* Pursuant to 5TH CIR. 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 5TH CIR.

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 of crude oil

in Qatar and Oman for delivery in Japan. O’Neill’s job was to gauge and sample
No. 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 permanentinjuries including severe headaches, memory and breathing

problems. O’Neill was diagnosed with decreased respiratory function caused by

the heightened levels of hydrogen 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 the Jones 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 injuries were caused by a harmful level of hydrogen

sulfide exposure of 200 parts per million (“ppm”) or more. We review a district

court’s judgment’s findings of fact under a clearly erroneous standard. In re

Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005). SeaRiver appeals the

denial of its motion to exclude 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 of a motion for new trial for abuse of discretion. United

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 chemical, plus knowledge that the plaintiff was

exposed to such quantities, are minimal facts necessary to sustain 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.” Slaughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Cir. 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 200 ppm 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 ofthe crew-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 of injury from O’Neill’s symptoms alone. When the
No. 07-40029

4

symptoms appear close in time to the alleged injury, this court has recognized

symptoms as circumstantial evidence of the link between the alleged source and

the injury if “there is an established scientific connection between the exposure

and illness or other circumstantial evidence supporting the causal link.” Curtis,

174F.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 the Jones 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 thatit was the cause of his injuries. The same analysis

would apply to the seaworthiness claim.

2. The District Court did not abuse its discretion in admitting the testimony ofthe

plaintiff’s expert witness

We are also highly deferential to district 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 of no 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 Food Lion, Inc., we reversed the trial court’s

admission of an expert, because he engaged in post-hoc reasoning when

establishing a cause of injury without eliminating other possibilities. Id. at 314.
No. 07-40029

5

Food Lion did not invalidate the use of symptoms or evidence of an effect to

prove cause; instead, Food Lion approved the exclusion of an expert who

establish cause from effect without identifying 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 develops and knows what

factors cause the process to occur. Based on such predicate knowledge, it may

then be possible to fasten 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’s symptoms as consistent 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 failed 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 conclusions. 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 assess whether his or

her view was correct so long as he or she employed sufficient diagnostic
No. 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. See Guy v. 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 of Jackson, 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.

He concluded that he would have denied the motion even if procedural 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.