Nevor v. Moneypenny Holdings, LLC ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 16-1302
16-1565
KENNETH NEVOR,
Plaintiff, Appellee,
v.
MONEYPENNY HOLDINGS, LLC,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Barron, Selya and Stahl,
Circuit Judges.
Robert P. Powers, with whom Michael R. Byrne and Melick &
Porter, LLP were on brief, for appellant.
Maurice J. Cusick, with whom Vincent M. Morgera was on brief,
for appellee.
November 22, 2016
SELYA, Circuit Judge. In this maritime personal injury
case, the district court awarded the plaintiff compensatory
damages for past and future harms totaling nearly $1,500,000.
Adding insult to injury, the court tacked on prejudgment interest
at the Rhode Island state rate of 12% per annum and entered
judgment in the plaintiff's favor for $2,318,487. The defendant
appeals, challenging both the damages award and the prejudgment
interest increment.
After careful consideration, we find the award of
damages to be unimpugnable. The award of prejudgment interest,
though, presents greater complications: with respect to that
award, we tackle a question of first impression within this circuit
and, following the resolution of that question, affirm the interest
award in part and reverse it in part. The tale follows.
I. BACKGROUND
We rehearse the relevant facts as found by the district
court, see Nevor v. Moneypenny Holdings, LLC, 2016 WL 183906(D.R.I. Jan. 14, 2016), consistent with record support. Plaintiff-
appellee Kenneth Nevor was once a professional sailor. His
experience included sailing, racing, and transporting racing
yachts. His skillset extended to maintaining and repairing
sailboats, their mechanical equipment, and their electronic gear.
Nevor began sailing as a boy and — by the age of 35 —
had participated in a number of elite racing events worldwide. At
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the time of the mishap giving rise to this action, Nevor was an
employee of defendant-appellant Moneypenny Holdings, LLC
(Moneypenny), which owned a 52-foot sailing vessel called the
Vesper and a 35-foot motor support vessel called the Odd Job.
In March of 2011, Nevor was part of a crew preparing the
Vesper for a regatta in the Caribbean. The Vesper was travelling
in the British Virgin Islands when the members of the crew learned
that they — but not the boat — needed to return to St. Thomas to
clear customs. To facilitate this process, the Odd Job met the
Vesper with a view toward carrying some crewmembers back to shore.
When the Odd Job pulled up alongside the Vesper, the Vesper's
captain directed some of the crew (including Nevor) to transfer
from the Vesper to the Odd Job. The wind was blowing at between
eight and twelve knots — normal for that time of year — but the
sea was choppy. Still, the captain did not lash the Odd Job and
Vesper together before proceeding with the transfer.
As Nevor disembarked the Vesper to board the Odd Job,
the boats separated. Nevor slipped, grasping the Vesper's lifeline
as he reached for the Odd Job with his foot. He was able to
complete the transfer, but the stress on his right arm caused his
bicep to tear from the bone.
Nevor stayed with the Vesper for two weeks after his
injury to assist with race preparations. He then returned
stateside to undergo surgery. Once the operation was performed,
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he completed six months of physical therapy. Even after he had
finished the prescribed course of therapy, his treating physician
found residual atrophy in the reattached muscle. Several months
later, Nevor visited another specialist who determined that
Nevor's right arm remained weaker than his left and was unlikely
to improve. This specialist concluded that Nevor could not do the
heavy lifting that his previous job demanded.
In June of 2013, Nevor invoked admiralty jurisdiction,
see 28 U.S.C. § 1333, and sued Moneypenny in Rhode Island's federal
district court.1 His complaint alleged negligence under the Jones
Act, see 46 U.S.C. §§ 30101-30106, and unseaworthiness under
general maritime law.
Following a four-day bench trial, the district court
wrote a thorough and closely reasoned rescript stating its findings
of fact and conclusions of law. The court awarded Nevor $1,460,458
in damages ($710,458 for loss of earnings and loss of future
earning capacity and $750,000 for pain, suffering, and mental
anguish).2 See Nevor, 2016 WL 183906, at *7. The court
subsequently granted Nevor's motion to add prejudgment interest to
1 Nevor's complaint named James R. Swartz, Moneypenny's
principal, as a codefendant. Nevor subsequently dropped Swartz as
a party, though, and we make no further mention of him.
2 Nevor's hospital and medical expenses were paid separately
as part of the shipowner's obligation of maintenance and cure.
See Whitman v. Miles, 387 F.3d 68, 71-72 (1st Cir. 2004).
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the damages award. This increment, which totaled $858,029, brought
the aggregate judgment to $2,318,487 (plus costs).
These consolidated appeals ensued.3 In them, Moneypenny
concedes liability but challenges several of the monetary
components of the judgment.
II. ANALYSIS
Moneypenny's claims of error fall into two broad
categories. First, it offers various reasons why the award of
damages should be deemed excessive. Second, it assails the
prejudgment interest award as totally inappropriate and,
alternatively, says that no prejudgment interest should accrue on
damages for future harm. We address these claims sequentially.
A. Damages.
As an opening salvo, Moneypenny blasts the district
court's stated basis for awarding economic damages (lost wages and
prospective loss of earning capacity). In its words, the court's
factual findings were "clearly erroneous" and "premised on
inadmissible speculation."
In the aftermath of a bench trial, we review the district
court's factual findings for clear error. See Reliance Steel
Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d 575, 576 (1st Cir.
1989). We will set aside those findings "only if, on the entire
3 Moneypenny filed notices of appeal on two separate
occasions. For simplicity's sake, we treat the appeals as a unit.
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evidence, we are left with the definite and firm conviction that
a mistake has been committed." Id. (citation omitted). Whether
we would have reached the same result as the district court is not
the issue: "[w]here there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous." Id. at 577 (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985)).
This deferential standard of review applies with
unabated force when a district court's findings depend wholly or
in part on expert testimony. When judges act as factfinders, they
are given "considerable leeway in choosing among the views of
experts and in determining the weight and value to be assigned to
the opinions of each expert." Reilly v. United States, 863 F.2d
149, 167 (1st Cir. 1988).
At trial, the parties presented detailed information
about the sailing industry, as well as expert testimony about
Nevor's physical limitations, projected wages, past and future
earning capacity, vocational capabilities, and work-life
expectancy. With respect to Nevor's projected wages and lost
earning capacity — the focal points of the district court's
economic damages calculation — Nevor's experts testified that at
the time of the accident he was "at the cusp" of joining the ranks
of the ultra-elite sailors who earned between $100,000 and $120,000
per year. This evidence was consistent with the fact that, in the
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first three months of 2011 (the year of his injury), Nevor already
had earned just shy of $30,000 working for Moneypenny. The experts
went on to explain that Nevor was one of "only maybe a thousand
people" competing internationally at an elite level and that he
had the skills and strength required to advance. Similarly, they
opined that, but for the injuries sustained in the accident, Nevor
could have remained employed as a top-echelon sailor for several
decades.4
Of course, this evidence did not go unrebutted.
Moneypenny presented expert testimony that Nevor sustained
virtually no loss in earning capacity as a result of the accident
and that, even if not injured, he was unlikely to earn more than
$100,000 per year as a sailor.
The district court sided with Nevor's experts. It
concluded that, but for the injuries sustained in the accident,
Nevor "would have continued to be employed in high-level sailing"
and "would have advanced as a professional sailor in his chosen
field if he had not been injured." Nevor, 2016 WL 183906, at *6.
4 In the court below, Moneypenny made several unsuccessful
attempts to strike the testimony of Nevor's vocational expert
(Michael LaRaia). On appeal, it complains of these denials in but
a single sentence in its opening brief: a conclusory assertion
that the district court abused its discretion in refusing to strike
the testimony. We thus deem the argument undeveloped and consider
it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
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In reaching these conclusions, the court found persuasive the
testimony voiced by Nevor's witnesses regarding his vocational
capabilities, earning capacity, and work-life expectancy.
In this venue, Moneypenny asseverates that the compiled
record offered "no reliable means of predicting the duration of
Nevor's sailing career, the positions which he may have held, or
the income which he might have earned." And although Moneypenny
concedes that it might have been "possible" for Nevor to reach
sailing's upper echelon and earn the wages commensurate with
sailing at that level, it insists that the evidence fell well short
of the "reliable demonstration" benchmark set by the Supreme Court.
See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534-35
(1983) (explaining that "[a]lthough it may be difficult to prove
when, and whether, a particular injured worker might have received
[] wage increases, . . . they may be reliably demonstrated for
some workers").
Contrary to Moneypenny's importunings, a reliable
demonstration does not demand proof positive. Forecasting future
losses necessarily requires the trier to sift through the
projections of experts, gauge the credibility of witnesses, and
draw reasonable inferences from the facts. See Johnson v. Watts
Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995); Reliance Steel,
880 F.2d at 576. While robes and gavels, not tea leaves or crystal
balls, are the tools of a trial judge's trade, some degree of
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speculation is inherent in any such forecast. A reliable
demonstration demands only that the court's prediction is
reasonable, given the facts in the record. Here, we must give due
weight to the court's determinations of witness credibility, its
findings as to the relative persuasiveness of various experts, and
its appraisal of competing facts. See Reliance Steel, 880 F.2d at
576.
Viewed through this prism, we find plentiful support in
the record for the court's determination that Nevor had in prospect
a top-flight racing career that was likely to be long and
successful and lost it due to the injuries sustained in the
accident. Consequently, we decline Moneypenny's invitation to
second-guess the district court's founded determination that the
evidence reliably demonstrated that Nevor was likely to move
further up the ranks. In the last analysis, that determination
depended upon a weighing of conflicting evidence, and such an
appraisal falls peculiarly within the trial court's ken. See
Reilly, 863 F.2d at 167.
Moneypenny next argues that Nevor's failure to attend a
specialized vocational rehabilitation program constituted a breach
of his duty to mitigate damages and should have reduced his damages
award. The district court saw the matter differently and did not
reduce the award on this account.
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At the threshold, we note that mitigation is in the
nature of an affirmative defense. See Allied Int'l, Inc. v. Int'l
Longshoremen's Ass'n, 814 F.2d 32, 38-39 (1st Cir. 1987). Thus,
Moneypenny bore the burden to prove by a preponderance of the
evidence that Nevor "failed to take reasonable steps to hold down
[his] losses." Id. As the proponent of an affirmative defense,
Moneypenny also bore "the risk of equipoise." O'Neal v. McAninch,
513 U.S. 432, 444 (1995).
On appeal, Moneypenny ascribes two errors to the
district court's refusal to credit its mitigation defense. We
start with its suggestion that the district court was obligated to
give a fuller explanation of its ruling.
The Civil Rules provide that, after a bench trial, "the
court must find the facts specially and state its conclusions of
law separately." Fed. R. Civ. P. 52(a)(1). This rule, however,
has practical limits. A "district court [is] not required to make
findings on every detail, [is] not required to discuss all of the
evidence that supports each of the findings made, and [is] not
required to respond individually to each evidentiary or factual
contention made by the losing side." Addamax Corp. v. Open
Software Found., Inc., 152 F.3d 48, 55 (1st Cir. 1998). The
court's findings are adequate as long as they "make plain the basis
for its disposition of the case." Valsamis v. González-Romero,
748 F.3d 61, 63 (1st Cir. 2014).
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Here, the district court explained in considerable
detail the basis for its findings on liability, concluding that
Moneypenny was liable under both the Jones Act (for negligence)
and general maritime law (for unseaworthiness). See Nevor, 2016
WL 183906, at *4-5. It then set forth (again, in considerable
detail) the basis for its calculation of damages. See id. at *5-
7. Those calculations rejected, albeit implicitly, Moneypenny's
mitigation defense.5 The upshot is that the court found the facts
with particularity, stated its legal conclusions plainly, and
explained in no uncertain terms its disposition of the case. No
more was exigible to satisfy the requirements of Rule 52(a). See
Damon v. Sun Co., 87 F.3d 1467, 1480 (1st Cir. 1996); see also
Banerjee v. Bd. of Trs. of Smith Coll., 648 F.2d 61, 66 (1st Cir.
1981).
The second branch of Moneypenny's mitigation defense is
its claim that the evidence required a finding of failure to
mitigate. We disagree: the district court's implicit conclusion
that Moneypenny's mitigation defense did not hold water is
adequately supported in the record.
5
There is no question, though, that the district court did
in fact consider the mitigation defense. At trial, the court
acknowledged that the parties had "thoroughly covered" and
"valiantly argued" the issue, and vouchsafed that it would "take
[the mitigation defense] into consideration."
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The relevant facts are susceptible to succinct
summarization. Moneypenny introduced evidence that one of Nevor's
doctors prescribed a round of vocational rehabilitation sessions
that Nevor did not attend. Nevor countered that he was never
notified about this proposed regimen. He also introduced evidence
that, even if he had been notified, the therapy was unavailable —
the rehabilitation center that he was directed to attend treated
only injuries (unlike Nevor's) arising under state workers'
compensation law. We think it a commonsense proposition that a
plaintiff cannot be charged with a failure to mitigate damages
when the suggested mitigation measure is unavailable to him.
What is more, the record is replete with testimony that,
far from avoiding therapy, Nevor avidly sought it out. On one
occasion, he asked his doctor to refer him for an additional round
of physical therapy. At other times, he sought therapy on his
own.
The short of it is that the district court faced a fact-
sensitive determination on the mitigation issue, couched in
evidence that lent itself to multiple interpretations. Where, as
here, "the conclusions of the [trier] depend on its election among
conflicting facts or its choice of which competing inferences to
draw from undisputed basic facts, appellate courts should defer to
such fact-intensive findings, absent clear error." Reliance
Steel, 880 F.2d at 576 (alteration in original) (quoting Irons v.
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FBI, 811 F.2d 681, 684 (1st Cir. 1987)). Such deference is
appropriate in this instance, and we discern no clear error in the
court's implicit conclusion that Nevor was not guilty of failing
to mitigate his damages.
This brings us to Moneypenny's claim that the award of
non-economic damages (for pain and suffering, mental anguish, and
the like) is excessive and unsupported by the evidence. The
court's ultimate conclusion — the monetization of Nevor's non-
economic harms — is assayed for abuse of discretion. See Limone
v. United States, 579 F.3d 79, 103 (1st Cir. 2009) (describing
such a conclusion as a "classic example of a judgment call"). Such
an award will stand unless it "shock[s] our collective conscience
or raise[s] the specter of a miscarriage of justice." Id. at 84.
We conclude that the district court's non-economic
damages award finds sufficient purchase in the record. Nevor
offered ample evidence showing that he underwent significant pain
and suffering, that his quality of life was reduced, and that he
experienced lasting physical and emotional distress long after the
accident. He submitted to a painful surgery, endured a lengthy
recovery, attended months of physical therapy sessions, and was
forced to limit his physical activities. Moreover, Nevor faces
the prospect of lasting consequences because his injuries
(including some residual scarring) have been found to be permanent.
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Non-economic damages are notoriously difficult to
quantify. "[T]here is no scientific formula or measuring device
which can be applied to place a precise dollar value" on pain,
suffering, and other items of intangible harm. Limone, 579 F.3d
at 105 (quoting Wagenmann v. Adams, 829 F.2d 196, 216 (1st Cir.
1987)). Given what Nevor has experienced and what he predictably
faces, we find the district court's award to be within the wide
universe of reasonable awards. Though generous, the award is
proportional to the weight of the evidence and is neither
conscience-shocking nor a harbinger of a miscarriage of justice.
Indeed, it is consistent with awards in analogous cases. See,
e.g., Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 80-82 (1st
Cir. 2010) (affirming award of over $2,000,000 in non-economic
damages where plaintiff sustained painful foot injury that
resulted in disability).
For these reasons, the district court's damages award
must be affirmed in full.
B. Interest.
Moneypenny's interest-related assignments of error can
be divided into two tranches. First, Moneypenny submits that the
successful Jones Act claim should have precluded any award of
prejudgment interest. Second, Moneypenny submits that — even apart
from his Jones Act argument — the district court should not have
granted Nevor any prejudgment interest with respect to damages for
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future harm. We address these matters one by one, affording de
novo review to questions of law and abuse-of-discretion review to
judgment calls. See Limone, 579 F.3d at 102.
We preface our discussion of specific issues with a
synopsis of the applicable legal doctrine. A seaman injured during
the course of his employment may recover damages under a variety
of statutory and common-law theories, including (as pertinent
here) the Jones Act and general maritime law. The Jones Act
provides a cause of action for a seaman injured through his
employer's negligence. See 46 U.S.C. §§ 30101-30106. Whether a
plaintiff is entitled to prejudgment interest on an award of
damages under the Jones Act, however, is open to question. The
prevailing view appears to be that, in pure Jones Act suits,
recovery of prejudgment interest is not permitted.6 See Petersen
v. Chesapeake & Ohio Ry. Co., 784 F.2d 732, 740 (6th Cir. 1986).
Our court has not squarely addressed this issue.
The situation is quite different with respect to general
maritime law. Under that body of law, there is a common-law cause
of action for injuries resulting from the unseaworthiness of a
6 There is, however, some play in the joints. Compare Wyatt
v. Penrod Drilling Co., 735 F.2d 951, 955 (5th Cir. 1984) (noting
that the Fifth Circuit has "disapproved the award of prejudgment
interest in a Jones Act case tried to a jury"), with Williams v.
Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985)
(holding that when a federal court sits in admiralty jurisdiction,
the judge may exercise his discretion to award prejudgment interest
on a Jones Act claim).
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vessel on which a seaman was employed. See Poulis-Minott v. Smith,
388 F.3d 354, 366 (1st Cir. 2004). In that context, "[p]rejudgment
interest is generally available." Borges v. Our Lady of the Sea
Corp., 935 F.2d 436, 443 n.1 (1st Cir. 1991).
There is a split of authority about whether an injured
seaman who prevails on fully aligned claims under both the Jones
Act and the unseaworthiness rubric may be awarded prejudgment
interest. For example, some courts of appeals have held that a
seaman is not entitled to prejudgment interest when he prevails on
parallel Jones Act and unseaworthiness claims. See Petersen, 784
F.2d at 741; see also Wyatt v. Penrod Drilling Co., 735 F.2d 951,
956 (5th Cir. 1984) (noting that "[i]f the court may not award
prejudgment interest on the Jones Act claim, there is no separate
pure admiralty item on which to allow interest" (internal
alteration and citation omitted)). The Second Circuit has viewed
the matter differently. When a seaman prevails on both Jones Act
and unseaworthiness claims and there are no exceptional
circumstances militating against an award of prejudgment interest,
that court has held that the seaman is entitled to prejudgment
interest on the total amount of the award. See Magee v. U.S.
Lines, Inc., 976 F.2d 821, 822 (2d Cir. 1992). That rule is
preferable, the court reasoned, because it permits the plaintiff
to "be paid under the theory of liability that provides the most
complete recovery." Id.- 16 -
It is in this stormy sea that we must anchor our
analysis. Moneypenny, though, attempts to circumnavigate the
issue entirely. It claims that the district court's damages award
was based solely on a finding of Jones Act negligence and, thus,
cannot bear the weight of prejudgment interest. The record belies
this claim.
In its separate written order awarding prejudgment
interest, the district court explicitly found that Nevor was
entitled to prejudgment interest because the damages award was, at
least in part, under general maritime law (that is, for
unseaworthiness). The language of the district court's earlier
rescript supports this characterization. There, the court found
that Moneypenny's failure to apply a non-skid product to the Odd
Job's slippery side "made the [boat] unseaworthy and substantially
contributed to" Nevor's injuries. Nevor, 2016 WL 183906, at *5.
Additionally, the court found that Moneypenny's failure either to
provide proper training to its crew or to implement appropriate
safety procedures rendered both the Vesper and the Odd Job
unseaworthy and further contributed to Nevor's injuries. See id.The district court's conclusion that the damages award
was based in part on a finding of unseaworthiness was not clearly
erroneous. To begin, a district court's characterization of its
own findings is entitled to some deference. See Martha's Vineyard
Scuba Headquarters, Inc. v. Unidentified, Wrecked & Abandoned
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Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987) (acknowledging
the "special role played by the writing judge in elucidating the
meaning and intendment of an order which he authored"). The court
below, sitting without a jury, was entitled to weigh the evidence
and to draw reasonable inferences. See Reliance Steel, 880 F.2d
at 576-77. In the circumstances of this case, we conclude, without
serious question, that the damages award was a "mixed" award.
Struggling to right a sinking ship, Moneypenny asserts
that even if the lack of non-skid product rendered the Odd Job
unseaworthy, the record does not establish that this particular
unseaworthiness contributed to Nevor's injuries. We need not probe
this point too deeply because, even assuming (albeit without
deciding) that Moneypenny's assertion may have some force, it would
not change our conclusion. The district court's findings regarding
Moneypenny's failure to provide proper training and to implement
appropriate safety procedures are well-documented, and those
findings are alone sufficient to show that the damages award was
based at least in part on a viable theory of unseaworthiness. See
Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 427 (1959)
(explaining that "[u]nseaworthiness extends not only to the vessel
but to the crew"); Cape Fear, Inc. v. Martin, 312 F.3d 496, 500
(1st Cir. 2002) (explaining that procedures crewmembers employ may
render ship unseaworthy).
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Having established that the damages award straddles both
a successful Jones Act claim and a successful unseaworthiness
claim, we turn to Moneypenny's contention that the presence of the
Jones Act claim poisons the well and precludes an award of
prejudgment interest. We assume for argument's sake — but do not
decide — that a successful Jones Act claim, standing alone, would
not bear prejudgment interest. Even so, we reject Moneypenny's
contention. We hold that when a court, in a bench trial, awards
damages based on mixed Jones Act and unseaworthiness claims,
prejudgment interest is available.7 We explain briefly.
To begin, we lay to rest a diversion. Moneypenny asserts
that our analysis is controlled by the Supreme Court's decision in
Miles v. Apex Marine Corp., 498 U.S. 19 (1990). There, the Court
considered whether the estate of a deceased seaman could recover
the seaman's future lost earnings under general maritime law. See
id. at 21. The Court observed that even if it were to create an
exception to the traditional rule that unseaworthiness claims do
not survive a seaman's death, it would nevertheless bar the
recovery of the deceased seaman's lost wages because the Jones Act
— which does include a limited survival right — already prohibits
such a recovery. Thus, there was no principled basis for expanding
7
We take no view as to the appropriate interest rate to be
applied. The court below borrowed the Rhode Island state rate for
prejudgment interest in tort actions, see R.I. Gen. Laws § 9-21-
10, and Moneypenny has not contested the court's use of that rate.
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the remedies available in a general maritime action based on strict
liability. See id. at 33-36.
The case at hand, however, is a different kettle of fish.
The Miles plaintiff wanted the Court to create a general maritime
law remedy that was previously unavailable. Here, however, Nevor
seeks to have us retain a remedy — prejudgment interest on damages
awarded in connection with admiralty torts — that was available
long before the passage of the Jones Act. See City of Milwaukee
v. Cement Div., Nat'l. Gypsum Co., 515 U.S. 189, 195 & n.7, 196
(1995). Seen in this light, this case fits much more closely with
Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), in which
the Court concluded that the passage of the Jones Act did not
implicitly deprive plaintiffs of their longstanding right to
recover those damages historically available under general
maritime law. See id. at 408 (holding that the Jones Act did not
preclude plaintiffs from seeking punitive damages in combined
Jones Act and general maritime law cases); id. at 420 (noting that
"[u]nlike the situation presented in Miles, both the general
maritime cause of action . . . and the remedy . . . were well
established before the passage of the Jones Act").
With this potential distraction laid to rest, we return
to the question of whether the intertwining of Jones Act and
unseaworthiness claims precludes Nevor from any access to
prejudgment interest. We approach this conundrum mindful that
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"prejudgment interest traditionally has been considered part of
the compensation due plaintiff." Osterneck v. Ernst & Whinney,
489 U.S. 169, 175 (1989). The "essential rationale for awarding
prejudgment interest is to ensure that an injured party is fully
compensated for its loss," and "[f]ull compensation has long been
recognized as a basic principle of admiralty law." City of
Milwaukee, 515 U.S. at 195-96. Put simply, an award of prejudgment
interest helps achieve the laudable goal of making an injured
plaintiff whole. See id. at 196. It follows that adopting
Moneypenny's grudging approach to prejudgment interest would
prevent many prevailing plaintiffs from recovering damages
generally considered part of their due compensation. See
Osterneck, 489 U.S. at 175.
To be sure, a plaintiff who recovers damages for a
general maritime law claim, such as an unseaworthiness claim, may
lose his right to prejudgment interest if "exceptional
circumstances" make an award of interest inequitable. City of
Milwaukee, 515 U.S. at 194-95 (citation omitted). Such
circumstances might include, say, undue delay by the prevailing
party, exorbitant overestimation of damages, or bad faith. See
Anderson v. Whittaker Corp., 894 F.2d 804, 809 (6th Cir. 1990)
(citation omitted); Alkmeon Naviera, S.A. v. M/V Marina L, 633
F.2d 789, 797-98 (9th Cir. 1980) (collecting cases). But the
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record here evinces no such disabling circumstance: Nevor has
prosecuted his case forcefully, but not unreasonably so.8
Even though our court has not decided the precise
question with which we are confronted, a persuasive analogy exists.
We have held that when a plaintiff raises claims under parallel
causes of action (both federal and state, for example) and receives
a damages award straddling both of those fully aligned claims, the
defendant may not cite the presence of a more restricted remedy on
one claim to deny the plaintiff a more expansive remedy on the
other claim. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121,
146 (1st Cir. 2009) (explaining that "a successful plaintiff's
right to a particular remedy under federal law does not trump his
right to a more advantageous remedy under state law"). Thus,
"[w]hen federal and state claims overlap, the plaintiff may choose
to be awarded damages based on state law if that law offers a more
generous outcome than federal law." Id.; accord Freeman v. Package
Mach. Co., 865 F.2d 1331, 1345 (1st Cir. 1988) (noting that
although a prevailing plaintiff in such a situation is "entitled
8 The mere fact that Nevor elected to sue simultaneously under
both the Jones Act and general maritime law is not itself an
exceptional circumstance. See McAllister v. Magnolia Petrol. Co.,
357 U.S. 221, 224-25 (1958) (explaining that if a seaman "is to
sue for both unseaworthiness [under general maritime law] and Jones
Act negligence, he must do so in a single proceeding" and that
such an injured seaman will "rarely forego" his right to seek
relief under both causes of action).
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to only a single slice of the pie[,] . . . the choice of the slice
[is] his").
This same paradigm seems altogether appropriate where,
as here, a plaintiff has prevailed on fully aligned Jones Act and
unseaworthiness claims. After all, the plaintiff is entitled to
interest on the unseaworthiness claim and there is no logical
reason why his broader success should strip him of that
entitlement.
There is yet another leg to our voyage. Although we
hold that the district court was correct in awarding some
prejudgment interest (due to the successful unseaworthiness
claim), we nonetheless agree with Moneypenny that the court went
too far: in fashioning an award of prejudgment interest, the court
should first have set to one side the damages attributable to
future harm.
In this circuit, the law is well-established that
"prejudgment interest should not be awarded on damages for future
loss, either liquidated or unliquidated." Borges, 935 F.2d at
444-45 (collecting cases). This is a reflection of the commonsense
notion that interest should not accrue before the harm itself has
occurred. See id. at 445.
The law of the circuit doctrine requires this court (and,
by extension, all lower courts within this circuit) to respect, in
the absence of supervening authority, the decisions of prior panels
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on the same issue. See San Juan Cable LLC v. P.R. Tel. Co., 612
F.3d 25, 33 (1st Cir. 2010). "Once we have decided a legal question
and articulated our reasoning, there is usually no need for us to
repastinate the same soil when another case presents essentially
the same legal question." Vander Luitgaren v. Sun Life Assur. Co.
of Canada, 765 F.3d 59, 61 (1st Cir. 2014). Although there are a
few exceptions to this rule, see San Juan Cable, 612 F.3d at 33(describing narrow exceptions to law of the circuit doctrine),
none applies here. We conclude, therefore, that the district court
was bound to follow Borges, and its failure to do so constitutes
reversible error.9 Prejudgment interest must be limited to items
of loss that were in the rear-view mirror at the time of the
damages award and the concomitant entry of judgment (e.g., wages
and earning capacity already lost, pain and suffering already
experienced, and the like). Correspondingly, the award of
prejudgment interest must omit items of loss not yet accrued as of
that date (e.g., future loss of wages and earning capacity, future
pain and suffering, and the like). On remand, the district court
9 At oral argument, Nevor insisted that our opinion in Rivera
v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972), supports
his receipt of prejudgment interest on damages for future harms.
This is magical thinking: Rivera held that trial judges have
discretion to award prejudgment interest in some cases, but it did
not address the propriety of awarding such interest with respect
to damages for future harms. See id. at 976.
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must reformulate its award of prejudgment interest in accordance
with these principles.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the damages award; affirm the award of prejudgment
interest in part and reverse it in part; and remand for the entry
of an amended judgment, nunc pro tunc, consistent with this
opinion. The amended judgment shall, of course, carry post-
judgment interest at the federal rate, see 28 U.S.C. § 1961(a),
which will commence to run (by virtue of the nunc pro tunc
provision) from the date of the original judgment, see Fiorentino
v. Rio Mar Assocs. LP, SE, 626 F.3d 648, 652 (1st Cir. 2010).
Affirmed in part, reversed in part, and remanded. Two-thirds costs
shall be taxed in favor of the plaintiff.
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