Davis v. Dow Chemical

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30671

JOHN L. DAVIS,
Plaintiff-Appellant,
FIDELITY & CASUALTY COMPANY OF NY,
Intervenor/Plaintiff-Appellant,
versus

DOW CHEMICAL, ET AL.,
Defendants,
J.E. MERIT, a Division of Jacobs Engineering
Group, Inc.,
Defendant-Appellee.

Appeals from the United States District Court
For the Middle District of Louisiana
(91-CV-859)

June 11, 1997
Before POLITZ, Chief Judge, KING, Circuit Judge, and FOLSOM,* District Judge.

POLITZ, Chief Judge:**

*
District Judge of the Eastern District of Texas, sitting by designation.
**
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
John Davis appeals an adverse judgment as a matter of law following a favorable

jury verdict. Concluding that the district court erred in granting the judgment as

a matter of law and in alternatively granting a motion for new trial, we reverse and

render judgment on the jury verdict.

Background

Davis claims that he suffered injuries in September 1990 as a result of

inhaling fumes from a chemical spill in the L.G.T.I. Unit at the Dow Chemical

plant in Plaquemine, Louisiana. Dow had shut down the unit and hired several

contract crews to perform repairs, cleaning, and routine maintenance.

The unit contained a cooling system for quench water, referred to as the Fin-

Fan, located 30 feet above ground in one of two pipe racks separated by an

alleyway for the movement of people and vehicles. Several days before the

incident in question employees of Dowell-Schlumberger, a contract company, had

cleaned the Fin-Fan by pumping 1500 gallons of a 20% hydrochloric acid solution

through its pipes. “Blinds” were installed in pipes and valves for the purpose of

cordoning off the equipment and pipes being cleaned. The Fin-Fan was then rinsed

with water and a soda ash solution and drained.

Davis worked at the Dow plant as lead carpenter for a contract scaffolding

crew. He was employed by Cherokee Construction Company. On September 15,

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1990 at approximately 11:30 p.m. while he and his crew were putting up

scaffolding in the LGTI Unit, Davis, who was in the scaffolding approximately 20

to 25 feet above the ground on the opposite side of the alleyway from the Fin-Fan,

noticed a large, thick white cloud of vapors rising from the alleyway about five to

ten feet from the Cherokee truck. He also saw a clear liquid pouring from the pipe

rack across the alleyway, splattering through the scaffolding, and falling to the

alleyway. The scaffolding crew smelled a strong odor and quickly evacuated the

area. When Davis reached the end of the alleyway, about 45 seconds after first

noticing the fumes, he looked up into the pipe rack and saw two men wearing blue

hard-hats putting bolts into a pipe or valve located directly above the scaffolding

through which the clear liquid was pouring. The men were removing a blind that

had been installed before commencement of the acid wash.

About that time James White arrived. White worked for J.E. Merit, a

contractor on site, but he was also the night shift coordinator and liaison between

Dow and the several contract companies performing services as part of the

maintenance work being done on the LGTI Unit. When White spotted the leak he

yelled at the men wearing the blue hard-hats, instructing them to immediately put

the bolts back in the valve.

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 White discussed the incident at the next safety meeting,1 telling the contract

workers to be careful about causing a spill and that they should take care to prevent

any liquid from falling to the ground. White warned the workers that causing a

leak could result in being fired. At the meeting, the two workers wearing the blue

hard-hats Davis saw in the scaffolding sat at a table reserved for J.E. Merit

employees, and White, a Merit supervisor, directed some of his comments to the

two employees who wore the blue hard-hats. White obviously knew them,

addressing one by a nickname.

After the spill, Davis and his men had a brief dinner and then returned to the

site which Dow personnel had washed down. White directed that the Cherokee

truck be moved from the alleyway. When Davis opened the driver side door he

encountered fumes like those he had experienced during the spill. The fumes

apparently had entered the truck through a broken passenger window. Davis was

overcome by the fumes and momentarily lost his breath. After allowing time for

the truck to air out, Davis removed it from the alleyway.

By the end of his shift Davis felt as if he was coming down with a bad cold.

His condition worsened, and on September 19, 1990 he sought medical attention.

1
Evidence varied on whether this meeting occurred immediately following the spill or
the day after.
4
After he told the emergency room doctor about the September 15 incident, the

doctor diagnosed tracheal bronchitis and prescribed various medicines. The

company doctor also gave Davis medication to alleviate his cold and flu-like

symptoms.

When his symptoms did not improve, Davis went to see Dr. Thomas Nuttli,

a pulmonologist. After running several tests, Dr. Nuttli diagnosed Davis as having

Reactive Airways Dysfunction Syndrome as a result of acid vapor inhalation.2

Dr. Nuttli treated Davis for nearly two years; his replacement continued to treat

Davis at the time of trial.

Davis sought damages for these injuries. His first jury trial occurred in

January 1994. At the close of Davis’s case-in-chief, the district court granted J.E.

Merit’s motion for judgment as a matter of law. Davis appealed, we reversed the

judgment as a matter of law, vacated the district court’s denial of Davis’s motion

for a new trial, and remanded the case for further proceedings.

2
Dr. Dalton, an allergist who had performed tests on Davis, testified that Davis did not
have any allergies that would cause the head, throat, and chest symptoms he continued to
experience. Dr. Dalton testified that Davis was suffering from a reactive airways disorder
contemporaneous with and causally related to his chemical exposure at Dow. Additionally,
in May 1991 Davis’s worker’s compensation carrier, Fidelity & Casualty Company of New
York, sent Davis to another pulmonary disease specialist who testified that he agreed with
Dr. Nuttli’s diagnosis and that Davis’s condition was caused by exposure to chemical fumes
on September 15.
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 The second jury trial was had in November 1995. At the close of Davis’s

case-in-chief, J.E. Merit again moved for judgment as a matter of law. The district

court denied the motion and the case was submitted to the jury. The jury answered

four special interrogatories in the affirmative, finding that employees of J.E. Merit

or a person acting under Merit’s control removed a “blind” from a pipe at Dow’s

LGTI Unit, that the act was negligent or done in a negligent manner, that the act

caused the leakage of a harmful substance, and that the harmful substance injured

the plaintiff. The jury returned a verdict for Davis -- $9,000 for past medical

expenses, $50,000 for future medical expenses, $68,000 for past lost wages,

$200,000 for loss of future earning capacity, and $125,000 in general damages.

Merit renewed its motion for judgment as a matter of law and, in the

alternative, a motion for new trial. The district court granted both of Merit’s

motions and entered judgment in accordance with those rulings. 3 Davis timely

appealed.

Analysis

A. Judgment as a Matter of Law

We review a judgment as a matter of law de novo, applying the same

3
The court conditionally granted a new trial depending on whether we reversed the
judgment as a matter of law.
6
standard used by the district court.4 The evidence, along with all reasonable

inferences which can be drawn therefrom, is considered in the light most favorable

to the jury verdict.5 A judgment as a matter of law should not be granted unless the

facts and inferences point so strongly and overwhelmingly against the verdict that

reasonable persons could not disagree.6

Our task is to determine whether there was evidence before the jury

supportive of each element of Davis’s claim. This is a simple negligence case.

Substantial evidence supports the finding that Davis was injured by fumes he

inhaled on the evening in question while working at the Dow facility.

Eyewitnesses testified that a cloud of noxious vapors arose from the area of the

chemical spill. Davis’s testimony and that of several doctors adequately

substantiated his claim that his subsequent physical difficulties resulted from the

inhalation of noxious fumes from that spill. The jury permissibly could have

inferred negligence. White testified that on previous occasions chemicals had

leaked behind the blinds. It was therefore foreseeable that this scenario might

occur and the jury was free to conclude, as it obviously did, that the failure to

4
Ikerd v. Blair, 101 F.3d 430 (5th Cir. 1996).
5
Crosthwait Equip. Co. v. John Deere Co., 992 F.2d 525 (5th Cir. 1993).
6
Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316 (5th Cir. 1994).
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anticipate and prevent a spill of this nature was, under all relevant circumstances,

unreasonable and therefore negligent.

The only arguable basis for upholding the judgment as a matter of law is that

the identity of the employees responsible for the spill was not proven adequately.

The district court rested its judgment on this point. Our review of the record

persuades that sufficient evidence supported the jury’s determination that the

responsible workers were employees of J.E. Merit, or persons for whom J.E. Merit

was legally responsible.

Davis testified that only J.E. Merit employees wore blue hard-hats. White

arrived on the scene and ordered the two men in the pipe rack to stop the leak.

During the safety meeting the employees in question sat at a table reserved for J.E.

Merit employees and White addressed admonitions to them personally, calling one

of them by a nickname. It cannot be gainsaid that reasonable minds could differ

as to the identity of the critical employees. The judgment as a matter of law was

granted in error and must be reversed.

B. Motion for New Trial

The trial court may set aside a jury verdict which is against the great weight

and preponderance of the evidence.7

7
Williams v. Chevron U.S.A., Inc., 875 F.2d 501 (5th Cir. 1989).
8
 When the trial judge sets aside a jury verdict and orders a new trial,
however, our deference to him is in opposition to the deference due
the jury. Consequently, in this circuit as in several others, we apply a
broader review to orders granting new trials than to orders denying
them. And where a new trial is granted on the ground that the verdict
is against the weight of the evidence, we exercise particularly close
scrutiny, to protect the litigants’ right to a jury trial.8

To prevent an inappropriate substitution of the trial court’s judgment for that of the

jury, new trials granted on evidentiary grounds will not be upheld “unless, at a

minimum, the verdict is against the great-not merely the greater-weight of the

evidence.”9

In prior cases, we have noted three factors that militate against new trials and

require a particularly searching review of the evidence: (1) simplicity of the issues,

(2) the extent to which the evidence is in dispute, and (3) the absence of any

pernicious or undesirable occurrence at trial.10 If these factors are present,

our deference to the jury is reinforced by our confidence in its ability
to understand the issues, to evaluate credibility and sort through
conflicting testimony, and to act reasonably and fairly in the absence
of prejudicial influences. In this situation there is little, if any, need
to defer to the judge as against the jury, and we will not affirm an
order granting a new trial unless on review we are satisfied,
independently, that the jury verdict was against the great weight of the

8
Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) (citations omitted).
9
Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980).
10
See, e.g., Shows; Conway.
9
 evidence.11

All of the foregoing principles apply to this case; we cannot agree that the verdict

was against the great weight of the evidence.

The evidence varied about whose employees were in the pipe rack. The

plaintiff asserted that they were J.E. Merit employees primarily because (1) they

wore blue hats, which he understood were unique to J.E. Merit employees; (2) they

were seated at a table reserved for J.E. Merit employees during the safety meeting;

(3) White, the J.E. Merit supervisor, admonished the workmen and called one of

them by a nickname during that meeting; and (4) the removal of blinds was a task

that J.E. Merit employees would likely perform. Evidence supports all of these

assertions.

There was controverting evidence. Two of the plaintiff’s witnesses were

unsure of the color of the hard-hats. Defense witnesses testified that Dow

employees wore blue hard-hats and that supervisors from several of the contractors

on site wore blue hard-hats. Defense testimony also indicated that National

Maintenance Co., another contractor on site, could have been responsible for

removing the subject blinds. White testified, however, that he personally

supervised and directed mixed crews of J.E. Merit and National Maintenance

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Shows at 931.
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employees.

Taking the evidence as a whole, we conclude that a reasonable juror was free

to conclude that either or both of the two men in the pipe rack were employees of

J.E. Merit.

We are mindful that the defendant’s evidence cast doubt on the identity of

the employees in the pipe rack, but there manifestly is no “great weight” of

evidence in this record to that effect. All issues were hotly contested and supported

by substantial evidence on both sides. This was a jury call and its decision must be

reinstated. We therefore reverse the judgment as a matter of law and the alternative

grant of new trial, and render judgment in favor of the plaintiff reinstating the jury

verdict. An appropriate judgment thereon is to be entered by the district court.

REVERSED and RENDERED.

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