UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1244
ANGEL TOUCET,
Plaintiff, Appellee,
v.
MARITIME OVERSEAS CORP.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Skinner,* Senior District Judge.
Andrew H. Quinn with whom Dante Mattioni, Francis X. Kelly,
Mattioni, Mattioni & Mattioni, Ltd., and Antonio Jimenez Miranda were
on brief for appellant. Harry A. Ezratty for appellee.
April 20, 1993
* Of the District of Massachusetts, sitting by designation.
SKINNER, Senior District Judge
Plaintiff Angel Toucet, a seaman, brought this action
against his employer, Maritime Overseas Corporation, seeking
damages for a back injury suffered aboard the defendant's
vessel, the Overseas Alaska. Toucet alleged negligence
under the Jones Act, 46 U.S.C. 688, and unseaworthiness
under general maritime law. After trial, a jury returned a
special verdict in Toucet's favor on the Jones Act count,
but did not find the Overseas Alaska to be unseaworthy. The
trial court denied Maritime's motions for judgment n.o.v.
and a new trial or, in the alternative, for remittitur of
the $75,000 verdict.
On appeal, Maritime contends that the trial court erred
in denying Maritime's motions for judgment n.o.v. and a new
trial because the jury's finding of negligence is
irreconcilably inconsistent with its rejection of the claim
of unseaworthiness. Maritime also asserts that the trial
court erred by allowing Toucet's counsel to pose a
hypothetical question that was improperly based on facts not
in evidence and by denying Maritime's motion for remittitur.
BACKGROUND
We briefly review the evidence developed at trial in
the light most favorable to Toucet. See Transnational Corp.
v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1068 (1st Cir.
1990).
On August 27, 1987, while the Overseas Alaska was in
the port of New Orleans, the crew was advised that the
vessel's cargo tanks would be bottom washed. Seeking to
avoid the cleaning operation, Toucet and two other crew
members requested leave to quit the ship. Toucet told the
boatswain that after working approximately twelve hours
consecutively he was too exhausted to participate in the
tank cleaning. Toucet's request was denied because the
ship's union agreement required crew members to provide 24
hours advance notice before quitting.
At approximately 5:30 p.m., the cleaning process, which
is commonly called "butterworthing," began. Several
witnesses testified that butterworthing is hard work,
requiring several men to complete the task. On this
particular day, the Overseas Alaska's crew was divided into
two six-hour shifts, each consisting of four men. Toucet,
who was now working overtime, was assigned to the first
shift. While the Overseas Alaska's union agreement required
a minimum of three men to perform the task, testimony at
trial revealed that butterworthing was ordinarily performed
on other ships by more than four men.
The term butterworthing refers to the equipment (a
butterworth machine) used to clean the tanks. During trial,
the butterworth was described as a brass cylindrical device,
weighing approximately 30 pounds. The butterworth is
attached to the end of a flexible, hard rubber hose that has
a 10-inch diameter and weighs approximately 100 pounds. To
accomplish bottom washing, the crew lowers the hose and
butterworth approximately 30-40 feet into the openings of
each tank. Once in the tank, hot water is pumped through
the hose into the butterworth. The water pressure causes
the head of the butterworth to spin and, while the head
spins, water is forced out of two release valves located on
the side of the butterworth. Upon release from the
butterworth, the hot water is directed against the wall and
floor panels of the cargo tanks at approximately 90 p.s.i.
pressure. Once a tank is cleaned, the crew pulls the
butterworth and hose out of the opening and moves or
"shifts" the equipment to the next opening. Typically, the
removal process is accomplished by the seamen pulling on the
hose in unison.
Toucet testified that he was injured while removing the
butterworth and hose from one of the Overseas Alaska's
tanks. More specifically, Toucet testified that the deck
engine utility (DEU), who was one of the crew members
assigned to assist in the butterworthing, was inexperienced
and inept at the task. As a result of the DEU's
inexperience, the hose was allowed to slacken on several
occasions. Toucet and at least one other team member
complained to the boatswain that the DEU's inexperience was
making the butterworthing more difficult and Toucet again
reported that he was exhausted. The boatswain replied that
he could not do anything because the rest of the crew was
sleeping. A short time after complaining, Toucet testified
that he was jolted by grasping at the slipping hose and that
he felt his back crack when he attempted to stand erect.
The case was submitted to the jury on both the Jones
Act and general maritime law claims. With regard to
unseaworthiness, Toucet alleged that the Overseas Alaska was
unseaworthy in relation to the butterworthing operation
because: (1) the number of seamen provided to complete the
task was inadequate, and (2) one of the seamen who was
assigned to the task was inexperienced and inept. Toucet's
negligence claim under the Jones Act was similarly based on
Maritime's failure to provide an adequate and experienced
crew for the butterworthing operation. In addition, Toucet
alleged that Maritime was negligent by requiring him to
participate in the butterworthing operation despite his
earlier complaint of exhaustion.
DISCUSSION
A. Alleged Verdict Inconsistency
When a special verdict form results in apparently
conflicting findings, a court has a duty under the Seventh
Amendment to harmonize the answers if at all possible under
a fair reading. Atlantic & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962); Santiago-
Negron v. Castro-Davila, 865 F.2d 431, 443 (1st Cir. 1989)
(citing Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108,
119 (1963)).
Maritime contends that the jury's answers on the
negligence and seaworthiness questions cannot be harmonized
because both claims are grounded on the same underlying
factual allegations -- that the crew was both inadequate and
too inexperienced to accomplish the butterworthing task. By
finding the Overseas Alaska to be seaworthy, Maritime argues
that the jury necessarily rejected Toucet's inadequate and
inexperienced assistance allegations. Maritime concludes,
therefore, that there was no basis for finding it negligent
and that the verdict must be set aside as irreconcilably
inconsistent.
We need not address the merits of this argument because
Maritime failed to make a timely objection to the alleged
inconsistency. In this circuit, a "party waives
inconsistency if it fails to object after the verdict is
read and before the jury is dismissed." Bonilla v. Yamaha
Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992) (citing
Austin v. Lincoln Equip. Assocs., 888 F.2d 934, 939 (1st
Cir. 1989)); Peckham v. Continental Casualty Ins. Co., 895
F.2d 830, 836 (1st Cir. 1990) (citing McIsaac v. Didriksen
Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987)). This is
because the "only efficient time to cure the problem is
after the jury announces its results and before it is
excused, and it is the responsibility of counsel to make
timely objection." Austin v. Lincoln Equip. Assocs., 888
F.2d at 939.
We have carefully reviewed the entire record in this
case, including the clerk's minutes of the proceedings and
the docket sheet.1 It is apparent from the record that
1 Under Rule 10, the record on appeal properly includes "[t]he original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a
Maritime failed to object to the verdict's asserted
inconsistency prior to the jury's discharge. (Clerk's
Minutes, Oct. 10, 1991; Docket Entry 71.) In fact,
Maritime did not raise the inconsistency issue until filing
its post trial motions on October 23, 1991 -- 13 days after
the jury was discharged and long after the optimum time for
curing any alleged defect. (Docket Entry 74.) While
Maritime omitted the portion of the transcript relating to
the reading of the verdict from its appendix,2 our review
on appeal is not limited to the materials submitted by the
parties. FED. R. APP. P. 30(a) ("The fact that parts of the
record are not included in the appendix, shall not prevent
the parties or the court from relying on such parts.").
Maritime's failure to object cannot be excused by its
inability to anticipate the jury reaching potentially
inconsistent findings. See McIsaac v. Didriksen Fishing
certified copy of the docket entries prepared by the clerk of the district court . . . ." FED. R. APP. P. 10(a). Rule 10's scope reaches "'all papers presented to the district court and filed in the record and all papers filed by the district court itself.'" In re Arthur Andersen & Co., 621
F.2d 37, 39 (1st Cir. 1980) (quoting 9 JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE 210.04[1]).
2 Maritime's failure to include the October 10, 1991 transcript in its appendix is particularly surprising since the verdict, which was returned and read in open court on that day, is the primary focus of the present appeal.
Corp., 809 F.2d at 134 (rejecting appellant's argument that
it could not have anticipated verdict inconsistency where
jury instructions and special verdict form served as
harbingers for inconsistency). The circumstances of this
case indicate that Maritime had ample opportunity to
"portend possible verdict inconsistency." Austin v. Lincoln
Equip. Assocs., 888 F.2d at 939. For instance, Maritime
should have been alerted by the use of the special verdict
form alone. See id. As we noted previously, "'[t]he mere
fact that the jury's verdict would be in the form of special
answers should have been enough to alert counsel to
potential inconsistency.'" Id. (quoting McIsaac v.
Didriksen Fishing Corp., 809 F.2d at 134).
In addition to the special verdict form, Maritime
should have been alerted to the potential inconsistency by
the jury instructions. See McIsaac v. Didriksen Fishing
Corp., 809 F.2d at 134. The court specifically instructed
the jury that the negligence and unseaworthiness claims were
"separate and independent" and that the plaintiff could
recover on one or both. (Appellant's App. at 753a and
760a.) In fact, the jury requested additional instructions
regarding the meaning of unseaworthiness. (Clerk's Minutes,
Oct. 10, 1991; Docket Entry 71.); see McIsaac v. Didriksen
Fishing Corp., 809 F.2d at 134 (counsel on notice of
potential inconsistency where jury interrupted deliberations
to inquire into differences between negligence and breach of
warranty claims).
Despite these obvious warning beacons, Maritime
remained silent while the verdict was read and the jury was
discharged. We decline to condone this "'agreeable
acquiescence to perceivable error as a weapon of appellate
advocacy.'" Id. (quoting Merchant v. Ruhle, 740 F.2d 86, 92
(1st Cir. 1984)).
While the timeliness issue was not addressed by either
party and consequently was not explored by the trial court,
"'[w]e are, of course, free to affirm a district court's
decision on any ground supported by the record even if the
issue was not pleaded, tried or otherwise referred to in the
proceedings below.'" Chamberlin v. 101 Realty, Inc., 915
F.2d 777, 783 n.8 (1st Cir. 1990) (quoting Norris v.
Lumbermen's Mut. Casualty Co., 881 F.2d 1144, 1151-52 (1st
Cir. 1989) (additional citations omitted)). This is
particularly appropriate here because the parties have had
sufficient opportunity to develop arguments relating to the
verdict's alleged inconsistency before both the trial court
and this court. See Papex Int'l Brokers, Ltd. v. Chase
Manhattan Bank, 821 F.2d 883, 885 (1st Cir. 1987). In
addition, Maritime's untimely objection is apparent from the
record and our determination can be made as a matter of law.
See Watterson v. Page, No. 92-1224, 1993 U.S. App. LEXIS
2029, at *14 n.3 (1st Cir. Feb. 9, 1993). Under these
circumstances, it is appropriate to affirm the trial court's
decision, even though the precise issue was neither raised
by the parties or addressed by the trial court. See id.
Accordingly, we hold that Maritime waived any potential
inconsistency in the jury's verdict as a basis for appeal by
failing to object before the jury was discharged.
In any case, there is no inconsistency between the
verdicts in this case. It is well recognized that claims
under the Jones Act and claims for unseaworthiness are
discrete claims. See, e.g., Usner v. Luckenbach Overseas
Corp., 400 U.S. 494, 498 (1971). While the evidence is
often congruent, or at least overlapping, this is not
necessarily so, and a number of cases demonstrate that a
single incident of negligence, such as the requirement that
a seaman work when he has reported that he was too fatigued
to do so, may occur without rendering the ship unseaworthy.
Borras v. Sea-Land Serv., Inc., 586 F.2d 881, 888 (1st Cir.
1978); Merchant v. Ruhle, 740 F.2d at 91; Simeon v. T. Smith
& Son, Inc., 852 F.2d 1421, 1433 (5th Cir. 1988), cert.
denied, 490 U.S. 1106 (1989); Gosnell v. Sea-Land Serv.,
Inc., 782 F.2d 464, 467 (4th Cir. 1986); Kokesh v. American
S.S. Co., 747 F.2d 1092, 1094 (6th Cir. 1984).
We also find that sufficient evidence was established
at trial to support the jury's finding of negligence. A
plaintiff's burden of proving causation under the Jones Act
is "featherweight". Leonard v. Exxon, 581 F.2d 522, 524
(5th Cir. 1978), cert. denied, 441 U.S. 923 (1979).
Liability exists if the employer's negligence contributed
even in the slightest to the plaintiff's injury. Santana v.
United States, 572 F.2d 331, 335 (1st Cir. 1977) (citing
Rogers v. Missouri-Pacific R.R. Co., 352 U.S. 500, 506
(1957)). Here, sufficient evidence was introduced to
support the jury's determination that Maritime was negligent
in requiring Toucet to continue working despite his claims
of exhaustion and inadequate assistance, and that this
negligence contributed to Toucet's back injury. Perez v.
Maritime Transport Lines, Inc., 661 F.2d 254, 254 (1st Cir.
1979) (employer negligent for not relieving the plaintiff
from duty despite the plaintiff's complaints of overwork and
inadequate assistance, and that negligence contributed to
the plaintiff's injury).
B. Improper Hypothetical Question
Maritime asserts that the trial court erred by allowing
the plaintiff's expert witness, Dr. Jaun Llompart, to answer
a hypothetical question that improperly assumed facts not in
evidence. Specifically, plaintiff's counsel asked Dr.
Llompart to assume, in part, that a hypothetical seaman was
injured after pulling a hose and butterworth out of 12 tank
openings. Maritime asserts that this assumption was
contrary to the evidence introduced at trial, which revealed
that Toucet was injured after only 4 tank openings were
cleaned.
While a hypothetical should include only those facts
supported by the evidence, Iconco v. Jensen Constr. Co., 622
F.2d 1291, 1301 (8th Cir. 1980), the record here indicates
that sufficient facts existed to support the challenged
hypothetical. Each numbered tank had twelve openings, six
on the port side and six on the starboard side.
(Appellant's App. at 48a; 154a-56a; 162a.) During direct
examination, Toucet testified that he and the rest of the
team lowered a total of six hoses into the first six
openings of tank number one, three on each side. Id. at
51a; 162a. After completing the first six openings, the
team proceeded to clean the remaining six openings of tank
number one in the same manner. Toucet testified that after
completing the butterworthing of tank number one he and the
team proceeded to the first opening of tank number two.
Toucet felt his back "crack" while working on tank number
two. On this record, we find that the factual assumptions
underlying the plaintiff's hypothetical were fully supported
by the evidence. Moreover, Federal Rules of Evidence 703
and 705 place the "full burden of exploration of the facts
and assumptions underlying the testimony of an expert
witness squarely on the shoulders of opposing counsel's
cross-examination." Smith v. Ford Motor Co., 626 F.2d 784,
793 (10th Cir. 1980), cert. denied, 450 U.S. 918 (1981).
During its cross-examination of Dr. Llompart, Maritime
elected not to explore any perceived discrepancies or
inconsistencies relating to the hypothetical, nor did
Maritime ever explicitly call the attention of court or
counsel to the discrepancy it now asserts.
In short, Maritime's assertion of error is without
merit. Accordingly, we affirm the trial court's ruling
admitting Dr. Llompart's answer to the hypothetical
question.
C. Remittitur
The final issue is the propriety of the trial court's
denial of Maritime's motions for a new trial on damages or,
in the alternative, for remittitur. Maritime alleges that
the jury's $75,000 damage award for what it characterizes as
a "BenGay back injury" is unreasonably excessive and
unsupported by the evidence.
We review the trial court's denial of Maritime's
motions for "manifest abuse of discretion." Joia v. Jo-Ja
Serv. Corp., 817 F.2d 908, 918 (1st Cir. 1987) (citing
Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 975 (1st
Cir.), cert. denied, 409 U.S. 876 (1972)), cert. denied, 484
U.S. 1008 (1988). In challenging the jury's determination
of damages, Maritime assumes a heavy burden. Milone v.
Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988). This
court has previously observed that, "'[t]ranslating legal
damage into money damages . . . is a matter peculiarly
within a jury's ken.'" Id. (quoting Wagenmann v. Adams, 829
F.2d 196, 215 (1st Cir. 1987)). Accordingly, a jury's
judgment regarding the appropriate damage award is given
wide latitude and will be upheld so long as it does not
exceed "'any rational appraisal or estimate of the damages
that could be based on the evidence before the jury.'" Id.
(quoting Segal v. Gilbert Color Sys., 746 F.2d 78, 81 (1st
Cir. 1984)). In making this determination, we view the
evidence in the light most favorable to the plaintiff.
McDonald v. Federal Lab., Inc., 724 F.2d 243, 246 (1st Cir.
1984) (quoting Betancourt v. J.C. Penny Co., 554 F.2d 1206,
1207 (1st Cir. 1977)).
Cast in the appropriate light, we find that the jury's
assessment of Toucet's damages is within the "'wide range of
arguable appropriateness.'" Milone v. Moceri Family, Inc.,
847 F.2d at 40 (quoting Wagenmann v. Adams, 829 F.2d at
216). In calculating the amount of damages, the jury was
instructed to consider lost earnings, as well as pain and
suffering. With regard to lost earnings, the evidence
indicated that Toucet was unable to work for more than three
months after his injury. Although Toucet was pronounced
"fit for duty" by his doctor and attempted to resume work as
a seaman in December 1987, Toucet testified that he was
unable to remain on the job for more than a few days because
of his back injury. In terms of pain and suffering, Toucet
testified that, up until the time of trial, he continued to
suffer pain and discomfort attributable to his injury aboard
the Overseas Alaska, even though the injury occurred four
years earlier.
Under these circumstances, we conclude that the jury's
$75,000 judgment cannot be fairly characterized as "`grossly
excessive,'" "`inordinate'" or "`shocking to the
conscience'". See McDonald v. Federal Lab., Inc., 724 F.2d
at 246 (quoting Grunenthatl v. Long Island R.R. Co., 393
U.S. 156, 159 n.4 (1968)). Accordingly, we find no abuse of
discretion in the trial court's denial of Maritime's motions
for a new trial on damages or for remittitur.
CONCLUSION
The trial court's orders directing judgment to enter
according to the jury's verdict and dismissing Maritime's
post trial motions are AFFIRMED. AFFIRMED.