# Appendix — Maritime Overseas Corp. v. Ellis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1017

## 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)

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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.

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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).

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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

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‘ 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

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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

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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

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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

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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

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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

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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

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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:

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[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

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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.

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Even if expert testimony rests upon a well-founded methodology,
it will nevertheless be insufficient to support a finding of causation
if the studies or tests fail to show a statistically significant relationship
between exposure to the substance and the kind of injury alleged.
See Brock I, 874 F.2d at 315; Brock II, 884 F.2d at 167. Although
the studies relied upon by appellee's experts support a conclusion that
certain pesticides falling within the organophosphate classification
can cause delayed neurotoxicity, these studies do not establish any
relationship, statistically significant or otherwise, between diazinon

5 Comstock specifically noted that the article entitled “Poisoning Due
to Organophosphate Insecticides,” (author unknown) concluded that
diazinon, as well as certain other insecticides, did not produce
neuropathy.

F-49

and delayed neurotoxicity. Absent a well-founded scientific
methodology showing some connection between exposure to diazinon
and the kind of injuries alleged by appellee, the conclusions of
appellee's experts regarding causation were speculative and insufficient
to enable the jury to make a reasonable inference as to causation.
See Brock I, 874 F.2d at 315; Brock II, 884 F.2d at 167. None of
appellees experts had ever seen or treated a single person with “delayed
neurotoxicity” due to diazinon poisoning. Despite over thirty years
of diazinon’s wide use, including use as a common household pesticide,
the appellee’s experts could not point to a single case history, animal
study or in vitro study—much less any epidemiological study on
humans —to link diazinon as a cause of delayed neurotoxicity. The
majority has not undertaken the review commanded by Daubert of
the “reasoning or methodology underlying the testimony” to assess
its scientific validity. Because there is no “scientific knowledge,” as
commanded by Daubert, concluding that diazinon causes delayed
neurotoxicity, appellee's damages should be limited to those resulting
from short-term exposure. Consequently, appellant's first point of error
should be sustained.

The majority dismiss appellant's complaints on the amounts of
damages awarded for past and future medical expenses, past and future
physical pain and mental anguish, and past and future physical
impairment with the bare conclusion that all the evidence has been
considered and we “find it sufficient to support the jury’s findings.”
I disagree.

The jury awarded $38,000 for past medical expenses and $850,000
for future medical expenses. In point of error 13, appellant sought
a new trial or a remittitur based upon insufficient evidence. I believe
appellant is entitled to a remittitur as to future medical expenses for
two reasons. First, there is insufficient evidence, as discussed in the
first point, that appellant’s injuries resulted from exposure to diazinon.
However, there is the further reason that the award of $850,000 is
excessive. Dr. Johnson, an osteopath, testified appellant’s future
medical expenses would probably be $600,000,® based upon a $10,000

6 Dr. Austin, the psychologist, estimated appellee's future psychological
treatment costs to be $250,000.

F-50

a year program of vitamin C injections, regular doctor visits, clean
living, and sauna-type therapy. This award is shockingly excessive.

The jury awarded $228,000 for past physical pain and mental
anguish and $4,000,000 for future physical pain and mental anguish.
In point of error 14, appellant sought a new trial or a remittitur based
upon insufficient evidence. In addition to the reasons discussed in
the first point, I believe appellant is entitled to a remittitur.

Appellee did not testify at trial. His mother testified that “at times
he feels better but has a lot of headaches and so much chest pain but
has times he has felt better for a short period.” Other than headaches
and chest pain, appellee complains of stomach aches, insomnia, muscle
aches and memory loss. This 4 million dollar award is shockingly
excessive. Further, appellant argues and I agree, the awards for physical
pain and suffering and for physical impairment (point of error 15)
are cumulative. These awards compensate appellee for an identical
injury. The only “physical impairment” that appellee can assert is the
impairment due to physical pain—aches and pains and nausea. In the
same vein, the only “suffering” appellee can assert is due to these
very same symptoms. This is not a case of an appellee suffering actual
physical damage or disfigurement, for there is no evidence of either
in the record. Thus, the injuries in this case — pain and suffering and
physical impairment—are indistinguishable, and to aware damages
for both permits a double recovery. I believe appellant is entitled to
a remittitur.

The jury awarded $250,000 for past physical impairment and
$1,000,000 for future physical impairment. In point of error IS appellant
sought a new trial or a remittitur because of insufficient evidence.

In addition to the reasons discussed in the first point of error,
there are additional reasons why appellant’s point is well-taken.
Appellee offered no evidence that he has suffered or will suffer actual
physical impairment. The only medical tests ever conducted on
appellee, including neurological tests such as EEG and peripheral
nerve tests, have been normal. The evidence offered—limited to
appellee’s description of his symptoms, and opinions that his verbal
responses are “slow,” and that he “looks older than his chronological
age,"—is insufficient to support an award for physical impairment.
To recover for past and future impairment

F-51

[the] injured party must sustain the burden of proving that the
effect of his physical impairment extends beyond any impediment
to his earning capacity and beyond any pain and suffering to
the extent that it produces a separate and distinct loss that is
substantial and for which he should be compensated.

Allen v. Whisenhunt, 603 S.W.2d 242, 243 (Tex.Civ. App.— Houston
[14th Dist.] 1981, writ dism’d) (emphasis added). In thiis case, Ellis
has not proved that the effect of his impairment extends beyond any
pain and suffering and loss of earning capacity. See also Valdez v.
Church's Fried Chicken, 683 F.Supp. 596, 615 (W.D. Tex. 1988) (no
recovery for physical manifestations — avoidance of stimuli, difficulty
sleeping, etc.—related to the mental anguish). I believe appellant, at
the very least, is entitled to a remittitur.

For all the reasons discussed, I respectfully dissent.

MURPHY, J., concurs in this opinion.

G-|

APPENDIX G

MARITIME OVERSEAS CORPORATION, APPELLANT,
Vv.

RICHARD ELLIS, APPELLEE.
No. C14-91-00795-CV.

Court of Appeals of Texas,
Houston (14th Dist.).

1992 Tex. App. Lexis 327

DECEMBER 31, 1992, FILED
OPINION BY: SAM ROBERTSON

Maritime Overseas Corporation appeals from a judgment rendered
in favor of appellee for over $12.6 million in damages. Appellant raises
fifteen points of error challenging sufficiency of the evidence
supporting the award of damages and challenging the amounts of the
awards of actual damages, the awards of punitive damages, and the
exclusion of certain evidence. Because we find insufficient evidence
to support the damages award, we reverse and remand.

Appellee was a steward’s assistant aboard the S/T OVERSEAS
ALASKA. On August 27, 1982, the chief steward sprayed undiluted
diazinon in the galley, pantry, and dry storeroom. The next morning,
crew members noticed a strong odor of insecticide and the captain
ordered cleaning of the sprayed areas. Appellee participated in the
clean-up for approximately five hours without any protective gear to
prevent inhalation or dermal contact. Subsequently, appellee began
complaining of a headache and eye irritation. When the ship reached
port in New Orleans two days later, appellee received treatment at
the New Orleans General Hospital emergency room.

Testimony indicated that exposure to organophosphates can lower
the levels of an enzyme called acetylcholinesterase, also called
cholinesterase, which is essential to the normal transmission of
messages from one nerve to another. Diazinon is an organophosphate.
Cholinesterase levels are measured by testing the red blood cells and

G-2

the blood serum. Blood tests performed at the emergency room
revealed that appellee’s level of cholinesterase was depressed.
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. Appellee’s serum
level of cholinesterase was .53 or .54, while the average range is 1.90
to 3.80. The examining physician, Dr. Velma Campbell, concluded
that appellee suffered organophosphate exposure but determined that
this exposure was not serious enough to hospitalize appellee or to
administer antidote medications. Appellee received medication for
eye irritation and was advised to return for a follow-up visit. Appellee
returned to work and served as a crew member for appellant for the
rest of that year.

In June 1983, appellee filed suit against appellant under 46
U.S.C.A. § 688 (the Jones Act) 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 is depressed, is more irritable,
has headaches, muscle weakness, memory problems, and has been
unable to hold a job.

The jury found in favor of appellee on both claims and awarded |
appellee approximately $12.6 million including $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.

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
suffered short-term effects from the exposure to diazinon. 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
neurotoxicity on the ground that appellee’s expert testimony was

G-3

speculative and not based on reasonable medical probability.

A trial court has wide discretion in granting a motion for a new
trial. Champion intl Corp. v. Twelfth Court of Appeals, 762 S.W.2d
898, 899 (Tex. 1988). We must uphold the trial court’s decision absent
a showing of a manifest abuse of discretion. /d. Because appellant
contends there was factually insufficient evidence to support the award
of damages, we must consider, weigh, and examine all of the evidence.
Plas-Tex, Inc. v. United States Steel Corp. , 772 SW.2d 442, 445 (Tex.
1989). We may set aside the verdict only if the evidence is too weak
to support the finding, 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 SW.2d 821, 823 (Tex. 1965).

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 longstanding desire of Congress and the judiciary to achieve
uniformity in the exercise of admiralty jurisdiction.

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. /d. 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,’ our review of the case law convinces
us that federal case law regarding evidence of causation should control
in this case.

1 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. 1992).

G-4

Generally, Texas law is 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 v. Compugraphic Corp. , 675
S.W.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.” /Jnsurance
Co. of North America v. Myers, 411 SW.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 v. Physician's Gen. Hosp., 455
S.W.2d 703, 706 (Tex. 1970).

Toxic tort cases such as this present juries with questions upon
which medical or scientific experts may disagree. See Brock v. Merrell
Dow Pharmaceuticals, Inc. , 874 F.2d 307, 309 (Sth Cir.), modified
on rehg 884 F.2d 167 (Sth Cir. 1989), cert. denied, 494 U.S. 1046
(1990) (hereinafter referred to as Brock I and Brock I/). Whether a
substance caused an injury is a scientific question that requires the
testimony of expert medical professionals. See Insurance Co. of North
America v. Myers, 411 SW.2d 710, 713 (Tex. 1966). An expert's
testimony “must be based upon ‘reasonable medical probability’, as
opposed to a mere ‘possibility’, since almost anything is ‘possible’
in the field of medicine.” Duff v. Yelin, 721 SW.2d 365, 370 (Tex.
App.— Houston [Ist Dist.] 1986), affd, 751 S.W.2d 175 (Tex. 1988).
Thus, if the proof consists of mere medical possibilities, it is
insufficient to establish a causal connection. Duff, 751 S.W.2d at 176.

Confronting a challenge to the evidence of causation in a toxic
tort case, 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

G-5

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 311. Regarding such 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 Bendectin were
admitted into evidence in Brock. See id. at 312. One study did not
support a causal connection between Bendectin and birth defects. /d.
The other study found a greater risk of birth defects, but that the risk
was 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.

In a later case, the Fifth Circuit again addressed questions about
an expert's testimony regarding causation in a toxic tort case. See
Christophersen v. Allied-Signal Corp. , 939 F.2d | 106 (Sth Cir. 1991),
cert. denied, 112 S. Ct. 1280 (1992). In Christophersen, the trial
court had excluded an expert's opinion that exposure to certain

2 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.
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.

G-6

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
outweights its probative value.” /d. at 1110. See also
Fep. R. Evin. 403.

The trial court in Christophersen had criticised 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
and had no accurate data regarding the chemical composition of the
fumes in the plant where the alleged exposure occurred. /d. at 1113.
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. /d. 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. /d. Because
the expert offered no well-founded methodology 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. /d.

Appellee contends that Christophersen has lessened the Brock
requirements for evidence supporting causation in toxic tort cases.
We disagree. Neither Brock nor Cahristophersen holds that
epidemiological studies are required to establish causation in toxic

G-7

tort cases: however, both cases note their importance. See Brock I,
874 F.2d at 313; Christophersen, 939 F.2d at 1115. Furthermore,
both cases indicate that expert opinions unsupported by some type
of well-founded scientific reasoning or methodology constitute mere
speculation, insufficient to support a judgment. See Brock 1, 874 F.2d
at 315; Christophersen, 939 F.2d at 115.

Based on the standards set forth in Brock and Christophersen,
appellant contends the conclusions of appellee's experts amounted to
speculation because they were unsupported by scientific studies or
other well-founded methodologies establishing a link between dizainon
exposure and delayed neurotoxicity. Our review of the evidence leads
us to agree. Appellee offered the testimony of four experts on the
issue of causation. Dr. Edward Ezrailson, who holds a Ph.D. in
biochemistry, testified that he has studied the effects of certain
organophosphates on humans, using animal tests, for the
Environmental Protection Agency. Dr. Ezrailson admitted that his EPA
study was of the effects of malathion and parathion on the skeletal
muscle protein metabolism in rats. No paper was published as a result
of this study. Based on the amount and duration of appellee's
exposure to diazinon, Dr. Ezrailson concluded that appellee's
symptoms were caused, in reasonable medical probability, by
this exposure.

On cross-examination, Dr. Ezrailson agreed that his research
involved a review of the scientific literature. He testified that he relied,
to some extent, upon the opinions of the authors writing the chapters
in a textbook entitled “Toxic Effect of Pesticides.” Dr. Ezrailson agreed
with a statement in this text that individual compounds within a similar
chemical class may range from extremely toxic to practically nontoxic.
He also agreed with the statement that red blood cell cholinesterase,
rather than that in blood plasma, provided a more accurate
reflection of the inhibition of acetylcholinesterase in the nerve cells.
Dr. Ezrailson testified that the average time for restoration of
acetylcholinesterase in a person with diazinon exposure was two weeks
to three months.

Dr. Ezrailson testified that he based his conclusion, at least in
part, on his review of the scientific literature. Although Dr. Ezrailson
testified about fourteen different scientific articles regarding the effects

G-8

of exposure to organophosvhates,* the record contains only two

3 Dr. Ezrailson’s testimony referenced the following articles: (1)
“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 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 Giazinon), (3) “Correlations Between Recovery Rate
of Neurotoxic Esterases and Sensitivity of the Organic and Phosphate
Induced Delayed Neurotoxicity,” by Carrington, not admitted into
evidence; (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
Finkelstein entitled, “Brain Acetylcholinesterase After Acute Parathion
Poisoning,” and “CNS Involvement in Acute Organophosphate
Poisoning: Specific Pattern of Toxicity, Clinical Correlates, and
Antidotal Treatment,” both of which concerned parathion and neither
were admitted into evidence; (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
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; (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

G-9

articles that were actually admitted into evidence.* Our review of the
testimony indicates that only two articles addressed the effects of
diazinon exnosure, and these concerned fatal ingestion or poisoning.
None of the articles concludes that diazinon causes delayed
neurotoxicity. Testimony about the conclusions of some of the articles
indicated that symptoms of delayed neurotoxicity caused by certain
organophosphates usually occur within one to three weeks after
exposure,

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 was “organophosphate toxic exposure with relating
damage in the form of delayed toxicity reaction and permanent nerve

a fatal dose of malathion and diazinon; (11) “Fatal Diazinon Poisoning
in Man,” by Hendricks, not admitted into evidence, which concerned
a person who committed suicide by ingesting diazinon; (12) “Central
Actions of Organophosphate Agents,” by Karczmar, not admitted into
evidence, which studied the mental effects of e~posure 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.

4 The two studies admitted into evidence include: (1) “Chronic
Neurological Sequelae of Acute Organophosphate Pesticide Poisoning,”
by Savage, Keefe, Mounce, Heaton, Lewis and Burcar, offered into
evidence by appellee which evaluated the latent neurological effects
of organophosphate poisoning on 100 patients, none of which had been
exposed to diazinon; and (_) “Pesticides & brain-function changes
in a controlled environment” by Rea, Butler, Laseter, and DeLeon,
offered into evidence by appellant, which studied whether
environmentally controlled conditions improve the symptoms of
patients who have been exposed to pesticides, other than diazinon.

G-10

damage.” Dr. Johnson testified that exposure to diazinon can cause
delayed central nervous system symptoms and 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 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'’s area of specialty is pediatrics, but he has taken
postgraduate courses in many areas, including allergy, toxicology, and
clinical immunology. He is board certified in pediatrics, allergy,
clinical immunology, utilization review and quality assurance, and
environmental medicine. Dr. Waickman evaluates and treats people
who have chemical sensitivities and who have been exposed to
pesticides. In his examination of appellee, Dr. Waickman found
symptoms of central nervous system involvement. Specifically, Dr.
Waickman found slow verbal responses and below normal reasoning
and recall. Based on his examination, Dr. Waickman testified that
‘appellee's problems are delayed neurotoxic effects from diazinon
exposure. Dr. Waickman testified that he is familiar with the scientific
literature regarding diazinon and organophosphates and he has no
doubts that these chemicals can cause long-term effects on human
beings.

Finally, appellee offered the testimony of Dr. Richard Austin,
a Clinical psychologist who has had experience treating people who
have been poisoned by various chemicals. Dr. Austin personally
examined and evaluated appellee, gave him a battery of psychological
tests, reviewed the medical records of doctors who had treated appellee,
elicited historical information from appellee's family and friends, and
reviewed scientific literature regarding organophosphate poisoning.
Dr. Austin concluded that appellee suffered nervous system damage
resulting in emotional problems caused by the chemical poisoning
in 1982. Dr. Austin was familiar with a study, admitted into evidence,

G-11

that was performed on behalf of the EPA by Drs. Savage, Keefe, and
others, entitled “Chronic Neurological Sequelae of Acute
Organophosphate Pesticide Poisoning.” This study involved testing
of individuals chronically exposed to a variety of pesticides, not
including diazinon. Dr. Austin agreed that appellee suffers from many
of the same impairments and exhibits similar test results to those
discussed in the literature resulting from organophosphate poisoning.
Dr. Austin testified that there are authoritative studies showing that
organophosphate poisoning can cause delayed neurotoxic effects. The
testimony regarding these studies indicated no conclusion that diazinon
causes delayed neurotoxicity.

Unlike the expert in Christophersen, the expert witnesses here
based their opinions on accurate underlying facts, such as estimation
of the duration of appellee's exposure to diazinon. Thus, we turn to
whether there was sufficient evidence supporting the experts’ testimony
that, in reasonable medical probability, diazinon caused the injuries
alleged by appellee. Brock and Christophersen require that an expert's
conclusions regarding causation rest upon a well-founded scientific
methodology. See Brock /, 874 F.2d at 315; Christophersen, 939 F.2d
at 1115. Appellee’s experts all testified that they based their conclusions
on past experience treating patients exposed to organophosphates
and/or on published scientific studies showing a connection between
exposure to organophosphates and delayed neurotoxicity. These experts
admitted, however, that none of the published studies documented
a connection between delayed neurotoxicity and exposure to diazinon.
Only one study referenced by appellee’s experts addressed diazinon
and this study concerned a fatal ingestion of the pesticide and not
whether a less than fatal exposure can cause delayed neurotoxicity.
Testimony also indicated that the effects of exposure to compounds
within a similar chemical class can vary widely.

Appellant presented the testimony of three doctors, Dr. Velma
Campbell, Dr. Eric Comstock, and Dr. Francisco Perez. Dr. Campbell
treated appellant in the emergency room at the New Orleans General
Hospital. Campbell testified that some pesticides can cause delayed
neurological symptoms, but that to her knowledge, diazinon is not
one of these.

Dr. Perez is a clinical psychologist specializing in neuropsychology
and behavioral medicine. Perez did not examine appellant, but

G-12

reviewed his medical and psychological records and reviewed the
literature regarding organophosphates. Perez testified that a worsening
of a patient's psychological condition is not a typical symptom caused
by exposure to diazinon. Perez concluded, based on his review of
the records and literature, that appellant’s symptoms are most likely
unrelated to the diazinon exposure.

Dr. Eric Comstock, a medical toxicologist, testified that he had
experience treating persons exposed to toxic substances, 80-100 of
which involved diazinon. Comstock also reviewed appellant’s medical
records and the literature about organophosphates, but did not examine
appellant. Comstock agreed that appellant initially exhibited mild acute
effects from the exposure, including eye irritation, slight weakness,
diarrhea, headaches, and vomiting, but based on his experience and
review of the records and literature, Comstock concluded that appellant
has suffered no delayed effects related to the diazinon exposure.

Comstock testified that diazinon is an “unrestricted use” pesticide,
which means that it does not cause or has not been shown to cause
severe, impairing long-term effects. Comstock noted that his personal
experience treating persons exposed to diazinon has not indicated that
diazinon causes delayed neurotoxicity. Furthermore, Comstock testified
that diazinon has been widely used by the public for many years and
that, it if caused delayed neurotoxicity, this would have been identified.
Finally, Comstock testified that none of the literature supports the
conclusion that diazinon causes delayed neurotoxicity, and that
there is literature concluding diazinon does not cause delayed
neurotoxicity.

Even if expert testimony rests upon a well-founded methodology,
it will nevertheless be insufficient to support a finding of causation
if the studies or tests fail to show a statistically significant relationship
between exposure to the substance and the kind of injury alleged.
See Brock I, 874 F.2d at 315; Brock II, 884 F.2d at 167. Although

> Comstock specifically noted that the article entitled “Poisoning Due
to Organophosphate Insecticides,” (author unknown) concluded that
diazinon, as well as certain other insecticides, did not produce

neuropathy.

G-13

the studies relied upon by appellee’s experts support a conclusion that
certain pesticides falling within the organophosphate classification
can cause delayed neurotoxicity, these studies do not establish any
relationship, statistically significant or otherwise, between diazinon
and delayed neurotoxicity. Absent a well-founded scientific
methodology showing some connection between exposure to diazinon
and the kind of injuries alleged by appellee, the conclusions of
appellee's experts regarding causation were speculative and insufficient
to enable the jury to make a reasonable inference as to causation.
See Brock !, 874 F.2d at 315; Brock II, 884 F.2d at 167. Consequently,
we sustain point of error one.

Having sustained this point of error, we need not address
appellant's other points complaining of alleged errors which are not
likely to arise on another trial. Appellee has filed a motion to strike
the affidavit of Cindy Colvin, the court reporter in the trial court,
and for further relief which relates to the argument under points of
error five and six. In view of our disposition of this appeal, we need
not rule on this motion.

We reverse the judgment and remand the cause for further
proceedings consistent with this opinion.

Sam Roberston
Justice

Judgment rendered and Opinion filed December 31, 1992.
Panel consists of Justices Junell, Robertson, and Draughn. [Justice
Draughn dissented without an opinion. ]

H-1

APPENDIX H

NO. 83-42067

RICHARD ELLIS 2 IN THE DISTRICT COURT OF
VS. : HARRIS COUNTY, TEXAS
§

MARITIME OVERSEAS CORP. 16STH JUDICIAL DISTRICT

JUDGMENT

BE IT REMEMERED that on the 19th day of March, 1991, came
on for trial the above entitled and numbered cause, after it had been
duly set for trial on said date with due notice to all parties, and
appeared Plaintiff, in person and with his attorneys of record and
appeared Defendant, a corporation by and through its corporate
representative and attorneys of zecord, all parties announced ready
for trial. Thereafter, a panel ot properly qualified jurors were inter-
viewed, and questioned by voir dire by the attorneys representing the
parties. Thereafter, the parties through their attorneys exercised their
peremptory challenges, and a jury of twelve properly qualified jurors
were duly selected and sworn in as the jury in this cause. Thereafter,
the parties through their attorneys made their opening statements.

Thereafter, Plaintiff presented his evidence until he rested. Defen-
dant presented its evidence until it rested. Thereafter, with the help
and participation of the attorneys, the Court prepared a written charge
with questions for the jury and thereafter permitted the attorneys to
make their objections to the charge. Thereafter, the Court read its
charge and questions in their entirety to the jury, and the parties were
then permitted to present and make jury argument by and through
their attorneys. Thereafter, the jurors were retired to deliberate their
verdict. Thereafter, on the 12th day of April, 1991 the jury returned
in open court and announced through its presiding juror, that the jury
had reached a unanimous verdict on each and all of the questions.
Thereafter, the Court read the jury’s verdict aloud in open court in
the presence of the jurors, the parties and their attorneys. No objec-
tion was made to the form or receipt of the verdict or to discharging
the jury. Thus, the Court did receive the verdict and order that it be

H-2

filed among the papers of the cause and then did discharge the jury.
Thereafter, upon written motion by Plaintiff, that a judgment be entered
in favor of Plaintiff, the Court conducted a hearing and heard argu-
ment of counsel as to the form of the judgment that should be entered.
In that regard, the Court considered the Plaintiff's request that the
judgment also include prejudgment interest. The Court did find and
determine that prejudgment interest should be awarded at the rate
approved by the Texas Supreme Court in the Cavnar decision on the
past damages only. The Court found no peculiar circumstances exist
to deny prejudgment interest. The evidence and findings support a
judgment in favor of Plaintiff under the Jones Act and doctrine of
unseaworthiness under the general maritime and admiralty law. Since
Plaintiff has the right and option to select the ground of recovery that
supports the greater recovery, the recovery granted to Plaintiff by this
judgment is based primarily upon the Jones Act and the general mar-
itime and admiralty law which authorizes Plaintiff to recover prejudg-
ment interest and also punitive damages in addition to actual damages.
If, for any reason, it is ever ruled or decided that Plaintiff is not enti-
tled to recever on this basis, this Court does additionally find and
rule that Plaintiff is enitlted to recover under the Jones Act. Addi-
tionally, the jury findings support a recovery to Plaintiff for main-
tenance and cure and punitive damages because of Defendant's
arbitrary and capricious failure to pay such maintenance and cure
benefits to Plaintiff. The parties stipulated that the rate of maintenance
would be $8.00 per day for the number of days since the Plaintiff
left the services of the ship. At the stipulated rate, the maintenance
presently owed to the Plaintiff would be $24,320.00. The amount
of medical expenses to date which would be owed to the Plaintiff under
the concept of “cure” is $38,000 as found by the jury for past medi-
cal expenses. The Court does grant the Plainiiff recovery for those
amounts plus the $1,000,000.00 in punitive damages the jury found
because of Defendant's arbitrary and capricious failure to pay those
benefits. However, in fashioning this Judgment, the Court does not
allow a double recovery regarding the monies for maintenance and
cure. It is, therefore,

ORDERED, ADJUDGED and DECREED that Plaintiff recover
of and from Defendant MARITIME OVERSEAS CORPORATION
the sum of $12,447,728.00 consisting of $10,576,000.00 in actual

H-3

and punitive damages plus $1,871,728 as prejudgment interest, cal-
culated at the rate of 10% compounded daily from the date of accrual
of damages in the past found by the jury. It is, further

ORDERED, ADJUDGED and DECREED that to said recover-
ies [sic] to be added postjudgment interest at the rate of 10% until
same is paid. It is, further,

ORDERED, ADJUDGED and DECREED that all costs of court
are taxed against Defendant MARITIME OVERSEAS CORPORA-
TION for which let execution issue if not timely paid. It is, further,

ORDERED, ADJUDGED and DECREED that Plaintiff is to have
the right to writs of execution and all other rights and remedies allowed
by law for the collection of judgment if this judgment be not timely
paid. It is, further,

ORDERED, ADJUDGED and DECREED that all other relief
not granted herein is denied such that this is a final judgment.

SIGNED this 29 [sic] day of April, 1991.

JUDGE PRESIDING

APPENDIX I

NO. 83-42067
RICHARD ELLIS § IN THE DISTRICT COURT OF
§
VS. § HARRIS COUNTY, TEXAS
§
MARITIME OVERSEAS CORP. 8 165TH JUDICIAL DISTRICT

BE IT REMEMBERED that on this day came on to be heard
Defendant's Motion for New Trial. The Court after considering same,
pleadings on file and argument of counsel is of the opinion that said
Motion should be denied. It is, therefore,

ORDERED that Defendant's Motion for New Trial is hereby
DENIED.

SIGNED this 17 day of July, 1991.

KEN HARRISON
JUDGE PRESIDING

J-1

APPENDIX J
STATUTES AND RULES INVOLVED
The Jones Act, 46 U.S.C. App. § 688(a):

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 action all statutes
of the United States modifying or extending the common-law right
or remedy in cases of personal injury to railway employees shall apply;
and in case of the death of any seaman as a result of any such personal
injury the personal representative of such seaman may maintain an
action for damages at law with the right of trial by jury, and in such
action all statutes of the United States conferring or regulating the
right of action for death in the case of railway employees shall be
applicable. Jurisdiction in such actions shall be under the court of
the district in which the defendant employer resides or in which his
principal office is located.

Federal Employers’ Liability Act, § 1, 45 U.S.C. § 51:

Every common carrier by railroad while engaging in commerce
between any of the several States or Territories, or between any of
the States and Territories, or between the District of Columbia and
any of the States or Territories, or between the District of Columbia
or any of the States or Territories and any foreign nation or nations,
shall be liable in damages to any person suffering injury while he
is employed Uy such carrier in such commerce, or, in case of the death
of such employee, or his or her personal representative, for the benefit
of the surviving widow or husband and children of such employee;
and, if none, then of such employee's parents; and, if none, then of
the next of kin dependent upon such employee, for such injury or
death resuiting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves, or other
equipment. .. .

J-2

Federal Rule of Evidence 702:
TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise.

Texas Rule of Civil Evidence 702:
TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion
or otherwise.

Federal Rule of Evidence 703:

BASES OF OPINION
TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be adi tissible
in evidence.

Texas Rule of Civil Evidence 703:

BASES OF OPINION
TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert

J-3

bases an opinion or inference may be those perceived by, reviewed
by, or made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not
be admissible in evidence.

K-1

APPENDIX K

Pages 1-6, 7-8, and 11-16 of Petitioner's Motion for a New Trial,
or in the Alternative, for Remittitur and Motion for Judgment
Notwithstanding the Verdict, filed in the 165th Judicial District Court
of Harris County, Texas (May 29, 1991):

{1} TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Maritime Overseas Corporation, Defendant, with
this its Motion for New Trial or, in the Alternative, for Remittitur,
and would show unto this Honorable Court the following:

This case was tried to a jury beginning March 18, 1991. On April
29, 1991, the Court entered a final judgment in this case.

Defendant would show that it is entitled to a new trial because
there is factually insufficient evidence to support the jury findings
on damages (Question No. 6), on gross negligence (Question No.
7), on exemplary damages (Question No. 9), on whether El! is reached
maximum medical cure (Question No. 10), on whether Defendant
acted arbitrarily or capriciously in failing to pay the required
maintenance or cure (Question No. 12), and on the imposition of
punitive [2] damages for failure to pay maintenance and cure (Question
No. 13). Furthermore, the jury findings on the above described issues
are against the great weight and preponderance of the evidence.
Defendant weuld furthermore show that it is entitled to a new trial
because the damages awarded (Questions No. 6, 9 and 13) are
excessive. In the alternative, and without waiving its Motion for New
Trial, Defendant would show that it is entitled to a remittitur.

K-2

Section I

THERE IS FACTUALLY INSUFFICIENT EVIDENCE TO

SUPPORT THE JURY’S AWARD OF ACTUAL DAMAGES,

AND SUCH AWARD IS AGAINST THE GREAT WEIGHT
AND PREPONDERANCE OF THE EVIDENCE

A. The Award is Based on Speculative Evidence

Defendant does not dispute and has never disputed the fact that
Plaintiff was exposed to diazinon on board the S/T OVERSEAS
ALASKA and suffered some immediate, or acute effects of the
exposure. Plaintiffs recovery of actual damages as set forth in all of
the subparts of Question No. 6 must be predicated upon a
determination by the jury that Plaintiff was permanently and totally
disabled from the exposure to diazinon. Plaintiff produced testimony
from a toxicologist and a number of healthcare providers to the
Plaintiff, all of whom testified that Plaintiff suffered from chronic
neurotoxicity as a result of the exposure, which neurotoxicity caused
permanent physiological damage to the nervous system and secondary
psychological problems. [3] All of the medical experts testified that
Plaintiff would experience temporary effects from exposure to
diazinon, which would resolve as the acetyl cholinestherase levels
in the body returned to normal. Defendant concedes that Plaintiff is
entitled to damages consistent with an exposure with short term effects.
Defendant would assert, however, that there is insufficient evidence
upon which the jury could make the determination of permanent
disability or permanent injury and such determination would be against
the great weight and preponderance of the evidence, thus all of the
jury findings to each subpart of Question No. 6 have insufficient factual
evidentiary support and are against the great weight and preponderance
of the evidence.

The thrust of Plaintiffs expert testimony is: 1) Plaintiff was
exposed to diazinon, which is an organophosphate; 2) some
organophosphates have been shown to cause delayed neurotoxicity;
3) Ellis exhibits some of the symptoms associated with delayed
neurotoxicity; 4) Ellis therefore has delayed neurotoxicity. Defendant
would show that these conclusions by the experts are based on

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speculation, which is insufficient to support the jury verdict.

It is has been held that opinion evidence is usually insufficient
to establish a fact issue at trial. Kiel v. Texas Employer's Insurance
Association, 679 S.W.2d 656, 658 (Tex. Ct. App.— Houston [Ist Dist. ]
1984, no writ). Opin[4Jion evidence based on conjecture lacks
probative value and is simply a naked conclusion that will not support
a jury finding, even if admitted without objection. Golleher v. Herrera,
651 S.W.2d 329, 334 (Tex. Ct. App.—Amarillo 1983, no writ); see
also, Maritime Overseas Corp. v. Thomas, 681 S.W.2d 160, 162 (Tex.
Ct. App.— Houston [14th Dist.] 1984, no writ).

The test whether an expert's testimony expresses reasonable
probability as opposed to pure conjecture is not based on the semantics
of the expert or the use of particular terms or phrases, but by looking
at the entire substance of the expert's testimony. Bufkin v. Texas Farm
Bureau Mutual Insurance Co. , 658 $.W .2d 317, 321 (Tex. Ct. App.—
Tyler 1983, no writ).

Although diazinon is an organophosphate, it is considered one
of the milder forms of organophosphate. Plaintiff's experts, in Stating
that Ellis had delayed neurotoxicity, relied on medical literature
containing studies about the long term effects of certain
organophosphates. Some of these studies concluded that some
organophosphates could cause delayed neurotoxicity. None of the
studies relied on by Plaintiff's experts, however, dealt with the long
term effects of diazinon. Indeed some of the studies indicated that
diazinon had not been found to cause any long term effects.

[5] It has been held by some courts that the lack of conclusive
epidemiological proof can be fatal to a plaintiff's clai. alleging toxic
injury. In Brock v. Merrell Dow Pharmaceuticals, Jc. , 874 F.2d 307.
313 (Sth Cir. 1989), modified at 88+ F.2d 166 (Sth Cir. 1989), the
court found lack of conclusive epidemiological proof on humans to
be fatal to the plaintiff's claim that the anti-nausea drug Bendectin
caused birth defects. In Viterbo v. Dow Chemical Co. , 826 F.2d 420
(Sth Cir. 1987), the court found that the testimony of Dr. Alfred
Johnson, one of plaintiff's own witnesses in this case, was not of any
probative value because, in part, there was no scientific evidence that
the drug in issue caused the effects complained of in humans. In that
case, rats had been exposed to a large amount of the substance,
had developed cancerous tumors and died. The court found that

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Dr. Johnson's reliance upon the rat study was unfounded. /d. at p.
423-424. The court also noted that the lack of objective evidence was
heightened by the fact that the symptoms complained of by plaintiff
could have a number of causes. /d. at 423. Indeed, the symptoms
complained of by Ellis could have a number of causes.

Because the underlying proof relating to Ellis’ current condition, |
which relates to causation of the damages awarded, is based on
factually insufficient evidence and is against the great weight and
preoponderance of the evidence, [6] the jury findings as to all elements
of damage should fail and Defendant should receive a new trial.

[7] D. The Jury’s Finding as to Medical Expenses to be
Incurred in the Future is Based on Speculation and Thus
there is Factually Insufficient Evidence to Support it and

Such a Finding is Against the Great Weight and
Preponderance of the Evidence

The jury found that Ellis would in reasonable probability incur
medical expenses in the amount of $850,000 in the future (response
to Question 6(d)). As stated above, this finding must flow from a
determination by the jury that Ellis is permanently and totally disabled.
In addition, the medical evidence upon which the jury made this
determination is based on conjecture or speculation. There is thus
factu[8]ally insufficient evidence to support the jury finding and such
a finding is against the great weight and preponderance of the evidence.

[11) VU.

THE DAMAGES AWARDED
BY THE JURY ARE EXCESSIVE

A. The Actual Damages Awarded are Excessive.
Under Texas procedural law, the court should examine all evidence
in the record to determine whether sufficient evidence supports a

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damage award. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986).
Defendant would point out, however, that this case is to be decided under
federal law, that is the Jones Act and general maritime law. Defendant
would assert that the state court can look to federal courts for an evaluation
of whether damages are excessive. Even though the savings to suitor
clause allows federal causes of action to be brought in state court, because
of the federal interest in uniformity across the country and in both state and
federal courts, the cases decided in federal courts should be controlling.

Under federal law, an award is excessive if the magnitude of the
actual award is so exaggerated that it indicates bias, passion, prejudice,
corruption or other improper motive. Allen v. Seacoast Products, Inc.,
623 F.2d 355, 364 (Sth Cir. 1980). Federal courts have adopted the
“maximum recovery rule.” That is, a jury award is excessive if it
exceeds the maximum recovery that any reasonable man could award.
Any amount above that is appropriate for remittitur. Pressey v.
Patterson, 898 F.2d 1018, 1024 (Sth Cir. [12] 1990), Caldarera v.
Eastern Airlines, Inc., 705 F.2d 778, 784 (Sth Cir. 1983).

Given the fact that there is insufficient evidence to support the jury
finding of actual damages, and such finding is against the great weight
and preponderance of the evidence (see argument above), the jury award
of damages is excessive and should be set aside, entitling Defendant to
anew trial. In the alternative, Defendant seeks a remittitur (see below).

For the reasons stated above, any award of damages to Plaintiff
in excess of an award for temporary effects as a result of the exposure
to diazinon are grossly excessive. Defendant would submit that thus
any award over $100,000 would be excessive and Defendant should
be granted a new trial if the award is not remitted to such a figure.

It is furthermore clear that even if Plaintiff has long term disability
caused by the exposure to diazinon, the awards for loss of wage earning
Capacity and medical expenses have insufficient factual support in the
evidence and are excessive. The remaining award for damages,
specifically relating to pain and suffering, mental anguish and physical
impairment, are clearly the result of bias, passion, prejudice, corruption
or other improper motive and are greatly in excess of the amount that any
reasonable man could feel the claimant is entitled to. Furthermore, there
is factually [13] insufficient evidence to support these awards and such
awards are against the great weight and preponderance of the evidence.

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Vill.
MOTION FOR REMITTITUR

In the alternative to Defendant's Motion for New Trial, Defendant
seeks a remittitur. Under Texas procedure, if the court determines
that the evidence is factually insufficient to support the damage
awarded, then the court may order a [14] remittitur. Pope v. Moore,
supra. The court may also determine what remittitur standard applied.
Id. at p. 623. If the federal remittitur standard applies, the court may
then remit to the maximum award that any reasonable man might
impose.

For the reasons stated above, Defendant seeks a remittitur of the
actual damages to $100,000 and remittitur of punitive damages, if
allowed, to an amount that bears a reasonable relationship to the
damages awarded. Defendant would show that at most Plaintiff would
expect to experience the effects of exposure to diazinon for a matter
of months. Plaintiff worked on the S/T OVERSEAS ALASKA until
December, 1982, at which time he quit of his own accord. He would
have been required to get off the ship because of union regulations
within a very short period of time. Plaintiff did attempt to go back
to sea during early to mid 1983. He did not do so, however, not because
of any medical condition but because shipping was bad and he had
difficulty getting a job. Plaintiff had no medical expenses during this
time period that were not paid by the ship owner while he sought
medical evaluation while on the ship. Thus there is virtually no claim
for loss of wage earning capacity or loss of wages and no claim for
medical expenses. Any physical impairment experienced by the
Plaintiff was temporary and mental anguish and pain and suffering
should also be tempo[I5]rary. The absolute maximum amount that
any reasonable man should award the Plaintiff under these
circumstances is $100,000.

In the alternative, even assuming long term disability on the part
of the Plaintiff, the other elements of damages should be remitted.
Plaintiffs recovery for loss of wage earning capacity in the past should
be reduced to $160,000 and his recovery for loss of wage earning
capacity in the future should be reduced to $850,000, as these figures
are based on Plaintiffs actual earnings and not speculative evidence

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relating to a hypothetical able bodied seaman. The extent of medical
expenses in the future should be remitted to $100,000 as any amount
in addition to that would be entirely speculative. Plaintiff's condition
should either get better or remain the same and not deteriorate and
there is no basis for imposing an award for physical pain and mental
anguish in the future over seventeen and a half times that amount
awarded in the past and physical impairment in the future four times
that awarded in the past. The recovery for future physical pain and
mental anguish should be remitted to $228,000 and the award for
physical impairment in the future should be remitted at $250,000.

{16} IX.

MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT

In the altern: ve to the foregoing motions, Defendant would assert
that it is entitled to a judgment in its favor as a matter of law.
Specifically, Defendant would show that there is no evidence of
probative force to support the jury finding as to damages as set forth
in the answers to all of the jury subparts to Question No. 6. For reasons
stated in Section I of the Motion for New Trial, the testimony by
Plaintiff's experts is speculation and does not provide any probative
value to support the jury finding on damages. As the finding of
damages is critical to Plaintiff's recovery, Defendant seeks a judgment
notwithstanding the verdict in its favor on Plaintiffs claim for damages.

Pages 9-14 of Petitioner's Appellate Brief, filed in the Fourteenth
Court of Appeals, Fourteenth District (Nov. 25, 1991):

[9] Appellant does not contest the damages resulting from
appellee’s short-term exposure to diazinon, which includes out-patient
medical treatment in 1982 and the loss of two days of work. The jury’s
damage award, however, greatly exceeds those damages related to that
exposure; the award instead is based upon appellee's claim of delayed
neurotoxicity, an injury separate and distinct from that of mere

K-8

exposure. Appellee presented insufficient evidence to support the jury's
award, because appellee did not prove to a reasonable medical
probability that he suffers from delayed neurotoxicity.

Appellee’s expert testimony is speculative and not based upon
a reasonable medical probability because: (1) there is absolutely no
scientific or medical evidence indicating that diazinon causes delayed
neurotoxicity; (2) the scientific evidence uniformly indicates that
delayed neurotoxicity manifests itself within a period of a few weeks,
and not within a period of several years, as allegedly occurred in this
case;3 and (3) appellee’s [10] objective test results are inconsistent
with delayed neurotoxicity (i.e., appellee’s EEG, MRI, and CAT Scan
are all normal).

A. Proof of the degree of an injury must be based upon a
reasonable scientific probability.

A plaintiff in a toxic tort case can prevail only after proving
that there is a reasonable medical probability that his injury resulted
from his exposure to the toxic substance. Gideon v. Johns-Manville
Sales Corp., 761 F.2d 1129, 1137 (Sth Cir. 1985). See also Duff
v. Yelin, 721 S.W.2d 365, 370 (Tex. App.— Houston [Ist Dist.] 1986),
affd, 751 S.W.2d 175 (Tex. 1988). A plaintiff cannot establish a
reasonable medical probability with evidence demonstrating only a
statistical probability that his injury resulted from the toxic exposure,
or with expert testimony that he could have contracted a disease by
exposure to a toxic substance. Thompson v. Southern Pac. Transp.
Co. , 809 F.2d 1167, 1169 (Sth Cir.), cert. denied, 484 U.S. 819 (1987)
(expert testimony indicated that while dioxin exposure could have
caused appellee’s disease, it was more likely caused by appellee’s
alcohol consumption).

In determining the sufficiency of an expert’s testimony, courts
look to the totality of that testimony, paying close attention to the

3 The doctor for the seaman’s union declared Ellis fit for duty in March
1983 (S.F. 682-83) and in 1984, appellee medical records indicate
that he suffered from ailments such as an upper respiratory infection
(S.F. 902), and a cold and high blood pressure (S.F. 926-27).

K-9

sources of the expert's opinion. Brock v. Merrell Dow Pharmaceuticals,
Inc. , 874 F.2d 307, 311 (Sth Cir.) modified, 884 F.2d 167 (Sth Cir.
1989), cert. denied, 110 S.Ct. 1511 (1990) (“Confronted as we now
are, with difficult medical questions, courts must critically evaluate
the reasoning process by which the experts connect data to their
conclusions in order for courts to consistently and rationally resolve
the issues before them.”). Courts also scrutinize the expert's scientific
methodology, rejecting as unreliable testimony based upon speculation
or conjecture. See Ochs v. [11] Martinez, 789 S.W.2d 949, 958 (Tex.
App.—San Antonio 1990, writ denied); Duff v. Yelin, 721 S.W.2d
365, 370 (Tex. App.— Houston [Ist Dist.] 1986), affd, 751 S.W.2d
175 (1988); Maritime Overseas Corp. v. Thomas, 681 S.W.2d 160
(Tex. App.— Houston [I4th Dist.] 1984, no writ).4 An expert opinion
is speculative, and thus lacking in probative value, if there is “no
[scientifically] documented connection” between a plaintiff's illness
and the toxic exposure. Perry v. United States, 755 F.2d 888, 893
(11th Cir. 1985). Moreover, “a connection [between a plaintiffs illness
and the documented exposure] would have to be demonstrated by an
epidemiological study before it could be conclusively proved in an
individual case.” Id.; see also Brock, 884 F.2d at 167.

B. Appellee failed to establish the degree of his injury to a
reasonable scientific probability.

1. There is insufficient scientific evidence to prove that an
acute exposure to diazinon can cause long-term effects
in humans.

In determing whether appellee has proven by a reasonable
scientific probability that he has developed delayed neurotoxicity, the

4 The issue of sufficiency of the evidence to support the judgment
is distinguishable from the issues of admissibility under Tex. R. Evid
703. Appellant does not contest the admissibility of appellee's expert
testimony, but rather attacks the reliability of the erroneous conclusions
drawn by appellee’s experts.

K-10

Court must examine the scientific evidence upon which appellee's
experts based their conclusions. Perry, 755 F.2d at 893. See also
American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 656 (Tex.
App.—Corpus Christi 1987, writ refd n.r.e.). Many of appellee’s
experts testified that they had relied upon medical literature on
organophosphate exposure in arriving at their diagnoses.5 [12] A
review [of] that scientific literature, however, reveals that appellee’s
experts have no scientific support for their opinions, because (1) the
literature does not demonstrate any link between diazinon exposure
and delayed neurotoxicity, and (2) the scientific evidence, as well as
the expert testimony, indicate that delayed neurotoxicity manifests itself
within a few weeks after exposure, and not a couple of years, as in
appellee’s situation.®

First, appellee offered no epidemiological proof that diazinon can
cause delayed neurotoxicity. Brock 884 F.2d at 313 (“We find, in this
case, the lack of conclusive epidemiological proof to be fatal to
[appellee’s] case.”). In fact, several articles state that only some, but
not all, organophosphates cause delayed neurotoxicity.” Appellee’s
osteopath, Dr. Johnson, testifed that he reviewed scientific literature

5 See testimony of Edward G. Ezrailson (S.F. 461-62), Alfred R.
Johnson (osteopath) (S.F. 611), Dr. Francis Waickman (S.F. 780),
and Richard Austin (S.F. 1132, 1161, 1240).

6 Summaries of the testimony from the scientific articles upon which
these witnesses relied appear in the Appendix to this Brief. For the
Court’s convenience, appellant refers to the scientific articles only
by their respective numbers, as set forth in the Appendix. The articles’
full citations appear in the Appendix.

7 Article No. 2 (S.F. 521) lists fifteen chemicals as causing delayed
neurotoxicity, but diazinon is not listed as a chemical that can cause
delayed neurotoxicity. (S.F. 521) Article 3 considers psychiatric
problems resulting from organophosphate exposure, and the article
does not even mention diazinon. (S.F. 518) Article 4 considered a
study with rats, and diazinon was not used as a test chemical to study
delayed neurotoxicity. (S.F. 512) Article 5 stated explicitly that

ree se

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on delayed neurotoxicity due to organophosphate exposure, and he
could not recall any studies dealing with diazinon. (S.F. 613) The
scientific articles upon which the experts rely specifically link [13]
diazinon only to short-term exposure, and not to delayed neurotoxicity.
(See Articles 2, 4, 5,9, 10, 13, 14, 15 and 16.) None of this scientific
literature suggests that diazinon causes delayed neurotoxicity; in fact,
Article 5 affirmatively exonerates diazinon: “parathion, paraoxon,
chlorothion, demeton, dichlorvos, diazinon, phosphamidon, and
trichlorphon did not produce neuropathy [or delayed neurotoxicity].”
(S.F. 1909) This scientific evidence demonstrates conclusively that
there is no documented connection between diazinon and delayed
neurotoxicity.® See Perry, 755 F.2d at 893.

diazinon does not cause delayed neurotoxicity. (S.F. 1909) Article 8
indicates that only certain organophosphates cause delayed
neurotoxicity, but did not list diazinon as one of those chemicals. (S.F.
494, 1889) Article 9 lists six chemicals as causing delayed
neurotoxicity, and diazinon is not listed.(S.F. 519-20) Article 10, an
EPA study, involved case studies of delayed neurotoxicity, but none
of the case studies involved diazinon. (S.F. 1227, 1892) Article 13
did not list diazinon as one of the chemicals causing delayed
neurotoxicity. (S.F. 507) Article 14 considered a woman who
committed suicide by ingestion of diazinon and by cutting her own
wrists, and not delayed neurotoxicity. (S.F. 516) Article 15 stated that
cessation of exposure to diazinon “normally results in complete
recovery.” (S.F. 488)

8 Ezrailson, appellee’s biochemist, testified that he relied specifically
on the following articles: No. 1 (S.F. 513); No. 3 (S.F. 517); No.
7 (S.F. 507); No. 8 (S.F. 489) [sic]; No. 4 (S.F. 510-511); No. 5
(S.F. 521); No. 6 (S.F. 508); No. 7 (S.F. 507); No. 8 (S.F. 489);
No. 9 (S.F. 518); No. 11 (S.F. 522); No. 12 (S.F. 496); No. 13
(S.F. 487, 533-54); No. 14 (S.F. 516); No. 15 (S.F. 477). Ezrailson
could not, and did, not testify that any of these articles link diazinon
in particular to delayed neurotoxicity. Drs. Comstock and Perez, as
well as Austin, relied on Article No. 10 (Plaintiff's Exhibit No. 72)
(S.F. 1862, 1892, 1364, 1160, 1222), which did not link diazinon

K-12

As the medical literature indicates, appellee’s experts could not
point to one single article linking diazinon to delayed neurotoxicity.
Appellant does not contest that appellee suffered the short-lasting
effects from short-term organophosphate exposure, but this injury is
simply not the same as . . . delayed neurotoxicity. Because there is
no scientific evidence upon which an expert could conclude that
diazinon causes delayed neurotoxicity, appellee’s damages must be
limited to those resulting from short-term [14] exposure.

Pages 2-7 of Petitioner’s Reply Brief, filed in the Fourteenth Court
of Appeals, Fourteenth District (May 22, 1992):

[2] Appellee’s citations to the record do no more than establish
Maritime Overseas’s two main points in its opening brief—(1) that
appellee’s experts did not establish that diazinon exposure causes
“delayed neurotoxicity,” and (2) that the evidence in the record is
insufficient to prove that appellee suffers from “delayed neurotoxicity,”
because [3] there is no evidence of onset of his neurotoxicity symptoms
until months or years after his exposure.

1. Maritime Overseas argues the weight, not the admissibility
of the evidence.

Appellee first implies that Maritime Overseas has no basis
for an appeal because it never objected to appellee’s experts or to their
testimony. Appellee, however, fails to recognize that any witness who
meets the basic requirements of Rule 702 of the Texas Rules of Civil
Evidence may testify concerning his or her knowledge. Appellee made
that prima facie showing for all of his experts.

Entirely distinct from the question whether an expert may testify
is the question whether appellee carried his burden of proving

exposure to delayed neurotoxicity. Dr. Comstock also relied on Articles
No. 5, 6, 7, and 8 (S.F. 1909, 1872, 1893, 1883). Dr. Perez also relied
on Article No. 8 (S.F. 1496-97).

ee

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his case at trial. There must be sufficient evidence of a reasonable
medical probability that the injuries described resulted from exposure
to the toxic substance. Gideon v. Johns-Manville Sales Corp. , 761
F.2d 1129, 1137 (Sth Cir. 1985); Duff v. Yelin, 721 SW.2d 365, 370
(Tex. App.—Houston [Ist Dist.] 1986), affd, 751 S.W.2d 175 (Tex.
1988). The proper method for preserving error when the evidence
is insufficient to support the verdict is to file motions for new trial
and for remittitur. Tex. R. Civ. P. 324(b). Maritime Overseas filed
both motions with the trial court (Tr. 44-61) and thus preserved the
error.

“[CJourts must 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
v. Merrell Dow Pharmaceuticals, Inc. , 874 F.2d 307, 310 (Sth Cir.),
modified, 884 F.2d 166 (Sth Cir. 1989) (Brock II), cert. denied, 494
U.S. 1046 (1990). Brock and its progeny set forth the federal common
law with respect to toxic tort [4] cases. Although appellee points to
Brock Il and suggests that it has lowered the standard of proof in toxic
tort cases, this is what Brock II requires:

[W]e find, in this case, the Brocks’ failure to present Statistically
significant epidemiological proof that Bendectin causes limb
reduction defects to be fatal to their case.

Hopefully, our decision will have the effect of encouraging
district judges faced with medical and epidemiologic proof in
subsequent toxic tort cases to be especially vigilant in scrutinizing
the basis, reasoning, and statistical significance of studies
presented by both sides.

884 F.2d at 167 (emphasis added). The Fifth Circuit in Brock II adopted
the remainder of its earlier opinion. The court adhered to its holding
that the evidence in that case was insufficient to support the jury’s
verdict. Id. |

Appellee tries to escape a review of the sufficiency of his evidence
by citing Christophersen v. Allied-Signal Corp., 902 F.2d 362 (Sth

K-14

Cir. 1990), on rehearing, 939 F.2d 1106 (Sth Cir. 1991) (en banc)
(Caristophersen II), for the proposition that the causation requirement
in a toxic tort case has been reduced. Christophersen was a summary
judgment case in which the Fifth Circuit affirmed en banc the
defendant's motion for summary judgment, granted on the basis that
the plaintiff's expert testimony was insufficiently reliable and more
prejudicial than probative. See id. The Fifth Circuit held that the
plaintiff expert’s testimony that twenty years of exposure to nickel
and cadmium caused plaintiffs injury was “‘of such little
weight . . . that [the] testimony would not actually assist the jury in
arriving at an intelligent and sound verdict’ ” /d. at 1113 (quoting
Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (Sth Cir. 1987)).

[5] In holding that unreliable scientific evidence does not even
have to go to the jury, Christophersen II, if anything requires more
stringent proof of causation than that in Brock.2 As such,
Christophersen II supports Maritime Overseas’s position. It allows
that a jury in most instances is to consider the ques

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1624%3A2. Public record. Not legal advice.