Beckham v. Louisiana Dock Co

*Pursuant to 5TH CIR. 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opinion should not be published and is not precedent except under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 5TH CIR. R. 47.5.4.
1 Louisiana Dock Company is a subsidiary of American
Commercial Barge Lines.
1
United States Court of Appeals
Fifth Circuit
F I L E D
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 employed 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 were

-- 1 of 8 --

2
allegedly sustained during a crew change, when Mr. Beckham was
allegedly exposed to styrene vapors as he walked through the
facilities of defendant-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 alleged injury, Mr. Beckham
was employed by 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 blowers

-- 2 of 8 --

3
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 exposure 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 district court finds the verdict is against the weight of
the evidence, the damages awarded are excessive, the trial was

-- 3 of 8 --

4
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. Id. 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 trial judge has refused to disturb a jury
verdict, all 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
deference 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 one interrogatory, answering the

-- 4 of 8 --

2 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 2002 incident, and injuries consistent with that event
appeared 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 sustained 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 records demonstrated that he had reported
symptoms of respiratory illness shortly after the alleged

-- 5 of 8 --

3 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 the 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 heath. The long
term symptoms reported included wheezing, bronchospasm, and
abnormal performance on pulmonary function tests. He was not
cleared by his doctor’s to return to work until May 2003, almost a

-- 6 of 8 --

4 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 of his notification of
healthcare providers about preexisting 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 affected 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 circumstances of this alleged
short term exposure, 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. Beckham 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 the 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).

-- 7 of 8 --

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.

-- 8 of 8 --