Conde v. Starlight I, Inc.

• Court: Court of Appeals for the First Circuit
• Decided: January 9, 1997
• Docket: 96-1089
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


No. 96-1089



                                    JOAQUIM CONDE,



                                 Plaintiff, Appellee,



                                          v.



                                  STARLIGHT I, INC.,



                                Defendant, Appellant.



                                                     
                                 ____________________


No. 96-1209



                                    JOAQUIM CONDE,



                                Plaintiff, Appellant,



                                          v.



                                  STARLIGHT I, INC.,



                                 Defendant, Appellee.



                                                     
                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Robert B. Collings, U.S. Magistrate Judge]
                                             _____________________



                                                     
                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,



                                   Circuit Judges.
                                   ______________



                                                     
                                 ____________________



Thomas  E.  Clinton, with  whom Kathleen  B.  Carr and  Clinton &
             ___________________             __________________      _________

        Muzyka, P.C. were on brief for Starlight I, Inc. 
        ____________

             David  F. Anderson, with whom  Latti Associates was  on brief for
             __________________             ________________

        Joaquim Conde. 



                                                     
                                 ____________________



                                   January 9, 1997

                                                     
                                 ____________________


2



CYR, Circuit Judge.   Plaintiff-appellee Joaquim  Conde
                    CYR, Circuit Judge.
                         _____________



          sustained a permanent injury to his left hand on August 13, 1988,



          while serving as first mate aboard the commercial  fishing vessel



          F/V  ALENTEJO  which was  navigating  in  rough  waters  east  of



          Nantucket on the  Georges Bank.1   Two days  after the  accident,



          Edward Monteiro, an adjuster for the ALENTEJO's insurer, obtained



          an  oral statement from Conde  in Portuguese.   Since Conde could



          speak little English and was unable to read it, Monteiro purport-



          ed  to translate the written  English statement back  to Conde in



          Portuguese.    Unbeknownst  to  Conde, the  statement  he  signed



          indicated that  the ALENTEJO  had been  travelling at  slow speed



          when  the  accident occurred  and it  makes  no mention  of other



          critical facts  about which  Conde had  informed Monteiro in  his



          interview.  For instance, the written statement  omits any refer-



          ence  to the captain's refusal  to slow the  vessel and lower the



          fishing net to  deck-level so  that Conde and  his fellow  worker



          would not  have to stand  on the slippery deck,  from which tiles



          were missing, while repairing the net.



                    In September 1990, Conde brought the present action for



          negligence and  unseaworthiness  against appellant  Starlight  I,



          Inc., owner  of the ALENTEJO.   See 46 U.S.C.    688 (Jones Act);
                                          ___



          Miles  v. Apex Marine Corp., 498 U.S. 19, 29 (1990) (unseaworthi-
          _____     _________________



          ness).   At trial, the  defense relied heavily  upon the apparent



          discrepancies  between  Conde's trial  testimony and  the written



                                   
               ____________________



               1Almost  six  years  later,  Conde  obtained  a  nonmaritime

          factory job at a reduced salary.



                                          3



statement he unwittingly gave to Monteiro, the adjuster.   Conde,



          on the other hand, contended that Starlight and Monteiro, antici-



          pating  litigation,  had collaborated  to  misrepresent  the oral



          statement Conde made to Monteiro.  



                    After the  jury awarded Conde $350,000  in damages, the



          district  court  granted  a new  trial  due  to  improper closing



          argument  by Conde's  counsel.   The second  trial resulted  in a



          $968,500  award  to Conde:    $118,500  for  past economic  loss;



          $50,000 for pain and suffering;  and $800,000 for future economic



          loss.  The  district court denied  Starlight's second motion  for



          new  trial, subject to Conde's agreement to remit all damages for



          future  economic loss  above $254,212.50.   On  appeal, Starlight



          challenges both the denial of its second motion for new trial and



          the amount of the remittitur.2  



          I.   Second Motion for New Trial
          I.   Second Motion for New Trial
               ___________________________



                    Starlight  contends  that four  improper  statements by



          Conde's  counsel in closing  argument warrant yet  a third trial.



          First,  counsel  observed,   without  evidentiary  support,  that



          Monteiro  and  defense  attorney  Thomas  Clinton,  Esquire, were



          "friends"  and  had "been  working  together  for twenty  years."



          Starlight argues that the  veiled reference to possible collusion



          between Monteiro  and Clinton was wholly  immaterial and deliber-



          ately inflammatory.   We find no abuse of  discretion.  See Ahern
                                                                  ___ _____

                                   
               ____________________



               2Since we deny Starlight's appeal, we need not reach Conde's

          contingent  cross-appeal from the  district court  order granting

          Starlight's first motion  for new  trial.  We  assume that  Conde

          would opt for a reduced total remittitur of $364,736, rather than

          reinstatement of the first jury award (i.e., $350,000).



                                          4



v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996).  
             ______



                    Monteiro  testified  on  redirect  examination  that he



          asked  Conde  to sign  the August  15,  1988, statement  in three



          places for  Conde's own  "protection," to prevent  its alteration



          after  it left Monteiro's  possession.   Later in  his testimony,



          however, Monteiro admitted that  he himself had given the  state-



          ment directly  to Thomas  Clinton, Esquire, Starlight's  counsel.



          When  asked whether  he had  known Clinton  well prior  to August



          1988,  Monteiro  acknowledged that  they  were  on a  "first-name



          basis," and had worked together previously.  



                    We normally presume that a jury follows instructions to



          disregard improper argumentation.  See Greer v. Miller,  483 U.S.
                                             ___ _____    ______



          756, 766 n.8  (1987); Sweeney  v. Westvaco Co.,  926 F.2d 29,  36
                                _______     ____________



          (1st Cir.),  cert. denied, 502 U.S.  899 (1991).  So  it is here.
                       _____ ______



          After  Clinton  objected  to the  remark  by  Conde's  counsel in



          closing argument, the court promptly cautioned  the jury that the



          evidence did  not establish  a "friendship" between  Monteiro and



          Clinton.  Moreover, Monteiro's business relationship with Clinton
                                         ________ ____________



          was in evidence.   Finally, the Monteiro-Clinton relationship was



          at  least somewhat  probative of  the plausibility  of Monteiro's



          testimony concerning  why he  considered it necessary  that Conde



          sign the August 15, 1988, statement in three places.  



                    Second,  Starlight relies  on a  closing remark  to the



          effect  that  the  captain's  consumption  of  several  alcoholic



          beverages as late as the evening meal the day of the accident had



          impaired his judgment, and likely explained his negligent refusal


5



to slow  the vessel  and lower the  net as  Conde had  requested.



          Although another fishing vessel  captain testified that no vessel



          captain should  consume alcohol while navigating  a vessel, Star-



          light  insists that it was  necessary for Conde  to adduce expert



          toxicological evidence as to how the particular  level of alcohol



          consumption  established by  the evidence typically  would impair



          human judgment. 



                    The authorities cited by Starlight simply stand for the



          thesis that expert toxicological testimony  may be used to estab-
                                                      ___



          lish  the likely  effects of  alcohol.   See Armand  v. Louisiana
                                                   ___ ______     _________



          Power & Light Co., 482 So.2d 802, 804 (Ct. App. La. 1986) ("[A]ll
          _________________



          experts agreed that .30% or .23% [blood alcohol] would impair the



          motor abilities  and judgment  of anyone.");  see also People  v.
                                                        ___ ____ ______



          Modesto,  427 P.2d 788, 790  (Cal.), cert. denied,  389 U.S. 1009
          _______                              _____ ______



          (1967), overruled  on other grounds, Maine v. Superior Court, 438
                  _________  __ _____ _______  _____    ______________



          P.2d 372,  377 n.8 (Cal. 1968).   These authorities in  no manner



          suggest that such  testimony is invariably required.   Cf., e.g.,
                                                                 ___  ____



          United  States v. Hillsberg, 812  F.2d 328, 333  (7th Cir.) ("The
          ______________    _________



          jury  would likely have little knowledge of the effects of mental



          diseases and defects.  Laymen do have occasion, however, to learn



          the effects of alcohol."), cert. denied, 481 U.S. 1041 (1987). 
                                     _____ ______



                    Third, Starlight contends  that repeated references  to



          Monteiro as an "adjuster," during direct and redirect examination



          and  in  closing remarks  by  Conde's  counsel, violated  Federal



          Evidence Rule 411 ("Evidence that a person was or was not insured



          against  liability is not  admissible upon the  issue whether the


6



person acted  negligently or otherwise wrongfully.").   We do not



          agree.  



                    For  one thing,  Starlight  did not  object to  Conde's



          repeated  references  to  Monteiro  as  an "adjuster"  throughout



          either the  first or second  trial.   Thus, the tardiness  of its



          objection calls into serious  question whether the litigants, let



          alone the jury, inferred that Monteiro  was an "insurance adjust-
                                                          _________



          er," cf., e.g., NLRB v. International Bhd. of Elec. Workers Local
               ___  ____  ____    _________________________________________



          340, 481  U.S. 573,  581 (1987)  (union's "grievance  adjuster or
          ___



          collective  bargainer"); Ferguson  v. Skrupa,  372 U.S.  726, 732
                                   ________     ______



          (1963)  ("debt  adjuster"),  let  alone  that  Starlight  carried



          liability insurance.  In all events, Rule 411 does permit mention



          of insurance coverage, not  to prove negligence, but collaterally



          to show  the  possible "bias  or prejudice  of a  witness."   See
                                                                        ___



          Pinkham  v. Burgess, 933 F.2d  1066, 1072 (1st  Cir. 1991) ("Rule
          _______     _______



          411  itself contemplates  that  evidence that  the defendant  was



          insured  may be  admissible on  issues other  than negligence.");



          Charter v. Chleborad, 551  F.2d 246, 248 (8th Cir.)  ("[T]he fact
          _______    _________



          that defendant's insurer employed  [a witness] was clearly admis-



          sible to show possible bias of that witness."), cert. denied, 434
                                                          _____ ______



          U.S.  856  (1977).     Starlight's  entire  defense  centered  on



          Monteiro's  credibility  in regard  to  the  authenticity of  his



          "translation" of Conde's August 15, 1988 statement.



                    Finally,  Starlight argues  that Conde's  attorney once



          again  argued  facts not  in evidence,  and  invited the  jury to



          engage in rank speculation, by noting that the captain might have


7



been steaming the ALENTEJO full speed ahead in an attempt to flee



          Canadian waters before Canadian patrol boats detected the vessel.



          On  the contrary, according to Starlight's own expert, based on a



          reverse extrapolation  of its known course  immediately after the



          accident,  the ALENTEJO probably had been on the Canadian side of



          the Hague Line just  prior to the accident.   This circumstantial



          evidence  combined powerfully  with the  captain's  own testimony



          that he previously  served aboard  a fishing vessel  seized by  a



          Canadian patrol boat and that he knew on August 13, 1988 that the



          same  Canadian  patrol  boat  was  within  one-half  mile  of the



          ALENTEJO. II.  The Remittitur
                    II.  The Remittitur
                         ______________



                    Starlight claims that the trial court miscalculated the



          remittitur  at $254,212.50.3   Starlight  first projects  a total



          future economic loss  as low  as $27,199, by  using Conde's  1987



          income, rather than the  higher 1988 income figure, for  arriving



          at a  base annual salary.   As  Conde was injured  in mid-August,



          1988, however, the  jury reasonably could have looked  to Conde's



          higher 1988  income projection as  a more accurate  reflection of



          his  future  earning power  than the  1987  income.   See Eastern
                                                                ___ _______



          Mountain Platform  Tennis, Inc. v. Sherwin-Williams  Co., 40 F.3d
          _______________________________    _____________________



          492, 502 (1st Cir.  1994) (in ruling on remittitur  motion, court



          examines evidence "in  the light most favorable to the prevailing



          party");  see also Jones &  Laughlin Steel Corp.  v. Pfeifer, 462
                    ___ ____ _____________________________     _______

                                   
               ____________________



               3Once a district  court has decided to  exercise its discre-

          tion  to grant a remittitur, appellant "must  show . . . that the

          reduced  figure remains so extravagant as  to shock the appellate

          conscience." Sanchez v.  Puerto Rico  Oil Co., 37  F.3d 712,  724
                       _______     ____________________

          (1st Cir. 1994).



                                          8



U.S. 523,  538 (1983)  ("It is both  easier and  more precise  to



          discount  the entire lost stream of earnings  back to the date of



          injury  --  the  moment  from  which  earning  capacity  was  im-



          paired.").4



                    Starlight next argues that  the 3% per annum adjustment



          for inflation  in "non-agricultural" workers' wages  from 1988 to



          1995 (i.e., 20.25% in aggregate) was  excessive because a commer-
                ____



          cial  fisherman would  not be  classified as  a "non-agricultural



          worker" and  recent federal restrictions upon  commercial fishing



          on  Georges Bank  have  depressed fishermen's  wages.   Starlight



          offers no evidentiary  support for its contention  that a commer-



          cial fisherman  would not qualify as  a "non-agricultural" worker



          (i.e., one who does  not cultivate land) for purposes of the 1995
           ____



          Economic  Report of  the President,  which the  parties otherwise



          stipulated  as  a  source of  the  applicable  "non-agricultural"



          inflation rate.  Nor did Starlight  adduce any evidence as to how



          its suggested offset  to the stipulated inflation rate  should be



          calculated.    We  therefore  conclude  that  it  has  failed  to



          demonstrate any "conscience-shocking"  adjustment in  calculating



          an inflation rate.  See supra note 3. 
                              ___ _____



                    Finally, Starlight argues that the trial court used the



          $118,500  jury  award for  past  economic loss  to  calculate the

                                   
               ____________________



               4Although Conde earned $35,930  in gross income during 1987,

          he  incurred extraordinary  unreimbursed work  expenses ($19,404)

          which effectively reduced his annual income to only $16,526.  See
                                                                        ___

          Jones & Laughlin, 462 U.S. at 534 (recommending that unreimbursed
          ________________

          work expenses be deducted before estimating future lost stream of

          income).   This figure  is substantially lower  than Conde's pro-

          jected 1988 gross income of $22,332.  See infra note 7. 
                                                ___ _____



                                          9



relevant "base year" salary (i.e., Conde's lost income for  1995)
                                       ____



          with which  to extrapolate his future  (i.e., post-1995) economic
                                                  ____



          loss, rather than predicating the base figure calculation direct-



          ly on the trial  evidence.5  Although neither we  nor the parties



          have been able to reconstruct the exact mathematical calculations



          utilized by  the district court,6  the trial evidence,  viewed in



          the light most  favorable to  Conde, would  yield an  approximate


____________________



               5The court explained its methodology as follows: 



                    In determining  the figure  to which to  remit the

               award  for loss  of  future earning  capacity, I  shall

               endeavor to arrive at the maximum figure which the jury

               could have awarded using as a guide the amount the jury

               awarded the plaintiff  for lost wages from  the date of

               the  accident  to  the   date  of  the  verdict,  i.e.,

               $118,500.   For this purpose, I shall  assume the jury,

               in arriving at the  $118,500 figure, deducted an amount

               for what  was earned  and what  could have  been earned

               after the plaintiff reached  an end medical result.   I

               shall also take into account the fact that the wages of

               non-agricultural workers from 1988 to 1995 rose approx-

               imately 3%  a year  or 20.25%  over the entire  period.

               After  making  these  adjustments,  what  results is  a

               figure of expected earnings for  1995 in the amount  of

               $29,020.  I  shall then  apply a reduction  of 20%  for

               taxes  and a 1% discount  rate to arrive  at the amount

               the plaintiff would have earned over the 26 year period

               of his work expectancy reduced to present value.  Using

               this methodology,  the result is  $254,212.[50]. (Foot-

               notes omitted.)



               6As future loss calculations are multiplex, effective appel-

          late review may be greatly inhibited by any lack of particularity

          in  the trial  court's methodology.   Given these  latent ambigu-

          ities, we could remand  to the district court for  clarification,

          see Jones & Laughlin,  462 U.S. at 546, 552  (refusing invitation
          ___ ________________

          to adopt one calculation  methodology as "the exclusive method"),

          but  for  reasons of  judicial economy  we  opt to  calculate the

          maximum  future  economic loss  based  directly  on the  evidence

          before the jury.  See infra note 7.
                            ___ _____



                                          10



discounted future economic loss of $196,236.7  



                    The  unknowable and unquantifiable  factors involved in



          calculating  a future stream of lost  income (e.g., future infla-
                                                        ____



          tion rates;  actual work  life), militate  against "a search  for



          'delusive exactness,'" since "[i]t  is perfectly obvious that the



          most detailed inquiry can at best produce an approximate result."



          Jones  & Laughlin, 462 U.S. at 546,  552.  Even viewing the trial
          _________________



          evidence most generously to Conde, however, the $254,212.50 award



          for future economic loss effectively disregards a significant and



          practicably  quantifiable  factor:   the  need  to reduce  future



          economic loss to present value, even if  only by the most conser-



          vative discount figure (1%), see supra note 7, particularly since
                                       ___ _____



          the parties stipulated below  that some "present value" reduction
                      __________



          would be appropriate, albeit  reserving the precise discount rate

                                   
               ____________________



               7Viewing the evidence most  favorably to Conde, the alterna-

          tive remittitur amounts would work out as follows: 



          Annual gross income from 1/88 to 8/88             $    14,106

          Extrapolated income from 8/88 to 12/88            +     8,816

          Unreimbursed work expenses                        -       590
                                                                 ______

          Total projected gross income for 1988                  22,332

          Inflation rate between 1988-95 (20.25)            +     4,522
                                                                 ______

          Adjusted projected annual gross income (1995)          26,854

          Actual gross income for factory job (1995)        -    15,080
                                                                 ______

          Total loss of annual gross income (1995)               11,774

          Taxes on lost income (@ 1988 rate of 16.97%)      -     1,998
                                                                 ______

          Net annual lost income (1995)                           9,776

          Remaining work life in 1995 (26 years)            x        26
                                                                 ______

          Total lost future income stream                       254,176

          Discounted to present value (@ 1%)                    196,236

          Discounted to present value (@ 2%)                    151,890

          Discounted to present value (@ 3%)                    117,860



               Although   the  $254,212.50  remittitur  calculated  by  the

          district court  purportedly factored in  a 1% discount  rate, see
                                                                        ___

          infra note 8, it actually approximates our pre-discount amount of
          _____                                      ___

          $254,176.



                                          11



(1% or  2%).  Cf. id.  at 548 (noting  that use of  discount rate
                        ___ ___



          between  1% and 3%  in Jones  Act case would  not be  an abuse of



          discretion).8



          III. Conclusion
          III. Conclusion
               __________



                    Given  these somewhat less  "elusive" circumstances, we



          conclude that the 30% discrepancy between the $254,212.50 and the



          $196,236 economic-loss figures  is sufficiently quantifiable  and



          substantial that it ought not stand.   Sanchez v. Puerto Rico Oil
                                                 _______    _______________



          Co., 37 F.3d 712, 724 (1st  Cir. 1994); cf. Jones & Laughlin, 462
          ___                                     ___ ________________



          U.S. at 552 (noting that jury  awards for pain and suffering  are



          "highly  impressionistic"); Ruiz v.  Gonzalez Caraballo, 929 F.2d
                                      ____     __________________



          31,  34 (1st Cir. 1991) ("After  all, '[t]ranslating legal damage



          [viz., physical effects  of post-traumatic stress  syndrome] into
           ____



          money damages -- especially in  cases which involve few  signifi-



          cant  items of measurable economic loss -- is a matter peculiarly



                                   
               ____________________



               8Using a  "market  interest" rate  (e.g.,  6%) to  reduce  a
                                                   ____

          future-earnings award to present  value recognizes that, at least

          in an inflation-free economy, the plaintiff's immediate accession

          to a lump-sum award  would enable him to  earn interest by  rein-

          vestment, an opportunity not available to him had the same amount

          been earned incrementally over  time.  See Jones &  Laughlin, 462
                                                 ___ _________________

          U.S.  at  536-37  n.20  ("present value"  reduction  premised  on

          plaintiff's  duty  to  mitigate  damages).   In  an  inflationary

          economy,  however, a discount rate (or  offset) below the "market

          interest"  rate (e.g.,  1  or 2%,  instead of  6%)  may be  used,
                           ____

          because  even though Conde did  not adduce specific evidence from

          which  to forecast  actual inflation  rates in  future years,  it

          nonetheless may be presumed  that anticipated future inflationary

          trends will tend  to curtail investment  returns at levels  below

          the market rate.  Id. at  538-39.  Although the Supreme Court has
                            ___

          declined  to mandate  a  single "present  value"  reduction or  a

          single  discount  methodology for  use in  all Jones  Act damages

          calculations, see id. at  550, absent extraordinary circumstances
                        ___ ___

          the  factfinder normally  should essay  some measure  of "present
                                                  ____

          value" reduction. 



                                          12



within  a jury's  ken.'") (quoting Wagenmann  v. Adams,  829 F.2d
                                             _________     _____



          196,  215 (1st  Cir. 1987)).   Accordingly,  we direct  a further



          remittitur.  See Kolb v.  Goldring, Inc., 694 F.2d 869, 875  (1st
                       ___ ____     ______________



          Cir. 1982) (appellate court  may order a new trial,  in the event



          claimant rejects  further remittitur, where trial  court error in



          calculating remittitur was clear and mere "mechanical" correction



          is required) (citing Stapleton v. Kawasaki Heavy Indus., 608 F.2d
                               _________    _____________________



          571, 574 n.7  (5th Cir. 1979)); Everett v. S.H.  Parks & Assocs.,
                                          _______    ______________________



          Inc., 697 F.2d 250, 253 (8th Cir. 1983). 
          ____



                    The district court ruling denying defendant-appellant's
                    The district court ruling denying defendant-appellant's
                    _______________________________________________________



          motion  for new  trial is  affirmed.   The remittitur  for future
          motion  for new  trial is  affirmed.   The remittitur  for future
          _________________________________________________________________



          economic loss is further  reduced to $196,236.  Upon  remand, the
          economic loss is further  reduced to $196,236.  Upon  remand, the
          _________________________________________________________________



          district court should fix an appropriate time within which plain-
          district court should fix an appropriate time within which plain-
          _________________________________________________________________



          tiff-appellee must either accept the revised remittitur or submit
          tiff-appellee must either accept the revised remittitur or submit
          _________________________________________________________________



          to a new trial on damages  for future economic loss.  The parties
          to a new trial on damages  for future economic loss.  The parties
          _________________________________________________________________



          shall bear their own costs.  
          shall bear their own costs.
          __________________________



                    SO ORDERED.
                    SO ORDERED.
                    __________


13