           United States Court of Appeals
                       For the First Circuit

No. 00-1099

                        GEORGE DIEFENBACH,

                       Plaintiff, Appellee,

                                 v.

                     SHERIDAN TRANSPORTATION,

                       Defendant, Appellant.



                    SIX TUG BARGE CORPORATION,

                       Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Joseph L. Tauro, U.S. District Judge]


                               Before

                      Boudin, Circuit Judge,
                  Bownes, Senior Circuit Judge,
                    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.

I.   Facts.

          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 ITB1 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



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.

                                 -3-
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

$900,000.00.

              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. See United States v.

Dumas, 207 F.3d 11, 14 (1st Cir. 2000). The same standard of review is

applied to the admissibility of expert testimony. See Palmacci 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] claims.”

              The defendant concedes that expert testimony was necessary

to assist the trier of fact because this case involved docking and


                                     -4-
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:




                                  -5-
                  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


                                 -6-
assist the trier of fact in determining the validity of the appellee's

claims.”

           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


                                    -7-
          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



                                 -8-
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.




                                 -9-
            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




                                  -10-
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


                                 -11-
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. See Scarfo

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




                                 -12-
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,

2    Defendant's 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 the point.

                                  -13-
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.

Affirmed.




                               -14-
