Angel Toucet, Plaintiff, Appellee, v. Maritime Overseas Corp., Defendant, Appellant, 991 F.2d 5 (1st Cir. 1993)

Andrew H. Quinn with whom Dante Mattioni, Francis X. Kelly, Mattioni, Mattioni & Mattioni, Ltd., Philadelphia, PA, and Antonio Jimenez Miranda, San Juan, PR, were on brief, for defendant, appellant.

Harry A. Ezratty, San Juan, PR, for plaintiff, appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and SKINNER,^*  Senior District Judge.

SKINNER, Senior District Judge.

Plaintiff Angel Toucet, a seaman, brought this action against his employer, Maritime Overseas Corporation, seeking damages for a back injury suffered aboard the defendant's vessel, the Overseas Alaska. Toucet alleged negligence under the Jones Act, 46 U.S.C.App. § 688, and unseaworthiness under general maritime law. After trial, a jury returned a special verdict in Toucet's favor on the Jones Act count, but did not find the Overseas Alaska to be unseaworthy. The trial court denied Maritime's motions for judgment n.o.v. and a new trial or, in the alternative, for remittitur of the $75,000 verdict.

On appeal, Maritime contends that the trial court erred in denying Maritime's motions for judgment n.o.v. and a new trial because the jury's finding of negligence is irreconcilably inconsistent with its rejection of the claim of unseaworthiness. Maritime also asserts that the trial court erred by allowing Toucet's counsel to pose a hypothetical question that was improperly based on facts not in evidence and by denying Maritime's motion for remittitur.

BACKGROUND

We briefly review the evidence developed at trial in the light most favorable to Toucet. See Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1068 (1st Cir. 1990).

On August 27, 1987, while the Overseas Alaska was in the port of New Orleans, the crew was advised that the vessel's cargo tanks would be bottom washed. Seeking to avoid the cleaning operation, Toucet and two other crew members requested leave to quit the ship. Toucet told the boatswain that after working approximately twelve hours consecutively he was too exhausted to participate in the tank cleaning. Toucet's request was denied because the ship's union agreement required crew members to provide 24 hours advance notice before quitting.

At approximately 5:30 p.m., the cleaning process, which is commonly called "butterworthing," began. Several witnesses testified that butterworthing is hard work, requiring several men to complete the task. On this particular day, the Overseas Alaska's crew was divided into two six-hour shifts, each consisting of four men. Toucet, who was now working overtime, was assigned to the first shift. While the Overseas Alaska's union agreement required a minimum of three men to perform the task, testimony at trial revealed that butterworthing was ordinarily performed on other ships by more than four men.

The term butterworthing refers to the equipment (a butterworth machine) used to clean the tanks. During trial, the butterworth was described as a brass cylindrical device, weighing approximately 30 pounds. The butterworth is attached to the end of a flexible, hard rubber hose that has a 10-inch diameter and weighs approximately 100 pounds. To accomplish bottom washing, the crew lowers the hose and butterworth approximately 30-40 feet into the openings of each tank. Once in the tank, hot water is pumped through the hose into the butterworth. The water pressure causes the head of the butterworth to spin and, while the head spins, water is forced out of two release valves located on the side of the butterworth. Upon release from the butterworth, the hot water is directed against the wall and floor panels of the cargo tanks at approximately 90 p.s.i. pressure. Once a tank is cleaned, the crew pulls the butterworth and hose out of the opening and moves or "shifts" the equipment to the next opening. Typically, the removal process is accomplished by the seamen pulling on the hose in unison.

Toucet testified that he was injured while removing the butterworth and hose from one of the Overseas Alaska's tanks. More specifically, Toucet testified that the deck engine utility (DEU), who was one of the crew members assigned to assist in the butterworthing, was inexperienced and inept at the task. As a result of the DEU's inexperience, the hose was allowed to slacken on several occasions. Toucet and at least one other team member complained to the boatswain that the DEU's inexperience was making the butterworthing more difficult and Toucet again reported that he was exhausted. The boatswain replied that he could not do anything because the rest of the crew was sleeping. A short time after complaining, Toucet testified that he was jolted by grasping at the slipping hose and that he felt his back crack when he attempted to stand erect.

The case was submitted to the jury on both the Jones Act and general maritime law claims. With regard to unseaworthiness, Toucet alleged that the Overseas Alaska was unseaworthy in relation to the butterworthing operation because: (1) the number of seamen provided to complete the task was inadequate, and (2) one of the seamen who was assigned to the task was inexperienced and inept. Toucet's negligence claim under the Jones Act was similarly based on Maritime's failure to provide an adequate and experienced crew for the butterworthing operation. In addition, Toucet alleged that Maritime was negligent by requiring him to participate in the butterworthing operation despite his earlier complaint of exhaustion.

DISCUSSION

When a special verdict form results in apparently conflicting findings, a court has a duty under the Seventh Amendment to harmonize the answers if at all possible under a fair reading. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S. Ct. 780, 786, 7 L. Ed. 2d 798 (1962); Santiago-Negron v. Castro-Davila, 865 F.2d 431, 443 (1st Cir. 1989) (citing Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119, 83 S. Ct. 659, 666, 9 L. Ed. 2d 618 (1963)).

Maritime contends that the jury's answers on the negligence and seaworthiness questions cannot be harmonized because both claims are grounded on the same underlying factual allegations--that the crew was both inadequate and too inexperienced to accomplish the butterworthing task. By finding the Overseas Alaska to be seaworthy, Maritime argues that the jury necessarily rejected Toucet's inadequate and inexperienced assistance allegations. Maritime concludes, therefore, that there was no basis for finding it negligent and that the verdict must be set aside as irreconcilably inconsistent.

We need not address the merits of this argument because Maritime failed to make a timely objection to the alleged inconsistency. In this circuit, a "party waives inconsistency if it fails to object after the verdict is read and before the jury is dismissed." Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992) (citing Austin v. Lincoln Equip. Assocs., 888 F.2d 934, 939 (1st Cir. 1989)); Peckham v. Continental Casualty Ins. Co., 895 F.2d 830, 836 (1st Cir. 1990) (citing McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987)). This is because the "only efficient time to cure the problem is after the jury announces its results and before it is excused, and it is the responsibility of counsel to make timely objection." Austin v. Lincoln Equip. Assocs., 888 F.2d at 939.

We have carefully reviewed the entire record in this case, including the clerk's minutes of the proceedings and the docket sheet.¹  It is apparent from the record that Maritime failed to object to the verdict's asserted inconsistency prior to the jury's discharge. (Clerk's Minutes, Oct. 10, 1991; Docket Entry p 71.) In fact, Maritime did not raise the inconsistency issue until filing its post trial motions on October 23, 1991--13 days after the jury was discharged and long after the optimum time for curing any alleged defect. (Docket Entry p 74.) While Maritime omitted the portion of the transcript relating to the reading of the verdict from its appendix,²  our review on appeal is not limited to the materials submitted by the parties. Fed. R. App. P. 30(a) ("The fact that parts of the record are not included in the appendix, shall not prevent the parties or the court from relying on such parts.").

Maritime's failure to object cannot be excused by its inability to anticipate the jury reaching potentially inconsistent findings. See McIsaac v. Didriksen Fishing Corp., 809 F.2d at 134 (rejecting appellant's argument that it could not have anticipated verdict inconsistency where jury instructions and special verdict form served as harbingers for inconsistency). The circumstances of this case indicate that Maritime had ample opportunity to "portend possible verdict inconsistency." Austin v. Lincoln Equip. Assocs., 888 F.2d at 939. For instance, Maritime should have been alerted by the use of the special verdict form alone. See id. As we noted previously, " '[t]he mere fact that the jury's verdict would be in the form of special answers should have been enough to alert counsel to potential inconsistency.' " Id. (quoting McIsaac v. Didriksen Fishing Corp., 809 F.2d at 134).

In addition to the special verdict form, Maritime should have been alerted to the potential inconsistency by the jury instructions. See McIsaac v. Didriksen Fishing Corp., 809 F.2d at 134. The court specifically instructed the jury that the negligence and unseaworthiness claims were "separate and independent" and that the plaintiff could recover on one or both. (Appellant's App. at 753a and 760a.) In fact, the jury requested additional instructions regarding the meaning of unseaworthiness. (Clerk's Minutes, Oct. 10, 1991; Docket Entry p 71.); see McIsaac v. Didriksen Fishing Corp., 809 F.2d at 134 (counsel on notice of potential inconsistency where jury interrupted deliberations to inquire into differences between negligence and breach of warranty claims).

Despite these obvious warning beacons, Maritime remained silent while the verdict was read and the jury was discharged. We decline to condone this " 'agreeable acquiescence to perceivable error as a weapon of appellate advocacy.' " Id. (quoting Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984)).

While the timeliness issue was not addressed by either party and consequently was not explored by the trial court, " '[w]e are, of course, free to affirm a district court's decision on any ground supported by the record even if the issue was not pleaded, tried or otherwise referred to in the proceedings below.' " Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783 n. 8 (1st Cir. 1990) (quoting Norris v. Lumbermen's Mut. Casualty Co., 881 F.2d 1144, 1151-52 (1st Cir. 1989) (additional citations omitted)). This is particularly appropriate here because the parties have had sufficient opportunity to develop arguments relating to the verdict's alleged inconsistency before both the trial court and this court. See Papex Int'l Brokers, Ltd. v. Chase Manhattan Bank, 821 F.2d 883, 885 (1st Cir. 1987). In addition, Maritime's untimely objection is apparent from the record and our determination can be made as a matter of law. See Watterson v. Page, 987 F.2d 1, 7 n. 3 (1st Cir. 1993). Under these circumstances, it is appropriate to affirm the trial court's decision, even though the precise issue was neither raised by the parties or addressed by the trial court. See id.

Accordingly, we hold that Maritime waived any potential inconsistency in the jury's verdict as a basis for appeal by failing to object before the jury was discharged.

In any case, there is no inconsistency between the verdicts in this case. It is well recognized that claims under the Jones Act and claims for unseaworthiness are discrete claims. See, e.g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S. Ct. 514, 517, 27 L. Ed. 2d 562 (1971). While the evidence is often congruent, or at least overlapping, this is not necessarily so, and a number of cases demonstrate that a single incident of negligence, such as the requirement that a seaman work when he has reported that he was too fatigued to do so, may occur without rendering the ship unseaworthy. Borras v. Sea-Land Serv., Inc., 586 F.2d 881, 888 (1st Cir. 1978); Merchant v. Ruhle, 740 F.2d at 91; Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1433 (5th Cir. 1988), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L. Ed. 2d 1019 (1989); Gosnell v. Sea-Land Serv., Inc., 782 F.2d 464, 467 (4th Cir. 1986); Kokesh v. American S.S. Co., 747 F.2d 1092, 1094 (6th Cir. 1984).

We also find that sufficient evidence was established at trial to support the jury's finding of negligence. A plaintiff's burden of proving causation under the Jones Act is "featherweight". Leonard v. Exxon, 581 F.2d 522, 524 (5th Cir. 1978), cert. denied, 441 U.S. 923, 99 S. Ct. 2032, 60 L. Ed. 2d 397 (1979). Liability exists if the employer's negligence contributed even in the slightest to the plaintiff's injury. Santana v. United States, 572 F.2d 331, 335 (1st Cir. 1977) (citing Rogers v. Missouri-Pacific R.R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448, 1 L. Ed. 2d 493 (1957)). Here, sufficient evidence was introduced to support the jury's determination that Maritime was negligent in requiring Toucet to continue working despite his claims of exhaustion and inadequate assistance, and that this negligence contributed to Toucet's back injury. Perez v. Marine Transport Lines, Inc., 661 F.2d 254, 254 (1st Cir. 1979) (employer negligent for not relieving the plaintiff from duty despite the plaintiff's complaints of overwork and inadequate assistance, and that negligence contributed to the plaintiff's injury).

Maritime asserts that the trial court erred by allowing the plaintiff's expert witness, Dr. Jaun Llompart, to answer a hypothetical question that improperly assumed facts not in evidence. Specifically, plaintiff's counsel asked Dr. Llompart to assume, in part, that a hypothetical seaman was injured after pulling a hose and butterworth out of 12 tank openings. Maritime asserts that this assumption was contrary to the evidence introduced at trial, which revealed that Toucet was injured after only 4 tank openings were cleaned.

While a hypothetical should include only those facts supported by the evidence, Iconco v. Jensen Constr. Co., 622 F.2d 1291, 1301 (8th Cir. 1980), the record here indicates that sufficient facts existed to support the challenged hypothetical. Each numbered tank had twelve openings, six on the port side and six on the starboard side. (Appellant's App. at 48a; 154a-56a; 162a.) During direct examination, Toucet testified that he and the rest of the team lowered a total of six hoses into the first six openings of tank number one, three on each side. Id. at 51a; 162a. After completing the first six openings, the team proceeded to clean the remaining six openings of tank number one in the same manner. Toucet testified that after completing the butterworthing of tank number one he and the team proceeded to the first opening of tank number two. Toucet felt his back "crack" while working on tank number two. On this record, we find that the factual assumptions underlying the plaintiff's hypothetical were fully supported by the evidence. Moreover, Federal Rules of Evidence 703 and 705 place the "full burden of exploration of the facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel's cross-examination." Smith v. Ford Motor Co., 626 F.2d 784, 793 (10th Cir. 1980), cert. denied, 450 U.S. 918, 101 S. Ct. 1363, 67 L. Ed. 2d 344 (1981). During its cross-examination of Dr. Llompart, Maritime elected not to explore any perceived discrepancies or inconsistencies relating to the hypothetical, nor did Maritime ever explicitly call the attention of court or counsel to the discrepancy it now asserts.

In short, Maritime's assertion of error is without merit. Accordingly, we affirm the trial court's ruling admitting Dr. Llompart's answer to the hypothetical question.

The final issue is the propriety of the trial court's denial of Maritime's motions for a new trial on damages or, in the alternative, for remittitur. Maritime alleges that the jury's $75,000 damage award for what it characterizes as a "BenGay back injury" is unreasonably excessive and unsupported by the evidence.

We review the trial court's denial of Maritime's motions for "manifest abuse of discretion." Joia v. Jo-Ja Serv. Corp., 817 F.2d 908, 918 (1st Cir. 1987) (citing Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 975 (1st Cir.), cert. denied, 409 U.S. 876, 93 S. Ct. 124, 34 L. Ed. 2d 128 (1972)), cert. denied, 484 U.S. 1008, 108 S. Ct. 703, 98 L. Ed. 2d 654 (1988). In challenging the jury's determination of damages, Maritime assumes a heavy burden. Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988). This court has previously observed that, " '[t]ranslating legal damage into money damages ... is a matter peculiarly within a jury's ken.' " Id. (quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987)). Accordingly, a jury's judgment regarding the appropriate damage award is given wide latitude and will be upheld so long as it does not exceed " 'any rational appraisal or estimate of the damages that could be based on the evidence before the jury.' " Id. (quoting Segal v. Gilbert Color Sys., 746 F.2d 78, 81 (1st Cir. 1984)). In making this determination, we view the evidence in the light most favorable to the plaintiff. McDonald v. Federal Lab., Inc., 724 F.2d 243, 246 (1st Cir. 1984) (quoting Betancourt v. J.C. Penny Co., 554 F.2d 1206, 1207 (1st Cir. 1977)).

Cast in the appropriate light, we find that the jury's assessment of Toucet's damages is within the " 'wide range of arguable appropriateness.' " Milone v. Moceri Family, Inc., 847 F.2d at 40 (quoting Wagenmann v. Adams, 829 F.2d at 216). In calculating the amount of damages, the jury was instructed to consider lost earnings, as well as pain and suffering. With regard to lost earnings, the evidence indicated that Toucet was unable to work for more than three months after his injury. Although Toucet was pronounced "fit for duty" by his doctor and attempted to resume work as a seaman in December 1987, Toucet testified that he was unable to remain on the job for more than a few days because of his back injury. In terms of pain and suffering, Toucet testified that, up until the time of trial, he continued to suffer pain and discomfort attributable to his injury aboard the Overseas Alaska, even though the injury occurred four years earlier.

Under these circumstances, we conclude that the jury's $75,000 judgment cannot be fairly characterized as " 'grossly excessive,' " " 'inordinate' " or " 'shocking to the conscience' ". See McDonald v. Federal Lab., Inc., 724 F.2d at 246 (quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159 n. 4, 89 S. Ct. 331, 333 n. 4, 21 L. Ed. 2d 309 (1968)). Accordingly, we find no abuse of discretion in the trial court's denial of Maritime's motions for a new trial on damages or for remittitur.

CONCLUSION

The trial court's orders directing judgment to enter according to the jury's verdict and dismissing Maritime's post trial motions are AFFIRMED.