Diefenbach v. Sheridan Transportation

United States Court of Appeals
For the First Circuit
No. 00-1099
GEORGE DIEFENBACH,
Plaintiff, Appellee,
v.
SHERIDAN TRANSPORTATION,
Defendant, Appellant.
SIX TUG BARGE CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Thomas E. Clinton, with whom Clinton & Muzyka, P.C. were on brief
for appellant.
Michael B. Latti, with whom Carolyn M. Latti and Latti Associates
LLP, were on brief for appellee.
October 6, 2000
BOWNES, Senior Circuit Judge. The plaintiff-appellee, George
Diefenbach, brought this action pursuant to the Jones Act, 46 U.S.C.
app. § 688 (1994) against his employer, defendant-appellant Sheridan
Transportation, seeking damages for personal injuries sustained in the
course of employment as a boatswain onboard the ITB JACKSONVILLE. The
first trial ended in a mistrial. The second trial resulted in a jury
verdict of $900,000.00 in favor of the plaintiff. The district court
denied the defendant's motions for a new trial and remittitur, and this
appeal followed. Finding that the district court correctly decided the
motions, we affirm.
I. Facts.
We briefly describe the facts here, but discuss them in
greater detail where applicable and necessary for our discussion. The
plaintiff worked as a boatswain on the ITB1 JACKSONVILLE, a vessel
operated by the defendant. On July 8, 1997, the plaintiff injured his
back while hauling in the spring line and pennant during the undocking
of the vessel. He brought suit in the United States District Court for
the District of Massachusetts pursuant to the Jones Act, 46 U.S.C. §
688, for damages resulting from the alleged negligence of the
defendant. The plaintiff alleged negligence, unseaworthiness, and
maintenance and cure in his complaint. During the first trial, which
1 An ITB is an integrated tug and barge. It is over 700 feet long
and has a tugboat attached to the back of the barge.
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ended in a mistrial, the plaintiff waived the counts for
unseaworthiness and maintenance and cure. The second trial concluded
with a jury verdict in favor of the plaintiff in the amount of
$900,000.00.
The defendant moved for a new trial on the grounds that the
district court improperly instructed the jury, improperly admitted the
plaintiff's maritime expert's opinion and allowed a verdict which was
“excessive and not supported by the evidence as presented at trial.”
The defendant also moved for remittitur. Both of defendant's motions
were denied by the district court and the defendant appeals to this
court.
II. Motion for a new trial.
We review the district court's denial of a motion for a new
trial only for manifest abuse of discretion. See United States v.
Dumas, 207 F.3d 11, 14 (1st Cir. 2000). The same standard of review is
applied to the admissibility of expert testimony. See Palmacci v.
Umpierrez, 121 F.3d 781, 792 (1st Cir. 1997). The defendant submits
that the opinions of the plaintiff's expert, Captain George Albert
Sadler, should not have been allowed because “[h]e lacked the specific
knowledge, training and experience to assist the trier of fact in
determining the validity of the [plaintiff's] claims.”
The defendant concedes that expert testimony was necessary
to assist the trier of fact because this case involved docking and
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undocking procedures for, and equipment used on, a complex vessel –
subjects beyond the scope of common knowledge. The defendant submits,
however, that “Captain Sadler's qualifications and opinions lacked
Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] reliability
and that the [t]rial [j]udge committed meaningful error in judgment
allowing Captain Sadler to proffer his opinions.”
We need not address whether Captain Sadler's qualifications
and opinions lacked Daubert reliability because this specific objection
has been waived. A timely objection must be made “stating the specific
ground of objection, if the specific ground was not apparent from the
context.” Fed. R. Evid. 103(a)(1) (emphasis added). We have
previously held that a Daubert objection must be made at trial and
cannot be made for the first time on appeal. See United States v.
Gilbert, 181 F.3d 152, 162-63 (1st Cir. 1999); Cortes-Irizarry v.
Corporacion Insular de Seguros, 111 F.3d 184, 188-89 (1st Cir. 1997).
As in Gilbert, “[n]o suggestion was made by [the defendant
here] that the Daubert principles should be applied to [Sadler's]
testimony. Our rule is that an objection not made in the trial court
will not be considered in the first instance on appeal.” Gilbert, 181
F.3d 162-63. Furthermore, it should be noted that the defendant
explicitly waived any possible Daubert objection in its reply brief to
this court:
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The objection of Sheridan to the testimony
of Captain Sadler is based on the complete lack
of expert qualifications possessed by the witness
in relation to the issues on which his opinions
were offered. Sheridan has not raised the
“scientific validity[]” objection as improperly
claimed by Diefenbach.
* * * *
While Mr. Diefenbach attempts to couch the
objection of Sheridan as something other than
what was intended by Sheridan's attorney, the
basis for the objection could not have been made
more clear. It is an objection to the lack of
proper qualifications to provide opinion
testimony on the part of Mr. Sadler. . . .
Clearly, then, while Diefenbach attempts
to argue that the defendant did not specifically
put the trial judge on notice as to the
“scientific validity” underlying the testimony,
this was not the objection. This was made clear
at the trial. . . . It was also made clear in
the Defendant's Memorandum of Law in Support of
its Motion for a New Trial when Sheridan stated:
“Permitting plaintiff's expert, Sadler, to opine
in areas which he was not qualified precluded the
jury from returning a fair and impartial verdict
in this matter.” . . . Finally, it was made clear
in Sheridan's Brief previously filed in this
appeal, which stated as to Captain Sadler: “He
lacked the specific knowledge, training and
experience to assist the trier of fact in
determining the validity of the appellee's
claims.”
Def.'s Reply Br., pp. 1-3 (internal citations omitted) (emphasis
added). Therefore, we determine that any Daubert objection was waived
by the defendant and we need not address it for the first time on
appeal. We turn, instead, to the defendant's objection that Captain
Sadler “lacked the specific knowledge, training and experience to
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assist the trier of fact in determining the validity of the appellee's
claims.”
It is well-settled that “trial judges have broad
discretionary powers in determining the qualification, and thus,
admissibility, of expert witnesses. It is settled law in this circuit
that [w]hether a witness is qualified to express an expert opinion is
a matter left to the sound discretion of the trial judge. In the
absence of clear error, as a matter of law, the trial judge's decision
will not be reversed.” Richmond Steel Inc. v. Puerto Rican Am. Ins.
Co., 954 F.2d 19, 20 (1st Cir. 1992) (alterations in original)
(internal quotation marks omitted); see also United States v. Corey,
207 F.3d 84, 88 (1st Cir. 2000) (reviewing rulings relating to the
admissibility of expert testimony for clear abuses of discretion).
The admissibility of expert testimony is governed by Federal
Rules of Evidence 702 and 703. Three requirements are imposed by Rule
702: “(1) the expert must be qualified to testify, by knowledge,
skill, experience, training, or education; (2) the testimony must
concern scientific, technical or other specialized knowledge; and (3)
the testimony must be such as to assist the trier of fact to understand
the evidence or to determine a fact in issue.” Corey, 207 F.3d at 88
(internal quotation marks omitted). Rule 702 provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
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issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
Fed. R. Evid. 702. After careful review of the entire record, we find
that the district court did not abuse its discretion when it allowed
Captain Sadler to present expert testimony. We find, as did the
district court, that Captain Sadler had the knowledge, skill,
experience, training and education to qualify him as an expert and that
his testimony would assist the trier of fact to better understand the
case.
Captain Sadler was well-qualified based on his skill,
training, education and knowledge. He was a 1973 graduate of the Maine
Marine Academy, where he took courses in seamanship, rigging, booming,
cargo-handling, mooring and engineering, and received a Bachelors of
Science in Nautical Science. Captain Sadler holds various licenses and
has worked his way through the ranks to that of captain.
Captain Sadler has spent years on the water, primarily aboard
tugs and barges, including employment with the second largest towing
company in the country. He often evaluated and trained crews and was
responsible for the safety of the crews and the ships. He trained
crews to better handle lines, gear and other equipment on vessels.
Captain Sadler was responsible for supervising the lifting and pulling
of different objects, including numerous types of chains, chock lines
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on pennants and nylon lines of different weights and force. In fact,
his vessel was used as a school ship and he taught others how to handle
and lift such lines and equipment. He established procedures and
authored the Responsible Carrier Program, which describes the
responsibilities of each member of a vessel's crew. Captain Sadler was
further responsible for the introduction of new equipment on vessels
and retrofitting and replacing equipment on others.
Captain Sadler was well-qualified to give opinions regarding
docking and undocking. He was qualified to be a docking master and
“rode in excess of a hundred vessels,” observing or participating in
the docking and undocking procedure. Because trips on tugs and barges
were relatively short, Captain Sadler was involved in docking and
undocking more than the average seaman.
The defendant argues that Captain Sadler was not qualified
to give expert testimony in this case because this case concerns an
accident which occurred aboard an ITB vessel and because Captain Sadler
never served as a member of a crew aboard an ITB. While it is true
that Captain Sadler was never a crew member on an ITB, it does not
follow that he was unqualified to give an opinion regarding the
equipment, the machinery and the docking and undocking procedures. He
testified that he was familiar with ITB vessels and that they use the
same winches, machinery, chocks and blocks as his barges and tugs.
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Moreover, it should be noted that the defendant had ample
opportunity to cross examine Captain Salder and to use its own expert
– witness which it did. We find that Captain Sadler was qualified to
give expert testimony regarding, inter alia, the lifting of heavy lines
(the cause of the plaintiff's injury). The district judge, utilizing
the broad discretion afforded him, did not commit clear error by
allowing Captain Sadler to proffer his opinion and we will not disturb
that determination. Therefore, the district court's denial of the
defendant's motion for a new trial is affirmed.
III. Motion for remittitur.
The defendant moved for remittitur on the grounds that the
amount of damages awarded to the plaintiff was excessive and not
supported by the evidence presented at trial. The defendant also
argued that the district court failed to instruct the jury on reducing
lost wages to present value or that any award is not subject to income
taxes. We review the district court's denial of a motion for
remittitur for an abuse of discretion. See Smith v. Kmart Corp., 177
F.3d 19, 29 (1st Cir. 1999). “We will not disturb an award of damages
because it is extremely generous or because we think the damages are
considerably less. . . . We will only reverse an award if it is so
grossly disproportionate to any injury established by the evidence as
to be unconscionable as a matter of law.” Koster v. Trans World
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Airlines, Inc., 181 F.3d 24, 34 (1st Cir.), cert. denied, U.S.
, 120 S. Ct. 532 (1999).
When determining whether the damages awarded are excessive
or unsupported by the evidence, we view the evidence in the light most
favorable to the verdict. See Smith, 177 F.3d at 30. In light of the
deference owed to the verdict, we find that the jury's award of
$900,000.00 does not warrant remittitur. Ample evidence was introduced
at trial regarding the plaintiff's injury, his inability to earn a
living and the pain and suffering he experienced, is experiencing and
will experience in the future. Therefore, we find that the award of
$900,000.00 was supported by the evidence and will not disturb the
jury's award.
The defendant also argues that the award for past and future
lost wages was improperly inflated because the district court failed to
instruct the jury on reducing lost wages to present value and that any
award is not subject to taxes. An instruction regarding the tax was
not requested by the defendant and was only mentioned after the
instructions were given to the jury. The defense attorney simply
stated, “I don't think that you mentioned anything there that any award
they make is not subject to taxes.” App. 848. The plaintiff's
attorney noted that the defendant never asked for such an instruction,
and the court refused to give it. We have previously held, and do so
again here, that, absent a party's objection, a judge's failure to give
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an instruction that an award is not subject to income tax, is not
error. See Kennett v. Delta Airlines, Inc., 560 F.2d 456, 461-62 (1st
Cir. 1977) (finding no error in failure to give an instruction that the
award is not subject to income tax).
The district court did not instruct the jury that it could
reduce the award to present value because the defendant failed to
request such an instruction and then failed to object to its absence.
The defendant, however, argues for the first time on appeal that the
lack of said instruction improperly inflated the award. Rule 51 of the
Federal Rules of Civil Procedure states, in pertinent part, that: “No
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.”
If a party fails to object to a jury instruction pursuant to
Rule 51, then it cannot be raised successfully on appeal. See Scarfo
v. Cabletron Sys., Inc., 54 F.3d 931, 940 (1st Cir. 1995). In Scarfo,
we held that: “[t]he rule has been rigorously enforced in this circuit,
and its clear language will be overlooked only in exceptional cases or
under peculiar circumstances to prevent a clear miscarriage of justice
. . . or where the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal citations
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and quotation marks omitted); see also Beatty v. Michael Bus. Machs.
Corp., 172 F.3d 117, 121 (1st Cir. 1999).
Plain error “is reserved for the most egregious
circumstances.” Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672
(1st Cir. 2000) (internal quotation marks omitted). The Supreme Court
has held that plain error applies only where the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993)2
(internal quotation marks omitted); see also Scarfo, 54 F.3d at 940)
(holding that we will only reverse if the charge “has caused a
miscarriage of justice or has undermined the integrity of the judicial
process.”); Clausen v. Sea-3, Inc., 21 F.3d 1181, 1196 (1st Cir. 1994)
(holding that the plain error standard, which is “high in any event, .
. . is near its zenith in the Rule 51 milieu”) (omission in original)
(internal quotation marks omitted).
We find that the district court did not commit plain error
when it failed to give an instruction that any future damage award
should be discounted to present value. The defendant neither requested
such an instruction, nor objected to its omission, and cannot meet the
high standard of “plain error” to warrant reversal. There is nothing
to suggest that this omission “seriously affect[ed] the fairness,
2 Defendant's citation to Colburn v. Bunge Towing, Inc., 883 F.2d
372, 377 (5th Cir. 1989), a pre-Olano case which arguably applies a
different plain error standard, is thus beside the point.
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integrity or public reputation of judicial proceedings.” Negron, 212
F.3d at 672. Therefore, we decline the defendant's invitation to
remand with instructions to grant a remittitur.
Affirmed.
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