               UNITED STATES COURT OF APPEALS

                     FOR THE FIFTH CIRCUIT



                             No. 98-41378


GILBERT ADAME, JR.; ET AL,
                                            Plaintiffs,
GILBERT ADAME, JR.; GILBERTO
ADAME, SR.; JESSIE ADAME; JOE Z.
ADAME; REYNALDO FLORES; ERASMO
GARZA; ANTONIO MARTINEZ; ARTURO
MARTINEZ; JERRY MARTINEZ; TONY H.
MARTINEZ; ALFONSO SANCHEZ, JR.;
ERNEST VELA,
                                              Plaintiffs-Appellees,

                                  and

LUANN NELSON,
                                              Plaintiff-Appellant,

                                  and

JOE ADAME, JR.,                               Intervenor-Plaintiff-Appellant,

                                  and

JOSE L. GONZALEZ,
                                              Intervenor-Plaintiff-Appellee
                                 versus

KOCH PIPELINE CO., LLP, ET AL;
                                              Defendants,

SUN PIPE LINE COMPANY,
                                                       Defendant-Appellant-Appellee.



                    Appeals from the United States District Court
                         for the Southern District of Texas
                                     (C-96-CV-516)

                                  October 24, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges
POLITZ, Circuit Judge:*


      Sun Pipe Line Company appeals an adverse judgment on jury verdict in this toxic
tort action. Luann Nelson Rosalis and Joe S. Adame, Jr. appeal an adverse judgment
based on the statute of limitations. For the reasons assigned, we affirm.
                                  BACKGROUND
      Each of the fifteen plaintiffs worked for Ruiz Lease Services Company between
1985 and 1990. Some regularly worked full-time, others worked part-time or full-time
on a sporadic basis. All of the claimants maintain that they were forced to clean fuel
storage tanks at Sun’s Ingleside facility, doing so under extremely dangerous
conditions. In 1996, the plaintiffs sued Sun, alleging that Sun negligently exposed them
to benzene and toluene, causing blood changes which rendered them susceptible to
leukemia and other blood diseases.      They also claimed cerebral and central nervous


      *
       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not be published and is not precedent except under the limited circumstances set forth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.
                                           2
system impairments.
      The case was tried to a jury which found that the claims of Rosalis and Adame
were barred by the statute of limitations because the action was filed more than two
years after the accrual of their claims. The jury returned a verdict in favor of the other
plaintiffs and awarded damages for past physical pain, mental anguish, physical
impairment, and fear of cancer. The jury also awarded these plaintiffs punitive
damages. Denying Sun’ s Motion for Judgment as a Matter of Law and Rosalis’ and
Adame’s Motion for a New Trial, the trial court entered a final judgment consistent
with the verdict. Sun, Rosalis, and Adame timely appealed those denials, and Sun also
raises a question about the admission of certain expert testimony.
                                      ANALYSIS
          A motion for judgment as a matter of law in an action tried by a jury is a
challenge to the legal sufficiency of the evidence supporting the jury's verdict.1 We
review the denial of such motions de novo,2 applying the same standard as that used by
the district court and honoring the verdict unless the record is devoid of a legally
sufficient evidentiary basis upon which a reasonable jury could find as the challenged
jury did.3 Where jurisdiction is founded upon diversity of citizenship of the parties, we,
of course, apply state law.4


      1
          Harrington v. Harris, 118 F.3d 359 (5th Cir. 1997).
      2
          Threlkeld v. Total Petroleum, Inc., 211 F.3d 887 (5th Cir. 2000).
      3
          Harrington, 118 F.3d at 367.
      4
          Threlkeld, 211 F.3d at 891.
                                            3
       Sun challenges the admission of certain expert testimony. The district court’s
decision to admit or exclude expert testimony is reviewed for abuse of discretion.5 We
likewise apply the abuse of discretion standard in reviewing the denial of a motion for
a new trial.6 The trial court may only grant a new trial on evidentiary grounds if the
verdict clearly is “contrary to the great weight of the evidence.”7 Because the trial
court weighs all of the evidence in making its determination, this court gives that
determination great deference, and will only find an abuse of discretion if “the party
that was the movant in district court makes a clear showing of an absolute absence of
evidence to support the jury’s verdict . . . .”8
       A close review of the record on appeal, the briefs, and the arguments of counsel
persuades that the district court did not err in denying Sun’s motion for judgment as a
matter of law. We further conclude that the trial court did not abuse its discretion by
admitting the expert testimony of Dr. A. Nelson Avery, as the court correctly
determined that Sun’s criticisms regarding his testimony went to its weight rather than
its admissibility. Finally, our detailed review of the plaintiffs’ trial testimony, along
with other evidence adduced at trial, discloses some evidence to support the jury’s
finding that Rosalis and Adame knew that they suffered from a latent, work-related



       5
           General Electric Co. v. Joiner, 522 U.S. 136 (1997).
       6
           Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir. 1998).
       7
        Id. at 269 (quoting Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036 (5th
Cir. 1998)).
       8
           Id. (internal quotation marks and emphasis omitted).
                                             4
injury prior to August 30, 1994, more than the allotted two-year period for the filing of
suit. Therefore, their motion for a new trial properly was denied.
      For the foregoing reasons, the judgment as entered by the trial court is
AFFIRMED.




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