Benjamin Hines, Jr. v. Triad Marine Center, Incorporated , 487 F. App'x 58 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1052
BENJAMIN G. HINES, JR.,
Plaintiff - Appellee,
v.
TRIAD MARINE CENTER, INCORPORATED, d/b/a Boats Unlimited NC;
JOHN BANISTER HYDE,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, District
Judge. (4:09-cv-00003-BR)
Argued: May 15, 2012 Decided: July 9, 2012
Before DAVIS and KEENAN, Circuit Judges, and James R. Spencer,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Davis and Judge Spencer joined.
ARGUED: Burley B. Mitchell, Jr., WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Raleigh, North Carolina; Julius Holman Hines, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, Charleston, South Carolina, for
Appellants. Stevenson Lee Weeks, Sr., WHEATLY, WHEATLY, WEEKS &
LUPTON, PA, Beaufort, North Carolina; Charles R. Hardee, HARDEE
& HARDEE, Greenville, North Carolina, for Appellee. ON BRIEF:
Mary C. Adams, James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Winston-Salem, North Carolina; John T. Pion, L.
Lawson Johnston, PION, JOHNSTON, NERONE, GIRMAN, CLEMENTS &
SMITH, PC, Pittsburgh, Pennsylvania, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this maritime personal injury case, Triad Marine Center,
Inc. (Triad Marine), and its employee, John Banister Hyde
(collectively, the defendants) appeal from the district court’s
judgment awarding more than $10 million in damages to Dr.
Benjamin G. Hines, Jr. The district court’s judgment was based
on injuries Hines suffered during a sea trial of a boat offered
for sale by Triad Marine. The defendants assert that the court
committed clear error in concluding that they breached the
standard of care, and in determining damages based in part on
the court’s finding that Hines no longer can engage in any
gainful employment. The defendants also argue that their
substantial rights were affected by the exclusion of evidence
regarding Hines’ disability insurance income, and that the court
abused its discretion by applying the North Carolina statutory
interest rate in the calculation of prejudgment interest. We
disagree, and hold that the district court neither committed
clear error nor abused its discretion. Accordingly, we affirm
the district court’s judgment.
I.
On March 20, 2006, Hines, a urologist who owns a
condominium in Beaufort, North Carolina, was shopping for a boat
3
in New Bern, North Carolina. 1 Hines and his wife owned a small
flat-bottomed skiff, but they were looking for a larger boat
that would provide a more comfortable ride and would minimize
the “splash” they experienced during their boat outings.
Accordingly, Hines visited Triad Marine and spoke with one of
its employees, Hyde. Based on Hines’ description of his needs,
Hyde recommended that Hines consider purchasing a Triton model
2286. Hines requested a sea trial of the vessel, and Hyde
agreed to bring the boat to Beaufort the following day.
Later that night, the National Weather Service issued a
small craft advisory for the area, including Beaufort, effective
from 5:00 a.m. on March 21 through the afternoon of the
following day. 2 Nevertheless, Hyde brought the boat to Beaufort,
where Hines and his friend, Neil Wagoner, who previously had
purchased a boat from Triad Marine, boarded the Triton. From
Beaufort, Hines drove the boat in a southeast direction toward
Shackleford Banks. On the inland side of Shackleford Banks,
1
We describe the facts in this case in the light most
favorable to Dr. Hines, the prevailing party in the district
court. See F.C. Wheat Mar. Corp. v. United States, 663 F.3d
714, 723 (4th Cir. 2011) (applying standard in admiralty case).
2
On the east coast of the United States, from Maine to
South Carolina, the National Weather Service issues a small
craft advisory when sustained winds or frequent gusts are
expected to range between 25 and 33 knots, or waves are expected
between five and seven feet or greater.
4
where the waves were only about one foot high, Hines brought the
boat to “planing speed.” 3
In order to achieve planing speed, Hines found that he had
to attain speeds of about 20 miles per hour. Further, after
reaching this speed, he observed that the boat began
“porpoising,” that is, the bow of the boat repeatedly dipped and
rose during travel. When he had encountered porpoising during a
sea trial in the past, Hines relinquished control of the boat to
the salesman who had accompanied him. Accordingly, in the
present sea trial, after experiencing the boat move in this
manner, Hines asked Hyde to demonstrate the proper way to handle
the boat.
As Hyde assumed the boat’s controls, Hines moved aside,
holding onto the “T-top” frame that surrounded the vessel’s
center console. With his left hand grasping the handle of the
frame’s vertical support, and his right hand holding onto the
top of the frame, Hines was able to observe Hyde operating the
boat. Once in control of the vessel, Hyde again brought the
boat to planing speed.
The return trip took the party north of Beaufort Inlet. At
this time, four-foot waves from the ocean were moving through
3
Planing speed is the velocity at which an accelerating
ship’s hull rises to the top of the water’s surface.
5
the inlet, and wind was blowing from the north at a speed of
between 20 and 25 miles per hour. Without providing any
warning, Hyde turned the boat directly into the oncoming waves
passing through the inlet. Hyde then accelerated in a southerly
direction, and struck an oncoming wave “head-on” that was
between five and six feet in height.
As the wave passed beneath the boat, the bow lost contact
with the water and rose into the air. Immediately thereafter,
the bow “slammed back down,” causing Hines to strike his head on
the underside of the T-top. At this time, Hines fell to the
deck, injuring both his ankles. Hyde had not warned the
passengers about the oncoming wave, or of its potential to
affect the boat’s movement.
Upon the boat’s return to the dock in Beaufort, an
ambulance transported Hines to a nearby hospital. At the
hospital, Hines learned that he had sustained a bimalleolar
fracture to his left ankle, and a less severe injury to his
right ankle. After receiving initial treatment at the hospital,
Hines received additional medical care from Dr. Deanna M.
Boyette, who performed surgery on his left ankle. Because Hines
continued to complain of chronic pain in his left ankle, Dr.
Boyette also referred Hines to Dr. Ronald M. Long for pain
management.
6
Based on Hines’ previous experience with pain medicines,
Dr. Long prescribed Percocet, a medication containing a
combination of acetaminophen and oxycodone, an opioid. Hines
later reported experiencing cognitive impairment, which is a
potential side effect of opioid use. Also, despite taking this
medication, Hines reported that he was experiencing continuing
chronic pain. Hines has continued to consult with Dr. Long
regarding this ankle pain between two and four times per year.
Because of this pain, and Hines’ intake of opioids and their
effect on his cognitive functions, Hines has withdrawn from the
practice of medicine.
In January 2009, Hines filed a complaint under the
admiralty jurisdiction of the district court, alleging one cause
of action in negligence against Hyde and Triad Marine. After a
four-day bench trial, the district court concluded that Hyde was
negligent in his operation of the Triton, and that his
negligence was imputed to Triad Marine, as Hyde’s employer. The
court also determined that Hines had a 20 percent permanent
partial impairment with respect to his left ankle, which,
together with his chronic pain and use of narcotics medication,
prevented him from engaging in any gainful employment.
Accordingly, the court entered judgment in the amount of
$10,397,291.58, jointly and severally, against Hyde and Triad
Marine. Included in this award were $900,000 in compensatory
7
damages for future pain and suffering, and $3,320,995.58 in
prejudgment interest, which the court determined by using the
North Carolina statutory interest rate of eight percent. The
defendants timely appealed from the district court’s judgment.
II.
The defendants raise four challenges on appeal. First,
they contend that the district court erred in finding that Hyde
violated the standard of care applicable to a boat operator when
piloting the Triton in Beaufort Inlet. Second, the defendants
argue that the court clearly erred in concluding that Hines was
totally disabled and was entitled to significant damages for
lost wages and for future pain and suffering. Third, the
defendants assert that the court committed reversible error by
limiting their cross-examination regarding Hines’ receipt of
disability income. Fourth, the defendants contend that the
court abused its discretion in using the North Carolina
statutory interest rate in fixing the amount of prejudgment
interest. We address these issues in turn.
A.
We first consider the issue whether the district court
erred in concluding that the defendants violated the standard of
care applicable to a boat operator. In particular, the court
found that Hyde was negligent in failing to reduce the speed of
8
the boat when necessary, and in failing to navigate properly the
waves in Beaufort Inlet.
In reviewing a district court’s factual findings, we
examine the record for clear error, viewing the evidence in the
light most favorable to the prevailing party in the district
court. Martin v. Harris, 560 F.3d 210, 217 (4th Cir. 2009). In
admiralty cases, issues of negligence are treated as factual
issues, and therefore, are subject to the clearly erroneous
standard of review. Id.“It is axiomatic that credibility choices and the
resolution of conflicting testimony are within the province of
the court sitting without a jury,” and are subject to review
only under the clear error rule of Fed. R. Civ. P. 52(a). Parks
v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154, 159 (5th Cir.
1983) (quotation marks omitted) (applying standard in admiralty
case). A finding is clearly erroneous when, although there is
evidence to support the finding, the reviewing court considering
all the evidence is “left with a definite and firm conviction
that a mistake has been committed.” Evergreen Int’l, S.A. v.
Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008).
The defendants contend that present record contains no
evidence, expert or otherwise, establishing a breach of the
standard of care. We disagree.
9
Both Hines and his expert witness, Captain Donald Davis,
provided evidence from which the district court could conclude
that the defendants breached the standard of care. Using data
gathered from a buoy located close to the Beaufort Inlet, Davis
determined that waves in the area of Hines’ accident varied
between four and five feet in height at the time the accident
occurred. Davis also testified that, given the wind conditions
and the geography of the inlet, the interval of time between
waves would have shortened as the Triton approached the area of
the accident. Davis opined that under these conditions, vessels
of the size and configuration of the Triton should have
proceeded at idle speed and have approached the oncoming waves
at an angle. Davis further concluded that the act of operating
the boat at speeds between 15 and 20 miles per hour “straight
over” a wave constituted a failure to exercise due care.
In challenging Davis’ conclusion, the defendants focus on a
single statement that Davis made during cross-examination.
During their questioning, the defendants asked Davis whether he
still would have concluded that Hyde failed to exercise due care
if Hines had not suffered an injury. Davis replied, “[P]robably
not.”
When the defendants raised this issue before the district
court, the court observed that the defendants successfully had
elicited testimony from Davis that, absent the injury, he would
10
not have concluded that Hyde had failed to exercise due care.
However, the court further observed that Davis had rehabilitated
his testimony by opining that all the factors involved,
including Hyde’s navigation of the Triton under the prevailing
conditions, contributed to his conclusion that Hyde breached the
applicable standard of care.
We hold that Davis’ expert opinion, when considered
together with Hines’ testimony, provided sufficient evidence to
support the district court’s conclusion that the defendants
breached the standard of care. Hines testified regarding the
height of the waves, the orientation of the vessel relative to
the oncoming waves, and the porpoising that caused the bow of
the Triton to leave the surface of the water. Additionally,
Davis testified that in view of the conditions present during
the small craft advisory, the proper operation of a vessel the
size of the Triton required that the boat be operated at idle
speed and approach oncoming waves at an angle. Given this
testimony, we cannot say that we are “left with a definite and
firm conviction that a mistake has been committed.” Id. at 308.
B.
The defendants next raise a number of challenges to the
district court’s findings regarding Hines’ damages. The
defendants contend that the evidence did not establish that
Hines was unable to return to work, and that objective evidence
11
in the record clearly refuted the court’s finding that he was
totally disabled. The defendants also maintain that Hines
failed to mitigate his damages, and challenge the court’s
determination concerning Hines’ pain and suffering.
1.
The defendants advance three reasons to support their
contention that the district court clearly erred in concluding
that Hines was unable to return to work. The defendants assert
that the medical evidence established that Hines’ ankle had
healed, that Hines provided insufficient evidence of his
continuing pain, and that the court did not give sufficient
weight to a surveillance video, which showed Hines engaging in
various post-injury activities. We find no merit in these
arguments.
First, although Dr. Boyette testified that Hines’ ankle had
healed from the original trauma he sustained, she nevertheless
concluded that Hines’ left ankle has a 20 percent permanent
impairment as a result of his injury. Therefore, the evidence
supported the district court’s conclusion that Hines suffers
from a disability that will never completely “heal.” The court
further found that in addition to the permanent structural
damage to Hines’ left ankle, his disability also is based on the
continuing pain he has suffered as a result of the injury.
Although the defendants produced evidence from other witnesses
12
expressing contrary opinions regarding the permanent nature of
Hines’ injury, the district court acted within its discretion in
crediting the testimony of Hines’ experts over that of the
defendants’ experts.
Second, Hines’ inability to return to work was supported by
his own testimony concerning his degree of pain and suffering.
Contrary to the defendants’ suggestion, this type of testimony
is not inherently weak simply because it rests on an injured
party’s own subjective assessment of pain. Such an assessment
necessarily is subjective and defies any objective means of
measurement. Further, Hines’ pain management expert, Dr. Long,
testified that Hines will require pain management for the rest
of his life, that opioids were the only form of medication that
provided Hines sufficient relief, and that Hines’ pain would
progressively worsen. Although the defendants produced
testimony from other witnesses that, if believed, would have
undermined this testimony from Dr. Long and Hines, such issues
of credibility were properly resolved by the district court as
the finder of fact.
The defendants argue, nonetheless, that certain
surveillance footage taken of Hines after the accident shows
that the district court clearly erred in determining that Hines
is totally disabled. Citing our decision in Nicholson v. Mullis
Engineering & Manufacturing Co., 315 F.2d 532 (4th Cir. 1963),
13
the defendants assert that the objective nature of the
surveillance footage justifies a relaxation of the usual
deference that we accord to a district court’s factual findings,
including the district court’s conclusion here that Hines is
totally disabled.
The defendants’ argument is unpersuasive, however, because
it essentially asks us to reweigh one piece of evidence and to
afford it more weight than did the district court. After
considering all the evidence, the district court determined that
Hines’ disability results from his chronic ankle pain, which can
be managed effectively only by the use of narcotics. Moreover,
the surveillance video does not undermine this conclusion,
because the video fails to demonstrate that the activities
recorded could not have been performed by a person having
chronic ankle pain who must rely on the use of narcotics to
manage that pain. Therefore, based on our review of the record,
we are not “left with a definite and firm conviction that a
mistake has been committed” with regard to the district court’s
disability determination. Evergreen Int’l, 531 F.3d at 308.
Accordingly, we conclude that the district court did not clearly
err in determining that Hines’ injury, pain, and necessary
medications prohibit him from pursuing gainful employment.
14
2.
The defendants also challenge the district court’s decision
awarding Hines $900,000 in compensatory damages for future pain
and suffering. They contend that this award was clearly
erroneous because it was not based on sufficient medical
evidence. We disagree with the defendants’ argument.
As described above, Dr. Boyette testified that Hines has a
20 percent permanent impairment of his left ankle, and Dr. Long
testified that Hines’ pain resulting from that injury will
increase progressively in the future. Therefore, Hines
presented evidence sufficient to support the district court’s
conclusion that he will continue to experience pain and
suffering.
The defendants argue, however, that the amount of the
court’s award for future pain and suffering exceeds the bounds
of reason and is punitive in nature. We are not persuaded by
this argument.
Trial courts retain “great latitude” in assessing the
proper amount of damages that should be awarded to an injured
party. Parks, 712 F.2d at 160. An award for pain and suffering
necessarily depends in large measure on the trial court’s
observations of the witnesses and the court’s credibility
determinations regarding their testimony. Id. On the record
before us, we cannot conclude that the district court committed
15
clear error in awarding Hines $900,000 for future pain and
suffering.
3.
The defendants also argue that the district court committed
clear error in its award of damages, because the evidence showed
that Hines failed to mitigate his damages. The defendants
contend that undisputed medical evidence showed that Hines could
alleviate some of his pain by losing weight and by using his
cane in a different manner. These remedial actions, the
defendants contend, could minimize the stress on Hines’ ankle,
possibly to the extent that he would no longer require narcotics
for pain management. The defendants assert that without the
cognitive impairment caused by narcotics, Hines may be able to
resume gainful employment.
We reject this argument, because it is purely speculative
in nature. There is no evidence in the record to support the
defendants’ contention that if Hines took the steps they
suggest, his pain would decrease to a level that he would no
longer require the use of narcotics.
C.
The defendants also contend that the district court
committed reversible error in barring them from cross-examining
Hines about the income he receives from disability insurance.
We disagree.
16
We examine the district court’s evidentiary ruling for
abuse of discretion. United States v. Cole, 631 F.3d 146, 153
(4th Cir. 2011). Before trial, Hines requested that the
district court prohibit the admission of evidence of payments
from collateral sources. The defendants responded that they
sought to introduce evidence of Hines’ income received from
disability insurance to challenge his credibility, rather than
to show that he was receiving income from other sources as a
result of his injury. The defendants argued that such evidence
would show that Hines had no incentive to return to the practice
of medicine.
With respect to the motion in limine, the district court
observed that “it’s pretty clear that evidence by defendant[s]
of collateral source payments are not permissible.”
Nevertheless, the court allowed the defendants to cross-examine
Hines about the information he provided on his disability
insurance application. In sustaining Hines’ objection to the
defendants’ attempt to question him about income he received
from such insurance, the court ruled that the defendants “can go
into what he made on the applications, but what he’s getting [in
the form of insurance proceeds] is irrelevant.”
The defendants were permitted to question Hines regarding
his multiple insurance policies, and they did so. The only
restriction imposed on the defendants’ questioning was their
17
ability to inquire about the actual amounts Hines was being paid
based on his insurance policies. Under these circumstances, we
conclude that the district court did not abuse its discretion in
limiting the defendants’ cross-examination in this regard.
D.
The district court, in an exercise of its discretion,
applied the North Carolina statutory rate of eight percent 4 in
calculating its award of prejudgment interest. The defendants
argue that the court’s application of this rate was unfairly
punitive, and that, compared to the prevailing market rate of
interest during the time period covering this award, the use of
the North Carolina rate resulted in a windfall for Hines.
We review an award of prejudgment interest for abuse of
discretion. Jauch v. Nautical Servs., 470 F.3d 207, 214 (5th
Cir. 2006) (applying standard in admiralty case). “The award of
prejudgment interest in admiralty cases rests within the sound
discretion of the district court.” Ameejee Valleejee & Sons v.
M/V Victoria U., 661 F.2d 310, 313-14 (4th Cir. 1981).
Under maritime law, an award of prejudgment interest is
“the rule rather than the exception, and, in practice, is well-
4
This interest rate is set forth in N.C. Gen. Stat. § 24-1,
which provides that “[t]he legal rate of interest shall be eight
percent (8%) per annum for such time as interest may accrue, and
no more.”
18
nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966
F.2d 820, 828 (4th Cir. 1992) (quoting Reeled Tubing, Inc. v.
M/V Chad G, 794 F.2d 1026, 1029 (5th Cir. 1986)). In setting
the proper rate of prejudgment interest, admiralty courts “have
broad discretion and may look to state law or other reasonable
guideposts indicating a fair level of compensation.” Todd
Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 753 (5th
Cir. 1985) (applying Louisiana statutory rate); see
also Ameejee, 661 F.2d at 313-14 (“district courts are not bound
by state statutory maximums in setting the rate of prejudgment
interest in admiralty cases”).
The defendants cite a number of cases from around the
country in which our sister circuits have reversed awards of
prejudgment interest. See, e.g., Ohio River Co. v. Peavey Co.,
731 F.2d 547, 549-50 (8th Cir. 1984). However, such reversals
generally have occurred because the district courts failed to
provide adequate reasoning for the rates selected. See id.Other appellate decisions have vacated trial courts’ use of
certain interest rates because the methods of calculating the
rates were unsound. See, e.g., First Nat’l Bank of Chicago v.
Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir. 1999).
In the present case, the district court, located in North
Carolina and hearing a personal injury case arising within its
admiralty jurisdiction, expressly elected to employ the North
19
Carolina statutory rate. We decline to hold that such an
election constitutes an abuse of discretion.
The defendants assert, nevertheless, that the district
court’s determination was inconsistent with other calculations
made by the court, creating a discrepancy that constituted an
abuse of discretion. The defendants argue that the court’s use
of an eight percent rate for the prejudgment interest award
cannot be reconciled with the court’s use of a 4.11 percent rate
when arriving at the “present value” determination regarding
amounts of damages to be incurred in the future. We disagree
with the defendants’ argument.
In reaching its “present value” determination, the district
court adopted the damages calculation presented by Hines’ expert
witness. It was only in this manner that the court employed the
4.11 percent rate. The court’s adoption of that witness’
calculations does not render invalid the court’s independent
election of the statutory rate for the assessment of prejudgment
interest. Additionally, the determination of the 4.11 percent
discount rate, to convert future dollars into present dollars,
involved a fundamentally different task than the one of
assessing interest on dollars remaining within the defendants’
control from the date of the accident. Accordingly, we hold
that the district court did not abuse its discretion by
20
employing two different interest rates in making the two
distinctly different types of calculations.
III.
In conclusion, we hold that the district court did not
clearly err with respect to any of its factual findings or its
awards of damages. We also conclude that the district court did
not abuse its discretion with regard to its evidentiary rulings,
or by using the North Carolina statutory interest rate in
calculating the court’s award of prejudgment interest.
Accordingly, we affirm the district court’s judgment.
AFFIRMED
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