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 (“Excel”), 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 negligently
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 on 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 appeal. Mosley appeals and seeks to have the
judgment 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 plants throughout the country,
including a plant in Plainview, Texas. Mosley is employed at the
Plainview plant and has 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 seventy percent of his time working as a skirt puller,2
1 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 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
tunnel syndrome.3 Mosley contends that Excel failed to provide a
safe workplace 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 sufficient
puller 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 to 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 non- surgical treatment. 4 Cumulative trauma disorders are injuries that result from the “wear and tear” on the tissue surrounding 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 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 that [his] injuries were reasonably foreseeable
from 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 evidence--not just that evidence which supports the non-mover’s case--but in the light and with all reasonable inferences 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 of
5 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 conditional grant of a new trial in the event the judgment as a matter 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 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 question 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 complete 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 traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
411 F.2d 365, 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 See 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 Mosley is a resident of Texas, and 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 that Excel’s breach caused his injury, and that he suffered damage
as a result of Excel’s breach. See 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. See 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. Id. There
need not, however, be direct and positive proof, as the jury may
infer proximate cause “from the circumstances 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 required 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.
6 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-examination of witnesses called by
Excel, Mosley also presented various documentary evidence including
several publications relating to ergonomics7, the records of
reported injuries at Excel, and 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
negligence caused Mosley’s injuries, we must examine it in some
detail.
(a)
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 safely.” 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 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 suggestions8 and the injury 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 that 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 suggested
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 that reports all injuries at the plant 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 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 picture emerged. At the
time of Mosley’s injury Excel employed approximately 1600
production workers, with 800 employees working each of two shifts.
In 1991, there were approximately 500 reported cumulative trauma
disorders of one type 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.10
10 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 (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 production.12 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 work above his head with the knife and
because the meat was sometimes hard to cut.
Mosley further testified that the night shift began at 3:30
p.m. and ran until 12:00 a.m. with only one fifteen minute break
however, concede that Excel negligently caused the injury. 11 Mosley stated that his department was designed for 30 employees but that often he had only 26 workers present. 12 It is this work as a replacement 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 and a half-hour break for dinner. He stated that he did not
remember anyone ever coming to his department to perform symptom
surveys or to observe the workers and he never recalled any member
of management discussing 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 difficulties, 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 staffing 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 understaffing
11 but 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, Chris 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 has
12 undergone three surgeries to alleviate the problem. The ergonomics
publications reiterate the information on cause and prevention of
various cumulative trauma disorders.
13 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.
Dr. Tom Jetzer, an occupational 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 result 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 piano. 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 intermittent work as a skirt puller, his opinion, based
13 These documents 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 upon his knowledge of cumulative trauma disorders and,
specifically, carpal tunnel syndrome, was that Mosley’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 injury 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 load14--a suggested
14 Static load is defined as the continuous use of muscles or groups of muscles to oppose the force of gravity.
15 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 generally associated
with carpal tunnel syndrome but was a greater problem with respect
to cumulative trauma disorders involving the shoulders. Third,
Jetzer noted that Mosley did not perform the job on a regular basis
over an extended 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 percent
16 turnover rate at the plant.15 Additionally, Steffe testified that
the cited rate of cumulative trauma 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 plant 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.
The final witness called to testify by Excel was Jim Maher,
former human resource 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 trauma
15 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 based 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 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.
In addition to the direct evidence presented by each party in
support of its position at trial, there was other evidence that
emerged through various cross-examinations. To the extent that
this evidence sheds light on the question of causation, we turn now
to review it.
18 (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.
Mosley testified on more than one occasion that when four
workers were pulling 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 finished cutting
the skirt steaks out of 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 skirt pulling department was very short-handed the
chain 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 inferences
that can be drawn from it in favor of Mosley, we now consider
19 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
his injuries, Mosley replied that the plant was understaffed and
the chain speed was too rapid.
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, and upon
several sets of medical records 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
left. Jetzer also testified that, if the work were the cause of
Mosley’s injuries, he would not expect to see any injury in the
20 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 more-
probable-than-not connection between his actual injury and this
work specifically. There was evidence, which his evidence
completely 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 he
21 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 workers’ injuries, and his
evidence that his injury is consistent 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 concluded that Mosley’s carpal tunnel
syndrome was related to his work as a replacement skirt puller.
Even if we assume, however, that the evidence demonstrated a
causal connection between Mosley’s injuries and his work as a skirt
puller, Mosley has failed to establish his tort claim. As we
underscored 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 and that the
negligence of Excel caused the injury. Mosley alleges that Excel
negligently caused his injury by failing adequately to staff the
plant and by running the production chain too rapidly. The
22 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 two 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, on
16 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 short- handed? 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 compared 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 help my employees out, so they wouldn’t have to 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 more than one occasion, testified that when four workers were
available as skirt pullers the job was not unduly dangerous.17 In
reduce the chain speed for you to make it easier to keep up? A. [by Jackson] Well, if we were real short- handed they would. I mean, you know, if you [had] three skirt pullers, they wouldn’t. That 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 short, the 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. 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 linked 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 relationship
A. 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. 18 Because we conclude that Mosley failed to establish cause in fact, we need not address the question of the foreseeability of his injury.
25 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.
19 Although our holding 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 the 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 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 worked 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 does, 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.”
27 The majority’s whole conclusion hangs on this faulty hook. It
does not go on to address the question of foreseeability. The
record contains evidence that there were high injury rates which
had been reported to Excel, that Excel’s ergonomics expert
recommended rest pauses and that workers were not allowed pauses,
even after Mosley requested such changes. 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.