                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No. 01-40660


                        JAMES HAROLD CURRY,

                                                Plaintiff-Appellee,


                               VERSUS


                      ENSCO OFFSHORE COMPANY,

                                                Defendant-Appellant.




          Appeal from the United States District Court
               For the Southern District of Texas
                            (3:00-CV-22)
                          October 30, 2002


Before GARWOOD and DENNIS, Circuit Judges, and LITTLE, District

Judge.*



DENNIS, Circuit*

     In this diversity action, James Harold Curry (“Curry”) sues


     *
       Chief District Judge of the Western District of Louisiana,
sitting by designation.
     *
       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this opinion should not be published and is not precedent except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.
his former employer, ENSCO Offshore Company (“ENSCO”), for injuries

he suffered while working on an offshore drilling rig.        Curry

states claims for negligence under the Jones Act, 46 U.S.C. § 688,

and for unseaworthiness of the vessel under maritime tort law.   At

the end of a five-day trial, the jury returned a verdict in favor

of Curry on his negligence claim but in favor of ENSCO rejecting

his unseaworthiness claim.     The jury awarded Curry $507,562 in

damages on his negligence claim for loss of past earnings, loss of

future earning capacity, future medical expenses, and pain and

suffering.    On that claim, the jury apportioned fault for Curry’s

injury sixty percent to ENSCO and forty percent to Curry.

     Shortly before the jury returned its verdict, the district

court denied ENSCO’s pre-verdict motions for judgment as a matter

of law to dismiss Curry’s claims and request for future medical

expenses.    Immediately after taking the verdict, the court, acting

sua sponte, asked the parties to brief the issue of Curry’s

contributory negligence. Without specifically addressing the issue

again, the court ordered that final judgment be entered for Curry

in the amount of $507,562, plus pre-judgment and post-judgment

interest, thus implicitly granting judgment as a matter of law for

Curry exculpating him of any contributory negligence.     After the

court denied ENSCO’s post-verdict motions, including its renewed

motion for judgment as a matter of law, ENSCO timely appealed.




                                  2
I.   FACTS AND PROCEDURAL HISTORY

     James Curry worked as a derrickman on ENSCO’s drilling rig 94.

On July 6, 1997, ENSCO made the decision to dismantle the rig’s top

drive in place, in preparation for the rig’s move to a new

location.   Among other tasks, Curry was assigned to help with its

dismantling. The top drive is a fifty-foot long piece of machinery

that is used to turn the rig’s drill stem.       It operates in a

position vertical to the drill floor.   Because ENSCO did not erect

a platform for the dismantling job, Curry had to be hoisted into

the air in a riding belt to perform the work.     While suspended,

Curry used a ten- to sixteen-pound sledgehammer to jolt lose pipe

fittings.   He spent six or seven hours in the riding belt during

his twelve-hour shift that day.

     Curry began to experience pain in his lower back sometime

during his work shift on July 6, 1997.        Chad Jones, Curry’s

coworker, testified that Curry complained of pain after he had been

in the riding belt and that he could see the pain on Curry’s face

after he finished his work in the belt.   Curry was in severe pain

the next day.   He reported for duty but did not perform much work.

He sought treatment from the rig’s medic, who asked him whether he

had been in a riding belt.1       On July 9, 1997, Curry sought

treatment from medical personnel on shore.   He was diagnosed with

     1
       Curry completed an Employee Injury or Illness Report, on
which he wrote, “I felt fine when I got off work. Got up and my
leg was hurting and got worse as the day went on.” He stated on
the report that the time of his injury was “unknown.”

                                  3
lumbar disc herniations and underwent a lumbar laminectomy and

discectomy.   After being released by his doctors and limited by a

functional capacity evaluation to medium-level work, Curry went to

work as a welder, the job he held at the time of trial.      Curry

maintains that he continues to experience back pain, for which he

takes prescription and nonprescription pain medication.

      On January 14, 2000, Curry filed a complaint in the District

Court for the Southern District of Texas, alleging his back injury

was caused by ENSCO’s negligence and the unseaworthiness of the

ENSCO 94.     He demanded compensatory damages, as well as pre-

judgment and post-judgment interest and attorney fees and costs.

      At trial, Curry testified he could not say when on July 6,

1997, his injury happened or what particular incident had caused

it.   He stated that he assumed the injury was caused by swinging a

sledgehammer while suspended in the riding belt.   Three of Curry’s

coworkers testified that swinging a sledgehammer while in a riding

belt was difficult and physically demanding work.2      Two of the

coworkers stated that the top drive could have been dismantled by

erecting a scaffold around it or by laying it on the deck.    They

testified that working on the top rig in either of those situations

      2
       Timmy Dean testified that five minutes in the sling was
comparable to an hour of work on the floor. Chad Jones described
the task as the most difficult part of tearing down the top drive
while it was in the vertical position.    A third coworker, Y.C.
White, testified, “There ain’t no man going to take a 12-pound
hammer on a riding belt.”       Despite the implication of this
statement, White also testified that it was not unsafe to use “a
hammer” while in a riding belt.

                                 4
was safer than dismantling it by use of a riding belt.    There was

also testimony that the manufacturer of the top drive required its

employees to work on top drives only with scaffolding or after they

had been laid down.

     Curry presented the expert testimony of Ed Robert, who the

district court found qualified as a marine safety expert.   Robert

opined that swinging a sledgehammer while suspended in a riding

belt (as to opposed to swinging a sledgehammer while standing on a

flat surface) was an unsafe practice.   In particular, he explained

that the practice was unsafe because a worker suspended in the air

cannot use his legs for leverage or to stop his motion:

     And the reason I say that that’s a criticism, it’s unsafe
     and unacceptable, in my judgment, my opinion, that when
     you’re suspended in a riding belt, which is nothing more
     than straps between your legs and around your waist, you
     have no place to put your feet. You’re not holding onto
     anything, you’re just hanging there. And you swing that
     hammer, heavy hammer, it’s like being in a child’s swing.
     And you swing something like a baseball bat. You just
     kind of go around, you don’t have any control over
     stopping it. And there are better ways to do it. That’s
     an unsafe practice, in my opinion, and shouldn’t have
     been done that way.

The practice, he said, “puts a strain on [the worker’s] system that

just isn’t necessary.”   He stated that he based his opinion on his

common sense understanding of leverage and body control, his

personal experience with riding belts and the use of mauls, and his

professional experience as the safety director of a drilling

company.   With regard to industry custom and practice, Robert

testified that when he was employed by the Mayronne drilling


                                 5
company, the use of mauls while in a riding belt was “against

[company] policy.”    He stated that two safer alternatives were to

erect scaffolding or to lay the top drive on the platform floor.

     Before the trial, ENSCO moved to strike Robert as a witness.

At the hearing on ENSCO’s motion the district court determined that

ENSCO’s criticisms of Robert’s qualifications went to the weight of

Robert’s testimony, not its admissibility.          The court therefore

denied   ENSCO’s   motion.   At   the   trial,   over     ENSCO’s   renewed

objection, the district court found Robert “well qualified” as an

expert in the field of marine safety.3

     Curry also presented the testimony of his treating orthopedic

surgeon and neurologist.     Dr. Frazer Gaar testified that it was

“more probable than not” that Curry’s herniated discs were caused

by his riding belt work assignment on July 6, 1997.             Dr. Bruce

Raymon   testified   similarly,   agreeing   with   the    statement   that

Curry’s herniated discs were “within a reasonable degree of medical


     3
       On voir dire, Robert testified that he had worked as a
roughneck on land rigs during two periods of his life.        After
receiving a bachelors degree in petroleum geology from the
Louisiana State University, and then serving in the Navy, he worked
as an exploration geologist. Later, he worked for fourteen years
as the corporate safety and training director for the Mayronne
Company, an offshore drilling contractor. In this capacity, he put
together a safety program and monitored its effectiveness;
conducted accident investigations and reconstructions; held safety
meetings; and monitored compliance with government regulations.
Since leaving Mayronne, Robert had offered course, seminars, and
industry consulting services related to oilfield operations,
equipment, and safety. Robert also stated that he had testified in
over 120 state and federal trials in Alabama, Louisiana,
Mississippi, and Texas.

                                   6
probability related to his work activities on or about July 6,

1997.”

     ENSCO presented the expert testimony of Dr. Rajeev Kelkar, a

biomechanical engineer. Dr. Kelkar stated that the amount of force

that acts on a person’s back when the person swings a sledgehammer

while suspended in a riding belt is no different than that when the

person swings the sledgehammer while standing on a flat surface.

He explained that the load placed on the lower back is determined

solely by what is in a person’s hands and where the hands are in

relation to the body, not by the location of the person’s feet.   He

acknowledged, however, that the lack of leg support increases

stress on a person’s upper extremities.

     At the close of the evidence, ENSCO moved for judgment as a

matter of law on both of Curry’s claims, as well as on Curry’s

demand for future medical expenses.4   The district court denied the

motions.    Shortly thereafter, the jury returned a verdict finding

that ENSCO’s negligence was a cause of Curry’s damage but that the

drilling rig was seaworthy.     In connection with the verdict of

negligence, the jury attributed 60% of the fault to ENSCO and 40%

to Curry.    It awarded Curry $41,617 for loss of past earnings,

$315,945 for loss of future earning capacity, $50,000 for pain and

suffering, and $100,000 for future medical expenses for a total

     4
       ENSCO attempted to move for judgment as a matter of law on
these grounds at the close of Curry’s proof; however, the district
court stated that it would not entertain the motion until the jury
had been instructed.

                                  7
award of $507,562.

       After   taking    the   verdict,   the    district    court    requested

briefing by the parties as to whether it should enter judgment as

a matter of law that Curry was not contributorily negligent and

whether Curry should be awarded future medical expenses. The court

then   entered    an    interim   judgment      awarding    Curry    the   entire

$507,562.

       ENSCO filed posttrial pleadings to include the jury’s 40%

comparative fault finding in the interim judgment; to deny judgment

as a matter of law that Curry was not contributorily negligent; to

enter judgment as a matter of law rejecting Curry’s negligence

claim, including his request for future medical expenses; to deny

Curry any award of pre-judgment interest; and to limit any award to

Curry of post-judgment interest to the rate allowed by law.                  The

district court denied all ENSCO’s motions and ordered the entry of

final judgment on May 15, 2001, in the amount of $507,562, plus

pre-judgment and post-judgment interest at the rate of 7.5%.                  The

court thus ruled implicitly, but not explicitly, that as a matter

of law Curry was not contributorily negligent.

       After the district court denied ENSCO’s motion to alter the

final judgment to include the jury’s comparative fault finding,

ENSCO timely appealed.

II.    ANALYSIS

A.     Curry’s Expert Witness



                                      8
     ENSCO first claims that the district court erred in admitting

the testimony of Curry’s marine safety expert witness, Edward

Robert.    ENSCO contends Robert was unqualified and his opinion was

unreliable and irrelevant.

     We review a district court’s decision to admit or disallow

evidence for abuse of discretion.5

     Under the Federal Rules of Evidence,

     If scientific, technical, or other specialized knowledge
     will assist the trier of fact to understand the evidence
     or determine a fact in issue, a witness qualified as an
     expert by knowledge, skill, experience, training, or
     education may testify thereto in the form of opinion or
     otherwise, if (1) the testimony is based upon sufficient
     facts or data, (2) the testimony is the product of
     reliable principles and methods, and (3) the witness has
     applied the principles and methods reliably to the facts
     of the case.6

It is the duty of the district court, acting as the gatekeeper of

evidence under Rule 702, to “ensure that any and all scientific

testimony . . . is not only relevant, but reliable.”7           This

gatekeeping rule applies to all expert testimony.8

     The Daubert Court identified specific factors a district

court may consider in determining the admissibility of expert



     5
       General Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997);
Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999).
     6
         Fed. R. Evid. 702.
     7
          Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993).
     8
         Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999).

                                  9
testimony of a scientific nature, such as testing, peer review,

error     rates,    and    acceptance       within   a     relevant   scientific

community.9        The Kuhmo Court held that these factors “may” be

considered in determining the admissibility of expert testimony

based     on   technical      or    other    specialized     knowledge.10     It

recognized, however, that in some kinds of cases, “the relevant

reliability     concerns      may    focus    upon   personal     knowledge   or

experience.”11      The particular circumstances of a particular case

determine “how to test an expert’s reliability.”12 In this respect,

“the law grants the trial judge broad latitude.”13                      What is

important is that the judge “make certain that an expert, whether

basing testimony upon professional studies or personal experience,

employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.”14

     ENSCO’s        general    challenge       of    the     district   court’s

determination that Robert’s testimony was relevant and reliable is



     9
       Daubert, 509 U.S. at 592-94 (explaining that some or all
these factors may prove helpful in determining the reliability of
a particular scientific theory or technique).
     10
          Kuhmo Tire, 526 U.S. at 150.
     11
       Id. (noting “Daubert’s description of the Rule 702 inquiry
as ‘a flexible one’”).
     12
          Id. at 150, 152.
     13
          Id. at 153.
     14
          Id. at 152.

                                        10
without merit.      Applying the teachings of Kuhmo Tire, we cannot

say   that   the    district        court    abused      its    discretion.          The

circumstances of this case, and of Robert’s testimony, do not

easily lend themselves to the factors identified in Daubert.

Rather,    this    is   one    of    those       cases   in    which    the   relevant

reliability concerns focus upon personal knowledge or experience.

      Robert’s experience as the safety director for the Mayronne

drilling company and as an drilling industry safety consultant is

generally relevant to this case about an injury on a drilling rig.

Because he worked with top rigs and riding belts while at the

Mayronne company, his experience also has particular relevance.

The reliability of his opinion that using a maul while in a riding

belt is an unsafe practice is demonstrated by the fact that Robert

based his testimony, at least in part, on industry custom and

practice.    He testified that, while at Mayronne, he told a worker

that the     practice    was    “against         [company]     policy.”       Robert’s

testimony tends to show that he employed in the courtroom the same

level of intellectual rigor that he employed while the safety

director for a company in a relevant business.                    Hence, we cannot

say that the district court abused its discretion in finding

Robert “well qualified” to testify as an expert in the field of

marine safety.

      ENSCO also argues on appeal that Robert exceeded the scope of

his   expertise     “when      he    gave    his     opinion     that     swinging    a


                                            11
sledgehammer    in   a   riding   belt   places   substantially   greater

stresses on a person’s low back than when swinging the same

sledgehammer while standing on a flat surface.”15       This argument is

without merit because it mischaracterizes the expert opinion

expressed by Robert and disregards the fact that ENSCO’s counsel

elicited Robert’s statements on cross-examination about anatomical

stress, which necessarily ENSCO’s counsel could not and did not

object to.     At no time on direct examination did Robert use the

words “stress” or “force” or otherwise offer an opinion on the

mechanics of using a maul while standing or while in a swing.16        It

was only on cross-examination that the concepts of “stress” and

“force” were introduced, and then they were raised by defense

counsel—not by Robert.17     Indeed, Robert repeatedly agreed that he

     15
       In its motion in limine to exclude Robert’s testimony, ENSCO
attacked Robert’s qualifications to offer any expert testimony on
marine safety “because he is not a biomechanical engineer or
otherwise qualified in any other relevant discipline.”        ENSCO
asserted that Robert’s testimony would amount to no more than an
ipse dixit because he had no scientific basis for explaining why
using a maul while in a riding belt was unsafe. In denying the
motion, the district court concluded that ENSCO’s objection to
Robert went to “weight and not admissibility” and that ENSCO should
attempt to “qualify” Robert “in front of the jury.”
     16
        The closest Robert came to such a statement on direct
examination was when he opined that asking a worker to swing a
sledgehammer while in a riding belt “puts a strain on your system
that just isn’t necessary.” He made this comment in the context of
explaining that ENSCO could have dismantled the top drive either by
laying it down or erecting scaffold.
     17
        Defense counsel asked Robert, “And the basis for your
objection is because you believe that swinging a sledgehammer while
suspended in a riding belt creates greater stresses and forces on
your lower back than when you’re swinging a hammer standing on a

                                    12
was not qualified to speak to the mechanics of force on the human

body.     Rather his opinion was limited to observing the difference

between using a sledgehammer while standing and while in a riding

belt: “[I]t is a substantial difference between having your feet

braced and strongly on the ground and having absolutely no support

while just swinging in a riding belt.”    Thus, ENSCO’s argument is

neither meritorious nor forthright.

B.   Curry’s Negligence Claim

     ENSCO contends the district court erred in denying its motion

for judgment as a matter of law as to Curry’s negligence claim.

In particular, it asserts that Curry failed to provide sufficient

evidence of either ENSCO’s negligence or its causation of Curry’s

damages.

     An appeal of a district court’s decision to deny a motion for

judgment as a matter of law challenges the court’s submission of

the case to the jury and asks whether, as a matter of law, there

was sufficient evidence to support the jury’s verdict.18     In the

context of a negligence claim arising under the Jones Act, a grant

of judgment as a matter of law in favor of an employer is proper

“only when there is a complete absence of probative facts” to




flat surface.”    Robert responded, “That’s correct.”        Defense
counsel did not object to Robert’s answer.
     18
       Fontenot v. Teledyne Movible Offshore, Inc., 714 F.2d 17,
19 (5th Cir. 1983).

                                  13
support    the   seaman’s   position.19   “This   standard   is   highly

favorable to the plaintiff and requires that we validate the jury

verdict if at all possible.”20

     With regard to the element of causation, we have held that a

plaintiff’s burden of proof is featherweight, and that the jury is

entitled to make permissible inferences from unexplained events.21

We nonetheless require the plaintiff to show sufficient facts to

“justify with reason the conclusion that employer negligence

played any part, even the slightest, in producing the injury for

which” he seeks damages.22

     The trial testimony included probative evidence that the use

of a sledgehammer while in a riding belt was an unsafe practice

and that Curry’s injuries were likely caused by that unsafe

practice.     Roberts specifically testified that the practice was



     19
       Springborn v. American Commercial    Barge Lines, 767 F.2d 89,
98 (5th Cir. 1985) (quoting Lavender v.      Kurn, 327 U.S. 645, 653
(1946)); see also Fontenot, 714 F.2d at      19; 9A Wright & Miller,
Federal Practice & Procedure, § 2526 (2d    ed. 1995).
     20
       Hughes v. Int’l Diving and Consulting Serv., Inc., 68 F.3d
90, 93 (5th Cir. 1995). ENSCO argued in its briefs that in the
wake of Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
(2000), the standard of review for sufficiency of evidence in Jones
Act claims should not be so deferential. We disagree and decline
to diverge from the well established law of this Circuit.
     21
        Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547,
548-49 (5th Cir. 1987); see also Comeaux v. T.L. James & Co., 702
F.2d 1023 (5th Cir. 1983); Maraist & Galligan, Personal Injury in
Admiralty § 6-4(e) (2000).
     22
          Springborn, 767 F.2d at 98 (citations omitted).

                                    14
unsafe.      Curry’s coworkers, Timmy Dean and Chad Jones, testified

that working on a top rig from a scaffold or after it had been

laid flat was, in general, safer than working on it from a riding

belt.        Y.C. White, another coworker, testified that “no man

[would] take a 12-pound hammer on a riding belt.”               His testimony

could reasonably be interpreted to suggest that the use of a maul

while in a riding belt was unsafe.           Finally, the testimony shows

that Curry worked in the riding belt for six to seven hours that

day.    During that time he performed what one coworker said was the

most difficult task of the tear-down project.                Another coworker

said about that task that five minutes of work was the equivalent

of an hour of work out of the belt.               Using common sense, a

reasonable jury could interpret this testimony to show Curry’s

work assignment was unsafe.

       Specifically as to causation, Drs. Gaar and Raymon testified

that Curry’s injuries were “more probabl[y] than not” related to

his work in the riding belt and “within a reasonable degree of

medical probability related to his work activities on or about

July 6, 1997.”      Further, Jones testified that Curry complained of

pain after he had been in the riding belt and that he could see

pain    on    Curry’s   face   after   he   finished   his    work   with   the

sledgehammer while in the riding belt.

       Given his slight burden to produce probative evidence of

breach and causation, we conclude that Curry proffered sufficient

evidence from which a reasonable jury could conclude that ENSCO

                                       15
had breached its duty and that its breach played some role in his

injury.      The district court did not abuse its discretion by

denying judgment as a matter of law on Curry’s negligence claim.

C.   Contributory Negligence

     ENSCO contends the district court erred in entering judgment

as a matter of law for Curry that he was not contributorily

negligent.     We agree.      Although the entry of final judgment for

Curry without a forty percent discount had that effect, the

procedural history of this case reveals that the court was not

authorized to grant judgment as a matter of law as to Curry’s lack

of fault.23

     Rule 50 of the Federal Rules of Civil Procedure allows a

party to “renew its request for judgment as a matter of law” after

trial.24    We have interpreted this language to mean that a party

must have raised a Rule 50(a) motion prior to the close of proof

in order to “renew” such a motion after the verdict has been

received:     “The   motion    for   directed   verdict   is   .   .   .   ‘a

prerequisite’ [to a renewed motion for judgment as a matter of

law] and is ‘virtually jurisdictional.’”25          We have also stated


     23
       See Cargill, Inc. v. Weston, 520 F.2d 669 (8th Cir. 1975)
(“While the trial court’s action had the same effect as a judgment
n.o.v., it is clear that judgment n.o.v. was not granted nor could
it have been granted on the present record.”).
     24
          Fed. R. Civ. P. 50(b).
     25
       Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir.
1993) (quoting Perricone v. Kansas City S. Ry. Co., 704 F.2d 1376,

                                      16
that “a motion for JNOV ‘cannot assert a ground that was not

included in the motion for directed verdict.’”26   Finally, these

limitations to Rule 50 apply to a district court acting sua

sponte.27

     This rule can be harsh, and we have excused the movant from

its strictures in certain situations.   Hence, our cases recognize

that we will permit “the granting of a motion for judgment

notwithstanding the verdict where a motion for directed verdict

was made at the close of the plaintiff’s case but was not renewed

at the close of all the evidence” and where the movant objected to

the jury instructions “on grounds that there was no evidence to

support a claim but failed to move for a directed verdict on that



1380 (5th Cir. 1983)); see also 9A Wright & Miller, Federal
Practice & Procedure § 2537 (2d ed. 1995).
     26
       Id. (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168,
172 (5th Cir. 1985)).
     27
        See Mozingo, 752 F.2d at 172 (reversing a district court’s
grant of JNOV on a basis not previously raised in a motion for
directed verdict); see also American & Foreign Ins. Co. v. Bolt,
106 F.3d 155, 159 (6th Cir. 1997) (“While it is accepted that a
judge may sua sponte granted a directed verdict pursuant to [Rule]
50(a), allowing a judge to sua sponte raise a new issue post-
verdict and proceed to overturn a jury verdict on that basis
contravenes the dictates of Rule 50(b).” (internal citations
omitted)); Murphy v. City of Long Beach, 914 F.2d 183, 185-86 (9th
Cir. 1990) (holding that “for the same reasons a party may not seek
a JNOV on grounds not alleged in their motion for directed verdict,
a district court may not enter JNOV on grounds not asserted in a
party’s motion for directed verdict”); Kutner Buick, Inc. v.
American Motor Corp., 868 F.2d 614, 617 (3d Cir. 1989) (reversing
a district court’s grant of JNOV on grounds other than those
advanced by the movant).

                                17
claim.”28

       The present case presents no grounds for excusing Curry’s

failure to establish a predicate for a motion for judgment as a

matter of law.         Curry conceded at oral argument that he never

moved for judgment as a matter of law on the issue of contributory

negligence.     Nor did he object to the jury instruction regarding

apportionment of fault.       After the case had been submitted to the

jury, the district court questioned whether there was sufficient

evidence to support a finding of contributory negligence on the

part of Curry but let the issue go to the jury.              Only after the

verdict was taken did the court order the parties to brief the

issue.      In short, the necessary predicates to a judgment as a

matter of law as to Curry’s contributory negligence are missing

from    this   case.      Hence,   the    district   court   erred   when   it

subsequently ordered final judgment be entered on Curry’s behalf

without any discount for the jury’s finding and apportionment of

contributory negligence.

       Having determined that the district court erred, we must

decide the proper disposition of this appeal.           In a case involving

an erroneous grant of judgment as a matter of law we can reverse

and order the district court to reinstate the jury verdict,29 we


       28
       Hinojosa v. City of Terrell, Texas, 834 F.2d 1223, 1228 (5th
Cir. 1988) (citations omitted).
       29
        See 9 Moore’s Federal Practice § 50.93[2]; 9A Wright &
Miller, Federal Practice & Procedure § 2540 n.11 (citing cases);

                                         18
can reverse and remand for the district court to determine whether

to order a new trial under the provisions of Rule 59,30 or we can

order a new trial directly “if the evidence was insufficient

because of some trial court error and . . . a second trial is

warranted.”31   Because the district court neither articulated its



see also Morante v. American Gen. Fin. Ctr., 157 F.3d 1006, 1011
(5th Cir. 1998); H.C. Blackwell Co. v. Kenworth Truck, Inc., 620
F.2d 104, 107 (5th Cir. 1980) (“Where the trial court has granted
a judgment notwithstanding the verdict we may, in appropriate cases
where there is sufficient evidence . . . to support a jury verdict
to the contrary, order the reinstatement of the jury verdict.”).
     30
        See 9 Moore’s Federal Practice § 50.95 n.3 (citing Rule
50(d) for the proposition that “if appellate court reverses
judgment as matter of law, nothing in Rule precludes appellate
court from determining that appellee is entitled to new trial or
from directing trial court to determine whether new trial should be
granted”); 9A Wright & Miller, Federal Practice & Procedure § 2539
n.6 (noting that in circumstances where a party fails to move
properly for judgment as a matter of law, the trial court can order
a new trial); see also Iacuri v. Lummus Co., 387 U.S. 86, 88 (1967)
(remanding to the district court, which “was in the best position
to pass upon the question of a new trial in light of the
evidence”); Gorsalitz v. Olin Mathieson Chem. Corp., 429 F.2d 1033,
1038 (5th Cir. 1970) (discussing a district court’s authority to
order a new trial under Rule 59(d) and an appellate court’s
authority to require further proceedings as may be just under the
circumstances).
     31
       9A Wright & Miller, Federal Practice & Procedure § 2540 at
n.12; see also Cargill, Inc. v. Weston, 520 F.2d 669, 672 (8th Cir.
1975) (ordering a new trial where the “trial court clearly
indicated its belief that the jury’s verdict was erroneous” and
because the case turned on unaddressed questions arising under the
Uniform Commercial Code). We note that this is not a case in which
the trial court considered and rejected the appellant’s motion for
judgment as a matter of law or in the alternative a new trial, such
that it would be appropriate to review the trial court’s decision
at least for plain error. See Hinojosa v. City of Terrell, Texas,
834 F.2d 1223, 1228 (5th Cir. 1988) (applying plain error review
because the appellant had failed to move for a directed verdict).

                                 19
reasons for setting aside the jury’s apportionment of fault nor

considered whether to grant a new trial under Rule 59(d), we

believe that the best course of action here is to reverse the

district court’s attempt to grant judgment as a matter of law on

the   issue     of   Curry’s   fault    and   remand   for   the   court’s

consideration of a motion for a new trial pursuant to Rule 59 on

its own initiative or by Curry.

D.    Future Medical Expenses

      ENSCO contends the district court erred in denying its motion

for judgment as a matter of law on the issue of future medical

expenses.     We agree.

      We review the district court’s action using the same highly

deferential standard we applied to the court’s action regarding

Curry’s negligence claim.32 Under Texas law, a plaintiff must show

a reasonable probability that medical expenses will be incurred in

the future and that such expenses are reasonable and necessary.33


      32
           See supra Section II.B.
      33
       Whatley v. Armstrong World Indus., Inc., 861 F.2d 837, 843
(5th Cir. 1988) (citing Keeler v. Richards Mfg. Co., 817 F.2d 1197,
1202 (5th Cir. 1987), and Pan Am. Ins. Co. v. Hi-Plains Haulers,
Inc., 350 S.W. 644, 646 (Tex. 1961)); see also Herbert v. Wal-Mart
Stores, Inc., 911 F.2d 1044, 1050 (5th Cir. 1990) (affirming a
judgment as a matter of law that plaintiff did not prove future
medical expenses because he “failed to prove that he needed further
medical care”); Davis v. Mobil Oil Exploration & Producing S.E.,
Inc., 864 F.2d 1171, 1176 (5th Cir. 1989) (reversing an award of
future medical expenses in the face of the plaintiff’s failure “to
produce any specific evidence at trial to support [the award] other
than the possibility that he might require some type of medical
care in the future”).

                                       20
No damages award can be made based solely on speculation.34

     Dr. Raymon testified that Curry still had intermittent back

pains when he left his care in September 1998, for which he used

nonprescription pain medication.        Curry testified that he was

under the care of his family physician for pain management and

that he currently takes both prescription and nonprescription pain

medication.    He did not, however, offer any evidence that he will

require any specified medical treatment for his injury in the

future.    Nor, therefore, did he offer any evidence regarding the

estimated cost of any such future medical expenses or whether such

expenses were reasonable and necessary.          Instead, Curry offered

only the evidence of his continuing back pains and his past

medical expenses, from which he asked the jury to infer the

likelihood of future medical expenses.           Given the substance of

Curry’s evidence, we conclude that the jury’s award of $100,000 in

future     medical   expenses   rests   solely     on   speculation   and

conjecture.     Accordingly, we find the district court erred in

denying ENSCO’s motion for judgment as a matter of law on this

issue.

E.   Pre-Judgment Interest

     ENSCO contends the district court erred in awarding Curry

pre-judgment interest.     Because “[i]t is well settled that under

the Jones Act, recovery of prejudgment interest is not permitted,”


     34
          See Keeler, 817 F.2d at 1202 (citations omitted).

                                   21
and because Curry does not contest this point, we find the

district court’s award of pre-judgment interest was in error.35

F.   Post-Judgment Interest

     ENSCO contends the district court erred in awarding Curry

post-judgment interest at a rate greater than allowed by law.

Because the post-judgment rate of interest for the week during

which final judgment in this matter was entered was 3.76%, and

because Curry concedes this fact, we find the district court’s

award of post-judgment interest at the rate of 7.5% was in error.36

III. CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

denial of ENSCO’s motion for judgment as a matter of law as to the

questions of breach and causation but REVERSE as to the question

of future medical expenses.   We also REVERSE the district court’s

sua sponte grant of judgment as a matter of law that Curry was not

contributorily negligent.   Upon remand, the district court should

either order a new trial or enter judgment consist with the jury’s



     35
       See Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th
Cir. 1989) (citation omitted); Maraist & Galligan, Personal Injury
in Admiralty § 6-7 (2000).
     36
        See 28 U.S.C. § 1961(a) (providing that the rate of post-
judgment interest is calculated from the date on which final
judgment is entered and is equivalent “to the weekly average 1-year
constant maturity Treasury yield . . . for the calendar week
preceding the date of judgment”); Table, Post-Judgment Interest
2001, at http://www.txs.uscourts.gov/ interest/int2001.htm (noting
the rate of post-judgment interest for the week of May 14, 2001,
was 3.76%).

                                22
apportionment of fault.   Finally, we REVERSE the district court’s

award of pre-judgment interest and REVERSE the district court’s

award of post-judgment interest to the extent that it set the

interest rate at 7.5% instead of 3.76%.    We REMAND the case for

further proceedings consistent with this opinion.




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