### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-40442 Summary Calendar

WAYNE PEARSON ET AL,
Plaintiffs
v. BP PRODUCTS NORTH AMERICA, INC., Defendant–Appellant/ Cross-Appellee
v. GILBERT CANTU; GREGORIO FUENTES; WILLIE MAYS, JR., Intervenor Plaintiffs–Appellees/ Cross-Appellants

Appeals from the United States District Court for the Southern District of Texas USDC No. 3:07-CV-221

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: * U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Novembe r 10, 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-40442 Document: 00511662376 Page: 1 Date Filed: 11/10/2011No. 10-40442 I. FACTUAL AND PROCEDURAL BACKGROUND In 2005, as a precaution du e t o Hurricane Rita, BP Products North America (“BP” or the “Appellant”) decided t o shut down all of its Texas City Refinery (the “Refinery”). Following Hurricane Rita, BP decided to audit, evaluate, and “turn around” each of the units at the Refinery on an indivi dual basis before resuming production. To complete the turnaround, BP used independent contractors for most of the work. O n any given day during the turnaround, betw e e n fifteen and sixteen thousand contractors were at the Refinery doing turn-around work. One such contractor was Fluor Corporation (“Fluor”). Fluor accepted the responsibility to control the maintenance work at Pipestill 3B, one of the refinery’s units. In 2007, when the events that gave rise to this lawsuit occurred, only about one-third of the Ref i n e ry’s units were upand-running. On the night of April 19, 2007, G i lb e rt Cantu, Gregorio Fuentes, and Willie Mays Jr. (collectively, the “Appellees”) were amon g th e 4 50 contractors working for Fluor on the turnaround of Pipestill 3B. Around 9:00 p.m., workers began smelling an odor unlike those one usually smells i n a r e f i n ery. The workers who s m elled it described it as smelling like acetone, but the Refinery does not produce any acetone. None of the hundreds of monitors and detectors designed to detect the release of any harmful gases w as triggered. Fluor’s foremen stopped w o rk o n P ipestill 3B and allowed any worker to be examined at a local hospital; about one hundred work e rs went. Upon medical examination, no workers were found to have any exposure injuries that required hospital admission or required them to miss work. One hundred plaintiffs filed suit in the Souther District of Texas, claiming that the injuries from the April 19 incident and other previous incidents at the Refinery were caused by BP’s negligence. The district court conducted a joint trial of ten plaintiffs’ (the “Trial Plaintiffs”) claims that arose out of the April 19

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incident in particular. The Appellees were part of that ten-plaintiff group. At t ri a l , the Trial Plaintiffs’ theory was that the gas was carbon disulfide and i t

came from BP’s Sulfur Recovery Unit. None of the Trial Plaintiffs’ experts could identify the odor’s source or its cause. The most definitive proof that the Trial Plaintiffs marshaled that the gas was carbon disulfide was a mask worn by one of the Trial Plaintiffs, which was found to have had exposure to carbon disulfide. But, the laboratory technician who tested the mask admitted that the mask had not been appropriately maintained for proper scientific study. BP moved for judgment as a matter of law, which the district court denied, and the claims were submitted to the jury. As part of the jury’ s c h a r g e , the district court instru cted the jury that it could infer the Appellant’s negligence through the doctrine of res ipsa loquitur

. The jury retur n e d a v erdict for the Trial Plaintiffs and awarded approximately $325,000 in compensatory damages amongst the ten Trial Plaintiffs and also $100 million in punitive damages ($10 million per Trial Plaintiff). The di s t rict court entered final judgment for the T ri a l Plaintiffs but vacated the jury’s award of punitive damages becaus e th e Trial Plaintiffs failed to prove gross negligence, as required under Texas law

. BP timely appealed. Only three of the Trial Plaintiffs’ claims are the subject of this appeal as the other seven Trial Plaintiffs have settled with BP.

II. STANDARD OF REVIEW AND APPLICABLE LAW We review a district court’s denial of a motion for judgment as a matter of law de novo, applying the same standards as the district court. M cBeth v. Carpenter , 565 F.3d 171, 176 (5th Cir. 2009). In r e vi ewing such a denial, “we view all evidence and draw all reasonable inferences in the light most favorable to the verdict.” Allstate Ins. Co. v. Receivable Fin. Co. , 501 F.3d 39 8 , 4 0 5 ( 5 th Cir. 20 0 7) (i nternal quotation marks omitted). “In an action tried by jury, a motion for judgment as a matter of law is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” McBeth , 565 F.3d at 176. Where “a
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reasonable jury would not have a legally sufficient evidentiary basis to find for

a party,” Fed. R. Civ. P. 50(a)(1), the court should grant the motion for judgment as a matter of law. Allstate , 501 F.3d at 405 (5th Cir. 2007). Where, as here, federal jurisdiction i s b a s ed on diversity, we apply the substantive law of the forum state—Texas. Aubris Re s . LP v. St. Paul Fire & Marine Ins. Co., 566 F.3d 483, 486 (5th Cir. 20 0 9) (c i t i n g Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78–79 (1938)) (additional citation omitted). In resolving issues of Texas law, we look to the final decisions of the Texas Supreme Court,

w h i c h are binding, but if there is no decision directly on point, then w e m u s t determine how that court, if presented with the issue, would resolve it. Packard

v. OCA, Inc. , 624 F.3d 726, 729 (5th Cir. 2010). “The de c i s i o n s of Texas i ntermediate appellate courts may provide guidance, but are not controlling

. ” Id. III. DISCUSSION BP argues that it was improper for the district court to have instructed the jury on res ipsa loquitur and that absent that instru c ti o n , Appellees could not show that it was negligent. The Texas Supreme Court in Haddock v. Arnspiger , 793 S.W.2d 948 (Tex. 1990), summarized the a p plicability of res ipsa under Texas law:
Res ipsa loquitur , meaning “the thing speaks for it s e l f, ” i s used in certain limited types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant’s negligence to support such a finding. Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 250 (Tex. 1974); Marathon Oil Co. v . St e rner , 632 S.W.2d 571, 573 (Tex. 198 2 )

. Res ipsa loquitur is applicable only when two factors are p r e s e n t : (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Mobil Chem. , 517 S.W.2d at 251; Marathon O i l , 6 3 2 S.W.2d at 573. Res ipsa loquitur is simply a rul e o f e vidence by which negligence may be

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inferred by the jury; it is not a separate cause of a c t i on from negligence. Jones v. Tarrant Util. Co. , 6 3 8 S

. W.2d 862, 865 (Tex. 1982).
Id . at 950. Appellants argue that Marathon Oil forecloses the use of res ipsa to prove negligence in chemical release cases. While we do not thi n k th a t the Texas Supreme Court has laid down a per se rule against the use of res ipsa in these types of case, we do find the analogous facts in Marathon Oil persuasive in determining the appropriateness of the res ipsa inst ru c t i o n given in this case. In Marathon Oil , an employee of a contractor was working at a refinery doing

a turnaround job. Marathon Oil , 632 S.W.2d at 572. The employee entered into

a vessel and “noticed a sour, rotten, musk o i l smell.” Id

. (internal quotation marks omitted). After a short time, the employee became ill from the smell. Id

. Upon hearing about this, the contractor stopped work in the vessel to investigate the smell, but there was no trace of harmful gas found, and work resumed. Id

. at 573. At the trial, the employee’s expert could not identify the “exa c t g a s” involved. Id

. The Te x as Supreme Court found a res ipsa instruction inappropriate under the circumstances because “[e]scaping gas in the vicinity of

a complex c h e m i c a l plant could be due to an unexpected and unforeseeable mechanical failure or it could be due to negligence.” Id

. M oreover, the court found that the employee could not prove that “the instrumentality causing the injury was in the control of Marathon,” th e o w n e r o f the refinery, and not the contractor turning around that specific vessel. Id at 574. The factual similarities between Marathon Oil and this case are too si m il a r f o r us to overlook. Here, there was a report of a noxious gas that the Appellees claimed caused their injuries. No monitors or detectors registered any harmful gas release. Th e Ap p ellees claim that the gas released was carbon disulfide based on a lab test of a mask worn on the day of the incident, but which

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was admitted not to be in suitable condition for normal testing procedures. None of the Appellants’ experts could identify where the odor came from or whether if it was even from B P ’ s p r o p e rty. The Appellees have shown neither that the character of the accident is one that would not usually occur absent negligence

nor that the injury-causing instrumentality was in BP’s control. See Haddock , 793 S.W.2d at 950. In such circumstances, the district court s h o u ld not have instructed the jury on res ipsa loquitur

. Without a res ipsa instructi o n , the Appellees cannot mee t th e i r b urden of proof as to negligence. See Greater Houston Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 199 0). IV. CONCLUSION For the foregoing reasons, we VACATE the jury’s verdict and REVERSE the district court’s denial of Appellants’ motion for judgment as a matter of law. VACATED; REVERSED.

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