             Case: 12-16433   Date Filed: 05/15/2014   Page: 1 of 15


                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 12-16433
                         ________________________

                     D.C. Docket No. 1:11-cv-21589-CMA


WILLIAM C. SKYE,

                                                             Plaintiff–Appellee,
                                    versus


MAERSK LINE,
Limited Corporation,
d.b.a. Maersk Line Limited,

                                                           Defendant–Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                         _______________________

                                (May 15, 2014)

Before PRYOR, JORDAN, and FAY, Circuit Judges.

PRYOR, Circuit Judge:

      This appeal requires us to decide whether a seaman can recover money

damages under the Jones Act, 46 U.S.C. § 30104, for an injury stemming from
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excessive work hours and an erratic sleep schedule. William Skye, formerly the

chief mate of the Sealand Pride, a commercial vessel, suffers from left ventricular

hypertrophy, which he complained that his employer, Maersk Line Limited

Corporation d/b/a Maersk Line Limited, caused when it negligently saddled him

with “excessive duties and duty time” such that he was “overworked to the point of

fatigue.” At trial, the jury found Maersk liable to Skye, who the jury found suffered

damages of $2,362,299.00, which the district court reduced to $590,574.75 to

account for Skye’s comparative negligence. Maersk moved for a judgment as a

matter of law on the ground that the decision of the Supreme Court in

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396 (1994), barred

Skye’s complaint. The district court denied that motion and entered judgment in

favor of Skye. We REVERSE the denial of the motion for a judgment as a matter

of law and RENDER judgment in favor of Maersk because Skye’s complaint of an

injury caused by work-related stress is not cognizable under the Jones Act, which

concerns injuries caused by physical perils. See Gottshall, 512 U.S. at 558, 114 S.

Ct. at 2411–12.

                                I. BACKGROUND

       Between 2000 and 2008, William Skye worked on the Sealand Pride as

chief mate. The Sealand Pride was first chartered and later operated by Maersk.

Skye’s job duties required him to work overtime, which adversely affected his

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health because of fatigue, stress, and lack of sleep. Skye regularly worked between

90 and 105 hours per week for 70 or 84 days at a time. At sea, Skye worked 12

hours; in port, he might have worked “round the clock.”

      In 2000, Skye’s cardiologist diagnosed him with a benign arrhythmia and

recommended that Skye change his diet and rest more. In 2003, Skye returned to

his cardiologist, who said his diagnosis had not changed. Skye’s symptoms

worsened in 2004 when Maersk began directly managing the Sealand Pride and

increased his duty time. Skye worked 12 to 15 percent more overtime hours. And

his working hours were replete with arduous duties: logging in cargo carrying

hazardous material at various ports for eight hours at a time; inspecting roughly

144 “reefers,” which are refrigerated containers, to ensure they were keeping cargo

cold; repairing “cell guides,” which hold cargo containers; and descending six

stories via ladders and manholes into the hull of the Sealand Pride to inspect and

repair the interior of the ballast tanks, which hold water to balance the ship.

      By 2008, Skye was experiencing headaches, a sore back, and a burning

sensation in his chest in addition to his arrhythmia, so Skye returned to his

cardiologist, who diagnosed him with left ventricular hypertrophy, a thickening of

the heart wall of the left ventricle, which his cardiologist attributed to

hypertension. Skye’s cardiologist concluded that Skye’s “continued physical stress

related to his job, with long hours and lack of sleep” caused his labile

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hypertension—intermittent high blood pressure while on the job—which, in turn,

caused his left ventricular hypertrophy. The cardiologist advised Skye to stop

working on the vessel.

      In 2011, Skye filed a complaint against Maersk for negligence under the

Jones Act. Skye alleged that his working conditions caused his left ventricular

hypertrophy and that Maersk was negligent when it failed to provide him with

reasonable working hours, an adequate crew, and adequate rest hours and instead

“overworked [him] to the point of fatigue.” He alleged that these working

conditions led to “physical damage to [his] heart.”

      At trial, Skye and his cardiologist testified that his excessive hours and

resulting stress were the most likely causes of his injury. Skye testified that his

arduous work schedule and his lack of sleep had an adverse effect on his health.

His cardiologist testified that Skye’s working conditions “were a substantial

contribution” to his left ventricular hypertrophy. The cardiologist opined that Skye

developed labile hypertension because of the “stress of his job as chief mate” and

“the lack of regular sleep,” which in turn “caused the left ventricular hypertrophy.”

The cardiologist explained that “people who live under constant physical stress

secrete large amounts of adrenaline” as part of a “fight or flight response.” And

when “adrenaline is secreted for long periods of the day, that has a deleterious

effect on their health.” He continued, “Long working hours and stress can lead to

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this fight or flight response, and that, in turn, can lead to left ventricular

hypertrophy.”

      At the conclusion of trial, Maersk moved for a directed verdict on the

grounds that Skye could not recover for money damages for an injury caused by

work-related stress and, alternatively, that the statute of limitations barred his

claim. Maersk argued that Gottshall, in which the Supreme Court held that

plaintiffs could not recover for work-related stress under the Federal Employers’

Liability Act, barred Skye’s claim as a matter of law. The district court denied the

motion.

      Before the jury deliberated, the court instructed the jury as follows that it

must decide whether Skye’s injury and its causes were physical or emotional:

       The law holds that a seaman such as the plaintiff cannot receive
       compensation for a purely emotional injury. A purely emotional injury
       is an injury that has no physical causes, but, rather was solely caused
       by the injured person’s perception of a nonphysical stress. The injured
       person, however, may receive compensation for an injury caused in
       any part by physical stress. You will need to determine whether
       plaintiff’s injury is a physical one or an emotional one. If you
       determine it is an emotional one, in order to recover, plaintiff has the
       burden of proving by a preponderance of the evidence that his injury
       was sustained as a result of his fear for his own physical safety or
       incurred while in a zone of immediate physical danger.

The district court provided the jury with a special verdict form that required it to

decide whether Skye’s injury was “physical” or “emotional.”




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      The jury returned a verdict finding that Skye sustained a physical injury, but

that Skye was 75 percent at fault for his injuries. It found that Skye suffered

damages of $2,362,299.00, which the district court reduced to $590,574.75 to

account for Skye’s comparative negligence. After the verdict, Maersk moved for a

judgment as a matter of law, which the district court denied.

                          II. STANDARD OF REVIEW

      We review the denial of a motion for a judgment as a matter of law de novo

and apply the same standards as the district court. Ash v. Tyson Foods, Inc., 664

F.3d 883, 892 (11th Cir. 2011). We will reverse the denial of a motion for a

judgment as a matter of law “only if the facts and inferences point overwhelmingly

in favor of one party, such that reasonable people could not arrive at a contrary

verdict.” Id. (internal quotation mark omitted). “We will not second-guess the jury

or substitute our judgment for its judgment if its verdict is supported by sufficient

evidence.” Lambert v. Fulton Cnty., Ga., 253 F.3d 588, 594 (11th Cir. 2001). “We

view all the evidence and draw all inferences from it in the light most favorable to

. . . the nonmoving party.” Ash, 664 F.3d at 892.

                                 III. DISCUSSION

      The Jones Act provides a cause of action in negligence for “a seaman”

personally injured “in the course of employment,” 46 U.S.C. § 30104, in the same

way that the Federal Employers’ Liability Act provides a cause of action in


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negligence for injured railroad employees against their employers, 45 U.S.C. §§

51–60. The Jones Act incorporated the remedial scheme of the Federal Employers’

Liability Act, and case law interpreting the latter statute also applies to the Jones

Act. 46 U.S.C. § 30104 (“Laws of the United States regulating recovery for

personal injury to, or death of, a railway employee apply to an action under this

section.”); see also O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36,

38–39, 63 S. Ct. 488, 490 (1943).

      Not all work-related injuries are cognizable under the Federal Employers’

Liability Act and, by extension, the Jones Act. See Gottshall, 512 U.S. at 555–56,

114 S. Ct. at 2410–11. The Supreme Court has made clear that these statutes are

“aimed at ensuring ‘the security of the person from physical invasions or

menaces.’” Id. (emphasis added) (quoting Lancaster v. Norfolk & W. Ry. Co., 773

F.2d 807, 813 (7th Cir. 1985)). For employers to be liable, the employees’ injuries

must be “caused by the negligent conduct of their employers that threatens them

imminently with physical impact.” Id. at 556, 114 S. Ct. at 2411.

      Skye’s injury is not cognizable under the Jones Act even when we draw all

inferences from the evidence presented to the jury in the light most favorable to

him and assume that his work schedule caused him to develop left ventricular

hypertrophy. The Jones Act does not allow a seaman to recover for injuries caused

by work-related stress because work-related stress is not a “physical peril[].” Id. at

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555, 114 S. Ct. at 2410. The district court erred when it denied the motion of

Maersk for a judgment in its favor as a matter of law.

      Skye’s complaint fails for the same reason that plaintiff Alan Carlisle’s

complaint failed in Gottshall. In Gottshall, the Supreme Court ruled that injuries

caused by the long-term effects of work-related stress are not cognizable under the

Federal Employers’ Liability Act because they are not caused by any physical

impact or fear from the threat of physical impact. 512 U.S. at 558, 114 S. Ct. at

2411–12. Carlisle sued his employer after suffering from insomnia, headaches,

depression, weight loss, and a nervous breakdown attributable to “work[ing] 12- to

15-hour shifts for weeks at a time.” Id. at 539, 114 S. Ct. at 2402. Carlisle alleged

that his employer failed to provide him with a safe workplace “by forcing him to

work under unreasonably stressful conditions” and that its failure “resulted in

foreseeable stress-related health problems.” Id. The Supreme Court adopted the

zone-of-danger test for injuries not caused by a physical impact; Carlisle’s injuries

were compensable only if Carlisle was injured when he was within the zone of

danger of a physical impact caused by his employer’s negligence. Id. at 556, 114 S.

Ct. at 2410–11 (“[A] worker within the zone of danger of physical impact will be

able to recover for emotional injury caused by fear of physical injury to himself,

whereas a worker outside the zone will not.”). The Supreme Court held that

“Carlisle’s work-stress-related claim plainly does not fall within the common law’s

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conception of the zone of danger, and Carlisle makes no argument that it does. . . .

[W]e will not take the radical step of reading [the Federal Employers’ Liability

Act] as compensating for stress arising in the ordinary course of employment.” Id.

at 558, 114 S. Ct. at 2411–12; see also Smith v. Union Pac. R.R. Co., 236 F.3d

1168, 1173–74 (10th Cir. 2000) (“[A] work schedule is not the physical peril

against which [the Federal Employers’ Liability Act] protects.”); Szymanski v.

Columbia Transp. Co., 154 F.3d 591, 594–95 (6th Cir. 1998) (en banc) (holding

that the estate of a seaman could not recover under the Jones Act for a fatal heart

attack allegedly induced by excessive work hours); Crown v. Union Pac. R.R. Co.,

162 F.3d 984, 985 (8th Cir. 1998) (refusing recovery for extreme weight gain,

carpal tunnel syndrome, knee joint problems, cough syncope syndrome, sleep

apnea, diabetes, various addictions, and a nervous breakdown, all of which were

attributable to excessive work hours).

      Under Gottshall, Skye’s complaint is not cognizable under the Jones Act.

His complaint parallels Carlisle’s complaint of an injury induced by overwork.

Skye complained that he was “injured while aboard the vessel” because “[r]educed

manning and other conditions caused excessive duties and duty time.” And Skye

alleged that Maersk was negligent when it “[f]ail[ed] to provide [him] with

reasonable working hours,” “adequate personnel, time, and equipment,” and

“adequate rest hours,” and “overworked [him] to the point of fatigue.”

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      As the Supreme Court explained in Gottshall, the “central focus” of the

Federal Employers’ Liability Act, and the Jones Act by extension, is “on physical

perils.” 512 U.S. at 555, 114 S. Ct. at 2410. An arduous work schedule and an

irregular sleep schedule are not physical perils. That Skye developed a “physical

injury” is no matter; the cause of his injury was work-related stress. See Szymanski,

154 F.3d at 594–95. Carlisle too had physical injuries—weight loss and

headaches—but a physical injury is not enough. Gottshall, 512 U.S. at 539, 558,

114 S. Ct. 2402, 2411–12. Compensating Skye for his injury would potentially

lead to, in the words of the Supreme Court, “a flood of trivial suits, the possibility

of fraudulent claims . . . and the specter of unlimited and unpredictable liability”

because there is no way to predict what effect a stressful work environment—

compared to a physical accident such as an exploding boiler—would have on any

given employee. See id. at 557, 114 S. Ct. at 2411. Skye’s complaint of a physical

injury caused by work-related stress is foreclosed by binding precedent of the

Supreme Court, and the judgment in his favor cannot stand as a matter of law. Id.

at 558, 114 S. Ct. at 2411–12. Because we decide that Skye’s complaint is not

cognizable under the Jones Act, we need not decide whether the statute of

limitations bars his claim.




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                              IV. CONCLUSION

      We VACATE the judgment awarding Skye $590,574.75. We REVERSE

the denial of the motion of Maersk for a judgment as a matter of law and

RENDER judgment in favor of Maersk.




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FAY, Circuit Judge, concurring specially:

      I concur in the court’s opinion, because we are bound by the decision of the

Supreme Court in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct.

2396 (1994). In my view, however, the majority opinion in that case is contrary to

the language, purpose, and spirit of the Federal Employers’ Liability Act

(“FELA”), 45 U.S.C. § 51 et seq., and the Jones Act, 46 U.S.C. § 30104,

concerning a seaman’s recovery of damages for a job-related injury. The core

purpose of both is to provide covered employees with a safe place to work. Being

required to work 90 and 105 hours per week for 70 or 84 days at a time is hardly

being given a safe place to work. I fail to see the difference between being given a

defective piece of equipment and being required to work outrageous hours, in

determining whether or not the workplace was safe. Surely, an employer is no less

negligent in doing either.

      Most respectfully, my hope is that the Supreme Court will revisit this area of

the law. As Justice Ginsburg stated in her dissent in Gottshall: “Instead of the

restrictive ‘zone’ test that leaves severely harmed workers remediless, however

negligent their employers, the appropriate FELA claim threshold should be keyed

to the genuineness and gravity of the worker’s injury.” Gottshall, 512 U.S. at 572,

114 S. Ct. at 2419 (Ginsburg, J., dissenting).




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JORDAN, Circuit Judge, dissenting:

      With respect, I dissent.

      William Skye alleged, and proved to the satisfaction of a jury, that he

suffered physical damage to his heart as a result of Maersk forcing him to work for

an excessive number of hours (about 16 hours a day on average) without providing

him adequate periods of rest. Like the district court, I do not think that Mr. Skye’s

claim under the Jones Act, 46 U.S.C. § 30104, constituted a claim for negligent

infliction of emotional distress, i.e., “mental or emotional harm (such as fright or

anxiety) that is caused by the negligence of another that is not directly brought

about by a physical injury, but may manifest itself in physical symptoms.”

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544 (1994).

      The verdict form asked the jury whether Mr. Skye sustained a “physical

injury” or an “emotional injury.”      The jury specifically found that Mr. Skye

sustained only a physical injury due to Maersk’s negligence, and characterized this

injury as “left ventricular hypertrophy,” a thickening of the heart wall which can

affect the pumping of blood in the ventricle and lead to congestive heart failure.

See Verdict Form, D.E. 158 at 1, 2; Trial Tr., D.E. 166 at 606. We owe “great

deference” to the jury’s factual findings, Grant v. Preferred Research, Inc., 885

F.2d 795, 798 (11th Cir. 1989), and I do not believe we can say, as a matter of law

on this record, that Mr. Skye’s injury was purely emotional. See also Quality

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Foods, Inc. v. U.S. Fire Ins. Co., 715 F.2d 539, 543 (11th Cir. 1983) (“We cannot

over emphasize [sic] the great weight and deference which must be given to jury

verdicts.”). As a result, the zone of danger test articulated in Gottshall does not

apply. See Gottshall, 512 U.S. at 547-48 (adopting zone of danger test to “limit[ ]

recovery for emotional injury to those plaintiffs who sustain a physical impact as a

result of a defendant’s negligent conduct, or who are placed in immediate risk of

physical harm by that conduct”).

      I recognize that federal and state courts are divided about the scope of

Gottshall. Some courts have read Gottshall more broadly, as the majority does,

while others have interpreted it more narrowly, as I do. Compare, e.g., Szymanski

v. Columbia Transp. Co., 154 F.3d 591, 594-95 (6th Cir. 1998) (10-3 en banc

decision), and Capriottti v. Consolidated Rail Corp., 878 F. Supp. 429, 432-33

(N.D.N.Y. 1995), with, e.g., Walsh v. Consolidated Rail Corp., 937 F.Supp. 380,

387-89 (E.D. Pa. 1996), and Duncan v. Am. Commercial Barge Line, LLC, 166

S.W.3d 78, 83-84 (Mo. App. E.D. 2004). As I see it, the more constrained reading

of Gottshall is supported by the Supreme Court’s more recent decision in Norfolk

& Western Railway Co. v. Ayers, 538 U.S. 135, 157 (2003), which distinguished

Gottshall and held that “an asbestosis sufferer [can] seek compensation for fear of

cancer as an element of his asbestosis-related pain and suffering damages.” In the

words of Ayers, “[t]he plaintiffs in Gottshall and [Metro-North Commuter Railroad

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Co. v. Buckley, 521 U.S. 424 (1997)] grounded their suits on claims of negligent

infliction of emotional distress. The claimants before us, in contrast, complain of a

negligently inflicted physical injury (asbestosis) and attendant pain and suffering.”

Id. at 148. Like the claimants in Ayers, Mr. Skye is complaining of a negligently

inflicted physical injury—left ventricular hypertrophy.

      Congress enacted the Jones Act “for the benefit and protection of seamen

who are peculiarly the wards of admiralty.” Atl. Sounding Co. v. Townsend, 557

U.S. 404, 417 (2009) (internal quotation marks omitted). Given that purpose, and

absent definitive indication from the Supreme Court, I would not read the Jones

Act to preclude liability for an employer who makes a seaman work so hard and so

continuously that he suffers physical injury in the form of heart disease, heart

attack, organ failure, seizure, or stroke.




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