UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID M. PROCTOR,
Plaintiff-Appellee,

v.                                                              No. 97-2330

BILL C. TSAO,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CA-96-86-4-BO)

Argued: June 4, 1998

Decided: September 24, 1998

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and SMITH, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Tyrus Vance Dahl, Jr., WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for
Appellant. Stevenson Lee Weeks, Sr., WHEATLY, WHEATLY,
NOBLES & WEEKS, P.A., Beaufort, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Bill C. Tsao (Tsao) appeals two of the court's rulings concerning
the admissibility of expert testimony. Tsao also appeals the judgment
entered below, including the court's award of prejudgment interest on
damages. We affirm the district court in all respects.

I.

On July 11, 1993, plaintiff and defendant, together with defen-
dant's brother, met at a marina in Morehead City, North Carolina, to
begin a day of boating and fishing. The three planned to rendezvous
with a group of friends in coastal waters, then proceed to Northwest
Places, a fishing hole in the Atlantic Ocean off the coast of North Car-
olina. At the marina, plaintiff, defendant, and defendant's brother
boarded defendant's boat, a 25-foot Pursuit motorboat with twin
engines.

Defendant drove the boat out of the Morehead City area and into
coastal waters, at which point they met their friends, who rode in a
separate boat. Both boats traveled to Cape Lookout Light, where the
group swam and ate lunch. The parties in the companion boat decided
not to fish because of the rough sea conditions. Defendant, however,
was determined to fish that day at Northwest Places. After lunch,
defendant drove the boat, still containing defendant's brother and
plaintiff, and headed offshore toward the fishing grounds.

Defendant followed a southwest course out of Cape Lookout. The
wind was steady out of the southwest, gusting between ten and four-
teen miles per hour. The seas were rolling and choppy. The waves
averaged between one and three feet in height, with occasional swells
of three to five feet. Defendant, impatient because it was now after
lunch and they had not yet reached their fishing destination, drove the

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boat at consistent speeds of twenty to thirty miles per hour during the
course of the trip.

Throughout the drive, defendant was seated facing the wheel, steer-
ing the boat. Because defendant had to maintain a low position to sit
and steer the boat, his vision of oncoming waves was partially
obstructed. The windshield was somewhat smeared with spray, fur-
ther obstructing defendant's vision. During the trip, defendant's
brother was seated next to him in the boat. Plaintiff was positioned
behind defendant, holding on to a leaning post.

Defendant's brother was concerned about the roughness of the ride.
Both plaintiff and defendant's brother had to hold on to grips to avoid
being thrown from their seats. Nonetheless, defendant never slowed
the vessel to accommodate the rough seas. Defendant claimed it was
necessary to drive the boat between twenty and twenty-five miles per
hour in order to plane the vessel, but evidence introduced at trial sug-
gested that the vessel could have been planed at a lower speed, with
less risk involved.

During the ride, the pounding of the waves against the boat caused
a cabinet containing fishing gear to come open, despite a latch and
lock on it. Plaintiff obtained the key to the cabinet, locked it, and
returned to his seat behind defendant. When the cabinet flew open a
second time, plaintiff left his seat and again locked the cabinet door.
Upon returning to his seat, plaintiff held onto the grab rail while try-
ing to seat himself. At that moment, the boat struck a large wave,
approximately five feet in height. The impact caused the boat to
become airborne, then slam down into the sea. Plaintiff was thrown
approximately twelve to eighteen inches in the air. When his hand
came loose from the post, plaintiff was turned and fell backward onto
the deck. Plaintiff landed on his ankle, as a result of which he suffered
a fracture dislocation of the ankle, and a fracture of the proximal fib-
ula several inches below his knee. Plaintiff was taken to a nearby hos-
pital. The orthopedic surgeon who examined plaintiff determined that
the injuries were caused by a high-impact accident and were not con-
sistent with a "slip and fall" accident.

Several days later, plaintiff visited a second orthopedic surgeon.
The orthopedic surgeon determined that plaintiff's fracture had

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slipped out of alignment and required resetting. The surgeon per-
formed a resetting procedure and placed plaintiff in a full-leg cast for
eight weeks. Upon removal of the cast, plaintiff underwent physical
therapy to rehabilitate the injured ankle and fibula.

Despite these efforts, plaintiff continues to suffer swelling and
chronic pain. He has suffered a fifteen percent permanent loss of
mobility in his ankle. According to the orthopedic surgeon who reset
plaintiff's ankle, based on the development of degenerative osteoar-
thritis, plaintiff will likely require an ankle fusion at some point in the
future. Moreover, plaintiff has been unable to return to his position as
a poultry inspector with the North Carolina Department of Agricul-
ture, because the job entails long periods of standing and other duties
plaintiff can no longer perform as a result of his injuries.

Plaintiff filed the complaint in the instant suit on June 13, 1996. A
bench trial was conducted on August 26 and 27, 1997. The court
heard testimony from the parties, expert witnesses, and lay witnesses.
The court issued its written Judgment and Order on September 18,
1997. The court found that defendant was negligent in his operation
of the vessel, causing the injuries to plaintiff's ankle and fibula. The
court found that plaintiff was not contributorily negligent and
awarded damages in the amount of $265,000 for medical expenses,
pain and suffering, permanent disability, and loss of income. On Sep-
tember 19, 1997, defendant filed a notice of appeal from the written
Judgment and Order.

On September 23, 1997, plaintiff filed a motion to amend judg-
ment. Defendant submitted a memorandum in opposition to the
motion to amend judgment on September 30, 1997. The trial court
granted plaintiff's motion to amend judgment in a written order filed
November 20, 1997. The order amended judgment to include prejudg-
ment interest on the entire award of $265,000, at a rate of eight per-
cent. Defendant amended his notice of appeal on December 4, 1997,
to include his appeal from the order issued November 20, 1997.

II.

Defendant first challenges two of the district court's evidentiary
rulings concerning admissibility of expert testimony. A trial court has

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broad discretion in determining whether to admit expert testimony
and should not be reversed absent a clear abuse of discretion. Thomas
J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th Cir. 1989),
cert. denied, 493 U.S. 1073 (1990). In applying the abuse of discre-
tion standard, the appellate court may not categorically distinguish
between rulings that allow expert testimony and rulings that disallow
it. General Elec. Co. v. Joiner, ___ U.S. ___, 118 S. Ct. 512, 517
(1997).

Rule 702 of the Federal Rules of Evidence governs the admissibil-
ity of expert opinion testimony. Under Rule 702,

          [i]f scientific, technical, or other specialized knowledge will
          assist the trier of fact to understand the evidence or to deter-
          mine a fact in issue, a witness qualified as an expert by
          knowledge, skill, experience, training or education, may tes-
          tify thereto in the form of an opinion or otherwise.

Fed. R. Civ. P. 702. The touchstone of admissibility is whether the
testimony will assist the trier of fact. Fox v. Dannenberg, 906 F.2d
1253, 1256 (8th Cir. 1990). The admissibility inquiry is no different
when the court sits without a jury. As this court noted in Friendship
Heights Assoc. v. Koubek, 785 F.2d 1154 (4th Cir. 1986),

          Rule 702 speaks in terms of assisting the trier of fact. It
          makes no distinction in its application depending on whether
          the trier of fact is a judge or a jury. Although a district judge
          who is functioning as the trier of fact is not bound to accept
          the testimony of an expert witness, he may not abuse his dis-
          cretion in refusing to hear such testimony.

Id. at 1163.

The first evidentiary ruling that appellant challenges concerns the
testimony of plaintiff's expert witness, Donald Wayne Davis (Davis).
At trial, defendant objected to certain portions of Davis's testimony.
Defendant objected on the grounds that Davis did not disclose, in his
Rule 26 reports, three aspects of his testimony: the fact that he had
performed an independent analysis of sea conditions; the fact that he

                    5
had conducted an underway inspection of defendant's boat; and the
fact that he had relied on at least one treatise in forming his opinions.
Defendant argues that the trial court should have excluded the por-
tions of Davis's testimony to which he objected.

Under Rule 26 of the Federal Rules of Civil Procedure, a party
must disclose to the other side all experts who may testify at trial. See
Fed. R. Civ. P. 26. The disclosure must be accompanied by a written
report prepared and signed by the expert witness. The report must
contain "a complete statement of all opinions to be expressed and the
basis and reasons therefor; the data or other information considered
by the witness in forming the opinions[; and] any exhibits to be used
as a summary of or support for the opinions." Fed. R. Civ. P.
26(a)(2)(B). Rule 26(e) also requires supplementation of disclosures,
including the reports of an expert, if such disclosures are materially
incomplete or incorrect. Fed. R. Civ. P. 26(e)(1).

Rule 37 of the Federal Rules of Civil Procedure provides, "[a] party
that without substantial justification fails to disclose information
required by Rule 26(a) or 26(e)(1) shall not, unless such failure is
harmless, be permitted to use as evidence at a trial. . . any witness
or information not so disclosed." Fed. R. Civ. P. 37(c).

If a party fails to comply with Rule 26, it is within the trial court's
discretion to impose sanctions, including the exclusion of evidence.
See, e.g., Walsh v. McCain Foods, Ltd. , 81 F.3d 722, 727 (7th Cir.
1996). On the record before us, we cannot say that the trial court
abused its discretion in refusing to exclude portions of Davis's testi-
mony. The record reflects that defendant had sufficient notice of the
nature of Davis's testimony; Davis's initial and supplemental Rule 26
reports adequately informed defendant as to the nature and bases of
his testimony. Moreover, any failure on the part of plaintiff's expert
to comply with Rule 26 was harmless error, for the reasons stated
below.

Davis's Rule 26 reports properly disclosed that Davis based his
opinions on the parties' depositions and the same weather data used
by one of defendant's expert witnesses. Davis's opinion regarding
wave heights on the day of the incident was identical to the descrip-
tion provided by defendant in his deposition and at trial. Likewise,

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any failure to disclose the name of the treatise on which Davis relied
was harmless error; defendant's own expert failed to disclose in his
Rule 26 report the name of the treatise on which he relied. We find
the court did not abuse its discretion, because any failure to comply
with Rule 26's requirements did not unfairly surprise defendant to his
prejudice, and was harmless error.

The second evidentiary ruling to which defendant objects is the dis-
trict court's exclusion of certain testimony by defendant's expert,
Charles Game (Game). Defendant offered Game as an expert in
marine engineering, and boat handling and safety. After conducting
a full voir dire, the court determined that Game was qualified as an
expert in marine engineering, but not in boat handling or safety. Con-
sequently, the court did not permit Game to testify as to whether an
operator would have been negligent in operating defendant's boat at
3,000 rpm, under the sea conditions described by the trial witnesses.
J.A. at 332. However, the court permitted Game to testify as to the
boat's capacity to tolerate 3,000 rpm, under the sea conditions
described by the trial witnesses. J.A. at 334.

Defendant argues that the court improperly refused to qualify
Game as an expert in boat handling and safety. In support of his argu-
ment, defendant points to Game's past appointments to various boat-
ing and yachting committees and boards. Defendant also contends
that the question of whether an operator would be negligent in operat-
ing defendant's vessel at 3,000 rpm, under the conditions described
by the trial witnesses, involves marine engineering, not boat handling
or safety. Thus, defendant argues that the court should have permitted
Game to respond to this question at trial.

We find that the court did not abuse its discretion in ruling that
Game was not qualified as an expert in boat handling or safety.
According to his own testimony at trial, Game is a marine consulting
engineer, whose work has primarily involved electrical engineering.
He has no education, training, or experience in boat handling and
safety. He has never testified or been qualified as an expert in boat
handling.

Nor did the court abuse its discretion in excluding Game's testi-
mony on the question of negligence. It was not an abuse of discretion

                    7
to rule that the question of whether it is proper to operate a vessel at
a certain speed under certain conditions is a matter of boat handling,
not marine engineering. The court permitted Game to testify as to the
boat's capabilities under certain sea conditions, an issue which more
clearly involves marine engineering, Game's area of expertise. Find-
ing no abuse of discretion, we affirm the ruling of the court below.

III.

Defendant challenges the judgment entered below as against the
greater weight of the evidence. We review the judgment in an admi-
ralty case under the same standard applied in non-admiralty civil
cases. McAllister v. United States, 348 U.S. 19, 20 (1954). In review-
ing the judgment of a trial court, sitting without a jury in admiralty,
the appellate court may not set aside the judgment unless it is clearly
erroneous. Norfolk Shipbuilding & Drydock Corp. v. M/Y La Belle
Simone, 537 F.2d 1201, 1202 (4th Cir. 1976). A finding is clearly
erroneous where, although there is some evidence in the record to
support the finding, the reviewing court on the entire record "is left
with a definite and firm conviction that a mistake has been made."
Ente Nazionale Per L'Engeria Electricca v. Baliwag Nav., Inc., 774
F.2d 648, 654 (4th Cir. 1985). In determining whether a district
court's findings in an admiralty case are clearly erroneous, the appel-
late court must consider the evidence in the light most favorable to
the appellee. Id. at 653.

Questions of negligence in an admiralty case are treated as factual
issues, and are thus subject to the clearly erroneous standard of review
on appeal. Id. at 654. Likewise, the apportionment of fault by the trier
of fact, and its damages award, are reviewed for clear error. United
States Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 824 (4th
Cir. 1992). Guided by these principles, we find that the judgment
entered below is not clearly erroneous. The court's factual findings
with regard to duty, breach of duty, causation, and damages are sup-
ported by the record as a whole. Moreover, the trial court based its
findings upon assessments of witness credibility, which is deserving
of the highest degree of appellate deference. Id. at 823.

The court's finding that defendant breached his duty of reasonable
care to his passengers, by failing to maintain a proper lookout and

                     8
warn of dangers, and by operating his vessel in an unsafe manner, is
amply supported by the record: defendant maintained excessive
speeds despite his obstructed view and the rough sea conditions, as
evidenced by the fact that the boat was airborne, the passengers had
difficulty remaining seated throughout the trip, and the cabinet door
repeatedly came open, despite a latch and lock.

With regard to causation, the court's finding that defendant's negli-
gence factually and proximately caused plaintiff's injuries is not
clearly erroneous. The orthopedic surgeon who examined plaintiff
immediately following the incident determined that the injuries were
caused by a high-impact accident and were not consistent with "a slip
and fall" accident. Likewise, the court's finding that plaintiff was not
contributorily negligent is not clearly erroneous; plaintiff was moving
about the vessel and facing aft just prior to his fall, but defendant's
duty of reasonable care to his passengers extended precisely to this
type of activity. Plaintiff was moving about to secure the boat's cabi-
net door, which had opened as a result of the trip conditions. More-
over, no evidence indicated that defendant, the boat driver, instructed
plaintiff, a boat passenger, to remain in one place while the vessel was
in motion and not to secure the cabinet.

Nor can we find clear error in the factual findings underlying the
court's damages award of $265,000. Each item of damages awarded
is supported by evidence introduced at trial. After carefully reviewing
the record, we are not left with a definite and firm conviction that an
error has been committed. Accordingly, we affirm the judgment of the
district court.

IV.

Finally, defendant challenges the district court's order of Novem-
ber 20, 1997, amending judgment to include prejudgment interest at
a rate of eight percent. It is within the court's discretion to award pre-
judgment interest in maritime claims for personal injury or death.
Ameejee Valleejee & Sons v. M/V Victoria U., 661 F.2d 310, 313 (4th
Cir. 1981). We review a district court's discretionary allowance of
prejudgment interest for clear error. In an admiralty case, prejudg-
ment interest is "the rule rather than the exception." United States
Fire Insur. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir.

                     9
1992). The court may award prejudgment interest at the maximum
allowable rate under the applicable state statutes. Ameejee Valleejee,
661 F.2d at 313.

We find that the district court's award of prejudgment interest is
supported by the record, and is not clearly erroneous. The instant case
presented no "peculiar circumstances" that would render such an
award inequitable, particularly since the court reduced future damages
to their present value. See Allied, 966 F.2d at 827; Gardner, 333 F.2d
at 677. Finding no clear error, we affirm the court's award of prejudg-
ment interest on damages.

V.

Having carefully reviewed the record as a whole, we find no abuse
of discretion in the court's two rulings concerning admissibility of
expert testimony. Nor do we find clear error in the judgment entered
below. Finally, the district court's award of prejudgment interest on
damages is supported by the record, and is not clearly erroneous. For
the foregoing reasons, the judgment of the district court is affirmed
in all respects.

AFFIRMED

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