UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-41378

GILBERT ADAME, JR.; ET AL,

Plaintiffs,

GILBERT ADAME, JR.; GILBERTO

ADAME, SR.; JESSIE ADAME; JOE Z.

ADAME; REYNALDO FLORES; ERASMO

GARZA; ANTONIO MARTINEZ; ARTURO

MARTINEZ; JERRY MARTINEZ; TONY H.

MARTINEZ; ALFONSO SANCHEZ, JR.;

ERNEST VELA,

Plaintiffs-Appellees,

and

LUANN NELSON,

Plaintiff-Appellant,

and

JOE ADAME, JR., Intervenor-Plaintiff-Appellant,

and

JOSE L. GONZALEZ,

Intervenor-Plaintiff-Appellee

versus

KOCH PIPELINE CO., LLP, ET AL;

Defendants,

SUN PIPE LINE COMPANY,* 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not be published and is not precedent except under the limited circumstances set forth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.

2 Defendant-Appellant-Appellee.

Appeals from the United States District Court

for the Southern District of Texas

(C-96-CV-516)

October 24, 2000

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges

POLITZ, Circuit Judge: *

Sun Pipe Line Company appeals an adverse judgment on jury verdict in this toxic

tort action. Luann Nelson Rosalis and Joe S. Adame, Jr. appeal an adverse judgment

based on the statute of limitations. For the reasons assigned, we affirm.

BACKGROUND

Each of the fifteen plaintiffs worked for Ruiz Lease Services Company between

1985 and 1990. Some regularly worked full-time, others worked part-time or full-time

on a sporadic basis. All of the claimants maintain that they were forced to clean fuel

storage tanks at Sun’s I n gleside facility, doing so under extremely dangerous

conditions. In 1996, the plaintiffs sued Sun, alleging that Sun negligently exposed them

to benzene and toluene, causing blood changes which rendered them susceptible to

leukemia and other blood diseases. They also claimed cerebral and central nervous1 Harrington v. Harris , 118 F.3d 359 (5th Cir. 1997).

2 Threlkeld v. Total Petroleum, Inc. , 211 F.3d 887 (5th Cir. 2000).

3 Harrington , 118 F.3d at 367.

4 Threlkeld , 211 F.3d at 891.

3 system impairments.

The case was tried to a jury which found that the claims of Rosalis and Adame

were barred by the statute of limitations because the action was filed m ore than two

years after the accrual of their claims. The jury returned a verdict in favor of the other

plai ntiffs and awarded damages for past physical pain, mental anguish, physical

impairment, and fear of cancer. The jury also awarded these plaintiffs punitive

damages. Denying Sun’ s Motion for Judgment as a Matter of Law and Rosalis’ and

Adame’s Motion for a New Trial, the tria l court entered a final judgment consistent

with the verdict. Sun, Rosalis, and Adame timely appealed those denials, and Sun also

raises a question about the admission of certain expert testimony.

ANALYSIS

A motion for judgment as a matter of law in an action tried by a jury is a

challenge to the legal sufficiency of the evidence supporting the jury's verdict. 1 We

review the denial of such motions de novo

, 2 applying the same standard as that used by

the district court and honoring the verdict unless the record i s devoid of a legally

sufficient evidentiary basis upon which a reasonable jury could find as the challenged

jury did. 3 Where jurisdiction is founded upon diversity of citizenship of the parties, we,

of course, apply state law. 45 General Electric Co. v. Joiner , 522 U.S. 136 (1997).

6 Whitehead v. Food Max of Mississippi, Inc. , 163 F.3d 265 (5th Cir. 1998).

7 I d. at 269 (quoting Hidden Oaks Ltd. v. City of Austin

, 138 F.3d 1036 (5th

Cir. 1998)).

8 Id. (internal quotation marks and emphasis omitted).

4 Sun challenges the admission of certain expert testimony. The district court’s

decision to admit or exclude expert testimony is reviewed for abuse of discretion. 5 We

likewise apply the abuse of discretion standard in reviewing the denial of a motion for

a new trial. 6 The trial court may only grant a new trial on evidentiary grounds if the

verdict clearly is “contrary to the great weight of the evidence.” 7 Because the trial

court weighs all of the evidence in making its determination, this court gives that

determination great deference, and will only fi nd an abuse of discretion if “the party

that was the movant in district court makes a clear showing of an absolute absence of

evidence to support the jury’s verdict . . . .” 8

A close review of the record on appeal, the briefs, and the arguments of counsel

persuades that the district court did not err in denying Sun’s motion for judgment as a

matter of law. We further conclude that the trial court did not abuse its discretion by

admitting the expe rt testimony of Dr. A. Nelson Avery, as the court correctly

determined that Sun’s criticisms regarding his testimony went to its weight rather than

its admissibility. Finally, our detailed review of the plaintiffs’ trial testimony, along

with other evidence adduced at trial, discloses some evidence to support the jury’s

finding that Ro s alis and Adame knew that they suffered from a latent, work-related5

injury prior to August 30, 1994, more than the allotted two-year period for the filing of

suit. Therefore, their motion for a new trial properly was denied.

For the foregoing reasons, the judgment as entered by the trial court is

AFFIRMED.