
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-1089                                    JOAQUIM CONDE,                                 Plaintiff, Appellee,                                          v.                                  STARLIGHT I, INC.,                                Defendant, Appellant.                                                                                      ____________________        No. 96-1209                                    JOAQUIM CONDE,                                Plaintiff, Appellant,                                          v.                                  STARLIGHT I, INC.,                                 Defendant, Appellee.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                                                                                      ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Thomas  E.  Clinton, with  whom Kathleen  B.  Carr and  Clinton &             ___________________             __________________      _________        Muzyka, P.C. were on brief for Starlight I, Inc.         ____________             David  F. Anderson, with whom  Latti Associates was  on brief for             __________________             ________________        Joaquim Conde.                                                                                       ____________________                                   January 9, 1997                                                                                      ____________________                                          2                    CYR, Circuit Judge.   Plaintiff-appellee Joaquim  Conde                    CYR, Circuit Judge.                         _____________          sustained a permanent injury to his left hand on August 13, 1988,          while serving as first mate aboard the commercial  fishing vessel          F/V  ALENTEJO  which was  navigating  in  rough  waters  east  of          Nantucket on the  Georges Bank.1   Two days  after the  accident,          Edward Monteiro, an adjuster for the ALENTEJO's insurer, obtained          an  oral statement from Conde  in Portuguese.   Since Conde could          speak little English and was unable to read it, Monteiro purport-          ed  to translate the written  English statement back  to Conde in          Portuguese.    Unbeknownst  to  Conde, the  statement  he  signed          indicated that  the ALENTEJO  had been  travelling at  slow speed          when  the  accident occurred  and it  makes  no mention  of other          critical facts  about which  Conde had  informed Monteiro in  his          interview.  For instance, the written statement  omits any refer-          ence  to the captain's refusal  to slow the  vessel and lower the          fishing net to  deck-level so  that Conde and  his fellow  worker          would not  have to stand  on the slippery deck,  from which tiles          were missing, while repairing the net.                    In September 1990, Conde brought the present action for          negligence and  unseaworthiness  against appellant  Starlight  I,          Inc., owner  of the ALENTEJO.   See 46 U.S.C.    688 (Jones Act);                                          ___          Miles  v. Apex Marine Corp., 498 U.S. 19, 29 (1990) (unseaworthi-          _____     _________________          ness).   At trial, the  defense relied heavily  upon the apparent          discrepancies  between  Conde's trial  testimony and  the written                                                  ____________________               1Almost  six  years  later,  Conde  obtained  a  nonmaritime          factory job at a reduced salary.                                          3          statement he unwittingly gave to Monteiro, the adjuster.   Conde,          on the other hand, contended that Starlight and Monteiro, antici-          pating  litigation,  had collaborated  to  misrepresent  the oral          statement Conde made to Monteiro.                      After the  jury awarded Conde $350,000  in damages, the          district  court  granted  a new  trial  due  to  improper closing          argument  by Conde's  counsel.   The second  trial resulted  in a          $968,500  award  to Conde:    $118,500  for  past economic  loss;          $50,000 for pain and suffering;  and $800,000 for future economic          loss.  The  district court denied  Starlight's second motion  for          new  trial, subject to Conde's agreement to remit all damages for          future  economic loss  above $254,212.50.   On  appeal, Starlight          challenges both the denial of its second motion for new trial and          the amount of the remittitur.2            I.   Second Motion for New Trial          I.   Second Motion for New Trial               ___________________________                    Starlight  contends  that four  improper  statements by          Conde's  counsel in closing  argument warrant yet  a third trial.          First,  counsel  observed,   without  evidentiary  support,  that          Monteiro  and  defense  attorney  Thomas  Clinton,  Esquire, were          "friends"  and  had "been  working  together  for twenty  years."          Starlight argues that the  veiled reference to possible collusion          between Monteiro  and Clinton was wholly  immaterial and deliber-          ately inflammatory.   We find no abuse of  discretion.  See Ahern                                                                  ___ _____                                                  ____________________               2Since we deny Starlight's appeal, we need not reach Conde's          contingent  cross-appeal from the  district court  order granting          Starlight's first motion  for new  trial.  We  assume that  Conde          would opt for a reduced total remittitur of $364,736, rather than          reinstatement of the first jury award (i.e., $350,000).                                          4          v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996).               ______                    Monteiro  testified  on  redirect  examination  that he          asked  Conde  to sign  the August  15,  1988, statement  in three          places for  Conde's own  "protection," to prevent  its alteration          after  it left Monteiro's  possession.   Later in  his testimony,          however, Monteiro admitted that  he himself had given the  state-          ment directly  to Thomas  Clinton, Esquire, Starlight's  counsel.          When  asked whether  he had  known Clinton  well prior  to August          1988,  Monteiro  acknowledged that  they  were  on a  "first-name          basis," and had worked together previously.                      We normally presume that a jury follows instructions to          disregard improper argumentation.  See Greer v. Miller,  483 U.S.                                             ___ _____    ______          756, 766 n.8  (1987); Sweeney  v. Westvaco Co.,  926 F.2d 29,  36                                _______     ____________          (1st Cir.),  cert. denied, 502 U.S.  899 (1991).  So  it is here.                       _____ ______          After  Clinton  objected  to the  remark  by  Conde's  counsel in          closing argument, the court promptly cautioned  the jury that the          evidence did  not establish  a "friendship" between  Monteiro and          Clinton.  Moreover, Monteiro's business relationship with Clinton                                         ________ ____________          was in evidence.   Finally, the Monteiro-Clinton relationship was          at  least somewhat  probative of  the plausibility  of Monteiro's          testimony concerning  why he  considered it necessary  that Conde          sign the August 15, 1988, statement in three places.                      Second,  Starlight relies  on a  closing remark  to the          effect  that  the  captain's  consumption  of  several  alcoholic          beverages as late as the evening meal the day of the accident had          impaired his judgment, and likely explained his negligent refusal                                          5          to slow  the vessel  and lower the  net as  Conde had  requested.          Although another fishing vessel  captain testified that no vessel          captain should  consume alcohol while navigating  a vessel, Star-          light  insists that it was  necessary for Conde  to adduce expert          toxicological evidence as to how the particular  level of alcohol          consumption  established by  the evidence typically  would impair          human judgment.                     The authorities cited by Starlight simply stand for the          thesis that expert toxicological testimony  may be used to estab-                                                      ___          lish  the likely  effects of  alcohol.   See Armand  v. Louisiana                                                   ___ ______     _________          Power & Light Co., 482 So.2d 802, 804 (Ct. App. La. 1986) ("[A]ll          _________________          experts agreed that .30% or .23% [blood alcohol] would impair the          motor abilities  and judgment  of anyone.");  see also People  v.                                                        ___ ____ ______          Modesto,  427 P.2d 788, 790  (Cal.), cert. denied,  389 U.S. 1009          _______                              _____ ______          (1967), overruled  on other grounds, Maine v. Superior Court, 438                  _________  __ _____ _______  _____    ______________          P.2d 372,  377 n.8 (Cal. 1968).   These authorities in  no manner          suggest that such  testimony is invariably required.   Cf., e.g.,                                                                 ___  ____          United  States v. Hillsberg, 812  F.2d 328, 333  (7th Cir.) ("The          ______________    _________          jury  would likely have little knowledge of the effects of mental          diseases and defects.  Laymen do have occasion, however, to learn          the effects of alcohol."), cert. denied, 481 U.S. 1041 (1987).                                      _____ ______                    Third, Starlight contends  that repeated references  to          Monteiro as an "adjuster," during direct and redirect examination          and  in  closing remarks  by  Conde's  counsel, violated  Federal          Evidence Rule 411 ("Evidence that a person was or was not insured          against  liability is not  admissible upon the  issue whether the                                          6          person acted  negligently or otherwise wrongfully.").   We do not          agree.                      For  one thing,  Starlight  did not  object to  Conde's          repeated  references  to  Monteiro  as  an "adjuster"  throughout          either the  first or second  trial.   Thus, the tardiness  of its          objection calls into serious  question whether the litigants, let          alone the jury, inferred that Monteiro  was an "insurance adjust-                                                          _________          er," cf., e.g., NLRB v. International Bhd. of Elec. Workers Local               ___  ____  ____    _________________________________________          340, 481  U.S. 573,  581 (1987)  (union's "grievance  adjuster or          ___          collective  bargainer"); Ferguson  v. Skrupa,  372 U.S.  726, 732                                   ________     ______          (1963)  ("debt  adjuster"),  let  alone  that  Starlight  carried          liability insurance.  In all events, Rule 411 does permit mention          of insurance coverage, not  to prove negligence, but collaterally          to show  the  possible "bias  or prejudice  of a  witness."   See                                                                        ___          Pinkham  v. Burgess, 933 F.2d  1066, 1072 (1st  Cir. 1991) ("Rule          _______     _______          411  itself contemplates  that  evidence that  the defendant  was          insured  may be  admissible on  issues other  than negligence.");          Charter v. Chleborad, 551  F.2d 246, 248 (8th Cir.)  ("[T]he fact          _______    _________          that defendant's insurer employed  [a witness] was clearly admis-          sible to show possible bias of that witness."), cert. denied, 434                                                          _____ ______          U.S.  856  (1977).     Starlight's  entire  defense  centered  on          Monteiro's  credibility  in regard  to  the  authenticity of  his          "translation" of Conde's August 15, 1988 statement.                    Finally,  Starlight argues  that Conde's  attorney once          again  argued  facts not  in evidence,  and  invited the  jury to          engage in rank speculation, by noting that the captain might have                                          7          been steaming the ALENTEJO full speed ahead in an attempt to flee          Canadian waters before Canadian patrol boats detected the vessel.          On  the contrary, according to Starlight's own expert, based on a          reverse extrapolation  of its known course  immediately after the          accident,  the ALENTEJO probably had been on the Canadian side of          the Hague Line just  prior to the accident.   This circumstantial          evidence  combined powerfully  with the  captain's  own testimony          that he previously  served aboard  a fishing vessel  seized by  a          Canadian patrol boat and that he knew on August 13, 1988 that the          same  Canadian  patrol  boat  was  within  one-half  mile  of the          ALENTEJO. II.  The Remittitur                    II.  The Remittitur                         ______________                    Starlight claims that the trial court miscalculated the          remittitur  at $254,212.50.3   Starlight  first projects  a total          future economic loss  as low  as $27,199, by  using Conde's  1987          income, rather than the  higher 1988 income figure, for  arriving          at a  base annual salary.   As  Conde was injured  in mid-August,          1988, however, the  jury reasonably could have looked  to Conde's          higher 1988  income projection as  a more accurate  reflection of          his  future  earning power  than the  1987  income.   See Eastern                                                                ___ _______          Mountain Platform  Tennis, Inc. v. Sherwin-Williams  Co., 40 F.3d          _______________________________    _____________________          492, 502 (1st Cir.  1994) (in ruling on remittitur  motion, court          examines evidence "in  the light most favorable to the prevailing          party");  see also Jones &  Laughlin Steel Corp.  v. Pfeifer, 462                    ___ ____ _____________________________     _______                                                  ____________________               3Once a district  court has decided to  exercise its discre-          tion  to grant a remittitur, appellant "must  show . . . that the          reduced  figure remains so extravagant as  to shock the appellate          conscience." Sanchez v.  Puerto Rico  Oil Co., 37  F.3d 712,  724                       _______     ____________________          (1st Cir. 1994).                                          8          U.S. 523,  538 (1983)  ("It is both  easier and  more precise  to          discount  the entire lost stream of earnings  back to the date of          injury  --  the  moment  from  which  earning  capacity  was  im-          paired.").4                    Starlight next argues that  the 3% per annum adjustment          for inflation  in "non-agricultural" workers' wages  from 1988 to          1995 (i.e., 20.25% in aggregate) was  excessive because a commer-                ____          cial  fisherman would  not be  classified as  a "non-agricultural          worker" and  recent federal restrictions upon  commercial fishing          on  Georges Bank  have  depressed fishermen's  wages.   Starlight          offers no evidentiary  support for its contention  that a commer-          cial fisherman  would not qualify as  a "non-agricultural" worker          (i.e., one who does  not cultivate land) for purposes of the 1995           ____          Economic  Report of  the President,  which the  parties otherwise          stipulated  as  a  source of  the  applicable  "non-agricultural"          inflation rate.  Nor did Starlight  adduce any evidence as to how          its suggested offset  to the stipulated inflation rate  should be          calculated.    We  therefore  conclude  that  it  has  failed  to          demonstrate any "conscience-shocking"  adjustment in  calculating          an inflation rate.  See supra note 3.                               ___ _____                    Finally, Starlight argues that the trial court used the          $118,500  jury  award for  past  economic loss  to  calculate the                                                  ____________________               4Although Conde earned $35,930  in gross income during 1987,          he  incurred extraordinary  unreimbursed work  expenses ($19,404)          which effectively reduced his annual income to only $16,526.  See                                                                        ___          Jones & Laughlin, 462 U.S. at 534 (recommending that unreimbursed          ________________          work expenses be deducted before estimating future lost stream of          income).   This figure  is substantially lower  than Conde's pro-          jected 1988 gross income of $22,332.  See infra note 7.                                                 ___ _____                                          9          relevant "base year" salary (i.e., Conde's lost income for  1995)                                       ____          with which  to extrapolate his future  (i.e., post-1995) economic                                                  ____          loss, rather than predicating the base figure calculation direct-          ly on the trial  evidence.5  Although neither we  nor the parties          have been able to reconstruct the exact mathematical calculations          utilized by  the district court,6  the trial evidence,  viewed in          the light most  favorable to  Conde, would  yield an  approximate                                                  ____________________               5The court explained its methodology as follows:                     In determining  the figure  to which to  remit the               award  for loss  of  future earning  capacity, I  shall               endeavor to arrive at the maximum figure which the jury               could have awarded using as a guide the amount the jury               awarded the plaintiff  for lost wages from  the date of               the  accident  to  the   date  of  the  verdict,  i.e.,               $118,500.   For this purpose, I shall  assume the jury,               in arriving at the  $118,500 figure, deducted an amount               for what  was earned  and what  could have  been earned               after the plaintiff reached  an end medical result.   I               shall also take into account the fact that the wages of               non-agricultural workers from 1988 to 1995 rose approx-               imately 3%  a year  or 20.25%  over the entire  period.               After  making  these  adjustments,  what  results is  a               figure of expected earnings for  1995 in the amount  of               $29,020.  I  shall then  apply a reduction  of 20%  for               taxes  and a 1% discount  rate to arrive  at the amount               the plaintiff would have earned over the 26 year period               of his work expectancy reduced to present value.  Using               this methodology,  the result is  $254,212.[50]. (Foot-               notes omitted.)               6As future loss calculations are multiplex, effective appel-          late review may be greatly inhibited by any lack of particularity          in  the trial  court's methodology.   Given these  latent ambigu-          ities, we could remand  to the district court for  clarification,          see Jones & Laughlin,  462 U.S. at 546, 552  (refusing invitation          ___ ________________          to adopt one calculation  methodology as "the exclusive method"),          but  for  reasons of  judicial economy  we  opt to  calculate the          maximum  future  economic loss  based  directly  on the  evidence          before the jury.  See infra note 7.                            ___ _____                                          10          discounted future economic loss of $196,236.7                      The  unknowable and unquantifiable  factors involved in          calculating  a future stream of lost  income (e.g., future infla-                                                        ____          tion rates;  actual work  life), militate  against "a search  for          'delusive exactness,'" since "[i]t  is perfectly obvious that the          most detailed inquiry can at best produce an approximate result."          Jones  & Laughlin, 462 U.S. at 546,  552.  Even viewing the trial          _________________          evidence most generously to Conde, however, the $254,212.50 award          for future economic loss effectively disregards a significant and          practicably  quantifiable  factor:   the  need  to reduce  future          economic loss to present value, even if  only by the most conser-          vative discount figure (1%), see supra note 7, particularly since                                       ___ _____          the parties stipulated below  that some "present value" reduction                      __________          would be appropriate, albeit  reserving the precise discount rate                                                  ____________________               7Viewing the evidence most  favorably to Conde, the alterna-          tive remittitur amounts would work out as follows:           Annual gross income from 1/88 to 8/88             $    14,106          Extrapolated income from 8/88 to 12/88            +     8,816          Unreimbursed work expenses                        -       590                                                                 ______          Total projected gross income for 1988                  22,332          Inflation rate between 1988-95 (20.25)            +     4,522                                                                 ______          Adjusted projected annual gross income (1995)          26,854          Actual gross income for factory job (1995)        -    15,080                                                                 ______          Total loss of annual gross income (1995)               11,774          Taxes on lost income (@ 1988 rate of 16.97%)      -     1,998                                                                 ______          Net annual lost income (1995)                           9,776          Remaining work life in 1995 (26 years)            x        26                                                                 ______          Total lost future income stream                       254,176          Discounted to present value (@ 1%)                    196,236          Discounted to present value (@ 2%)                    151,890          Discounted to present value (@ 3%)                    117,860               Although   the  $254,212.50  remittitur  calculated  by  the          district court  purportedly factored in  a 1% discount  rate, see                                                                        ___          infra note 8, it actually approximates our pre-discount amount of          _____                                      ___          $254,176.                                          11          (1% or  2%).  Cf. id.  at 548 (noting  that use of  discount rate                        ___ ___          between  1% and 3%  in Jones  Act case would  not be  an abuse of          discretion).8          III. Conclusion          III. Conclusion               __________                    Given  these somewhat less  "elusive" circumstances, we          conclude that the 30% discrepancy between the $254,212.50 and the          $196,236 economic-loss figures  is sufficiently quantifiable  and          substantial that it ought not stand.   Sanchez v. Puerto Rico Oil                                                 _______    _______________          Co., 37 F.3d 712, 724 (1st  Cir. 1994); cf. Jones & Laughlin, 462          ___                                     ___ ________________          U.S. at 552 (noting that jury  awards for pain and suffering  are          "highly  impressionistic"); Ruiz v.  Gonzalez Caraballo, 929 F.2d                                      ____     __________________          31,  34 (1st Cir. 1991) ("After  all, '[t]ranslating legal damage          [viz., physical effects  of post-traumatic stress  syndrome] into           ____          money damages -- especially in  cases which involve few  signifi-          cant  items of measurable economic loss -- is a matter peculiarly                                                  ____________________               8Using a  "market  interest" rate  (e.g.,  6%) to  reduce  a                                                   ____          future-earnings award to present  value recognizes that, at least          in an inflation-free economy, the plaintiff's immediate accession          to a lump-sum award  would enable him to  earn interest by  rein-          vestment, an opportunity not available to him had the same amount          been earned incrementally over  time.  See Jones &  Laughlin, 462                                                 ___ _________________          U.S.  at  536-37  n.20  ("present value"  reduction  premised  on          plaintiff's  duty  to  mitigate  damages).   In  an  inflationary          economy,  however, a discount rate (or  offset) below the "market          interest"  rate (e.g.,  1  or 2%,  instead of  6%)  may be  used,                           ____          because  even though Conde did  not adduce specific evidence from          which  to forecast  actual inflation  rates in  future years,  it          nonetheless may be presumed  that anticipated future inflationary          trends will tend  to curtail investment  returns at levels  below          the market rate.  Id. at  538-39.  Although the Supreme Court has                            ___          declined  to mandate  a  single "present  value"  reduction or  a          single  discount  methodology for  use in  all Jones  Act damages          calculations, see id. at  550, absent extraordinary circumstances                        ___ ___          the  factfinder normally  should essay  some measure  of "present                                                  ____          value" reduction.                                           12          within  a jury's  ken.'") (quoting Wagenmann  v. Adams,  829 F.2d                                             _________     _____          196,  215 (1st  Cir. 1987)).   Accordingly,  we direct  a further          remittitur.  See Kolb v.  Goldring, Inc., 694 F.2d 869, 875  (1st                       ___ ____     ______________          Cir. 1982) (appellate court  may order a new trial,  in the event          claimant rejects  further remittitur, where trial  court error in          calculating remittitur was clear and mere "mechanical" correction          is required) (citing Stapleton v. Kawasaki Heavy Indus., 608 F.2d                               _________    _____________________          571, 574 n.7  (5th Cir. 1979)); Everett v. S.H.  Parks & Assocs.,                                          _______    ______________________          Inc., 697 F.2d 250, 253 (8th Cir. 1983).           ____                    The district court ruling denying defendant-appellant's                    The district court ruling denying defendant-appellant's                    _______________________________________________________          motion  for new  trial is  affirmed.   The remittitur  for future          motion  for new  trial is  affirmed.   The remittitur  for future          _________________________________________________________________          economic loss is further  reduced to $196,236.  Upon  remand, the          economic loss is further  reduced to $196,236.  Upon  remand, the          _________________________________________________________________          district court should fix an appropriate time within which plain-          district court should fix an appropriate time within which plain-          _________________________________________________________________          tiff-appellee must either accept the revised remittitur or submit          tiff-appellee must either accept the revised remittitur or submit          _________________________________________________________________          to a new trial on damages  for future economic loss.  The parties          to a new trial on damages  for future economic loss.  The parties          _________________________________________________________________          shall bear their own costs.            shall bear their own costs.          __________________________                    SO ORDERED.                    SO ORDERED.                    __________                                          13
