Petition for Writ of Certiorari — Miller v. ARCO Marine, Inc.

(Yre LED

991979 JUNs ong

MVICE OF THE CLERK

No.

—

—

In The

Supreme Court of the United States

¢

CREIGHTON E. MILLER, Administrator of

the Estate of Matthew Williams, Deceased,

Petitioner,

V.

ARCO MARINE, INC.; ATLANTIC RICHFIELD

COMPANY; CHEVRON U.S.A., INC.; UNOCAL

CORPORATION; NATIONAL BULK CARRIERS, INC.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Alabama

¢

PETITION FOR WRIT OF CERTIORARI

e

MIcHAEL J. CONNOR

Jaques ADMIRALTY Law Firm, P.C.

1370 Penobscot Building

Detroit, Michigan 48226

(313) 961-1080

Counsel of Record

for Petitioner Miller "

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

-s

QUESTION PRESENTED FOR REVIEW

Did the Alabama Supreme Court err in applying a strict

common-law causation standard to medical evidence

proffered in a Jones Act case?

ii

PARTIES TO THE PROCEEDING

All Parties appear in the caption of the case on the

cover page.

meena meaner te OTT:

iii

TABLE OF CONTENTS

Page

EE ss sone ssc ss cb dibesas ens dau 1

UR GE NOUUPUNOUNOUR Soi 5 ob ois saan eos bd cad ck cas 2

Statutory Provision Involved....................... 2

EE SE I aso iNew dciekcneee Kec en 2

Reasons for Granting the Writ..................... 6

I. The Alabama Supreme Court Has Estab-

lished a Precedent in that State that Is Con-

trary to this Court’s Precedent on Jones Act

SERRE a opanieteespt Seer aan Crean ean ere 6

II. The Causation Standard of East River Steam-

ship and Its Progeny Govern Only Manufac-

turer-Defendants, Not the Shipowner-

Defendants in this Case................... 7

Il]. The Alabama Supreme Court Failed to

Apply the Jones Act’s Liberal Causation

Standard to the Shipowners; Instead It

Applied the Strict Causation Standard

Applicable Only to Manufacturers......... 7

IV. Because the Alabama Supreme Court

Applied the Wrong Causation Standard, It

Upheld an Improper Exclusion of Plaintiff’s

I iso aaa sib os ho Chew e's 13

ee SEE SR RE eee eR eae ee 17

iv

TABLE OF AUTHORITIES

Page

Cases

Alvarez v. J. Ray McDermott & Co.,

G74 FAG BF Chek GM, Ess ce cieie enc views 8

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

LOE, SOP Te Fe CH b's se arwk the Ris caemnnes 8

Bodden v. American Offshore, Inc.,

er Poe Et eT ee ere 8

Cella v. United States,

oe ee, ee eer eer fee rere 14

East River Steamship Corp. v. Transamerica Delaval, '

UR. SP SE Ie Co = ob ee 45 Ska ween aes 7

Ex Parte Perry,

SOS Se. BE DER CA. TOG is inks ie ies PGi cinsces 3

Ferguson v. Moore-McCormack Lines, :

BS we Be Pr oor A eee ore ree 8, 12

Frye v. United States,

54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923)... 3, 4, 10

Gallick v. Baltimore & O.R.R.,

ee ee Be ev Ch eae Line cc ka wee ea ees ke 13

Hines v. Conrail Corp.,

926 Fae 26e CG Cae B9F8)...0 cece nes 13, 14, 16, 17

Hose v. Chicago Northwestern Trans. Co.,

Pe ae ee ee Ss a wks 34 Kin eke ee 15, 16

In re Paoli Railroad Yard PCB Litigation,

o£? RF Cs Se. een eee ne 13

Kermarac v. Compagnie Generale Transatlantique,

Fe ey Ee RUUD io 6 eee Fb ete een yea eens ek beans 7

——

Vv

TABLE OF AUTHORITIES - Continued

Page

Miller v. American President Lines,

Per U.20 AGS (6a Cie. 1993)... occ cc cccecscccnven 8

Pantry, Inc. v. Stop-N-Go Foods, Inc.,

79 F. Supp. 1164 (6.D. Ind. 1992). ...... 65... cecees 2

Purgess v. Sharrock,

ee Wee Rae Ce See a 6 ho edd oi kei ncdaes 5

Ribitzki v. Canmar Reading & Bates, Ltd.,

RAS Fae ee CO RR BOO oo ts oipaenks inn eter 8, 12

Romero v. International Terminal Operating Co.,

Pe SU. OE GROUPE 6 chsh ev aun Sav cctoxeeke asc tins 7

Sentilles v. Inter-Caribbean Corp.,

Ee SA SOO Bali varias vag bsak one ack = s passim

Sheffield v. Owens-Corning Fiberglass Corp.,

ee 8 ee eer 6, 12

United Steelworkers of America v. Rubber Manufac-

turers Association, 783 F.2d 1117 (D.C. Cir. 1986) ..... 2

STATUTES

Oe Ss RITE i $n nkn Ras Tse ees 2

The Jones Act, 46 U.S.C. App. § 688................. 2

MIscELLANEOUS

Restatement (Second) of Torts § 431.................. 7

1 T. Schoenbaum, Admiralty and Maritime Law (2d

FP eons i o5 pavas saeugarewesnvensaerveRetcie 17

PETITION FOR WRIT OF CERTIORARI

Creighton E. Miller, Administrator of the Estate of

Matthew Williams, respectfully petitions for a writ of

certiorari to review the judgment of the Alabama

Supreme Court in this case.

¢

OPINIONS AND ORDERS

The opinion of the Alabama Supreme Court affirming

the Alabama Circuit Court for the County of Mobile’s

grant of summary judgment in favor of Defendant-

Respondents appears at Appendix 1 to the petition and’

has been designated for publication but is not yet

reported. Miller v. National Bulk Carriers, Inc., No.

1981819, 2000 WL 264230 (Ala. Mar. 10, 2000).

The opinion of the Alabama Circuit Court for the

County of Mobile clarifying its docket entry granting

summary judgment in favor of Defendant-Respondents

appears at Appendix 10 to the petition and is

unpublished.

_The docket entry of the Alabama Circuit Court for

the County of Mobile granting summary judgment in

favor of Defendant-Respondents appears in full in foot-

note two on page four of the petition and is unpublished.

¢

STATEMENT OF JURISDICTION

The date on which the Alabama Supreme Court

decided this case was March 10, 2000. A copy of that

decision appears at Appendix 1.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

STATUTORY PROVISION INVOLVED

The Jones Act, 46 U.S.C. App. § 688.

,

v

STATEMENT OF THE CASE

Matthew Williams was a merchant mariner who

sailed primarily aboard tanker vessels. In a career span-

ning the years 1945 to 1981, he sailed aboard vessels

owned and operated by the several Shipowner-Defen-

dants. Those vessels carried benzene and benzene-con-

taining products (for instance, petroleum products). In

United Steelworkers of America v. Rubber Manufacturers

Association, 783 F.2d 1117 (D.C. Cir. 1986), the court

observed that “Benzene is a clear, colorless, flammable

liquid employed in various industrial processes. It is

undisputed that benzene poses significant health risks.”

The toxicity of benzene is sufficiently notorious that judi-

cial notice has been taken thereof. Pantry, Inc. v. Stop-

N-Go Foods, Inc., 796 F. Supp. 1164, 1168 (S.D. Ind. 1992)

(taking judicial notice of EPA document which “states

firmly that benzene is believed to be a carcinogen in any

concentration.”).

PL ENE N SN NEON om a me eR

As part and parcel of his shipboard duties, Defen-

dants required Williams to perform tasks which entailed

exposure to benzene and other toxins. As a consequence

of this shipboard exposure, Matthew Williams developed

a cancer of the blood-forming organs known as multiple

myeloma, from which he died on March 30, 1994.

Following Williams’s death, the Administrator of

Williams’s estate brought suit in the Alabama Circuit

Court for Mobile County, claiming against the defendants

under the Jones Act, 46 U.S.C. App. § 688, and the general

admiralty and maritime law. The Defendants fell into two

distinct categories: the Manufacturer-Defendants who

produced and supplied the benzene and benzene-con-

taining products and the Shipowner-Defendants who

owned or operated the ships transporting the benzene

and benzene-containing products. During the pretrial

proceedings, numerous Defendants were dismissed.

Shortly before the scheduled jury trial, the remaining

Defendants! — all shipowners - moved for summary judg-

ment dismissing the Second Amended Complaint, claim-

ing: (1) that Plaintiff did not possess sufficient evidence

of Williams’s exposure to benzene to withstand summary

judgment; (2) that the opinions of Plaintiff’s expert wit-

nesses were inadmissible under the “general acceptance”

rule of Frye v. United States, 54 App. D.C. 46, 293 F. 1013

(D.C. Cir. 1923) as applied under Alabama law. See Ex

1 The remaining Defendants, Respondents herein, are Arco

Marine, Inc., Atlantic Richfield Company, Chevron U.S.A., Inc.,

Unocal Corporation and National Bulk Carriers, Inc.

ee

Parte Perry, 586 So. 2d 242 (Ala. 1991) (adopting the Frye

standard for Alabama courts). Without holding a Frye ;

hearing, the trial court, Hon. Edward B. McDermott, ;

excluded Plaintiff’s proffered expert testimony in toto,

and granted summary judgment. On June 4, 1999, the |

trial court issued a terse docket entry granting the motion

for summary judgment.?

Plaintiff timely appealed to the Alabama Supreme

Court. On August 20, 1999 (well after the appeal was

filed and, indeed, as the appellate record was being trans-

mitted), the trial court issued an order explaining its

ruling of June 4, 1999. The August 20 order states in part,

“On June 4, 1999, this Court granted Defendants’ Motion |

for Summary Judgment, finding that plaintiff had failed

to present substantial evidence that decedent experienced

significant exposure to benzene.” App. 10.

Following briefing, but without the benefit of oral

argument, the Alabama Supreme Court affirmed the cir-

cuit court’s grant of summary judgment in favor of the |

remaining Shipowner-Defendants. App. 6. The Alabama

Supreme Court agreed that summary judgment was

appropriate because there was no “substantial evidence”

of “substantial exposure” of Williams to benzene. App.

5-6. The court conceded that Plaintiff produced evidence

2 “June 4, 1999 - By order of Court defts motion for

summary judgment is granted, cause dismissed, costs taxed to

pitff.”

of Williams’s exposure,3 but applied a strict causation

standard which the court held that Plaintiff did not meet.

App. 5-6. Because the court held the evidence insufficient,

and because Plaintiff’s experts based their opinions upon

this evidence, the court held further that the testimony of

Plaintiff’s experts was insufficient to defeat the summary

judgment motion. App. 6.

Justice Cook dissented as to Defendant Chevron

U.S.A., Inc. App. 6. The problem, as Justice Cook pointed

out, is that Williams died before the suit was filed,

thereby precluding his own direct testimony as to expo-

sure. App. 7. This is in no way fatal to the cause, how-

ever, because, as Justice Cook explained, Plaintiff's

burden can be satisfied with the testimony of coworkers

3 Even the Defendants were forced into significant — if

reluctant — admissions in their brief to the Alabama Supreme

Court as to Williams’s exposure:

The general testimony of the crewmember

witnesses . . . arguably showed that the loading

Process created an environment in which ordinary

seamen and able-bodied seamen would sometimes be

exposed to cargo vapors, and the unloading process

could also result in such exposures. . . . Also, such

exposures could have occurred during tank cleaning

and/or ballasting operations.

Defendants’ Brief, pp. xii-xiii. See also p. 1 (implicitly admitting

“intermittent exposures to petroleum products aboard certain

ships on which [Matthew Williams] sailed”); p. 4 (admitting that

“decedent . . . may have been intermittently exposed to vapors

of gasoline, crude oil, jet fuel, and other petroleum products

carried as cargo on the vessels on which he served”). “A court

can appropriately treat statements in briefs as binding judicial

admissions of fact.” Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir.

1994).

as to Plaintiff's Decedent’s exposure, whether that testi-

mony provides circumstantial or direct evidence. App. 7.

Justice Cook would have held that the evidence pre- i

sented by Plaintiff was “clearly sufficient” to prove “sub-

stantial exposure to benzene.” App. 8. The majority

disagreed, however, and affirmed the dismissal of all the

Defendants. App. 6.

Plaintiff Creighton Miller subsequently prepared the

instant petition for a writ of certiorari.

¢

REASONS FOR GRANTING THE WRIT

I. The Alabama Supreme Court Has Established a Pre-

cedent in that State that Is Contrary to this Court's

Precedent on Jones Act Causation.

The Alabama Supreme Court has misapprehended

the standard for Jones Act causation as set forth by this |

Court in Sentilles v. Inter-Caribbean Corp., 361 U.S. 107

(1959), and its progeny in the federal courts, and it has

effectively overruled its own precedent in Sheffield v. |

Owens-Corning Fiberglass Corp., 595 So. 2d 443, 450 (Ala.

1992). Under the controlling standard of this Court, Plain-

tiff need only present evidence that allows one to reason-

ably infer exposure. The Alabama Supreme Court has

nuw impermissibly raised the bar in its jurisdiction to

require substantial evidence of substantial exposure.

Jones Act seamen filing suit in Alabama will now be

under a severe standard unknown in other jurisdictions

that properly apply this Court’s precedent.

creemninceeecieenessesisiiiiiiiaisiiiniaiiaiisiiimacasliialia

7

II. The Causation Standard of East River Steamship

and Its Progeny Govern Only Manufacturer-Defen-

dants, Not the Shipowner-Defendants in this Case.

In East River Steamship Corp. v. Transamerica Delaval,

Inc., 476 U.S. 858 (1986), this Court held that concepts of

products liability, based both on negligence and on strict

liability, were firmly established as a part of the general

maritime law. “Drawn from state and federal sources, the

general maritime law is an amalgam of traditional com-

mon-law rules, modifications of those rules, and newly

created rules.” Id. at 864-65 (citing Kermarac v. Compagnie

Generale Transatlantique, 358 U.S. 625, 630 (1959); Romero v.

International Terminal Operating Co., 358 U.S. 354 (1959)).

Following the East River rule, the Alabama Supreme

Court held that in an admiralty toxic tort case against the

manufacturers of asbestos, it would apply the Restate-

ment (Second) of Torts § 431 as the “substantive stan-

dard[ ] of proof of causation.” Sheffield v. Owens-Corning

Fiberglass Corp., 595 So. 2d 443, 450 (Ala. 1992). The court

ruled that, in order to prevail, “the plaintiff must make it

appear that it is more likely than not that the conduct of

the defendant was a substantial factor in bringing about

the harm.” Id. (internal quotations omitted) (emphasis

supplied).

iI. The Alabama Supreme Court Failed to Apply the

Jones Act’s Liberal Causation Standard to the

Shipowners; Instead, It Applied the Strict Causa-

tion Standard Applicable Only to Manufacturers.

The general maritime law notwithstanding, it is well-

established that the role of the jury is significantly greater

in Jones Act and FELA‘ cases than in common-law negli-

gence actions. The right of the jury to pass on questions

of fault and causation must be most liberally viewed.

Indeed, “trial by jury is part of the remedy.” Atlantic &

Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355,

360 (1962).

Under the Jones Act, the plaintiff’s burden to prove

causation is “very light” and has been described as

“featherweight.” Ribitzki v. Canmar Reading & Bates, Ltd.,

111 F.3d 658, 664 (9th Cir. 1997). If a shipowner breaches

its duty to the seaman, the seaman must show only that

the breach “played any part, even the slightest, in pro-

ducing the injury or death for which damages are

sought.” Ferguson v. Moore-McCormack Lines, 352 U.S. 521,

523 (1957); Miller v. American President Lines, 989 F.2d

1450, 1463 (6th Cir. 1993). This standard of causation has

been called the “producing cause” standard. See, e.g,

Alvarez v. ]. Ray McDermott & Co., 674 F.2d 1037, 1042-43

(5th Cir. 1982).

In Sentilles v. Inter-Caribbean Corp., 361 U.S. 107

(1959), this Court discussed what is necessary to establish

medical causation under the Jones Act. In Sentilles, the

Court reviewed the case of a seaman seeking damages

under the Jones Act. As a result of rough seas, the plain-

tiff was pitched into the air and fell back onto the deck.

Shortly thereafter, the plaintiff became ill, was hospi-

talized, and was treated for tuberculosis. The plaintiff's

theory was that the accident aboard the ship activated or

4 The FELA is the “statutory Siamese twin of the Jones

Act.” Bodden v. American Offshore, Inc., 681 F.2d 319, 326 n.25 (5th

Cir. 1982).

aggravated a previously latent tubercular condition.

Physical examinations and x-rays of the plaintiff taken

two months before the accident revealed no appearance

of tuberculosis. However, a tuberculosis specialist who

reexamined the x-rays following the plaintiff’s hospitaliz-

ation concluded in retrospect that they did in fact reveal a

pulmonary lesion. Questioned hypothetically regarding

the effect of an accident like the plaintiff’s on the aggra-

vation or activation of a pre-existing, dormant tubercular

condition, the specialist opined that acute dissemination

of the tuberculosis “might” result from the accident.

Another specialist posited the trauma and plaintiff’s pre-

existing diabetic condition as the most likely causes of the

aggravation of the tuberculosis, though he was unable to

state which of the two was more likely responsible.

Another medical expert opined that the accident “proba-

bly aggravated” the plaintiff's condition, noting that

“[w]e don’t ever select one item and say that is the cause

of any particular aggravation.” Sentilles, 361 U.S. at 109.

The jury found that the accident had legally caused

the injury. The court of appeals reversed. In reversing the

court of appeals to preserve the jury determination

regarding medical causation, the Court ruled that:

The jury’s power to draw the inference that

the aggravation of petitioner’s tubercular condi-

tion, evident so shortly after the accident, was in

fact caused by that accident, was not impaired

by the failure of any medical witness to testify

that it was in fact the cause. Neither can it be

impaired by the lack of medical unanimity as to

the respective likelihood of the potential causes

of the aggravation, or by the fact that other

10

potential causes of the aggravation existed and

were not conclusively negated by the proofs.

Sentilles, 361 U.S. at 109. The Court emphasized that, in

cases involving issues of medical causation, it is not the

function of the trial court to search the record for conflict-

ing circumstantial evidence which supports alternative

theories of causation, but rather the focal point of the

judicial review in such cases is the “reasonableness of the

particular inference or conclusion” drawn by the jury. Id.

at 110 (emphasis added). The Court held that the proofs

justified the conclusion of the jury that the accident

caused the plaintiff’s subsequent illness. Id.

It is important to note that Sentilles was decided

under the Frye “general acceptance” standard for expert

testimony, which is more strict than the current federal

standard and is also the standard of the Alabama courts.

Despite this more strict standard, the Court held that in a

Jones Act case, members of the jury are “entitled to take

all the circumstances, including the medical testimony,

into consideration.” Sentilles, 361 U.S. at 110.

The Alabama Supreme Court in the instant case has

not given Plaintiff the benefit of this liberal standard. The

court in its opinion conceded evidence sufficient under

the Jones Act standard to withstand summary judgment.>

> Petitioner believes that the court dismissed out-of-hand

good circumstantial evidence of Williams’s exposure. Justice

Cook in his dissent agreed that the evidence was sufficient:

In this case, Miller produced the testimony of

Williams’s coworkers. One of them specifically

remembered seeing Williams working in proximity to

benzene-containing products. Others remembered

11

The court wrote about the testimony of one of Williams’s

crewmates:

[Robert] Alexander described himself as a friend

of Williams, recalled seeing Williams on [the

vessel Gulfking], recalled that the vessel carried

aviation fuel, refined gasoline, and crude oil,

and that the crewmembers were exposed to

cargo vapors during loading and unloading.

. . . Of all the witnesses, only Robert Alex-

ander was able to place Williams on a vessel

that was carrying a benzene-containing cargo

that Williams might have been exposed to.

App. 3-4, 5. Having granted evidence of exposure, the

question for the court was whether this evidence was

legally sufficient to withstand summary judgment. Had

the court properly applied the Jones Act’s producing

cause standard, it would have considered whether it

would be reasonable for a jury to conclude that Wil-

liams’s exposure to benzene “played any part, even the

slightest, in producing the injury or death for which

what class of seaman Williams was and testified as to

what his duties would have involved. There was

extensive testimony indicating that these duties

would have involved substantial exposure to

benzene. This evidence is clearly sufficient under the

above-cited authorities [which held circumstantial

coworker testimony sufficient].

App. 8.

Petitioner does not ask this Court to review the erroneous

weighing of evidence by the Alabama Supreme Court majority,

however. On the contrary, the majority has conceded evidence

sufficient to make this an issue of law, not of fact.

12

damages are sought.” Ferguson, 352 U.S. at 523; see also

Sentilles, 361 U.S. at 110 (holding that the inquiry is one of

“reasonableness” ).

Instead, the court applied a test requiring “substan-

tial evidence” of “substantial exposure.” The court wrote:

Justice Cook presumes .. . that there is substan-

tial evidence indicating that Williams was

exposed to benzene. However, we conclude that

the evidence simply did not prove that Williams

was substantially exposed to benzene.

App. 5-6. The court repeatedly used language of “sub-

stantiality.” A requirement of substantiality is absolutely

contrary on its face to the true “very light” and “feather-

weight” standard of the Jones Act. Ribitzki v. Canmar

Reading & Bates, Ltd., 111 F.3d 658, 664 (9th Cir. 1997).

Were the Defendants manufacturers, arguably this

would be the proper test under Sheffield’s “substantial

factor” test. But the Defendants in this case are ship-

owners, and the proper test is one of reasonableness per

Sentilles, not substantiality. Ironically, the Sheffield court

acknowledged that the standard of causation applicable

to the shipowners under the Jones Act differs from the

general maritime law standard applicable to manufac-

turers. Sheffield, 595 So. 2d at 450. Now, the Alabama

Supreme Court has implicitly extended its holding in

Sheffield to cover shipowner-defendants as well as manu-

facturers, but this holding is contrary to this Court’s

precedent on Jones Act causation.

13

IV. Because the Alabama Supreme Court Applied the

Wrong Causation Standard, It Upheld an Improper

Exclusion of Plaintiff’s Expert Testimony.

After Sentilles, circuit courts recognized that the lib-

eral causation standard of the Jones Act and FELA have

an effect on admissibility. In Hines v. Conrail Corp., 926

F.2d 262 (3d Cir. 1991), railway workers brought suit

against Conrail, alleging injuries caused by exposure to

polychlorinated biphenyls (PCBs). The district court

granted summary judgment to Conrail without an accom-

panying opinion, and the Third Circuit, based on its

opinion in In re Paoli Railroad Yard PCB Litigation, 916 F.2d

829 (3d Cir. 1990) (Paoli I), and upon its best estimation of

why the district court ruled for defendant, reversed.

The court distinguished the situation in Paoli I, which

arose under Pennsylvania tort law, from that of a FELA

case, which has a “more lenient standard for determining

negligence and causation.” Hinés, 926 F.2d at 267. Review-

ing the Supreme Court FELA jurisprudence, the court

opined “that there can be a jury question of causation

‘when there is evidence that any employer negligence

caused the harm, or, more precisely, enough to justify a

jury’s determination that employer negligence had

played any role in producing the harm.’” Id. (quoting

Gallick v. Baltimore & O.R.R., 372 U.S. 108, 116 (1936)).

Thus, the court concluded that “a trial court is justified in

withdrawing issues from the jury’s consideration only in

those extremely rare instances where there is a zero prob-

ability either of employer negligence or that any such

negligence contributed to the injury of an employee.” Id.

at 268.

14

The Hines court also ruled that causation under the

FELA is broadly interpreted and that “a medical expert

can testify that there was more than one potential cause

of a plaintiff's condition.” Hines, 926 F.2d at 268. Then,

after discussing Sentilles, the court ruled:

We agree with Hines that the standard [of

causation] under FELA can significantly influ-

ence a determination of the admissibility of [the

expert's] testimony. By enacting FELA, Congress

desired to secure jury determinations in a larger

proportion of cases than would be true of ordi-

nary common iaw actions. Indeed, jury deter-

minations were intended to be part of the FELA

remedy.

Id. at 269 (citations and internal quotation marks omit-

ted).

Applying its holding to the facts, the Hines court

remanded the case for trial, even though: (1) Hines never

handled PCB fluid directly; (2) He presented no evidence

as to the concentration of PCBs on the track where he

worked; (3) Hines’s blood and body fat showed no higher

concentrations of PCBs than in the public at large; and (4)

Hines, a bladder cancer victim, had been a heavy smoker.

Hines, 926 F.2d at 270-71. Thus, the FELA’s liberal stan-

dard of causation required the admission of evidence that

might well have been inadmissible in a non-FELA case.

Similarly relying on the rationale of Sentilles, the

Court of Appeals for the Seventh Circuit aff.rmed a trial

court’s determination that a Jones Act seaman’s medical

expert had an adequate foundation for his testimony. See

Cella v. United States, 998 F.2d 418 (7th Cir. 1993).

“Although the complete etiology of all polymyositis has

15

not been definitely proven, the plaintiff's expert medical

witness has testified that, based on his examination and

testing of Cella, his review of Cella’s full medical history,

his research of medical literature, and his analysis of

documented case studies of polymyositis, it is his opinion

within a reasonable degree of medical certainty that

trauma was the cause of this plaintiff’s polymyositis.” Id.

at 429.

Other courts deciding FELA cases have followed suit.

For example, in Hose v. Chicago Northwestern Trans. Co., 70

F.3d 968 (8th Cir. 1996), the Eight Circuit held that, as a

general rule, the factual basis of an expert’s opinion goes

to the credibility of the testimony, not the admissibility,

and it is up to the opposing party to examine the factual

basis of an opinion in cross-examination. The Hose court

further ruled that “[o]nly if an expert’s opinion is so

fundamentally unsupported that it can offer no assistance

to the jury must such testimony be excluded.” Id. at 974.

Ultimately, the Alabama Supreme Court affirmed the

trial court’s ruling in the case at bar because it held that

the expert testimony was insufficient to defeat summary

judgment. The court held that the testimony did not have

sufficient foundation in fact. The court held that the

foundation was insufficient because it applied the wrong

causation standard. The relevant passage of the opinion

reads:

The expert witnesses proffered by Miller all

predicated their opinions upon the proposition

that Williams had experienced substantial expo-

sure to benzene over the course of his work on

the various ships mentioned above. As we have

already stated, the record contains no evidence

16

of substantial exposure; therefore, the expert

testimony offered by Miller is insufficient to

defeat Chevron’s summary-judgment motion.

App. 6. The Alabama court has required that expert medi-

cal testimony in a Jones Act case be supported by “sub-

stantial exposure.” However, federal circuit courts of

appeals, following this Court's lead in Sentilles, have held

just the opposite: “Only if an expert’s opinion is so fun-

damentally unsupported that it can offer no assistance to

the jury must such testimony be excluded.” Hose, 70 F.3d

at 974 (emphasis added). “A trial court is justified in

withdrawing issues from the jury’s consideration only in

those extremely rare instances where there is a zero prob-

ability either of employer negligence or that any such

negligence contributed to the injury of an employee.”

Hines, 926 F.2d at 268 (emphasis added). Therefore, where

the Alabama Supreme Court required “substantial” evi-

dence, federal law actually requires that expert testimony

be excluded only if it is “fundamentally unsupported” or

the evidence offers “zero probability” of causation.

Applying the wrong standard, the Alabama court has

excluded otherwise good expert testimony, thus denying

Plaintiff a jury trial on the merits. Petitioner again notes

that he believes that had the court well-considered the

voluminous circumstantial evidence presented by cow-

orkers of Williams’s benzene exposure that this evidence

would have satisfied even the erroneous substantiality

standard. The Hines court, applying the proper standard,

allowed plaintiff to proceed to a jury having presented

less evidence of exposure than Plaintiff Miller in this case

has. Additionally, even if there were no evidence at all

from Williams’s coworkers, the experts’ independent

17

knowledge of the nature of tankers, their cargo, their

crews, crew duties, the toxicity of benzene, and scientific

literature discussing benzene exposure would have been

sufficient to meet the proper Jones Act causation stan-

dard. Again, the Hines court allowed plaintiff to proceed

to a jury even though plaintiff’s expert had no evidence

that Hines was directly exposed to PCBs and simply

“assumed” that Hines was so exposed. Hines, 926 F.2d at

270. The expert’s opinion was otherwise based on medi-

cal exams and records of the plaintiff plus “scientific

articles and administrative findings on the toxicity of

PCBs.” Id. at 266-67. Plaintiff Miller presented just this

sort of evidence and more in this case. Whether or not the

Alabama court made an erroneous factual finding, how-

ever, does not change the fact that the Alabama court's

holding is legally erroneous. The Alabama court has

denied Plaintiff his proper remedy by fashioning a

uniquely onerous standard of causation that this Court

long ago rejected.

CONCLUSION

The Jones Act standard of causation is well-settled, if

not well-understood in the Alabama courts. As Thomas

Schoenbaum points out in his leading treatise on admi-

ralty law, it can take a “close reading of the Supreme

Court’s jurisprudence” to discern that the “slight” stan-

dard discussed by this Court refers to the “reduced stan-

dard of causation in FELA and Jones Act cases.” 1 T.

Schoenbaum, Admiralty and Maritime Law § 6-22, at 320

(2d ed. 1994). The Alabama Supreme Court has failed to

discern this rule and now has unwittingly set a contrary

18

rule for that state’s Jones Act docket. This legal issue does

not need further muddying; this ruling from Alabama’s

highest court will no doubt show up in litigation in other

states as shipowner-defendants attempt to make hay with

this erroneous ruling. To set the proper rule beyond con-

tention, Petitioner urges this Court to issue a writ of

certiorari to the Alabama Supreme Court and reverse the

holding of that court in this case.

Respectfully submitted,

By: MicHaet J. CONNOR

Jaques ApMIRALTY Law Fir, P.C.

“1370 Penobscot Building

Detroit, Michigan 48226

(313) 961-1080

Counsel for Petitioner Miller

Dated at Detroit, Michigan

this 8th day of June, 2000. i

App. 1

MAR 10 2000

NOTICE: This opinion is subject to formal revision before

publication in the advance sheets of Southern Reporter.

Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Mont-

gomery, Alabama 36104-3741 ((334) 242-4621), of any

typographical or other errors, in order that corrections

may be made before the opinion is printed in Southern

Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 1999-2000

1981819

Creighton E. Miller, as administrator of the

estate of Matthew Williams, deceased

v.

National Bulk Carriers, Inc., et al.

Appeal from Mobile Circuit Court

(CV-97-1038)

HOUSTON, Justice.

The plaintiff Creighton E. Miller, administrator of the

estate of Matthew Williams, deceased, appeals from a

summary judgment in favor of the defendants Arco

Marine, Inc.; Atlantic Richfield Company (“Arco”);

Unocal Corporation; National Bulk Carriers, Inc.

(“N.B.C.”); and Chevron USA, Inc. (“Chevron”), in a

wrongful-death action. Williams died in 1994, at age 71,

of aspiration pneumonitis secondary to multiple

App. 2

myeloma. Williams had been a merchant mariner, and he

had sailed primarily aboard tanker vessels from 1945 to

1981; Miller alleged that Williams had developed multi-

ple myeloma as a consequence of shipboard exposure to

benzene and benzene-containing products aboard ships

owned by the defendants named above.! The defendants

moved for a summary judgment, supporting their motion

by deposition testimony indicating that Williams most

likely had not had a sufficient exposure to benzene

aboard any vessel owned by the defendants and that

there is no general acceptance in any scientific field of the

proposition that benzene exposure is associated with

multiple myeloma in humans. Williams died before this

action was filed, and no testimony or other record exists

to indicate what exposures, if any, he experienced aboard

vessels belonging to Arco Marine, Arco, Unocal, and

N.B.C. Therefore, the trial court properly entered the

summary judgment for those four defendants.?

Miller offered the following evidence in opposition to

the summary-judgment motion insofar as it related to the

defendant Chevron:

1 The plaintiff had voluntarily dismissed numerous other

defendants before the court entered the summary judgment for

those named above.

2 An appellate court will affirm a trial court’s judgment if it

is right for any reason, even one not presented to or considered

by the trial judge. Premiere Chevrolet, Inc. v. Headrick, [Ms.

1972001, November 12, 1999] __ So.2d __, ___ (Ala. 1999);

McKenzie Methane Corp. v. M-W Drilling, Inc., 653 So. 2d 982, 989

(Ala. 1995).

App. 3

1) Williams served aboard the vessel Gulfvictor from

November 26, 1956, to February 1, 1957, and Miller iden-

tified Rudolph Foreman as a person who could testify

about Williams’s exposures aboard that vessel. However,

Foreman was discharged from the Gulfvictor on Novem-

ber 26, 1956, the date Williams boarded the ship; thus,

they never served on the vessel together, and Foreman

did not provide any evidence regarding any exposures

Williams had to benzene aboard that vessel.

2) Williams served aboard the vessel Gulfmills in

1959 and 1960. Miller identified Israel Rangel as a witness

who could describe Williams’s exposures aboard that ves-

sel. However, Rangel did not remember Williams, and he

did not remember any cargoes that were aboard the ves-

sel or where the vessel went during that time that could

have exposed mariners to benzene or benzene-containing

products. Therefore, Rangel was unable to identify any

exposures that Williams had aboard the Gulfmills.

3) Williams served aboard the vessel Gulfjaguar in

1959, 1960, 1961, and 1962, and Miller identified Pete

Sandifer, Isidore Thibeault, and Harvey Moss as wit-

nesses who could describe Williams’s exposure aboard

that vessel. None of these witnesses was able to describe

any exposures to benzene or benzene-containing prod-

ucts that Williams experienced aboard that vessel.

4) Williams served aboard the vessel Gulfking in

1963 and 1964, and Miller identified Robert Alexander as

a witness who could describe Williams’s exposures

aboard that vessel. Alexander described himself as a

friend of Williams, recalled seeing Williams on that ves-

sel, recalled that the vessel carried aviation fuel, refined

App. 4

gasoline, and crude oil, and that the crewmembers were

exposed to cargo vapors during loading and unloading.

He could not recall whether the tanks were cleaned on

that vessel while he and Williams were aboard..

5) Williams served aboard the vessel Gulfqueen in

1964, and Miller identified Wilfred Lambier as a witness

who could describe Williams’s exposures aboard that ves-

sel. Lambier did not recall Williams and could not

describe any of Williams’s exposures aboard that vessel.

6) Williams served aboard the vessel Gulflion on

occasions between 1965 and 1981, and Miller identified

Hercules Spicer, Henry Terrell, Joseph Hall, Chester

Koczynski, and Augustine Martinez as witnesses who

could describe Williams’s exposures aboard that vessel.

Spicer was aboard the Gulflion with Williams for one

month in 1970, but he did not recall Williams or the

cargoes carried by that vessel, and he could not testify as

to what exposures, if any, Williams had aboard that ves-

sel. Terrell was aboard the Gulflion with Williams between

1964 and 1974, but he did not recall Williams (the individ-

ual he had said he was thinking of was from Jacksonville,

Florida, not from Alabama). Hall served with Williams

for a month in 1974 and said he thought he knew him;

however, the crewman he was thinking of was Caucasian

and Williams was African-American, so Hall could not

describe any exposures that Williams may have experi-

enced on this vessel. Koczynski had no recollection of

being on the Gulflion and no recollection of Williams.

Accordingly, he could not describe any exposures that

Williams had experienced. Martinez served with Williams

aboard the Gulflion but offered no testimony in opposi-

tion to the defendants’ motion for summary judgment.

App. 5

The general testimony of crewmember witnesses,

viewed in a light most favorable to Miller, the nonmo-

vant, was that the loading process created an environ-

ment in which ordinary and able-bodied seamen would

sometimes be exposed to cargo vapors, and that the

unloading process could also result in such exposures,

although to a lesser degree. Also, such exposures could

have occurred during tank-cleaning and/or ballasting

operations. However, the record contains no evidence

indicating that Williams engaged in these activities. None

of these activities occurred on a daily basis. The evidence

indicates there was no significant exposure to cargo

vapors aboard tankers of this type while they were

underway at sea and that these vessels spent most of

their time at sea.

In Justice Cook’s dissent, he states his belief that the

evidence’ set out above amounts to “extensive testimony

indicating that [Williams’s] duties would have involved

substantial exposure to benzene.” ___ So. 2d at __. Of all

of the witnesses, only Robert Alexander was able to place

Williams on a vessel that was carrying a benzene-contain-

ing cargo that Williams might have been exposed to. Even

in the situation described by Alexander, Williams would

have been exposed, along with the rest of the vessel’s

crew, only during the loading and unloading of the cargo.

As:we pointed out earlier, the testimony offered by the

plaintiff leaves open a number of gaps in the connection

between Williams and any benzene exposure. Justice

Cook's dissent presumes that those gaps are somehow

filied, and, therefore, that there is substantial evidence

App. 6

indicating that Williams was exposed to benzene. How-

ever, we conclude that the evidence simply did not prove

that Williams was substantially exposed to benzene.

The expert witnesses proffered by Miller all predi-

cated their opinions upon the proposition that Williams

had experienced substantial exposure to benzene over the

course of his work on the various ships mentioned above.

As we have already stated, the record contains no evi-

dence of substantial exposure; therefore, the expert testi-

mony offered by Miller is insufficient to defeat Chevron’s

summary-judgment motion.

The summary judgment for Arco Marine, Arco,

Unocal, N.B.C., and Chevron is affirmed.

AFFIRMED.

Hooper, C.J., and Maddox, See, Lyons, Brown, and

England, JJ., concur.

Cook, J., concurs in part and dissents in part.

Johnstone, J., recuses himself.

COOK, Justice (concurring in part and dissenting in

part).

The majority affirms a summary judgment entered in

favor of Arco Marine, Inc., Atlantic Richfield Company,

Unocal Corporation, National Bulk Carriers, Inc., and

Chevron USA, Inc. (“Chevron”), against the plaintiff Mil-

ler in this wrongful-death action. I concur to affirm as to

all but Chevron. As to the portion of the judgment

involving Chevron’s liability, I respectfully dissent.

App. 7

The applicable law is, of course, maritime law. The

theory of this case is that Williams, the plaintiff’s dece-

dent, was exposed to benzene while serving aboard cer-

tain ocean-going vessels, and, as a consequence of this

exposure, “developed a cancer of the blood-forming

organs known as multiple myeloma,” from which he

died. As to Chevron, I believe Miller presented substan-

tial evidence indicating that Williams was exposed to

benzene on Chevron’s vessels.

The problem in this case is that Williams is dead; he

cannot testify as to what he did as a seaman that would

have exposed him to benzene. In toxic-tort cases, how-

ever, it is well established that a plaintiff may rely on the

testimony of coworkers to establish his or her exposure to

a defendant’s products. See Dillon v. Fibreboard Corp., 919

F.2d 1488 (10th Cir. 1990); Johnson v. Celotex Corp., 899 F.2d

1281 (2d Cir.), cert. denied, 498 U.S. 920 (1990); Martin v.

American Petrofina, Inc., 779 F.2d 250 (Sth Cir. 1985), mod-

ified on other grounds, 785 F.2d 543 (Sth Cir. 1986); Ward v.

Celotex Corp., 479 So.2d 294, 296 (Fla. Dist. Ct. App. 1985)

(plaintiff was “not an asbestos worker and had no knowl-

edge of the products to which he was exposed”; there-

fore, it was “axiomatic that he [should be able to] rely

upon the testimony of others to establish his exposures”);

see also Jackson v. Johns-Manville Sales Corp., 727 F.2d 506

(5th Cir. 1984). Moreover, in such cases it is unnecessary

that coworkers know or remember the plaintiff. Roehling v.

National Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225,

1228 (4th Cir. 1986).

An instructive case from Alabama is Sheffield v.

Owens-Corning Fiberglass Corp., 595 So.2d 443 (Ala. 1992),

an action by former seamen against the owners of ocean-

\

App. 8

going vessels on which they had served. The problem

confronting the seamen in Sheffield was in identifying

“ ‘the injury-causing product and its manufacturer. ae

at 450. This Court held that the threshold identification

requirement could be met by circumstantial evidence. Id.

In particular, it held that one of the seamen, William

Shaw, had met his burden of proving exposure to

“ ‘Kaylo,’ an asbestos-containing insulation material man-

ufactured by [Owens-Corning Fiberglass Corporation].”

Id. at 451, 455-56. The identification evidence was pre-

sented by Shaw himself, who remembered seeing Kaylo

on board some of the ships on which he had served. Id.

The exposure evidence was supplied by, among others, a

contractor, who “described the conditions typically created

by the shipboard installation and repair of [Kaylo],” id. at

455 (emphasis added); and by Shaw, who testified that he

was often in “close” proximity to “those who worked

with Kaylo insulation on pipes and boilers.” Id. at 456.

In this case, Miller produced the testimony of Wil-

liams’s coworkers. One of them specifically remembered

seeing Williams working in proximity to benzene-con-

taining products. Others remembered what class of sea-

man Williams was and testified as to what his duties

would have involved. There was extensive testimony

indicating that these duties would have involved sub-

stantial exposure to benzene. This evidence is clearly

sufficient under the above-cited authorities.

The trial judge also disallowed the testimony of all of

Miller’s expert witnesses, who testified that exposure to

benzene can cause myeloma. The trial court apparently

concluded that their testimony would not satisfy the stan-

dard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

App. 9

The trial court improperly focused, however, on the con-

clusions of those experts, rather than on the methodology

on which those conclusions were based. In that respect,

Frye is essentially a nonissue. As to Chevron, the sum-

mary judgment should be reversed and the case

remanded. As to the disposition of Miller’s claims against

Chevron, therefore, I respectfully dissent.

App. 10

IN THE CIRCUIT COURT OF

MOBILE COUNTY, ALABAMA

CREIGHTON E. MILLER, §

Administrator of the §

Estate of MATTHEW WILLIAMS, CIVIL ACTION

DECEASED (D.O.D. 03/30/94), § NO. CV-97-001038

Plaintiff, §

vs. §

ARCO MARINE, INC., et al., §

Defendants. §

ORDER

On June 4, 1999, this Court granted Defendants’

Motion for Summary Judgment, finding that plaintiff had

failed to present substantial evidence that decedent expe-

rienced significant exposure to benzene, and that plaintiff

had not produced any admissible evidence that the

alleged association between benzene exposure and multi-

ple myeloma has been generally accepted in any relevant

scientific field.

During the course of the hearing on the Motion for

Summary Judgment, the Court excluded the expert testi-

mony offered by plaintiff in opposition to Defendants’

Motion for Summary Judgment. The testimony of plain-

tiff’s experts Dr. Vernon E. Rose, Dr. Peter F. Infante, Dr.

Myron A. Mehliman and Dr. Frank H. Gardner was inad-

missible because, among other things, each of those wit-

nesses relied upon unproved assumptions of fact as to

decedent’s benzene exposure, and none could offer any

substantial evidence that the benzene exposure/ multiple

App. 11

myeloma association is or ever has been generally

accepted in any scientific field. The testimony was inad-

missible in this case for the same’ reasons that the Court

excluded the testimony of such expert witnesses prof-

fered by the same plaintiff in Creighton E. Miller, Adminis-

trator of the Estate of Jabe J. Fincher, Sr., Deceased v. Keystone

Tankship Corporation, et al., Case No. 94-3907 (Order of

May 7, 1999).

It has come to the attention of the Court that the

Court record does not reflect the Court’s Order excluding

the testimony of plaintiff’s ‘expert witnesses, since the

hearing was not reported or recorded. So that the record

will be clear, the Court hereby orders the Clerk of the

Court to supplement the Record on Appeal with this

Order clarifying the Court’s rulings with regard to Defen-

dants’ Motion for Summary Judgment.

DONE this 20th day of August, 1999.

/s/ Edward B. McDermott

CIRCUIT JUDGE