
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1244                                    ANGEL TOUCET,                                 Plaintiff, Appellee,                                          v.                               MARITIME OVERSEAS CORP.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Andrew  H.  Quinn  with  whom Dante  Mattioni,  Francis  X. Kelly,            _________________             _______________   _________________        Mattioni,  Mattioni & Mattioni, Ltd., and Antonio Jimenez Miranda were        ____________________________________      _______________________        on brief for appellant.            Harry A. Ezratty for appellee.            ________________                                 ____________________                                    April 20, 1993                                 ____________________        _____________________        * Of the District of Massachusetts, sitting by designation.             SKINNER, Senior District Judge                      _____________________                  Plaintiff Angel Toucet, a seaman, brought this action             against his employer, Maritime Overseas Corporation, seeking             damages for a back injury suffered aboard the defendant's             vessel, the Overseas Alaska.  Toucet alleged negligence                         _______________             under the Jones Act, 46 U.S.C.   688, and unseaworthiness             under general maritime law.  After trial, a jury returned a             special verdict in Toucet's favor on the Jones Act count,             but did not find the Overseas Alaska to be unseaworthy.  The                                  _______________             trial court denied Maritime's motions for judgment n.o.v.             and a new trial or, in the alternative, for remittitur of             the $75,000 verdict.                    On appeal, Maritime contends that the trial court erred             in denying Maritime's motions for judgment n.o.v. and a new             trial because the jury's finding of negligence is             irreconcilably inconsistent with its rejection of the claim             of unseaworthiness.  Maritime also asserts that the trial             court erred by allowing Toucet's counsel to pose a             hypothetical question that was improperly based on facts not             in evidence and by denying Maritime's motion for remittitur.                                          2             BACKGROUND             BACKGROUND                  We briefly review the evidence developed at trial in             the light most favorable to Toucet.  See Transnational Corp.                                                  _______________________             v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1068 (1st Cir.             ________________________             1990).                        On August 27, 1987, while the Overseas Alaska was in                                                _______________             the port of New Orleans, the crew was advised that the             vessel's cargo tanks would be bottom washed.  Seeking to             avoid the cleaning operation, Toucet and two other crew             members requested leave to quit the ship.  Toucet told the             boatswain that after working approximately twelve hours             consecutively he was too exhausted to participate in the             tank cleaning.  Toucet's request was denied because the             ship's union agreement required crew members to provide 24             hours advance notice before quitting.                    At approximately 5:30 p.m., the cleaning process, which             is commonly called "butterworthing," began.  Several             witnesses testified that butterworthing is hard work,             requiring several men to complete the task.  On this             particular day, the Overseas Alaska's crew was divided into                                 _______________             two six-hour shifts, each consisting of four men.  Toucet,             who was now working overtime, was assigned to the first             shift.  While the Overseas Alaska's union agreement required                               _______________                                          3             a minimum of three men to perform the task, testimony at             trial revealed that butterworthing was ordinarily performed             on other ships by more than four men.                     The term butterworthing refers to the equipment (a             butterworth machine) used to clean the tanks.  During trial,             the butterworth was described as a brass cylindrical device,             weighing approximately 30 pounds.  The butterworth is             attached to the end of a flexible, hard rubber hose that has             a 10-inch diameter and weighs approximately 100 pounds.  To             accomplish bottom washing, the crew lowers the hose and             butterworth approximately 30-40 feet into the openings of             each tank.  Once in the tank, hot water is pumped through             the hose into the butterworth.  The water pressure causes             the head of the butterworth to spin and, while the head             spins, water is forced out of two release valves located on             the side of the butterworth.  Upon release from the             butterworth, the hot water is directed against the wall and             floor panels of the cargo tanks at approximately 90 p.s.i.             pressure.  Once a tank is cleaned, the crew pulls the             butterworth and hose out of the opening and moves or             "shifts" the equipment to the next opening.  Typically, the             removal process is accomplished by the seamen pulling on the             hose in unison.                                            4                  Toucet testified that he was injured while removing the             butterworth and hose from one of the Overseas Alaska's                                                  _______________             tanks.  More specifically, Toucet testified that the deck             engine utility (DEU), who was one of the crew members             assigned to assist in the butterworthing, was inexperienced             and inept at the task.  As a result of the DEU's             inexperience, the hose was allowed to slacken on several             occasions.  Toucet and at least one other team member             complained to the boatswain that the DEU's inexperience was             making the butterworthing more difficult and Toucet again             reported that he was exhausted.  The boatswain replied that             he could not do anything because the rest of the crew was             sleeping.  A short time after complaining, Toucet testified             that he was jolted by grasping at the slipping hose and that             he felt his back crack when he attempted to stand erect.                     The case was submitted to the jury on both the Jones             Act and general maritime law claims.  With regard to             unseaworthiness, Toucet alleged that the Overseas Alaska was                                                      _______________             unseaworthy in relation to the butterworthing operation             because: (1) the number of seamen provided to complete the             task was inadequate, and (2) one of the seamen who was             assigned to the task was inexperienced and inept.  Toucet's             negligence claim under the Jones Act was similarly based on                                          5             Maritime's failure to provide an adequate and experienced             crew for the butterworthing operation.  In addition, Toucet             alleged that Maritime was negligent by requiring him to             participate in the butterworthing operation despite his             earlier complaint of exhaustion.              DISCUSSION             DISCUSSION             A.   Alleged Verdict Inconsistency                  _____________________________                  When a special verdict form results in apparently             conflicting findings, a court has a duty under the Seventh             Amendment to harmonize the answers if at all possible under             a fair reading.  Atlantic & Gulf Stevedores, Inc. v.                              ___________________________________             Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962); Santiago-             ____________________                            _________             Negron v. Castro-Davila, 865 F.2d 431, 443 (1st Cir. 1989)             _______________________             (citing Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108,                     ____________________________________             119 (1963)).                  Maritime contends that the jury's answers on the             negligence and seaworthiness questions cannot be harmonized             because both claims are grounded on the same underlying             factual allegations -- that the crew was both inadequate and             too inexperienced to accomplish the butterworthing task.  By             finding the Overseas Alaska to be seaworthy, Maritime argues                         _______________             that the jury necessarily rejected Toucet's inadequate and             inexperienced assistance allegations.  Maritime concludes,                                          6             therefore, that there was no basis for finding it negligent             and that the verdict must be set aside as irreconcilably             inconsistent.                  We need not address the merits of this argument because             Maritime failed to make a timely objection to the alleged             inconsistency.  In this circuit, a "party waives             inconsistency if it fails to object after the verdict is             read and before the jury is dismissed."  Bonilla v. Yamaha                                                      _________________             Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992) (citing             ____________             Austin v. Lincoln Equip. Assocs., 888 F.2d 934, 939 (1st             ________________________________             Cir. 1989)); Peckham v. Continental Casualty Ins. Co., 895                          __________________________________________             F.2d 830, 836 (1st Cir. 1990) (citing McIsaac v. Didriksen                                                   ____________________             Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987)).  This is             _____________             because the "only efficient time to cure the problem is             after the jury announces its results and before it is             excused, and it is the responsibility of counsel to make             timely objection."  Austin v. Lincoln Equip. Assocs., 888                                 ________________________________             F.2d at 939.                  We have carefully reviewed the entire record in this             case, including the clerk's minutes of the proceedings and             the docket sheet.1  It is apparent from the record that                                              ____________________             1    Under Rule  10, the record on  appeal properly includes             "[t]he original  papers and  exhibits filed in  the district             court,  the  transcript  of   proceedings,  if  any,  and  a                                          7             Maritime failed to object to the verdict's asserted             inconsistency prior to the jury's discharge.  (Clerk's             Minutes, Oct. 10, 1991; Docket Entry   71.)  In fact,             Maritime did not raise the inconsistency issue until filing             its post trial motions on October 23, 1991 -- 13 days after             the jury was discharged and long after the optimum time for             curing any alleged defect.  (Docket Entry   74.)  While             Maritime omitted the portion of the transcript relating to             the reading of the verdict from its appendix,2 our review             on appeal is not limited to the materials submitted by the             parties.  FED. R. APP. P. 30(a) ("The fact that parts of the             record are not included in the appendix, shall not prevent             the parties or the court from relying on such parts.").                    Maritime's failure to object cannot be excused by its             inability to anticipate the jury reaching potentially             inconsistent findings.  See McIsaac v. Didriksen Fishing                                     ________________________________                                              ____________________             certified copy of the  docket entries prepared by the  clerk             of the district court . . . ."  FED. R. APP. P. 10(a).  Rule             10's scope  reaches "'all  papers presented to  the district             court and filed  in the record and  all papers filed  by the             district court itself.'"   In re Arthur Andersen &  Co., 621                                        ____________________________             F.2d 37, 39  (1st Cir. 1980)  (quoting 9  JAMES W. MOORE  ET             AL., MOORE'S FEDERAL PRACTICE   210.04[1]).             2    Maritime's  failure  to include  the  October 10,  1991             transcript in its appendix is  particularly surprising since             the  verdict, which was returned  and read in  open court on             that day, is the primary focus of the present appeal.                                           8             Corp., 809 F.2d at 134 (rejecting appellant's argument that             _____             it could not have anticipated verdict inconsistency where             jury instructions and special verdict form served as             harbingers for inconsistency).  The circumstances of this             case indicate that Maritime had ample opportunity to             "portend possible verdict inconsistency."  Austin v. Lincoln                                                        _________________             Equip. Assocs., 888 F.2d at 939.  For instance, Maritime             ______________             should have been alerted by the use of the special verdict             form alone.  See id.  As we noted previously, "'[t]he mere                          ________             fact that the jury's verdict would be in the form of special             answers should have been enough to alert counsel to             potential inconsistency.'"  Id. (quoting McIsaac v.                                         ____         __________             Didriksen Fishing Corp., 809 F.2d at 134).               _______________________                  In addition to the special verdict form, Maritime             should have been alerted to the potential inconsistency by             the jury instructions.  See McIsaac v. Didriksen Fishing                                     ________________________________             Corp., 809 F.2d at 134.  The court specifically instructed             _____             the jury that the negligence and unseaworthiness claims were             "separate and independent" and that the plaintiff could             recover on one or both.  (Appellant's App. at 753a and             760a.)  In fact, the jury requested additional instructions             regarding the meaning of unseaworthiness.  (Clerk's Minutes,             Oct. 10, 1991; Docket Entry   71.); see McIsaac v. Didriksen                                                 ________________________                                          9             Fishing Corp., 809 F.2d at 134 (counsel on notice of             _____________             potential inconsistency where jury interrupted deliberations             to inquire into differences between negligence and breach of             warranty claims).                   Despite these obvious warning beacons, Maritime             remained silent while the verdict was read and the jury was             discharged.  We decline to condone this "'agreeable             acquiescence to perceivable error as a weapon of appellate             advocacy.'"  Id. (quoting Merchant v. Ruhle, 740 F.2d 86, 92                         ____          _________________             (1st Cir. 1984)).                  While the timeliness issue was not addressed by either             party and consequently was not explored by the trial court,             "'[w]e are, of course, free to affirm a district court's             decision on any ground supported by the record even if the             issue was not pleaded, tried or otherwise referred to in the             proceedings below.'"  Chamberlin v. 101 Realty, Inc., 915                                   ______________________________             F.2d 777, 783 n.8 (1st Cir. 1990) (quoting Norris v.                                                        _________             Lumbermen's Mut. Casualty Co., 881 F.2d 1144, 1151-52 (1st             _____________________________             Cir. 1989) (additional citations omitted)).  This is             particularly appropriate here because the parties have had             sufficient opportunity to develop arguments relating to the             verdict's alleged inconsistency before both the trial court             and this court.  See Papex Int'l Brokers, Ltd. v. Chase                              ___ __________________________________                                          10             Manhattan Bank, 821 F.2d 883, 885 (1st Cir. 1987).  In             _______________             addition, Maritime's untimely objection is apparent from the             record and our determination can be made as a matter of law.              See Watterson v. Page, No. 92-1224, 1993 U.S. App. LEXIS             _____________________             2029, at *14 n.3 (1st Cir. Feb. 9, 1993).  Under these             circumstances, it is appropriate to affirm the trial court's             decision, even though the precise issue was neither raised             by the parties or addressed by the trial court.  See id.                                                               ______                  Accordingly, we hold that Maritime waived any potential             inconsistency in the jury's verdict as a basis for appeal by             failing to object before the jury was discharged.                  In any case, there is no inconsistency between the             verdicts in this case.  It is well recognized that claims             under the Jones Act and claims for unseaworthiness are             discrete claims.  See, e.g., Usner v. Luckenbach Overseas                               _______________________________________             Corp., 400 U.S. 494, 498 (1971).  While the evidence is             _____             often congruent, or at least overlapping, this is not             necessarily so, and a number of cases demonstrate that a             single incident of negligence, such as the requirement that             a seaman work when he has reported that he was too fatigued             to do so, may occur without rendering the ship unseaworthy.              Borras v. Sea-Land Serv., Inc., 586 F.2d 881, 888 (1st Cir.             ______________________________             1978); Merchant v. Ruhle, 740 F.2d at 91; Simeon v. T. Smith                    _________________                ____________________                                          11             & Son, Inc., 852 F.2d 1421, 1433 (5th Cir. 1988), cert.             ___________                                       _____             denied, 490 U.S. 1106 (1989); Gosnell v. Sea-Land Serv.,             ______                      ____________________________             Inc., 782 F.2d 464, 467 (4th Cir. 1986); Kokesh v. American             _____                                    __________________             S.S. Co.,  747 F.2d 1092, 1094 (6th Cir. 1984).               __________                  We also find that sufficient evidence was established             at trial to support the jury's finding of negligence.  A             plaintiff's burden of proving causation under the Jones Act             is "featherweight".  Leonard v. Exxon, 581 F.2d 522, 524                                  ________________             (5th Cir. 1978), cert. denied, 441 U.S. 923 (1979).                               ____________             Liability exists if the employer's negligence contributed             even in the slightest to the plaintiff's injury.  Santana v.                                                               __________             United States, 572 F.2d 331, 335 (1st Cir. 1977) (citing             _____________             Rogers v. Missouri-Pacific R.R. Co., 352 U.S. 500, 506             __________________________________             (1957)).  Here, sufficient evidence was introduced to             support the jury's determination that Maritime was negligent             in requiring Toucet to continue working despite his claims             of exhaustion and inadequate assistance, and that this             negligence contributed to Toucet's back injury.  Perez v.                                                              ________             Maritime Transport Lines, Inc., 661 F.2d 254, 254 (1st Cir.             ______________________________             1979) (employer negligent for not relieving the plaintiff             from duty despite the plaintiff's complaints of overwork and             inadequate assistance, and that negligence contributed to             the plaintiff's injury).                                          12             B.   Improper Hypothetical Question                  ______________________________                  Maritime asserts that the trial court erred by allowing             the plaintiff's expert witness, Dr. Jaun Llompart, to answer             a hypothetical question that improperly assumed facts not in             evidence.  Specifically, plaintiff's counsel asked Dr.             Llompart to assume, in part, that a hypothetical seaman was             injured after pulling a hose and butterworth out of 12 tank             openings.  Maritime asserts that this assumption was             contrary to the evidence introduced at trial, which revealed             that Toucet was injured after only 4 tank openings were             cleaned.                    While a hypothetical should include only those facts             supported by the evidence, Iconco v. Jensen Constr. Co., 622                                        ____________________________             F.2d 1291, 1301 (8th Cir. 1980), the record here indicates             that sufficient facts existed to support the challenged             hypothetical.  Each numbered tank had twelve openings, six             on the port side and six on the starboard side.              (Appellant's App. at 48a; 154a-56a; 162a.)  During direct             examination, Toucet testified that he and the rest of the             team lowered a total of six hoses into the first six             openings of tank number one, three on each side.  Id. at                                                               ____             51a; 162a.  After completing the first six openings, the             team proceeded to clean the remaining six openings of tank                                          13             number one in the same manner.  Toucet testified that after                                           __             completing the butterworthing of tank number one he and the             team proceeded to the first opening of tank number two.              Toucet felt his back "crack" while working on tank number             two.  On this record, we find that the factual assumptions             underlying the plaintiff's hypothetical were fully supported             by the evidence.  Moreover, Federal Rules of Evidence 703             and 705 place the "full burden of exploration of the facts             and assumptions underlying the testimony of an expert             witness squarely on the shoulders of opposing counsel's             cross-examination."  Smith v. Ford Motor Co., 626 F.2d 784,                                  _______________________             793 (10th Cir. 1980), cert. denied, 450 U.S. 918 (1981).                                    ____________             During its cross-examination of Dr. Llompart, Maritime             elected not to explore any perceived discrepancies or             inconsistencies relating to the hypothetical, nor did             Maritime ever explicitly call the attention of court or             counsel to the discrepancy it now asserts.                    In short, Maritime's assertion of error is without             merit.  Accordingly, we affirm the trial court's ruling             admitting Dr. Llompart's answer to the hypothetical             question.                                            14             C.   Remittitur                  __________                  The final issue is the propriety of the trial court's             denial of Maritime's motions for a new trial on damages or,             in the alternative, for remittitur.  Maritime alleges that             the jury's $75,000 damage award for what it characterizes as             a "BenGay back injury" is unreasonably excessive and             unsupported by the evidence.                    We review the trial court's denial of Maritime's             motions for "manifest abuse of discretion."  Joia v. Jo-Ja                                                          _____________             Serv. Corp., 817 F.2d 908, 918 (1st Cir. 1987) (citing             __________             Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 975 (1st             _________________________________             Cir.), cert. denied, 409 U.S. 876 (1972)), cert. denied, 484                    ____________                        ____________             U.S. 1008 (1988).  In challenging the jury's determination             of damages, Maritime assumes a heavy burden.  Milone v.                                                           _________             Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988).  This             ___________________             court has previously observed that, "'[t]ranslating legal             damage into money damages . . . is a matter peculiarly             within a jury's ken.'"  Id. (quoting Wagenmann v. Adams, 829                                     ___          __________________             F.2d 196, 215 (1st Cir. 1987)).  Accordingly, a jury's             judgment regarding the appropriate damage award is given             wide latitude and will be upheld so long as it does not             exceed "'any rational appraisal or estimate of the damages             that could be based on the evidence before the jury.'"  Id.                                                                     ___                                          15             (quoting Segal v. Gilbert Color Sys., 746 F.2d 78, 81 (1st                      ___________________________             Cir. 1984)).  In making this determination, we view the             evidence in the light most favorable to the plaintiff.              McDonald v. Federal Lab., Inc., 724 F.2d 243, 246 (1st Cir.             ______________________________             1984) (quoting Betancourt v. J.C. Penny Co., 554 F.2d 1206,                            ____________________________             1207 (1st Cir. 1977)).                    Cast in the appropriate light, we find that the jury's             assessment of Toucet's damages is within the "'wide range of             arguable appropriateness.'"  Milone v. Moceri Family, Inc.,                                          ______________________________             847 F.2d at 40 (quoting Wagenmann v. Adams, 829 F.2d at                                     __________________             216).  In calculating the amount of damages, the jury was             instructed to consider lost earnings, as well as pain and             suffering.  With regard to lost earnings, the evidence             indicated that Toucet was unable to work for more than three             months after his injury.  Although Toucet was pronounced             "fit for duty" by his doctor and attempted to resume work as             a seaman in December 1987, Toucet testified that he was             unable to remain on the job for more than a few days because             of his back injury.  In terms of pain and suffering, Toucet             testified that, up until the time of trial, he continued to             suffer pain and discomfort attributable to his injury aboard             the Overseas Alaska, even though the injury occurred four                 _______________             years earlier.                                               16                  Under these circumstances, we conclude that the jury's             $75,000 judgment cannot be fairly characterized as "`grossly             excessive,'" "`inordinate'" or "`shocking to the             conscience'".  See McDonald v. Federal Lab., Inc., 724 F.2d                            _________________________________             at 246 (quoting Grunenthatl v. Long Island R.R. Co., 393                             ___________________________________             U.S. 156, 159 n.4 (1968)).  Accordingly, we find no abuse of             discretion in the trial court's denial of Maritime's motions             for a new trial on damages or for remittitur.             CONCLUSION             CONCLUSION                  The trial court's orders directing judgment to enter             according to the jury's verdict and dismissing Maritime's             post trial motions are AFFIRMED.                                    AFFIRMED.                                          17
