     Case: 18-31090      Document: 00514924763         Page: 1    Date Filed: 04/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                    No. 18-31090                               FILED
                                                                           April 22, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
ORVEL P. HALE,

              Plaintiff - Appellee

v.

WOOD GROUP PSN, INCORPORATED; BORDELON MARINE, L.L.C.; ENI
US OPERATING COMPANY, INCORPORATED,

              Defendants - Appellants




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:15-CV-1803


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants Wood Group PSN Inc., Bordelon Marine, L.L.C.,
and ENI US Operating Company, Inc. (“Defendants”), appeal the magistrate
judge’s denial of their motion for new trial or remittitur after a jury found the
Defendants liable for injuries sustained by Plaintiff Orvel Hale in an offshore




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 18-31090
accident. 1 Defendants contend that the magistrate judge abused her discretion
in excluding certain evidence at trial and that the jury’s general damages
award was excessive. We AFFIRM.
       Hale was employed by Oceaneering Inc. as an erosion and corrosion
technician. Hale’s duties required him to spend extended periods offshore,
accessing platforms via offshore supply vessels. Several years prior to his
employment with Oceaneering, Hale suffered a shoulder injury for which he
was prescribed hydrocodone for managing pain. Hale also had a prescription
for Adderall. In June 2014, Hale was injured in an accident during a personnel
basket transfer—a common offshore maneuver whereby personnel stand on a
“basket” that is transferred from one vessel or structure to another via a crane
or some other machinery. During the transfer, the basket struck equipment
on the deck of the vessel, causing Hale to fall from the basket and onto the
deck. Hale sustained significant injuries to his back and took hydrocodone
following the accident. A post-accident drug screen showed positive results for
opiates (hydrocodone) and amphetamine (Adderall).
       Hale sued Defendants, claiming they negligently caused his injuries.
Prior to trial, the magistrate judge 2 granted Hale’s motion in limine to exclude
all evidence pertaining to the post-accident drug screening and Hale’s use of
prescribed medication. Following trial, a jury determined that Defendants
were ninety percent responsible for Hale’s injuries and awarded, inter alia,



       1  Hale’s claims arose out of the Outer Continental Shelf Lands Act, 43 U.S.C. §
1333(a)–(b); the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 903–04; the
General Maritime Law, 28 U.S.C. § 1333; and the laws of the State of Louisiana.
        2 By consent of the parties and district court order, Magistrate Judge Carol B.

Whitehurst was authorized to conduct the proceedings and enter a final decision. Pursuant
to 28 U.S.C. § 636(c)(3), we treat the Magistrate Judge’s denial of Defendants’ motion for new
trial or remittitur as a final decision reviewable by this court. See Coleman v. Sweetin, 745
F.3d 756, 762 n.4 (5th Cir. 2014).

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                                      No. 18-31090
$2,250,000 in general damages. 3 Defendants moved for a new trial on damages
or remittitur, arguing that the jury award was excessive. The magistrate judge
denied the motion. Defendants timely appealed.
       Defendants argue that the magistrate judge erred in excluding evidence
regarding Hale’s post-accident drug screening and his possession and use of
prescription medication pursuant to Federal Rules of Evidence 401 and 403. 4
Evidence is relevant when “it has any tendency to make a fact more or less
probable than it would be without the evidence.”                  FED. R. EVID. 401(a).
However, such evidence may still be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, [or] misleading the jury.” FED. R. EVID. 403. “The district court has
broad discretion in assessing admissibility under the rule providing for
exclusion of relevant evidence if its probative value is substantially outweighed
by danger of unfair prejudice, confusion of issues or misleading jury.”
International Ins. Co. v. RSR Corp., 426 F.3d 281, 299–300 (5th Cir. 2005)
(citation omitted). This determination “is generally accorded great deference


       3   Hale was awarded $3,238,666.02 in damages, reduced by ten percent due to his
comparative fault, for a total award of $2,914,799.42. Hale was awarded $2,250,000 in
general damages, broken down as follows: past physical pain and suffering ($100,000); future
pain and suffering ($1,500,000); past mental pain and suffering ($75,000); future mental pain
and suffering ($225,000); past physical disability, impairment and inconvenience ($25,000);
future physical disability, impairment, and inconvenience ($75,000); past loss of enjoyment
of life ($25,000); and future loss of enjoyment of life ($200,000).
         4 Defendants raise four arguments as to why this evidence should have been admitted:

(1) that evidence of Hale’s post-accident drug screening was relevant to the issue of Hale’s
contributory negligence;(2) that evidence of workplace and environmental policies, which the
magistrate judge excluded, were probative of Hale’s credibility; (3) that testimony regarding
Hale’s behavior prior to the accident, including his use and possession of prescriptions, was
also relevant to his credibility; and (4) that exclusion of evidence of Hale’s pre and post-
accident use of prescription medication led to jury confusion regarding his prior medical
condition, current prognosis, and future medical treatment. We consider these arguments
together, as they all relate to whether the magistrate judge erred in excluding evidence
relating to Hale’s use and possession of his prescription medications, and conclude that none
demonstrate that the magistrate judge abused its significant discretion on this evidentiary
issue.
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                                     No. 18-31090
because of [the magistrate judge’s] first-hand exposure to evidence and
familiarity with the course of trial proceedings.” Id. at 300. Accordingly, the
magistrate judge’s “ruling on admissibility under Rule 403’s balancing test will
not be overturned on appeal absent a clear abuse of discretion.” Wellogix, Inc.
v. Accenture, L.L.P., 716 F.3d 867, 882 (5th Cir. 2013) (quoting Ballou v. Henri
Studios, Inc., 656 F.2d 1147, 1153 (5th Cir. 1981)).
      The magistrate judge excluded the evidence of the post-accident drug
screening and Hale’s use of prescription medication after experts from both
sides agreed that the drug screening was not a reliable indicator of Hale’s
faculties, and therefore the drug screening could not be used to support a
finding that Hale was impaired at the time of the accident. Absent a showing
of some causal connection between Hale’s use of medication and his injuries,
the magistrate judge determined that the evidence was highly prejudicial and
seriously lacking in probative value. We perceive no abuse of discretion in this
determination. 5 See Wellogix, Inc., 716 F.3d at 882.
      Defendants next argue that the magistrate judge erred in denying
Defendants’ motion for new trial or remittitur because the jury award was
clearly excessive. We review the magistrate judge’s denial of the motion for
new trial or remittitur for an abuse of discretion. See Brunnemann v. Terra
Intern., Inc., 975 F.2d 175, 177–78 (5th Cir. 1992). When a jury verdict results
from “passion or prejudice,” a new trial is the proper remedy. Wells v. Dallas
Indep. School Dist., 793 F.2d 679, 683 (5th Cir. 1986). Where a damage award
is “merely excessive, that is, so large as to be contrary to right reason,”
remittitur is the appropriate remedy. Id. at 683–84.




      5 Because we hold the magistrate judge did not abuse her discretion in excluding the
evidence at issue under Rule 403, we need not reach the magistrate judge’s determination
under Rule 401.
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                                      No. 18-31090
       Applying the “clearly excessive rule” for determining the excessiveness
of an award, 6 jury awards will not be disturbed unless they are “so large as to
shock the judicial conscience, so gross or inordinately large as to be contrary to
right reason, so exaggerated as to indicate bias, passion, prejudice, corruption,
or other improper motive, or as clearly exceeding [the] amount that any
reasonable man could feel the claimant is entitled to.” Caldera v. Eastern
Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983) (cleaned up). Under this
standard, courts can look to prior awards resulting from similar injuries to
provide guidance in the excessiveness determination. See Williams v. Chevron,
USA, Inc., 875 F.2d 501, 506 (5th Cir. 1989). Defendants cite to numerous
cases in support of their proposition that the jury award was clearly excessive.
The magistrate judge acknowledged the cases cited by Defendants but found
that the trial produced evidence that Hale’s injuries were distinguishable and
more severe than those in the cited cases. 7 There is no indication in the record
that the magistrate judge abused her discretion in determining that the
present case was distinguishable from the cases cited by Defendants, and that
Defendants failed to satisfy the demanding standard for overturning a jury
award. See id.
       For these reasons, the judgment of the magistrate judge is AFFIRMED.




       6  Defendants argue that the “clearly excessive rule” applies, while Hale argues that
the “maximum recovery rule” is applicable. The maximum recovery rule allows for a jury
award to be up to 150% of the amount of the factually similar award before it is determined
to be disproportionate. See Salinas v. O’Neill, 286 F.3d 827, n.6 (5th Cir. 2002). We assume
arguendo that the clearly excessive standard applies and conclude Defendants are not
entitled to reversal under this rule.
        7 Defendants also argue that inflation should not be considered when using old awards

to determine whether the instant award was excessive, but we have factored in inflation
when making such comparisons in previous cases. See e.g., Puga v. RCX Solutions, Inc., 914
F.3d 976, 987–90 (5th Cir. 2019); Ledet v. Smith Marine Towing Corp., 455 F. App’x 417,
422–23 (5th Cir. 2011).
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