Robinson v. Ensco Offshore Co

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 96-30254
____________

EDWARD ROBINSON,

Plaintiff-Appellant,

versus

ENSCO OFFSHORE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CV-19-C)

May 19, 1997

Before REYNALDO G. GARZA, EMILIO M. GARZA, and DeMOSS, Circuit
Judges.

EMILIO M. GARZA, Circuit Judge:*

Plaintiff Edward Robinson (“Robinson”) appeals the district

court’s dismissal of his action pursuant to Federal Rule of Civil

Procedure 52(c). We affirm.

I

Premiere, Inc., a subcontractor of the Kinlaw Oil Corporation

*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
(“Kinlaw”), employed Robinson as a diesel hammer operator on the

PENROD 90, a drilling vessel owned and operated by Defendant Ensco

Offshore Company (“Ensco”), formerly Penrod Drilling Company

(“Penrod”). On or before September 28, 1992, Penrod had entered

into a Domestic Day Work Drilling Contract-Offshore with Kinlaw.

On May 23, 1993, the Premiere hammer crew and the Penrod

drilling crew were working together to drive conductor pipe. They

had difficulty starting the diesel hammer because it had become

damp, so Robinson attempted to start the hammer by spraying

starting fluid (ether) into it.1 Robinson was lifted in a “man

rider” by means of an air-hoist approximately forty feet above the

drill floor to enable him to spray the starting fluid into the

intake port of the hammer. To do so, Robinson had to place his arm

inside the hammer “cage.”2 During this spraying process, the

hammer moved or was fired; Robinson sustained severe injuries to

his right arm when it was caught inside the cage and crushed.

Robinson thereafter filed suit against Ensco under the General

Maritime Law, 28 U.S.C. § 13333 and 33 U.S.C. § 905(b),4 seeking

1
Starting fluid dries moisture, thereby assisting in
ignition.
2
At oral argument, counsel for Ensco explained that the
“cage” is four beams that surround the hammer.
3
Section 1333 provides in relevant part:
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases
all other remedies to which they are otherwise

-2-
damages for the injury to his arm. Under Robinson’s theory of the

case, the accident occurred when the Ensco driller, Robert Hall,

fired the hammer without warning and without a signal from

Robinson.

During the bench trial, Robinson presented the testimony of

several witnesses, including four who had first-hand knowledge of

the accident: himself, Ronnie Thacker, Darrell Broussard, and

Gerald Stelly. Robinson himself was the only witness who was in a

position to see whether he gave a signal to Hall to fire the

entitled. . . .
4
Section 905(b) provides:
In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the provisions
of section 933 of this title, and the employer shall not
be liable to the vessel for such damages directly or
indirectly and any agreements or warranties to the
contrary shall be void. If such person was employed by
the vessel to provide stevedoring services, no such
action shall be permitted if the injury was caused by the
negligence of persons engaged in providing stevedoring
services to the vessel. If such person was employed to
provide shipbuilding, repairing, or breaking services and
such person’s employer was the owner, owner pro hac vice,
agent, operator, or charterer of the vessel, no such
action shall be permitted, in whole or in part or
directly or indirectly, against the injured person’s
employer (in any capacity, including as the vessel’s
owner, owner pro hac vice, agent, operator, or charterer)
or against the employees of the employer. The liability
of the vessel under this subsection shall not be based
upon the warranty of seaworthiness or a breach thereof at
the time the injury occurred. The remedy provided in
this subsection shall be exclusive of all other remedies
against the vessel except remedies available under this
chapter.

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hammer. Thacker and Broussard both testified that at the time of

the accident, they were not in positions to see a signal if one had

been given.5 Stelly testified by deposition that he could not

remember whether a signal had been given.

Robinson also testified that the accident happened on his

first attempt to start the hammer by spraying starting fluid, and

that he had not previously tried to start the hammer until he went

up with the ether the time the accident occurred. Thacker,

however, testified that he heard Robinson and Broussard attempt to

start the hammer ten times and that he then helped Robinson try to

start it approximately five additional times. Likewise, Broussard

testified that Robinson attempted to start the hammer with

Broussard’s assistance. Thereafter, Broussard took a three to five

hour nap. According to Broussard, when he awoke Robinson was still

attempting to start the hammer and the accident occurred.6 Stelly

stated that Robinson had sprayed ether ten to fifteen times before

the accident, had used several cans of ether, and that after each

spraying Robinson would either swing away from the cage or stay at

5
Specifically, Thacker testified that only after he heard
Robinson shout subsequent to the accident did he walk around the
back of the hammer to look up at Robinson. Broussard testified
that he did not look at Robinson prior to the accident and would
not have seen a signal if one were given.
6
Though the district court recited Broussard’s testimony
in its factual findings, it explained that Broussard’s testimony
contradicted his deposition testimony to such an extent that the
court did not think Broussard “remembered very much.” Thus, the
court stated that it was “not relying on his testimony either for
or against the plaintiff at this point.”

-4-
the cage while the driller attempted to fire the hammer.

Charles Boudreaux, Premiere’s district manager at the time of

accident, testified that he went to the hospital a few days after

the accident with Curtis Gonzales, Premiere’s safety director.

Boudreaux stated that Robinson did not know exactly how the

accident occurred, but that Robinson did have “some idea” about how

it happened. Boudreaux testified that Robinson explained to him

that he sprayed the ether in the hammer, swung away from the cage

to hold onto to a beam in the derrick, missed the beam, swung back

into the hammer and was injured. Boudreaux testified that Robinson

never said that the driller fired the hammer when he should not

have done so; in fact, Robinson said nothing about a signal at all.

Robinson, however, denied giving the driller any signal to

move or fire the hammer and denied swinging out to grab the beam or

staying close to the cage while the hammer fired. Robinson also

testified that he had no recollection from the moment of the

accident to being in the hospital a few days later. All he

remembered was spraying the ether and feeling the hammer move. He

testified at trial that he had no recollection of speaking to

Boudreaux and Gonzales in the hospital; Robinson had testified in

his deposition, however, that he did remember seeing Boudreaux and

Gonzales in the hospital and that they had asked him how the

accident had occurred.

After Robinson presented his case-in-chief, Ensco moved for

involuntary dismissal. The district court took Ensco’s motion

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under submission and asked Ensco to present its liability witnesses

before the court considered Ensco’s motion. Ensco identified its

liability witnesses as Gonzales, Mike Poche and Daniel Doggett.

Gonzales testified that Robinson told him in the hospital

emergency room that the accident had occurred when Robinson sprayed

the ether, told his assistant Thacker to start the hammer, pushed

off from the hammer, missed the beam and swung back into the

hammer. Gonzales testified that Robinson reiterated this account

of the accident when Gonzales visited Robinson again in the

hospital a few days later with Boudreaux. Gonzales testified that

during neither conversation did Robinson say that the driller had

fired the hammer prematurely.

After Gonzales’s testimony, the court took a brief recess and

returned to dismiss Robinson’s action pursuant to Federal Rule of

Civil Procedure 52. The court found that Robinson had not

established by a preponderance of the evidence that Ensco was at

fault in the accident. The court observed that Robinson was the

only witness who testified that the driller fired the hammer

without warning and without a signal, and concluded that there was

no corroboration of Robinson’s version of the accident by other

witnesses.7 The court found Robinson’s recollection of the

7
The court noted that Thacker and Broussard both came on
the scene immediately after the accident and did not know and could
not testify whether there was a signal or where Robinson’s arm was
when the accident occurred. The court also noted that Stelly did
not know whether a signal was given.

-6-
accident not sufficiently reliable to sustain his burden of proof.8

The district court denied Robinson’s subsequent motion for a new

trial. Robinson appeals.

II

A

Robinson’s first two arguments attack the trial court’s

findings pursuant to Rule 52: that the findings are inadequate to

give a clear understanding of the process by which the court’s

ultimate conclusions were reached and thus inadequate to permit

appellate review, and that the findings are clearly erroneous. See

Curtis v. Commissioner of Internal Revenue, 623 F.2d 1047, 1051

(5th Cir. 1980) (describing two types of attacks on findings

pursuant to Rule 52). We turn first to Robinson’s contention that

the district court did not provide adequate findings of fact and

conclusions of law as required by Rule 52.

8
The district court explained that the testimony of all of
the witnesses other than Robinson contradicted Robinson’s testimony
about the circumstances of the accident. Robinson testified that
the accident occurred on his first or second attempt to spray the
ether, and denied both that he had been working on the hammer for
a period of time before the accident and that he had been swinging
out to grab the beam each time while the driller attempted to fire
the hammer. Thacker and Broussard, however, both testified that
Robinson had tried to start the hammer ten to fifteen times before
the accident. Stelly testified that Robinson would spray the ether
and then swing out and grab the beam. Finally, the district court
observed that the account of the accident that Robinson gave to
Gonzales and Boudreaux at the hospital, i.e., that the accident
occurred when Robinson sprayed the ether, swung out to catch the
beam, missed the beam, and swung back into the hammer, was
generally consistent with the testimony of the witnesses to the
accident, except for Robinson himself.

-7-
 1

Rule 52(c) states that a judgment on partial findings “shall

be supported by findings of fact and conclusions of law as required

by subdivision (a) of [Rule 52].” Rule 52(a) provides that “the

court shall find the facts specially and state separately its

conclusions of law thereon. . . . It will be sufficient if the

findings of fact and conclusions of law are stated orally and

recorded in open court following the close of the evidence . . . .”

The purpose of Rule 52(a) is to aid the appellate court by

affording it a clear understanding of the ground or basis of the

decision of the trial court. S.S. Silberblatt, Inc. v. United

States ex rel. Lambert Corp., 353 F.2d 545, 549 (5th Cir. 1965).

Failure to meet the technical requirements of Rule 52 does not

warrant reversal or remand as long as the purposes behind the rule

are effectuated. Chandler v. City of Dallas, 958 F.2d 85, 89 (5th

Cir. 1992).

Hence, Rule 52(a) “exacts neither punctilious detail nor

slavish tracing of the claims issue by issue and witness by

witness.” Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993)

(citations omitted). Rule 52(a) does not require that the trial

court set out findings on all the myriad factual questions that

arise in a case. Golf City, Inc. v. Wilson Sporting Goods Co., 555

F.2d 426, 433 (5th Cir. 1977). It simply requires findings that

are explicit and detailed enough to enable us to review them under

-8-
the applicable standard. Schlesinger, 2 F.3d at 139; see also

Lopez v. Current Dir. of Tex. Econ. Dev. Comm’n, 807 F.2d 430, 434

(5th Cir. 1987) (“The correct application of the clearly erroneous

standard requires that an appellate court be able to discern the

evidentiary basis for a trial court’s factual finding.”).

The district court’s findings of fact and conclusions of law

in this case, made orally as permitted by Rule 52(a), certainly

enable us “to obtain a ‘full understanding of the issues on

appeal.’” Chandler, 958 F.2d at 90 (quoting Texas Extrusion Corp.

v. Palmer, Palmer & Coffee (In re Texas Extrusion Corp.), 836 F.2d

217, 221 (5th Cir. 1988)). We are not left “‘[t]o speculate as to

the factual basis for the district court’s conclusion.’” West Wind

Afr. Line, Ltd. v. Corpus Christi Marine Servs. Co., 834 F.2d 1232,

1235 (5th Cir. 1988) (quoting Salinas v. Roadway Express, Inc., 735

F.2d 1574, 1578 (5th Cir. 1984)). Rather, the district court made

specific findings supporting its conclusion that Robinson failed to

establish by a preponderance of the evidence that Ensco was at

fault in the accident. In particular, the district court observed

that Robinson was the only witness who testified that the driller

fired the hammer without warning and without a signal. The court

catalogued the testimony of the witnesses to the accident and

concluded that no witness corroborated Robinson’s version of the

accident. The court also provided specific reasons for finding

that Robinson’s recollection of the accident was not sufficiently

-9-
reliable to sustain his burden of proof. In sum, the district

court’s findings are “sufficiently detailed to give us a clear

understanding of the analytical process by which ultimate findings

were reached and to assure us that the trial court took care in

ascertaining the facts.” Golf City, 555 F.2d at 433.9

2

Contending that he proved Ensco’s fault “based on the

eyewitnesses who were called in [his] case,” Robinson also argues

that the district court erred in finding that he had not proved

Ensco’s liability by a preponderance of the evidence. Robinson

specifically asserts that the eyewitnesses to the accident

demonstrated Ensco’s liability because they testified that Robinson

had not finished spraying the ether when the accident occurred and

that Robinson did not give a signal to the driller to fire or move

the hammer prior to the accident.

We review district court judgments on partial findings

pursuant to Rule 52(c) for clear error. Southern Travel Club, Inc.

v. Carnival Air Lines, Inc., 986 F.2d 125, 128 (5th Cir. 1993).

9
To support his claim that the district court did not
provide adequate findings of fact and conclusions of law, Robinson
presents a list of “factual” questions he claims the district court
failed to answer. The district court’s “failure” to answer
Robinson’s questions, however, does not constitute a violation of
Rule 52. Cf. Schlesinger, 2 F.3d at 139 (“In essence, the
appellants list their own version of the facts and then complain
that the district court violated Rule 52 by ignoring these ‘facts.’
The district court did not ignore facts. It simply found facts
contrary to the appellants’ liking.”).

-10-
See Rule 52(c) advisory committee’s note (judgment on partial

findings, unlike a summary judgment, “is made after the court has

heard all evidence bearing on the crucial issue of fact, and the

finding is reversible only if the appellate court finds it to be

‘clearly erroneous’”).

In other words, we will not set aside the district court’s

finding unless, based upon the entire record, we are “left with the

definite and firm conviction that a mistake has been committed.”

Southern Travel Club, 986 F.2d at 128 (quoting Anderson v. City of

Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed.

2d 518 (1985)). If the district court’s account of the evidence is

plausible in light of the record, we will not reverse it))even if

convinced that had we been sitting as trier of fact, we would have

weighed the evidence differently. Id.; see also Movible Offshore,

Inc. v. M/V Wilken A. Falgout, 471 F.2d 268, 271 (5th Cir. 1973)

(“The question is . . . whether the trial court could permissibly

find as it did.”). Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly

erroneous. Anderson, 470 U.S. at 574, 105 S. Ct. at 1511.

Because this case turned almost exclusively on determinations

regarding the credibility of witnesses, Rule 52(a) demands even

greater deference to the trial court’s findings. Schlesinger, 2

F.3d at 139. Where the court’s finding is based on its decision to

credit the testimony of one witness over that of another, that

-11-
finding, if not internally inconsistent, can virtually never be

clear error. Id. “[O]nly the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on

the listener’s understanding of and belief in what is said.”

Anderson, 470 U.S. at 575, 105 S. Ct. at 1512.

The district court’s conclusion that no witnesses corroborated

Robinson’s version of the accident, though at odds with Robinson’s

contention that the eyewitnesses established that no signal was

given, is more than plausible in light of the record. Though

Robinson testified that Hall fired the hammer without warning and

without a signal, Thacker and Broussard both came on the scene

after the accident and did not know whether a signal had been given

or where Robinson’s arm was when the accident occurred. Stelly

testified that Robinson had not finished spraying the ether before

the accident occurred, but that he did not know whether a signal

had been given.

Moreover, we find no clear error in the district court’s

conclusion that Robinson’s testimony lacked credibility. The

testimony of all of the other witnesses contradicted, or at least

did not corroborate, Robinson’s statements about the accident.

Robinson testified that the accident occurred on his first or

second attempt to spray the ether, and denied both that he had been

working on the hammer for a period of time before the accident and

that he had been swinging out to grab the beam each time while the

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driller attempted to fire the hammer. Thacker and Broussard,

however, both testified that Robinson had tried to start the hammer

ten to fifteen times before the accident. Stelly testified that

Robinson would spray the ether and then swing out and grab the

beam. Furthermore, the account of the accident that Robinson gave

to Gonzales and Boudreaux at the hospital, i.e., that the accident

occurred when Robinson sprayed the ether, swung out to catch the

beam, missed the beam, and swung back into the hammer, was

generally consistent with the testimony of the witnesses to the

accident, except for Robinson himself. The record reveals no clear

error in the district court’s findings and we therefore affirm its

conclusion that Robinson did not establish Ensco’s fault in the

accident by a preponderance of the evidence.

B

Robinson next contends that the district court erroneously

based its decision on deposition testimony that was not entered

into evidence at trial. In its reasons for granting judgment in

favor of Ensco, the district court refers to driller Hall’s

deposition. However, though Hall’s deposition was provided to the

court prior to trial, neither party offered it into evidence.

Robinson’s argument is generally analogous to a claim that the

district court improperly admitted evidence and then relied upon it

in reaching its decision. In a non-jury case, the admission of

incompetent evidence will not warrant reversal unless all of the

competent evidence is insufficient to support the judgment, or

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unless it affirmatively appears that the incompetent evidence

induced the court to make an essential finding which would

otherwise not have been made. Goodman v. Highlands Ins. Co., 607

F.2d 665, 668 (5th Cir. 1979).10 As we have concluded above that

the district court did not err in finding, without reference to

Hall’s deposition, that Robinson did not prove his case, we

similarly conclude that the competent evidence is sufficient to

support the judgment. Thus, we address here only whether Hall’s

deposition testimony induced the district court to make an

essential finding it otherwise would not have.

The district court undoubtedly considered Hall’s deposition in

making its decision. In its reasons for granting judgment in favor

of Ensco, the court stated that “[t]he driller, Mr. Hall, in his

10
See Fed. R. Civ. P. 61 (“No error in either the admission
or the exclusion of evidence . . . is ground for granting a new
trial . . . unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”); 28
U.S.C. § 2111 (“On the hearing of any appeal or writ of certiorari
in any case, the court shall give judgment after an examination of
the record without regard to errors or defects which do not affect
the substantial rights of the parties.”); see also American
Universal Ins. Co. v. Dykhouse, 326 F.2d 694, 697 (8th Cir. 1964)
(finding that because substantial evidence existed to support
judgment, trial court’s error in considering depositions which were
filed but not offered as evidence was at most harmless, resulting
in no prejudice to appellant); Oates v. S. J. Groves & Sons Co.,
248 F.2d 388, 389 (6th Cir. 1957) (per curiam) (finding that where
deposition that was read by district court during recess in trial
but was not formally introduced in evidence dealt with no new fact
not otherwise fully covered by other competent evidence, no
prejudicial error occurred).

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deposition, states that he would not have fired the hammer without

a signal,” and that “Mr. Hall, the driller, also said that the

plaintiff kept spraying the hammer and then he would either swing

away or remain by the cage.” The district court acknowledged,

however, that Hall apparently did not “specifically remember what

happened . . . immediately before the accident.”

Robinson contends that Hall’s deposition induced the court to

find that Robinson signaled prior to the accident. A close reading

of the district court’s findings, however, reveals that it did not

so find. Rather, the court found that Hall did not specifically

remember what had occurred prior to the accident and speculated

that “what may have happened” was that the plaintiff gave a signal

to fire and was injured upon missing the beam and swinging back

into the hammer. Though Robinson testified that he did not give

Hall a signal to fire the hammer, no witness with first-hand

knowledge of the accident could corroborate Robinson’s contention.

Moreover, the district court specifically found that Robinson’s

recollection of the accident was unreliable. Under these

circumstances, any reliance on Hall’s assertion that he “would not

have fired the hammer without a signal” cannot be said to have

induced the court to find that a signal was given when it otherwise

would not have so found. Indeed, the district court made no

finding regarding whether a signal was given; rather, it concluded

that Robinson had not proved that he did not give a signal.

The testimony of other witnesses also corroborates Hall’s

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statement that Robinson “kept spraying the hammer and then he would

either swing away or remain by the cage.” Stelly testified that

Robinson would spray the ether and then either swing away from the

hammer cage or remain near the cage while the hammer fired.

Similarly, both Boudreaux and Gonzales testified that Robinson told

them that after spraying the ether he swung away from the hammer

cage. Thus, any reliance on Hall’s statement regarding Robinson’s

actions near the hammer before the accident did not induce the

court to make an essential finding it otherwise would not have

made.11

C

Robinson next argues that the district court erred in granting

11
One final issue deserves comment. Robinson’s claim that
the district court erroneously relied upon Hall’s deposition
differs from a claim of admission of incompetent evidence in one
respect: opportunity for rebuttal. In a case where the court
admits incompetent evidence, the party opposing its admission
presumably has had an opportunity to rebut that evidence. As he
correctly asserts, Robinson had no opportunity to rebut Hall’s
deposition testimony in this case. Robinson contends that, given
the opportunity, he would have presented the testimony of Daniel
Doggett, a floor hand on the PENROD 90 at the time of the accident,
who gave a statement on the day of the accident that he did not see
a signal prior to the accident.
Under the circumstances of this case, however, we do not think
that Robinson’s lack of opportunity to rebut Hall’s deposition
requires reversal. The district court heard testimony similar to
Doggett’s proposed testimony from several other witnesses and
Robinson fails to explain how Doggett’s statement differs from that
testimony. Cf. Wright v. Southwest Bank, 554 F.2d 661, 663-64 (5th
Cir. 1977) (finding that district court’s acceptance of, and
reliance on, ex parte evidence was reversible error where opposing
party had no opportunity to test its validity and similar evidence
had not been introduced, but was harmless error where similar
evidence had been previously introduced into evidence).

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judgment against him pursuant to Rule 52(c) because Robinson had

not been “fully” heard on the issue of liability because the

district court did not permit Robinson to present rebuttal

testimony. Specifically, Robinson contends that the district court

improperly refused to permit him to rebut Gonzales’s testimony and

Hall’s deposition testimony.12 Whether to allow evidence in

rebuttal is a matter within the trial court’s discretion,

reviewable only for an abuse. Cates v. Sears, Roebuck & Co., 928

F.2d 679, 685 (5th Cir. 1991).

Rebuttal is a term of art, denoting evidence introduced by a

plaintiff to meet new facts brought out in his opponent’s case in

chief. Morgan v. Commercial Union Assurance Cos., 606 F.2d 554,

555 (5th Cir. 1979); see also Rodriguez v. Olin Corp., 780 F.2d

491, 496 (5th Cir. 1986) (“[E]vidence is new if, under all the

facts and circumstances, the court concludes that the evidence was

not fairly and adequately presented to the trier of fact before the

defendant’s case in chief.”). Gonzales’s testimony, however, did

not present new facts. Rather, Gonzales simply reiterated facts

that had been elicited from Boudreaux by Ensco during cross-

examination.

Nor did the district court abuse its discretion in refusing to

permit Robinson to present rebuttal testimony from family members

12
As we have already addressed Robinson’s claim regarding
rebuttal of Hall’s deposition, we devote this discussion only to
his claim regarding rebuttal of Gonzales’s testimony.

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to establish that Robinson was “incoherent” while in the hospital,

and therefore “incoherent” during the conversation with Gonzales

and Boudreaux. Both Boudreaux and Gonzales testified that they did

not remember any family members being present during their

conversation with Robinson in the hospital. Moreover, Robinson’s

wife testified that Robinson “didn’t say too much in the hospital.

He just was in a lot of pain,” and that Robinson “wasn’t responding

to anyone” while in the hospital. Even Boudreaux testified that

Robinson “was a little disoriented, because of pain pills. I guess

he was on pain pills.” In light of this testimony, the district

court did not abuse its discretion in refusing to take additional

testimony regarding Robinson’s alleged “incoherence” while in the

hospital. See Tramonte v. Fibreboard Corp., 947 F.2d 762, 766 (5th

Cir. 1991) (“A trial court does not abuse its discretion in

excluding rebuttal evidence when the offering party already has

presented evidence on the same issue as a part of its case.”);

Orduna S. A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154 (5th Cir.

1990) (same).

D

Robinson also argues that the district court erred in

excluding the expert testimony of Robinson’s witness Edward B.

Robert, Jr. on the issue of safety standards in the industry. The

admission or exclusion of expert testimony is a matter left to the

discretion of the trial judge, and his or her decision will not be

-18-
disturbed on appeal unless it is manifestly erroneous. Smogor v.

Enke, 874 F.2d 295, 297 (5th Cir. 1989) (quoting Perkins v.

Volkswagen of Am., Inc., 596 F.2d 681, 682 (5th Cir. 1979)); see

also Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 280 & n.32 (5th

Cir.) (quoting and relying on Perkins, and explaining that the

“manifest error” standard is harmonious with the “abuse of

discretion” standard as applied to this issue in other Fifth

Circuit cases), cert. denied, 484 U.S. 851, 108 S. Ct. 152, 98 L.

Ed. 2d 107 (1987).

Ensco moved in limine to exclude Robert’s testimony regarding

the functioning of a diesel hammer. Robinson opposed the motion,

arguing that Robert should be permitted to testify regarding “the

functioning and safe operation of the hammer under the existing

circumstances.” In his opposition to the motion in limine,

Robinson also included a list of propositions to which he asked

Ensco to stipulate in exchange for Robinson’s agreement not to

present Robert’s testimony. Included in this list is the statement

that “[t]he driller should not fire or move the hammer at any time

when the hammer operator is not in a position of safety away from

the hammer.”

On the morning of trial, the district court ruled on Ensco’s

motion in limine as follows:

The second motion was to exclude the plaintiffs [sic]
safety expert. The plaintiffs [sic] can use any witness
with knowledge that he wishes including the safety expert

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 to explain the use of the equipment that was involved
with this injury. I do not need the expert’s opinion on
the cause of the accident however.

Vol. 4, 4:15-20. Then, prior to Robert’s testimony, the court

instructed him that he could testify about

[h]ow the piece of equipment works. How this goes this
way, that goes that way. . . . I’m not taking any
opinions as to whether it was operated safely that day or
anything along those lines.

Vol. 4, 55:7-10 (emphasis added).

In other words, though Robinson maintains that the district

court prevented him from presenting expert testimony regarding

safety procedures in the industry, the plain language of the

district court’s ruling and subsequent clarification reveal that it

did not prohibit Robert from explaining industry safety procedures.

To the contrary, the court only excluded Robert’s testimony insofar

as it bore on the ultimate question of the cause of the accident.

Our review of the record reveals no occasion on which Robinson

either attempted to clarify the court’s ruling regarding Robert’s

testimony or was prohibited by the court from questioning Robert

regarding safety procedures in the industry. Under these

circumstances, the district court’s decision to exclude Robert’s

expert testimony on the ultimate issue of the cause of the accident

was not manifestly erroneous.

E

Robinson last argues that the district court erred in refusing

to permit him to introduce evidence that Premiere was adverse to

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him. Apparently Robinson refers to the district court’s refusal to

permit him to cross-examine Gonzales regarding an alleged indemnity

agreement between Premiere and Kinlaw.13 We review a district

court’s evidentiary rulings for an abuse of discretion. LeBoeuf v.

K-Mart Corp., 888 F.2d 330, 333 (5th Cir. 1989).

Robinson argues that the indemnity agreement would have shown

Gonzales’s bias and his reason for testifying in a manner adverse

to Robinson. Robinson also claims that he would have used the

agreement to impeach Boudreaux and Broussard, his own witnesses.

A plain reading of the contract, however, reveals only that

Premiere owed defense and indemnity to Kinlaw, not to Kinlaw’s

subcontractor Ensco. Robinson does not argue, and indeed the

contract does not provide, that Premiere owed Kinlaw indemnity for

its defense and indemnity of Ensco. Robinson does not explain how

under these circumstances the Premiere witnesses, including those

called by Robinson himself, would have had a bias. Kinlaw did not

13
The Master Service Contract between Premiere and Kinlaw
provides:
5.1 CONTRACTOR [PREMIERE, INC.] shall defend, indemnify
and hold KINLAW and its parent or affiliated companies
harmless from and against every . . . demand, claim,
cause of action, loss, liability, or expense (including
legal fees) arising in favor of CONTRACTOR, CONTRACTOR’S
employees or agents, or CONTRACTOR’S subcontractors or
their employees on account of personal injury . . .
regardless of whether caused or contributed to, in whole
or in part, by the sole or concurrent negligence
(including gross negligence) of KINLAW, its contractors,
unseaworthiness of any vessel, strict liability, or
preexisting condition.

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tender the defense and indemnity of Ensco to Premiere, and the

terms of the contract do not indicate that it could. As a result,

we find no abuse of discretion in the district court’s refusal to

permit Robinson to cross-examine Gonzales about the indemnity

agreement between Kinlaw and Premiere.

III

For the foregoing reasons, we AFFIRM the judgment of the

district court in all respects.

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