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* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-11147
_____________________
TEDDY GUTIERREZ, ET AL.,
Plaintiffs,
MARTHA RUIZ,
Plaintiff-Appellant,
versus
EXCEL CORPORATION, ET AL.,
Defendants,
EXCEL CORPORATION,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Texas
(5:93-CV-176-C)
_______________________________________________________
January 23, 1996
Before REAVLEY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
REAVLEY, Circuit Judge:*
Ruiz and nine other plaintiffs sued their employer, Excel,
and Whizard knife manufacturer, Bettcher Industries, for
negligence. The plaintiffs alleged they suffered from cumulative
trauma disorder in their hands due to their use of the electric

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1The Texas workers compensation statutes have been recently
codified in the Labor Code. Tex. Labor Code § 401.001 et. seq.
(effective September 1, 1993) (formerly Tex.Rev.Stat. art. 8306
et. seq.). Texas remains an “opt-out” state under the current
scheme, that is, an employer may chose to not provide workers
compensation. However, such an election subjects the employer to
common-law negligence actions by an employee. Tex. Labor Code
§406.033 (formerly Tex.Rev.Civ.Stat.Ann. art. 8308-3.23(a)
(Vernon Supp. 1993)).
2
Whizard knife at the Excel meat-packing plant in Plainview,
Texas. Excel’s liability was premised upon the company’s failure
to put in place proper safety measures. Bettcher Industries
settled, and the other plaintiffs’ cases against Excel were
severed. Only the Ruiz claim against Excel is here.
A jury awarded Ruiz damages for Excel’s negligence. On
Excel’s motion, the district court granted a motion for judgment
as a matter of law on two grounds. First, the district court
determined that the employee welfare benefit plan under ERISA
preempted the state law cause of action. Second, the district
court found the evidence insufficient to establish any act or
omission on the part of Excel that was a cause in fact of any
injury sustained by Ruiz. We conclude that the district court
erred, and we reverse. Judgment is to be entered on the verdict.
I.
When the district court determined the preemption issue, the
court did not have the benefit of our decision in Hook v.
Morrison Milling Co., 38 F.3d 776 (5th Cir. 1994). In Hook, as in
the instant case, the employer was a nonsubscriber to the Texas
worker’s compensation system and was, therefore, subject to
common-law claims of action. Tex. Labor Code § 406.033.1 We

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held that an employee’s negligence claim against his
nonsubscribing employer based on that employer’s independent duty
to maintain a safe workplace was not preempted by ERISA. Hook,
38 F.3d at 781-83. We are bound by the holding of a previous
panel of our circuit. Capps v. N.L. Baroid-NL Indus., Inc., 784
F.2d 615, 619 (5th Cir.), cert. denied, 479 U.S. 838 (1986).
II.
The district court also granted the motion for judgment as a
matter of law based upon lack of proof of causation. In
reviewing the court’s decision, we use the same standard of
review that guided the trial court in its ruling for judgment as
a matter of law. Crosthwait Equipment Co. v. John Deere Co., 992
F.2d 525, 528 (5th Cir.), cert. denied, 114 S.Ct. 549 (1993). “A
motion for judgment as a matter of law should be granted by the
trial court if, after considering all the evidence in the light
and with all reasonable inferences most favorable to the party
opposed to the motion, the facts and inferences point so strongly
and overwhelmingly in favor of one party that the court concludes
that reasonable people could not arrive at a contrary verdict.”
Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th Cir.
1995).
Ruiz was employed at Excel’s meat-packing plant in
Plainview, Texas. She was hired to work at the Whizard table,
aptly named for the knife used by employees at the table. The
Whizard table was one of the final steps in the slaughter and
processing of beef. The employees at the table were responsible

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for trimming meat and fat from neck bones which arrived via a
conveyor belt. They would then remove the bones from the belt
and trim them using the Whizard knife. The trim was placed into
a drum through a hole in the table, and the now “clean” bone was
placed back onto the conveyor belt.
The handle of the Whizard knife was cylindrical in shape
similar to a flashlight handle. A blade rotated at one end of
the cylinder, and the power cord attached to the other end. Ruiz
alleged that constant holding of this knife caused cumulative
trauma disorder in her hand. This disorder resulted in her
middle and ring fingers locking in a bent position, referred to
by the workers as “trigger finger.” (The reference is a slight
misnomer; there is no “trigger” on the handle, rather the knife
blade rotates at all times.) Ruiz alleged that Excel failed to
provide proper safety procedures for the operation of the
electric knife. She asserts Excel did not provide for a
work/rest cycle so that workers could relax their hands; Excel
did not inform its employees about cumulative trauma disorder;
and Excel’s expectations concerning worker productivity precluded
rest of their hands.
Ruiz worked the 3:00 p.m. to 12:00 a.m. shift at Excel.
She had a 15 minute break at 6:00, and a 30 minute break at 8:30.
After a Whizard knife worker successfully completed a 45-day
probationary period, the worker was required to trim an average
of 40 pounds of meat per day over a two-week period. The
employees were also required to “pull count,” that is, if there

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were 20 employees at the table Ruiz would be required to take
every 20th neck bone that came down the conveyer belt.
In 1990, Ruiz reported having problems with her hand as a
result of the use of the knife and was treated by the company
nurses. After unsuccessful treatment by the nursing staff, her
fingers continued to lock, and she was referred by the company
doctor to another doctor. Ruiz was given injection therapy and
eventually underwent surgery on her hand in April of 1991. The
day after the surgery she returned to work. In June of 1991 she
was again working at the Whizard table.
Ruiz developed hand problems again in September of 1992.
This time she was referred to Dr. Lewis by the company doctor.
The following represents his synopsis of her history of
occupational illness:
Patient has a history of pain in the right hand. She had
status post trigger finger release in 1991, and did
relatively well after that. She was off work due to
pregnancy, but when she returned to work, with the knife,
her symptoms recurred. She has an old mallet finger injury
from basketball.
Dr. Lewis’s assessment, in part, was that he
believe[d] that this constitute[d] a tendinitis of the
flexor canal of the middle and ring fingers and [he]
believe[d] that it [was] work related. [He thought] that
she [had] symptoms related to this caused by her job and
[he] believe[d] that for the present time conservative
management [was] indicated.
(Emphasis added). In February, Ruiz underwent a second surgery.
Ruiz returned again to work the day after her surgery. At
some point she was required to climb a ladder and wash a belt in
the hamburger room with her bandaged hand. When Dr. Lewis

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2The district court notes and Excel argues that the Whizard
knife was the best tool for trimming neck bones available in the
industry. However, such a contention misses the point of Ruiz’s
allegations of Excel’s negligence. She does not complain that
she was required to use the Whizard knife. Rather, her
allegations concern proper safety procedures which should have
been followed to properly protect her from the known danger of
6
learned of the activity, he restricted it. Eventually the pain
was too much. The doctor permitted her to work with additional
restrictions. Based on the significant restrictions, she was
placed on a medical layoff, the equivalent of a termination, in
the summer of 1994.
Under Texas law, negligence consists of four essential
elements: (1) a legal duty owed by the defendant to the
plaintiff; (2) a breach of that duty; (3) actual injury to the
plaintiff; and (4) a showing that the breach was a proximate
cause of the injury. Skipper v. United States, 1 F.3d 349, 352
(5th Cir. 1993), cert. denied, 114 S.Ct. 1220 (1994). Excel
asserts both that they owed no duty to Ruiz, and that there was
no evidence that the use of the knife was the cause-in-fact of
her injuries. We address each in turn.
Texas has long recognized an employer’s duty to use ordinary
care in providing a safe work place for its employees. Werner v.
Colwell, 909 S.W.2d 866, 869 (Tex. 1995). Excel argues that its
duty must be considered with reference to the character of the
business in which the company is engaged. Further, the employer
argues that in this regard it acted as a prudent meat-packing
plant operator with regard to the Whizard table and its
employees.2 In fact, they insist the company was a leader in the

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cumulative trauma disorder to Whizard knife workers at Excel’s
plant.
7
safety of its employees. The evidence, however, is less
convincing.
Excel points to their general policy concerning employee
safety. While this is commendable, it is only minimally relevant
to the inquiry of the company’s policies regarding cumulative
trauma disorder at the Whizard table. The evidence indicates
there was a significantly higher injury rate for employees at the
Whizard table than in any other areas of the plant. These figures
may have been even higher if there had not been such a tremendous
turnover rate for Whizard employees. Excel’s management
basically argued that the Whizard employees could rest their
hands between individual bone trimming, and the employees who had
developed hand problems had done so because they had a “death
grip” on the electric knife. The evidence indicates that the
work and poundage requirement for employees may have precluded
any “down-time” for employees to rest their hands. The employees
were also never informed of the potential for cumulative trauma
disorder and the various ways to prevent such injuries. However,
even assuming there was sufficient rest time, the employees were
still precluded from turning off the knife and stretching their
hands except during the two breaks provided them during the day.
In fact, they were discouraged from such acts. One employee
witnessed a supervisor warn an employee that such an act
constituted misuse of company time. A nurse testified that one

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supervisor of the Whizard line violated doctor’s restrictions on
employees who were injured because he “didn’t feel they were
productive employees. If they were injured, if he had to put
them on restriction, it cost him time and it cost money.” When
Dr. Lewis discovered the work Excel was requiring Ruiz to do, he
further specifically restricted those jobs.
Excel argues further that it had a full time ergonomics
coordinator and a committee to examine ergonomics issues, and
that it had hired an independent ergonomics consultant for
advise. Excel asserts that it implemented all of the
consultant’s recommendations. Our review of the record, with the
appropriate deference, indicates the contrary. The expert
recommended a work/rest cycle, but the employees were not
permitted to turn off their machines periodically except for the
two break periods during the day. The expert also recommended
that the table employees be rotated with other employees whose
jobs did not require the same use of their hands. This also was
not done. The company did not follow the Occupational Safety and
Health Administration’s (OSHA) guidelines either. The evidence
indicates that OSHA’s guidelines for the meat packing industry
recommended increasing the number of workers to decrease the work
load and designing jobs to allow sufficient rest time. Neither
of these was done by Excel.
Finally, there is also some evidence that Excel’s work
requirements for Ruiz after her second surgery may have
contributed to her injury. She was required to clean a

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production belt in the hamburger room and to climb a ladder to
paint, both of which required her to use her still bandaged hand.
A jury could have reasonably determined that the company
knew of the dangers associated with her work, knew of means to
prevent such dangers, and failed to implement those means.
The evidence also indicates that Excel’s negligence outlined
above was the proximate cause of her injuries. In Texas
proximate cause consists of cause in fact and foreseeability.
Skipper, 1 F.3d at 352. Both of these elements must be present,
and both may be established by direct or circumstantial evidence.
McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903
(Tex. 1980). Excel assails the causation prong of proximate
cause. To establish causation, Ruiz must prove that the conduct
of Excel caused an event and that event caused Ruiz to suffer
compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d
497, 499 (Tex. 1995). Excel must establish that the facts and
inferences point so strongly and overwhelmingly in their favor
that no reasonable person could arrive at a verdict in favor of
Ruiz.
Dr. Lewis’s records are quite telling of the causation. His
records indicate that he believed her injury was work-related.
Excel asserts Dr. Lewis’s medical records were speculative and
were not based upon reasonable medical probability. See
Burroughs, 907 S.W.2d at 500 (“[T]o constitute evidence of
causation, an expert opinion must rest in reasonable medical
probability.”) In Texas, “[r]easonable probability is determined

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by the substance and context of the opinion, and does not turn on
semantics or on the use of a particular term or phrase.” Id.
Unlike in Burroughs, Dr. Lewis states a positive belief in his
records that the injuries were work-related, based upon his
examination of her hand and her treatment. Dr. Lewis’s
conclusion is unlike that disavowed in Burroughs. There the
notation contained in the medical records appears to be based not
upon the physician’s own diagnosis of the patient, but rather
upon the statements of others. Burroughs, 907 S.W.2d at 500.
We also note that causation may be inferred from the
evidence and circumstances surrounding Ruiz’s injury. See
Insurance Co. of North America v. Kneten, 440 S.W.2d 52, 54 (Tex.
1969) (A jury can infer proximate cause from the facts and
circumstances surrounding the injury). Ruiz underwent a physical
prior to beginning work at Excel. Her hand injury began and
recurred after her use of the Whizard knife. “Trigger finger” or
cumulative trauma disorders were disproportionately common among
Whizard knife employees. The company medical staff treated the
injury as it treated other “trigger finger” injuries at the
plant. Despite the frequency of cumulative trauma disorder
injuries, Excel failed to follow OSHA or its own expert’s
recommendations to reduce those injuries at the Whizard table.
Based on the circumstances of Ruiz’s injuries and Dr.
Lewis’s conclusions, a reasonable jury could have concluded the
use of the Whizard knife was the cause in fact of her injuries.
The evidence was sufficient to support the jury’s verdict.

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III.
For these reasons, we REVERSE the court’s order granting
judgment as a matter of law and REMAND the case with instructions
to enter judgment on the jury’s verdict.

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