     Case: 10-40442     Document: 00511662376         Page: 1     Date Filed: 11/10/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        November 10, 2011

                                     No. 10-40442                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



WAYNE PEARSON ET AL,

                                                  Plaintiffs
v.

BP PRODUCTS NORTH AMERICA, INC.,

                                                  Defendant–Appellant/
                                                  Cross-Appellee
v.

GILBERT CANTU; GREGORIO FUENTES; WILLIE MAYS, JR.,

                                                  Intervenor Plaintiffs–Appellees/
                                                  Cross-Appellants



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 3:07-CV-221


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                    No. 10-40442

            I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2005, as a precaution due to Hurricane Rita, BP Products North
America (“BP” or the “Appellant”) decided to shut down all of its Texas City
Refinery (the “Refinery”). Following Hurricane Rita, BP decided to audit,
evaluate, and “turn around” each of the units at the Refinery on an individual
basis before resuming production.         To complete the turnaround, BP used
independent contractors for most of the work. On any given day during the
turnaround, between fifteen and sixteen thousand contractors were at the
Refinery doing turn-around work. One such contractor was Fluor Corporation
(“Fluor”). Fluor accepted the responsibility to control the maintenance work at
Pipestill 3B, one of the refinery’s units. In 2007, when the events that gave rise
to this lawsuit occurred, only about one-third of the Refinery’s units were up-
and-running.
      On the night of April 19, 2007, Gilbert Cantu, Gregorio Fuentes, and
Willie Mays Jr. (collectively, the “Appellees”) were among the 450 contractors
working for Fluor on the turnaround of Pipestill 3B. Around 9:00 p.m., workers
began smelling an odor unlike those one usually smells in a refinery. The
workers who smelled it described it as smelling like acetone, but the Refinery
does not produce any acetone. None of the hundreds of monitors and detectors
designed to detect the release of any harmful gases was triggered. Fluor’s
foremen stopped work on Pipestill 3B and allowed any worker to be examined
at a local hospital; about one hundred workers went.                  Upon medical
examination, no workers were found to have any exposure injuries that required
hospital admission or required them to miss work.
      One hundred plaintiffs filed suit in the Souther District of Texas, claiming
that the injuries from the April 19 incident and other previous incidents at the
Refinery were caused by BP’s negligence. The district court conducted a joint
trial of ten plaintiffs’ (the “Trial Plaintiffs”) claims that arose out of the April 19

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incident in particular. The Appellees were part of that ten-plaintiff group. At
trial, the Trial Plaintiffs’ theory was that the gas was carbon disulfide and it
came from BP’s Sulfur Recovery Unit. None of the Trial Plaintiffs’ experts could
identify the odor’s source or its cause. The most definitive proof that the Trial
Plaintiffs marshaled that the gas was carbon disulfide was a mask worn by one
of the Trial Plaintiffs, which was found to have had exposure to carbon disulfide.
But, the laboratory technician who tested the mask admitted that the mask had
not been appropriately maintained for proper scientific study.
      BP moved for judgment as a matter of law, which the district court denied,
and the claims were submitted to the jury. As part of the jury’s charge, the
district court instructed the jury that it could infer the Appellant’s negligence
through the doctrine of res ipsa loquitur. The jury returned a verdict for the
Trial Plaintiffs and awarded approximately $325,000 in compensatory damages
amongst the ten Trial Plaintiffs and also $100 million in punitive damages ($10
million per Trial Plaintiff). The district court entered final judgment for the
Trial Plaintiffs but vacated the jury’s award of punitive damages because the
Trial Plaintiffs failed to prove gross negligence, as required under Texas law.
BP timely appealed. Only three of the Trial Plaintiffs’ claims are the subject of
this appeal as the other seven Trial Plaintiffs have settled with BP.
         II. STANDARD OF REVIEW AND APPLICABLE LAW
      We review a district court’s denial of a motion for judgment as a matter of
law de novo, applying the same standards as the district court. McBeth v.
Carpenter, 565 F.3d 171, 176 (5th Cir. 2009). In reviewing such a denial, “we
view all evidence and draw all reasonable inferences in the light most favorable
to the verdict.” Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 405 (5th
Cir. 2007) (internal quotation marks omitted). “In an action tried by jury, a
motion for judgment as a matter of law is a challenge to the legal sufficiency of
the evidence supporting the jury’s verdict.” McBeth, 565 F.3d at 176. Where “a

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reasonable jury would not have a legally sufficient evidentiary basis to find for
a party,” Fed. R. Civ. P. 50(a)(1), the court should grant the motion for judgment
as a matter of law. Allstate, 501 F.3d at 405 (5th Cir. 2007).
         Where, as here, federal jurisdiction is based on diversity, we apply the
substantive law of the forum state—Texas. Aubris Res. LP v. St. Paul Fire &
Marine Ins. Co., 566 F.3d 483, 486 (5th Cir. 2009) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78–79 (1938)) (additional citation omitted). In resolving
issues of Texas law, we look to the final decisions of the Texas Supreme Court,
which are binding, but if there is no decision directly on point, then we must
determine how that court, if presented with the issue, would resolve it. Packard
v. OCA, Inc., 624 F.3d 726, 729 (5th Cir. 2010). “The decisions of Texas
intermediate appellate courts may provide guidance, but are not controlling.”
Id.
                                 III. DISCUSSION
         BP argues that it was improper for the district court to have instructed the
jury on res ipsa loquitur and that absent that instruction, Appellees could not
show that it was negligent. The Texas Supreme Court in Haddock v. Arnspiger,
793 S.W.2d 948 (Tex. 1990), summarized the applicability of res ipsa under
Texas law:

         Res ipsa loquitur, meaning “the thing speaks for itself,” is used in
         certain limited types of cases when the circumstances surrounding
         the accident constitute sufficient evidence of the defendant’s
         negligence to support such a finding. Mobil Chem. Co. v. Bell, 517
         S.W.2d 245, 250 (Tex. 1974); Marathon Oil Co. v. Sterner, 632
         S.W.2d 571, 573 (Tex. 1982). Res ipsa loquitur is applicable only
         when two factors are present: (1) the character of the accident is
         such that it would not ordinarily occur in the absence of negligence;
         and (2) the instrumentality causing the injury is shown to have been
         under the management and control of the defendant. Mobil Chem.,
         517 S.W.2d at 251; Marathon Oil, 632 S.W.2d at 573. Res ipsa
         loquitur is simply a rule of evidence by which negligence may be


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      inferred by the jury; it is not a separate cause of action from
      negligence. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.
      1982).

Id. at 950.
      Appellants argue that Marathon Oil forecloses the use of res ipsa to prove
negligence in chemical release cases. While we do not think that the Texas
Supreme Court has laid down a per se rule against the use of res ipsa in these
types of case, we do find the analogous facts in Marathon Oil persuasive in
determining the appropriateness of the res ipsa instruction given in this case.
In Marathon Oil, an employee of a contractor was working at a refinery doing
a turnaround job. Marathon Oil, 632 S.W.2d at 572. The employee entered into
a vessel and “noticed a sour, rotten, musk oil smell.” Id. (internal quotation
marks omitted). After a short time, the employee became ill from the smell. Id.
Upon hearing about this, the contractor stopped work in the vessel to investigate
the smell, but there was no trace of harmful gas found, and work resumed. Id.
at 573. At the trial, the employee’s expert could not identify the “exact gas”
involved.     Id.   The Texas Supreme Court found a res ipsa instruction
inappropriate under the circumstances because “[e]scaping gas in the vicinity of
a complex chemical plant could be due to an unexpected and unforeseeable
mechanical failure or it could be due to negligence.” Id. Moreover, the court
found that the employee could not prove that “the instrumentality causing the
injury was in the control of Marathon,” the owner of the refinery, and not the
contractor turning around that specific vessel. Id at 574.
      The factual similarities between Marathon Oil and this case are too
similar for us to overlook. Here, there was a report of a noxious gas that the
Appellees claimed caused their injuries. No monitors or detectors registered any
harmful gas release. The Appellees claim that the gas released was carbon
disulfide based on a lab test of a mask worn on the day of the incident, but which


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was admitted not to be in suitable condition for normal testing procedures. None
of the Appellants’ experts could identify where the odor came from or whether
if it was even from BP’s property. The Appellees have shown neither that the
character of the accident is one that would not usually occur absent negligence
nor that the injury-causing instrumentality was in BP’s control. See Haddock,
793 S.W.2d at 950. In such circumstances, the district court should not have
instructed the jury on res ipsa loquitur. Without a res ipsa instruction, the
Appellees cannot meet their burden of proof as to negligence. See Greater
Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
                              IV. CONCLUSION
      For the foregoing reasons, we VACATE the jury’s verdict and REVERSE
the district court’s denial of Appellants’ motion for judgment as a matter of law.
      VACATED; REVERSED.




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