RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0085p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

RICHARD L. TAYLOR,

 Plaintiff-Appellee,

v.

TECO BARGE LINE, INC.,

 Defendant-Appellant.

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No. 07-5255

Appeal from the United States District Court

for the Western District of Kentucky at Paducah.

No. 04-00033—Thomas B. Russell, District Judge.

Argued: December 4, 2007

Decided and Filed: February 20, 2008 

Before: GUY, MOORE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Ronald E. Fox, FOX GALVIN, St. Louis, Missouri, for Appellant. Brian S. Katz,

BLOOMFIELD & KATZ, Paducah, Kentucky, for Appellee. ON BRIEF: Ronald E. Fox, Greg

J. Erickson, FOX GALVIN, St. Louis, Missouri, for Appellant. Brian S. Katz, BLOOMFIELD &

KATZ, Paducah, Kentucky, L. Jeff Bloomfield, BLOOMFIELD & KATZ, Memphis, Tennessee,

for Appellee. 

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Plaintiff Richard Taylor (“Taylor”), formerly

a deckhand on the M/V Ann Peters for TECO Barge Line, Inc. (“TECO”), sued his former employer

for damages, claiming exposure to coal tar left him with a permanent, severe skin reaction. After

a jury awarded Taylor one million dollars, TECO brought this appeal. On appeal, TECO asserts that

the district court made three evidentiary errors, erred in denying its motion for a judgment as a

matter of law, and erred in refusing to offer a jury instruction on the harmlessness of the chemical

in question. Additionally, TECO argues that the jury verdict was excessive. For the following

reasons, we AFFIRM the district court’s judgment.

1
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 2

I. BACKGROUND

A. Factual Background

Taylor began working for TECO in October 2000, and at that time he had no history of skin

trouble. When he started at TECO, Taylor was assigned to the M/V Ann Peters as an inexperienced

deckhand. According to Taylor, at some point in late 2000 or early 2001, as part of his deckhand

duties, he was instructed to enter the potable water tank and sweep the walls and floor. At trial,

Taylor testified that he was given no protective equipment in order to perform this task. When he

emerged from the tank, he was covered with dust and noticed that he had developed “a sunburn type

rash” on his skin. Joint Appendix (“J.A.”) at 507 (Aug. 15, 2006, Trial Tr., Taylor Test. at 52:10-

15).

Over the next several months, Taylor’s rash continued to develop. The rash would get better

when he disembarked from the ship and would worsen when he returned. As time passed, the rash

began to spread up his hands to his arms. On March 26, 2001, Taylor requested medical attention

for the rash, which by now had advanced up his right arm. Doctor J.H. Simpson twice evaluated

Taylor during this period of time and diagnosed Taylor with contact dermatitis. While sailing on

November 3, 2001, the rash worsened, and Taylor again sought medical attention. Taylor thus

began a long history of medical consultation and treatment. See J.A. at 186-249 (records of various

medical consultations and treatments between 2001 and 2004). Despite medical attention, Taylor’s

rash continued to worsen; according to Taylor, “it got to a point where my skin wouldn’t get better

when I got home.” J.A. at 511 (Taylor at 66:22-23).

In 2003, TECO directed Taylor to return to the water tank. According to Taylor, he and

three other crewmen were instructed to enter the tank and remove all of the material coating the

tank. In order to do their work, the crewmen were each fitted for a full face mask and a respirator,

but Taylor testified that they were provided with only a smaller face mask, safety glasses, and a

Tyvek paper suit. The crewmen’s work made the tank extremely dusty, a circumstance exacerbated

by the use of a fan that blew air into the tank. According to Taylor, it was so dusty that it was

difficult for the crewmen to see. When Taylor emerged from the tank, he was covered in black dust,

including a coating of dust over his exposed skin; Taylor once again developed a sunburn-type

reaction. Taylor was not the only employee to react to the substance; two of the other deckhands

cleaning the tank also suffered chemical burns. David Duane Dubrock (“Dubrock”), TECO’s safety

manager, told Taylor and the other deckhands that he suspected that the tank was coated with a

substance called Bitumastic. Bitumastic is a sealant that contains coal tar, and coal tar is a known

carcinogen that can sensitize skin.

After visiting numerous other doctors, in February 2004, Taylor began to see Dr. Artis Truett

III (“Dr. Truett”). A test on March 29, 2004, revealed that Taylor had developed an allergy to coal

tar. As Dr. Truett testified in his deposition, which was admitted at trial: “I tested him to coal tar,

which is suppose [sic] to cross-react with Bitumastic. So, yes, I think he was allergic to the

Bitumastic 300 and that caused him to break out in an itchy rash.” J.A. at 1197-98 (Dec. 28, 2005,

Dr. Artis Truett Depo. at 41:24-42:42). After trying various topical ointments, in January 2006, Dr.

Truett prescribed phototherapy for Taylor. Taylor received at least thirty-five phototherapy

treatments, which were reportedly helping to reduce his rash.
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 3

1

 The Jones Act was repealed on October 6, 2006. Pub. L. 109-304, § 19, 120 Stat. 1485, 1711 (2006). The

repeal, however, does not apply to “duties that matured, penalties that were incurred, or proceedings that were begun

before the date of enactment of this Act . . . .” § 19, 120 Stat. at 1710. Taylor commenced his action in 2004.

Furthermore, Congress added language nearly identical to the Jones Act at 46 U.S.C. § 30104 et seq.

2

 The MSDS are documents that provide data on the components of a chemical substance, the components’

proportions within the substance, and instructions for safe use of the substance.

B. Procedural Background

Taylor sued TECO on February 10, 2004, and amended the complaint on March 9, 2004.

He raised claims under both the Jones Act, 46 U.S.C. § 688 et seq.,1

 and general maritime law. The

complaint alleged that TECO was negligent in exposing him to Bitumastic and that the ship was

unseaworthy because of the presence of Bitumastic.

On June 14, 2006, TECO filed a motion in limine to exclude from evidence any Material

Data Safety Sheets (“MSDS or data sheets”)2

 regarding Bitumastic that were dated after 1990.

TECO argued that it purchased the ship in 1990, and because the prior owners had applied the

Bitumastic to the M/V Ann Peters’s tank, the Bitumastic used may have been an older formulation.

TECO also claimed that the data sheets apply only to the application of Bitumastic, not its removal,

so the MSDS are irrelevant to Taylor’s case. On August 4, 2006, the district court denied TECO’s

motion. The district court stated that the “Plaintiff correctly notes that the Material Safety Data

Sheet (MSDS) is relevant to the safe removal of Bitumastic.” J.A. at 125 (Aug. 4, 2006, Order).

On August 15, 2006, the trial began. Just prior to voir dire, TECO sought to exclude

photographs of Taylor’s skin condition that Taylor took in March 2006, which were provided to

TECO only the week before trial. TECO claimed that it received the photographs too late for them

to be admissible. Specifically, TECO argued that admitting the photographs would be prejudicial

because TECO did not have the opportunity to use the photos during the already-recorded deposition

of Dr. Truett. The district court concluded that the photos were not prejudicial and admitted them

over TECO’s objection.

At the close of Taylor’s case, TECO asked for a judgment as a matter of law, which the

district court promptly denied.

On August 18, 2006, the jury found TECO liable under both the Jones Act and general

maritime law for unseaworthiness. The jury awarded Taylor one million dollars. The district court

discounted the award to present value and awarded Taylor $817,914. TECO renewed its motion for

a judgment as a matter of law and additionally requested a new trial or remittitur. The district court

denied the motions, and TECO filed this timely appeal.

II. DISCUSSION

A. Evidentiary Issues

1. Standard of Review

“This court reviews a district court’s evidentiary rulings for abuse of discretion, and a district

court’s determination will be reversed only if the abuse of discretion caused more than harmless

error.” Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 897 (6th Cir. 2004); see also Maday v.

Pub. Libraries of Saginaw, 480 F.3d 815, 819 (6th Cir. 2007); Tisdale v. Fed. Express Corp., 415

F.3d 516, 527 (6th Cir. 2005). “Even if a mistake has been made regarding the admission or
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 4

3

 On December 1, 2007, an amended version of Federal Rule of Civil Procedure 37(c)(1) went into effect. The

relevant portion reads: “Failure to Disclose or Supplement. If a party fails to provide information or identify a witness

as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a

motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

exclusion of evidence, a new trial will not be granted unless the evidence would have caused a

different outcome at trial.” Morales v. Am. Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 1998).

“A party that without substantial justification fails to disclose information required by Rule

26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not,

unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion

any witness or information not so disclosed.” FED.R.CIV. P. 37(c)(1).3 But inadvertent and small

mistakes are excused. See FED. R. CIV. P. 37(c)(1), 1993 Amendments, cmt. Subdivision (c). “In

particular, this court has held that where a judge has determined that testimony is otherwise

admissible, the mere fact that the party seeking its introduction has not fully complied with pretrial

orders does not mandate its exclusion . . . .” Miller v. Am. President Lines, Ltd., 989 F.2d 1450,

1466 (6th Cir.), cert. denied, 510 U.S. 915 (1993).

2. Admission of Photographs

On appeal, TECO asserts that the district court made three evidentiary errors. The first

alleged error is the district court’s admission into evidence of the March 2006 photographs that

Taylor took of his skin. According to TECO, Taylor’s disclosure of these photographs so soon

before trial made them inadmissible.

When considering TECO’s motions for a judgment as a matter of law or a new trial, the

district court justified the decision to admit the photos: “while the photographs may be harmful to

Teco, the photographs still provided an accurate description of Taylor’s skin condition at that time,

and therefore, were not overly prejudicial.” J.A. at 36 (Jan. 25, 2007, Mem. Op. at 3). In addition,

the district court stressed that “[a]t trial, Teco had ample opportunity to show the photographs [to]

the Plaintiff’s expert, and question him about them. In addition, Teco could have questioned its own

expert about the photographs; however, Teco chose not to do so.” Id. Although it is not clear to us

that TECO had the opportunity to question Taylor’s witness, Dr. Truett, regarding the photographs,

we conclude that it was not an abuse of discretion to admit the photographs. Furthermore, even if

the district court did err in admitting the photographs, the error did not influence the outcome of the

trial.

First, as the district court noted, the photographs were relevant and Taylor deserved the

opportunity to present an accurate depiction of his condition. Furthermore, the challenged

photographs were not the only images admitted into evidence; during trial, Taylor introduced

pictures from September 2003, in addition to the contested photos from March 2006. Although the

photographs themselves are not in the record, the testimony suggests that both the uncontested 2003

photographs and the contested 2006 photographs document the inflamed condition of his skin on

similar areas of his body. Compare J.A. at 520 (Taylor at 101:17-103:1) (discussing the 2003

photographs) with J.A. at 521 (Taylor at 105:2-106:25) (discussing the 2006 photographs).

Therefore, it is unlikely that admission of the 2006 photographs would have prejudiced TECO

because TECO was already prepared to deal with the previously disclosed 2003 photographs.

Second, although we disagree with the district court that TECO had the opportunity to use

the photographs to challenge Dr. Truett’s testimony, we do not believe that the lack of opportunity

to challenge Dr. Truett with the 2006 photographs prejudiced TECO. Although the district court

believed that TECO could have challenged Dr. Truett with the 2006 photographs, that would have

been impossible given that Dr. Truett gave a deposition on July 18, 2006, before Taylor turned over
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 5

the photographs in August. That said, we believe that it is unlikely that presenting the 2006

photographs to Dr. Truett would have altered the outcome of the trial. TECO believes that the 2006

photographs contradicted Dr. Truett’s testimony that phototherapy was helping Taylor, but Dr.

Truett, as Taylor’s treating physician, was well aware of Taylor’s condition. In his deposition, Dr.

Truett stated in no uncertain terms his thoughts on the phototherapy: “Well it’s helped

significantly.” J.A. at 1324 (July 18, 2006, Dr. Artis Truett Depo. at 7:15-21). In addition, Dr.

Truett’s name appears on the phototherapy treatment forms, and Dr. Truett was in charge of

adjusting the dosage for the treatment. Therefore, it seems unlikely that the March 2006

photographs would have altered Dr. Truett’s testimony. In any event, TECO could have easily

challenged Dr. Truett’s conclusions regarding the effectiveness of phototherapy through its own

witness, as we will discuss next. Thus, we conclude that presenting the 2006 photographs to Dr.

Truett would not have altered the outcome of the trial.

Third, TECO claims that the photographs were prejudicial because its witness was not

allowed to testify about the photographs. TECO, however, mischaracterizes the district court’s

ruling because the district court never barred TECO’s expert from addressing the photographs. The

district court ruled that TECO’s witness could not testify about an OSHA regulation, but TECO’s

attorneys never asked about the photographs. It is entirely possible that the district court would have

allowed TECO’s expert to testify about the photographs had TECO’s attorneys asked. Furthermore,

TECO’s expert was still able to express his doubts about the benefits of the phototherapy treatment:

The difficulty is that when I saw Mr. Taylor today he doesn’t show really a

significant improvement. His hands look pretty much the way they looked to me

when I saw him last summer, and he told me—I didn’t ask him to take his clothes

off, but he told that the rash on his arms and legs was pretty much the same as it

always was.

J.A. at 809 (Aug. 18, 2006, Trial Tr., Dr. Jonas Kalnas Test. at 588:18-23). Thus, even without

testimony regarding the 2006 photographs, which it may have been able to offer had it asked, TECO

was still able to present expert opinion regarding the effectiveness of Taylor’s treatment.

Fourth, TECO claims that had it used the photographs after they were admitted over TECO’s

objections, TECO would have waived its objections to the photographs. We conclude that this

argument is lacking force. The Supreme Court has said that “[g]enerally, a party introducing

evidence cannot complain on appeal that the evidence was erroneously admitted.” Ohler v. United

States, 529 U.S. 753, 755 (2000) (emphasis added). TECO did not seek to introduce the

photographs because Taylor already introduced them; thus, this waiver doctrine would not have

applied to TECO. Accordingly, this argument lacks merit.

Finally, we note that Federal Rule of Civil Procedure 37 did not require the district court to

bar the admission of the 2006 photographs. Although Taylor provided the photographs after the

discovery period, it was not an abuse of discretion for the district court to conclude that the omission

was a small oversight, especially given that Taylor had previously disclosed other photographs

documenting the condition of his skin over the same set of body parts.

For these reasons, we conclude that the district court did not abuse its discretion in admitting

the 2006 photographs. Even if the admission of the photographs was error, the admission did not

alter the outcome of the trial.

3. Admission of Material Safety Data Sheets

The second evidentiary error that TECO alleges is that the post-1990-Bitumastic MSDS are

irrelevant and inadmissible because the Bitumastic aboard the Ann Peters was applied sometime
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 6

before 1990. Furthermore, TECO alleges that MSDS are relevant only for the application of

Bitumastic, not its removal. We conclude that both of these arguments are without merit.

The post-1990 data sheets are relevant. Although only a pre-1990 MSDS would

conclusively establish the chemical makeup of pre-1990 Bitumastic, in the absence of any pre-1990

MSDS, more recent data sheets are suggestive as to the content of pre-1990 Bitumastic. During the

trial, Taylor introduced numerous data sheets for Bitumastic 300M Part A, and all of the data sheets

were dated after 1990. All of the sheets noted that Bitumastic contained around 30% coal tar and

warned that Bitumastic “[m]ay be harmful if absorbed through the skin. . . . May cause skin burns.

May cause allergic skin reaction.” See, e.g., J.A. at 330-31 (Mar. 4, 1996, MSDS for Bitumastic

300M Part A at 2). The data sheets also stated that they “[r]ecommend impervious gloves, clothing

and safety glasses with side shield or chemical goggles to avoid skin and eye contact. If material

penetrates to skin, change gloves and clothing. Hypersensitive persons should wear gloves or use

protective cream.” See, e.g., J.A. at 336 (Dec. 27, 2004, MSDS for Bitumastic 300M Part A at 3).

Taylor also introduced data sheets for Bitumastic 300M Part B, and those sheets also contained

warnings such as: “May cause skin reaction. May cause allergic skin reaction.” See, e.g., J.A. at

410 (Dec. 4, 2002, MSDS for Bitumastic 300M Part B at 2). The 300M Part B MSDS also

suggested that users take the same precautions as were suggested in the Part A data sheets. The fact

that all of the post-1990 sheets are almost identical suggests that Bitumastic has not changed very

much since 1990, which makes the more recent data sheets probative as to the content of pre-1990

Bitumastic.

Furthermore, TECO’s own safety manager, Dubrock, relied on an MSDS when Taylor and

the other crewmen suffered burns. Although we do not know which data sheet Dubrock used, he

testified that there was essentially no difference between the various sheets:

Q. You didn’t think it was important whether it was this MSDS for Bitumastic or

that MSDS for Bitumastic, because the risks are essentially the same?

A. They’re similar; yes, sir.

J.A. at 744-45 (Aug. 15, 2006, Trial Tr., David Dubrock Test. at 373:24-374:2). This statement by

one of TECO’s own employees further underscores the relevance of any of the Bitumastic data

sheets, even the post-1990 sheets.

Likewise, the argument that the MSDS are relevant only for the application of Bitumastic

and not the removal is also unavailing. First, Dubrock relied on the MSDS for Bitumastic when two

sailors were burned cleaning the water tank of a similar ship in 1997. Second, Dubrock used a

MSDS to tell Taylor and the other injured crewmembers about Bitumastic after they were burned

during removal of the substance. Thus, Dubrock clearly believed that the data sheets were relevant

for more than just the application of Bitumastic; Dubrock even responded in the affirmative when

asked if “the best available information as to the health hazards involved with the removal of the

product are the material safety data sheets?” J.A. at 672 (Dubrock at 301:17-20).

Dubrock’s belief that the data sheets are applicable to the removal of Bitumastic is shared

by Carboline’s (the manufacturer of Bitumastic) director of technical resources, Dwayne Meyer

(“Meyer”). Meyer stated:

There’s no government requirement to have anything specific for the removal of

coatings. So the best thing that we always tell people is to follow the guidelines that

are kind of set forth on the material safety data sheet for the application because

that’s the worst-case scenario.
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 7

J.A. at 1019 (Nov. 3, 2005, Dwayne Meyer Depo. at 46:18-23). In addition, a doctor of

environmental toxicology, Doctor Kenneth Mark Rudo (“Dr. Rudo”), testified that the chemicals

that make a compound dangerous during its application often remain until its removal:

Well, there’s—there’s most certainly going to be vapors and volatiles that can come

off once you start chipping away, and you’re banging at it and you’re breaking it up

and it’s getting in the air and the dust is getting in the air, and, you know, it’s a

confined space, and it might be hot in there, you know, you’re going to have—you

know, these chemicals are volatile.

J.A. at 583 (Aug. 14, 2006, Trial Tr., Dr. Mark Rudo Test. at 212:1-7).

For these reasons, we conclude that the district court did not abuse its discretion when it

admitted the data sheets.

4. Denial of Expert Testimony on OSHA regulations

The third and final alleged evidentiary error involves testimony regarding applicable OSHA

standards. After Taylor’s expert discussed OSHA’s confined-entry standards, which TECO argues

were inapplicable standards, TECO wanted its expert, Dr. Kalnas, to testify about the correct OSHA

standard. The district court responded that “[i]f he hasn’t provided that opinion before that’s nothing

that you were caught off guard on. And you’ve known that for a long time. He can’t give that

opinion tomorrow. I think that is prejudicial.” J.A. at 792 (Aug. 17, 2006, Trial Tr. at 522:13-17).

The district court also noted that TECO had advance notice that Taylor’s expert was going to discuss

the OSHA standard. See J.A. at 792 (Aug. 17, 2006, Trial Tr. at 522:20-523:4). Elaborating on its

denial, the district court, in response to TECO’s motion for a new trial, stated that “in both pre-trial

reports written by Dr. Kalnas and filed by the Defendant, neither report addressed Dr. Kalnas’

opinions on those matters. The Defendant made its motion to have Dr. Kalnas address these matters

mid-trial.” J.A. at 40 (Mem. Op. at 7).

The district court was correct that TECO had at least eight months of notice that Taylor was

going to discuss OSHA’s closed-entry standards. For example, on January 6, 2006, Taylor filed his

proposed jury instructions. Proposed Instruction Number 20 would have instructed the jury on a

possible violation of 29 C.F.R. § 1910.146, which is the provision dealing with confined-space-entry

procedures. Given the advance notice that TECO had, we cannot say that the district court abused

its discretion when it barred TECO’s witness from testifying on the OSHA regulation.

B. Denial of Motions for a Judgment as a Matter of Law and a New Trial

1. Standard of Review

The Jones Act embodies a “policy of providing an expansive remedy for seamen who are

injured while acting in the course of their employment.” Rannals v. Diamond Jo Casino, 265 F.3d

442, 447 (6th Cir. 2001) (internal quotation marks omitted), cert. denied, 534 U.S. 1132 (2002).

“Proof of negligence (duty and breach) is essential to recovery under the Jones Act.” Perkins v. Am.

Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir.), cert. denied, 534 U.S. 994 (2001). In

order to establish negligence, “a plaintiff must show that her employer failed to provide a safe

workplace by neglecting to cure or eliminate obvious dangers of which the employer or its agents

knew or should have known and that such failure caused the plaintiff’s injuries and damages.”

Rannals, 265 F.3d at 449. The plaintiff must establish negligence, but “[o]nce a plaintiff proves an

employer’s negligence, however, she need only show that her ‘employer’s negligence is the cause,

in whole or part, of [her] injuries.’” Id. at 447 (quoting Perkins, 246 F.3d at 598). “In essence, there

is a reduced standard for causation between the employer’s negligence and the employee’s injury.”

Perkins, 246 F.3d at 598.
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 8

Maritime law’s unseaworthiness cause of action is a basis for liability independent from the

Jones Act, but the two claims do have some overlap.

A ship owner is strictly liable for personal injuries caused by his or her vessel’s

unseaworthiness. A vessel is unseaworthy if the vessel and its appurtenances are not

reasonably fit for their intended use. Defective gear, an unfit or understaffed crew,

or the use of an improper method of storage or unloading cargo all render a vessel

unseaworthy. Even the misuse of properly functioning equipment may render a

vessel unseaworthy if the misuse occurs at the direction of a superior.

Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir. 2006) (internal quotation marks

and citations omitted). “A vessel may be unseaworthy because it contains defective gear, is missing

necessary gear, or because its crew is instructed to use unsafe work methods.” Id. Thus, a ship can

be unseaworthy for a lack of the proper safety equipment. See Perkins, 246 F.3d at 603. Although

there is strict liability for unseaworthiness, it is not a duty to “furnish an accident-free ship.”

Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).

“This court reviews a district court’s decision to deny a motion for a new trial for an abuse

of discretion. . . . A court may set aside a verdict and grant a new trial when it is of the opinion that

the verdict is against the clear weight of the evidence; however, new trials are not to be granted on

the grounds that the verdict was against the weight of the evidence unless that verdict was

unreasonable. Thus, if a reasonable juror could reach the challenged verdict, a new trial is

improper.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820-821 (6th Cir. 2000)

(internal quotation marks and citations omitted).

“We review a district court’s denial of a renewed motion for judgment as a matter of law de

novo. Judgment as a matter of law is appropriate when viewing the evidence in the light most

favorable to the non-moving party, there is no genuine issue of material fact for the jury, and

reasonable minds could come to but one conclusion in favor of the moving party.” Tisdale, 415 F.3d

at 527 (internal quotation marks and citations omitted); Danielson v. City of Lorain, 938 F.2d 681,

683 (6th Cir. 1991); King v. Love, 766 F.2d 962, 969 (6th Cir. 1985).

2. Sufficient Evidence to Support Jury Verdict

a. The Form of Bitumastic

TECO claims that it deserved a judgment as a matter of law or a new trial because there was

insufficient evidence to support a jury verdict. In support of this argument, TECO points toward two

ways in which the evidence was insufficient. First, TECO claims that the evidence presented

established that Bitumastic is not dangerous in its dried state.

As we have already discussed in the context of the admissibility of the MSDS, Dr. Rudo

offered testimony that established that Bitumastic is indeed dangerous in the dried state. In addition

to that testimony, there was additional testimony establishing that coal tar, the main ingredient in

Bitumastic, is dangerous even in its dried state. For example, Dubrock stated that regardless of

which Bitumastic product was used aboard TECO’s ships, they all contain coal tar. Dr. Rudo

testified that coal tar contains many chemicals: “But—but many of these chemicals, dozens of them

are carcinogens, human carcinogens. Dozens of them are mutagens. Dozens of them are chemicals

that can cause effects on the skin by sensitizing it.” J.A. at 574 (Dr. Rudo at 203:10-13). He then

added, “We know beyond a shadow of a doubt, there’s no—I mean it says it in these sheets. It says

it everywhere that people exposed to these chemicals that they can cause these kind of skin problems

that—that, you know, from exposure. So it’s sort of—this is sort of an absolute thing.” J.A. at 575

(Dr. Rudo at 204:8-13). It is apparent that there is quite a bit of evidence contradicting TECO’s

assertion regarding Bitumastic’s supposed safety in its dry form.
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 9

4

 Although Taylor provided a proposed jury instruction that discussed the confined-space-entry standard, the

district court never gave a similar instruction to the jury.

5

 The jury was not given a specific instruction about any OSHA standard. Instead, the instruction for the Jones

Act claim said that “Negligence under the Jones Act may consist of a failure to comply with a duty required by law.”

J.A. at 137 (Instr. No. 10) (emphasis added). Therefore, if the jury concluded that TECO failed to comply with OSHA

regulations, it could have done so only by identifying violations of the standards that Wabeke described. Since Wabeke

did not describe confined-space-entry standards, the jury could not have found a violation of those standards.

When we combine the apparent dangerousness of Bitumastic with testimony indicating that

TECO suspected that there was Bitumastic in the tank before TECO ordered the 2003 cleaning, see

J.A. at 689 (Dubrock at 318:8-18), there was sufficient evidence for a jury to conclude that TECO

was negligent.

b. The OSHA Regulation

Second, TECO claims that it deserved a new trial or a judgment as a matter of law because

the evidence established that TECO complied with OSHA standards. At trial, Taylor presented

testimony from Roger Wabeke (“Wabeke”), an industrial hygienist. Wabeke mentioned the

confined-space-entry standard during his trial testimony, a standard that TECO claims is

inapplicable; it was this testimony that led to TECO’s claims regarding the district court’s decision

not to admit its expert’s testimony, which we have already addressed. Although Wabeke initially

mentioned the disputed confined-space-entry standard, when asked to name a specific regulation that

TECO may have violated, Wabeke did not discuss the disputed standard; instead, Wabeke

mentioned 29 C.F.R. § 1910.134, the standard for respiratory protection. According to Wabeke, the

respiratory-protection regulation required TECO to provide to Taylor and the other crewmen

entering the water tank “level A personal protective equipment.” J.A. at 616 (Aug. 14, 2006, Trial

Tr., Roger Wabeke Test. at 245:8-9).

Wabeke described level A personal protective equipment as “a fully encapsulated clothing

set. It covers the head, the thorax, the torso, the arms, the legs, the feet, and it’s entirely a suit into

itself inside of which is the worker with their self contained breathing apparatus inside.” J.A. at 617-

18 (Wabeke at 246:23-247:2). In contrast, ample evidence established that TECO gave Taylor and

the other crewmen only a paper suit, a small dust mask, and some safety glasses. And Wabeke

testified that such a level of protection would not qualify as level A personal protective equipment.

It is clear that Taylor presented sufficient evidence for a jury to conclude that TECO was in violation

of 29 C.F.R. § 1910.134, the only regulation that the parties discussed at trial.

TECO contends that 29 C.F.R. § 1910.134 is not applicable and instead vaguely claims that

OSHA’s shipyard regulations are applicable. Because TECO’s brief does not refer to any specific

regulations, we can only surmise that TECO is referring to 29 C.F.R. § 1915, governing

occupational safety and health standards for shipyard employment. The shipyard provisions,

however, are inapplicable to Taylor, as the definitions specifically state that “employee means any

person engaged in [various ship-repairing or ship-building activities] . . . other than the master,

ship’s officers, [or] crew of the vessel.” 29 C.F.R. § 1915.4(d). Furthermore, TECO claims that

Wabeke testified about the confined-space-entry standard, but Wabeke discussed only the standard

for § 1910.134, which does not even use the word “confined.”4

 The most that can be said about

Wabeke’s testimony is that he did mention the confined-space-entry standard by name, but he never

explained it to the jury. Thus, if the jury relied upon Wabeke’s testimony, it must have relied upon

Wabeke’s description of § 1910.134, not the confined-space-entry standards.5

On appeal, TECO argues only with the choice of OSHA standards, not with the application

of OSHA itself. We, however, found it unclear whether OSHA standards apply at all. In 1996,
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 10

OSHA’s Directorate of Compliance Programs published Instruction CPL 2-1.20 (Nov. 8, 1996),

clarifying the differences in jurisdiction between OSHA and the U.S. Coast Guard. According to

the instruction, “OSHA may not enforce the OSH Act with respect to ‘seamen’ on inspected vessels

including the master, ship’s officers and crew members.” CPL 2-1.20(G). Not all ships, however,

are inspected; the U.S. Coast Guard inspects only “freight vessels, nautical school vessels, off-shore

supply vessels, passenger vessels, sailing school vessels, seagoing barges, seagoing motor vessels,

small passenger vessels, steam vessels, tank vessels, fish processing vessels of more than 5,000

gross tons, and fish tender vessels of more than 500 gross tons.” CPL 2-1.20(K)(1). Distinguishing

among ships is crucial because uninspected vessels are still subject to OSHA standards. See CPL

2-1.20(R). Whether OSHA or Coast Guard regulations apply is a highly factual question; because

the parties did not brief the issue, and it was not addressed at the district court, we cannot resolve

the question. Resolving the question, however, is unnecessary. Whether TECO violated the OSHA

standard was relevant only to Taylor’s Jones Act claim because the jury was instructed that

“[n]egligence under the Jones Act may consist of a failure to comply with a duty required by law.”

J.A. at 137 (Instr. No. 10). In contrast, the jury received no comparable mention of legal standards

in the instruction for Taylor’s unseaworthiness claim. See J.A. at 141 (Instr. No. 13). Because the

jury found TECO liable under both claims, even if the district court erred in using the OSHA

standard, it would have had no effect on the outcome of the trial.

Accordingly, there was sufficient evidence to support the jury’s conclusion that TECO

violated 29 C.F.R. § 1910.134. In addition, TECO is incorrect that the appropriate OSHA standard

is that for shipyards. However, on this record we are unable to determine whether OSHA governs

this case. That said, even if OSHA does not apply, the testimony regarding OSHA would not have

affected Taylor’s unseaworthiness claim.

3. Abnormal Reaction to Harmless Substance

a. The Short Case

TECO also asserts that it was entitled to a judgment as a matter of law or a new trial because

it cannot be liable for an abnormal reaction to a harmless substance. In support of this argument,

TECO relies upon Short v. Edison Chouest Offshore, Inc., 638 So. 2d 790 (Ala. 1994), an Alabama

Supreme Court case that summarily adopted the opinion of an Alabama trial court. In Short, the

plaintiff developed occupational asthma but was unable to point to any substance on the ship that

may have caused the reaction. In addition, no other crew member developed a reaction. In

considering the seaworthiness claim, the Alabama Supreme Court adopted the trial court’s

determination that “the plaintiff cannot recover from defendants because there can be no recovery

for injuries which result from allergic or idiosyncratic reactions to otherwise harmless substances.”

Id. at 793. The Alabama trial court reached this conclusion by citing one of our opinions, which the

Alabama trial court interpreted as importing products-liability law into the development of general

maritime law. See id. (citing Miller, 989 F.2d 1450).

TECO is asking us to follow Short and use a rule from products-liability law in order to

conclude that Taylor cannot recover for an idiosyncratic reaction to a harmless substance. We do

not need to address the complex question of whether we may appropriately apply products-liability

rules in general maritime law, for even if we concluded that the plaintiff cannot recover for an

idiosyncratic reaction to a harmless product, it was not an abuse of discretion for the district court

to conclude that Taylor’s reaction was not idiosyncratic and that Bitumastic was not harmless. The

record establishes that Bitumastic caused reactions in several of TECO’s employees. While the

extent of Taylor’s reaction may be unique, he certainly was not the only one to have a reaction.

Dubrock, TECO’s manager of safety and training, testified that in April 1997, he learned that two

deckhands suffered chemical burns when they cleaned the Bitumastic-coated water tank on the M/V

Cecilia M. Also, Darryl Warren, one of the deckhands on the Cecilia M, confirmed that he suffered
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 11

burns after cleaning the tank aboard that ship. At the same time that Taylor cleaned the tank on the

M/V Ann Peters, two other seamen also suffered chemical burns. This evidence clearly supports

the conclusion that Taylor’s reaction was not idiosyncratic and that Bitumastic is not harmless. The

district court, therefore, did not err when it refused to grant a new trial or a judgment as a matter of

law on the basis of the Short case.

b. Jury Instruction on Harmlessness

In the alternative, TECO argues that the jury should have been instructed to decide whether

Bitumastic was harmless. “This court reviews a district court’s refusal to give a requested jury

instruction under an abuse of discretion standard. A district court’s refusal to give a jury instruction

constitutes reversible error if (1) the omitted instruction is a correct statement of the law, (2) the

instruction is not substantially covered by other delivered charges, and (3) the failure to give the

instruction impairs the requesting party’s theory of the case.” Tompkin, 362 F.3d at 901 (citation

omitted). A party needs only a slim amount of evidence to support giving a jury instruction, but jury

instructions must be reviewed as a whole to determine whether an instruction is necessary. See Hurt

v. Coyne Cylinder Co., 956 F.2d 1319, 1327 (6th Cir. 1992).

The district court did not abuse its discretion when it refused to give TECO’s proposed jury

instruction. Although TECO claims in its brief that its proposed jury instruction would have asked

the jury to decide if Bitumastic was harmful, its proposed instruction was actually rather different.

Instead, on the basis of Short, TECO sought a jury instruction regarding hypersensitive reactions that

stated that “[t]he defendant is not liable to the plaintiff if the plaintiff’s condition/injury is the result

of any hypersensitivity or unusual reaction to a substance that is useful and safe to most people.”

J.A. at 106 (TECO Instr.). TECO’s proposed instruction was not a narrow question of harmful

versus harmless; rather, it was a restatement of Short.

We need not address whether the use of Short was even appropriate because the court did

not abuse its discretion in concluding that TECO’s instruction was unnecessary. Nowhere did the

district court instruct the jury that Bitumastic was not harmless. Instead, under the jury instructions

for the Jones Act and unseaworthiness, the jury could have concluded that Bitumastic was perfectly

safe and that TECO had no duty to Taylor regarding Bitumastic. TECO was allowed to present

evidence to support that position, and TECO did in fact try to prove that dried Bitumastic was safe.

See J.A. at 801 (Kalnas at 558:3-4) (“Once the substance has dried, the volatiles are really gone.”).

The jury instructions, taken as a whole, provided TECO with ample opportunity to establish

Bitumastic’s harmlessness. Thus, the district court did not abuse its discretion when it refused to

give TECO’s proposed jury instruction.

C. Excessive Verdict

1. Standard of Review

“We will not find an award excessive if the verdict is within the range of proof and the jury

was properly instructed.” Leila Hosp. & Health Ctr. v. Xonics Med. Sys., Inc., 948 F.2d 271, 278

(6th Cir. 1991) (internal quotation marks omitted). “In evaluating the jury award, the primary

consideration is whether the award is within the range of proof. ‘[T]he determination of whether

a jury’s verdict is excessive is resolved by the discretionary consideration of the trial judge. Absent

clear abuse of discretion, appellate courts will not make their own appraisals.’” Meyers v. Wal-Mart

Stores, E., Inc., 257 F.3d 625, 633 (6th Cir. 2001) (alteration in original) (quoting Padgett v.

Southern Ry. Co., 396 F.2d 303, 309 (6th Cir. 1968)). “[I]t matters only that the award itself is

supportable by a reasonable interpretation of the evidence.” Jackson v. City of Cookeville, 31 F.3d

1354, 1361 (6th Cir. 1994). “Unless the award is (1) beyond the range supportable by proof or
No. 07-5255 Taylor v. TECO Barge Line, Inc. Page 12

(2) so excessive as to shock the conscience, or (3) the result of a mistake, we must let the award

stand.” Leila Hosp. & Health Ctr., 948 F.2d at 278 (citation omitted).

“When considering whether an award is excessive, the Court will consider . . . the nature and

extent of the injuries, suffering, expenses, diminution of earning capacity, inflation and high cost

of living, age and expectancy of life.” Thompson v. Nat’l R. R. Passenger Corp., 621 F.2d 814, 827

(6th Cir.) (citations omitted), cert. denied, 449 U.S. 1035 (1980).

2. Excessiveness of the Verdict

TECO’s final argument is that the jury’s one million dollar verdict was excessive. We

disagree; the jury’s award was supported by the evidence presented.

On the basis of Taylor’s 43.17-year life expectancy, Taylor’s counsel presented several

figures to the jury, each of them based upon thirty-five years of future damages. Using this thirtyfive year figure, Taylor’s counsel suggested to the jury that they could award between $35 per day

and $65 per day for 35 years for pain and suffering. Such figures would yield an award ranging

from $447,125 to $830,375. The jury awarded Taylor $725,000 for pain and suffering. Thus, the

pain and suffering award was within the range Taylor’s counsel suggested.

Taylor’s counsel suggested that Taylor deserved $164,500 for medical expenses. Once

again, he calculated this by multiplying Taylor’s expenses, which are uncontested, over a thirty-five

year span. The jury awarded $200,000 for future medical expenses.

Next, Taylor’s counsel suggested that Taylor deserved $99,000 for transportation to his

phototherapy treatments. The jury awarded $70,000 for transportation.

When the jury combined these figures with compensation for the $5,000 that Taylor already

paid in medical expenses, it reached a total verdict of one million dollars. Had the jury awarded the

maximum figures that Taylor’s attorney suggested, the jury award would have been, at most,

$1,098,875. Thus, the jury’s total award was well within the amount that Taylor requested.

The only part of the jury award that exceeded the requested amount was the award for future

medical expenses. This award of $200,000 for future medical expenses, however, was not outside

of the range of proof. Although Taylor’s attorney used thirty-five years as a conservative estimate

of Taylor’s life, the attorney also noted that Taylor had over a forty-three-year life expectancy.

When the same medical expenses are extended over a forty-three-year span, Taylor’s medical

expenses would total $202,100. “Accordingly, the jury award was not outside the range argued for

by the Plaintiff.” J.A. at 41 (Mem. Op. at 8).

Because the award was within the range of proof and because TECO does not object to the

underlying evidence supporting the figures that Taylor’s attorney used, we conclude that the jury

award was not excessive.

III. CONCLUSION

For the preceding reasons, we AFFIRM the judgment of the district court.