Occupational Illness Cases In A Maritime Context: The Plaintiff's Perspective

  1. INTRODUCTION

    This paper is intended to be an overview of the issues which plaintiff's attorneys face in bringing cases for occupational illnesses and injuries suffered by seamen. This paper is not intended to be a comprehensive list of all of the types of occupational illnesses and injuries to which seamen are exposed. Rather, the paper's focus is to raise the types of issues that attorneys representing seamen will be exposed to and a discussion of recent case law, primarily in the area of toxic exposure cases and their impact on the representation of seamen.

  2. SEAMEN ARE EXPOSED TO A MYRIAD OF OCCUPATIONAL

    ILLNESSES AND INJURIES

    Seamen, by the nature of their work, are exposed to many conditions and substances which cause them illnesses and injury. As Justice Storey stated over one hundred and seventy-five years ago:

    Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless, and acquire habits of gross indulgence, carelessness, and improvidence. If some provision is not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of unsuitable nourishment. Hardin v. Gordon, 11 F.Cas. 480 (C.C.Me. 1823)

    Seamen are routinely exposed to various toxic substances ranging from asbestos to xyolene. In addition to exposure to hazardous substances, seamen suffer injury and illness due to the nature of their work from carpal tunnel syndrome, from hours of chipping decks with chipping guns to aching joints from hours of heavy physical labor.

    This paper focuses on injuries and illnesses as a result of exposure to toxic substances, as this area is becoming increasingly a hot topic for litigation. Seaman are exposed to substances in the form of cargo carried on the vessels on which they serve and from the equipment and supplies that they are required to use to maintain the vessel. It is safe to assume that seamen are exposed to the same substances and conditions as workers on land and then some.

  3. THE CAUSES OF ACTION

    Seamen who become sick or injured with an occupational illness or injury as a result of

    their work in service to a vessel have generally three causes of action against the employer/vessel owner:

    A. THE JONES ACT

    The Jones Act, 46 U.S.C. § 688, provides a cause of action for maritime workers injured by an employer's negligence. The causation burden is "whether the proof justifies with reason the conclusion that employer negligence played any part, even in the slightest, in producing the injury for which the claimant seeks damages." Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 506-507, 77 S.Ct. 443, 1 L. Ed.2d 493 (1957); Landry v. Oceanic Contractors, Inc., 731 F.2d 299, 302 (5th. Cir. 1984).

    B. UNSEAWORTHINESS

    A vessel owner owes to the seamen an absolute and non-delegable duty to furnish a vessel reasonably safe and fit in hull, gear, appliances, ways, appurtenances and manning for it's intended purpose. Mahnick v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L. Ed. 561 (1944); Sanford v. Caswell, 200 F.2d 830, 153 AMC 339 (5th Cir. 1953).

    C. MAINTENANCE AND CURE

    The ancient duty of the vessel and shipowner to provide maintenance and cure to a sick or injured seamen is a right afforded seamen by the General Maritime Law as a consequence of his status as a seaman and service to the vessel. The right arises from the contract of employment and the peculiar relationship existing between the seaman and his vessel. Calmar S.S. Corp. v. Taylor, 303 U.S. 525 (1938). While there may be a requirement of causal connection where there has been a traumatic shipboard injury, there obviously cannot be such a requirement with respect to an illness which manifests itself during service. In the case of an illness, all that is necessary is that the illness manifest itself during service. 2 M. Norris, The Law of Seamen, § 26:8 (4th ed. 1985).

    When evaluating an occupational injury or illness case for a seaman, keep in mind that the seaman has at least three causes of action in the maritime law against his employer/vessel owner; the Jones Act, unseaworthiness, and the duty to provide maintenance and cure. Even if the seaman cannot prove Jones Act negligence or unseaworthiness, he may be entitled to maintenance and cure if he can show that the injury or illness was sustained while in service to the vessel.

    D. PRODUCTS LIABILITY

    A seaman injured as a result of using a toxic substance aboard a vessel or as a result of being exposed to a toxic cargo may pursue a Jones Act case, an unseaworthiness case and/or a case for failure to provide maintenance and cure against his employer. However, unless the chemical company that produced the substance can be identified as a "carrier" or "operator" of the vessel involved, no Jones Act, unseaworthiness claim nor maintenance and cure claim can be maintained against the chemical company. Schrurrer v. Conrail, 792 F.Supp. 170 (DC Conn. 1992).

    The General Maritime law incorporates theories of product liability and strict liability. East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 F.Ct. 2295, 90 L.Ed.2d 265 (1986). The seaman may bring a third party case against the manufacturer under a general tort theory such as negligence and/or strict liability in tort. In toxic exposure and environmental tort litigation, the plaintiff primarily relies on market defect theories of failure to warn. The plaintiff, however, can also rely on numerous federal and state environmental statutes to establish the appropriate standard of care and prove the defendant manufacturer negligent as a matter of law. See Restatement (Second) of Torts §§ 286 and 288 (1965). A plaintiff may be able to use the following federal environmental statutes in his case either to prove negligence per se or at the very least, evidence of the appropriate standard of care:

    1. The Federal Insecticide Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136(y), regulating the registration, use, and labeling of pesticides, etc.;

    2. The Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, regulating chemicals which present an unreasonable risk of harm to human health or the environment;

    3. The Clean Water Act, 33 U.S.C. §§ 251-1387, regulating chemical discharges of pollutants into navigatable waters;

    4. The Clean Air Act, 42 U.S.C. §§ 7401-7671, regulating the release of emissions into the air;

    5. The Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, regulating the response to hazardous waste spills.

  4. TOXIC TORTS

    Most of the "action" in maritime personal injury today will be in the toxic tort area. Seamen are exposed to a number of toxic substances both as cargo (benzene, toluene, xyolene) and as substances they work with (pesticides, solvents, cleaners, paints).

    A. WHEN DOES THE CAUSE OF ACTION ACCRUE?

    Generally the cause of action accrues from the date of discovery of the illness or injury or reasonable discovery, rather than the actual onset of the disease or damage or exposure. 122 ALR Fed. § 2[b]. However, the law in this area is not clear and the question may be not when does the cause of action accrue, but rather which cause of action are you talking about?

    As the law has developed, there now exists a real question and a dilemma for the plaintiff's attorney as to when the cause of action accrues:

    1. Haggerty v. L & L Marine Services, Inc.

    In 1986, the Fifth Circuit Court of Appeals decided the case of Haggerty v. L & L Marine Services, Inc., 749 F.2d 315 (5th Cir. 1986). Mr. Haggerty was employed by L & L Marine Services, Inc., in April 1982, serving as a tankerman on a barge being loaded with chemicals at the Union Carbide Plant in Guyanilla, Puerto Rico. Due to an alleged defect in the barge and/or the equipment being used to load the chemicals, Haggerty was completely drenched with dripolene, a chemical containing benzene, toluene and xyolene. Haggerty doused his clothes and shoes with water immediately and then removed the clothes and took a shower several hours later. Haggerty suffered from dizziness, followed by leg cramps and the following day, he felt stinging in his extremities. Because of the symptoms, the extent of his immersion in the chemical, and his understanding of the carcinogenic effect of that chemical, Haggerty was fearful that he would contract cancer. The court noted in it's opinion that Haggerty clearly did not have any disease at the time that the case was tried and suffered no manifestations of any symptoms or ailments attributable to cancer. He had consulted with several doctors, however, and it was the suggestion of his doctors that he continue to undergo periodic medical examinations and laboratory tests.

    Haggerty brought suit under the Jones Act for damages which included pain and suffering, mental anguish due to the fear of developing cancer, and the medical expense of regular checkups to monitor against that disease. The District Court granted summary judgment for the defendants on the ground that no cause of action had accrued. The Fifth Circuit reversed the District Court and held that Haggerty suffered physical injuries and was entitled to pursue his Jones Act case. The court stated that the fear of cancer and attendant medical costs were damages which were recoverable citing the "single cause of action" rule.

    The Fifth Circuit stated that "the cause of action has accrued if Haggerty's injury was discernible on the occasion when he was drenched with the toxic chemical." Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir. 1984). In the Albertson case, the Fifth Circuit had held that limitations barred the Jones Act and General Maritime law claims of a seaman because the plaintiff's headaches and nausea and a subsequent loss of consciousness gave the plaintiff knowledge of critical facts that he had suffered more than a minor injury.

    In the Haggerty case, the Fifth Circuit allowed recovery for present fear or anxiety due to the possibility of contracting cancer and the costs of periodic medical checkups. Haggerty at 319. The Haggerty court recognized the plaintiff's (and his attorney's) dilemma. The court stated:

    The victim of exposure to toxic substances which cause present harm and which may at some future time cause cancer or other serious disease is further victimized by the single cause of action rule. If Haggerty, for example, cannot prove a future probability of his contracting cancer when his trial is conducted but thereafter does contract the disease because of the 1982 exposure at Guyanilla, he will have no remedy for his damages suffered from cancer. Haggerty at 320.

    The "single cause of action" rule requires a plaintiff to bring all of his causes of action, i.e., present injuries (headaches, nausea, dizziness, etc.), together with his cause of action for cancer and it's effects without knowing:

    1. whether he will in fact develop cancer; and

    2. the extent of his damages as a result of the cancer.

    The Haggerty court discussed these issues but did not rule as to how courts should handle the case in the future other than to say that when the proper case is presented to the Fifth Circuit, the panel hoped that the en banc court would consider this problem, if Congress had not acted upon it by that time. Haggerty at 321.

    2. METRO-NORTH COMMUTER RAILROAD COMPANY V. BUCKLEY

    In 1997, the Supreme Court of the United States decided Metro-North Commuter Railroad Co. v. Buckley, 117 S.Ct. 2213, 138 L. Ed.2d 560, 1997 AMC 2309 (1997). Buckley was a railroad employee who for three years (1985-1988) was exposed to asbestos for about one hour per working day. In 1987 Buckley attended an "Asbestos Awareness" class and became fearful that he would develop cancer. Buckley did not manifest any symptoms of disease at the time he brought suit.

    Buckley sued his employer under the FELA, 45 U.S.C. § 51, for negligence. He sought damages for his emotional distress (the fear of contracting cancer) and to cover the costs of future medical checkups. His employer conceded negligence, but did not concede that Buckley had actually suffered emotional distress, and argued that the FELA did not permit a worker, who has suffered no physical harm, to recover his emotional distress or the costs of medical checkups.

    The District Court dismissed the plaintiff's claim finding that Buckley had not suffered an injury because he did not manifest symptoms of disease. On appeal, the Second Circuit Court of Appeals reversed stating that Buckley had indeed shown evidence of "physical impact" (the breathing into his lungs of the asbestos fibers) which was "massive, lengthy and tangible". Buckley 79 F.3rd 1337 (2nd Cir. 1996). The Second Circuit allowed recovery for the emotional distress and the costs of medical monitoring.

    In reviewing the Second Circuit the Supreme Court focused on the meaning of the term "physical impact", as that term was defined in Consolidated Rail Corporation v. Gottchall, 512 U.S. 532 (1994). The Supreme Court found that Buckley had not suffered a "physical impact" as defined in Gottchall because:

    1. The impact was not a physical contact that caused or might have caused, immediate traumatic harm such as a car accident, gas explosion or train collision;

    2. The exposure was not one consistent with Gottchall's "zone of danger test" because it did not involve a "physical invasion or menace";

    3. Common Law Courts, with few exceptions, have denied recovery to plaintiffs who are disease and symptom-free, and;

    4. It is difficult for judges and juries to separate valid and important claims from invalid or "trivial" claim?

    The Supreme Court denied Buckley's claim for the reasons stated above and also denied him the costs of medical monitoring, at least to the extent that he sought these costs on a lump sum basis.

    B. THE QUESTION UNANSWERED BY BUCKLEY & HAGGERTY

    The Haggerty and Buckley cases when read together leave many questions unanswered. The most important dilemma for the plaintiff's attorney is:

    What happens to an injured seaman who suffers an acute physical impact and has present injuries and possible future injury or illness but who does not manifest symptoms of disease which may take years to develop?

    For example, these decisions do not resolve how to handle the following scenario:

    A worker is employed as a tankerman aboard a barge which is carrying a cargo of toxic chemicals including benzene, toluene and xyolene. The barge runs into a dock and splits in two. While walking on the deck during the collision, a tankerman falls into the chemical soup and is not rescued for approximately one hour. He is then taken to a hospital where he is treated for the acute symptoms of headache, dizziness and general malaise. Of course, he is not currently suffering from cancer or other disease because these effects will not occur until much later, if at all.

    The seaman must bring his cause of action for the immediate injuries i.e., headaches, dizziness, general malaise within the three years statute of limitations. The Supreme Court has made it clear that he cannot bring a cause of action for fear of cancer or the increased probability of cancer without a showing of ongoing symptoms of the disease. If he does not bring an action for the effects of cancer within the three year period from the date of his injury, is he time barred if he later develops cancer?

    I do not believe that any court has adequately stated the answer to this question. This creates a dilemma for the plaintiff's attorney in deciding when and if to bring suit for the acute injuries. Additionally, if there is a real possibility that the short term exposure could have caused long term health effects the plaintiff's attorney should be vigilant not to allow any language in the release that would foreclose further actions if the seaman develops a disease that is attributable to the short term exposure.

    C. THE STANDARD OF PROOF

    The Jones Act imposes a lesser standard of proof than most state court negligence actions. Where a seaman alleges that a toxic substance caused him injury or illness the plaintiff's causation burden is "whether the proof justifies with reason the conclusion that employer negligence played any part, even in the slightest, in producing the injury for which the plaintiff seeks damages." Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 506-507, 77 S.Ct. 443, 1 L. Ed.2d 493, (1957); Landry v. Oceanic Contractors, Inc., 731 F.2d 299, 302 (5th Cir. 1984). The Jones Act expressly incorporates the FELA and the case law developing that statute. See, Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L. Ed.2d 511 (1957). Thus the causation standard under the Jones Act is the same as that under the FELA. American Dredging Co. v. Miller, 510 U.S. 443, 456, 114 S.Ct. 981, 127 L. Ed.2d 285 (1994).

    When a state court hears a Jones Act case the state court occupies essentially the same position occupied by a federal court sitting in diversity; The state court must apply substantive federal maritime law but follow state procedure, Texaco Refining & Marketing, Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex. 1991); General Chemical Corporation v. DeLastra, 852 S.W.2d 916, 920 (Tex. 1993).

    Despite the lesser standard of proof under the Jones Act, the issue of causation must be proven by expert testimony. The lack of expert testimony on behalf of the plaintiff is fatal to the seaman's case.

  5. CHOOSING AN EXPERT

    When preparing an occupation illness/injury case other than in the area of toxic exposure, the seaman's causation expert(s) are typically medical doctors. Cases involving bronchitis, cellulitis, dermatitis, carpal tunnel syndrome, sore backs and a list of other injuries seamen receive as a result of their occupation can typically prove their case through the testimony of a medical doctor alone on the issue of causation.

    Toxic exposure cases typically require testimony from a number of experts on a number of separate issues. Typically the plaintiff will present:

    A. MEDICAL EXPERTS

    The plaintiff's treating physician can testify about the care and treatment rendered to the seaman, the costs of the treatment, the reasonableness and necessity of the treatment, whether the costs were reasonable and the causal connection between the chemical exposure and the seaman's disease or condition.

    B. LIABILITY EXPERTS

    Often times the plaintiff will need to supplement the medical testimony with other experts on liability issues.

    1. WARNING EXPERTS

    The seaman in a toxic exposure case may claim that he was not adequately warned of the dangers associated with the use of or exposure to a toxic substance. In these cases, the plaintiff's attorney may want to retain an expert to address the adequacy or inadequacy of the warnings provided to the seaman by the Jones Act employer and/or product manufacturer. A good warnings expert should compare whatever warnings were given to the seaman to those standards promulgated by government agencies such as the Coast Guard, OSHA, etc. and groups such as ANSI, NIOSH that publish industry standards. Another important expert in this field is the human factors expert, who can testify as to how workers perceive and process warning and/or hazards.

    C. DESIGN AND MANUFACTURING EXPERTS

    These experts can be used effectively for the plaintiff if there are claims that the chemical in question could have been designed to be less toxic to humans, or that the packaging did not adequately protect users from the product's harmful effect or that the chemical was improperly manufactured and contained impurities or substances which should not have been in the chemical.

    D. STATE OF THE ART

    Defendants in chemical exposure cases will often retain experts or use company employees to testify that their product met "all industry standards" and was "state of the art". The plaintiff should be prepared to rebut this type of testimony with an expert who has experience, training and knowledge of these issues.

    E. CAUSATION EXPERTS

    This area of expertise is of extreme importance in a toxic exposure case. The plaintiff must be able to prove that his injury or illness was caused by an exposure to a chemical substance which caused him harm.

    1. TOXICOLOGIST

    The toxicologist can explain to a jury the results of various tests, studies and medical toxicological literature to determine the chemical's toxic properties, the expected symptoms, and a prognosis for exposed humans. The toxicologist's opinions and conclusions should dovetail with the medical doctor's testimony regarding symptoms, physical condition, etc. The toxicologist should work with the physician to alert the doctor about where traces of the chemical should appear in the plaintiff's body.

    2. INDUSTRIAL HYGIENIST

    The industrial hygienist can offer testimony on the nature of the chemical, the maximum parts per million (PPM) of exposure that is safe for humans, and most importantly what measures can and should have been taken to eliminate the risk to humans.

  6. THE INEVITABLE DAUBERT/ROBINSON AND HAVNER CHALLENGE

    It has become a fact of life in recent years that defendants will challenge the plaintiff's scientific evidence both in state and federal courts. The plaintiff's attorney cannot control whether or not the defense attorney makes a challenge to the plaintiff's expert, but he can and should insist that the court allow ample time before trial to correct any deficiencies in the experts testimony. Additionally, the seaman's attorney must read, understand, and be prepared to present the plaintiff's expert testimony within the guidance offered by the following cases.

    A. U.S. SUPREME COURT CASES

    1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed.2d 469 (1993). The Daubert case was a products liability case against Merrell Dow concerning the use of the drug bendectin. The plaintiffs in Daubert relied on the testimony of eight well qualified experts to establish a link between the drug bendectin and birth defects suffered by the plaintiffs. These experts relied on 1) test tube and live animal studies that found a link between bendectin and birth defects; 2) drug studies that show that bendectin chemically resembled other drugs that caused birth defects and 3) an unpublished epidemiological study.

    The District Court held that the evidence did not meet the Frye test and granted summary judgment for Merrell Dow. The Ninth Circuit Court of Appeals affirmed the trial court. The United States Supreme Court reversed the two lower courts. 509 U.S. at 583-584. The Supreme Court cited Rule 702 of the Federal Rules of Evidence and stated that Rule 702 imposes two requirements on the admission of experts scientific evidence - reliability and relevance. 509 U.S. at 590-591. The court said it was "confident that federal judges" can make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." The court listed several factors for trial judges to consider in making this determination:

    1. Whether the theory or technique can be or has been tested;

    2. Whether the theory or technique has been subjected to peer review and publication;

    3. The known or potential rate of error of a particular technique; and

    4. Whether the theory or technique has been "generally accepted."

    The Daubert opinion was an attempt by the Supreme Court to liberalize the admission of opinion testimony, and although the case dealt with novel scientific knowledge, it is intended to deal with all scientific knowledge. It is ironic that this attempt by the Supreme Court to liberalize the admission of opinion evidence has now become a weapon used by defense attorneys to restrict the admission of scientific testimony.

    B. FIFTH CIRCUIT - MOORE V. ASHLAND CHEMICAL, INC., 126 F.3d 679 (5th Cir. 1997)

    In the Moore case, the Fifth Circuit dealt with a case involving non-novel scientific testimony and whether Daubert factors apply. Bob Moore was a truck driver who was exposed to a mixture of chemicals while on Ashland Chemical's premises. Mr. Moore was required to clean up this chemical mixture without the use of any respiratory equipment. Mr. Moore was examined and tested by Dr. Dan Jenkins, a board certified physician and Professor at Baylor College of Medicine in Houston, Texas. Dr. Jenkins testimony was offered by the plaintiff to prove both his diagnosis of Restrictive Airway Disease (RADS), and for his opinion as to the causation of this condition. The court allowed Dr. Jenkins to testify regarding diagnosis, but excluded his testimony on the issue of causation stating that under Federal Rule of Evidence 702, the opinion did not have a reliable basis and that under Federal Rule of Evidence 403, the probative value of the opinion was outweighed by the prejudice that would be caused by Dr. Jenkins highly impressive qualifications. Moore at 683. Curiously, the trial court did allow a former student of Dr. Jenkins, Dr. Alvarez, to testify on the issue of causation even though Dr. Alvarez testified that he had essentially the same reasons for his opinions as Dr. Jenkins, except that he also listed an article authored by Dr. Stuart Brooks as an additional basis for his opinions.

    A three judge panel of the Fifth Circuit reversed the trial court's exclusion of Dr. Jenkins testimony on causation. The Fifth Circuit found that:

    1. Because the objectives, functions, subject matter and methodology of hard science varies significantly from those of the discipline of clinical medicine, as distinguished from research or laboratory medicine, the hard science techniques or methods that become the "Daubert factors" generally are not appropriate for assessing the evidentiary reliability of a proffer of expert clinical medical testimony; and

    2. That Dr. Jenkins based his opinions on principles, theories, methodology and techniques which are well accepted within his discipline.

    The Fifth Circuit observed that Dr. Jenkins had:

    1. Examined Mr. Moore personally;

    2. Personally took a detailed medical history from Moore;

    3. Used differential diagnosis and etiology;

    4. Reviewed tests, reports and opinions of other doctors;

    5. Reviewed the material safety data sheets;

    6. Referred to medical literature on the properties of irritant chemicals that cause RADS; and

    7. Utilized his training and experience of over fifty-three years.

    The three judge panel ruled that the trial court had abused its discretion citing General Electric Co. v. Joiner, 118 S.Ct. 512 (1997). Plaintiff lawyers beware, this case has been briefed and argued before the en banc court. I believe it is highly unlikely that the full court will follow the liberal admission policy for expert testimony set out in the Daubert case to the benefit of an injured worker.

    C. TEXAS STATE COURTS

    1. E.I. DUPONT DE NEMOURS & CO., INC. V. ROBINSON, 923 S.W.2d 549 (Tex. 1995)

    The Robinson case is the seminal case in Texas on the admissibility of expert testimony. The plaintiffs in the Robinson case brought one witness on causation, a horticulturist. The trial court excluded the testimony on the ground that the testimony was not scientifically reliable. The Court of Appeals reversed stating that once an expert is determined to be qualified, the weight and credibility to be given the expert testimony was for the trier of fact to decide. 923 S.W.2d at 552. The Supreme Court reversed the Court of Appeals stating that Rule 702 of the Texas Rules of Civil Evidence require that an expert's testimony be relevant and reliable. 923 S.W.2d at 556. The Court listed several factors that a trial court "may consider" on making the initial determination on admissibility:

    1. The extent to which the theory has been or can be tested;

    2. The extent to which the technique relies upon the subjective interpretation of the expert;

    3. Whether the theory has been subjected to pier review or publication;

    4. The techniques potential rate of error;

    5. Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

    6. The non-judicial uses which have been made of the theory or technique.

    2. MERRELL DOW PHARMACEUTICAL, INC. V. HAVNER, 953 S.W.2d 706 (Tex. 1997)

    Havner is another bendectin case. The Havner case dealt with the sufficiency of the evidence on causation, not whether it was admissible or not. The Texas Supreme Court stated that "if the expert's scientific evidence is not reliable, it is not evidence." 953 S.W.2d at 713. The court noted that "in many toxic tort cases, direct experimentation cannot be done, and specific causation cannot be shown. Therefore, plaintiffs can try to demonstrate that exposure to the substance at issue increases the risk of their particular injury." 953 S.W.2d at 714-715.

    3. MARITIME OVERSEAS CORPORATION V. ELLIS, 1998 WL 175692

    The Ellis case is a Jones Act/General Maritime law case concerning the admissibility of the plaintiff's expert testimony and the standard of review on appeal in Texas courts.

    Ellis served as a steward's assistant in the housekeeping and galley department aboard the S/T OVERSEAS ALASKA. The chief steward attempted to control a roach problem by spraying diazinon, an industrial strength pesticide, in a small, enclosed, and unventilated area. The steward did not dilute the diazinon properly. The captain ordered several crew members, including Ellis, to clean up the excess diazinon. Ellis participated in the cleanup for about five hours without wearing inhalation protective gear or special equipment to protect his skin from contact with the insecticide. He was exposed to diazinon levels up to two hundred times over what is considered safe for human exposure.

    After the cleanup Ellis complained of a headache, eye irritation, and a runny nose. He was sent to New Orleans General Hospital Emergency Room two days later. The examining physician concluded that Ellis suffered from diazinon exposure and gave Ellis medication for eye problems.

    Months after his exposure to diazinon, Ellis began to complain of memory defects, irritability, gastrointestinal problems, anxiousness, fatigue, indigestion, nausea, muscle pain and stiffness, leg cramps, dizziness, insomnia, high blood pressure and black out spells. During the trial, Ellis' experts testified that his diazinon exposure had caused him to suffer from "delayed neurotoxicity" or "neuropathy." Ellis' experts testified that his condition is irreversible.

    Ellis presented five expert witnesses who testified that Ellis' prolonged exposure to excessive levels of diazinon due to Maritime's negligence caused the long term effects of delayed neurotoxicity. Maritime presented three medical doctor experts, only one of whom had treated Ellis. These three experts testified that Ellis' injuries were not a delayed effect of his diazinon exposure.

    Maritime failed to object to the admission of the plaintiff's proffered expert testimony either pretrial or when the evidence was presented at trial. Although Maritime argued to the jury that this testimony was scientifically unreliable, it did not object to the testimony until after the verdict. On appeal, Maritime argued that the testimony was unreliable and therefore not evidence.

    The Texas Supreme Court rejected this argument and held that Maritime did not preserve it's claim on appeal. The court said that to "prevent trial or appeal by ambush, we hold that the complaining party must object to the reliability of scientific evidence before trial or when evidence is offered." The Texas Supreme Court also held that "Texas courts have long recognized that in addition to the burden of proof being less stringent, the standard of appellate reviewing a Jones Act case is also less stringent than under the common law. (Citing Texas & Pacific Railway v. Roberts, 481 S.W.2d 798, 800 (Tex. 1972).) Once the appellate court determines that some evidence about which reasonable minds could differ supports the verdict, the appellate court's review is complete. Roberts, 481 S.W.2d at 800 (citing Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L. Ed.2d 916 (1946)).

    From the plaintiff attorney's point of view, the Ellis case shows that the plaintiff's attorney should send discovery to the defendant to discover whether the defendant intends to make an objection to the plaintiff's expert testimony. Secondly, the plaintiff's attorney should insist there be a Daubert or Robinson Havner hearing well before the trial so that there is ample time to correct any problems with the expert's testimony.

  7. PRACTICE POINTERS

    1. If you are faced with a seaman's case that involves short term toxic exposure with possible long term effects which will not become evident for many years:

    a. Try to evaluate the potential for long term injury using the best available medical information.

    b. If the plaintiff chooses to settle his claim for the short term injuries the seaman's attorney should:

    i. Try to exclude any language in the release that the plaintiff is releasing unknown consequences of the exposure. This will be nearly impossible to do because all defendants want a full and final release.

    ii. Make sure the plaintiff understands that if he signs a release containing language which releases unknown consequences of the exposure, that the seaman fully understands this and will not claim later that he was unaware of the legal effect of his release. A settlement affidavit or deposition could be useful for this purpose.

    2. To prepare for the inevitable Daubert/Robinson Havner challenge to the seaman's expert(s):

    a. Read the cases and make sure the plaintiff's experts understand the factors courts look at in evaluating whether they get through the gate.

    b. Coordinate the experts testimony with the testimony of the plaintiff and other expert witnesses.

    c. Force the issue early. Request a pretrial order that has a cutoff for challenges to the plaintiff's experts. Send discovery asking whether the defendant has objections to the plaintiff's experts and try to narrow the issues.

    d. The war is in the trial court. Make your best showing in the trial court. The trial court's decision on admission or exclusion will be reviewed using an abuse of discretion standard. General Electric Co. v. Joiner, 118 S.Ct. 512 (1997).