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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 821

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0853%3A1. Public record. Not legal advice.