to be toxic to humans in
varying degrees. The emergency room doctor testified later that on
a scale of 1 to 10, with 10 representing death and | as completely
normal, appellee suffered organophosphate exposure at a level of 6
to 7. During this initial visit to the hospital, appellee was given blood
tests which reflected that his blood and serum levels of an essential
enzyme, acetylcholinesterase, also called cholinesterase, was below
normal. Cholinesterase is essential to the human nervous system
because it enables messages to be transmitted normally from one nerve
to another. Appellee’s red blood cell level of cholinesterase was .40,
while the average range for men of appellee’s age is .44 to 1.09. His
serum level of cholinesterase was .53 or .54, while the average range
is 1.90 to 3.80. Later expert testimony concluded that these clinical
findings and other symptoms reflected neurotoxic nerve impairment
and damage from organophsphate poisoning. However, appellee was
not hospitalized at New Orleans General Hospital. He was given
medication for eye problems and advised to return for a follow-up
visit. He returned to his ship and continued to experience problems.
One month later he saw another doctor for continuing problems with
a te
F-3
his eyes. He continued to work as a crew member for the remainder
of 1982.
In June 1983, appellee filed suit against appellant under the Jones
Act, 46 U.S.C.A. § 688 (1988)' alleging gross negligence, and under
general maritime law alleging unseaworthiness. Appellee claimed that
he was suffering from delayed neurotoxic effects caused by the
exposure to Diazinon. Appellee’s deposition testimony and the
testimony regarding his medical records indicate that appellee
continued to suffer from eye problems, that he had trouble sleeping,
that he was depressed, anxious, and had memory problems, that he
had high blood pressure, and that he suffered gastrointestinal problems.
Appellee’s wife testified that appellee was depressed, more irritable,
had headaches, muscle weakness, memory problems, and had been
unable to hold a job.
The jury found in favor of appellee on both claims and awarded
appellee approximately $8,576,000.00 in acutal damages, $1 million
in punitive damages, and $1 million in exemplary damages for failure
to pay maintenance and cure. The trial court awarded appellee an
additional $1,871,728.00 in prejudgment interest, making a total of
approximately $12.6 million.
In point of error one, appellant contends the trial court erred in
denying appellant’s motion for a new trial because there is insufficient
evidence to support the jury finding that appellee suffered
$8,576,000.00 in actual damages. Appellant concedes that appellee
' The Jones Act provides:
Any seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for damages at
law, with the right of trial by jury, and in such actions all statutes
of the United States modifying or extending the common-law right
or remedy in cases of personal injury shall apply; and in cases of
death of any seaman as a result of any such personal injury [sic] the
personal representative of the seaman may maintain an action for
damages at law with the right of trial by jury, and in such action all
statues conferring or regulating the right of action for death in the
case of railway employees shall be applicable. . . .
F-4
suffered short-term effects from the exposure to Diazinon and, in
effect, that overexposure to Diazinon is toxic to humans and can cause
damage to the nervous system on some temporary basis. Thus,
appellant does not contest damages for the medical treatment appellee
received in New Orleans in 1982 or for the loss of two days of work.
Appellant does contest damages awarded for appellee's claim of delayed
and permanent neurotoxic damage on the ground that appellee’s expert
testimony was speculative and not based on reasonable medical
probability. Essentially, appellant’s attack is directed at the issue of
causation as to the delayed and permanent damage found by the jury
based on the circumstantial and expert evidence before them.
Before examining the expert evidence challenged by this point,
the parameters of our appellate review should be examined. It is
axiomatic that a trial court has wide discretion in granting or denying
a motion for new trial. Champion Intl Corp. v. Twelfth Court of
Appeals, 762 SW.2d 898, 899 (Tex. 1988). We must uphold the trial
court’s decision absent a showing of a manifest abuse of discretion.
Id. Because appellant contends there was factually insufficient evidence
to support the award of damages, we must consider, but not necessarily
detail in this opinion, all of the evidence both supporting and contrary
to the judgment. Plas-Tex., Inc. v. United States Steel Corp., 772
S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 SW.2d
629, 635 (Tex. 1986). We may set aside the verdict only if the evidence
is too weak to support the damages, or if the finding is so against
the overwhelming weight of the evidence that it is manifestly unjust
and clearly wrong. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.
1965). The applicable standard is determined by which party has the
burden of proof on the challenged issue. Raw Hide Oil & Gas v. Maxus
Exploration, 766 S.W.2d 264, 275 (Tex. App.—Amarillo 1988, writ
denied).
Appellant asserts that we must apply federal law to this case
because appellee’s causes of action are both federal causes of action.
The Texas supreme court has stated:
Where applicable and properly invoked, general maritime law
preempts state causes of action and remedies, consistent with
the long standing desire of Congress and the judiciary to achieve
uniformity in the exercise of admiralty jurisdiction.
F-5
Texaco Refining & Marketing v. Estate of Dau Van Tran, 808 S.W.2d
61, 64 (Tex. 1991), cert. denied, 112 S.Ct. 301 (1991). In Texaco,
the court was determining whether a plaintiff could recover mental
anguish damages, allowed under state law, but prohibited under general
maritime law. Jd. at 63. Because the court found that the plaintiff
had properly invoked remedies under general maritime law, the court
reversed the award of damages for mental anguish. /d. at 64. Although
we do not interpret this case to hold that a state court entertaining
a Jones Act or general maritime cause of action may only look to
federal case law for guidance.?
To the extent that state law and federal law do not materially
conflict or there is a vacuum in one or the other, both may be
considered. However, it is clear from our interpretation of the law,
that in questions of the sufficiency of the evidence in Jones Act cases,
we must be guided by federal law. Appellant and appellee agree that
substative federal law should apply, but not as to what the federal
standard is. To determine the Jones Act standard of review, we must
do so analogously via cases under the Federal Employers’ Liability
Act (FELA), 45 U.S.C. § 51 et seq., because the Jones Act specifically
incorporates the rights and remedies available to railway workers under
the FELA. It is firmly established that questions of sufficiency o
evidence for the jury in cases arising under the FELA in state courts
are to be determined by federal law, and a jury’s verdict on liability
issues in FELA cases, whether for the employer or employee, cannot
be reviewed on appeal using local “weight and sufficiency standards.”
Texas and Pacific Railway Co. v. Roberts, 481 S.W.2d 798, 800-801
(Tex. 1972). The test was stated in the landmark case of Rogers v.
Missouri Pacific R. Co., 77 S.Ct. 443 (1957):
Under this statute the test of a jury case is simply 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. (emphasis added)
2 Indeed, the Texas Supreme Court has recently held that federal
maritime law does not preempt the State’s limitations on its consent
to be sued. State Dept. of Highways v. Dopyera, 834 SW.2d 50, 53
(Tex.), cert. denied, ____. U.S. , 113 S.Ct. 636 (1992).
F-6
This specific language was cited with approval and was applied to
Jones Act cases in Ferguson v. Moore-McCormick Lines, Inc., 77 S.Ct.
457, 458, (1957). And the U.S. Supreme Court has repeatedly held
that the FELA and the Jones Act are co-equal statutes which are to
be interpreted and applied in the same way. Kernan v. American
Dredging Co., 355 U.S. 426, (1958). We accordingly followed this
line of reasoning as to causation in a Jones Act case in Brown & Root,
Inc. v. Wade, 510 S.W.2d 408, 410 (Tex.App.—Houston [14th Dist.]
1974, writ refd n.r.e.); see also Nobles v. Southern Pacific
Transportation Co. , 731 SW.2d 697 (Tex.App.— Houston [14th Dist. ]
1987, writ refd n.r.e.).
The plaintiffs negligence and causation burden in Jones Act cases
has been characterized as very light, even “featherweight.” Smith v.
Trans-World Drilling Co., 772 F.2d 157, 162 (Sth Cir. 1985); Rogers
v. Eagle Offshore Drilling Services, Inc. , 764 F.2d 300, 304-05 (Sth
Cir. 1985); Landry v. Oceanic Contractors, Inc. , 731 F.2d 299, 302
(Sth Cir. 1984); Chisholm v. Sabine Towing & Transportation, Co.,
Inc. , 679 F2d 60, 62 (Sth Cir. 1982) and Gilmore & Black, The Law
of Admiralty, p. 377 (2d Ed. 1975).
Appellant, however asserts that the federal standard of review
for causation involving a toxic chemical is that set out by the U.S.
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
113 S.Ct. 2786 (1993), and infers from that opinion a far stronger
standard for Jones Act cases. Daubert involved a federal diversity suit
originating in California. Plaintiffs, two minor children and their
parents, sued, alleging serious birth defects had been caused by the
mother’s prenatal use of Benedectin, a drug designed to prevent
morning sickness. The Supreme Court reversed a summary judgment
which had been entered against the Dauberts, and ruled that
(I) “general acceptance” is not a necessary precondition to admissibility
of scientific evidence under Federal Rules of Evidence, and (2) Federal
Rules assign to the trial judge the task of ensuring that expert testimony
is reliable and relevant. /d. at 2794-96. It put to rest the notion that
the so-called Frye rule superseded the Federal Rules of Evidence as
to the admissibility of expert opinion evidence. Jd. The Frye Rule,
in existence for 70 years, holds that expert opinion evidence must
have gained general acceptance in the field in which it belongs to be
admissible. Frye v. United States, 293 Fed. 1013, 1014 (DCC. Cir. 1923).
F-7
In essence, Daubert says that the only real judicial justification for
excluding expert testimony is for the federal trial courts to consider
the relevance and reliability of expert opinion evidence in a liberal
fashion as required by the Federal Rules of Evidence. Jd.
We find nothing in the Daubert case which eliminates the
“featherweight” burden of proof in a Jones Act case to establish
negligence and causation. And we find that in the case before us, unlike
Daubert, the queston of admissibility of the expert testimony is moot.
Appellant levied no objections to the admissibility of the expert
witnesses for appellee. Indeed, it did not object to their testimony
at any time until after it was presented to the jury. Instead, appellant
seizes on the scientific methodology language referred to in Daubert
and concludes that the expert evidence here is not supported by proper
scientific methodology and is therefore insufficient to support the
damages verdict in this case. /d. at 2796. We do not believe that an
injured seaman under the Jones Act precedents previously mentioned,
is now required to produce a favorable epidemiological study, which
is apparently the preferred scientific method for proof of toxic tort
damage, in order to prove causation. Brock v. Merrill [sic] Dow
Pharmaceuticals, Inc. , 874 F.2d 307 (Sth Cir. 1989). We find other
relevant distinctions between this case, Daubert, and other Benedictin
cases, which we will discuss later after a general review of the expert
evidence.
Appellants are even more expansive than the federal standards
of Daubert in their position. They assert that the expert evidence in
this case would be insufficient to sustain the verdict even under Texas
negligence and causation standards. They refer us to a recent sister
appellate court's opinion as supportive of their position. Merrell Dow
Pharmaceuticals Inc. v. Havner, 1994 WL 48814 (Tex.App.— Corpus
Christi 1994, no writ) (opinion not yet released for publication in the
permanent law reports). In Havner, a panel of the appellate court
reversed a judgment based on a jury verdict in a toxic tort negligence
case, also involving Benedictin. It applied what it perceived to be
the federal Daubert standard to Texas law. Indeed, it went beyond
Daubert—even beyond appellant’s position —and ruled that causation
conclusions expressed in terms of reasonable medical probability by
a qualified expert witness, amount to no evidence, not even a scintilla,
as a matter of law. Jd. Even appellants here concede by alleging only
F-8
insufficiency grounds “that there is conflicting evidence on the issue.”
Raw Hide, supra. Havner’s conclusion totally ignores the expert's
training, experience, knowledge, even treatment, test-tube analysis
and chemical composition analysis. Needless to say, we disagree with
that conclusion by a panel of our sister court. Our view of long standing
Texas precedents reveals that experts qualified on the basis of their
experience, training, treatment, and knowledge, who testify in terms
of reasonable medical probability not only constitute some evidence
of causation, but are frequently determinative of the issue. Lenger
v. Physician’s Gen. Hospital, 455 SW.2d 703 (Tex. 1970).
If Havner becomes binding precedent in its present form, we
presume that our instructions to the jury based on Tex. R. Clv. P.
226a will have to be eliminated or certainly modified. No longer could
we with judicial integrity instruct jurors that they “are the sole judges
of the credibility of the witnesses and the weight to be given to their
testimony.”
In any event, Texas law is generally consistent with federal law
regarding expert testimony on causation. To recover damages, a
plaintiff must prove by competent evidence a causal nexus between
the event sued upon and the injuries alleged. See Morgan y.
Compugraphic Corp., 675 SW.2d 729, 732 (Tex. 1984). “Causal
connection . . . must rest in reasonable probabilities; otherwise, the
inference that such actually did occur can be no more than speculation
and conjecture.” Insurance Co. of North America v. Myers, 411 S\W.2d
710, 713 (Tex. 1966); see also Gideon v. Johns-Manville Sales Corp.
761 F.2d 1129, 1137 (Sth Cir. 1985). Whether the evidence rests in
reasonable probabilities depends upon the substance of the expert's
testimony. Myers, 411 S.W.2d at 713. “Expert testimony that the event
is a possible cause of the condition cannot ordinarily be treated as
evidence of reasonable medical probability except when, in the absence
of other reasonable causal explanation, it becomes more likely than
not that the condition did result from the event.” Lenger, 455 S.W.2d
at 707. Here, all of appellee’s expert witnesses testified that appellee's
severe and lengthy exposure to Diazinon caused his prolonged neural
damage. They expressed their opinion on bases, ranging from
reasonable medical probability to without a doubt.
As supportive of its methodology postion, appellant directs us
to three fifth circuit cases. Brock v. Merrill [sic] Dow Pharmaceuticals,
F-9
Inc. 874 F.2d 307 (Sth Cir. 1989) (Brock I); Brock v. Merrill [sic]
Dow Pharmaceuticals, Inc. , 884 F.2d 166 (Sth Cir. 1989) (Brock ID);
Christophersen v. Allied Signal Corp., 914 F.2d 66 (Sth Cir.), reh.
en banc, 939 F.2d 1106 (Sth Cir. 1991), cert. denied, 112 S.Ct. 1280
(1992). The Fifth Circuit held that courts should “critically evaluate
the reasoning process by which the experts connect data to their
conclusions in order for courts to consistently and rationally resolve
the disputes before them.” Brock I, 874 F.2d at 310. In Brock, the Fifth
Circuit analyzed the types of evidence regarding causation typically
offered in a toxic tort case. The court noted that the most useful and
conclusive type of evidence is the epidemiological study which
attempts “to define a relationship between a disease and a factor
suspected of causing it... .” /d. at 3ll. Regarding such general
population studies, the court added:
To define that relationship [between a disease and its alleged
cause], the epidemiologist examines the general population,
comparing the incidence of the disease among those people
exposed to the factor in question to those not exposed. The
epidemiologist then uses statistical methods and reasoning to
allow her to draw a biological inference between the factor being
studied and the disease’s etiology.
Id. As the court also mentioned, epidemiological studies do not
necessarily exclude other possible causes for the same disease. /d.
Two epidemiological studies of the effects of the drug Benedictin were
admitted into evidence in Brock. See id. at 312. One study did not
support a statistically significant connection between Benedictin and
birth defects. Jd. The other study found a greater risk of birth defects,
but that the risk was also not statistically significant. Jd. Because the
plaintiffs did not present any statistically significant epidemiological
proof that the drug causes birth defects, the court held that the evidence
was insufficient to enable a trier of fact to make a reasonable inference
as to causation.? See id. at 315; Brock II, 884 F.2d at 167.
3 In Brock I, the Fifth Circuit found “the lack of conclusive
epidemiological proof to be fatal to the Brock’s case.” 874 F.2d at 313.
F-10
In a later case, the Fifth Circuit again addressed questions about
an expert’s testimony regarding causation in a toxic tort case. See
Christophersen, supra. In Christophersen, the trial court had excluded
an expert's opinion that exposure to certain chemicals at a plant caused
cancer. /d. at 1109. In determining whether the trial court erred in
excluding this testimony, the Fifth Circuit set forth three threshold
requirements for the admissibility of expert testimony: (1) whether
the witness is qualified to express an expert opinion on the topic at
issue, (2) whether the data upon which the expert relies are of the
same type other experts in the field reasonably rely upon in forming
their opinions, and (3) whether in reaching his conclusion, the expert
used a “well-founded methodology or mode of reasoning, one
‘sufficiently established to have gained general acceptance in the
particular field in which it belongs’.” /d. at 1110-11. Even if the
testimony meets these three requirements, it may still be excluded
if the testimony’s “potential for unfair prejudice substantially outweighs
its probative value.” /d. at 1110; see also Fep. R. Evin. 403.
The trial court in Christophersen had criticized the expert's testimony
on the grounds that the facts and data underlying the opinion were
inaccurate and incomplete and that the expert offered no scientific
methodology to support his conclusion. /d. at 1113-15. In reviewing
these criticisms, the Fifth Circuit first found that the expert over-
estimated the duration of the decedent's exposure to certain chemicals
On rehearing, the court changed this sentence and others indicating
a requirement of conclusive epidemiological studies to a requirement
of “statistically significant epidemiological proof.” Brock II, 884 F.2d
at 167. But the realistic conclusion in the opinion puts great weight
on epidemiological studies as the premiere type of proof to establish
Causation in toxic tort cases. For an opposing and somewhat critical
view of Brock, as well as an excellent review of scientific
methodologies including epidemiological studies and their weaknesses,
see DeLuca v. Merrell Dow Pharmaceuticals, Inc. 911 F.2d 941, 946-52
(3rd Cir. 1990). Also see K.J. Rothman, “Modern Epidemiology”
(1986), which places less weight on significance testing such as
epidemiological studies.
F-11
and had no accurate data regarding the chemical composition of the
fumes in the plant where the alleged exposure occurred. /d. at l113.
Thus, the court agreed that the trial court could properly reject expert
opinions founded on critical facts that are untrustworthy. /d. at 1114.
The expert in question also testified that the kind of evidence most
often used to establish causation are epidemiological studies, animal
testing, and in vitro testing. Id. at 1115. Despite his testimony regarding
the main methodologies, this expert offered no methodology to support
his conclusion that the types of chemicals used at the plant were
associated with the form of cancer found in the decedent. Jd. Because
the expert offered no well-founded methodolgy to support his opinion
regarding causation, the Fifth Circuit concluded that the expert's
opinion was no more than a scientific hunch and was inadequate to
support a judgment in favor of the plaintiff. Jd.
Brock and Christophersen both emphasize the importance of
epidemiological studies to establish causation in federal toxic tort cases.
See Brock I, 874 F.2d at 313; Christophersen, 939 F.2d at IIIS.
Furthermore, both cases take the position that expert opinions
unsupported by some type of well-founded scientific reasoning or
methodology constitute mere speculation, insufficient to support a
judgment. See Brock I, 874 F.2d at 315; Christophersen, 939 F.2d
at 1115. Daubert has now closed the field and given federal trial courts
some “gatekeeping” responsibilities in determining the admissibility
of expert testimony. In dicta it gives support to some type of scientific
methodology approach to evaluate the reliability of scientifc evidence.
Daubert, 113 S.Ct. at 2797.
Appellant contends the conclusions of appellee’s experts amounted
to speculaton because they were unsupported by scientific
epidemiological studies or other unnamed, unproved well-founded
methodologies establishing a link between Diazinon exposure and
delayed permanent neurotoxic damage; that Daubert now requires a
well-founded scientific methodology in order to establish causation
in all tort cases involving poisonous chemicals. Texas courts, however,
with the exception of the Havner case by the Corpus Christi court,
have not adopted this approach.
Turning to the evidence in this case, we find that appellee offered
the testimony of several expert witnesses, four of whom were medical
doctors who examined and treated him. One non-treating expert was
ay Ste Sige cn pb 0
NaS Lac wel eee ie ot eee a 0 a ir ee ASS
F-12
Dr. Edward Ezrailson, who was qualified without objection as an
expert witness. Dr. Ezrailson has a Ph.D. in biochemistry, had studied
the subject of toxicology, how poison affects the health of human
beings. He had done advanced studies in pharmacology, completed
his first postdoctoral fellowship at Baylor College of Medicine in its
Pharmacology Department. Later, he completed a second postdoctoral
study at Baylor in the subjects of molecular pharmacology and
cellobiose physics; the latter, involving the study of how nerve cells
communicate and electrical impulses are sent from cell to cell. He
joined the faculty at Baylor, was awarded and completed a study grant
for the Environmental Protection Agency on the toxic effect of
organophosphates on lab animals.
He testified that he was familiar with the chemical makeup and
toxicology of Diazinon and that it had known poisonous properties.
He discussed his extensive review of the available scientific literature
on the subject of organophosphates.¢ He testified in detail about how
organophosphates like Diazinon attack the nervous system and can
be deadly. He testified in great detail about how human overexposure
to organophosphates results in neurotoxic damage. He explained how
the inhalation of an organophosphate causes the inactivation of
acetylcholinesterase, an enzyme necessary for the transmission of
nerve signals from one nerve pathway to another. He explained that
such inhalation can temporarily destroy the enzyme, and thereby cause
a continuous disruptive nerve signal. This causes such symptoms as
muscle cramps and chest pains, among others. He also stated that
such inhalation can also cause the enzyme to become neurotoxic with
the ultimate result that it kills nerve cells, and that it can have a delayed
neurotoxic effect that can go for years and years, and as in this case,
even a lifetime.
‘ Dr. Ezrailson’s testimony referenced the following articles:
(I) “Sequelae of Acute Organophosphate Poisoning” by Dr. I.R.
Tabershaw, which concluded that exposure to certain organophosphates
can result in delayed symptoms (did not list diazinon as one of the
organophosphates studied); (2) “Delayed Neurotoxicity and Other
Consequences of Organophosphates Esterase,” by Ronald Baron, not
admitted into evidence, noting that certain organophosphates have
F-13
More specifically, Dr. Ezrailson reviewed the ship logs, medical
records, and deposition testimony in this case concerning appellee’s
Diazinon exposure. He also reviewed the Material Safety Data Sheet
required by federal law from the manufacturers of Diazinon to alert
users to the dangers of Diazinon exposure; from these he concluded
that Richard Ellis had suffered an exposure to Diazinon in an enclosed
space that was 100 to 200 times that considered safe for humans. He
reviewed the symptoms which the Material Safety Data Sheet listed
for overexposure to Diazinon; these were headaches, blurred vision,
nervousness, weakness, nausea, cramps, respiratory difficulty, muscle
twitches, convulsions, and loss of reflexes. Most of these symptoms
and others were initially or later exhibited by Ellis. He also reviewed
the laboratory findings after the exposure which reflected below normal
levels of cholinesterase in appellee’s blood cells and blood plasma.
These were further confirmation of his diagnosis of a severe exposure.
been shown to cause a delayed neurotoxic effect, but that this
neuropathy is always proceeded by a period of approximately 7-14 days
(article did not mention diazinon); (3) “Correlations Between Recovery
Rate of Neurotoxic Esterases and Sensitivity of the Organic and
Phosphate Induced Delayed Neurotoxicity, by Carrington, not admitted
into evidence but does not even mention diazinon; (4) “Long Term
Effects of the Organophosphate Sarin on EEG in Monkeys and
Humans,” by Duffey and Burchfiel, not admitted into evidence, stating
that many, but not all organophosphates have been found to cause
delayed neurotoxicity; (5) two articles by Finklestein entitled, “Brain
Acetylcholinesterase After Acute Parathion Poisoning,” and “CNS
Involvement in Acute Organophosphate Poisoning: Specific Pattern
of Toxicity, Clinial Correlates, and Antidotal Treatment; both of which
concerned parathion and neither were admitted into evidence but does
not consider or discuss diazinon; (6) “Anxiety Associated with
Exposure to Organophosphate Compounds,” by Levin, not admitted
into evidence, which concerned effects on farm workers who received
chronic exposure to organophosphates and found no relationship
between exposure and depression; (7) “Behavioral Effects of
Organophosphate Pesticides in Men” by Levin and Midski, not
admitted into evidence; (8) “Spatial Memory Impairment and Central
F-14
Based on his education, training, experience, extensive review
of scientific literature, and the detailed analysis of the medical records
and facts of this case, Dr. Ezrailson concluded that in reasonable
probability Richard Ellis had suffered permanent injury to his nervous
system caused by his severe and prolonged exposure to Diazinon.
Another expert witness for appellee was Dr. Alfred R. Johnson,
a Doctor of Osteopathy, who works at the Environmental Health Center
of Dallas, Inc. This center provides health care to the public,
emphasizing the health effect and treatment of environmental exposure.
Dr. Johnson testified that he has treated appellee and other patients
suffering from exposure to Diazinon or other similar chemicals. Dr.
Johnson's diagnosis for Richard Ellis was “organophosphate toxic
exposure with relating damage in the form of delayed toxicity reaction
and permanent nerve damage.” Dr. Johnson testified that exposure
to Diazinon can cause delayed central nervous system symptoms, and
Muscarinic Receptor Loss Following Prolonged Treatment with
Organophosphate” by McDonald, not admitted into evidence, which
studied the effects following daily exposure to two insecticides, not
including diazinon, over a fourteen-day period; (9) “Delayed
Neurotoxic Effects of some Organophosphorous Compounds,” by
Johnson, not admitted into evidence, delayed neurotoxicity manifests
itself 7-14 days after exposure but not all organophosphates induce
delayed neurotoxicity; (10) “Evidence of Necrosis in Human Intercostal
Muscles,” by Wecker, Mrak, and Dettbarn, not admitted to evidence,
which concerned a study of a man who received a fatal dose of
malathion and diazinon but did not link diazinon to delayed
neurotoxicity; (Il) “Fatal Diazinon Poisoning in Man,” by Hendricks,
not admitted into evidence, which concerned a person who committed
suicide by ingesting diazinon but did not link diazinon with delayed
neurotoxicity; (12) “Central Actions of Organophosphate Agents,” by
Karczmar, not admitted into evidence, which studied the mental effects
of exposure to certain organophosphates, not including diazinon;
(13) “Organophosphate Polyneuropathy,” by Lotty, not admitted into
evidence, that concluded symptoms of organophosphate induced
delayed neurotoxicity usually begin one to three weeks after acute
exposure and lists six chemicals that cause delayed neurotoxicity but
does not list diazinon as one of those included in the study.
F-15
that the length of time before such symptoms appear, can vary with
the individual from a couple of weeks to a few months. Dr. Johnson
testified that, in his opinion, based upon reasonable medical
probability, appellee's current problems were caused by the August
1982 exposure to Diazinon. Dr. Johnson based this diagnosis on his
examination of appellee and on a review of appellee’s medical records
showing a prolonged exposure to Diazinon and depressed levels of
cholinesterase. Dr. Johnson testified that he was familiar with the
literature regarding organophosphate poisoning, but he could not recall
any studies dealing only with Diazinon and the long-term effects of
Diazinon exposure on humans.
Appellee also called Dr. Francis J. Waickman as an expert witness.
Dr. Waickman is board certified in clinical immunology, allergy,
environmental medicine, utilization review and quality assurance, and
pediatrics. This latter, his speciality, which initially prompted him
to seek further expertise in the other fields [sic]. He also has taken
post-graduate courses in many areas, including toxicology, allergy,
and clinical immunology, He also evaluates and treats people who
have chemical sensitivities and who have been poisoned by exposure
to organophosphate pesticides. He testified that from his examination
of Richard Ellis, he found central nervous system problems, including
loss of memory, slow verbal responses, and diminished reasoning and
recall, less than expected from a man of Ellis’ age and education.
Waickman also listed symptoms of muscle weakness and emotional
instability. Dr. Waickman discussed extensively
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.