* 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opinion should not be published and is not precedent except under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.

1 Lo uisiana Dock Company is a subsidiary of American

Commercial Barge Lines.

1 United States Court of Appeals

Fifth Circuit



## FILED

March 1, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 03-31115

______________________

HAL BECKHAM

Plaintiff-Appellant

versus

LOUISIANA DOCK COMPANY, L. L. C., ET AL.

Defendants

T. T. BARGE SERVICES MILE 237, INC.

Defendant-Appellee

___________________________________________________

Appeal from the United States District Court for

the Eastern District of Louisiana

(No. 02-CV-2644-N)

___________________________________________________

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM: *

This case arises from injuries allegedly sustained by

plaintiff-appellant, Hal Beckham, who was employ ed by defendants

Louisiana Dock Company and American Commercial Barge Lines, L.L.C.

(“ACBL”) 1 as a captain of the M/V SURVEYOR. The injuries were2

allegedly sustained during a crew change, when Mr. Beckham was

allegedly exposed to styr ene vapors as he walked through the

facilities of defen dant-appellee, T. T. Barge Services Mile 237,

Inc. Mr. Beckham filed suit against T. T. Barge under a negligence

theory and against his employer under maritime law and the Jones

Act, 46 U.S.C. § 688. By the time of trial, ACBL had filed for

bankruptcy and was not party to the proceedings pursuant to the

resulting automatic stay. At trial Mr. Beckham alleged that his

injuries were 100% attributable to T. T. Barge’s fault. After two

and a half days of trial proceedings the jury returned a verdict

for the defendant. The district court denied Mr. Beckham’s motion

for a judgment as a matter of law and entered a final judgment in

favor of defendant T. T. Barge. Mr. Beckham then moved for a new

trial. He appeals the denial of that motion. We affirm.

Background

On June 4, 2002, the day of the al leged injury, Mr. Beckham

was employed b y defendant ACBL as a captain for the M/V Surveyor

and was ordered by his employer to make board the SURVEYOR at the

facilities of T. T. Barge alongside the Mississippi. Mr. Beckham

walked across the T. T. Barge facilities during his crew change.

T. T. Barge is in the business of emptying and cleaning barges,

and, on the morning of the fourth, two barges were being cleaned of

styrene at the facility. Mr. Beckham apparently walked past a

styrene barge, which had been cleaned that morning, where blowers3

were being used to dry the interior. While walking past, Mr.

Beckham claims to have inhaled styrene vapors. There were no

witnesses to the incident. Upon reaching his boat, Mr. Beckham

reported to co-workers that he had been exposed and was ill and

having difficulty breathing. Co-workers reported this to staff at

the T. T. Barge facility who prepared an incident report. Mr.

Beckham went to the emergency room complaining of expos ure to

styrene with symptoms of cough, headache, weakness, nausea,

difficulty breathing and chest tightness. Mr. Beckham was released

from the hospital three hours later. Thereafter, over a period of

months, he was seen by a series of medical experts regarding his

alleged injuries. At trial the jury heard from three medical

experts, two toxicology experts, and six fact witnesses about the

circumstances in which the alleged exposure took place, the nature

of styrene and styrene exposure injuries, and Mr. Beckham’s medical

history and treatment.

Standard of Review

Rule 59 of the Federal Rules of Civil Procedure provides that

“[a] new trial may be granted . . . in any action in which there

has been a trial by jury, for any of the reasons for which new

trials have heretofore been granted in actions at law in the courts

of the United States.” “A new trial may be granted, for example,

if the dis trict court finds the verdict is against the weight of

the evidence, the damages awarded are excessive, the trial was4

unfair, or prejudicial error was committed in its course.” Smith v.

Transworld Drilling Company

, 773 F.2d 610, 612 (5th Cir. 1985). In

making a determination that the verdict is against the weight of

the evidence, the court weighs all the evidence and need not view

it in the light most favorable to the nonmoving party. I d. at 613.

“A motion for a new trial should not be granted unless the verdict

is against the great weight of the evidence, not merely against the

preponderance of the evidence.” Dresser-Rand Co. v. Virtual

Automation Inc

., 361 F.3d 831, 838-39 (5th Cir. 2004). Denials of

a motion for a new trial under Rule 59 are reviewed under an abuse

of discretion standard. Id.

When the tr ial judge has refused to disturb a jury

verdict, al l the factors that govern our review of his

decision favor affirmance. Deference to the trial judge,

who has had an opportunity to observe the witnesses and

to consider the evidence in the context of a living trial

rather than upon a cold record, operates in harmony with

d eference to the jury’s determination of the weight of

the evidence and the constitutional allocation to the

jury of questions of fact.

Shows v. Jamison Bedding, Inc.

, 671 F.2d 927, 930 (5th Cir. 1982).

Analysis

The jury reached only on e interrogatory, answering the2 The plaintiff asserts that his right to new trial is made

stronger due to the happening of “an undesirable occurrence” at

trial. See Shows

, 671 F.2d at 931. The gist of the argument is that

the jury disregarded the trial court’s instructions with respect to

the interrogatory the jury answered. The trial court instructed

the jury that “if the plaintiff was in good health prior to the

June 4th 20 02 incident, and injuries consistent with that event

appeare d shortly thereafter, there is a presumption that the

plaintiff was injured as a result of the June 4th incident.” 6 R.

at 57. The plaintiff argues that since the evidence generally

supported that Mr. Beckham was in good health before the incident

and reported respiratory problems after the incident the jury

should have answered the interrogatory in the affirmative. We

reject this argument. First of all, there was evidence presented

about pre-existing conditions. Second, the plaintiff’s argument

effectively skips the “consistent with that event” step which was

certainly hotly contested. In sum, there is no evidence that the

jury disregarded a jury instruction.

5 question “[d]o you find by a preponderance of the evidence that Hal

Beckham susta ined an injury or injuries on June 4, 2002, as a

result of inhalation of styrene?” in the negative. 2 Mr. Beckham

raised only two issues on appeal. The first is whether the trial

court abused its discretion in finding that this answer was not

against the great weight of the evidence. The second deserves

little attention and is discussed in footnote two supra.

The two-and-a-half-day trial conducted in this case included

expert testimony from both sides, which offered contrary opinions

as to the relevant facts of the case. There was certainly abundant

testimony from Mr. Beckham’s doctors that he had suffered some

injury and medical record s demonstrated that he had reported

symptoms of respiratory illness shortly after the alleged3 The emergency room physician reported the following

symptoms: nausea, dizziness, general weakness, difficulty walking,

headache, dry cough, extreme thirst, disorientation, difficulty

breathing, chest heaviness and pain. (Ex. 24 p.14)

6 exposure. 3 The plaintiff’s physicians and toxicologist testified

that these symptoms can be caused by exposure to styrene fumes in

high concentrations.

On the other hand, the defendant points to the testimony of an

employee who had been working on the styrene barges in question on

June 4, 2002, was qualified to take readings of t he level of

styrene vapors present on the barges, and had in fact done so, both

before and after the alleged incident. The witness testified that

he had tested the area for styrene vapors twice, before and after

Mr. Beckham’s alleged incident, and found “no reading .” The

witness testified that the “no reading” finding indicated that the

area was “safe for workers to enter the tank without restrictions,

safe to do hot work on the tanks and on the outer surface of the

barge.” R. 5 at 139. The defendant’s toxicologist testified that if

there was no styrene vapor present on the outside of the barge

there should have been no injury.

Mr. Beckham also presented expert medical testimony on the

alleged long term impact of the exposure on his he ath. The long

term symptoms reported included wheezing, bronchospasm, and

abnormal p erformance on pulmonary function tests. He was not

cleared by his doctor’s to return to work until May 2003, almost a4 These opinions were, of course, contested by Mr. Beckham’s

witnesses. The defendant points out, however, that Mr. Beckham

admitted that he continued to smoke regularly up until the day of

trial. It argues that the continued smoking, in combination with

questions raised about the timeliness o f his notification of

healthcare providers about preex isting annual bronchitis and the

fact that he admitted to taking an unauthorized “shortcut” through

the T. T. Barge premises on the day of the event, putting him in

proximity of the styrene barges, could have aff ected the jury’s

evaluation of Mr. Beckham’s credibility.

7 year after the alleged incident.

The defendant’s toxicologist, however, noted that in reviewing

studies on styrene exposure he could find no relationship between

the particular styrene compound shipped in the barge and the long

term symptoms reported by Mr. Beckham and his doctors. This

toxicologist opined that under the ci rcumstances of this alleged

short term expo sure, no long term effects would be produced. He

explained that the dose of the substance is particularly relevant

to the severity of any injury. The defendant’s medical expert

pointed out that Mr. Beckham’s symptoms could have resulted from a

pack-a-day smoking habit that Mr. Beckh am had maintained for

years. 4

As there appears to have been an abundance of fact and expert

testimony on each side, the relative credibility of these witnesses

must be important to t he outcome of the case. We will not find

that the trial court judge abused its discretion in adopting the

credibility determinations of the jury. See Polanco v. City of

Austin , 78 F.3d 968 (5th Cir. 1996).8 Conclusion

We find that the trial court did not abuse its discretion in

denying the plaintiff’s motion for a new trial. Final judgment for

the defendant T.T. Barge Services Mile 237, Inc. is AFFIRMED.