Clausen v. Sea-3 Inc. ( 1994 )

April 28, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1106
ERIC CLAUSEN,
Plaintiff, Appellee,
v.
SEA-3, INC.,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court issued on April 19, 1994, is
amended as follows:
On page 14, line 3 of first paragraph of section II, add an
"ly" to "perpendicular".
On page 20, last line, replace "the" with "a."
On page 46, line 2 of part "2.", replace "motion to alter or
amend the judgment to "Motion to Alter or Amend a Judgment."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1106
ERIC CLAUSEN,
Plaintiff, Appellee,
v.
SEA-3, INC.,
Defendant, Appellee.
STORAGE TANK DEVELOPMENT CORPORATION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Howard C. Bratton,* U.S. Senior District Judge]
Before
Boudin Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Robert L. Elliott with whom Charla Bizios Labbe and Kfoury &
Elliott, P.C. were on brief for Sea-3, Inc.
Thomas E. Clinton with whom Robert J. Murphy was on brief for
Storage Tank Development Corporation.
Michael B. Latti with whom David F. Anderson and Latti Associates
were on briefs for plaintiff.
April 19, 1994
*Of the U.S. District Court for the District of New Mexico, sitting by
designation.
CAMPBELL, Senior Circuit Judge. On February 6,
1989, Eric Clausen ("Clausen"), plaintiff-appellee, slipped,
fell, and injured his back while working as a pile driver at
a job site at a fuel terminal facility on the Piscataqua
River, Portsmouth Harbor, Newington, New Hampshire. A
Massachusetts resident, Clausen sued for negligence, under
the diversity jurisdiction, in the United States District
Court for the District of New Hampshire. Defendants were the
owner of the facility, Storage Tank Development Corp.
("Storage Tank"), a New Hampshire corporation, and the
occupier of the facility, Sea-3, Inc. ("Sea-3"), a Texas
corporation. Defendants filed third-party complaints against
Clausen's employer, Goudreau Construction Corp. ("Goudreau").
Clausen's claims went to trial beginning on October
5, 1992. Storage Tank's and Sea-3's third-party claims
against Goudreau were omitted from that trial.1 On October
9, 1992, the jury returned a special verdict in Clausen's
favor, pursuant to Fed. R. Civ. P. 49(a), finding him to have
been damaged in the amount of $1,426,000.2 On October 13,
1992, the district court entered judgment in accordance with
the special verdict. On December 31, 1992, the district
1. The district court ordered a separate trial of the
defendants' third-party claims against Goudreau pursuant to
Fed. R. Civ. P. 42(b).
2. Responding to special questions, the jury apportioned
liability against Storage Tank at 37.5%, Sea-3 at 37.5%, and
Goudreau at 25%.
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court clarified its October 13, 1992, judgment to hold Sea-3
and Storage Tank jointly and severally liable to Clausen for
$1,426,000, with prejudgment interest at the rate of ten
percent (10%) from the date of the complaint to the date of
the verdict, plus costs. On January 22, 1993, Sea-3 and
Storage Tank filed separate notices of appeal from the
district court's December 31, 1992, amended judgment.3 We
affirm.
I.
APPELLATE JURISDICTION
Clausen argues that we do not have appellate
jurisdiction over Storage Tank's appeal because the district
court's December 31, 1992, amended judgment was not an
appealable "final decision" as that term is used in 28 U.S.C.
1291 (1988).4 We trace the procedural history.
When Storage Tank filed its notice of appeal on
January 22, 1993, from the district court's December 31,
3. On March 1, 1994, Sea-3 and Clausen reached a settlement
agreement in which Sea-3 agreed to withdraw its appeal.
Accordingly, on March 7, 1994, we entered an order dismissing
Sea-3's appeal pursuant to Fed. R. App. P. 42(b). Hence,
Storage Tank remains the sole appellant.
4. 28 U.S.C. 1291 (1988) states in pertinent part:
The courts of appeals (other than the United
States Court of Appeals for the Federal Circuit)
shall have jurisdiction of appeals from all final
decisions of district courts of the United States .
. . .
(emphasis added).
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1992, amended judgment, its own unresolved, third-party
claims were still pending against Goudreau. This situation
was problematic because a judgment
that completely disposes of . . . any separate
claim in the suit[,] without disposing of the
third-party claim, is not appealable unless a
judgment is entered by the district court [pursuant
to Fed. R. Civ. P. 54(b)5] on the express
determination that there is no just reason for
delay, and an express direction for the entry of
judgment.
6 James W. Moore et al., Moore's Federal Practice 54.36 (2d
ed. 1993). As the district court had not yet entered an
appealable judgment within Fed. R. Civ. P. 54(b), this court
advised Storage Tank, by order entered February 9, 1993, that
"[u]pon review of the record in this case, it appears that
this court may not have jurisdiction to consider the appeal
because a third party complaint . . . may be outstanding."
We directed Storage Tank "either to move for voluntary
dismissal under Fed. R. App. P. 42(b) or to show cause why
[its] appeal should not be dismissed."
5. Fed. R. Civ. P. 54(b) states in pertinent part:
When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or
when multiple parties are involved, the court may
direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties
only upon an express determination that there is no
just reason for delay and upon an express direction
for the entry of judgment.
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Following our February 9, 1993, show cause order,
Clausen on February 19 moved the district court to "certify
[pursuant to Fed. R. Civ. P. 54(b)] that the judgment entered
on October 13 and amended on December 31, 1992[,] is a ``final
judgment' and ``that there is no just reason for delay.'"
Storage Tank then moved this court for additional time to
respond to our February 9, 1993, show cause order. On March
4, 1993, we granted appellant's motion, extending the time
within which Storage Tank could respond to our February 9,
1993, order until March 23, 1993. In our March 4, 1993,
order we instructed Storage Tank that, "[i]f the district
court certifies its [judgment] as final pursuant to Rule
54(b), then, in order to avoid any . . . doubts [over
jurisdiction], appellant[] should file [a] new notice[] of
appeal."
On March 31, 1993, over objection by the appellant
and after oral argument, the district court entered an order
in which it found, pursuant to Fed. R. Civ. P. 54(b), "that
the judgment entered on December 31, 1992, in favor of Eric
Clausen and against Storage Tank . . . is a final judgment
and that there is no just reason for delaying appellate
review." Notwithstanding our earlier direction that, to
avoid jurisdictional complications, Storage Tank submit a new
notice of appeal following the district court's Fed. R. Civ.
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P. 54(b) certification, Storage Tank did not take such
action.
Clausen now contends that as Storage Tank's notice
of appeal filed on January 22, 1993, more than two months
prior to the district court's entry of judgment pursuant to
Fed. R. Civ. P. 54(b) was premature, it should be treated
as a nullity.6 Clausen is undoubtedly correct that Storage
Tank's notice of appeal filed after the district court's
6. Clausen cites Willhauck v. Halpin, 919 F.2d 788 (1st Cir.
1990), for the proposition that "a Notice of Appeal which is
premature ````simply self-destructs'' and should be treated as
a nullity." Id. at 792 (quoting Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 61, 103 S. Ct. 400, 403, 74 L. Ed.
2d 225, 229 (1982) (quoting 9 James W. Moore et al., Moore's
Federal Practice 204.12[1] (1982))). This "nullity"
principle, however, does not apply to this case. In
Willhauck, unlike here, we dismissed the plaintiffs' initial
appeal on the merits of the case for want of jurisdiction
because "the plaintiffs filed their Notice of Appeal from the
district court's denial of their Motion for Judgment
Notwithstanding the Verdict, or in the Alternative, for a New
Trial, one day prior to the lower court's entry of judgment
on the Motion." Id. at 790 n.2. The fact that the district
court had not yet entered judgment on motions filed pursuant
to Fed. R. Civ. P. 50(b) and/or 59 when the Willhaucks filed
their notice of appeal was dispositive because, under Fed. R.
App. P. 4(a)(4) (pre 1993 amendment), a notice of appeal
shall have no effect if it is filed before the disposition of
a motion
(i) for judgment under Rule 50(b); (ii) under Rule
52(b) to amend or make additional findings of fact,
whether or not an alteration of the judgment would
be required if the motion is granted; (iii) under
Rule 59 to alter or amend the judgment; or (iv)
under Rule 59 for a new trial.
Significantly, Fed. R. App. P. 4(a)(4) does not expressly
nullify a notice of appeal filed before the disposition of a
Fed. R. Civ. P. 54(b) motion.
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entry of its amended judgment, but before its Fed. R. Civ. P.
54(b) certification, was premature. See, e.g., Tidler v. Eli
Lilly & Co., 824 F.2d 84, 85 (D.C. Cir. 1987). The amended
judgment was unappealable until the district court
"direct[ed] the entry of a final judgment . . . upon an
express determination that there is no just reason for delay
and upon an express direction for the entry of judgment."
Fed. R. Civ. P. 54(b). This was eventually done, and we are
at a loss as to why Storage Tank's attorney failed to follow
our instruction to file a new notice of appeal following the
district court's Fed. R. Civ. P. 54(b) certification.7 We
conclude, nonetheless, that the prematurity of Storage Tank's
notice of appeal does not deprive us of jurisdiction over the
current appeal.
The majority of circuits that have addressed
jurisdictional quagmires similar to this one have held that a
belated Fed. R. Civ. P. 54(b) certification ripens a
premature notice of appeal as of the date of the
certification. See, e.g., United States v. Hardage, 982 F.2d
1491, 1494-95 (10th Cir. 1993); Harrison v. Edison Bros.
Apparel Stores, Inc., 924 F.2d 530, 532 (4th Cir. 1991); In
re Chateaugay Corp., 922 F.2d 86, 91 (2d Cir. 1990); Martinez
7. Had Storage Tank properly followed our instructions, it
would have filed a new notice of appeal "with the clerk of
the district court within 30 days of" the district court's
entry of judgment pursuant to Fed. R. Civ. P. 54(b). See
Fed. R. App. P. 4(a)(1).
-8-
v. Arrow Truck Sales, Inc., 865 F.2d 160, 161-62 (8th Cir.
1988); Crowley Maritime Corp. v. Panama Canal Comm'n, 849
F.2d 951, 954 (5th Cir. 1988); Tidler v. Eli Lilly & Co., 824
F.2d 84, 85-86 (D.C. Cir. 1987); Aguirre v. S.S. Sohio
Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986); Lac Courte
Oreilles Band v. Wisconsin, 760 F.2d 177, 180-81 (7th Cir.
1985). But see Useden v. Acker, 947 F.2d 1563, 1570 (11th
Cir. 1991), cert. denied, 113 S. Ct. 2927, 124 L. Ed. 2d 678(1993); Haskell v. Washington Township, 891 F.2d 132, 133
(6th Cir. 1989). In reaching this decision, the circuits
"follow the same relation forward principle as is provided by
[Fed. R. App. P.] 4(a)(2),8 [although they] do not generally
refer to that rule." Allan Ides, The Authority of a Federal
District Court to Proceed After a Notice of Appeal Has Been
Filed, 143 F.R.D. 307, 316 (1992) (footnote not in original).
8. Fed. R. App. P. 4(a)(2) (pre 1993 amendment) states:
"Except as provided in (a)(4) of this Rule 4, a notice of
appeal filed after the announcement of a decision or order
but before the entry of the judgment or order shall be
treated as filed after such entry and on the day thereof."
According to the United States Supreme Court:
Rule 4(a)(2) was intended to codify a general
practice in the courts of appeals of deeming
certain premature notices of appeals effective. . .
. The Rule recognizes that, unlike a tardy notice
of appeal, certain premature notices do not
prejudice the appellee and that the technical
defect of prematurity therefore should not be
allowed to extinguish an otherwise proper appeal.
FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498
U.S. 269, 273, 111 S. Ct. 648, 651, 112 L. Ed. 2d 743 (1991).
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The Tenth Circuit, however, specifically referred to Fed. R.
App. P. 4(a)(2) in its holding that, "[w]hen the district
court case is still ongoing at the time the appeal reaches
this court's attention, . . . [and] a belated Rule 54(b)
certification has been obtained . . . after the notice of
appeal was filed, we will deem the notice of appeal to ripen
as of the date of certification and will accept the
jurisdiction pursuant to the savings provision of Fed. R.
App. P. 4(a)(2)." Lewis v. B.F. Goodrich Co., 850 F.2d 641,
645 (10th Cir. 1988). The Fifth Circuit has stated that
"giving effect to the premature notice of appeal [after a
belated Fed. R. Civ. P. 54(b) certification has been
obtained] is in the spirit of Fed. R. App. P. 4(a)(2)."
Metallurgical Indus., Inc. v. Fourtek, Inc., 771 F.2d 915,
916 (5th Cir. 1985). Hence, while the problem might also be
tackled from some other direction, Fed. R. App. P. 4(a)(2)
suggests that a premature notice of appeal relates forward to
the date of a subsequent Fed. R. Civ. P. 54(b) certification.
Clausen argues, however, that, by virtue of a
recent ruling by the United States Supreme Court in FirsTier
Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S.
269, 111 S. Ct. 648, 112 L. Ed. 2d 743 (1991), Fed. R. App.
P. 4(a)(2) cannot rescue Storage Tank's prematurely filed
appeal. There, the Supreme Court decided that, "under [Fed.
R. App. P. 4(a)(2)], a premature notice of appeal relates
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forward to the date of entry of a final ``judgment' only when
the ruling designated in the notice is a ``decision' for
purposes of the Rule." FirsTier, 498 U.S. at 274 n.4
(emphasis added). Although Clausen argues to the contrary,
we believe that the district court's December 31, 1992,
amended judgment was sufficiently a "decision" for purposes
of Fed. R. App. P. 4(a)(2).
In FirsTier, the petitioner filed its notice of
appeal on February 8, 1989, after the district court had
announced from the bench, on January 26, 1989, that it
intended to grant summary judgment for the respondent. On
March 3, 1989, the district court entered judgment. The
question addressed by the Court was whether the district
court's bench ruling was a "decision" under Rule 4(a)(2) so
that the petitioner's premature notice of appeal would relate
forward to the date of the judgment, thereby conferring
jurisdiction upon the court of appeals. In finding that the
bench ruling was a "decision" under Rule 4(a)(2), and that
the court of appeals had jurisdiction to entertain the
appeal, the Court held that "Rule 4(a)(2) permits a notice of
appeal from a nonfinal decision to operate as a notice of
appeal from the final judgment only when a district court
announces a decision that would be appealable if immediately
followed by the entry of judgment." Id. at 276 (emphasis in
original). The Court qualified this principle by explaining
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that Rule 4(a)(2) does not permit a "notice of appeal from a
clearly interlocutory decision such as a discovery ruling
or a sanction order under Rule 11 of the Federal Rules of
Civil Procedure to serve as a notice of appeal from the
final judgment." Id.In this case, the district court's December 31,
1992, amended judgment was not literally a decision that
would be appealable if immediately followed by the entry of
judgment. This is because, with third-party claims as yet
unresolved, the December 31, 1992, amended judgment did not
dispose of all the claims in the case. Therefore, judgment
could not perfunctorily be entered following the ruling
absent the certification called for by Fed. R. Civ. P. 54(b).
To certify, the district court had to make an express
determination of no just reason for delay. Only having done
so was it free to enter a final judgment upon its December
31, 1992, amended judgment. Thus, the December 31, 1992,
amended judgment here does not, at first blush, seem to fit
within the Court's language in FirsTier and its progeny
indicating that a decision that would be appealable when
immediately followed by the entry of judgment is one that
"form[s] the basis of a final judgment without subsequent
intervention by the district court." Serine v. Peterson, 989
F.2d 371, 373 (9th Cir. 1993); see Strasburg v. State Bar, 1
F.3d 468, 472 (7th Cir. 1993) ("Whereas the district court in
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FirsTier had only ministerial functions left to complete
after announcing summary judgment, the district court's order
here notified the parties that they should expect further
dispositive rulings by the court.").
On the other hand, the nonfinal December 31, 1992,
amended judgment in this case was not irremediably
interlocutory as were the examples the Court used in FirsTier
to describe rulings the premature appeal from which Fed. R.
App. P. 4(a)(2) cannot cure. The examples given were a
discovery ruling or a sanction order under Rule 11 of the
Federal Rules of Civil Procedure. There is no commonly used
procedure for transforming such interlocutory rulings into
appealable, final dispositions, as Rule 54(b) allows in the
instance of decisions that dispose of some, but not all, of
the claims in a case. Thus, the district court's amended
judgment in this case falls somewhere along the continuum
between an unalterably interlocutory decision, the notice of
appeal from which can never serve as a notice of appeal from
the final judgment, FirsTier, 498 U.S. at 276, and decisions
that would be appealable under Rule 4(a)(2) when immediately
followed by the entry of judgment. We ask, therefore,
whether the district court's amended judgment is close enough
to a "decision that would be appealable if immediately
followed by the entry of judgment," id., to be a "decision"
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for purposes of Fed. R. App. P. 4(a)(2). Our answer is
"Yes."9
The district court's December 31, 1992, amended
judgment bears far more similarity to a decision that would
be appealable if immediately followed by the entry of
judgment than to the purely interlocutory decrees described
in FirsTier. Unlike these, the December 31, 1992, amended
judgment was a decision that purported to dispose finally of
all of Clausen's claims against Storage Tank, if not all the
claims in the lawsuit. The decision lacked finality only
because the district court had to find that there was no just
reason for delay and certify it as appealable immediately
pursuant to Fed. R. Civ. P. 54(b). Although this required
the district court to make an additional finding concerning
the appropriateness of an immediate appeal, that finding did
not affect the substance or the scope of the amended judgment
from which the premature appeal was taken. Rather, once
made, the district court's Fed. R. Civ. P. 54(b) ruling
instantly converted the substance of the former interlocutory
amended judgment into a wholly appealable one without
modifying or enlarging that decision in any way.
9. FirsTier, of course, did not involve Fed. R. Civ. P.
54(b); hence, the Court should not necessarily be expected to
have anticipated the niceties of the present situation, which
is sui generis.
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The primary difference between the December 31,
1992, decision in this case and the bench ruling in FirsTier
was that the district court here could not perfunctorily
enter judgment under Fed. R. Civ. P. 58. Rather, it had to
satisfy itself and certify that the decision was, in effect,
appropriate for immediate appeal, pursuant to Fed. R. Civ. P.
54(b), notwithstanding its failure to resolve all claims made
in the lawsuit.10 This difference, however, does not make
the district court's December 31, 1992, amended judgment so
dissimilar from the district court's bench ruling in FirsTier
that Storage Tank should lose the protection of the savings
clause of Fed. R. App. P. 4(a)(2). In both instances, the
prematurely-appealed decisions remained absolutely unaltered
to and through entry of an appealable judgment.
Consequently, we hold that, by virtue of Fed. R.
App. P. 4(a)(2), Storage Tank's premature notice of appeal
ripened when the district court certified its December 31,
1992, amended judgment pursuant to Fed. R. Civ. P. 54(b). As
we have appellate jurisdiction, we turn to the merits of the
appeal.
II.
10. It could be said that, for the purposes of Fed. R. App.
P. 4(a)(2), a Fed. R. Civ. P. 54(b) certification plays the
same role as entry of judgment under Fed. R. Civ. P. 58. In
other words, "entry of judgment," as that phrase appears in
Fed. R. App. P. 4(a)(2), encompasses Fed. R. Civ. P. 54(b)
certifications.
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BACKGROUND
Storage Tank owns docking facilities along the
Piscataqua River in Newington, New Hampshire. These include
a walkway-pier that first extends perpendicularly from the
shore line into the water, and then turns ninety degrees to
the left and extends upstream. A concrete mooring cell,
referred to as Cell Three, is located in the water beyond the
end of the walkway-pier.11 Cell Three, at the time of
Clausen's injury, was connected to the end of the walkway-
pier by the ramp upon which Clausen slipped and fell. The
ramp sloped downward to Cell Three from the walkway-pier. In
April 1992, the ramp was replaced by Storage Tank, at Sea-3's
request, with a set of steps because the concrete cell cap
had settled.
Sea-3 imports and distributes petroleum products
throughout New England. At all material times, Sea-3 had a
first-priority contractual right, under a so-called Dock
Agreement with Storage Tank, to occupy and use the docking
facilities. In 1983, Sea-3 sought to improve the docking
facilities by making structural changes to Cell Three. Sea-3
contracted with Goudreau to perform the work. Storage Tank
was not a party to that contract.
11. The mooring cells were filled with gravel and capped
with concrete to provide support for the dolphins and
bollards upon which vessels attached their mooring lines.
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On February 5, 1989, Goudreau hired Clausen to work
on Cell Three as a pile driver. Clausen's first day on the
job was February 6, 1989, the day he suffered his injury.
When Clausen arrived at the job site at 7:00 a.m. on the
morning of February 6, 1989, it was snowing. Between one and
two inches of fresh snow had accumulated on the dock. Upon
receiving permission to begin work, Clausen and his
coworkers, Daniel Woundy, William Burroughs, and Kenneth
King, the foreman, proceeded down the walkway-pier towards
Cell Three. Prior to the group's arrival at Cell Three, King
instructed Clausen to go back and retrieve an air compressor
hose that was stored in a guardhouse. Clausen retrieved the
air compressor hose and then headed back down the walkway-
pier toward the ramp that connected the walkway-pier to Cell
Three. Somewhere along the ramp that connected the walkway-
pier to Cell Three, Clausen slipped, fell, and injured his
back.
Immediately after the fall, Clausen experienced
pain that radiated down his back to his ankle. Despite the
pain, Clausen continued to work until his lunch break. After
lunch, Clausen was in too much pain to continue working, and
he decided to go home for the day. Upon arriving at home,
Clausen immediately made an appointment with a chiropractor
for 3:00 p.m. that afternoon.
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For approximately eight weeks following the
accident, Clausen was treated by his chiropractor. A CAT
scan taken two months after the accident revealed a herniated
disk at the L5-S1 level. Consequently, Clausen was referred
to Dr. Gerwin Neumann, a neurosurgeon at the New England
Baptist Hospital. After confirming the diagnosis of a disk
herniation in L5-S1, Dr. Neumann, in May 1989, performed the
first of what would eventually be five operations performed
on various disks in Clausen's back.
At trial, Clausen, the only witness to the
accident, testified that the ramp on which he fell was
constructed of what looked like two-inch thick by ten-inch
wide "staging planks" that were joined together by a couple
of slats. Clausen further testified that the ramp was ten to
twelve feet long and was covered by snow. According to
Clausen, the ramp protruded up over the walkway-pier by ten
to twelve inches so that he had to step up onto the ramp in
order to proceed down to Cell Three. Clausen's testimony
revealed that he initially stepped up onto the ramp with his
left foot. He did not have his hand on the railing because
it did not come up high enough for him to reach it. Clausen
then lifted his right foot off the ground, and, as he was
about to place it on the ramp, his left foot slipped and he
started to fall. Clausen testified that, as he fell, he
twisted to the right and twisted back to the left and grabbed
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onto the railing with his right hand as he was coming down.
Then he hit the ramp. At that point, Clausen was holding
onto the railing and had one hand on the ramp. He then let
himself go and slid down the ramp the rest of the way to Cell
Three. According to Clausen's trial testimony, once he got
to the bottom, he looked back up and saw a sheet of ice about
one-half inch thick covering the ramp from top to bottom.12
Based on Clausen's testimony, the defendants argued
at trial that Clausen had actually slipped on staging planks
that had been placed by Goudreau employees over the existing
ramp that connected the walkway-pier to Cell Three. No
witness testified at trial, however, to having seen staging
planks placed over the ramp. To the contrary, there was
12. Clausen's trial testimony did not comport with his
earlier answers to interrogatories with regard to where he
slipped and fell on the ramp. In response to interrogatories
that inquired about how and where his fall had occurred,
Clausen did not state that he slipped as he stepped onto the
ramp, but rather answered that "[t]he incident occurred at
the junction of the concrete cell and a gangplank connecting
the cell to the pier" and that "[a]s [he] was moving from the
gangplank to the cell, [he] was suddenly caused to slip and
fall."
Clausen's trial testimony was consistent, however, with
previous deposition testimony in which he stated:
So as I stepped up with my left foot and I went to
reach for [the rail], I brought my right foot up
and that's when I slipped and fell. And I twisted
my back and as I came back around, that's when I
grabbed ahold of the railing and I just fell down
on my backside.
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testimony that the ramp was "fixed" between the walkway-pier
and Cell Three and that it did not protrude up over the
walkway-pier, but was "flush" with it so that one had to step
down onto the ramp when walking to Cell Three. There was
further testimony that the ramp had cleats or treads, ten
inches to one foot apart, running crosswise all the way up
the length of the ramp. The ramp itself, according to trial
witnesses, was approximately five feet wide by five feet
long.
Clausen also testified at trial that he still had
back pain that radiated down his left leg. Dr. Neumann
testified that there was a direct causal relationship between
the accident on the ramp and Clausen's herniated disks, which
required five operations to repair. He further testified
that Clausen can lift no more than fifteen to twenty pounds
and is totally disabled from a strenuous job. He noted,
however, that, if Clausen's medical condition were to
stabilize, he could engage in sedentary or clerical activity.
To establish damages at trial, Clausen called
Robert Doucette, an expert economist, to testify about
Clausen's loss of earning capacity. Doucette said he had
examined Clausen's tax returns, copies of union contracts,
medical records, and statistical information pertaining to
work-life expectancy. He testified that he used Clausen's
union contract to calculate Clausen's base wage rate at the
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time of his injury. In reliance on the contract, Doucette
concluded that Clausen was earning a gross hourly wage of
$18.45 when the accident occurred. He then adjusted this
figure upward to $23.85 per hour to account for Clausen's
fringe benefits under the union contract, which included an
annuity fund, a pension fund, and health insurance. From
these preliminary figures, Doucette concluded that it was
reasonable to anticipate that Clausen would have earned
approximately $875,000 in gross wages and $391,000 in
benefits from the time he was injured, at age thirty-four,
through the age of his work-life expectancy.13
Doucette adjusted these gross figures by
subtracting income taxes, adding the average value of
household services at minimum wage, and adding a lump sum to
meet income tax liability on interest earnings. After making
these adjustments, Doucette concluded that the present value
of Clausen's earning capacity on the date of his injury
totaled approximately $1,250,000. He explained that this sum
represents the amount of economic value that Clausen could
have been expected to produce if he had not been injured, and
any pecuniary damages attributable to the injury is measured
13. According to Doucette, work-life expectancy expresses an
average of how long a person may be expected to be in the
labor force earning income. It is a function of a person's
age, sex, level of education, and activity level.
-21-
by the difference between $1,250,000 and what Clausen is
still able to earn in the future.
III.
Storage Tank contends that the district court made
errors both during trial and after trial. Among the former,
Storage Tank alleges mistaken evidentiary rulings and jury
instructions. It argues that the district court erred in (1)
allowing evidence of subsequent remedial measures undertaken
on the ramp where Clausen slipped and fell, (2) denying
Storage Tank's counsel the opportunity to cross-examine
Clausen's economist, Doucette, on the subject of union
benefits that Clausen allegedly received after the accident,
and (3) instructing the jury to assess fault against
Goudreau, a non-party to the trial. In the category of post-
trial error, Storage Tank objects to the district court's (1)
refusal to file its Renewed Motion for Judgment as a Matter
of Law, (2) denial of its Motion for Judgment as a Matter of
Law, and (3) denial of its Motion to Alter or Amend the
Judgment.
We find merit in none of these arguments.
A. Alleged Trial Errors
1. Evidence of Subsequent Remedial Measures
Storage Tank complains of the allowance of evidence
that, in 1992, Storage Tank, at Sea-3's request, replaced a
ramp on which Clausen fell with a set of steps. Prior to
-22-
trial, Storage Tank had filed a motion in limine seeking to
exclude evidence of the changes made to the ramp both on the
issues of negligence and control. Storage Tank argued in its
motion that evidence of subsequent remedial measures is
inadmissible under Fed. R. Evid. 40714 to prove negligent
or culpable conduct. It also contended that, although there
was an unresolved issue in the case about whether Goudreau,
Storage Tank, Sea-3, or some combination of the three
controlled the area where Clausen fell, the evidence of the
ramp's replacement in this case carried no probative weight
with regard to the control issue. The district court denied
Storage Tank's motion in limine, but limited the scope of the
evidence to the issue of who had control over the area where
Clausen's injury occurred. At the end of the trial, the
district court gave the jury a limiting instruction to this
effect.
14. Fed. R. Evid. 407 states:
When, after an event, measures are taken
which, if taken previously, would have made the
event less likely to occur, evidence of the
subsequent measures is not admissible to prove
negligence or culpable conduct in connection with
the event. This rule does not require the
exclusion of evidence of subsequent measures when
offered for another purpose, such as proving
ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment.
(emphasis added).
-23-
On appeal, Storage Tank insists that the district
court should not have allowed Clausen to introduce evidence
of the replacement of the ramp under the control exception to
Fed. R. Evid. 407. It contends that the probative value of
the evidence was "substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury." Fed. R. Evid. 403.15 Clausen asserts, however,
that we need not reach the merits of Storage Tank's argument
because it did not preserve the issue for appeal by timely
objecting at trial to the admission of the evidence of the
ramp's replacement. We agree.
During the charging conference, the following
exchange occurred:
Mr. Clinton: First of all, your Honor, the
remedial instruction with regard to the issue of
control of the stairs in 1992 was only for the
purpose of control.
The Court: In other words, you admitted it only
for the purpose of control and not for liability?
When it came in, there was no objection. I was
Mr. Clinton: Well, I objected.
15. Fed. R. Evid. 403, in full, states:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
-24-
The Court: When? Not when it was offered, not
when it came in. I'll be glad to put in something
like that, but I was sitting here waiting
Mr. Clinton: I filed a motion in limine instead
of repeating. You denied the motion in limine, so
I figured you ruled.
The Court: But when no objection came, I didn't
know at that point whether you had changed your
position or what. . . .
From this colloquy, it appears that Storage Tank felt that
the district court's earlier denial of its motion in limine
had relieved it of any need to object to the admission of the
evidence of the subsequent repair at the time it was offered
at trial.
In United States v. Reed, 977 F.2d 14 (1st Cir.
1992), we said that "[a] motion in limine without subsequent,
contemporaneous objection at trial, . . . is ordinarily
insufficient to preserve an evidentiary ruling for appeal."
Id. at 17 (citing Fed. R. Evid. 103(a)). More recently, we
expanded upon this general proposition by holding:
Where an objection to evidence has been
overruled in limine, it makes sense to require that
the objection be renewed at trial. However
definite the denial of the motion to exclude prior
to trial, it is child's play for the opponent of
the evidence to renew the objection when the
evidence is actually offered; and requiring this
renewal gives the trial judge a chance to
reconsider the ruling with the concrete evidence
presented in the actual context of the trial.
Fusco v. General Motors Corp., 11 F.3d 259, 262 (1st Cir.
1993); see, e.g., United States v. York, 933 F.2d 1343, 1360
(7th Cir.) (holding that "``[a] party whose motion in limine
-25-
has been overruled must object when the error the party
sought to prevent is about to occur at trial'" (quoting
United States v. Roenigk, 810 F.2d 809, 815 (8th Cir.
1987))), cert. denied, 112 S. Ct. 321, 116 L. Ed. 2d 262(1991); United States v. Khoury, 901 F.2d 948, 966 (11th Cir.
1990) ("A defendant must object at trial to preserve an
objection on appeal; the overruling of a motion in limine
does not suffice."); Wilson v. Waggener, 837 F.2d 220, 222
(5th Cir. 1988) ("A party whose motion in limine is overruled
must renew his objection when the evidence is about to be
introduced at trial."). As the Fifth Circuit explained in
Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980):
Motions in limine are frequently made in the
abstract and in anticipation of some hypothetical
circumstance that may not develop at trial. When a
party files numerous motions in limine, the trial
court may not pay close attention to each one,
believing that many of them are purely
hypothetical. Thus, a party whose motion in limine
has been overruled must object when the error he
sought to prevent with his motion is about to occur
at trial. This will give the trial court an
opportunity to reconsider the grounds of the motion
in light of the actual instead of
hypothetical circumstances at trial.
Id. at 784. This rule "discourage[s] counsel from refraining
from making an objection at trial in order to reserve the
opportunity to assert reversible error on appeal." United
States v. Roenigk, 810 F.2d 809, 815 (8th Cir. 1987).
Because Storage Tank failed timely to object at
trial to the admission of evidence of the subsequent
-26-
alteration to the ramp in 1992, we review the district
court's decision to allow such evidence only for plain error.
Reed, 977 F.2d at 17; see Fed. R. Evid. 103(d). "Plain
error, however, is a rare species in civil litigation . . .
." Gay v. P.K. Lindsay Co., 666 F.2d 710, 712 n.1 (1st Cir.
1981), cert. denied, 456 U.S. 975, 102 S. Ct. 2240, 72 L. Ed.
2d 849 (1982). Even in criminal cases, in the absence of
proper objection we will "``correct only ``particularly
egregious errors' . . . that ``seriously affect the fairness,
integrity or public reputation of judicial proceedings,''"
United States v. Nason, 9 F.3d 155, 160 (1st Cir. 1993)
(quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct.
1038, 1046, 84 L. Ed. 2d 1 (1985) (quoting United States v.
Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d
816 (1982))), cert. denied, S. Ct. , 1994 WL 69882(1994), and we will reverse only in "``exceptional cases or
under peculiar circumstances to prevent a clear miscarriage
of justice,'" id. at 161 (quoting United States v. Griffin,
818 F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. 844, 108
S. Ct. 137, 98 L. Ed. 2d 94 (1987)); accord Gay, 666 F.2d at
712 n.1. It is utterly clear that the district court's
decision to permit the evidence of the changes made to the
ramp in 1992, whether right or wrong, was not plain error.
Although Fed. R. Evid. 407 proscribes the admission
of evidence of subsequent remedial measures to "prove
-27-
negligence or culpable conduct," it allows such evidence, as
already noted, "when offered for another purpose, such as
proving . . . control." Fed. R. Evid. 407. The parties
agree that control of the ramp area where Clausen's injury
occurred was a material issue in this case. According to the
appellant, one aspect of the control issue arose because both
Storage Tank and Sea-3 asserted that Goudreau was in control
of the work site and was, therefore, responsible for clearing
and sanding the area where the plaintiff fell. Clausen
points out that a second aspect of the control issue in this
case, not alluded to by Storage Tank, involved whether
Storage Tank, Sea-3, or both jointly, controlled the area
where Clausen fell if Goudreau, at that time, did not control
the ramp.16
To be sure, Storage Tank argues that the evidence
that it made changes to the ramp at the request of Sea-3
subsequent to Clausen's accident was inadmissible under the
16. The trial judge's summary of the control issue sheds
additional light on the parties' arguments:
As I understand it, and as I'm putting it, the
defendants, one, deny that there was an accident,
two, they say if there was an accident, each one
denies that it was responsible and maintains that
any fault was that either of the plaintiff or
Goudreau or both, and to each one there's an issue
as to who was in control of the premises. You're
not in agreement on that, although you both say
that Goudreau was in control of the premises, but
if not, then who was?
(emphasis added).
-28-
control exception to Fed. R. Evid. 407 because the evidence
failed to satisfy the independent requirements of Fed. R.
Evid. 403. Storage Tank maintains that, because the ramp was
replaced in 1992, approximately three years after Clausen's
fall, the evidence is not probative of whether Storage Tank
or Sea-3 controlled the ramp, either separately or jointly,
in 1989, particularly since, according to Storage Tank, the
area had been exclusively occupied by Goudreau when Clausen's
injury occurred. Whatever can be said for such arguments had
Storage Tank preserved its right to argue the merits, they do
not come close to demonstrating that it was plain error for
the district court to believe that the evidence carried at
least some probative weight as to who controlled the ramp in
1989.
Storage Tank also suggests that it was greatly
prejudiced because the jury may have used the evidence of the
ramp's replacement for an improper purpose. The judge,
however, instructed the jury that "[e]vidence of the
subsequent installation of stairs in 1992 is evidence
relevant only on the issue of control. It is not to be
considered evidence of liability or fault." According to the
advisory committee's notes to Fed. R. Evid. 403, "[i]n
reaching a decision whether to exclude on grounds of unfair
prejudice, consideration should be given to the probable
effectiveness or lack of effectiveness of a limiting
-29-
instruction." Although limiting instructions may not always
be effective, see, e.g., United States v. Garcia-Rosa, 876
F.2d 209, 221-22 (1st Cir. 1989), cert. denied, 493 U.S.
1030, 110 S. Ct. 742, 107 L. Ed. 2d 760 (1990), cert. granted
& vacated on other grounds, 498 U.S. 954, 111 S. Ct. 377, 112
L. Ed. 2d 391 (1990), the inadequacy of the one in this
situation is scarcely so patent as to support a finding of
plain error. We do not readily assume that a jury disregards
clear directions. See Gutierrez-Rodriguez v. Cartagena, 882
F.2d 553, 574 (1st Cir. 1989).
We are satisfied that admission of the evidence was
not plain error.
2. Cross-Examination of Clausen's Expert, Doucette
At trial, Clausen testified that, as a union
member, he had enjoyed certain union employee fringe
benefits, including a pension plan, an annuity fund, and a
"health and welfare dental plan." Clausen did not mention,
in this regard, workers' compensation payments, union
disability benefits, or social security disability benefits.
Later in the trial, Clausen's expert, Doucette, estimated
Clausen's pecuniary damages (i.e., lost future earnings),
including wages and fringe benefits lost because of his
inability to perform his former job due to the injury. In
determining this figure, Doucette testified that Clausen, at
the time of his injury, had earned "a gross hourly wage of
-30-
$18.45 per hour." He also testified that Clausen had then
enjoyed fringe benefits consisting of "an annuity fund, a
pension fund, and health and welfare, which is health
insurance" the gross future value of which, calculated
from the time of Clausen's injury through his age of work-
life expectancy, totaled $391,000. Doucette did not mention
workers' compensation payments, union disability benefits, or
social security disability benefits.
Prior to cross-examining Doucette, counsel for
Storage Tank requested
a ruling that [he] be allowed on cross-examination
to go into the union benefits, such as [Clausen's]
disability benefits that he's currently receiving
and any Social Security benefits, since they have
opened it up by bringing it in as being factors.
(emphasis added). Counsel for Clausen strenuously objected,
saying the mentioned evidence had gone "only as to
[Clausen's] earnings," there being "nothing said with respect
to [Clausen] being economically deprived now because of no
money or anything like that." After hearing from both
parties, the court denied Storage Tank's request. In
response, Storage Tank's counsel made an offer of proof:
Note my exception, your Honor, but on the basis
this is the collateral [source rule]. He's raised
the issue. This is an offer. He's raised the
[issue] of fringe benefits under unions and he's
currently receiving disability benefits.
The district court denied Storage Tank's request
undoubtedly because of New Hampshire's collateral source
-31-
rule,17 which provides that "a plaintiff [who] is
compensated in whole or in part for his damages by some
source independent of the tort-feasor . . . is still
permitted to make full recovery against him." Moulton v.
Groveton Papers Co., 114 N.H. 505, 509, 323 A.2d 906, 909
(1974). According to the Supreme Court of New Hampshire,
"[t]he rule that collateral benefits are not subtracted from
the plaintiff's recovery has been applied to benefits paid
under an insurance policy or by a relief association;
employment benefits; gratuitous payments; social legislation
benefits such as social security, welfare, pensions; and
benefits received under certain retirement acts." Id. One
commentator has observed that "[t]he most obvious effect of
the collateral source rule is that it ``enables a plaintiff to
reap a double recovery in certain circumstances.' In other
words, ``[t]he collateral source rule is an exception to the
general rule that damages in tort should be compensatory
only.'" Joel K. Jacobsen, The Collateral Source Rule and the
17. "Properly analyzed, the collateral source rule is a
substantive rule of damages and not a rule of evidence."
Joel K. Jacobsen, The Collateral Source Rule and the Role of
the Jury, 70 Or. L. Rev. 523, 526 (1991); see, e.g., McInnis
v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir. 1985) ("[I]t is
well recognized that Congress did not intend the [Federal
Rules of Evidence] to preempt . . . ``substantive' state rules
. . . such as the . . . collateral source rule . . . ."). In
their Joint Pretrial Memorandum, the parties agreed that "New
Hampshire tort law and contract law govern the legal rights
and duties of all parties at issue herein." Accordingly, we
will abide by New Hampshire's collateral source rule.
-32-
Role of the Jury, 70 Or. L. Rev. 523, 524 (1991) (quoting
Chenoweth v. Schaaf, 576 F. Supp. 1556, 1558 (W.D. Pa. 1984)
and Overton v. United States, 619 F.2d 1299, 1306 (8th Cir.
1980) in that order).18
Although New Hampshire's collateral source rule
serves substantive state policies, its application also
affects the admissibility of certain evidence. Courts have
held, for instance, that, under the Federal Rules of
Evidence, "evidence of collateral benefits [ordinarily] has
18. Courts have expressed various policy rationales for the
collateral source rule. "Most fall into two broad
categories. The rule is intended either (1) to punish the
tortfeasor, or (2) to ensure that the injured party receives
benefits for which he or she has contracted." Jacobsen, The
Collateral Source Rule and the Role of the Jury, supra note
17, at 528. The Supreme Court of New Hampshire has
summarized these rationales as follows:
The basic argument advanced for [the rule's]
application is that a tort-feasor should not be
allowed to escape the consequences of his wrongful
act merely because his victim has received a
benefit from a collateral source which would
constitute a windfall to the defendant wrongdoer.
It is also pointed out that in many instances the
plaintiff has paid for these benefits in the form
of insurance premiums or concessions in the wages
he received because of such fringe benefits. If
such considerations are not present and the
payments are gratuitous, it is maintained that the
maker of these payments did not intend to relieve
the tort-feasor of any liability, but rather to aid
the plaintiff by doing him a favor. . . . It is
also argued that the collateral source rule is
designed to offset the inability of ordinary
damages to adequately compensate an injured
accident victim.
Moulton v. Groveton Papers Co., 114 N.H. 505, 509-10, 323
A.2d 906, 909 (1974).
-33-
no relevance in the lawsuit," Phillips v. Western Co. of N.
Am., 953 F.2d 923, 930 (5th Cir. 1992), because the existence
of such benefits is of no consequence to the trier of fact's
determination of damages. See Fed. R. Evid. 401. "Evidence
that is not relevant, of course, is not admissible. Fed. R.
Evid. 402." Phillips, 953 F.2d at 930.
In some cases, however, federal courts, although
subject to a state's collateral source rule, have allowed
evidence of collateral payments when relevant to some other
issue. Courts have allowed defendants to introduce evidence
of collateral payments to show malingering or to rebut
misleading testimony given on direct examination. See, e.g.,
DeMedeiros v. Koehring Co., 709 F.2d 734 (1st Cir. 1983)
(affirming the district court's decision to allow the
defendants to introduce evidence that the plaintiff was
receiving $185 per week in workers' compensation disability
benefits for the limited purpose of proving the plaintiff's
motivation in declining an employment opportunity); Lange v.
Missouri Pac. R.R. Co., 703 F.2d 322, 324 (8th Cir. 1983)
(finding that "evidence concerning [the plaintiff's] receipt
of workers' compensation benefits was relevant to test the
credibility of plaintiff's assertion that he had to return to
work immediately after the surgery because he had no
disability income"). Evidence of collateral payments has
also been allowed on cross-examination after the plaintiff
-34-
has specifically referred to such payments on direct
examination. Hannah v. Haskins, 612 F.2d 373, 375 (8th Cir.
1980) (affirming the district court's decision to allow the
defendant on cross-examination to elicit information about
collateral source payments referred to by the plaintiff on
direct examination).
Here, Storage Tank argues, citing Haskins, that the
district court erred in denying its request to cross-examine
Doucette on the issue of disability benefits that Clausen
received after the accident because Doucette had raised the
issue of employee benefits on direct examination. We do not
agree. Storage Tank's counsel sought permission to cross-
examine Doucette as to "disability benefits that [Clausen] is
currently receiving and any Social Security benefits." These
were not the benefits Clausen and Doucette had testified were
lost by reason of Clausen's injury Doucette mentioned
Clausen's loss of "an annuity fund, a pension fund, and
health and welfare, which is health insurance." The district
court had good reason to think that Storage Tank was
proposing to delve into different contemporary benefits in
order to persuade the jury to reduce its damages award by the
amount of collateral payments that were currently being
received from other sources by the disabled plaintiff.
Preventing such inquiry was consistent with New Hampshire's
collateral source rule. If Storage Tank had wished to
-35-
examine Doucette on the accuracy of his projections of
Clausen's economic loss relative to the annuity fund, pension
fund, and health insurance, it needed to say so, see infra,
rather than merely saying it wanted to cross-examine about
disability and social security benefits now being paid to
Clausen.
Storage Tank's reliance on Haskins is misplaced.
In Haskins, the plaintiff, on direct examination, had
testified that certain medical bills had been paid from
collateral sources, namely, Blue Cross, Blue Shield, and
Medicaid. The district court allowed the defendant's
attorney to "elicit[] further information concerning the type
and scope of the collateral source payments." Haskins, 612
F.2d at 375. Here, by contrast, Clausen and Doucette never
testified that Clausen was receiving collateral source
payments (e.g., workers' compensation, union disability
benefits, or social security disability benefits). Rather,
they testified that Clausen had permanently lost certain
employee benefits by reason of his accident (i.e., "an
annuity fund, a pension fund, and health and welfare"). The
district court could reasonably believe that Doucette's
testimony concerning the purported value of particular
benefits that Clausen had allegedly lost because of his
injury did not "open the door" to cross-examination
-36-
concerning the receipt by Clausen of what appeared to be
different benefits.19
We recognize that there is some force to Storage
Tank's argument, relying on Lange, that, notwithstanding the
collateral source rule, it was entitled to cross-examine
Doucette regarding Clausen's receipt of disability benefits
to show that Clausen had not actually lost employee benefits
as indicated by Doucette on direct examination. In this same
vein, Storage Tank asserts that, had the district court
permitted it to demonstrate on cross-examination that Clausen
had not lost his employee benefits, it would have thereby
impeached Doucette's credibility. We need not reach the
merits of these arguments, however, because Storage Tank
raises them for the first time on appeal.
We have held that "[a] party may not claim error on
appeal in the exclusion of evidence unless the district court
was told not only what the party intended to prove but also
for what purpose." Tate v. Robbins & Myers, Inc., 790 F.2d
10, 12 (1st Cir. 1986) (citing 1 Jack B. Weinstein & Margaret
19. We note that "[t]rial judges retain broad discretion to
impose reasonable limitations on the scope of cross-
examination," United States v. Alvarez, 987 F.2d 77, 82 (1st
Cir.) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106
S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986)), cert. denied,
114 S. Ct. 147 (1993), and "[w]e review district court
limitations on cross-examination for ``abuse of discretion,'"
United States v. Carty, 993 F.2d 1005, 1010 (1st Cir. 1993)
(quoting United States v. Boylan, 898 F.2d 230, 254 (1st
Cir.), cert. denied, 498 U.S. 849, 111 S. Ct. 139, 112 L. Ed.
2d 106 (1990)).
-37-
A. Berger, Weinstein's Evidence 103[03], at 103-33 (1985
ed.) ("In making an offer of proof counsel must be careful to
articulate every purpose for which the evidence is
admissible; a purpose not identified at the trial level will
not provide a basis for reversal on appeal.")). Accordingly,
"if evidence is excluded because it is inadmissible for its
only articulated purpose, the proponent of the evidence
cannot challenge the ruling on appeal on the ground that the
evidence ``could have been rightly admitted for another
purpose.'" Id. (quoting 1 Kenneth S. Broun et al., McCormick
on Evidence 51, at [199 (1992)]).
At trial, Storage Tank argued that it should be
allowed to cross-examine Doucette about certain collateral
source payments received by Clausen because he (Doucette) had
referred during direct examination to other employee fringe
benefits lost by Clausen after his injury. The district
court rejected this argument. See discussion, supra.
Counsel for Storage Tank at no time stated that the proffered
evidence (i.e., that Clausen was receiving disability and
social security benefits) should be admitted either to show
that Clausen had not, in fact, suffered damages through the
loss of his annuity fund, pension plan, or health insurance,
or to impeach Doucette's credibility. These arguments
cannot, therefore, be entertained.
-38-
3. Including Goudreau in the Proration of Fault
Instruction to the Jury
The parties filed with the district court a Joint
Request for Special Jury Questions, which was signed by
counsel for Clausen, Storage Tank, and Sea-3, and which
formed the basis of the special verdict questions submitted
to the jury. This document contained, among others, the
following questions:
3.(a) Was Goudreau Corp. negligent?
***
(b) If so, was the negligence of Goudreau
Corp. a proximate cause of plaintiff's
injury?
***
5. State in what percentage the plaintiff's
negligence and defendants' negligence
caused or contributed to the injuries
alleged.
Eric Clausen's negligence: %
Storage Tank Development Corp.'s
negligence:
%
Sea-3, Inc.'s negligence: %
Goudreau Corp.'s negligence: %
100 %
Although counsel for Storage Tank and Sea-3 had signed-off on
these questions, during a charging conference held on the
afternoon of the third day of trial, counsel for Sea-3
objected to the inclusion of Goudreau on the special verdict
-39-
form. Specifically, counsel for Sea-3 argued to the district
court that "we should not have Goudreau Corporation, because
they're not a party to this case, and . . . to include them
would confuse the jury with respect to finding liability
against a party that's not here." Counsel for Sea-3 further
asserted that "[m]y concern is that we have an [indemnity]
action against Goudreau . . . [a]nd I don't want this jury's
finding to be on that process [sic], and, hence, I object to
its presence here." Counsel for Storage Tank neither joined
in Sea-3's objection nor expressed any dissatisfaction
whatsoever with the inclusion of Goudreau in the special
verdict questions.
Counsel for Sea-3 again raised his objection to
Goudreau's inclusion in the special verdict questions just
prior to the district court's charge to the jury. He
maintained that his only problem with the special verdict
questions was "the inclusion of Goudreau." Counsel for
Storage Tank, on the other hand, stated that he had "no
problem" with the special verdict questions and that he had
"no objection" to the instructions. Notwithstanding Sea-3's
objection, the district court did not exclude Goudreau from
the special verdict questions, which were given to the jury
in nearly identical form to the Joint Request for Special
Jury Questions submitted previously by the parties.
-40-
On appeal, Storage Tank argues that the district
court committed reversible error by allowing the jury to
assign liability to Goudreau because Goudreau was not a party
defendant at trial. It contends that the district court, by
allowing the jury to apportion fault against Goudreau,
violated N.H. Rev. Stat. Ann. 507:7-e, I(a) (1986), which
orders the trial court to "[i]nstruct the jury to determine
. . . the amount of damages to be awarded to each claimant
and against each defendant in accordance with the
proportionate fault of each of the parties." Storage Tank
interprets this statute to mean that it is impermissible for
a trial court to instruct a jury to find the proportionate
fault of a non-party. In this context, Storage Tank argues
that Goudreau was not a party in its trial with Clausen, and,
therefore, the district court, by virtue of 507:7-e, I(a),
erred by instructing the jury to apportion fault against
Goudreau.
Clausen counters Storage Tank's argument by
asserting that Storage Tank failed to preserve for appeal the
issue that the district court did not comply with N.H. Rev.
Stat. Ann. 507:7-e, I(a). He points out that Storage Tank
not only asked that Goudreau be included in special verdict
questions in the parties' Joint Request for Special Jury
Questions, but also failed to object to the special verdict
questions at any time during trial. We agree with Clausen.
-41-
Fed. R. Civ. P. 51 states, inter alia, that "[n]o
party may assign as error the giving or the failure to give
an instruction unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the
matter objected to and the grounds of the objection."
(emphasis added). "This rule applies to special
interrogatories as well as verbal instructions." Phav v.
Trueblood, Inc., 915 F.2d 764, 769 (1st Cir. 1990). We have
held that
a litigant who accedes to the form of a special
interrogatory will not be heard to complain after
the fact. . . . If a slip has been made, the
parties detrimentally affected must act
expeditiously to cure it, not lie in wait and ask
for another trial when matters turn out not to
their liking.
Anderson v. Cryovac, Inc., 862 F.2d 910, 918 (1st Cir. 1988).
Here, Storage Tank acceded to the form of the special verdict
questions; it participated in the parties' Joint Request for
Special Jury Questions, and then informed the trial judge,
just before he instructed the jury, that it had "no problem"
with the special verdict questions. "It follows inexorably
that [Storage Tank has] waived the right to press an
objection on appeal." La Amiga del Pueblo, Inc. v. Robles,
937 F.2d 689, 692 (1st Cir. 1991); see Toscano v. Chandris,
S.A., 934 F.2d 383, 384-85 (1st Cir. 1991) ("[W]hen the
appellants sat idly by and allowed the court's instructions
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to the jury to stand unchallenged, they waived the right to
press the objections which they now attempt to advance.").
Nor can we say that it was plain error for the
district court to ask the jury in special verdict questions
to assign fault to Goudreau. As we have noted, "[t]he plain
error standard, high in any event, . . . is near its zenith
in the Rule 51 milieu." Toscano, 934 F.2d at 385. "[I]t
applies only where the error results in a ``clear miscarriage
of justice' or seriously affects ``the fairness, integrity or
public reputation of judicial proceedings.'" Phav, 915 F.2d
at 769 (quoting Smith v. Massachusetts Inst. of Technology,
877 F.2d 1106, 1110 (1st Cir.), cert. denied, 493 U.S. 965,
110 S. Ct. 406, 107 L. Ed. 2d 372 (1989)). In this instance,
the district court's special verdict questions, if erroneous
at all, did not reach the pinnacle of fault envisioned by the
plain error standard.20
B. Alleged Post-Trial Errors
1. Refusal to File Storage Tank's Renewed Motion for
Judgment as a Matter of Law and Denial of Storage
Tank's Motion for Judgment as a Matter of Law
At the end of evidence, Storage Tank filed a Motion
for Judgment as a Matter of Law, which the district court
20. The Supreme Court of New Hampshire has not addressed the
issue and it is unclear, insofar as we are aware, whether
third-party defendants, who are not involved in the immediate
trial involving the plaintiff and the defendant(s), are or
are not "parties" as that term appears in N.H. Rev. Stat.
Ann. 507:7-e.
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denied. Within ten days after the entry of judgment, Storage
Tank filed, pursuant to Fed. R. Civ. P. 50(b), a Renewed
Motion for Judgment as a Matter of Law. The district court
refused to file the later motion because it failed to include
a certificate of compliance with U.S. Dist. Ct. R., D.N.H.
11(b).21 On appeal, Storage Tank assigns error to both of
these decisions.
a. Refusal to File Storage Tank's Renewed Motion
for Judgment as a Matter of Law
Storage Tank initially contends that the district
court erred in refusing to file its Renewed Motion for
Judgment as a Matter of Law for failure to comply with U.S.
Dist. Ct. R., D.N.H 11(b). According to Storage Tank, Local
Rule 11 does not apply to a Renewed Motion for Judgment as a
Matter of Law. We disagree.
U.S. Dist. Ct. R., D.N.H. 11(a)(1) states that
"[m]otions other than during trial will be considered only if
submitted separately from other pleadings on a document using
the word ``Motion' in the title. The Clerk shall not accept
21. District of New Hampshire Local Rule 11(b) states:
(b) SEEKING CONCURRENCE IN MOTIONS
The moving party shall certify to the court
that he has made a good faith attempt to obtain
concurrence in the relief sought. If the moving
party has obtained concurrence, he shall so state
in the body of the motion so the court may consider
it without delay.
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any motions not in compliance with procedures outlined in
these Rules." (emphasis added). Assuming, arguendo, that
the phrase "any motions" in the second sentence of Local Rule
11(a)(1) means "any motions other than during trial," the
issue becomes whether a Renewed Motion for Judgment as a
Matter of Law is a trial motion, which is not subject to
Local Rule 11, or a "motion other than during trial," which
is subject to Local Rule 11. Like the district court, we
conclude that a Renewed Motion for Judgment as a Matter of
Law, which may be filed as many as ten days after the entry
of judgment, is a "motion other than during trial" that must
comply with the strictures of Local Rule 11(b). Accordingly,
the district court was entitled to enforce its local rule by
refusing to file Storage Tank's Renewed Motion for Judgment
as a Matter of Law, and we cannot say that, by doing so, it
engaged in a clear injustice. See Atlas Truck Leasing, Inc.
v. First NH Banks, Inc., 808 F.2d 902, 903 (1st Cir. 1987)
("We will reverse [the district court's] determination only
if the ruling results in clear injustice."). We note, in
this regard, that Storage Tank's proffered Renewed Motion for
Judgment as a Matter of Law was virtually identical to its
earlier Motion for Judgment as a Matter of Law, denial of
which is reviewable on appeal.
b. Denial of Storage Tank's Motion for Judgment
as a Matter of Law
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Appellate review of the denial of a Motion for
Judgment as a Matter of Law is limited. As has often been
said, "we must examine the evidence in the light most
favorable to the plaintiff and determine whether there are
facts and inferences reasonably drawn from those facts which
lead to but one conclusion that there is a total failure of
evidence to prove the plaintiff's case." Fact Concerts, Inc.
v. City of Newport, 626 F.2d 1060, 1064 (1st Cir. 1980),
vacated on other grounds, 453 U.S. 247, 101 S. Ct. 2748, 69
L. Ed. 2d 616 (1981), quoted in Gonzalez-Marin v. Equitable
Life Assurance Soc'y of the United States, 845 F.2d 1140,
1144 (1st Cir. 1988); Mayo v. Schooner Capital Corp., 825
F.2d 566, 568 (1st Cir. 1987). Moreover, "``we may not
consider the credibility of witnesses, resolve conflicts in
testimony, or evaluate the weight of the evidence.'" Putnam
Resources v. Pateman, 958 F.2d 448, 459 (1st Cir. 1992)
(quoting Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.
1987)).
In its Motion for Judgment as a Matter of Law,
Storage Tank argued that it could not be found liable because
(1) the danger to Clausen was obvious and he failed to ensure
his own safety, and (2) Storage Tank had no notice of the
dangerous condition. On appeal, Storage Tank raises two
additional arguments not made in its Motion for Judgment as a
Matter of Law. First, it contends that Clausen's trial
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testimony unequivocally established that he fell on staging
planks that had been placed over the existing ramp.
Consequently, Storage Tank maintains that, because it did not
either own or control staging planks or receive notice
that staging planks had been placed over the existing ramp
there was insufficient evidence upon which a reasonable jury
could have found Storage Tank negligent. Second, Storage
Tank asserts that "Goudreau . . . assumed responsibility for
the safety of the work area pursuant to the written
contract." We decline to reach the merits of these freshly
raised arguments, however, because "[a]ppellate review may be
obtained only on the specific ground stated in the motion for
directed verdict." Wells Real Estate, Inc. v. Greater Lowell
Bd. of Realtors, 850 F.2d 803, 810 (1st Cir.) (citing
Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1, 3 (1st
Cir. 1977)), cert. denied, 488 U.S. 955, 109 S. Ct. 392, 102
L. Ed. 2d 381 (1988).
With regard to whether Clausen was contributorily
negligent for failing to observe an obvious danger, we find
sufficient evidence upon which a reasonable jury could find
that he was not. Clausen was injured on his first day on the
job and on his first trip down the ramp. He, therefore, had
no prior personal experience with the slippery condition of
the ramp. Moreover, Clausen testified that the one-half-inch
sheet of ice that caked the ramp was concealed by snow and
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that nobody had told him prior to the accident about the
presence of ice on the ramp. Similarly unavailing is Storage
Tank's contention that it is entitled to judgment as a matter
of law because it did not receive notice of the ramp's
dangerous condition or an opportunity to take remedial
action. Because there was evidence at trial from which the
jury could reasonably find that Storage Tank knew or should
have known that ice and snow would accumulate on the ramp and
that Storage Tank was responsible for taking action to clear
the ramp, the jury "could likewise find that reasonable care
required that [Storage Tank] should have taken such action."
Tremblay v. Donnelly, 103 N.H. 498, 500, 175 A.2d 391, 393
(1961). We decline to disturb the district court's
conclusion that Clausen presented evidence sufficient for a
reasonable jury to find Storage Tank negligent.
2. Denial of Storage Tank's Motion to Alter or Amend
Judgment
Storage Tank maintains that the district court
erred in denying its Motion to Alter or Amend the Judgment,
which asserted that the jury's verdict was grossly excessive,
not supported by the facts, and subject to remittitur.
Having considered Storage Tank's argument and the record
before us, we cannot say that the jury's verdict of
$1,426,000 was so exorbitant that the district court abused
its discretion by denying Storage Tank's request for
remittitur. See, e.g., American Business Interiors, Inc. v.
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Haworth, Inc., 798 F.2d 1135, 1146 (8th Cir. 1986) (holding
that, because "the trial court has heard the evidence and
knows the community's standards, [a court of appeals] will
reverse a denial of remittitur only when in rare
circumstances [it is] pressed to conclude that the verdict
represents a monstrous or shocking injustice").
The judgment of the district court is affirmed.
Costs to appellee.
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