United States Court of Appeals,third Circuit, 524 F.2d 767 (3d Cir. 1975)

This is an appeal from a judgment entered after a jury verdict. Plaintiffs below, six employees of contractors engaged by Hess Oil Virgin Islands Corp. ("Hess"), were severely burned when a large partially-filled oil storage tank owned by Hess exploded. The explosion occurred while workers from appellant Chicago Bridge & Iron Company, Ltd. ("CB & I") were welding into place some horizontal foam piping, a safety system which, when installed, was designed to transmit into the storage tanks a fire extinguishing chemical foam. Plaintiffs sued both Hess and CB & I for personal injuries, and Hess cross-claimed against CB & I for property damage to its storage tank. The jury absolved Hess of all liability and found in favor of the personal injury plaintiffs against CB & I, awarding them $7,184,600.42 in compensatory damages and $5,000,000 in punitive damages. In addition, the jury found in favor of Hess on its property claim against CB & I, and awarded Hess $1,045,000 in damages. Consequently, the total verdict against CB & I was $13,229,600.42.

The trial court denied CB & I's motions for judgment n. o. v. and for a new trial, on the condition that the personal injury plaintiffs file a remittitur of the punitive damages award in the amount of $4,000,000 within thirty days. On August 27, 1974, the plaintiffs filed such a remittitur. CB & I then appealed the judgment of the district court, but on August 6, 1975, subsequent to oral argument before this Court, CB & I reached a settlement with the personal injury plaintiffs in the amount of $6,000,000.00. Consequently, CB & I's appeal is limited to two issues: (1) whether the judgment in favor of Hess and against CB & I on Hess' property damage claim should be sustained, and (2) whether the jury verdict absolving Hess of liability in the personal injury plaintiffs' suit against Hess (thereby making CB & I responsible for the entire recovery) should likewise be upheld.

With respect to both issues, CB & I first contends that the verdict was against the weight of the evidence. In short, it claims that the jury could not rationally have held it liable for Hess' property damage or have absolved Hess of all liability toward the personal injury plaintiffs. We note at the outset that our standard of review is quite limited and that, as an appellate court, we must view the evidence in the light most favorable to the party which obtained the verdict below. Trent v. Atlantic City Electric Co., 334 F.2d 847 (3d Cir. 1964). As we stated in Massaro v. United States Lines Co., 307 F.2d 299, 303 (3d Cir. 1962): "It is fundamental that the evidence and the reasonable inferences to be drawn therefrom must be taken most favorably to the party who secured the verdict."

We have carefully considered all of the evidence in this case and, applying the above standard of review, we have concluded that the jury verdict must stand. The evidence is accurately summarized in the district court decision, D.C.V.I., 379 F. Supp. 1268, and we shall not repeat it here. We believe, however, that a few points deserve mention. First, we see no reversible error in the admission of the testimony of Franklin Bradfield, the Hess superintendent who examined the scene of explosion and who gave his opinion as to its causation.¹  CB & I contends that Bradfield's opinion testimony was inadmissible because his qualifications as an expert were not established. However, CB & I's trial counsel did not object to Bradfield's testimony on this ground or seek to question him on his qualifications,²  and it is well settled that an objection to an expert's qualifications, not having been raised in the trial court, cannot be raised for the first time as appeal. See, e. g., Ramsey v. Complete Auto Transit Inc., 393 F.2d 41, 43 (7th Cir. 1968). CB & I also challenges Bradfield's testimony as having been elicited by leading questions. Plaintiffs called Bradfield as an adverse witness, since he was an employee of one of the defendants (Hess), and justified their use of leading questions on that ground. While CB & I takes the position that Bradfield was in fact a friendly witness who was adverse only to CB & I, defense counsel did not object to this use of leading questions until Bradfield's direct testimony was finished (292a-293a), and even then made no motion to strike.³ 

We also reject CB & I's contention that the verdict was tainted because of statements made by Hess' counsel as to "facts" which defendant contends were not in evidence. In particular, CB & I claims that there was no evidence of combustible fumes in the "downcomer"⁴  at the time of the explosion and that counsel's reference to testimony about a rattling or rumbling noise in the downcomer, when questioning Hess' expert (Dr. Packer), was a reference to testimony that did not exist and was an attempt to provide missing evidence. Dr. Packer gave it as his opinion that the rattling noise was caused by the ignition of fumes in the downcomer. Several witnesses testified that the explosion was immediately preceded by a rattling or rumbling noise, but most did not identify the source or location. However, it is not true, as CB & I contends, that there was no testimony at all as to a rattling in the downcomer. At least one witness (Mr. Buchanan, a CB & I welder) had told him that there was a rattling or rumbling in the downcomer (2032a).⁵  In any event, defense counsel did not object at trial to the reference made by Hess' attorney and its expert to evidence of a rattling in the downcomer. See Ramsey, supra at 44; Hawkins v. Missouri Pacific Railroad Co., 188 F.2d 348, 351 (8th Cir. 1961); Worcester v. Pure Torpedo Co., 140 F.2d 358, 362 (7th Cir. 1944). Had CB & I's trial counsel objected on the basis that there was no such evidence, the trial judge might have considered allowing questions premised on the undisputed evidence that there was a rattling or rumbling noise of some sort, which was consistent with a rattling in the downcomer.

As a final point on the sufficiency of the evidence question, we must also reject CB & I's contention that the verdict absolving Hess of liability should be set aside as against the weight of the evidence. CB & I points to evidence that Hess exercised some control over the welding work and thus should have been held liable under § 414 of the Restatement (Second) of Torts. However, we can hardly say that the evidence against Hess was so overwhelming that we must conclude, as a matter of law, that the jury was required to find Hess liable. Given our standard of review of jury verdicts and the right of a defendant to a jury trial, we should not lightly reverse a jury verdict which has absolved a defendant of liability.⁶  Here there was ample evidence that CB & I had sole responsibility for the safety of the blinds⁷  and that Hess' responsibility was limited to conducting "sniffer tests" before issuing "hot work" permits and to supervising the work only insofar as necessary to ensure that the "end result" complied with the specifications (1588a, 2863a). There was also specific evidence that Hess officials supervising CB & I personnel were not responsible for generally ensuring the safety of the work area (3027a)⁸  and CB & I personnel themselves considered the welding a "CB & I endeavor" (1587a-1588a).

CB & I next contends that reversal is required by prejudicial remarks made by counsel for Hess and the personal injury plaintiffs during closing argument. Looking at the closing as a whole (as we are required to do), we do not believe that these scattered remarks, to which CB & I's trial counsel failed to object, were so prejudicial as to constitute "plain error." Of the various remarks now claimed to be error, we believe that the only ones having any significant potential for prejudice were those made by counsel for the personal injury plaintiffs referring to CB & I's size and wealth and to the jury's role in doing "something for the community" by sending a "message" all the way to Chicago.⁹  CB & I contends that these remarks were substantially identical to those condemned by this Court in Foster v. Crawford Shipping Co.,496 F.2d 788 (3d Cir. 1974).

Unlike Foster, however, defense counsel in this case neither made an objection nor filed a motion for a mistrial based on such remarks.^9a Furthermore, in this case, unlike Foster, plaintiffs had sued for punitive as well as compensatory damages. It is well settled that the wealth of the defendant is a factor which may properly be considered by the trier of fact in assessing punitive damages,¹⁰  Restatement of Torts § 908(2), and that it is proper to assess punitive damages as a deterrent and an example to the community. See Nader v. Allegheny Airlines, Inc., 512 F.2d 527, 549 (D.C. Cir. 1975); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432, 435 (5th Cir. 1962); Bucher v. Krause, 200 F.2d 576, 587 (7th Cir. 1952). While an appeal to local prejudice against foreign defendants is never permissible even where punitive damages are sought, we do not believe that the isolated remarks about CB & I which were arguably an appeal to local sentiment in this case were so prejudicial in connection with the claim against Hess as distinguished from the claim against CB & I as to constitute reversible error in the absence of any objection or request for a cautionary instruction. We have previously stated that the trial judge is in a better position than an appellate court to determine whether remarks of counsel are prejudicial. Corbett v. Borandi, 375 F.2d 265, 270 (3d Cir. 1967). The trial judge here found no prejudice,¹¹  and we concur in his judgment.

Finally, CB & I contends that the judgment should be reversed because the trial court committed plain and reversible error in leaving the disposition of complex factual and legal issues to the jury without full and complete instructions relating the relevant law to the disputed facts. Under Fed. R. Civ. P. 51, however, objections to jury instructions must be raised before the jury retires, and counsel for CB & I never made such an objection here. Although we have recognized that Rule 51 is not binding where a failure to consider the objection on appeal would lead to a "miscarriage of justice,"¹²  and although we have found "plain error" where the jury was given mere "legal abstractions,"¹³  we see no basis for reversal here. As the district court noted,¹⁴  counsel for CB & I requested the trial court not to review the evidence in its charge, since counsel proposed that the evidence be developed by the attorneys in their summation. Thus, if there was any error at all, it was "invited error" and cannot now be a basis for reversal.¹⁵ 

We have carefully considered the remaining contentions raised by CB & I which might affect the finding of its liability as to Hess and the jury's exoneration of Hess, but have found them to be without merit.¹⁶ 

The judgment of the district court will be affirmed.