UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2479 BEREND J.D. HAVINGA, ET AL.,
Plaintiffs, Appellees,
v.
CROWLEY TOWING AND TRANSPORTATION COMPANY,
Defendant, Appellant.
No. 93-1073 BEREND J.D. HAVINGA, ET AL.,
Plaintiffs, Appellants,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Torruella, Cyr and Boudin,
Circuit Judges.
J. Ramon Rivera-Morales, with whom Manolo T. Rodriguez-Bird
and Jimenez, Graffam & Lausell were on brief for defendant Crowley
Towing. Eugene F. Hestres, with whom Bird, Bird & Hestres and Jose F.
Sarraga were on brief for plaintiffs Berend J.D. Havinga, et al.
June 2, 1994
CYR, Circuit Judge. This admiralty action stems from a CYR, Circuit Judge.
nighttime collision approximately four miles off the island of
Culebra, Puerto Rico, between the 65-foot sailboat GLORIA and a
262-foot barge under tow by the tugboat BORINQUEN, owned by
defendant-appellant Crowley Towing and Transportation Co., Inc.
The five plaintiffs, the captain and crew of the GLORIA, were
forced to abandon her moments before the collision and were
rescued several hours later.
Following a ten-day trial in the United States District
Court for the District of Puerto Rico, a jury found Crowley's
negligence the sole cause of the collision, and awarded damages
totalling $1,661,700.1 Judgment entered on July 24, 1992. On
August 7, plaintiffs filed a motion to amend the judgment to
provide for attorney fees, prejudgment interest, and extraordi-
nary costs. As the Rule 59(e) motion was not served until
August 11, it was summarily denied. See Fed. R. Civ. P. 59(e).
Meanwhile, Crowley had renewed its motion for judgment as a
matter of law or for new trial, which the district court denied
on November 18. See Fed. R. Civ. P. 50(b). Crowley now appeals
both the final judgment and the order denying its Rule 50(b)
motion for new trial or for judgment as a matter of law. The
plaintiffs cross-appeal from the denial of their Rule 59(e)
motion to amend the judgment.
1At the end of plaintiffs' case and again at the close of the evidence, Crowley unsuccessfully moved for judgment as a matter of law, see Fed. R. Civ. P. 50(a), on the issue of compar-
ative fault.
I
DISCUSSION
A. THE CROWLEY APPEAL
1. Liability
On appeal, Crowley contends, inter alia, that the
special jury verdict on liability is contrary to the evidence on
comparative fault.
a. Standard of Review
Absent a controlling error of law, which we review de
novo, see Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st Cir.
1992), an order denying a new trial will be reversed only if the
verdict was against the clear weight of the evidence, viewed in
the light most favorable to the prevailing party, or would work a
clear miscarriage of justice, Phav v. Trueblood, 915 F.2d 764,
766 (1st Cir. 1990). As Crowley asserts no error of law, we
review only for abuse of discretion. Id.
A federal court may not set aside a jury verdict and
direct the entry of a contrary verdict unless no reasonable jury
could have returned a verdict adverse to the moving party. See
Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993). In making
this determination, we examine the evidence in the light most
favorable to the nonmoving party, drawing all reasonable infer-
ences in its favor. Cochrane v. Quattrocchi, 949 F.2d 11, 12 n.1
(1st Cir. 1991), cert. denied, U.S. , 112 S. Ct. 2965
(1992); Keisling v. Sea-Jobs for Progress, Inc., F.3d ,
, No. 93-1406, 1994 WL 92055, at *3 (1st Cir. March 29, 1994).
b. Violation of COLREGS
Appellant Crowley argues that the failure of the
GLORIA's crew to take appropriate evasive action or to call the
captain in time to avoid the collision violated the International
Regulations for Preventing Collisions at Sea (COLREGS).2 As the
evidence supports the special verdict absolving plaintiffs of
fault, we reject Crowley's challenge.
Plaintiffs' expert, Captain Jose Rivera Tolinche, a
master mariner, testified that the GLORIA followed proper col-
lision-avoidance procedure.3 Captain Rivera stated that the
GLORIA was placed "in extremis" through no fault of her own. The
in extremis rule provides that "where one ship has, by wrong
manoeuvres, placed another ship in a position of extreme danger,
2Crowley's allegations that the GLORIA violated the COLREGS implicate the admiralty causation presumption under the "Pennsyl- vania Rule." See The Pennsylvania, 86 U.S. (19 Wall.) 125, 136
(1874). Under the Pennsylvania Rule, a vessel shown to be in actual violation of a collision-prevention rule bears the burden of proving that her fault could not have been a contributing
cause of the accident. See Capt'n Mark v. Sea Fever Corp., 692
F.2d 163, 167 (1st Cir. 1982).
3Since the sailboat GLORIA was the "privileged" vessel, see
COLREGS, Rule 18(a)(iv) (power-driven vessel shall keep out of way of sailing vessel), the "default passing rule" required her to hold course and speed, id. Rule 17(a)(i), until it became
apparent that the BORINQUEN, the "burdened vessel," was not taking appropriate action to avoid collision, at which time the GLORIA was allowed to manoeuvre to avoid collision, id. Rule
17(a)(ii). At the point at which the collision could no longer be avoided by unilateral action on the part of the BORINQUEN, the GLORIA was required to take action to avoid a collision. See id.
Rule 17(b).
that other ship will not be held to blame if she has done some-
thing wrong." Puerto Rico Ports Auth. v. M/V Manhattan Prince,
897 F.2d 1, 6 (1st Cir. 1990) (citations omitted).4 Thus, there
was sufficient evidence to support the finding that plaintiffs
did not fail to follow any collision-avoidance procedure required
under the COLREGS before the GLORIA had been placed in extreme
danger, at which point any subsequent mistake on her part was
excused. See id. ("the judgment of a competent sailor in extre-
mis cannot be impugned").5
4Though Crowley does not challenge the special verdict
finding that the BORINQUEN placed the GLORIA in extremis, it
claims that the in extremis doctrine does not apply because the
GLORIA placed herself in extreme danger. See Bucolo, Inc. v. S/V
JAGUAR, 428 F.2d 394, 396 (1st Cir. 1970) (in extremis applicable
only when party asserting it was free from fault until emergency arose). Crowley's argument is foreclosed on appeal, however, by Captain Rivera's testimony, which formed an adequate basis for the jury finding that "the tug BORINQUEN place[d] the GLORIA, through no fault of her own, in a position of extreme danger .
. . ." (Emphasis added).
5Crowley now contends, for the first time, that plaintiffs' conceded failure to establish radio contact with the BORINQUEN violated COLREGS, Rule 2 (in complying with COLREGS, due regard shall be had to all dangers of navigation and collision), since the watch aboard the GLORIA sighted the BORINQUEN approximately thirty-five minutes prior to the collision. The failure to raise this argument below effected its waiver. See Wells Real Estate
v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 810 (1st Cir.)
("We do not reach the issue of the sufficiency of the evidence, however, because plaintiff's counsel failed to move for [judgment as a matter of law under Rule 50(a)] in the district court . . . The motion must also be made with sufficient specificity to allow
the district judge to understand precisely why the evidence is
insufficient. Appellate review may be obtained only on the
specific ground stated in the motion") (emphasis added), cert.
denied, 488 U.S. 995 (1988), (citing Pstragowski v. Metropolitan
Life Ins. Co., 553 F.2d 1, 3 (1st Cir. 1977)).
c. Failure to Use Reasonable Care
Crowley claims that a finding of negligence was "man-
dated" because some plaintiffs lacked seafaring experience and
"did not have much time to couple together as a crew." The
plaintiffs testified to their training and experience.6 Captain
Rivera offered the professional opinion that plaintiffs were
qualified for their respective positions aboard the GLORIA, based
on their backgrounds and experience. Thus, in addition to
Crowley's failure to establish a causal relationship between the
collision and any alleged negligence on the part of the crew,
there was adequate support for a jury finding that the crew,
individually and collectively, possessed the requisite competence
and qualifications.
d. Unseaworthiness
Crowley further claims that the GLORIA was unseaworthy,
as the evidence established that her engine failed to function
when plaintiffs attempted to start it immediately prior to the
collision. Thus, Crowley argues, plaintiffs incurred contributo-
ry fault. See Gertrude Parker, Inc. v. Abrams, 178 F.2d 259 (1st
Cir. 1949) ("unseaworthiness" is ground for liability in marine
casualty). The record nonetheless substantiates the special
6Captain Havinga is a licensed deck officer in the Dutch Merchant Marine, and a Royal Dutch Navy officer. Hagemann is a German-certified able seafarer, whose ten years of sailing experience included many voyages as a crewman, and one or two trips as the skipper of a vessel similar to the GLORIA. Stach and Van der Ark had taken courses in basic seamanship. Paschedag had served as a crewmember on at least three prior sailing voyages in Europe and the Caribbean, including a two-week stint in the Aegean Sea.
verdict on comparative fault. Hagemann, an experienced mechanic,
testified to proper maintenance and repair of the engine.
Captain Rivera provided expert testimony that the GLORIA was
seaworthy. As Crowley has neither shown that the special verdict
on comparative fault was against the clear weight of the evi-
dence, nor that the district court erred in denying the Rule
50(b) motion for judgment as a matter of law, the liability
judgment against Crowley must stand.
2. Damages
Crowley challenges the amount of damages awarded for
economic loss, pain and suffering, and loss of enjoyment of life,
as well as the district court order denying its motion for new
trial on damages or for a remittitur. Crowley argues that the
damages awarded for economic loss exceed any rational evaluation
of the evidence, see Kolb v. Goldring, Inc., 694 F.2d 869, 871
(1st Cir. 1982), and that the awards for noneconomic injuries are
so grossly excessive as to "shock the conscience," see McDonald
v. Federal Labs., Inc., 724 F.2d 243, 246 (1st Cir. 1984) (citing
Gruenthal v. Long Island R.R. Co., 393 U.S. 156, 159 (1968)).
Though notoriously difficult to quantify, see Rivera v.
Rederi A/B Nordstjernan, 456 F.2d 970, 975 n.8 (1st Cir.), cert.
denied, 409 U.S. 876 (1972), noneconomic damages, such as pain
and suffering and loss of enjoyment of life, "are not immune from
appellate review," Anthony v. G.M.D. Airline Servs., 17 F.3d 490,
494 (1st Cir. 1994) (citations omitted). But appellant bears the
heavy burden of establishing that an award is "grossly excessive,
inordinate, shocking to the conscience of the court or so high
that it would be a denial of justice to permit it to stand."
McDonald, 724 F.2d at 246 (citations omitted). We will not
disturb an award of damages merely because it is "extremely
generous, or [because] had we been deciding, we would have found
the damages to be considerably less," Williams v. Martin Marietta
Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.) (citations omitted),
cert. denied, 484 U.S. 913 (1987), cited with approval in Antho-
ny, 17 F.3d at 494. Rather, we will reverse an award only if it
is so grossly disproportionate to any injury established by the
evidence as to be unconscionable as a matter of law. See Milone
v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988); Marchant
v. Dayton Tire & Rubber Co., 836 F.2d 695, 704 (1st Cir. 1988);
Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir. 1987); Bonn v.
Puerto Rico Int'l Airlines, Inc., 518 F.2d 89, 94 (1st Cir.
1975).
b. Pain and Suffering and Loss of Capacity for Enjoyment of Life
The lion's share (97%) of the challenged awards was for
"pain, suffering and loss of capacity for enjoyment of life."7
7The individual awards were as follows:
Pain/ Suffering, Lost Personal Medical Lost Enjoyment Effects Expenses Earnings
Havinga: $450,000 $27,000 $2,500 0 Havinga:
Stach: $400,000 $32,400 $1,500 0 Stach:
See Room v. Caribe Hilton Hotel, 659 F.2d 5, 8 n.3 (1st Cir.
1981) (pain and suffering); Gutierrez-Rodriguez v. Cartagena, 882
F.2d 553, 580 (1st Cir. 1989) (loss of enjoyment of life). The
special verdict forms did not differentiate between "pain and
suffering" and "loss of enjoyment of life." Further, there was
no objection to the jury charge, which lumped all alleged forms
of noneconomic injury: "If you find . . . for the plaintiffs you
should compensate them for any bodily injury, any resulting pain
or suffering, mental anguish and loss of capacity for the enjoy-
ment of life experiences in the past, and which you find from the
evidence that they are reasonably certain to suffer [i]n the
future from the injury in question." Further, in closing argu-
ment, plaintiffs' counsel appealed to the jury as follows,
without objection: "You have the opportunity to compensate these
five plaintiffs for the loss of the quality of their life.
Something was taken from them on April 12, 1989, and you cannot
return that . . . But you can try to compensate fairly and
justly for all their losses, for all their pain, for all their
suffering, for the loss of the quality of life, for the three
years that they have had to wait until they finally came here . .
. ."
Van der Ark: $200,000 $ 2,300 0 0 Van der Ark:
Hagemann: $300,000 $ 9,400 $7,000 0 Hagemann:
Paschedag: $200,000 $15,600 $7,000 $7,000 Paschedag:
No award was made for future medical expenses. See infra note
15.
Viewed in the light most favorable to the challenged
awards, see Toucet v. Maritime Overseas Corp., 991 F.2d 5, 11
(1st
Cir. 1993), the evidence relating to damages was as follows.
Plaintiffs Hagemann and Paschedag, who were standing watch aboard
the GLORIA, first saw the BORINQUEN's running lights at approxi-
mately 2:55 a.m. As the BORINQUEN changed course at 3:24 a.m.,
Hagemann anticipated that she would pass on the GLORIA's port
side in accordance with the COLREGS. As Hagemann soon realized,
however, the BORINQUEN instead was assuming a collision course
with the GLORIA, so he attempted to bring the GLORIA to star-
board. Unable to steer the GLORIA clear of the BORINQUEN without
motor power, Hagemann tried unsuccessfully to start her engine.
Paschedag frantically attempted to signal the BORINQUEN with an
air horn and a marine light, to no avail. Hagemann then yelled
for Captain Havinga and the two other crew members, who were
asleep below. Although Havinga quickly came on deck, by the time
he could take the helm and attempt evasive maneuvers the BORIN-
QUEN was within 60 feet and coming on "very fast."8
8The parties stipulated that the BORINQUEN changed course at 3:24 a.m. There was testimony that this course change placed the GLORIA in extremis. The helmsman of the BORINQUEN testified that
the course change took "about five minutes," "more or less." At some point between 3:24 and 3:30, Hagemann recognized that the tug was assuming a collision course, placing the GLORIA in
extremis. Thus, as approximately one minute passed between the
narrow miss by the BORINQUEN and the first impact with the tow barge (at 3:30), the jury reasonably could have found that the GLORIA had no more than two to three minutes within which to attempt to avoid the collision.
The BORINQUEN herself narrowly missed the GLORIA. As
the vessels passed, however, a 200-meter steel tow cable connect-
ing the BORINQUEN with its 262-foot tow barge scraped along the
deck of the GLORIA, crushing objects in its path. As the huge
barge bore down on the 65-foot GLORIA, plaintiffs could only
await the impending collision in helpless panic.9 Moments
before the initial impact at 3:30 a.m., Havinga, fearing that the
GLORIA would be dragged under the barge, ordered the crew over-
board. Before the men could respond, however, they were knocked
off their feet by the force of the first of three collisions
between the barge and the GLORIA. The GLORIA swayed 90 degrees
to the horizontal several times before righting herself, and
rapidly drifted away. The plaintiffs could see the helmsman
aboard the BORINQUEN as the barge passed them in the water, but
were unable to attract attention aboard the BORINQUEN.
Eventually the five plaintiffs made it to a small
rubber dinghy which Stach had managed to throw from the GLORIA,
her life boat having been lost in the collision. Due to their
confusion and panic, as well as the darkness and rough seas, the
crew had great difficulty reaching the dinghy, and Stach and
Paschedag nearly drowned. The dinghy was large enough for only
two or three persons, and the five plaintiffs were piled two-
deep. Havinga, Van der Ark, and Stach had lost all their cloth-
ing, and shared the little clothing worn by Hagemann and Pas-
9Approximately sixty seconds elapsed between the passing of the BORINQUEN itself and the GLORIA's initial impact with the trailing barge. See supra note 8.
chedag. The men shivered uncontrollably, their situation made
more miserable by Havinga's incontinence and the sea swells
washing over the sides of the dinghy.
At trial, each plaintiff testified to his own experi-
ence and emotional state, including shock, hysteria, panic,
desperation, and fear of death. All were concerned about sharks.
Due to his merchant marine experience, Havinga realized (and
advised Hagemann) that sharks often follow barges to feed on
scraps lost overboard. Their fears were reinforced when Van der
Ark and others observed fins around and beneath the dinghy. The
men knew that even a glancing contact with a shark's rough
exterior could puncture and sink the rubber dinghy. At the first
appearance of sharks, therefore, further efforts at paddling the
dinghy were abandoned. While awaiting rescue, on several occa-
sions plaintiffs experienced elation upon seeing an approaching
vessel (one within 300 yards), only to have their hopes dashed as
each vessel passed in the darkness. Approximately four and one-
half hours after the collision, plaintiffs were rescued by the
tug FAJARDO.
The individual plaintiffs testified to their pain and
suffering and loss of enjoyment of life following the accident.
Dr. Jose Fumero, plaintiffs' examining psychiatrist, testified,
without objection, that the plaintiffs all suffered from acute
post-traumatic stress disorder (PTSD),10 a direct result of the
10Dr. Fumero testified that PTSD is an acknowledged anxiety disorder, see American Psychiatric Assoc., Diagnostic and Statis-
tical Manual of Mental Disorders, Third Edition, Revised, 247-49
accident. Dr. Fumero described the emotional injuries sustained
by each plaintiff, and testified to a "Global Assessment of
Function" (GAF) for each plaintiff, ranging from zero (virtual
vegetative state) to ninety (high function).11
The district court instructed the jury to consider
plaintiffs' pain and suffering, as well as any loss of "enjoyment
of life experiences in the past, and which you find from the
future." (Emphasis added). See, e.g., Gutierrez-Rodriguez, 882
F.2d at 580 (upholding damages awarded for loss of enjoyment of
life; 1983 action); Downie v. U.S. Lines Co., 359 F.2d 344, 348
(3d Cir.) (same; admiralty), cert. denied, 385 U.S. 897 (1966).
In argument, plaintiffs' counsel focused particularly on Dr.
Fumero's uncontroverted testimony relating to plaintiffs' loss of
emotional function since the accident, and on the adverse impact
this would continue to have on the quality of their lives.12
(1987), caused by trauma beyond the range of normal human exper- ience which results in such symptoms as reexperiencing the traumatic event; a tendency to avoid stimuli associated with the trauma; numbing of general responsiveness; and increased arousal (i.e., difficulty falling or remaining asleep; irritability or
outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; physiologic reactivity upon expo- sure to events reminiscent of the event (e.g., a woman previously
raped in an elevator begins to perspire profusely upon entering an elevator)). See id. at 250.
11According to Dr. Fumero, the GAF assesses and compares an individual's current level of emotional function with his pre- accident level of function.
12With respect to the severity of their injuries, Dr. Fumero testified to the diminishment in each plaintiff's pre-accident emotional function as a result of the accident: Havinga (from 90 to 65); Stach (75 to 50); Van der Ark (85 to 60); Hagemann (90 to
Thus, the evidence, argument, and the unchallenged charge allowed
the jury considerable latitude to award substantial sums as non-
economic damages to compensate plaintiffs not only for their loss
of enjoyment of life during the three years immediately after the
accident, but into the indefinite future. See Gutierrez-Rodri-
guez, 882 F.2d at 580; Kokesh v. American Steamship Co., 747 F.2d
1092, 1095 (6th Cir. 1984) (substantial award "may also reflect
the evidence that [plaintiff's] . . . ability to enjoy life has
been impaired") (admiralty case).
Contrary to Crowley's attempt on appeal to characterize
these awards almost exclusively as compensation for pain and
suffering experienced at and immediately after the accident, the
noneconomic damages are largely supportable simply on the un-
controverted trial evidence that each plaintiff had already
experienced substantial deficits in emotional function and loss
of enjoyment of life which could be expected to continue into the
indefinite future. Viewed in the light most favorable to the
verdicts, Fumero's testimony reasonably enabled the jury to find
that none of the plaintiffs had regained normal emotional func-
tion by the time of trial and that though Havinga, Stach, and Van
der Ark may continue to improve, it is uncertain whether they
60); Paschedag (85 to 55). Dr. Fumero described a GAF of 65 as "very, very low." Crowley argues that the amounts awarded to the individual plaintiffs were disproportionate to their respective GAFs. Dr. Fumero explained, however, that it is misleading to compare GAFs between individuals. The GAF compares an indi- vidual's current emotional function to his pre-accident capacity. Moreover, the jury was entitled to weigh all the evidence in
assessing the individual awards, not merely the GAFs.
will ever recover their pre-accident levels of emotional func-
tion. The uncontroverted evidence also revealed that Hagemann
and Paschedag "had stabilized" well below their pre-accident
levels of emotional function and could expect no further "bene-
fits of improvement."13 Crowley chose to present no expert
testimony on loss of emotional function, loss of enjoyment of
life, or pain and suffering, nor did it challenge the jury
instruction on these noneconomic damages.
After a careful review of the record, see Coy v.
Simpson Marine Safety Equip., Inc., 787 F.2d 19, 27 (1st Cir.
1986), we are unable to say that these noneconomic damages,
though generous to be sure, were so disproportionate to the
uncontroverted evidence of "pain and suffering," severe emotional
injuries, and loss of enjoyment of life, as to shock the con-
science. See, e.g., Joia v. Jo-Ja Serv. Corp., 817 F.2d 908,
918-19 (1st Cir. 1987) (while $250,000 award, exclusively for
"pain and suffering," was "very high," it was supported by
sufficient evidence so as not to shock the conscience), cert.
denied, 484 U.S. 1008 (1988). The evidence was sufficient to
establish that plaintiffs' emotional and psychological injuries
13Crowley suggests that the jury acted irrationally by returning the two smallest noneconomic damages awards to Hagemann and Paschedag, the two plaintiffs with the greatest GAF differen- tial at the time of trial. However, GAF differential was not the only evidence going to noneconomic damages. The jury heard Dr. Fumero's detailed clinical descriptions of the individual plain- tiffs' mental health, as well as each plaintiff's testimony about his own emotional response. And, of course, the jury was enti- tled to weigh all the evidence going to each component of non- economic damages.
were severe, "significantly affected" the quality of their lives,
and caused each to avoid activities in which he had engaged.14
Cf. Anthony, 17 F.3d at 494 ($566,765 award, exclusively for
"pain and suffering," held grossly disproportionate, absent,
inter alia, any "evidence [that plaintiff's] injury has rendered
him unable to perform any particular functions or engage in any
particular activities [or] otherwise interfered with his profes-
sional, recreational, or personal life") (emphasis added);
Marchant, 836 F.2d at 703-04 ($550,000 pain and suffering award
unconscionable when, inter alia, injury did not cause plaintiff
significant financial losses). Further, the jury could have
found that plaintiffs' post-traumatic stress disorders were
permanent and chronic.15 Cf. Anthony, 17 F.3d at 494 ("pain
14Dr. Fumero also testified that the plaintiffs' PTSD was "directly related" to the accident involving the GLORIA. Cf.
Bonn, 518 F.2d at 93-94. In Bonn, the plaintiffs were three
children whose parents had been killed in a plane crash. We found that a $1,045,000 "pain and suffering" award to the chil- dren was "unconscionable," in significant part because their emotional injuries were not directly related to their parents' death. Id. at 94 ("[t]estimony and pre-accident reports conclu-
sively establish that the children exhibited many of their
present emotional problems before their parents' death." (Empha- sis added)). There was evidence that all these plaintiffs have greater fear of the sea; Havinga and Stach now avoid stressful profes- sional and personal situations; Hagemann suffered financial, personal, and sexual problems; Van Der Ark has experienced a lessening of academic interest; and Paschedag, who sustained the greatest loss of emotional function, was unable to work for approximately five months.
15Crowley argues that since no plaintiff was awarded damages for future medical expenses, and each received only a small award
for past medical expenses, there was no evidence of "substantial long term injuries" sufficient to justify the awards. On the contrary, the jury reasonably could have awarded noneconomic
damages for past "pain and suffering" and emotional injury, and
and suffering" award vacated because, inter alia, there was "no
testimony or other evidence that [plaintiff's] current condition
is permanent").
Although Crowley now challenges its weight, Dr. Fu-
mero's expert testimony as to each plaintiff's PTSD and loss of
emotional function was admitted without objection and went
uncontroverted at trial. Thus, the jury was entitled to credit
this testimony fully. Gutierrez-Rodriguez, 882 F.2d at 579
("Against [the plaintiff's expert's] evidence, the defendants
offered no contradictory testimony. The . . . facts were uncon-
troverted and the jury was entitled to accept all of them"). See
also Fed. R. Civ. P. 35(a) (permitting, on motion and for good
cause, psychological examination of party when mental state in
controversy). Crowley merely argues that the awards for non-
economic injuries are so disproportionate to the damages compen-
sating plaintiffs for their medical expenses as to render the
awards grossly excessive, citing Betancourt v. J.C. Penney Co.,
554 F.2d 1206, 1209 (1st Cir. 1977) (vacating jury award where
noneconomic damages were 120 times greater than economic damages
for permanent "loss of capacity for enjoyment of life," without concluding that future medical treatment was indicated. See,
e.g., Dunn v. Penrod Drilling Co., 660 F. Supp. 757, 770-71 (S.D.
Tex. 1987) (awarding $110,000 for past and future pain and suffering, but declining to award damages for medical expenses) (admiralty case). Crowley also maintains that the awards were excessive because each plaintiff showed improvement by the time of trial. Of course, improvement would not preclude an award for "pain and suffering," loss of emotional function, and loss of enjoyment of life already experienced during the three years following the
accident. Nor would it preclude an award for loss of emotional function and enjoyment of life in the future.
because award "simply makes no sense") (applying Puerto Rico
law). While the relationship among its various components may be
considered in evaluating the total award, see id., the primary
teaching in our cases is that damages not be grossly dispropor-
tionate to the injury. See Laaperi v. Sears, Roebuck & Co., 787
F.2d 726, 735 (1st Cir. 1986). In this case, the uncontroverted
evidence of severe PTSD, accompanied by substantial pain and
suffering and loss of enjoyment of life brought on by diminished
emotional function, which may well prove permanent, takes this
case out of the Betancourt mode.16
Finally, Crowley claims these awards are grossly
excessive compared to awards in other cases. As we have ex-
plained, "the paramount focus in reviewing a damage award must be
the evidence presented at trial . . . . Absent a most unusual
case . . . we cannot imagine overturning a jury award that has
substantial basis in the evidence." Gutierrez-Rodriguez, 882
F.2d at 579 (citations omitted) (emphasis added). An examination
of other awards upheld in our case law suggests no sufficient
basis for upsetting the present awards. See id. at 579-80
(explaining that a jury award will not be overturned "merely
because the amount of the award is somewhat out of line with
other cases of similar nature.") Indeed, our research has
16For example, there was evidence in Betancourt that if the
plaintiff had been willing to undergo treatment for a three-month period, "she would feel 'just about completely well in her initial condition . . . [and] will heal and live a normal life almost free of pain.'" 554 F.2d at 1208. Not only is there no such evidence here, but the modest injuries sustained in Bet-
ancourt were exclusively physical.
disclosed no sufficiently similar case to suggest, let alone
persuade, that these awards for noneconomic damages are so
excessive as to require retrial or remittitur.17
c. Economic Damages
We must now determine whether the damages awarded for
economic loss have "adequate evidentiary support." Segal v.
Gilbert Color Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984) (cita-
tion omitted). We will uphold an award for economic loss provid-
ed it does not "violate the conscience of the court or strike
such a dissonant chord that justice would be denied were the
judgment permitted to stand," Milone, 847 F.2d at 37. Under
these standards, we examine the evidence in detail, see Gru-
nenthal, 393 U.S. at 159 (appellate court must make "detailed
appraisal of the evidence bearing on damages"), and in the light
most favorable to plaintiffs, Toucet, 991 F.2d at 11.
Crowley challenges the awards for past medical expens-
es, loss of personal effects, and lost earnings, see supra note
7, as unsupported by the evidence. We agree in part. The awards
17For example, Crowley cites cases in which lesser amounts were awarded for "pain and suffering" experienced by seamen who perished at sea. See, e.g., Brown v. United States, 615 F. Supp.
391 (D.Mass. 1985), rev'd. on other grounds, 790 F.2d 199 (1st
Cir. 1986), cert. denied, 479 U.S. 1058 (1987); Bergen v. F/V St.
Patrick, 816 F.2d 1345 (9th Cir.), cert. denied, 493 U.S. 871
(1987). This anomaly is due, in large part, to the presumed brevity of the pain and suffering experienced before the de- cedent's demise, which is separate and apart from an award for wrongful death. Moreover, as explained above, see supra at
pp.14-15, the noneconomic damages in this case were not limited to "pain and suffering" at and immediately after the accident, but included sustained emotional injuries, including PTSD and plaintiffs' sustained and/or permanent loss of emotional func- tion.
for past medical expenses and lost earnings are well documented
in the record. On the other hand, the individual awards for loss
of personal effects (except for the Van der Ark award) exceed the
amounts to which plaintiffs testified at trial: Havinga ($5,500
loss, awarded $27,000); Stach ($17,600 loss, awarded $32,400);
Hagemann ($5,600 loss, awarded $9,400); Paschedag ($7,000 loss,
awarded $15,600). As there was no other relevant evidence, these
awards must be pared.18 See Kolb, 694 F.2d at 871 (award for
purely economic damages is excessive as a matter of law if
unsupportable on any rational view of the evidence); Segal, 746
F.2d at 81 (same).
Therefore, absent a remittitur, we must remand for a
new trial on damages relating to loss of personal effects. See
Anthony, 17 F.3d at 495. Since the trial record clearly disclos-
es the maximum amount of damages recoverable for loss of personal
effects, however, we can calculate the remittitur ourselves.
Id.; Kolb, 694 F.2d at 875 (as defects in award "are readily
18Plaintiffs argue that a chart attached to their brief supports the awards. The chart merely lists the total economic damages claimed by each plaintiff, with no hint as to how the total figure was derived. Plaintiffs concede that the chart was not admitted in evidence. Thus, it merely served as a visual aid. See Jack B. Weinstein & Margaret A. Berger, 5 Weinstein's
Evidence 1006[7] (Sept. 1983) (chart itself not evidence unless
admitted under Fed. R. Evid. 1006). Consequently, the chart could provide no evidentiary support for the awards. Finally, plaintiffs neither point to, nor have we found, any record support for these awards for loss of personal effects, other than plaintiffs' testimony.
identified and measured," remittitur more appropriate than new
trial).19 We therefore order a new trial on damages claimed by
plaintiffs Havinga, Stach, Hagemann, and Paschedag for the loss
of their personal effects and belongings, unless these plain-
tiffs, respectively, remit $21,500, $14,800, $3,800, and $8,600,
in which event their judgments shall stand affirmed as modified.
See id.; 11 Charles A. Wright & Arthur R. Miller, Federal Prac-
tice and Procedure 2820, at 133-134 (1973 & Supp. 1993).
B. THE CROSS-APPEAL
The plaintiffs cross-appeal from the denial of their
motion for attorney fees and extraordinary costs,20 and their
Rule 59(e) motion for prejudgment interest. Their claims are un-
availing.21
19Under the "maximum recovery" rule, we may condition a new trial on the acceptance of a remittitur based on the highest award supported by the evidence. See Liberty Mut. Ins. Co. v.
Continental Cas. Co., 771 F.2d 579 588-89 (1st Cir. 1985); see
also Marchant, 836 F.2d at 704 (noting adoption of "maximum
recovery" rule).
20Plaintiffs requested attorney fees, extraordinary costs, and prejudgment interest in their Rule 59(e) motion to alter or amend judgment. Motions for attorney fees are governed by Fed. R. Civ. P. 54(d)(2), see also White v. New Hampshire Dept. of
Emp. Secur., 455 U.S. 445 (1982) (pre-Rule 54(d)(2) case holding
motion for attorney fees under 28 U.S.C. 1988 not barred by Rule 59(e) time limits), as are costs, see Buchanan v. Stanships,
Inc., 485 U.S. 265, 267 (1988) (per curiam) (application for
costs properly viewed as Rule 54(d) motion). These requests for fees and costs were timely under Rule 54(d)(2)(B). See id. On
the other hand, the claim for prejudgment interest is governed by Rule 59(e). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 175
(1989).
21Crowley argues that the cross-appeal is untimely. See
Fed. R. App. P. 4(a)(3) (cross-appeal may be taken within 14 days after a timely notice of appeal, or as otherwise provided by Rule
Though plaintiffs claim on appeal that attorney fees
were warranted on the ground that Crowley engaged in litigation
tactics born of "premeditated bad faith," they adduced no sup-
porting evidence below. The record would not support a finding
of bad faith or fraudulent litigation tactics such as the Supreme
Court has found sufficient to warrant an award of attorney fees
as a sanction under the "inherent power" of the court. See
Chambers v. NASCO, Inc., 501 U.S. 32, , 111 S. Ct. 2123, 2140
(1991). We therefore find no abuse of discretion. See Papas v.
Hanlon, 849 F.2d 702, 703 (1st Cir. 1988); FDIC V. Sumner Finan-
cial Corp., 602 F.2d 670, 683 (5th Cir. 1979) (holding that where
bad faith is not "directly inferable from record," district court
did not abuse discretion in denying motion for extraordinary
costs and attorney fees).
Lastly, plaintiffs filed their Rule 59(e) motion for
prejudgment interest with the district court on August 7, 1992,
but did not mail it to Crowley until August 11, see Fed. R. Civ.
P. 5(b) ("[s]ervice by mail is complete upon mailing"), more than
ten days (excluding intermediate weekends and the date on which
the order was entered, Fed. R. Civ. P. 6(a)) after the judgment
had been entered on July 24. Since the Rule 59(e) motion was
4(a)). Crowley filed its notice of appeal on December 11, 1992. On December 31, plaintiffs asked the district court to extend the time for filing their cross-appeal, alleging that they had not been properly served with the Crowley notice of appeal, and that no party would be prejudiced by the late filing. By margin order, the court granted the extension. Fed. R. App. P. 4(a)(5) provides that the district court may extend the appeal period on motion filed within thirty days of the expiration of the original appeal period.
untimely, we lack jurisdiction to entertain the cross-appeal from
the district court order denying the Rule 59(e) motion for an
allowance of prejudgment interest. The ten-day time limitation
under Rule 59(e) is jurisdictional. Feinstein v. Moses, 951 F.2d
16, 19 (1st Cir. 1991).22
The judgment in favor of plaintiff-appellee Van der Ark
is affirmed. The judgment in favor of any plaintiff-appellee who
fails to remit damages as follows: Havinga $21,500; Stach
$14,800; Hagemann $3,800; and Paschedag $8,600, within thirty
days of entry of mandate, shall be vacated. The case is remanded
for a new trial on economic damages for loss of personal effects
and belongings or for the entry of judgments reduced in accor-
dance herewith. Costs are allowed to plaintiffs-appellees in No.
92-2479 and to defendant-appellee in No. 93-1073.
22Under settled admiralty law, moreover, plaintiffs' failure to request a jury instruction on prejudgment interest barred recovery. See Scola v. Boat Frances R., Inc., 618 F.2d 147, 150
(1st Cir. 1980) (prejudgment interest is "discretionary in maritime personal injury cases, and the discretion must be exercised by the jury"). Plaintiffs also request appellate costs and damages under Fed. R. App. P. 38, characterizing Crowley's appeal as "frivo- lous." We disagree. Crowley not only prevailed in part but even its unsuccessful appellate claims are not fairly characterized as "frivolous."