James C. EARL, Plaintiff-Appellee/Cross-Appellant,
v.
BOUCHARD TRANSPORTATION CO., INC., and Tug Marion C.
Bouchard Corp., Defendants-Appellants/Cross-Appellees.
Nos. 33, 93, Dockets 90-7234, 90-7256.
United States Court of Appeals,
Second Circuit.
Argued Aug. 27, 1990.
Decided Nov. 2, 1990.
Paul C. Matthews, New York City, for plaintiff-appellee/cross-appellant.
Mark F. Muller, Freehill, Hogan & Mohar, New York City, for defendants-appellants/cross-appellees.
Before FEINBERG and CARDAMONE, Circuit Judges, and CABRANES, District Judge.*
JOSE A. CABRANES, District Judge:
In broad terms, this case presents six primary questions. First, did the district court's charge to the jury regarding contributory negligence constitute reversible error? Second, was it error for the district court to charge the jury that plaintiff could recover for pain and suffering and loss of life's pleasures? Third, did the district court abuse its discretion in not unconditionally ordering a new trial? Fourth, did the district court use an improper method of determining the remittitur or abuse its discretion by remitting the amount that it did? Fifth, after agreeing to the remittitur, may plaintiff now challenge it on cross-appeal? And finally, was it error for the district court, when calculating the total damage award and after subtracting the remittitur, to add an award for a claim of damages that had been previously dismissed?
BACKGROUND
The facts of this case are for the most part undisputed. Plaintiff was a tugboat deckhand employed by defendants. He brought a personal injury action under the Jones Act, 46 U.S.C.App. Sec. 688, against defendants for two separate accidents. The first was an elbow injury that occurred on August 29, 1984 for which he received a $5,000 jury award that is not in dispute.
The second and more serious injury occurred on December 13, 1984. On that date, defendants' tugboat, the Marion C. Bouchard, was tied to a dock in the East River by a single mooring line. The mooring line was about six inches in circumference and quite heavy. At one end was a loop which fit over a bollard located about eight feet from the stringpiece.1 The deck of the tugboat was approximately six feet below the level of the stringpiece.
Although the task of casting off the mooring line is easily managed by two deckhands--one casting the loop off the bollard, the other hauling in the line--it can be difficult for just one deckhand. On the day of the accident, plaintiff received orders to cast off. Without any assistance from a second deckhand, plaintiff stepped up onto the bulwark and imparted a whiplike motion to the mooring line in an effort to remove it from the bollard. In the course of doing this, plaintiff lost his balance, fell from the bulwark, and landed with his right foot on a different line, severely spraining his ankle and aggravating his elbow injury.
Plaintiff was 61 years old at the time of both accidents. He maintains that, as a consequence of his injuries, he was forced to retire on May 16, 1985, approximately one month before turning 62. He claims damages for, inter alia, loss of future earnings on the grounds that, absent these injuries, he would have continued to work at least an additional three years and five weeks--that is, until his 65th birthday.
Following a three-day trial, a jury returned a verdict for plaintiff in the amount of $855,000 for the ankle injury--comprising $425,000 for special damages (i.e., lost earnings) and $430,000 for general damages (i.e., nonpecuniary losses). Defendants moved for a new trial or, in the alternative, a remittitur. Judge Weinstein denied defendants' motion for a new trial on the condition that plaintiff accept a remittitur with respect to the ankle injury to $525,000. In his Memorandum and Order of April 24, 1990,
Defendants now appeal from the denial of their motion for a new trial. They argue that Judge Weinstein committed "fundamental error" in his charge to the jury regarding contributory negligence and reversible error in his charge regarding pain and suffering and loss of life's pleasures. Defendants argue further that a new trial should be granted because the jury's verdict was the result of passion or prejudice and because Judge Weinstein abused his discretion by not unconditionally granting defendants' motion for a new trial. In the alternative, defendants ask this court substantially to increase the remittitur on the grounds that the district court employed an incorrect standard in calculating the remittitur and abused its discretion by not reducing the award further. Finally, defendants contend that the district court miscalculated the remittitur inasmuch as it factored back into the award an unspecified amount for maintenance and cure to reduce the amount of the remittitur after having dismissed the maintenance and cure claim during trial. Plaintiff cross-appeals, claiming that the district court abused its discretion by ordering too drastic a remittitur of the special damages award.
We affirm Judge Weinstein's decision not to grant unconditionally a new trial and all elements of his judgment except that portion relating to maintenance and cure, which we reverse and remand to the district court with instructions to excise that portion from the judgment.
DISCUSSION
I.
A.
In the course of his instructions to the jury on the issue of contributory negligence, Judge Weinstein stated that
[i]f you find that the plaintiff was injured because he was following the orders of his superiors, the captain, then you cannot find that there was any contributory negligence. That's true even if the plaintiff knew that the activity which he was ordered to do was dangerous. As a seam[a]n he had the obligation to follow orders. (Joint Appendix ["JA"] at 422)
According to defendants, Judge Weinstein's instruction constitutes "fundamental error" inasmuch as the phrase "following the orders of his superiors" was not sufficiently specific and, hence, too easily misconstrued. Defendants contend that plaintiff was ordered simply to cast off the mooring line and not, more specifically, to stand on the bulwark. In defendants' view, plaintiff opted to stand on the bulwark--an act that is itself prohibited--by his own choice and independent of any order. Accordingly, defendants maintain that plaintiff was contributorily negligent, notwithstanding the fact that plaintiff was, in a general sense, following the orders of his superiors.
Defendants' argument fails for at least two reasons. First, defendants never objected to this instruction at trial and consequently have no sufficient grounds for appealing that instruction. In general, a party may not raise on appeal an asserted error in the giving or failure to give a particular instruction to the jury unless he has made timely objection in the trial court. Fed.R.Civ.P. 51;3 Air et Chaleur, S.A. v. Janeway,
We find no error in Judge Weinstein instructions, much less "plain error." The instruction on contributory negligence was clearly in accord with the law of this circuit. Indeed, in Darlington v. National Bulk Carriers Inc.,
The plaintiff was bound to obey the orders of his superiors on board the vessel. The chief officer was the plaintiff's superior and plaintiff was bound to obey the orders of the chief officer. Even though the orders of the chief officer required him to work with unsafe tools or under unsafe conditions, the plaintiff was obliged to obey the оrders and did not assume any risk of obedience to orders.
Id. at 819. It cannot have been plain error for Judge Weinstein to give an instruction that is so similar to the instruction that the district court in Darlington was reversed for failing to give.
But even assuming for the argument that defendants' counsel had properly and timely objected, the jury instruction was not faulty. The jury was informed that the question of whether plaintiff was following a specific order to stand on the bulwark, or whether he was following only a more general order to cast off, was a disputed issue of fact. Indeed, in his charge to the jury, Judge Weinstein carefully explained that is was
[t]he defendant[s'] contention ... that the plaintiff's actions leading to his fall were not taken pursuant to orders or company practice. Instead, the defendant[s] claim[ ] thаt they were taken solely due to the plaintiff's own negligence.
Particularly, it's the defendant[s'] contention that the plaintiff was ordered not to stand on the bulwark when doing this kind of work. (JA at 415)
Thus, the jury was clearly informed of defendants' position that plaintiff was injured because he was actually disobeying orders not to stand on the bulwark. Likewise, Judge Weinstein explained plaintiff's contention that "he was ordered to cast off a mooring line from the dock by himself and he was ordered to stand on the bulwark."4 Through those instructions, the jury could fully understand the factual dispute between plaintiff and defendants over whether plaintiff was following or disobeying orders by standing on the bulwark. Taken in context, then, the jury instruction clearly satisfies the concerns raised on appeal by defendants' counsel. Contrary to defendants' claim on appeal, the fact that the jury found no contributory negligence does not imply that the charge "forbade the jury from finding contributory negligence under any theory of the case." The district court provided a general contributory negligence charge and included a question about contributory negligence on its verdict form. Thus, it cannot seriously be maintained that Judge Weinstein "forbade" a finding of contributory negligence. The fact that the jury found that the "[p]ercentage of negligence ... attributable to the plaintiff" was zero (JA at 471) implies only that the jury found plaintiff's contention credible--notwithstanding defendants' contention to the contrary--that plaintiff was injured because "he was following the order of his superiors."
B.
Defendants contend that the district court committed reversible error, because, over the defendants' objections, the district court provided jury instructions that deviated from model federal jury instructions which provide, in pertinent part, that "[u]nder the Jones Act ... the plaintiff, if he has sustained his burden of proof, may recover for ... [p]ain, suffering and mental anguish, including the effect of his injury on the normal pursuits and pleasures of life...." 4 L. Sand, J. Siffert, S. Reiss, J. Sexton & J. Thrope, Modern Federal Jury Instructions p 90.04, at 90-52 (1990) (emphasis added). The district court gave the following charge: "Plaintiff is also entitled to recover for past and future ... pain and suffering and for loss of enjoyment of his usual activities." According to defendants, the district court's instruction, because it contains the word "and" instead of "including," permitted "the jury to conclude that pain and suffering and loss of life's pleasures are separate items of damages...."5 Defendants concede, and we agree, that this subtle deviation from the model instructions does not constitute "plain error." Defendants nevertheless maintain that this deviation constitutes reversible error and that the case should be reversed inasmuch as the district court's instruction was given "over the express objection of defendant[s]."
But defendants' argument is not supported by the record. Defendants never actually objected to this aspect of the charge. They never brought to the court's attention the difference in language between the model instructions and the instruction that the court proposed to give and ultimately gave. Indeed, defendants did not ever refer to the model instructions at the charging conferences held by Judge Weinstein much less call the judge's attention to the subtle difference between "and" and "including." What the defendants characterize as an express objection to this instruction was nothing more than a general objection to any instruction on the topic of loss of enjoyment. And that objection was properly overruled by Judge Weinstein.
In personal injury actions under state law, we have previously recognized loss of enjoyment of life--"such as inability to play tennis, ski, sail, or fully enjoy homelife activities"--as a compensable element of damages, O'Gee v. Dobbs Houses, Inc.,
Even if defendants' counsel had properly objected to this instruction such that we felt it necessary to reach the question presented by defendants, we doubt that the issue of whether damages for loss of life's pleasures are part of, or separate from, damages for pain and suffering is a matter of as much consequence as the parties seem to believe. To be sure, other courts, believing this to be an issue of some importance, have addressed it. See, e.g., Dugas v. Kansas City S. Ry. Lines,
Finally, it should be noted that the district court's memorandum and order granting defendants' request for a remittitur and calculating the remittitur contains no finding of any such "double counting."
II.
Defendants contend that the district court's judgment should be reversed because Judge Weinstein abused his discretion by not unconditionally ordering a new trial. First, they claim that "since the verdict was so excessive and was obviously the result of passion or prejudice, Judge Weinstein erred in not unconditionally ordering a new trial." But defendants offer no persuasive evidence that the award was "the result of passion or рrejudice" nor do they convince us that the award was "shocking to the 'judicial conscience.' " Donovan v. Penn Shipping Co.,
Additionally, defendants argue that because Judge Weinstein found that plaintiff was guilty of "fraud or other misconduct," the judge abused his discretion in permitting the verdict to stand. That conclusion, however, is without merit inasmuch as the premise is wholly inaccurate. Defendants refer to remarks made by Judge Weinstein in an informal conference where the judge commented in passing that his "own opinion is that [plaintiff is] a malingerer." That hardly constitutes a finding by the judge that the plaintiff was guilty of "fraud or other misconduct." On the contrary, Judge Weinstein wrote a thoughtful and thorough twenty-nine page memorandum and order analyzing the evidence in this case and explaining the rationale for his granting a remittitur. Nowhere does he hint, much less find, that Earl was guilty of fraud or misconduct. Indeed, he observed that "it is apparent that plaintiff's earning capacity--or work capital--was permanently impaired or depleted as a result of his injuries," and that his injuries were "permanently and fully disabling...."
III.
A.
We turn now to the question of whether the district court employed the proper standard in calculating the remittitur. Defendants contend that notwithstanding Judge Weinstein's reduction of the general damage award from $430,000 to $380,000, the general damages award remains exorbitant. Defendants would prefer a new trial, but, in the alternative, they offer two independent arguments for why this court should recalculate the general damages remittitur. First, they suggest that, inasmuch as district courts within our circuit have employed different standards for calculating remittiturs, there is "inappropriate" disparity in those remittiturs. Defendants urge us to prevent such disparities by rejecting the standard used by Judge Weinstein and adopting the "correct" standard. Second, defendants argue that the remittitur should be recalculated on appeal because the district court abused its discretion in calculating the remittitur. For the reasons discussed below, we see no sufficient basis for upsetting Judge Weinstein's finding that the jury award exceeded the "total award that could be justified," or the judgment, based on a remittitur, which gave "maximum effect to" an "exceptionally sympathetic verdict for the plaintiff."
"Remittitur," as we have observed, "is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Shu-Tao Lin v. McDonnell Douglas Corp.,
There are at least three possible rules that district courts have adopted for computing a remittitur. See generally 6A Moore's Federal Practice p 59.08, at 59-192 to -196 (2d ed.1989). See also Shu-Tao Lin,
Some courts have employed the least intrusive standard, holding that the remitted amount should reduce the verdict only to the maximum that would be upheld by the trial court as not excessive. Indeed, this was the standard employed by Judge Weinstеin in the present case. The benefits of this standard are significant. Compared to the alternatives, it is the most faithful to the jury's verdict. Moreover, the plaintiff is unlikely under this standard to opt for a second trial. Once the remittitur is calculated, the plaintiff becomes fully informed of the maximum award that the district court would permit any jury to return in that particular case. From the plaintiff's perspective, therefore, the only objective that might be served by opting for another trial would be to obtain a right to an appeal. A plaintiff can appeal a reduced verdict only after he or she has rejected the remittitur and after a second trial is complete. Donovan,
But defendant urges upon us Professor Moore's argument in fаvor of an "intermediate" standard. The intermediate standard reduces the excessive jury award to what the trial court believes a "properly functioning jury, acting free of suggestions by counsel, would have awarded...." Uris v. Gurney's Inn Corp.,
[t]his intermediate position gives the defendant the benefit of the full supervisory power of the trial court, and yet the plaintiff still has his option to refuse to remit. And it moderately serves the function of remittitur aimed at avoiding the judicial waste of a new trial, for the plaintiff still has a strong incentive to remit. If, on the other hand, the trial court fixes the residue at the lowest amount that it would permit a verdict to stand, this constitutes a considerable intrusion upon the jury's function and the plaintiff's incеntive in remitting is reduced to a minimum. True, if the court adopts the other extreme position and orders a remittitur of only that amount which exceeds the very maximum of recovery that it would uphold, the plaintiff has a very strong incentive to accept the option of remittitur. But the defendant, who has no option, does not have the benefit of the trial court's seasoned judgment as to an amount that is ample and yet thoroughly fair. The intermediate position effects a fair and practicable adjustment.
6A Moore's Federal Practice, supra, at 59-196.
This argument in favor of the "intermediate" standard is not altogether persuasive, despite the surface plausibility of any option that seems to avoid "extreme" positions. First, it is not clear that the plaintiff's "option to refuse to remit" is a particularly valuable option to thе plaintiff. By refusing to remit, a plaintiff must undergo the delay and expense of a second trial. Indeed, a plaintiff is not able to appeal the remittitur order that followed the first trial until after the second trial has concluded. See Part IV, infra. The use of a remittitur therefore has a powerful "coercive effect upon a plaintiff." Donovan,
Professor Moore also expresses concern that a defendant "has no option." It should be remembered, however, that, regardless of whether a plaintiff "elects" the remittitur or "elects" to have a second trial, the plaintiff is made worse off and the defendant is made better off relative to the situation where the jury verdict is permitted to stаnd. Thus, although it has been said that a defendant in these circumstances "has no option," it does not follow that a defendant is therefore entitled to special consideration. Moreover, the defendant does have an option. If the plaintiff accepts the remitted award, the defendant can appeal--as the defendants did in this case. That is an option that the plaintiff does not have. Donovan v. Penn Shipping Co.,
Professor Moore argues further that under the least intrusive standard the "defendant ... does not have the benefit of the trial court's seasoned judgment as to an amount that is ample and yet thoroughly fair. The intermediate position effects a fair and practicable judgment." But that conclusion begs the question. To obtain a "fair" judgment on damages in a case such as this, the law has traditionally deferred to the decision of a jury of laymen drawn from the community at large, and not to the "seasoned judgment" of the trial judge. Cf. Dagnello v. Long Island R.R. Co.,
In sum, we are not persuaded by the argument that the "intermediate" standard favored by Professor Moore should have been employed in computing the remittitur in this case. Indeed, for the reasons stated above, we hold that district courts should use the least intrusive standard for calculating a remittitur. According to that standard, a district court should remit the jury's award only to the maximum amount that would be upheld by the district court as not excessive.
B.
We find nothing in the record to substantiate the claim that Judge Weinstein abused his discretion by remitting the amount that he did.8 See generally Reinertsen,
IV.
Plaintiff makes a similar argument in his cross-appeal. He contends that the district court abused its discretion by ordering such a "drastic remittitur of the lost earnings award" and asks this court to reinstate the jury's special damage award.
But plaintiff's cross-appeal need not detain us. The rule is now clear that "a plaintiff in federal court ... may not appeal from a remittitur order he has accepted." Donovan,
V.
Finally, defendants argue that the district court miscalculated the remittitur by factoring back into the award an unspecified amount for maintenance and cure after having previously dismissed the plaintiff's maintenance and cure claim during the trial. We agree.
It has been clear, at least since Dimick v. Schiedt,
[I]f the question of remittitur were now before us for the first time, it would be decided otherwise. But ... the doctrine has been accepted as the law for more than a hundred years and uniformly applied in the federal courts during that time. And, as it finds somе support in the practice of the English courts prior to the adoption of the Constitution, we may assume that in a case involving a remittitur, which this case does not, the doctrine would not be reconsidered or disturbed at this late day.
Dimick,
In this case, the district court had dismissed the claim for maintenance and cure before the remittitur was calculated. See Note 2, supra. Thus, adding back an award for maintenance and cure five months after it had dismissed that claim constituted an additur which must be stricken from the final award.
CONCLUSION
To summarize, we hold: (1) the district court's charge to the jury regarding contributory negligence did not constitute plain error; (2) the district court's charge to the jury concerning pain and suffering and loss of life's pleasures did not constitute reversible error; (3) the district court did not abuse its discretion in not unconditionally ordering a new trial; (4) the district court used the proper standard for determining the remittitur and did not abuse its discretion by choosing the remittitur that it did; (5) having agreed to the remittitur order, plaintiff cannot challenge it on cross-appeal; and (6) the district court's final damage award includes an unspecified amount for maintenance and cure which constitutes an additur and must therefore be stricken from the final award.
Because it is not entirely clear how much of the extra $40,000 in the final award corresponds to maintenance and cure--according to the plaintiff, the amount was $10,500, and according to the defendants, it was $15,087--we remand to the district court for the sole purpose of calculating and then striking that part of the final award which corresponds to the impermissible "additur" for maintenance and cure. In all other respects, we affirm the judgment of the district court.
Notes
The Honorable Jose A. Cabranes, United States District Judge for the District of Connecticut, sitting by designation
A "bollard" is a post on a dock "around which mooring lines are thrown." Webster's Third New International Dictionary 248 (1976). The "stringpiece" is the heavy squared timber lying along the top of the piles forming a dock front. Id. at 2263
Under general maritime law, a shipowner has a duty to provide "maintenance and cure" to seamen who fall ill or are injured while in the service of the ship. That ancient duty "derives from the 'unique hazards [which] attend the work of seamen,' and fosters the 'combined object of encouraging marine commerce and assuring the well-being of seamen.' ... [T]he breadth and inclusiveness of the shipowner's duty assure its easy and ready administration for '[i]t has few exceptions or conditions to stir contentions, cause delays, and invite litigations.' " Vella v. Ford Motor Co.,
Judge Weinstein had dismissed the maintenance and cure claim on November 1, 1989 (during the trial), because of plaintiff's failure to meet a requirement of submitting a "non-fit for duty certificate."
Rule 51 of the Federal Rules of Civil Procedure provides, in pertinent part, that "[n]o 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."
Referring specifically to this part of the record, defendants' counsel insists that "fundamental error was committed when the jury was instructed that Earl 'was ordered to stand on the bulwark.' " But the record reveals that the jury was never so instructed. Instead, as described above, the district court reviewed for the jury the factual contentions of both the plaintiff and the defendants, and where, as here, they were inconsistent, the jury was left to choose the version that it considered to be the most credible
For similar reasons, defendants also object to the following instruction which the district court gave concerning the present value of damages: "[A]s to future pain and suffering and loss of enjoyment, any amount awarded now can be invested by the plaintiff and, therefore, the present[ ] value of these future d[a]mages may be less than what they would have been if they were paid out by defendant periodically." (JA at 474 (emphasis added))
Defendants also maintain that plaintiff's counsel should not have been permitted to suggest during summation spеcific general damage amounts for both pain and suffering and loss of life's pleasures, because doing so "conditioned the jury into thinking that the same damages could and should be counted twice in computing the general damage award." Without addressing the merits of that claim, it is again enough to point out that the record before us does not support the defendants' contention that they properly objected to this aspect of plaintiff's summation
The law of the Fifth Circuit, to which defendants draw our attention, is not to the contrary. It is true that in Dugas v. Kansas City S. Ry. Lines,
the effect of injuries upon the normal pursuits and pleasures of life is an included item, not a separate one, that is, the normal pursuits and pleasures of life are to be included as a part of pain, suffering, and incоnvenience. It is not a factor to be separately measured as an independent ground for damages.
But in Dugas, unlike the present case, the defendant's counsel had objected, making clear to the district court the basis of the objection, id., and preserving his claim for appeal.
However, nine years after Dugas, in a Jones Act case much like the present case, the Fifth Circuit upheld a separate submission of the claim for "loss of life's enjoyment" where defendant's counsel had failed to object to the proposed instruction:
[W]e find no objection made by [defendant's] counsel to the separate and simultaneous submission of the issues of loss of life's enjoyment and damages for pain, suffering, and mental anguish. By failing to object, defendant denied the Court bеlow an opportunity more precisely to frame the issues involved. For that reason, we have consistently held that a party who fails to object to the form of special interrogatories and accompanying general instructions cannot complain for the first time on appeal. Because [defendant] failed to object, we need not reach the merits of its claimed duplication of award.
Wood v. Diamond M. Drilling Co.,
Thus, in the Fifth Circuit, a party on appeal in a Jones Act action is prohibited from claiming that jury instructions regarding this issue of damages can constitute grounds for reversible error if that party failed to object properly to those jury instructions before the district court. In other words, in the Fifth Circuit, jury instructions such as those given by Judge Weinstein in this case do not constitute "plain error"--i.e., an error that results in a "miscarriage of justice," and that an appellate court may review on appeal notwithstanding the harmed party's failure to make a timely objection. Air et Chaleur,
Indeed, in light of the fact that Judge Weinstein employed the least intrusive standard--i.e., the standard that is most deferential to the verdict of the jury--we are, as suggested above, even less willing to find that he abused his discretion
Assuming for the argument that we had jurisdiction to consider plaintiff's cross-appeal, plaintiff's claim would still fail. Plaintiff's argument regarding the size of the remittitur, like defendants', is based on an assertion that Judge Weinstein abused his discretion. As already noted, however, the record does not support such a claim