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then reversed in an unpublished opinion.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). 

### 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 State s District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Appellants Mari a de la Cruz, Frances Ponce, and Pamela

Calderon sued their employer, Excel Corporation, for injuries they

allegedl y suffered while working at Excel's meatpacking plant. 1Jur isdiction 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 E xcel'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

su ffer from various forms of cumulative trauma disorder ("CTD")

resulting from their use of the Whizard knives.

Cumulative trauma disorders are charact erized 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 one2 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. 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 c umulative trauma disorders in

meatpacking plants, and has published guidelines offering

suggestions on how to minimize the r isk factors associated with

CTDs. Spec ific 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 d esigned to help meatpacking plants mitigate therisk 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.

Caldero n 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 judgm ent 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. C rosthwait 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. I d.; Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th

Cir.1969) (en banc). We affirm the judgment if the facts andinf erences 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 evi dence 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. A llied 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. J ones 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." A llied,

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 pro ximate 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 factor s: cause in fact and

foreseeability. I d. "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." E l Chico Corp. v. Poole, 732 S.W.2d 306, 313

(Tex.1987). Foreseeability means that a person of ordinary

intellig ence should have anticipated the dangers that his

negligence created. I d. 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. M cClure 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,

8 35 S.W.2d 689, 698 (Tex.App.—Dallas 1992, writ denied); F igure

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 ofthe doctors who examined them, nor did they offer any expert

evidence regarding the causat ion of cumulative trauma disorders.

Instead, they attempted to prove causation by circums tantial

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

postu re. There is little dispute that work at the Whizard table

was extremely repetitive and that A ppellants were given little

chance to tak e 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 t he 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

a verage 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 thevibrations, 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 f ormally

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 testifie d 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 afore mentioned 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. S ee 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 cond uct of Excel "caused an event and that this

event caused" Appellants to suffer injuries. B urroughs Wellcome

Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). The evidence in this

case establishes merely that Excel caused an event, v iz., the4 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. 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 d id 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 diagn osis 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 "I6 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. 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 sig ns 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 flu id in the

intercarpal compa rtment," 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 pre sented no evidence suggesting that "torn triangular

fibrocartilage" i s 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 note d 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 reasonablemedical probability" to constitute evidence of causation, and

"[t]his rule applies whether the opinion is expressed in testimony

or in a medical record." B urroughs, 907 S.W.2d at 500. Reasonable

probability is det ermined by the substance and context of the

medical o pinion, and it does not turn on the use of a particular

term or phrase. I d. The "substance and context" of the medica l

records of all three doctors indicate that de la Cruz d oes 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 plainti ffs 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 tr auma 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.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. But de la Cruz did not present such testimo ny 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 insu fficient to

allow a jury to infer causation. S ee 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 e ventually 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 painin 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

c aused by her work with the Whizard knife. Before her first

surgery, Ponce was diagnosed as havi ng 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 Whiz ard 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 involved9 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. exp osure to a number of risk factors associated with cumulative

trauma, is sufficient to allow a jury to infer caus ation. S ee

Beeson, 835 S. W.2d at 698. We must therefore reverse the order

granting Excel's m otion for judgment as a matter of law. S ee

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 an d preponderance of the evidence

adm itted 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 anyform of CTD. Dr. Foreman initially noted that Calderon suffers from

"right trapez ius 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 ord er 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.