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

                                                                            FILED
                                                                            June 5, 2008

                                       No. 07-40430                   Charles R. Fulbruge III
                                                                              Clerk

NORMAN SEYMORE

                                                  Plaintiff - Appellee
v.

PENN MARITIME INC

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   3:05-CV-528


Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       Penn Maritime, Inc. appeals following a jury verdict in favor of its
employee, Norman Seymore, who filed suit alleging claims of Jones Act
negligence and unseaworthiness. Penn raises several challenges to the district
court’s rulings during trial. For the reasons that follow, we modify the district
court’s judgment and AFFIRM AS MODIFIED.
       1.            Penn argues first that Seymore’s claim for past maintenance
               and cure should have been dismissed because Seymore’s attorneys


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                          No. 07-40430

     paid for Seymore’s surgery and provided him with funds to cover his
     living expenses. It also argues that Seymore did not give Penn prior
     notice of his neck surgery. Penn argued this issue to the district
     court in a motion for judgment as a matter of law at the close of the
     plaintiff’s case and again at the close of all evidence; therefore, our
     review is de novo. See Palastota v. Haggar Clothing Co., 499 F.3d
     474, 480 (5th Cir. 2007).       We conclude that the evidence was
     sufficient to show that Seymore’s expenses were covered by loans
     from his attorneys, and because the loans did not extinguish the
     liability he incurred, the maintenance and cure claim was proper.
     See Gauthier v. Crosby Marine Serv., Inc., 752 F.2d 1085, 1089–90
     (5th Cir. 1985) (holding that a set off for maintenance and cure for
     employee’s medical insurance payment was not required where
     employee incurred expense for insurance). We also conclude that
     the evidence of notice that surgery was required was sufficient.
2.         Penn next argues that the medical opinion of Seymore’s
     treating physician, Dr. Zoran Cupic, concerning Seymore’s injuries
     and need for surgery should have been stricken as unreliable under
     FED. R. EVID. 702 and Daubert v. Merrell Dow Pharmaceuticals,
     Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). “[A] district court has
     broad discretion in deciding the admissibility vel non of expert
     testimony, [and] we will not find error unless the ruling is
     manifestly erroneous.” Guy v. Crown Equip. Corp., 394 F.3d 320,
     325 (5th Cir. 2004). We do not find that standard met here. We
     note that Penn did not contemporaneously object to Dr. Cupic’s
     testimony and never sought a Daubert hearing. Instead, it moved
     to strike the testimony after Cupic had left the stand. Furthermore,
     Dr. Cupic’s opinions, which Penn controverted with opinions from

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     its own expert, were based on his experience, training, and
     examination of Seymore, as well as Cupic’s evaluation of objective
     tests performed on Seymore. The district court did not abuse its
     discretion by admitting the doctor’s testimony. See Pipitone v.
     Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (noting that “this
     circuit has upheld the admission of expert testimony where it was
     based on the expert’s specialized knowledge, training, experience,
     and first-hand observation while supported by solid evidence in the
     scientific community”).
3.         Penn also challenges under Daubert the testimony of
     Seymore’s economist, Dr. Kenneth McCoin. Penn argues that Dr.
     McCoin’s testimony was based on insufficient facts because McCoin
     lacked knowledge of Seymore’s vocational potential and employment
     history. McCoin provided the methodology for the jury to determine
     the economic loss, which Penn does not challenge. He encouraged
     the jury to account for the actual facts in the case, and Penn had
     adequate opportunity to cross-examine him about his assumptions.
     Penn fails to show the testimony was not relevant or reliable.
4.         Penn next argues that the district court erroneously failed to
     admit under Rule 404(b) records from two of Seymore’s prior
     employers. The district court permitted Penn to develop its theory
     largely through cross-examination, and Penn read from a portion of
     one of the records. We see no abuse of discretion in the district
     court’s exclusion of the records, and, even assuming error, it was
     harmless in light of Penn’s cross-examination. See Brunet v. United
     Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994) (“We review the
     admission of evidence for abuse of discretion and will reverse only



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     if the challenged ruling is erroneous and affects a substantial right
     of the party.”).
5.         Penn next argues that the jury verdict form and special
     interrogatories were erroneous because the jury was not asked
     specifically whether an accident occurred. The jury was asked to
     determine whether Penn was negligent and whether such
     negligence caused Seymore’s injuries. The existence vel non of an
     accident is subsumed within that question. We conclude that the
     district court did not abuse its discretion in framing the
     interrogatories and that the interrogatories, read in conjunction
     with the charge as a whole, adequately presented the contested
     issues to the jury. See Dreiling v. Gen. Elec. Co., 511 F.2d 768, 774
     (5th Cir. 1975).
6.         Penn further challenges as arbitrary the district court’s
     limitation of its time to cross-examine witnesses and present its case
     to 10 hours.       Penn did not object to the district court’s time
     restrictions at trial, and our review is limited to plain error. We are
     convinced from a review of the record that Penn had sufficient time
     to develop its defensive theories and present its case. Penn fails to
     show that the district court abused its broad discretion to manage
     its docket and control the trial. See Sims v. ANR Freight System,
     Inc., 77 F.3d 846, 849 (5th Cir. 1996).
7.         Penn also argues that plaintiff’s counsel was allowed to make
     improper comments during closing argument that attacked defense
     counsel, appealed to regional prejudices, and accused defense
     counsel of suborning perjury. A review of the record, including the
     district court’s cautionary instruction to the jury, shows that the
     error, if any, was harmless.

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8.         Finally, Penn argues that the district court erroneously
     awarded prejudgment interest on the jury’s award, which did not
     apportion damages between the Jones Act claim and the
     unseaworthiness claim. Seymore does not oppose reformation of the
     judgment to omit interest on the damages but not maintenance and
     cure. We agree that there was error, and therefore the judgment
     must be modified to omit the prejudgment interest to that extent.
     See McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 531–32 (5th
     Cir. 1987); see also Ferrero v. United States, 603 F.2d 510, 515 (5th
     Cir. 1979) (noting that circuit court may recompute a damages
     award “if a remand would be mere wasted motion”)
The district court’s judgment is AFFIRMED AS MODIFIED.




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