REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-11051.
Teddy GUTIERREZ, Plaintiff,
and
Pamela Calderon; Maria de la Cruz, Plaintiffs-Appellants,
v.
EXCEL CORPORATION, et al., Defendants,
Excel Corporation, Defendant-Appellee.
Frances PONCE, Plaintiff-Appellant,
v.
EXCEL CORPORATION, Defendant-Appellee.
March 5, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Appellants Maria de la Cruz, Frances Ponce, and Pamela
Calderon sued their employer, Excel Corporation, for injuries they
allegedly suffered while working at Excel's meatpacking plant.1
1
Appellants were members of a group of ten plaintiffs who
sued Excel for negligence. The ten plaintiffs were split into
groups of two and three for trial, and de la Cruz, Ponce, and
Calderon constituted the final such group to go to trial. The
juries absolved Excel of negligence as to six of the first seven
plaintiffs, but one of the plaintiffs received a jury verdict in
her favor. The district court in that case, however, granted
Excel's renewed motion for judgment as a matter of law, which we
then reversed in an unpublished opinion. Gutierrez v. Excel
Corp., 78 F.3d 581 (5th Cir.1996) (table).
Jurisdiction was based upon diversity of citizenship. The jury
returned a verdict for de la Cruz and Ponce but found no negligence
on the part of Excel as to Calderon. Thereafter, the district
court granted Excel's renewed motion for judgment as a matter of
law and alternatively, Excel's motion for a new trial regarding de
la Cruz and Ponce. The district court denied Calderon's motion for
a new trial. We affirm the judgment against de la Cruz; reverse
the judgment as a matter of law but affirm the order granting Excel
a new trial as to Ponce; and affirm the order denying Calderon a
new trial.
BACKGROUND
Appellants worked in Excel's Texas meatpacking plant at the
"Whizard table," so named because of the "Whizard" knives that the
workers use to remove meat from bones that arrive via conveyer
belt. The Whizard knife is an electric knife, cylindrical in shape
(similar to a flashlight handle) with a rotating blade at one end
and a power cord at the other end. Appellants assert that they
suffer from various forms of cumulative trauma disorder ("CTD")
resulting from their use of the Whizard knives.
Cumulative trauma disorders are characterized as "wear and
tear" on the tissue surrounding joints, ligaments, and tendons.
Cumulative trauma disorder refers not to one specific injury, but
to numerous disorders caused by the performance of repetitive work
over a long period of time. Injuries that may be classified as
CTDs include, but are not limited to, carpal tunnel syndrome in the
wrist, rotator cuff tendinitis in the shoulder, and nerve
compression. While CTDs are generally not caused by any one
specific traumatic event, there are certain risk factors associated
with cumulative trauma, including repetition, force, vibration,
cold, and posture.
The Occupational Safety and Health Administration ("OSHA") has
recognized the prevalence of cumulative trauma disorders in
meatpacking plants, and has published guidelines offering
suggestions on how to minimize the risk factors associated with
CTDs. Specific recommendations include increasing the number of
workers performing a task, designing jobs to allow self-pacing when
feasible, implementing job rotation, and designing jobs to allow
sufficient rest pauses. The guidelines also emphasize the need for
medical management and proper training of the workers.
Appellants sued Excel, alleging that it negligently failed to
implement sufficient safety measures in connection with their use
of the Whizard knives.2 Appellants' theory at trial was that Excel
was aware of the high injury rates occurring at the Whizard table,
that Excel knew of the high risk factors for cumulative trauma
disorder associated with the use of the Whizard knives, and that
Excel did little to lessen these high risk factors, despite OSHA
recommendations and the suggestions of Excel's own outside
consultant.3 In support of these contentions, Appellants presented
documents both describing cumulative trauma disorder and providing
recommendations designed to help meatpacking plants mitigate the
2
Appellants also sued Bettcher Industries, the Whizard knife
manufacturer, but those claims were settled prior to trial.
3
Excel is a nonsubscriber to the Texas worker's compensation
system and is therefore subject to common-law causes of action
such as negligence. See Tex. Labor Code § 406.033.
risk factors associated with it; testimony regarding the working
conditions at Excel; and the medical records of the doctors who
examined Appellants.
The jury returned a verdict for de la Cruz and Ponce, awarding
them $350,000 and $275,000 in damages, respectively, but found that
Calderon had not been injured in the course of her employment with
Excel. Thereafter, Excel moved for both judgment as a matter of
law and in the alternative, a new trial as to de la Cruz and Ponce.
Calderon also moved for a new trial. The district court first
granted Excel's motion for judgment as a matter of law, finding
that de la Cruz and Ponce did not prove that any act or omission on
the part of Excel was the proximate cause of their alleged
injuries. The court then granted Excel's motion for a new trial,
conditioning its decision upon this Court's reversal of the order
granting Excel judgment as a matter of law. The court denied
Calderon's motion for a new trial. All three Appellants appealed.
DISCUSSION
I. Standards of Review
A. Judgment as a Matter of Law
The standard of review on appeal of a judgment as a matter of
law is the same as that used by the trial court in considering the
motion. Crosthwait Equipment Co., Inc. v. John Deere Co., 992 F.2d
525, 528 (5th Cir.), cert. denied, 510 U.S. 991, 114 S.Ct. 549, 126
L.Ed.2d 451 (1993). All evidence with all reasonable inferences
must be considered in the light most favorable to the nonmoving
party. Id.; Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th
Cir.1969) (en banc). We affirm the judgment if the facts and
inferences point so strongly and overwhelmingly in favor of one
party that no reasonable juror could arrive at a verdict contrary
to the district court's conclusion. Crosthwait, 992 F.2d at 528.
If, however, there is substantial evidence opposed to the motion
such that reasonable jurors might reach different conclusions, then
the motion should have been denied. Id.
B. New Trial
We review the district court's grant or denial of a new trial
for abuse of discretion. Allied Bank-West, N.A. v. Stein, 996 F.2d
111, 115 (5th Cir.1993). The standard of review is somewhat
narrower when a new trial is denied and somewhat broader when a new
trial is granted. Jones v. Wal-Mart Stores, Inc., 870 F.2d 982,
986 (5th Cir.1989). "[W]e exercise broad review of a court's grant
of a new trial because of our respect for the jury as an
institution and our concern that the party who persuaded the jury
should not be stripped unfairly of a favorable decision." Allied,
996 F.2d at 115 (internal quotations omitted).
II. Negligence Under Texas Law
Under Texas law, negligence consists of four essential
elements: (1) a legal duty owed to the plaintiff by the defendant;
(2) a breach of that duty; (3) an actual injury to the plaintiff;
and (4) a showing that the breach was the proximate cause of the
injury. Skipper v. United States, 1 F.3d 349, 352 (5th Cir.1993)
(applying Texas law), cert. denied, 510 U.S. 1178, 114 S.Ct. 1220,
127 L.Ed.2d 566 (1994).
The key issue in this case is causation. Excel argues that
it is entitled to judgment as a matter of law because de la Cruz,
Ponce, and Calderon did not establish that their respective
injuries were proximately caused by their use of the Whizard knife.
In Texas, proximate cause has two factors: cause in fact and
foreseeability. Id. "Cause in fact is "but for cause,' meaning the
negligent act or omission was a substantial factor in bringing
about the injury and without which no harm would have been
incurred." El Chico Corp. v. Poole, 732 S.W.2d 306, 313
(Tex.1987). Foreseeability means that a person of ordinary
intelligence should have anticipated the dangers that his
negligence created. Id. These two elements must be established by
probative evidence, not by mere conjecture or guess. Doe v. Boys
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995).
Both of these factors, however, may be established by direct or
circumstantial evidence. McClure v. Allied Stores of Texas, Inc.,
608 S.W.2d 901, 903 (Tex.1980). Causation is a question of fact
for the jury, and the jury has broad latitude to infer proximate
cause from the evidence and circumstances surrounding an event.
J.K. and Susie L. Wadley Research Inst. and Blood Bank v. Beeson,
835 S.W.2d 689, 698 (Tex.App.—Dallas 1992, writ denied); Figure
World, Inc. v. Farley, 680 S.W.2d 33, 36 (Tex.App.—Austin 1984,
writ ref'd n.r.e.). Although Excel asserts that Appellants proved
neither cause in fact nor foreseeability, their primary argument is
that Appellants failed to prove that the use of the Whizard knife
at Excel was the cause in fact of their injuries.
III. The Evidence
The direct evidence regarding causation in this case is
minimal. Appellants did not present the live testimony of any of
the doctors who examined them, nor did they offer any expert
evidence regarding the causation of cumulative trauma disorders.
Instead, they attempted to prove causation by circumstantial
evidence. First, they presented testimony showing that the
conditions at the Whizard table were fraught with risk factors
associated with cumulative trauma disorder and that Excel failed to
mitigate such risks. Second, they introduced into evidence the
medical records of the doctors who examined them.
A. Risk Factors Associated with Cumulative Trauma Disorder
As noted previously, risk factors associated with cumulative
trauma disorder include repetition, force, vibration, cold, and
posture. There is little dispute that work at the Whizard table
was extremely repetitive and that Appellants were given little
chance to take rest breaks. They each worked a nine-hour shift,
and during each shift they were allowed only one 15-minute break
during the first part of the shift, one 30-minute break for lunch,
and no breaks during the last three hours of the shift. Although
witnesses for Excel asserted that Appellants were free to take
short rest breaks between the trimming of each bone, Appellants
testified that their supervisors at the Whizard table threatened
them with disciplinary action if they tried to rest their hands.
Because Excel also required Appellants to remove from the bones an
average of 40 pounds of meat per hour, it was difficult for
Appellants to find the time to rest their hands.
Appellants also testified that they experienced significant
vibrations when using the Whizard knives, which were often dull and
frequently overheated. Further, they testified that because of the
vibrations, they had to grip the knives tightly in order to keep
them from spinning in their hands. Although witnesses for Excel
testified that Appellants were responsible for the maintenance of
their own knives while working, Appellants claimed that Excel never
properly trained them to sharpen or straighten the blades. In
addition, Appellants testified that they were never formally
trained on how to properly use the Whizard knives. Although each
of the Appellants signed safety and training forms indicating that
they had in fact been properly trained, they testified their
supervisors instructed them to put down the "correct" answers.
Further, they claimed that they were afraid to report their
injuries for fear of getting fired.
Viewing the aforementioned testimony in the light most
favorable to Appellants, as we must in an appeal from a judgment as
a matter of law, Crosthwait, 992 F.2d at 528, it is apparent that
the working situation at the Whizard table was rife with conditions
known to cause, or at least to be associated with, cumulative
trauma disorder. This evidence alone, however, is insufficient to
establish cause in fact under Texas negligence law. See Peerenboom
v. HSP Foods, Inc., 910 S.W.2d 156, 165 (Tex.App.—Waco 1995, no
writ) (stating that "[c]ause in fact is not shown if the
defendant's conduct did no more than furnish a condition which made
the injury possible"). To establish causation, Appellants must
prove that the conduct of Excel "caused an event and that this
event caused" Appellants to suffer injuries. Burroughs Wellcome
Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). The evidence in this
case establishes merely that Excel caused an event, viz., the
working conditions at the Whizard table that were replete with risk
factors associated with CTD. These conditions may have caused
injury. Appellants must show, however, that Excel did in fact
cause their injuries. For this, they rely upon their medical
records.
B. The Medical Records
1. Maria de la Cruz
In December 1992, Maria de la Cruz was working at the Whizard
table when she reached out with her right hand to grab a bone from
the conveyer belt. As she did, she felt something "pop" in her
right wrist.4 Shortly thereafter, de la Cruz visited at least
three doctors, seeking treatment and therapy. The records of these
doctors indicate that de la Cruz suffered from a sudden injury to
her right wrist.5
Nowhere in the medical records, however, does there appear to
be a definitive diagnosis that de la Cruz's injury was a type of
cumulative trauma disorder resulting from her use of the Whizard
knife. The medical records indeed indicate that de la Cruz
suffered injury to her right wrist, but her particular injury is
not one that the evidence suggests is associated with cumulative
trauma disorder. Dr. Royce C. Lewis, one of de la Cruz's examining
doctors, noted in his referral letter to Dr. Tony Loggins that "I
4
De la Cruz usually held the bones with her left hand
because she operated the Whizard knife with her right hand. On
this particular occasion, however, the bone had traveled past
her, so she briefly switched the knife to her left hand and
reached out with her right hand.
5
De la Cruz also complained of pain in her elbow, arm,
shoulder, and back, but there is no diagnosis of such injuries
anywhere in the medical records.
really am not able to explain much from the standpoint [sic]
etiology[6] of this woman's symptoms. She does not, I think, have
a compression of the median nerve in the carpal tunnel, nor does
she have any other localizing signs that I can demonstrate."
Likewise, de la Cruz's third physician, Dr. Lloyd Garland, stated
that tests have "not been able to conform a true carpal tunnel
syndrome." Dr. Garland did note that an MRI scan showed "a torn
triangular fibrocartilage with a small amount of fluid in the
intercarpal compartment," and that "there is obviously true
pathology in the wrist."
This evidence shows that de la Cruz suffered an injury, but it
is insufficient to establish that the repetitive work at the
Whizard table was the cause in fact of de la Cruz's injuries. De
la Cruz presented no evidence suggesting that "torn triangular
fibrocartilage" is an injury categorized as a cumulative trauma
disorder. According to documents introduced into evidence, carpal
tunnel syndrome and nerve compression are types of CTDs. Two of the
doctors, however, concluded that de la Cruz does not suffer from
either of these two injuries.7
Although one doctor noted at one point that de la Cruz's
injury is "work-related," that statement alone is not sufficient to
establish causation. An expert opinion "must rest in reasonable
6
Webster's Third New International Dictionary, Unabridged,
defines etiology as "a science or doctrine of causation or of the
demonstration of causes."
7
An early diagnosis contained in the records indicates that
it is possible that de la Cruz may have suffered from carpal
tunnel syndrome or nerve compression. Later medical conclusions,
however, more strongly suggest that she did not suffer from
either of such disorders.
medical probability" to constitute evidence of causation, and
"[t]his rule applies whether the opinion is expressed in testimony
or in a medical record." Burroughs, 907 S.W.2d at 500. Reasonable
probability is determined by the substance and context of the
medical opinion, and it does not turn on the use of a particular
term or phrase. Id. The "substance and context" of the medical
records of all three doctors indicate that de la Cruz does not
suffer from an injury associated with repetitive trauma. She may
well have suffered injury at work; the fact that she was injured
at work, however, does not establish that such injury is cumulative
trauma caused by Excel's breach of a duty regarding the Whizard
knife.
We do not suggest that all plaintiffs bringing negligence
claims for cumulative trauma disorders must present medical or
other expert testimony specifically stating that there is a direct
causal link between a defendant's actions and a plaintiff's injury.
There are certain risk factors present in the work-environment that
are known to be associated with cumulative trauma disorder.
Further, there are particular injuries collectively referred to as
cumulative trauma disorders that are caused by a combination of
these risk factors. If a plaintiff can establish that she was
exposed to enough of the risk factors for a sufficiently long
period of time, and that she suffers from a specific injury defined
as a cumulative trauma disorder, then it is not, as a matter of
law, necessary to present evidence directly stating that the work
environment caused the injury. A reasonable jury could infer
causation in these circumstances.
But de la Cruz did not present such testimony in this case.
Although she established that she was exposed to many risk factors
during the period in which she operated the Whizard knife, her
injury is not one associated with cumulative trauma. Furthermore,
there is no evidence that cumulative trauma manifests itself in a
sudden, sharp manner, as was the case here. The mere fact that de
la Cruz presented evidence that she was exposed to risk factors
known to be associated with cumulative trauma is insufficient to
allow a jury to infer causation. See Beeson, 835 S.W.2d at 698
(noting that although a jury may draw inferences based upon a
single fact situation, it may not "stack an inference upon an
inference"). We affirm the district court's order granting Excel's
motion for judgment as a matter of law regarding Maria de la Cruz.8
2. Frances Ponce
Frances Ponce first reported soreness in her right shoulder in
September 1990, and she eventually had arthroscopic surgery in
October 1991. After surgery, she returned to work on the Whizard
table. In June 1992, however, she again began to experience pain
8
As discussed in footnote 1, an earlier jury returned a
verdict for Martha Ruiz, a former co-plaintiff whose case was
tried prior to this one. After trial, the district court granted
Excel's motion for judgment as a matter of law as to Ruiz. A
panel of this Court reversed the district court's order and
remanded that case back to the district court with instructions
to enter judgment on the jury's verdict for Ruiz. Gutierrez v.
Excel Corp., 78 F.3d 581 (5th Cir.1996) (table). Despite the
factual similarities between the Ruiz case and this litigation,
there are two significant differences that support our affirmance
of the district court's order granting Excel judgment as a matter
of law as to de la Cruz. First, Martha Ruiz suffered from
"trigger finger," an injury that is classified as a cumulative
trauma disorder. Second, Ruiz presented testimony from Dr. Royce
Lewis, one of her examining physicians, indicating that her
injury was in fact caused by her use of the Whizard knife.
in her right shoulder, and had corrective surgery in November 1992.
Eventually, she returned to work on the Whizard table, but in
October 1993, she was placed on medical layoff because of her
medical restrictions.
The medical records suggest that Ponce's injury may have been
caused by her work with the Whizard knife. Before her first
surgery, Ponce was diagnosed as having symptoms consistent with
rotator cuff tendinitis or a possible incomplete tear of the
rotator cuff in her right shoulder. After completing the surgery,
Dr. Robert Carr diagnosed Ponce with having "impingement syndrome
with subacromial tendinitis, right shoulder." A few months after
this surgery, Dr. Carr stated, "There is some increased stress
sensitivity probably caused by her work activities."
Ponce, however, continued working at the Whizard table, and
after again experiencing pain in her right shoulder, had surgery in
November 1992, this time performed by Dr. Kim Foreman. The
postoperative diagnosis regarding this surgery was "AC
[acromioclavicular] arthralgia with mild impingement of the right
shoulder." Dr. Foreman noted that there was no tear in the rotator
cuff. He commented that Ponce did not suffer from specific injury
but that she had "developed progressive pain doing repetitive
work."
Unlike de la Cruz, Ponce suffered from rotator cuff
tendinitis, an injury that may be classified as a cumulative trauma
disorder. In addition, the medical records suggest that her injury
was "probably caused" from repetitive work. This evidence, along
with the testimony showing that use of the Whizard knife involved
exposure to a number of risk factors associated with cumulative
trauma, is sufficient to allow a jury to infer causation. See
Beeson, 835 S.W.2d at 698. We must therefore reverse the order
granting Excel's motion for judgment as a matter of law. See
Crosthwait, 992 F.2d at 528.
Having determined that the district court erred in entering
judgment in favor of Excel against Ponce, we conclude that the
court committed no abuse of discretion by ordering a new trial.
See Allied, 996 F.2d at 114-15 (reviewing new trial order for abuse
of discretion). In its order granting a new trial, the district
court stated that the jury's finding of proximate cause was
"contrary to the great weight and preponderance of the evidence
admitted at trial," and that the evidence was insufficient to
support the award of $275,000 in damages to Ponce. Upon review of
the record, we are likewise unable to find any evidence supporting
the damage award, and the evidence regarding causation is anything
but substantial.9
3. Pamela Calderon
Pamela Calderon first reported pain in her hand and shoulder
after working at the Whizard table for approximately one year, and
in October 1993, she was placed on medical layoff. Her medical
records, however, contain no suggestion that she suffers from any
9
In its order granting Excel judgment as a matter of law,
the district court noted that Appellants' own expert witness
testified that he had no opinion as to whether any act or
omission on the part of Excel caused any of the alleged injuries
of the Appellants. This witness, however, never visited the
Excel facility and did not meet with Appellants or review their
medical records. While this evidence is helpful to Excel, it
does not, by itself, preclude Ponce from proving causation in the
new trial.
form of CTD. Dr. Foreman initially noted that Calderon suffers from
"right trapezius myositis," but Calderon offered no evidence
suggesting that this injury is a form of cumulative trauma disorder
or that it was caused by repetitive work. Furthermore, Dr. Foreman
later revised his diagnosis, noting that Calderon suffers "no
impairment" in her shoulder. Calderon never had surgery of any
kind. We thus affirm the district court's order denying Calderon's
motion for new trial.
CONCLUSION
For the above reasons, we AFFIRM the district court's order
granting Excel judgment as a matter of law as to Maria de la Cruz;
REVERSE the district court's order granting Excel judgment as a
matter of law, but AFFIRM the order granting Excel a new trial as
to Frances Ponce; and AFFIRM the order denying Calderon a new
trial. We REMAND the Ponce claim to the district court for a new
trial.
AFFIRMED in part, REVERSED in part and REMANDED in part.