[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 1 6433

________________________ D.C. Docket No. 1: 11

- cv - 21589

- CMA

WILLIAM C. SKYE , Plaintiff

– Appell ee , versus

MAERSK LINE , Limited Corporation , d

. b

. a . Maersk Line Limited , Defendant

– Appell ant

.

________________________ Appeal from the United States District Court for the Southern District of Florida

_______________________ (May 15, 2014) Before PRYOR , JORDAN, and FAY, Circuit Judges

. PRYOR, Circuit Judge : This appeal requires us to decide whether a seaman can recover money damages under the Jones Act, 46 U.S.C. § 30104 , for an injury stemming from

Case: 12-16433 Date Filed: 05/15/2014 Page: 1 of 152 excessive work hours and an erratic sleep schedule. William Skye, formerly the chief mate of the Sealand Pride , a commercial vessel , suffers from left ventricular hypertrophy, which he complained that his employer, Maersk Line Limited Corporation d/b/a Maersk Line Limited , caused when it negligen tly saddled him with “excessive duties and duty time” such that he was “overworked to the point of fatigue.” At trial, t he jury found Maersk liable to Skye , who the jury foun d suffered damages of $2,36 2 ,299.00, which the district court reduced to $590,574.75 to account for Skye’s comparative negligence. Maersk moved for a judgment as a matter of law on the ground that the decision of the Supreme Court in Consolidated Rail Corp . v. Gottshall , 512 U.S. 532, 114 S. Ct. 2396 (1994), barred Skye ’s complaint

. The district court denied that motion and entered judgment in favor of Skye. We REVERSE the denial of the motion for a judgment as a matter of law and RENDER judgment in favor of Maersk because Skye’s complaint of an injury caused by work

- related stress is not cognizable under the Jones Act , which concerns injuries caused by physical perils. See Gottshall , 512 U.S. at 558, 114 S.
Ct. at 2411

– 12. I. BACKGROUND Between 2000 an d 2008, William Skye worked on the Sealand Pride as chief mate. The Sealand Pride was first chartered and later operated by Maersk. Skye’s job duties required him to work overtime , which adversely affected his

Case: 12-16433 Date Filed: 05/15/2014 Page: 2 of 153 health because of fatigue, stress, and lack of sleep. Skye regularly worked between 90 and 105 hours per week for 70 o r 84 days at a time. A t sea, Skye worked 12 hours; in port, he might have work ed “round the clock.” In 2000, Skye’s cardiologist diagnosed him with a benign arrhythmia and recommended that Skye change his diet and rest more

. In 2003, Skye returned to his cardiologist, who said his diagnosis had not changed. Skye’s symptoms worsened in 2004 when Maersk began directly ma naging the Sealand Pride and increased his duty time

. Skye worked 12 to 1 5 percent more overtime hours

. And his working hours were replete with arduous duties: logging in cargo carrying hazardous material at various ports for eight hour s at a time ; inspecting roughly
144 “ reefers , ” which are refrigerated containers, to ensure they were keeping cargo cold ; repairing “ cell guides ,” which ho ld cargo containers ; and descending six stories via ladders and manholes into the hull of the Sealand Pride to ins pect and repair the interior of the ballast tanks, which hold water to balance the ship.
B y 2008, Skye was experiencing headaches, a sore back, and a burning sensation in his chest in addition to his arrhythmia , so Skye returned to his cardiologist, who diagnosed him with left ventricular hypertrophy, a thickening of the heart wall of the left ventricle, which his cardiologist attributed to hype rtension

. Skye’s cardiologist concluded that Skye’s “continued physical stress related to his job, with long hou rs and lack of sleep” caused his labile

Case: 12-16433 Date Filed: 05/15/2014 Page: 3 of 154 hypertension

— intermittent high blood pressure while on the job

— which, in turn, caused his left ventricular hypertrophy

. The cardiologist advised Skye to stop working on the vessel. In 2011, Skye filed a complaint a gainst Maersk for negligence under the Jones Act. Skye alleged that his working conditions caused h is left ventricular hypertrophy and that Maersk was negligent when it failed to provide him with reasonable working hours, an adequate crew, and adequate res t hours and instead “overworked [him] to the point of fatigue.” He alleged that these working conditions led to “physical damage to [his ] hear t .” At trial , Skye and his cardiologist testified that his excessive hours and resulting stress were the mo st likely causes of his injury. Skye testified that his arduous work schedule and his lack of sleep had an adverse effect on his health. His cardiologist testified that Skye’s working conditions “were a substantial contribution” to his left ventricular hyp ertrophy. The cardiologist opined that Skye developed labile hypertension because of the “stress of his job as chief mate” and “the lack of regular sleep,” which in turn “caused the left ventricular hypertrophy.” The cardiologist explained that “people who live under constant physical stress secrete large amounts of adrenaline” as part of a “fight or flight response.” And when “adrenaline is secreted for long periods of the day, that has a deleterious effect on their health.” He continued, “Long working hou rs and stress can lead to

Case: 12-16433 Date Filed: 05/15/2014 Page: 4 of 155 this fight or flight response, and that, in turn, can lead to left ventricular hypertrophy.”
At the conclusion of trial , Maersk moved for a directed verdict on the grounds that Skye could not recover for money damages for an inju ry caused by work

- related stress and, alternatively, that the statute of limitations barred his claim. Maersk argued that Gottshall , in which the Supreme Court held that plaintiffs could not recover for work

- related stress under the Federal Employers’ Liab ility Act, barred Skye’s claim as a matter of law. The district court denied the motion. Before the jury deliberated, the court instructed the jury as follows that it must decide whether Skye’s injury and its causes w ere physical or emotional : The law ho lds that a seaman such as the plaintiff cannot receive compensation for a purely emotional injury. A purely emotional injury is an injury that has no physical causes, but, rather was solely caused by the injured person’s perception of a nonphysical stress. The injured person, however, may receive compensation for an injury caused in any part by physical stress. You will need to determine whether plaintiff’s injury is a physical one or an emotional one. If you determine it is an emotional one, in order to re cover, plaintiff has the burden of proving by a preponderance of the evidence that his injury was sustained as a result of his fear for his own physical safety or incurred while in a zone of immediate physical danger. The district court provided the jury with a special verdict form that required it to decide whether Skye’s inju ry was “physical” or “emotional. ”

Case: 12-16433 Date Filed: 05/15/2014 Page: 5 of 156 The jury returned a verdict finding that Skye sustained a physical injury , but that Skye was 75 percent at fault for his injuries. It found that S kye suffered damages of $2,362,299.00, which the district court reduced to $590,574.75 to account for Skye’s comparative negligence. After the verdict, Maersk moved for a judgment as a matter of law , which the district court denied. II. STANDARD OF REVIEW
We review the denial of a motion for a judgment as a matter of law de novo and apply the same standards as the district court. Ash v. Tyson Foods, Inc. , 664 F.3d 883, 892 (11th Cir. 2011). We will reverse the denial of a motion for a judgment as a matter of law “only if the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict.” Id. (internal quotation mark omitted). “We will not second

- guess the jury or substitute our judgment for its judgment if its verdict is supported by sufficient evidence.” Lambert v. Fulton Cnty., Ga. , 253 F.3d 588, 594 (11th Cir. 2001). “ We view all the evidence and draw all inferences from it in the light most favorable to

. . . the nonmoving party. ” Ash , 664 F.3d at 892. III. DISCUSSION The Jones Act provides a cause of action in negligence for “a seaman” personally injured “in the course of e mployment,” 46 U.S.C. § 30104 , in the same way tha t the Federal Employers’ Liability Act provides a cause of action in

Case: 12-16433 Date Filed: 05/15/2014 Page: 6 of 157 negligence for injured railroad employees against their employers , 45 U.S.C. §§ 51

– 60. The Jones Act incorporated the remedial scheme of the Federal Employer s’ Liability Act, and case law interpreting the latter statute also applies to the Jones
Act. 46 U.S.C. § 30104 (“Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section. ”); see also O’Donnell v. Great Lakes Dredge & Dock Co. , 318 U.S. 36, 38

– 39, 63 S. Ct. 488, 490 (1943).
N ot all work

- related injuries are cognizable under the Federal Employers’ Liability Act and, by extension, the Jones Act. See Gottshall , 512 U.S. at 555

– 56,
114 S. Ct. at 2410

– 11. T he Supreme Court h as made clear that these statutes are “aimed at ensuring ‘the security of the person from physical invasions or menaces.’” Id. (emphasis added) (quoting Lancaster v. Norfolk & W

. Ry. Co. , 773 F.2d 807 , 813 (7th Cir. 1985 )). For employers to be liable, the employees’ injuries must be “caused by the negligent conduct of their employers that threatens them imminently with physical impact.” Id. at 556, 114 S. Ct. at 2411. Skye’s injury is not cognizable under the Jones Act ev en when we draw all inferences from the evidence presented to the jury in the light most favorable to him and assume that his work schedule caused him to develop left ventricular hypertrophy. The Jones Act does not allow a seaman to recover for injuries caused by work

- related stress because work

- related stress is not a “physical peril [] .” Id. at

Case: 12-16433 Date Filed: 05/15/2014 Page: 7 of 158 555, 114 S. Ct. at 2410. The district court erred when it denied the motion of Maersk for a judgment in its favor as a matter of law. Skye’s c omplaint fails for the same reason that plaintiff A lan Carlisle’s complaint failed in Gottshall

. In Gottshall , the Supreme Court ruled that injuries caused by the long

- term effects of work

- related stress are not cognizable under the Federal Employers’ Liability Act because they are not caused by any physical impact or fear from the threat of physical impact

. 512 U.S. at 558, 114 S. Ct. at
2411

– 12. Carlisle sued his employer after suffering from insomnia, headaches, depression, weight loss, and a nervous breakdow n attributable to “work[ing] 12

- to 15

- hour shifts for weeks at a time.” Id. at 539, 114 S. Ct. at 2402. Carlisle alleged that his employer failed to provide him with a safe workplace “by forcing him to work under unreasonably stressful conditions” and tha t its failure “resulted in foreseeable stress

- related health problems.” Id. The Supreme Court adopted the

zone - of

- danger test for injuries not caused by a physical impact ; Carlisle’s injuries

were c ompensable only if Carlisle was injured when he was within the zone of danger of a physical impact caused by his employer’s negligence. Id. at 5 56, 114 S. Ct. at 2410

– 11 (“[A] worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to hims elf, whereas a worker outside the zone will not.” ). T he Supreme Court held that “Carlisle’s work

- stress

- related claim plainly does not fall within the common law’s

Case: 12-16433 Date Filed: 05/15/2014 Page: 8 of 159 conception of the zone of danger, and Carlisle makes no argument that it does. . . . [W]e wi ll not take the radical step of reading [the Federal Employers’ Liability Act] as compensating for stress arising in the ordinary course of employment.” Id. at 558, 114 S. Ct. at 2411

– 12; s ee also Smith v. Union Pac. R.R. Co. , 236 F.3d 1168, 1173

– 74 (10th Cir. 2000) (“[A] work schedule is not the physical peril against which [the F ederal Employers’ Liability Act ] protects.”); Szymanski v. Columbia Transp. Co. , 154 F.3d 591, 594

– 95 (6th Cir. 1998) (en banc) (holding that the estate of a seaman could not reco ver under the Jones Act for a fatal heart attack allegedly induced by excessive work hours); Crown v. Union Pac. R.R. Co. , 162 F.3d 984, 98 5 (8th Cir. 1998) (refusing recovery for extreme weight gain, carpal tunnel syndrome, knee joint problems, cough sync ope syndrome, sleep apnea, diabetes, various addictions, and a nervous breakdown, all of which were attributable to excessive work hours). Under Gottshall , Skye’s complaint is not cognizable under the Jones Act

. His complaint parallels Carlisle’s complaint of an injury induced by overwork

. Skye complained that he was “injured while aboard the vessel” because “[r]educed manning and other conditions caused excessive duties and duty time.” And Skye alleged that Maersk was negligent when it “[f]ail[ed] to provi de [him] with reasonable working hours,” “adequate personnel, time, and equipment,” and “adequate rest hours,” and “overworked [ him ] to the point of fatigue.”

Case: 12-16433 Date Filed: 05/15/2014 Page: 9 of 1510 A s the Supreme Court explained in Gottshall , the “ central focus ” of the Federal Employers’ Liability Act, and the Jones Act by extension, is “on physical perils.” 512 U.S. at 555, 114 S. Ct. at 2410. An arduous work schedule and an irregular sleep schedule are not physical peril s . T hat Skye developed a “physical injury” is no matter; the cause o f his injury was work

- related stress. See Szymanski , 154 F.3d at 594

– 95. Carlisle too had physical injuries

— weight loss and headaches

— but a physical injury is not enough. Gottshall , 512 U.S. at 539, 558, 114 S. Ct. 2402, 2411

– 12. Compensating Skye for his injury would potentially lead to , in the words of the Supreme Court, “a flood of trivial suits, the possibility of fraudulent claims . . . and the specter of unlimited and unpredictable liability” because there is no way to predict what effect a stressful work environment

— compared to a physical accid ent such as an exploding boiler

— would have on any given employee. See i d. at 557, 114 S. Ct. at 2411. Skye’s complaint of a physical injury caused by work

- related stress is foreclosed by binding precedent of the Supreme Court , and the judgment in his favor cannot stand as a matter of law. Id. at 558, 114 S. Ct. at 2411

– 12. Because we decide that Skye’s complaint is not cognizable under the Jones Act, we need not decide whether the statute of limitations bars his claim.

Case: 12-16433 Date Filed: 05/15/2014 Page: 10 of 1511 IV. CONCLUSION We VACATE the judgment awarding Skye $590,574.75

. We REVERSE the denial of the motion of Maersk for a judgment as a matter of law and RENDER judgment in favor of Maersk.

Case: 12-16433 Date Filed: 05/15/2014 Page: 11 of 1512 FAY , Circuit Judge, concurring specially: I concur in the court’s opinion, because we are bound by the decision of the Supreme Court in Consolidated Rail Corp. v. Gottshall , 512 U.S. 532, 114 S. Ct. 2396 (1994). In my view, however, the majority opinion in that case is contrary to the language, p urpose, and spirit of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. , and the Jones Act, 46 U.S.C. § 30104, concerning a seaman’s recovery of damages for a job

- related injury. The core purpose of both is to provide covered employees with a safe place to work. Being required to work 90 and 105 hours per week for 70 or 84 days at a time is hardly being given a safe place to work. I fail to see the difference between being given a defective piece of equipment and being required to wor k outrageous hours, in determining whether or not the workplace was safe. Surely, an employer is no less negligent in doing either. Most respectfully, my hope is that the Supreme Court will revisit this area of the law. As Justice Ginsburg stated in her dissent in Gottshall : “Instead of the restrictive ‘zone’ test that leaves severely harmed workers remediless, however negligent their employers, the appropriate FELA claim threshold should be keyed to the genuineness and gravity of the worker’s injury.” Gottshall , 512 U.S. at 572, 114 S. Ct. at 2419 (Ginsburg, J., dissenting).

Case: 12-16433 Date Filed: 05/15/2014 Page: 12 of 1513 JORDAN, Circuit Judge, dissenting: With respect, I dissent. William Skye alleged, and proved to the satisfaction of a jury, that he suffered physical damage to his heart as a result of Maersk forcing him to work for an excessive number of hours (about 16 hours a day on average) without providing him adequate periods of rest. Like the district court, I do not think that Mr. Skye’s claim under the Jones Act, 46 U.S.C. § 30104, constituted a claim for negligent infliction of emotional distress, i.e., “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another that is not directly brought about by a physical injury, but may manifest itself in physical symptoms.” Consolidated Rail Corp. v. Gottshall , 512 U.S. 532, 544 (1994). The verdict form asked the jury whether Mr. Skye sustained a “physical injury” or an “emotional injury.” The jury specifically found that Mr. Skye sustained only a phy sical injury due to Maersk’s negligence, and characterized this injury as “left ventricular hypertrophy,” a thickening of the heart wall which can affect the pumping of blood in the ventricle and lead to congestive heart failure.
See Verdict Form, D.E. 15 8 at 1, 2; Trial Tr., D.E. 166 at 606. We owe “great deference” to the jury’s factual findings, Grant v. Preferred Research, Inc. , 885 F.2d 795, 798 (11th Cir. 1989), and I do not believe we can say, as a matter of law on this record, that Mr. Skye’s injury was purely emotional. See also Quality

Case: 12-16433 Date Filed: 05/15/2014 Page: 13 of 1514 Foods, Inc. v. U.S. Fire Ins. Co. , 715 F.2d 539, 543 (11th Cir. 1983) (“We cannot

over em phasize [ sic ] the great weight and deference which must be given to jury verdicts.”). As a result, the zone of danger test articulated in Gottshall does not apply. See Gottshall , 512 U.S. at 547

- 48 (adopting zone of danger test to “limit[ ] recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct”). I recognize that federal and state courts are divided about the sco pe of Gottshall. Some courts have read Gottshall more broadly, as the majority does, while others have interpreted it more narrowly, as I do. Compare, e.g. , Szymanski v. Columbia Transp. Co. , 154 F.3d 591, 594

- 95 (6th Cir. 1998) (10

- 3 en banc decision), and Capriottti v. Consolidated Rail Corp. , 878 F. Supp. 429, 432

- 33 (N.D.N.Y. 1995), with, e.g. , Walsh v. Consolidated Rail Corp. , 937 F.Supp. 380, 387

- 89 (E.D. Pa. 1996), and Duncan v. Am. Commercial Barge Line , LLC , 166 S.W.3d 78, 83

- 84 (Mo. App. E.D. 20 04) . As I see it, the more constrained reading of Gottshall is supported by the Supreme Court’s more recent decision in Norfolk & Western Railway Co. v. Ayers , 538 U.S. 135, 157 (2003), which distinguished Gottshall and held that “an asbestosis sufferer [ can] seek compensation for fear of cancer as an element of his asbestosis

- related pain and suffering damages.” In the words of Ayers, “[t]he plaintiffs in Gottshall and [ Metro

- North Commuter Railroad

Case: 12-16433 Date Filed: 05/15/2014 Page: 14 of 1515 Co. v. Buckley , 521 U.S. 424 (1997)] grounded their sui ts on claims of negligent infliction of emotional distress. The claimants before us, in contrast, complain of a negligently inflicted physical injury (asbestosis) and attendant pain and suffering.” Id. at 148. Like the claimants in Ayers , Mr. Skye is co mplaining of a negligently inflicted physical injury

— left ventricular hypertrophy. Congress enacted the Jones Act “for the benefit and protection of seamen who are peculiarly the wards of admiralty.” Atl. Sounding Co. v. Townsend , 557 U.S. 404, 417 (2009) (internal quotation marks omitted). Given that purpose, and absent definitive indication from the Supreme Court, I would not read the Jones Act to preclude liability for an employer who makes a seaman work so hard and so continuously that he suffer s physical injury in the form of heart disease, heart attack, organ failure, seizure, or stroke.

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