[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2208
MANUEL TAVARES,
Plaintiff, Appellee,
v.
MICHIGAN FISHING, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Stahl, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Thomas E. Clinton, with whom Clinton & Muzyka, P.C. was on brief
for appellant.
Michael B. Latti, with whom Carolyn M. Latti and Latti Associates
LLP were on brief for appellee.
October 24, 1997
Per Curiam. Michigan Fishing, Inc. ("Michigan")
Per Curiam
appeals the district court's denial of its motion for new trial
after the jury found it liable under the Jones Act, 46 U.S.C.
688 (Supp. 1997), for bodily injuries sustained by plaintiff
Manuel Tavares while a seaman aboard the F/V CONCORDIA, owned by
Michigan. In particular, Michigan contends that the following
jury argument by plaintiff's counsel was unfairly prejudicial:
[Captain Jacobsen] says, I don't
remember. I don't remember whether I gave
someone a list after this accident, to fix
it. I don't remember. I don't remember.
That's all he keeps on saying, but we know
that four days after there was this repair
done and there was an invoice for it and it
was done and it was on that starboard
hoister. (emphasis added).
Michigan argues that the quoted language invited the jury to
treat the invoice as substantive evidence of liability, even
though the invoice was never admitted in evidence.
There was no abuse of discretion. See Correa v.
Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995), cert.
denied, 116 S. Ct. 1423 (1996). The same invoice had been used
earlier to impeach the ship's captain, after he denied knowing
whether any repairs were made to the hoister after the accident.
Furthermore, the trial judge promptly cautioned the jury that the
invoice was not to be considered substantive evidence, but only
for impeachment purposes.
Michigan nonetheless maintains that the jury must have
disregarded the district court instruction. It points to a later
jury note: "Why was invoice for repairs not submitted for
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evidence? Exactly what did it show." Thereafter, however, the
trial judge firmly disabused the jury of any misconception
portended by the note:
First, "Why was invoice for repairs not
submitted for evidence?" Because it's not
admissible under the laws of evidence and the
law governing this case.
So, in answer to the second question,
I'll have nothing to say about what it shows
or not . . . or even if it's an invoice for
repairs. You have heard those things which
are admissible and I have charged you with
respect to them.
Coupled with its earlier instruction that the invoice
could be considered only "to get a handle on the believability of
the witnesses who testified before [the jury], and nothing else
whatsoever[,]" the district court's later cautionary instruction
was sufficient to keep the jury on the proper track. See Conde
v. Starlight I, Inc., 103 F.3d 210, 213 (1st Cir. 1997) ("We
normally presume that a jury follows instructions to disregard
improper argumentation.").
Affirmed.
Affirmed
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