Court of Appeals
For the First
SIX TUG BARGE CORPORATION,
APPEAL FROM THE UNITED STATES
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S.
Boudin, Circuit Judge,
Bownes, Senior Circuit
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.
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
ITB(1) 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 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
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.
SeeUnited States v. Dumas, 207 F.3d 11, 14 (1st
Cir. 2000). The same standard of review is applied to the admissibility
of expert testimony. SeePalmacci 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]
The defendant concedes that expert
testimony was necessary to assist the trier of fact because this
case involved docking and 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:
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 assist the trier of fact in determining the validity of the
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 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 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.
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 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 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. SeeScarfo 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 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, 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.
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.
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