IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-10303

_____________________

ERNEST MOSLEY,

Plaintiff-Appellant,

versus

EXCEL CORPORATION,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas, Lubbock

_________________________________________________________________

March 26, 1997

Before JOLLY, JONES, and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from a claim against a meat packing

company, Excel Corporation (“Exce l”), which is a non-subscriber

under the Texas Workers’ Compensation system and is therefore

liable for negligence to its employees. Excel was sued by Ernest

Mosley , an employee who suffers from bilateral carpal tunnel

syndrome because, according to his contention, Excel negli gently

failed to provide safe working conditions. The jury returned a

verdict in favor of Mosley and awarded $360,000 in damages. The

trial judge, however, was not impressed with Mosley’s evidence on1 The break area is the portion of the plant where the beef

carcasses are broken down so that they can be distributed to

various areas throughout the plant. The break area encompassed

several jobs, including wing operator, frank cutter, scaler, rail

watcher, and skirt puller.

2 A skirt puller is the individual responsible for cutting the

skirt steak out of a beef carcass. In order to perform the job, a

2 causation and granted Excel’s renewed motion for judgment as a

matter of law. He further conditionally granted Excel’s motion for

new trial in the event the judgment as a matter of law was vacated

or reversed on app eal. Mosley appeals and seeks to have the

ju dgment as a matter of law reversed, the conditional grant of a

new trial vacated and the jury verdict reinstated. We affirm the

judgment of the district court.

I

Excel operates meat packing pl ants throughout the country,

including a plant in Plainview, Texas. Mosley is employed at the

Plainview plant and ha s been an employee there, in various

capacities, since 1981. At the time in question, Mosley worked as

a supervisor in the “break area” of the plant. 1 As supervisor of

the break area, Mosley was responsible for assuring that all jobs

in the department were adequately performed.

Mosley, however, contends that chronic absenteeism caused his

department to be understaffed. Consequently, he spent between

sixty and s e venty percent of his time working as a skirt puller, 2puller uses a hook, held in his left hand, to hold a carcass steady

as it travels along a suspended chain. As the puller uses the hook

t o stabilize the carcass, he walks alongside the carcass and

removes the skirt steak using a knife held in the right hand. It

takes an average of six cuts to remove a steak.

3 The parties do not dispute that Mosley suffers from carpal

tunnel syndrome in both wrists. In fact, Mosley has undergone

three surgeries to alleviate the problem. Excel paid all of the

expenses related to the surgeries and the corresponding nonsurgical treatment.

4 Cumulative trauma disorders are injuries that result from the

“wear and tear” on the tissue surround ing joints, ligaments, and

tendons. These injuries are distinguished within the meat packing

industry from accidental injuries that are the result of an

identifiable occurrence.

3 one of several positions in his department, in order to provide

adequate personnel for that position. It is this work, replacing

the regular skirt pullers, that Mosley contends caused his carpal

tun nel syndrome. 3 Mosley contends that Excel failed to provide a

safe workp lace because of the negligent failure to implement

adequate “precautionary” measures--such as decreased production

rates and increased staff size--that he alleges would have aided in

the prevention of cumulative trauma disorders such as carpal tunnel

syndrome. 4

At the conclusion of the trial, the jury returned a verdict

for Mosley and awarded damages. The trial judge then granted

Excel’s renewed motion for judgment as a matter of law, holding

that Mosley “failed in [his] burden to produce legally sufficient5 Mosley also appeals the trial court’s grant of judgment as a

matter of law in favor of Excel on the issues of gross negligence

and punitive damages and the condition al grant of a new trial in

the event the judgment as a mat ter of law was reversed. Our

resolution of the appeal of the judgment as a matter of law on the

liability question renders these other grounds of appeal moot.

4 evidence that any act or omission on the part of Defendant, EXCEL

CORPORATION, was a cause in fact of [Mosley’s] injuries, and that

[Mosley] failed in [his] burden to produce legally sufficient

evidence to show t hat [his] injuries were reasonably foreseeable

fr om the work activities associated with the employment at EXCEL

CORPORATION.” Accordingly, the district court entered judgment in

favor of Excel. Mosley appeals. 5

II

A

We review the grant of a judgment as a matter of law using the

same standard utilized by the trial court in granting the motion.

Crosthwait Equip. Co. v. John Deere Co.

, 992 F. 2d 525, 528 (5th

Cir.), cert. denied

, 114 S.Ct. 549 (1993). The standard of review,

as set forth in Boeing Co. v. Shipman , instructs us to

consider all of the eviden ce--not just that evidence

which supports the non-mover’s case--but in the light and

with all reasonable inferenc es most favorable to the

party opposed to the motion. If the facts and inferences

point so strongly and overwhelmingly in favor of one

party that the Court believes that reasonable men could

not arrive at a contrary verdict, granting of the motion

is proper. On the other hand, if there is substantial

evidence opposed to the motion[], that is, evidence of6 Mosley is a resident of Texas, a nd Excel is a Delaware

corporation with its principal place of business in Kansas. The

amount in controversy exceeds the jurisdictional requirement of

$50,000.

5 such quality and weight that reasonable and fair-minded

men in the exercise of impartial judgment might reach

different conclusions, the motion[] should be denied, and

the case submitted to the jury. A mere scintilla of

evidence is insufficient to present a questi on for the

jury. The motion[] . . . should not be decided by which

side has the better of the case, nor should [it] be

granted only when there is a com plete absence of

probative facts to support a jury verdict. There must be

a conflict in substantial evidence to create a jury

question. However, it is the function of the jury as the

trad itional finder of the facts, and not the Court, to

weigh conflicting evidence and inferences, and determine

the credibility of witnesses.

411 F.2d 3 65, 374-75 (5th Cir. 1969) (en banc). It is therefore

our task today to consider all of the evidence, construed in favor

of Mosley, and to determine whether the evidence supports the

jury’s verdict. Upon such review, we conclude that, because of the

lack of a “conflict in substantial evidence,” the judgment as a

matter of law should be affirmed.

B

Mosley’s sued Excel in federal district court in Texas, basing

jurisdiction on the total diversity of the parties. 6 S ee 28 U.S.C.

§ 1332. Texas substantive law therefore controls Mosley’s

negligence claim. Thus, Mosley was required to demonstrate that

Excel owed a specific duty to him, that Excel breached that duty,6

that Excel’s breach caused his injury, and that he suffered damage

as a result of Excel’s breach. S ee El Chico Corp. v. Poole , 732

S.W.2d 306, 311 (Tex. 1987). The district court held, in granting

the judgment as a matter of law, that Mosley failed to establish

causation.

Causation has two components, cause in fact, or “but for”

cause, and foreseeability. S ee Doe v. Boys Clubs of Greater

Dallas

, 907 S.W.2d 472, 477 (Tex. 1995). Proof of causation

requires more than conjecture or guess, and the existence of a

causal link between Mosley’s injury and Excel’s negligence must be

demonstrated by the introduction of probative evidence. I d. There

need not, however, be direct and positive proof, as the jury may

infer proximate cause “from the ci r cumstances surrounding the

event.” B .M. & R. Interest v. Snyder

, 453 S.W.2d 360, 363 (Tex.

Civ. App. 1970).

C

We turn now to examine whether Mosley’s evidence was

sufficient to allow the jury to return a verdict in his favor. It

is important to note at the outset that Mosley was req uired to

prove that some negligent act or omission by Excel actually caused

his bilateral carpal tunnel syndrome, not merely that his work as

a replacement skirt puller led to his injuries.7 Ergonomics is the “applied science concerned with the

characteristics of people that need to be considered in designing

and arranging things that they use in order that people and things

will interact most effectively and saf ely.” Webster’s Third New

International Dictionary (1993) . In the employment context,

ergonomics deals with efforts to fit a job to a person in order to

make the job physically easier to perform.

7 1

At trial Mosley presented three witnesses: (1) Steve Steffe,

the Safety Director and Occupational Benefits Coordinator at Excel;

(2) Andrew Jackson, a former Excel employee; and (3) Chris Flores,

a former light duty class instructor at Excel. Mosley also

testified on his own behalf. During the testimony of these

witnesses and during cross-examin a tion of witnesses called by

Excel, Mosley also presented various documentary evidence including

several publications relating to ergon o mics 7

, the records of

reported injuries at Excel, an d his medical file from Excel.

Additionally, Mosley introduced into evidence--through no witness--

medical records from six treating physicians and/or hospitals, as

well as three other ergonomics publications. To determine whether

this evidence is sufficient to support a jury verdict that Excel’s

negli gence caused Mosley’s injuries, we must examine it in some

detail.

(a)8 The two publications admitted into evidence were: Ergonomics

Program Management Guidelines for Meatpacking Plants (O.S.H.A.

1990) and Ergonomics for Management--Excel (ErgoTech, Inc. 1991).

9 The injury log is an O.S.H.A. 200 log t hat reports all

injuries at the plan t requiring more than a single visit to the

nurse’s office. Injuries of this type are known as O.S.H.A.

reportables and include both accidental injuries and cumulative

trauma disorders.

8 Mosley called Steve Steffe to testify regarding the ergonomics

program at Excel and the number of cumulative trauma disorders at

the plant. Steffe testified that he was currently employed as the

safety director and occupational benefits coordinator at Excel and

that he had been directly involved with the ergonomics program at

the plant in the late 1980's or early 1990's. Through this

witness, Mosley introduced two publications detailing ergonomic

guidelines and suggestions 8 and the inju ry log for the plant in

1991 and 1992. 9 Steffe testified that although he was responsible

for O.S.H.A. compliance at the plant he could not recall whether he

had reviewed the O.S.H.A. guidelines provided in 1990. He further

acknowledged t hat the causes of cumulative trauma disorders,

according to the O.S.H.A. publication, included repetitive and/or

prolonged activities, forceful exertions, prolonged static

postures, awkward postures of the upper body, and cold temperatures

among others and that the position of skirt puller involved some of

those factors. The materials introduced by Mosley suggested1 0 Because Excel paid all of Mosley’s medical expenses relating

to his carpal tunnel syndrome, Steffe may have had little choice

but to admit that the injury was work related. Steffe did not,

9 modifying jobs and plant conditions in order to reduce the risk of

injuries to workers. Modifications suggested by these publications

included reducing the chain speed, increasing staffing, reducing

repetitions required by jobs, providing frequent rest pauses, and

allowing job rotation.

When Steffe was questioned regarding the number of cumulative

trauma disorders that occurred at the plant around the time Mosley

was injured, the following statistical p icture emerged. At the

t ime of Mosley’s injury Excel employed approximately 160 0

production workers, with 800 employees working each of two shifts.

In 1991, there were approximately 500 reported cumulative trauma

disorders of one t ype or another at the plant and in 1992, there

were just less than 400 reported cumulative trauma disorders.

These figures led to an occurrence rate over four times as great as

the industry average of eight percent reported by the Bureau of

Labor in 1990. Workers employed as skirt pullers in the plant

reported five cumulative trauma disorders of one type or another in

1991 and four such disorders in 1992.

Finally, Steffe did not dispute that Mosley’s injury was

related to his work. 10however, concede that Excel negligently caused the injury.

11 M osley stated that his department was designed for 30

employees but that often he had only 26 workers present.

1 2 It is this work as a replacemen t skirt puller that Mosley

contends caused his injury. Mosley’s claim against Excel is based

upon the alleged negligent practice of failing to adequately staff

the plant and the failure to reduce the chain speed.

10 (b)

Mosley then testified on his own behalf. Mosley testified

that frequently the breaking department was understaffed. 11

Specifically, he stated that often there would be only three skirt

pullers present to fill the four positions in that area. He stated

that when there were only three skirt pullers working he would

usually fill in for the absent worker in order to keep up with the

pace of pr oduction. 1 2 Mosley testified that he worked as a

replacement skirt puller three, or maybe four, nights per week and

that he spent approximately sixty to seventy percent of his time

working in that position even though he was employed as a

supervisor and was not supposed to be working on the line. Mosley

testified that working as a skirt puller was difficult because it

required the worker to w ork above his head with the knife and

because the meat was sometimes hard to cut.

Mosley further testif ied that the night shift began at 3:30

p. m. and ran until 12:00 a.m. with only one fifteen minute break11

and a half-hour break for dinner. He stated that he did not

remember anyone ever coming to his department to p erform symptom

surveys or to observe the workers and he never recalled any member

of management disc ussing allowing more frequent rest breaks.

Mosley testified that he thought a lot of people were getting hurt

at Excel and that the company could have prevented some, or all,

injuries by reducing the chain speed and/or increasing staffing.

He stated that his supervisors were unresponsive to his requests

for additional staffing or, in the alternative, reduced chain

speed.

Although Mosley continues to work at Excel on the kill floor

without apparent d ifficulties, he testified that his hands still

caused him pain at times and interfered with certain aspects of his

life, such as playing with his children.

(c)

Next, Andrew Jackson testified for Mosley. Jackson was

formerly employed with Excel and worked under Mosley in the

breaking department. Jackson testified that the department was

often understaffed (the regular st affing was four skirt pullers)

and that Mosley worked as a skirt puller when there were only three

skirt pullers present. He further stated that the chain speed

would be reduced when there was serious problem with understaffing12

bu t not when only one worker was absent. Jackson also testified

that as a lead man in the plant he was supposed to act as a floater

to relieve workers periodically but instead usually substituted for

an absent worker. He testified, generally, that he saw lots of

workers with hand and shoulder injuries during his employment with

Excel and that he never remembered anyone observing the floor in an

effort to develop an ergonomics plan.

(d)

Next, Ch ris Flores testified that he previously was

responsible for “light-duty classes,” instructional classes held at

the Excel plant for employees placed on temporary light duty for

medical reasons. He stated that these classes were designed to

encourage workers who had been injured to return to work as soon as

possible. He admitted that the workers were, on occasion,

humiliated, by being called names and by being required to perform

menial tasks, in an effort to speed their recovery while in these

classes.

(e)

Just prior to resting his case, Mosley offered medical records

from six treating physicians and/or medical facilities and three

additional ergonomics publications. The medical records establish

that Mosley suffers from carpal tunnel syndrome and that he has13

undergone three surgeries to alleviate the problem. The ergonomics

publications reiterate the information on cause and prevention of

various cumulative trauma disorders.1 3 These document s appear only to offer support for the

testimony of the witnesses and have little independent value to our

review. We therefore will not elaborate on their contents.

14 2

In defense, Excel called only three witnesses: (1) Steve

Steffe; (2) Jim Maher, the former human resources manager for Excel

in Plainview; and (3) Dr. Tom Jetzer, an occupational medicine

practitioner. Additionally, Excel introduced several employee

handbooks used at Excel, including the safety code and the benefit

plan. 13 Again, it is necessary for us to take a thorough look at

this evidence in order to reach a decision on this appeal.

(a)

Dr. Tom Jetzer, an occupat ional medicine practitioner, was

called as an expert witness by Excel. Jetzer testified that

although workplace factors such as repetition, wrist position and

grip force are considered to be potential causes of carpal tunnel

syndrome, the injury also could occur as the resul t of a genetic

predisposition to the problem, as the result of the natural aging

process, or as the result of non-work activities such as

participating in sports or playing the p iano. Jetzer testified

that after reviewing Mosley’s medical records, viewing the tape of

the work performed by the skirt pullers at Excel, and considering

Mosley’s intermitt ent work as a skirt puller, his opinion, based1 4 Static load is defined as t he continuous use of muscles or

groups of muscles to oppose the force of gravity.

15 upon his knowledge of cumulative trauma disorder s and,

specifically, carpal tunnel syndrome, was that Mos ley’s injuries

were idiopathic, i.e. that they occurred spontaneously or from an

unknown cause and not from his work as a skirt puller. Jetzer also

testified that the requirements of the skirt pulling position

appeared reasonable under current ergonomic standards.

Jetzer premised his opinion regarding the cause of Mosley’s

injuries on several observations. First, he noted that Mosley did

not suffer from degenerative problems in his shoulders as would be

expected if the carpal tunnel syndrome was caused by the work.

Jetzer stated that the job put more stress on the shoulders than on

the wrists and that if the work caused the i njury to Mosley’s

wrists it would be expected that he would also experience some

related shoulder problems. Second, Jetzer observed that the

position of the left hand when holding the hook did not support a

finding of causation, yet Mosley experienced carpal tunnel syndrome

in his left hand as well as his right. Jetzer noted that the left

wrist was kept in a neutral position and that merely stabilizing

the carcasses would not be considered a potential cause of carpal

tunnel syndrome. Jetzer conceded that static load 1 4 --a suggested16

risk factor in the development of cumulative trauma disorders--was

present in the use of the left hand in the skirt pulling job;

however, he noted that static load was not gene rally associated

with carpal tunnel syndrome but was a greater problem with respect

to cumulative traum a disorders involving the shoulders. Third,

Jetzer noted that Mosley did not perform the job on a regular basis

over an exte nded period of time and thus, he testified that he

would not expect to see problems flowing from the work. He noted

that the sporadic performance of the job was essentially equivalent

to a rotation schedule, which is one of the means of combating the

occurrence of cumulative trauma disorders.

(b)

Steve Steffe was recalled as a witness by Excel to testify

again regarding the safety practices at Excel and the number and

type of injuries occurring at the plant. Steffe testified that

Excel trained all of its employees immediately to report any injury

in order to allow the company to treat the problem as soon as

possible. Steffe also stated that the injury rate used by Mosley

was inaccurate because the number of employees used in calculating

the rate did not take into account the approximately forty percent1 5 Steffe’s testimony was that, although Excel had approximately

1500 positions, the total number of workers in those positions per

year was 2300 because of rapid employee turnover in the plant.

Mosley’s injury rate percentages were calculated b ased upon the

lower number and therefore reflect an inflated picture of the

injury situation at Excel. The parties dispute the turnover rate

and consequently the actual number of workers employed by Excel;

however, it is clear that using the actual number of positions

available at the plant to calculate the injury rate was inaccurate

because of the considerable turnover among the employees.

17 turnover rate at the plant. 15 Additionally, Steffe testified that

the cited rate of cumulative traum a disorders was misleading

because of the range of injuries required to be recorded as

O.S.H.A. reportables. He noted that any soreness that required

more than an initial visit to the pl ant nurse was a reportable

injury regardless of its severity. Steffe testified that Mosley

was the only person working as a skirt puller in 1992 who had lost

time as the result of surgery for carpal tunnel syndrome. He also

noted that the other cumulative trauma disorders reported by skirt

pullers involved complaints concerning a forearm, a wrist, a thigh

and a shoulder--with only the first two even potentially similar to

Mosley’s injuries.

(c)

The final witness called to testify by Excel was Jim Maher,

former human r esource manager for the Plainview plant. Maher

testified that after the implementation of the ergonomics program

at Excel in the early 1990's, both the number of cumulative trauma18

disorders reported and the number of days absent from work for

injuries decreased. He reiterated that Mosley was the only

employee working as a skirt puller that required surgery for carpal

tunnel syndrome in 1992 and further stated that only four other

injuries in the nature of cumulative trauma disorders were reported

by skirt pullers during that year.

3

In addition to the direct evidence presented by each party in

support of its position at trial, there was other evidence that

emerged thro ugh various cross-examinations. To the extent that

this evidence sheds light on the question of causation, we turn now

to review it.19 (a)

Jetzer, on cross-examination stated that Mosley’s carpal

tunnel syndrome appeared more severe in his right hand than in his

left hand. This, he stated, would be consistent with the use of a

knife in the right hand and a hook in the left hand.

(b)

Mosley testified on more than one occasion that when four

workers were pulli ng skirts the job could be done at the regular

production pace without undue risk of injury to the workers.

Mosley also testified that after a skirt puller fi nished cutting

the skirt steaks out o f a carcass and walked back to pick up

another carcass, the worker could talk to co-workers, relax his

grip on the knife and hook, and have a brief opportunity to stretch

his hands before repeating the procedure on the next carcass.

Jackson, the former breaking department employee, testified

that when the skir t pulling department was very short-handed the

ch ain speed would be reduced but that when only one skirt puller

was absent then the speed remained the same and that Mosley often

filled in for the fourth worker.

D

In the light of this evidence and all reasonable i nferences

that can be drawn from it in favor of Mosley, we now consider20

whether the trial court erred in concluding that there was no

“conflict in substantial evidence” regarding causation and thus

concluding that Excel was entitled to judgment as a matter of law.

We will first examine Mosley’s evidence of cause in fact, or

“but for” cause. In this context, it is important to recognize the

precise claim advanced by Mosley. He specifically claims that his

carpal tunnel syndrome resulted from his work as a skirt puller.

When asked to pinpoint exactly what Excel had done wrongly to cause

hi s injuries, Mosley replied that the plant was understaffed and

the chain speed was too rapid.

1

First, we note that the evidence is weak that Mosley’s

particular injury is, in fact, job related. We should note at the

outset that, although not necessarily required to make his case,

Mosley failed to present any expert testimony. Instead he relies

upon extrapolation from the testimony of Jetzer, upon his own

testimony, upon the testimony of a former co-worker, an d upon

several sets of medical re cords detailing his treatment for the

injuries. Jetzer acknowledged that Mosley’s injuries were

consistent with using a knife in the right hand and a hook in the

le ft. Jetzer also testified that, if the work were the cause of

Mosley’s injuries, he would not e xpect to see any injury in the21

left hand. Jetzer stated that, in his opinion, Mosley’s carpal

tunnel syndrome was idiopathic in nature. Mosley presented no

evidence that specifically disputes this conclusion.

Mosley offered significant evidence that other workers doing

similar, or even identical, work suffered from various cumulative

trauma disorders. Indeed, Mosley showed that Excel’s injury rate

in 1990 was higher than the industry average--although the precise

injury rate remains uncertain. Mosley also presented evidence that

Excel, notwithstanding its claim otherwise, was often indifferent

to safety concerns, particularly in the general area of ergonomics.

Mosley presented evidence that he frequently worked as a skirt

puller because of absenteeism in the department. His evidence

showed that his injuries--with the more severe problem in his right

hand--were consistent with an injury caused by the job of skirt

pulling. On the other hand, Mosley offered no evidence of a moreprobable-than-not connection between his actual injury and this

w ork specifically. There was evidence, which his evidence

completel y failed to address, that there were other equally

plausible sources of his specific injury. He failed to address the

evidence--in the form of expert testimony from Dr. Jetzer--that his

carpal tunnel syndrome was idiopathic. The medical records offered

contain only Mosley’s treatment history and establish only that he22

suffers from carpal tunnel syndrome; they do not establish a causal

link to his work as a skirt puller. Mosley’s general evidence of

plant wide negligence, his evidence of Excel’s poor safety record

generally, his evidence of other w orkers’ injuries, and his

evidence that his i njury is c onsistent with a hypothetical work

related injury hardly creates a substantial conflict with the

specific evidence offered by Excel that his injury is not job

related, given that it is undisputed that the injury has other

plausible sources. In the light of Steffe’s testimony that

Mosley’s injury was job related, however, we will assume that the

jury reasonably could have conclud ed that Mosley’s carpal tunnel

syndrome was related to his work as a replacement skirt puller.

2

Even if we assume, however, that the evidence demonstrated a

causal connection between Mosley’s injuries and his work as a skirt

pull er, Mosley has failed to establish his tort claim. As we

u nderscored earlier in this opinion, Mosley is required to

demonstrate more that a causal relationship between his job and his

injury. He must show that his injury was job related a nd that the

negligence of Excel caused the injury. Mosley alleges that Excel

ne gligently caused his injury by failing adequately to staff the

plant and by running the production chain too rapidly. The16 Mosley testified as follows:

Q. Okay. How many people were working as

skirt pullers?

A. [by Mosley] We should have had four, but a

lot of times we only had three skirt pullers.

*****

Q. What did you do when you were shorthanded? Did you ask about the chain speed--to

have it reduced?

A. Yes, I did.

Q. And would the chain speed be reduced if

you had three people c ompared to if you had

four skirt pullers?

A. No, sir, it would not.

Q. Would it run the same speed as it would

with four as it would with three?

A. Yes, it would.

Q. What did you do about that?

A. Eventually I learned how to do the job so

that I could hel p my employees out, so they

wouldn’t have t o run short-handed a lot of

times.

Record Volume 3, at 107, 109.

Furthermore, Jackson testified:

Q. When you all were short-handed, would they

23 evidence indicated that the rate of the chain was dependent upon

the number of workers present. Jackson testified that the chain

speed was reduced when there were only one or t wo skirt pullers

present to fill four positions but that the speed was not reduced

when there was only one skirt puller absent. Mosley testified that

he frequently filled in on such occasions to provide a full shift

of skirt pullers. Although Mosley testified that he spent between

sixty and seventy percent of his time pulling skirts, there is no

evidence that he ever worked at the job when there were less than

four total workers--including himself--on the line. 16 Mosley, onreduce the chain speed for you to make it

easier to keep up?

A . [by Jackson] Well, if we were real shortha nded they would. I mean, you know, if you

[had] three skirt pullers, they wouldn’t.

Th at is when Ernest [Mosley] had to get on

line.

Record Volume 3, at 212.

17 Specifically, Mosley testified:

Q. Even when you had four people doing skirt

pulling, counting yourself, was that enough

people, considering the speed of the chain and

the pace of the work, to do it safely without

people getting hurt?

A. [by Mosley] Yes, sir.

Record Volume 3, at 110.

Later, Mosley testified:

Q. But you also told the ladies and gentlemen

of the jury , that if you had four [skirt

pullers], that was sufficient to do the job.

A. [by Mosley] Yes, it was.

Record Volume 3, at 135.

On yet another occasion, Mosley testified:

Q. My question, Mr. Mosley, was that you had

four people, and if you were one of those four

people in the skirt line the job could be done

okay, couldn’t it?

A. [by Mosley] For me--it was tough on me.

Q. Well, was it tough on the rest of the

[line workers]? You said a minute ago that it

could be done easily with four people.

A. If they were trained and knew how to do it

and stuff; yes, sir.

Record Volume 3, at 136.

Still later, Mosley testified:

Q. And the short-handed, you are telling us

about when you just have three people;

correct?

A. [by Mosley] Yes, sir.

Q. And when you have . . . four people, you

can do the job fine.

24 more than one occasion, testifie d that when four workers were

available as skirt pullers the job was not unduly dangerous. 17 InA. You can do a whole lot better than you can

with three people.

Q. Well, and awhile ago you told us that you

could do the job fine with four people?

A. Yes, sir, you can do it with four people

fine.

Record Volume 3, at 156.

1 8 Because we conclude that Mosley failed to establish cause in

fact, we need not address the question of the foreseeability of his

injury.

25 short, the record shows that Mosley only worked as a skirt puller

when it wa s admittedly safe to do the job on the basis of the

number of workers and the pace of production. Thus, the record is

bereft of any evidence that Mosley’s injury is connected to the

negligence that he alleges or proved. 18

III

We conclude that the evidence presented at trial fails to

establish Mosley’s claim. Although we consider the evidence that

Mosley’s injury was job related to be weak, we acknowledge that,

under the strict review required before overturning a jury verdict,

the jury could have found that the work as a skirt puller caused

Mosley’s carpal tunnel syndrome. We hold, however, that Mosley

failed to offer evidence that link ed his injury to any act of

negligence on the part of Excel. This was a necessary element of

Mosley’s case, and the failure to demonstrate a causal relationship1 9 Although our hold ing makes consideration of the jury award

of $360,000 unnecessary, it appears to be excessive. We base this

observation on the fact that the award included $250,000 as

compensation for loss of earning capacity in the future. There is

no evidence in the record supporting this award. Mosley

voluntarily resigned his position as a supervisor but continues to

work for Excel and also works a second job. Thus, it is difficult

to ascertain the basis of the jury award. The amount of damages

served as the basis of the trial court’s conditional grant of a new

trial pending reversal of t he judgment as a matter of law now on

appeal. Mosley appeals the new trial ruling, but, as noted above,

our affirmance of the judgment as a matter of law moots this issue.

26 between Excel’s negligent acts or omissions and the specific injury

bars recovery on the claim. 19

The judgment of the district court is therefore

A F F I R M E D.27

Robert M. Parker, Circuit Judge, dissenting:

After considering all of the evidence, construed in favor of

Mosley, I have concluded that the record supports the jury’s

verdict. The majority states that “there is no evidence that

[Mosley] ever wor ked at the job when there were less than four

total workers -- including himself -- on the line. . . . [T]he

record shows that Mosley only worked as a skirt puller when it was

admittedly safe to do the job on the basis of the number of workers

and the pace of production.” In fact, there was no direct evidence

concerning how many other people worked the line when Mosley did.

However, the evidence was clear that the line often had to function

short handed, with one to three trained skirt pullers and that

Mosley filled in when they were short handed. The jury could have

reasonably concluded that Mosley worked as a skirt puller when the

line was one or two or three people short. Is seems irrational to

conclude, as the majority d oes, that he filled in when only one

person was absent, but did not fill in on shifts when two or more

people were absent. Further, Mosley testified that the chain speed

was safe for four trained people, but “it was tough on me.”28

The majority’s whole conclusion hangs on this faulty hook. It

d oes not go on to address the question of foreseeability. The

record contains evi dence that there were high injury rates which

had been reported to Excel, t hat Excel’s ergonomics expert

recommended rest pauses and that workers were not allowed pauses,

even after Mosley requested such ch anges. I therefore conclude

that the record supports the jury’s verdict and that the district

court erred in granting Excel’s motion for judgment as a matter of

law.

For the foregoing reasons, I respectfully dissent.