UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


STEPHANIE TOLSON,                         
                    Plaintiff-Appellee,
                v.
                                                No. 00-2311
MARRIOTT INTERNATIONAL,
INCORPORATED,
              Defendant-Appellant.
                                          
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
                 Gerald Bruce Lee, District Judge.
                         (CA-99-1752-A)

                        Argued: April 4, 2001

                        Decided: May 9, 2001

   Before WILKINS and KING, Circuit Judges, and Frederic N.
    SMALKIN, United States District Judge for the District of
               Maryland, sitting by designation.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Charles Perry Monroe, DUNCAN & HOPKINS, P.C.,
Alexandria, Virginia, for Appellant. Kenneth David Bynum, BYNUM
& JENKINS, P.L.L.C., Alexandria, Virginia, for Appellee.
2              TOLSON v. MARRIOTT INTERNATIONAL, INC.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Marriott International, Incorporated (Marriott) appeals a judgment
against it in a negligence action brought by Stephanie Tolson, arguing
that the evidence was insufficient, that prejudicial evidence was erro-
neously admitted, and that the amount of the verdict is excessive.
Finding no prejudicial error, we affirm.

                                  I.

   Tolson was a paying guest in a Marriott hotel in Arlington, Vir-
ginia on the evening of January 26, 1998. She complained of the
smell of cigarettes in her room but was advised that there were no
other rooms available and that an ozone machine would be employed
to clean her room the next day. She was also informed that, for health
reasons, she could not be present while the machine was running.

   After Tolson left her room the next morning, Esperanza Jimenez,
a Marriott housekeeping supervisor, placed an ozone machine in Tol-
son’s room. She testified that she set the machine by timer to turn off
in twenty minutes, and she never returned to the room to confirm that
the machine had turned off.

   Tolson returned to her room after 6:30 that evening. Immediately
upon entering, she sensed Clorox-like fumes. And, when she entered
the bathroom, she noticed a black and blue square metal machine that
was switched on—although the timer was not on—and the machine
was emitting a smell. By that time, her throat was burning, her eyes
were watering, and she became nauseated. When she called the front
desk, she was placed on hold for five minutes while her problems
continued. Tolson then proceeded to the hotel lobby and reported the
problem at the front desk. After hotel personnel removed the ozone
machine and provided Tolson with another room, she was instructed
               TOLSON v. MARRIOTT INTERNATIONAL, INC.                  3
to collect her belongings from the first room. The total time she spent
in the room for both visits was about 20 minutes.

   Later that evening, Tolson was transported to the emergency room,
where she was diagnosed with "[a]cute pulmonary chemical irrita-
tion." J.A. 331. Her family doctor examined her the following week-
end and referred her for diagnostic testing, which revealed that Tolson
was suffering from asthma and thickened vocal cords. Tolson was
then referred to a board-certified occupational disease physician, Dr.
Laura Welch, for an examination.

   Tolson subsequently filed this negligence action against Marriott.
Tolson alleged in her complaint that an Aqua Sun 5000 ozone
machine was used by Marriott on the day of the incident. Marriott
answered, denying improper use of the machine. Marriott also stated
in a discovery response that the Aqua Sun 5000 was not defective.

   At the conclusion of discovery, Marriott’s counsel informed coun-
sel for Tolson that Jimenez had been shown the Aqua Sun 5000 and
stated that it was not the machine used in Tolson’s room. She remem-
bered the machine as being smaller and red in color. Based on the
uncertainty regarding whether the Aqua Sun 5000 was the machine
used in Tolson’s room, the parties agreed that the Aqua Sun 5000
would not be admitted into evidence, and Tolson’s attorney requested
that Marriott amend its written discovery responses referring to that
machine. Marriott made no amendment, however. At trial, Tolson’s
counsel read into evidence several written discovery responses from
Marriott referring to the Aqua Sun 5000.

   Dr. Welch testified at trial that ozone is a known irritant to people
who have a preexisting inflammatory disorder. She testified to a rea-
sonable degree of medical certainty that the ozone exposure exacer-
bated Tolson’s preexisting condition of chronic rhinitis, causing
persistent postnasal drip onto her vocal cords, resulting in the thicken-
ing of the vocal cords and hoarseness. Dr. Welch also testified that
Tolson’s exposure to ozone led to her asthma. Dr. Welch reached her
conclusions by examining Tolson and reviewing the medical records
and diagnostic tests as well as the medical and scientific literature on
accepted levels of ozone as established by the EPA. Dr. Welch testi-
fied that Tolson would probably need to take several medications for
4               TOLSON v. MARRIOTT INTERNATIONAL, INC.
the rest of her life. She also testified that it would be advisable for
Tolson to stay home on days when the ozone level in the air was high.

  During the trial, Marriott moved unsuccessfully for judgment as a
matter of law, and the jury returned a verdict in favor of Tolson for
$120,000. The district court denied Marriott’s post-trial motions.

                                    II.

  Marriott first argues that the district court erred in denying its
motion for judgment as a matter of law on the ground that the evi-
dence of negligence was insufficient. We disagree.

   A motion for judgment as a matter of law should be granted if the
district court determines that the nonmoving party "has been fully
heard . . . and [that] there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party." Fed. R. Civ. P. 50(a)(1). We
review the denial of a motion for judgment as a matter of law de
novo, viewing the facts in the light most favorable to the nonmoving
party. See Chaudhry v. Gallerizzo, 

, 404-05 (4th Cir.
1999).

   Here, the evidence was sufficient to support a conclusion by a rea-
sonable jury that Jimenez was negligent in failing to ensure that the
ozone machine was turned off. Marriott contends that the only reason-
able conclusion from the evidence is that Jimenez set the machine to
turn off automatically by timer and this was all the reasonable care
required of her. We disagree and conclude that the evidence gave rise
to a reasonable inference that Jimenez never set the timer.

   Marriott employee Aziz Fenjiro testified that in addition to the
timer, the ozone machine used in Tolson’s room also had "a manual
on and off." J.A. 1171. Additionally, Tolson testified that when she
entered her room on the evening that the machine was used, the
machine was operating and the timer was not set. Finally, Marriott
stated in a discovery response that the ozone machine was not defec-
tive. From this evidence, it could reasonably be concluded that the
               TOLSON v. MARRIOTT INTERNATIONAL, INC.                  5
ozone machine was still on when Tolson entered the room because it
had been turned on in manual, rather than timed, mode.*

                                  III.

   Marriott next contends that the district court erred in denying its
motion for judgment as a matter of law on the basis that Tolson’s evi-
dence was insufficient to prove that the exposure to ozone proxi-
mately caused her injuries. Specifically, Marriott argues that Tolson
did not produce any measurements regarding the amount of ozone to
which she was exposed. We conclude that the evidence was suffi-
cient. Dr. Welch formed her opinion as a result of her review of medi-
cal records and diagnostic tests and the known problems associated
with ozone exposure, which was sufficient to establish proximate cau-
sation. See Westberry v. Gislaved Gummi AB, 

, 263-64
(4th Cir. 1999) (holding that differential diagnosis constituted suffi-
cient evidence that chemical exposure proximately caused injuries in
the absence of quantification of the chemical exposure).

                                  IV.

   Marriott next maintains that the district court committed prejudicial
error by allowing counsel for Tolson to mention the model of the
machine that injured her, contrary to the parties’ agreement that no
such mention would be made. Even assuming that the district court
erred, we fail to see how reference to a specific model name preju-
diced Marriott.

   Marriott argues that "[t]he mentioning of the specific machine, fol-
lowed by defense counsel’s reference that the machine could no lon-
ger be found by Marriott, gives the impression that the defendant had
engaged in evidence tampering." Br. of Appellant at 21. However, we
can discern no reason why the jury would have believed that Marriott
had a motive not to present the machine. Furthermore, even had the
actual model of the machine not been mentioned, Jimenez testified

  *For the same reasons, we reject Marriott’s argument that the district
court erred in allowing counsel for Tolson to refer to a "continuous use"
control on the ozone machine when no evidence was presented that such
a control existed. J.A. 1276.
6               TOLSON v. MARRIOTT INTERNATIONAL, INC.
that she had not seen the machine since the incident and did not know
where to find it. Accordingly, there is no reason to believe that coun-
sel’s reference to the model name had any effect on the outcome of
this trial.

                                  V.

   Marriott finally argues that the district court erred in denying its
motion for new trial on the basis that the amount of the $120,000 ver-
dict was excessive. We disagree. Especially considering the evidence
that some of the effects of the ozone would be long-term or perma-
nent, we cannot conclude that the amount of the verdict was exces-
sive.

                                 VI.

    In sum, the judgment in favor of Tolson is affirmed.

                                                           AFFIRMED