                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                          F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                           March 1, 2005
                         FOR THE FIFTH CIRCUIT
                        ______________________                       Charles R. Fulbruge III
                                                                             Clerk
                                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



     *
      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opinion should not be published and is not precedent except under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
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
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
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
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




     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
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



       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
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).

     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
                           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.




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