* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 30, 2007 Charles R. Fulbruge III Clerk 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40029 Summary Calendar

DOUGLAS O’NEILL Plaintiff-Appellee v. SEARIVER MARITIME, INC. Defendant-Appellant

Appeals from the United States District court for the Southern District of Texas, Galveston Division 3:05-CV-425

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM: * SeaRiver Maritime, the defendant-appellant, now appeals the district court’s adverse findings of fact, and denial of two trial motions. We AFFIRM. FACTS Douglas O’Neill, the plaintiff-appellee, was a seaman for SeaRiver. He began a tour aboard the MEDITERRANEAN, which picked up loads ofcrude oil in Qatar and Oman for delivery in Japan. O’Neill’s job was to gauge and sampleNo. 07-40029

2 the cargo tanks. During the voyage, the amount of hydrogen sulfide vapors rose to dangerous levels, i.e., 200 parts per million or greater. Douglas O’Neill suffered permanent injuries including severe headaches, memory and breathing problems. O’Neill was diagnosed with decreased respiratory function caused by the heightened levels ofhydrogen sulfide. O’Neill was also diagnosed with brain damage primarily decreased concentration, personality change, and short-term auditory memory impairment. He was unable to return to work as a result of his neurological damage and any further contact with hydrocarbons would cause

severe asthma attacks. O’Neill sued SeaRiver in federal court. The district court found SeaRiver liable for negligence under theJones Act, 46 U.S.C. § 688, and for unseaworthiness. The court also found the plaintiff 20% negligent “for

not more aggressively providing for his own safety.” The district court found O’Neill had sustained $800,000 in damages, yielding an award of $600,000 due to O’Neill’s contributory negligence. The court later corrected its judgment to provide for an award of $640,000. SeaRiver now appeals the trial court’s findings of fact below and its treatment of two trial motions. ANALYSIS SeaRiver asserts an error in the trial court’s findings of fact as to causation: whether O’Neill’s injurieswere caused by a harmful level ofhydrogen sulfide exposure of 200 parts per million (“ppm”) or more. We review a district court’s j udgment’s findings of fact under a clearly erroneous standard. I n re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005). SeaRiver appeals the denial ofits motion toexclude O’Neill’s medical causation expert. We review the trial court’s admission or exclusion of expert testimony under an abuse of discretion standard. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir. 2002). SeaRiver also appeals the district court’s denial of its motion for a new trial. We review denial ofa motion for new trial for abuse of discretion. U nited States v. Blackthorne

, 378 F.3d 449, 452 (5th Cir. 2004).No. 07-40029

3 1. District Court Did Not Clearly Err in Finding Heightened levels of Hydrogen Sulfide Caused O’Neill’s Medical Problems

SeaRiver contends that O’Neill never proved he was exposed to hydrogen sulfide at 200 ppm or greater. “We recognize that scientific knowledge of the harmful level of exposure to a chemic al, plus knowledge that the plaintiff was exposed tosuch quantities, are minimal facts necessary tosustain the plaintiffs' burden in a toxic tort case.” Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 670 (5th Cir. 1999) (internal quotations and citations omitted). We have not required the plaintiff to show the precise level of toxic chemicals to which they

were exposed. Id. at 671. Circumstantial evidence can be used to establish injurious exposure and the proof necessary to establish causation is “relatively lenient.” S laughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Ci r. 1991). The standard for causation in Jones Act cases is “very light.” Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir. 1987) (quoting Landry v. Two R. Drilling Co., 511 F.2d 138, 142 (5th Cir. 1975)). Under this deferential standard of review, we cannot find that the district court clearly erred in concluding that O’Neill was exposed to hydrogen sulfide at 200ppm or at greater levels. In Oman, O’Neill saw a plum of vapor when he was gauging and sampling. An expert witness provided an opinion that a vapor at that location would have been greater than 200 ppm. O’Neill also presented evidence that he

was exposed to the toxic levels at the location most susceptible to high concentrations, and just two days later a reading of 200 ppm was gauged in the same area, along with readings of 100 ppm in other parts of the ship. In addition, many ofthecrew-members, including O’Neill, were beset with symptoms consistent with exposure to high levels of hydrogen sulfide. The appellant also appeals the district court’s finding of causation. The appellant contends the district court engaged in improper “post-hoc” reasoning whereby the court inferred the source ofinjury from O’Neill’s symptoms alone. When theNo. 07-40029

4 symptoms appear close in time to the alleged injury, this court has recognized symptoms as circumstantial evidence ofthe link between the alleged source and the injury if “there is an established scientificconnection between the exposure and illness or other circumstantial evidence supporting the causal link.” Curtis, 174 F.3d at 670. In this case, expert witnesses establish the scientific connection between the symptoms and the exposure to toxic hydrogen sulfide levels. As stated earlier, there is other circumstantial evidence supporting the causal relationship, including the readings of 200 ppm or greater around the ship. We cannot say that under theJones Act’s lenient standards for causation and the highly deferential clear error standard, the district court clearly erred in concluding that a greater than 200 ppm existed when O’Neill was exposed to the hydrogen sulfide and that it was the cause ofhis injuries. The same analysis would apply to the seaworthiness claim. 2. TheDistrict Court did not abuseitsdiscretion in admitting thetestimony ofthe plaintiff’s expert witness We are also highly deferential todistrict courts in their decisions to admit

or exclude expert testimony. See Watkins v. Telsmith, 121 F.3d 984, 988 (5th Cir. 1997) ("District courts enjoy wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous.") (internal quotations omitted). SeaRiver appeals its denial of its motion to exclude Dr. James Dahlgreen, the plaintiff’s expert witness. SeaRiver argues on appeal that Dr. Dahlgreen’s testimony was unreliable, because he failed to exclude possible alternate causes, ignored evidence ofno harmful exposure, and engaged in posthoc reasoning. SeaRiver relies primarily on Black v. Food Lion, Inc., 171 F.3d 308, 313-14 (5th Cir. 1999). In F ood Lion, Inc. , we reversed the trial court’s admission of an expert, because he engaged in post-hoc reasoning when establishing a cause ofinjury without eliminating other possibilities. I d. at 314.No. 07-40029

5 Food Lion did not invalidate the use of symptoms or evi dence of an effect to prove cause; instead, Food Lion approved the exclusion of an expert who establish cause from effect without identifyi ng a scientific basis for his determination. See Id. (“The underlying predicates of any cause-and-effect medical testimony are that medical science understands the physiological process by which a particular disease or syndrome devel ops and knows what factors cause the process to occur. Based on such predicate knowledge, it may then be possible tofasten legal liability for a person's disease or injury.”). Unlike Food Lion, the plaintiff’s expert in this case did establish the critical scientific predicate for the cause-and-effect relationship by detailing the symptoms and physiological effects caused by exposure to high levels of hydrogen sulfide. Concluding O’Neill’ssymptomsasconsistent with that scientifically established cause-and-effect relationship, the expert testimony cannot be considered manifestly unreliable. In addition, the evidence of the symptoms was used in connection with other circumstantial evidence that O’Neill and other crewmembers were exposed to high levels of hydrogen sulfide. See Curtis, 174 F.3d at 670. The appellant also contends the plaintiff’s expert was unreliable, because he f ailed to exclude possible alternate causes. The plaintiff’s expert did recognize several of the causes in his report, but noted that these potential “causes” occurred during his childhood and ruled them out in his report. Moreover, reviewing the record, the appellee’s expert did have a chance, during cross-examination, to address the alternative causes and provided reasons why they were not relevant to his concl usions. His diagnosis, affirmed in crossexamination, was sufficiently reliable. See In re Paoli Ry. Yard PCB Litigation, 35 F.3d 717, 761 (3rd Cir. 1994) (“Thus, to avoid exclusion of his or her opinion, [the experts] did not have to conduct every possible test to assesswhether his or her view was correct so long as he or she employed sufficient diagnosticNo. 07-40029

6 techniques to have good grounds for his or her conclusion that the plaintiff's illness was caused by PCBs.”). We do not find the admittance of this evidence

manifestly erroneous, and the admittance, even if erroneous, was likely harmless. SeeGuyv. Crown Equipment Corp., 394 F.3d 320, 324 (5th Cir. 2004). 3. The District Court Did Not Abuse its Discretion in Denying SeaRiver’s Motion For a New Trial We usually do not consider a trial court’s denial of a motion, because he wants to enforce local rules, as an abuse of discretion. Victor F., by Gene F. v. Pasadena Ind. School Dist., 793 F.2d 633, 635 (5th Cir. 1986). We also do not find an abuse of discretion when the trial judge denied SeaRiver relief from clerical mistake. SeaRiver cannot point to any evidence that it sent the transcript order form to the Clerk’s Office. See Riley v. City ofJackson, Miss., 99 F.3d 757, 761 (5th Cir. 1996). While the trial court judge relied on a debatable ground for dismissing the motion for a new trial, any error would be harmless, because the trial judge assessed the merits of the appellant’s motion. Heconcluded that hewould have denied the motion even ifprocedural errors did not bar his consideration. Since the trial judge did have an opportunity to assess the merits, any error in the denial based on procedural grounds is harmless. Cf. Ellison v. Conoco, Inc., 950 F.2d 1196, 1206 (5th Cir. 1992). For the foregoing reasons, we AFFIRM.