            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                             Fifth Circuit
                                                                           F I L E D
                                     No. 07-40029                          August 30, 2007
                                   Summary Calendar
                                                                       Charles R. Fulbruge III
                                                                               Clerk

DOUGLAS O’NEILL

                                                  Plaintiff-Appellee
v.

SEARIVER MARITIME, INC.

                                                  Defendant-Appellant



     Appeals from the United States District court for the Southern District of
                           Texas, Galveston Division
                                  3:05-CV-425


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        SeaRiver Maritime, the defendant-appellant, now appeals the district
court’s adverse findings of fact, and denial of two trial motions. We AFFIRM.
                                          FACTS
        Douglas O’Neill, the plaintiff-appellee, was a seaman for SeaRiver. He
began a tour aboard the MEDITERRANEAN, which picked up loads of crude oil
in Qatar and Oman for delivery in Japan. O’Neill’s job was to gauge and sample


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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the cargo tanks. During the voyage, the amount of hydrogen sulfide vapors rose
to dangerous levels, i.e., 200 parts per million or greater. Douglas O’Neill
suffered permanent injuries including severe headaches, memory and breathing
problems. O’Neill was diagnosed with decreased respiratory function caused by
the heightened levels of hydrogen sulfide. O’Neill was also diagnosed with brain
damage primarily decreased concentration, personality change, and short-term
auditory memory impairment. He was unable to return to work as a result of his
neurological damage and any further contact with hydrocarbons would cause
severe asthma attacks. O’Neill sued SeaRiver in federal court. The district
court found SeaRiver liable for negligence under the Jones Act, 46 U.S.C. § 688,
and for unseaworthiness. The court also found the plaintiff 20% negligent “for
not more aggressively providing for his own safety.” The district court found
O’Neill had sustained $800,000 in damages, yielding an award of $600,000 due
to O’Neill’s contributory negligence. The court later corrected its judgment to
provide for an award of $640,000. SeaRiver now appeals the trial court’s
findings of fact below and its treatment of two trial motions.
                                  ANALYSIS
      SeaRiver asserts an error in the trial court’s findings of fact as to
causation: whether O’Neill’s injuries were caused by a harmful level of hydrogen
sulfide exposure of 200 parts per million (“ppm”) or more. We review a district
court’s judgment’s findings of fact under a clearly erroneous standard. In re
Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005). SeaRiver appeals the
denial of its motion to exclude O’Neill’s medical causation expert. We review the
trial court’s admission or exclusion of expert testimony under an abuse of
discretion standard. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.
2002). SeaRiver also appeals the district court’s denial of its motion for a new
trial. We review denial of a motion for new trial for abuse of discretion. United
States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004).

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1. District Court Did Not Clearly Err in Finding Heightened levels of Hydrogen
Sulfide Caused O’Neill’s Medical Problems

      SeaRiver contends that O’Neill never proved he was exposed to hydrogen
sulfide at 200 ppm or greater. “We recognize that scientific knowledge of the
harmful level of exposure to a chemical, plus knowledge that the plaintiff was
exposed to such quantities, are minimal facts necessary to sustain the plaintiffs'
burden in a toxic tort case.” Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 670
(5th Cir. 1999) (internal quotations and citations omitted).        We have not
required the plaintiff to show the precise level of toxic chemicals to which they
were exposed. Id. at 671. Circumstantial evidence can be used to establish
injurious exposure and the proof necessary to establish causation is “relatively
lenient.” Slaughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Cir. 1991).
The standard for causation in Jones Act cases is “very light.” Martin v. John W.
Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir. 1987) (quoting Landry v.
Two R. Drilling Co., 511 F.2d 138, 142 (5th Cir. 1975)). Under this deferential
standard of review, we cannot find that the district court clearly erred in
concluding that O’Neill was exposed to hydrogen sulfide at 200 ppm or at greater
levels.   In Oman, O’Neill saw a plum of vapor when he was gauging and
sampling. An expert witness provided an opinion that a vapor at that location
would have been greater than 200 ppm. O’Neill also presented evidence that he
was exposed to the toxic levels at the location most susceptible to high
concentrations, and just two days later a reading of 200 ppm was gauged in the
same area, along with readings of 100 ppm in other parts of the ship.
      In addition, many of the crew-members, including O’Neill, were beset with
symptoms consistent with exposure to high levels of hydrogen sulfide. The
appellant also appeals the district court’s finding of causation. The appellant
contends the district court engaged in improper “post-hoc” reasoning whereby
the court inferred the source of injury from O’Neill’s symptoms alone. When the

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symptoms appear close in time to the alleged injury, this court has recognized
symptoms as circumstantial evidence of the link between the alleged source and
the injury if “there is an established scientific connection between the exposure
and illness or other circumstantial evidence supporting the causal link.” Curtis,
174 F.3d at 670. In this case, expert witnesses establish the scientific connection
between the symptoms and the exposure to toxic hydrogen sulfide levels. As
stated earlier, there is other circumstantial evidence supporting the causal
relationship, including the readings of 200 ppm or greater around the ship.
      We cannot say that under the Jones Act’s lenient standards for causation
and the highly deferential clear error standard, the district court clearly erred
in concluding that a greater than 200 ppm existed when O’Neill was exposed to
the hydrogen sulfide and that it was the cause of his injuries. The same analysis
would apply to the seaworthiness claim.
2. The District Court did not abuse its discretion in admitting the testimony of the
plaintiff’s expert witness
      We are also highly deferential to district courts in their decisions to admit
or exclude expert testimony. See Watkins v. Telsmith, 121 F.3d 984, 988 (5th
Cir. 1997) ("District courts enjoy wide latitude in determining the admissibility
of expert testimony, and the discretion of the trial judge and his or her decision
will not be disturbed on appeal unless manifestly erroneous.") (internal
quotations omitted). SeaRiver appeals its denial of its motion to exclude Dr.
James Dahlgreen, the plaintiff’s expert witness. SeaRiver argues on appeal that
Dr. Dahlgreen’s testimony was unreliable, because he failed to exclude possible
alternate causes, ignored evidence of no harmful exposure, and engaged in post-
hoc reasoning. SeaRiver relies primarily on Black v. Food Lion, Inc., 171 F.3d
308, 313-14 (5th Cir. 1999). In Food Lion, Inc., we reversed the trial court’s
admission of an expert, because he engaged in post-hoc reasoning when
establishing a cause of injury without eliminating other possibilities. Id. at 314.


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Food Lion did not invalidate the use of symptoms or evidence of an effect to
prove cause; instead, Food Lion approved the exclusion of an expert who
establish cause from effect without identifying a scientific basis for his
determination. See Id. (“The underlying predicates of any cause-and-effect
medical testimony are that medical science understands the physiological
process by which a particular disease or syndrome develops and knows what
factors cause the process to occur. Based on such predicate knowledge, it may
then be possible to fasten legal liability for a person's disease or injury.”). Unlike
Food Lion, the plaintiff’s expert in this case did establish the critical scientific
predicate for the cause-and-effect relationship by detailing the symptoms and
physiological effects caused by exposure to high levels of hydrogen sulfide.
Concluding O’Neill’s symptoms as consistent with that scientifically established
cause-and-effect relationship, the expert testimony cannot be considered
manifestly unreliable. In addition, the evidence of the symptoms was used in
connection with other circumstantial evidence that O’Neill and other crew-
members were exposed to high levels of hydrogen sulfide. See Curtis, 174 F.3d
at 670.
      The appellant also contends the plaintiff’s expert was unreliable, because
he failed to exclude possible alternate causes.         The plaintiff’s expert did
recognize several of the causes in his report, but noted that these potential
“causes” occurred during his childhood and ruled them out in his report.
Moreover, reviewing the record, the appellee’s expert did have a chance, during
cross-examination, to address the alternative causes and provided reasons why
they were not relevant to his conclusions. His diagnosis, affirmed in cross-
examination, was sufficiently reliable. See In re Paoli Ry. Yard PCB Litigation,
35 F.3d 717, 761 (3rd Cir. 1994) (“Thus, to avoid exclusion of his or her opinion,
[the experts] did not have to conduct every possible test to assess whether his or
her view was correct so long as he or she employed sufficient diagnostic

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techniques to have good grounds for his or her conclusion that the plaintiff's
illness was caused by PCBs.”). We do not find the admittance of this evidence
manifestly erroneous, and the admittance, even if erroneous, was likely
harmless. See Guy v. Crown Equipment Corp., 394 F.3d 320, 324 (5th Cir. 2004).
3. The District Court Did Not Abuse its Discretion in Denying SeaRiver’s Motion
For a New Trial
      We usually do not consider a trial court’s denial of a motion, because he
wants to enforce local rules, as an abuse of discretion. Victor F., by Gene F. v.
Pasadena Ind. School Dist., 793 F.2d 633, 635 (5th Cir. 1986). We also do not
find an abuse of discretion when the trial judge denied SeaRiver relief from
clerical mistake.   SeaRiver cannot point to any evidence that it sent the
transcript order form to the Clerk’s Office. See Riley v. City of Jackson, Miss.,
99 F.3d 757, 761 (5th Cir. 1996). While the trial court judge relied on a
debatable ground for dismissing the motion for a new trial, any error would be
harmless, because the trial judge assessed the merits of the appellant’s motion.
He concluded that he would have denied the motion even if procedural errors did
not bar his consideration. Since the trial judge did have an opportunity to assess
the merits, any error in the denial based on procedural grounds is harmless. Cf.
Ellison v. Conoco, Inc., 950 F.2d 1196, 1206 (5th Cir. 1992).
      For the foregoing reasons, we AFFIRM.




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