Marceaux v. Conoco, Inc ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-30843.
Leroy J. MARCEAUX, Plaintiff-Appellee,
v.
CONOCO, INC., Defendant-Appellant.
Oct. 13, 1997.
Appeal from the United States District Court for the Western
District of Louisiana.
Before DeMOSS and DENNIS, Circuit Judges, and LEE, District Judge*.
DENNIS, Circuit Judge:
Alleging Jones Act negligence pursuant to 46 U.S.C.App. § 688
and unseaworthiness under the general maritime law, the
plaintiff-appellee, Leroy J. Marceaux, brought this suit against
his employer, Conoco, Inc., the defendant-appellant herein, for
injuries he sustained while working aboard the M/V LAKE CHARLES, a
vessel owned and operated by Conoco. Following a trial on the
merits, a jury returned a verdict in favor of Mr. Marceaux finding
that the defendant had been negligent under the Jones Act, that the
vessel had been unseaworthy and that both had been a legal cause of
injury to the plaintiff. In addition, the jury found that the
plaintiff had not been contributorily negligent under either a
Jones Act negligence or an unseaworthiness standard. A judgment
*
District Judge of the Southern District of Mississippi,
sitting by designation.
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was duly entered in the plaintiff's favor. The defendant has
appealed the judgment for the plaintiff on the following grounds:
(1) that the district court erred in allowing the plaintiff's
expert, Dr. Gary Nelson, to testify at trial, (2) that the evidence
was insufficient to support a verdict of Jones Act negligence or
unseaworthiness, and (3) that the district court committed
reversible error when it refused to instruct the jury as to the
plaintiff's alleged additional duty to make the work place safe or
to inspect the premises. Finding no error, we affirm the judgment
of the district court.
Background
Prior to the accident which gave rise to this litigation, the
plaintiff-appellee, Leroy Marceaux, was employed by the
defendant-appellant, Conoco, Inc., as a pilot/wheelman aboard the
M/V LAKE CHARLES. The M/V LAKE CHARLES, which is owned by Conoco,
is a "pushboat" and is utilized in pushing barges carrying oil and
gas products back and forth from oil refineries and facilities
within the Louisiana-Texas Gulf region. On May 21, 1993, the date
of the accident in question, the M/V LAKE CHARLES was docked at
Westlake, Louisiana after pushing two barges loaded with an oil
by-product, carbon black, from Port Arthur, Texas.
Once docked, it became necessary for the crew of the M/V LAKE
CHARLES to off-load the carbon black onto the dock. The
off-loading operation was a two man job in which the vessel's
tankerman, Mike Fruge, was in charge. Marceaux was assigned to
assist Fruge in preparing the barges and then off-loading the
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carbon black from the out-bound barge to the in-bound barge and
then onto the dock. In preparing the barges for off-load, Marceaux
and Fruge had to connect a number of large heavy crossover hoses to
facilitate pumping the product off the barge. During the
preparation, Fruge directed Marceaux to pick up one of the
crossover hoses and maneuver it into the proper position for
connection to a flange. When Marceaux attempted to pick up the
hose he felt a sharp pain in the lower part of his back, groaned,
and then fell to his knees. He then needed the help of his
shipmate to reach his feet. Marceaux had injured his back while
attempting to lift the hose and later learned that he had in fact
ruptured two disks.
Following the May 21, 1993 accident, Marceaux filed the
instant complaint alleging that he was entitled to recover for his
back injury under two theories of liability, viz. the Jones Act
and/or the general maritime law of unseaworthiness. Conoco
asserted various defenses to the suit including that the accident
did not occur and that, alternatively, Marceaux's own negligence
had caused his injury.
A jury trial ensued. At trial, the plaintiff described how,
during his attempt to lift the crossover hose, his back was injured
and the extent of those injuries. Marceaux stated that, while he
had been taught proper lifting procedures, he had never been
instructed not to lift something as heavy as the crossover hose
without mechanical or manual assistance. Moreover, he informed the
jury that he had been attempting to lift the heavy hose pursuant to
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the direction of Tankerman Fruge who was in charge of the
operation. Subsequently, Marceaux's testimony concerning Tankerman
Fruge's authority over the off-loading procedure was corroborated
by Larry Morrow, a former Conoco employee. In addition to these
witnesses, Marceaux called one expert, Dr. Gary Nelson, in support
of the liability portion of his case. Dr. Nelson testified that
Conoco had been negligent in its training of Marceaux because it
failed to instruct him not to lift any object weighing as much as
the crossover hose without consulting with management first or how
the crossover hose's weight correlated with the lifting procedures
he had been taught. Prior to trial, Conoco had sought, through a
motion in limine, to have Dr. Nelson's expert testimony excluded on
the grounds that his testimony would not be helpful to the jury and
was thus inadmissible. Fed.R.Evid. 702. The motion was denied.
At trial, the plaintiff, after a voir dire of Dr. Nelson's
qualifications by both sides, tendered Dr. Nelson as an expert in
safety with an expertise in workplace lifting. The defendant did
not object to Dr. Nelson's qualifications or testimony at trial.
After a five day trial, the jury returned a verdict in favor
of Marceaux. After finding that an accident had occurred on May
21, 1993, the jury determined that Conoco had been negligent under
the Jones Act, that such negligence had been a legal cause of
Marceaux's injury and that Marceaux had not been contributorily
negligent under the Jones Act. Additionally, in answers to
separate interrogatories, the jury held that the M/V LAKE CHARLES
was unseaworthy, that the unseaworthiness had been a legal cause of
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injury to the plaintiff and that the plaintiff had not been
contributorily negligent under the general maritime law. A
judgment was entered in favor of Marceaux and this appeal followed.
Analysis
1. Dr. Gary Nelson—Plaintiff's Expert Witness
Conoco contends that the district court committed manifest
error in permitting the plaintiff's expert, Dr. Gary Nelson, to
testify at trial. Dr. Nelson was tendered by the plaintiff, and
accepted by the district court, as an "expert in safety with an
expertise in workplace lifting." R. Vol. 8, p. 19. His testimony
consisted of explaining to the jury the nature of workplace safety
engineering, an evaluation of the defendant's training procedures
in regard to lifting in the workplace and why, based on studies and
his analysis, the defendant had failed to properly train Marceaux
to handle the situation he was faced with on May 21, 1993. Conoco
asserts on appeal that Dr. Nelson's testimony was within the common
knowledge of the jurors, would not have been helpful to the jurors
in determining a fact at issue, and was thus inadmissible under
Federal Rule of Evidence 702. However, the plaintiff-appellee
directs the court to the fact that the defendant-appellant did not
object to Dr. Nelson's testimony when it was offered at trial,
therefore, waiving its right to object on appeal. See Fed.R.Evid.
103(a)(1).
Conoco offers two arguments in response. First, Conoco
contends that its motion in limine seeking to exclude Dr. Nelson on
the grounds stated above, which was denied prior to trial, should
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be considered as preserving their objection to Dr. Nelson's
testimony for appellate purposes. Conoco's assertion runs contrary
to the clearly established law of this circuit. In Marcel v.
Placid Oil Co., 11 F.3d 563 (5th Cir.1994), the defendant sought to
prevent the plaintiff's expert economist from testifying through a
motion in limine which was denied prior to trial. Marcel, 11 F.3d
at 566. When the economist's testimony was proffered at trial, the
defendant did not object to his testimony and, therefore, the court
held it could not contest the district court's ruling as to the
economist on appeal. Id. (citing Fed.R.Evid. 103(a)(1)). In so
holding, the court stated that "[t]he general rule in this Circuit
is that "an overruled motion in limine does not preserve error on
appeal.' " Id. at 567 (quoting, Rojas v. Richardson, 703 F.2d 186,
189 (5th Cir.1983)); See also 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."). The reasoning behind this rule is a sound
one. A requirement of a contemporaneous objection to evidence
previously objected to gives the trial judge an opportunity to
"reconsider his in limine ruling with the benefit of having been
witness to the unfolding events at trial." United States v.
Graves, 5 F.3d 1546, 1552 (5th Cir.1993). In this case, Conoco's
failure to object at trial to Dr. Nelson's testimony when offered
cannot be salvaged by their motion in limine.
In Conoco's second argument, they assert that their
questioning of Dr. Nelson at trial about his qualifications and the
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plaintiff's objection to that line of questioning considering the
district court's prior ruling effectively "reiterated" Conoco's
objection to Dr. Nelson. This contention is without merit.
Conoco's cross-examination of Dr. Nelson's qualifications was
clearly an attack on his credibility concerning maritime accidents
and not on his ability to testify under Rule 702. In addition, the
bench conference concerning the plaintiff's objection did not, in
any way, renew the defendant's in limine objection to Dr. Nelson's
expert testimony. See Fed.R.Evid. 103(a)(1).
Notwithstanding the defendant's failure to object at trial,
we may review its objection to the admission of Dr. Nelson's
testimony for plain error. Fed.R.Evid. 103(d). Reversal for plain
error is only appropriate where the alleged error was obvious,
substantial and would result in a "miscarriage of justice" if not
corrected. Wilson, 837 F.2d at 222. The district court's
admission of Dr. Nelson's expert testimony was clearly not plain
error. Dr. Nelson provided the jury with "specialized knowledge"
concerning safe lifting practices and training procedures which
helped the jury to "understand the evidence" and "determine a fact
in issue" viz. whether Marceaux was improperly trained to handle
the situation he was confronted with aboard the M/V LAKE CHARLES.
See Fed.R.Evid. 702.
2. Was the jury's finding of unseaworthiness unsupported by the
evidence?
One of the two alternative theories of liability alleged by
the plaintiff in this action was that the M/V LAKE CHARLES was
unseaworthy and that this unseaworthiness was a legal cause of the
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plaintiff's injuries. The general maritime law places upon a
vessel owner a non-delegable duty to provide a seaman with a vessel
reasonably fit for its intended use. See Comeaux v. T.L. James &
Co., 666 F.2d 294, 298-99 (Former 5th Cir.1982); 1 Thomas J.
Schoenbaum, ADMIRALTY AND MARITIME LAW § 6-25 (2d ed. 1994). This duty
can be breached and a vessel rendered unseaworthy by an inadequate,
understaffed or ill-trained crew. Orient Mid-East Lines, Inc. v.
A Shipment of Rice, 496 F.2d 1032, 1040 (5th Cir.1974); Brown v.
Cliff's Drilling Co., 638 F.Supp. 1009, 1014 (E.D.Tex.1986); 1B
BENEDICT ON ADMIRALTY § 24 at 3-74 (7th ed. 1996).
At trial, the plaintiff's expert, Dr. Nelson, testified that
Marceaux was ill-trained for the task he was assigned to perform
aboard the M/V LAKE CHARLES. Marceaux confirmed his lack of
knowledge regarding his ability to lift the crossover hose using
the procedures he had been taught by Conoco and testified as to how
the attempted lift injured his back. In addition, there was
testimony offered as to the lack of mechanical devices to aid him
in the off-loading operation. There was clearly sufficient
evidence for the jury to find that the vessel was unseaworthy due
to an improperly trained crew and that the vessel's unseaworthy
condition was a legal cause of injury to the plaintiff. See Boeing
Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc ).
Having affirmed the jury's verdict as to unseaworthiness, we need
not address the defendant's contentions regarding the sufficiency
of the evidence supporting the jury's finding of Jones Act
negligence.
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The trial judge instructed the jury as to the defendant's
defense of contributory negligence in two separate sections of the
charge. One section addressed contributory negligence under the
Jones Act and the other under the general maritime law. The
defendant did not object to either instruction at trial and does
not object to the unseaworthiness contributory negligence charge on
appeal. Additionally, the district court provided the jury with
separate interrogatories requesting separate findings of
contributory negligence as to both the plaintiff's Jones Act and
unseaworthiness claim. See Record Excerpt 3. The jury found no
contributory negligence under either standard. Having conducted an
independent review of the district court's unseaworthiness
contributory negligence instruction, we find that it correctly
stated the law of contributory negligence under the general
maritime law, viz. ordinary prudence. Considering the trial
court's separate charge and interrogatories on contributory
negligence this court need not address the defendant-appellant's
assignment of error to the district court's Jones Act contributory
negligence charge raised in its reply brief.
3. Did the district court commit manifest error in refusing to
instruct the jury as requested by the defendant-appellant with
regard to the plaintiff's alleged duty to eliminate alleged
hazards?
Before the trial court instructed the jury in this matter the
court gave counsel for both sides an opportunity to place their
objections to the jury charges on the record. At that time, Conoco
requested that the trial court give the jury an additional
contributory negligence instruction referencing the plaintiff's
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alleged duty to make the workplace safe or to inspect the
premises.1 Conoco cited the court to Kendrick v. Illinois Central
Gulf Railroad, 669 F.2d 341 (5th Cir.1982) in support of its
request. The district court declined to add the defendant's
Kendrick charge to its standard contributory negligence
instruction. In denying the defendant's motion for a new trial,
the district court stated that it refused to give the requested
instruction because it believed that the evidence was conflicting
on this point and that such a charge would take the issue away from
the jury. Record Excerpt 5, p. 6.
We review the district court's refusal to give a requested
jury instruction for an abuse of discretion. Jackson v. Taylor,
912 F.2d 795, 796 (5th Cir.1990). "[I]t is error to refuse a jury
instruction only if there are pleadings and sufficient evidence to
support the instruction." Id. In this case, the district court
did not abuse its discretion in refusing to give the Kendrick
charge. The Kendrick charge is proper only in cases where the jury
could find that the injury in question "was due solely to the
plaintiff's failure to carry out his duty to his employer."
Matthews v. Ohio Barge Line, Inc., 742 F.2d 202, 205 (5th
1
Specifically, the defendant requested the following
instruction:
"Although even the slight negligence by the Jones Act
employer will allow the plaintiff to recover and the vessel
owner than [sic] has a nondelegable duty to provide its
employee with a safe place to work, the employee's duty to
make the workplace safe or to inspect the premises may
mitigate the employer's responsibility for providing a safe
place to work." R. Vol. 11, p. 3-4.
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Cir.1984). The evidence did not support a conclusion that the
plaintiff was the sole employee responsible for the off-loading
procedure or his work space. In fact, two witnesses testified that
the tankerman was in charge of the off-loading operation.
Moreover, the defendant points to no evidence for the contention
that the plaintiff was the only individual responsible for making
sure the premises were safe. In summary, the trial court provided
the jury with an appropriate standard contributory negligence
instruction and, considering the evidence presented in this case,
properly refused to give the defendant's additional instruction on
this point. Id.Conclusion
Finding no error in the disposition of this matter by the
district court, we AFFIRM.
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