Sheek v. Raytheon Engineers

United States Court of Appeals
For the First Circuit

Nos. 99-2221
00-1116

JACK SHEEK,

Plaintiff, Appellee,

v.

ASIA BADGER, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

William A. Zucker, with whom Risa G. Sorkin and Gadsby Hannah LLP,
were on brief, for appellant.
Dana A. Curhan, with whom Kenneth Levine, Ross Annenberg and
Annenberg and Levine, were on brief, for appellee.
December 29, 2000

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 TORRUELLA, Chief Judge. On March 9, 1994, plaintiff-appellee

Jack Sheek, while working as an employee of Mobil Oil Singapore Private

Ltd. ("Mobil") in Jurong, Singapore, slipped on a small pipe and

injured his shoulder. Sheek brought suit in United States district

court against defendant-appellant Asia Badger, Inc. ("Asia Badger"),

alleging that Asia Badger or one of its subcontractors performed

certain repiping work and negligently failed to correct a known

hazardous condition which proximately caused him serious injuries. A

jury found in favor of Sheek and awarded him $387,000. Asia Badger

appeals, arguing that the district court committed reversible error by:

(1) making erroneous evidentiary rulings; (2) giving the jury confusing

and misleading jury instructions; and (3) denying Asia Badger's post-

verdict motions for judgment notwithstanding the verdict and a new

trial.

For the reasons set forth below, we affirm the district court

on all issues.

I. BACKGROUND

The basic facts of the case may be summarized as follows.

A. The Project

In June 1992, Sheek went to Jurong, Singapore to work as an

operations specialist on a new aromatics plant under construction by

Mobil (the "Project"). Asia Badger, a wholly-owned subsidiary of

Badger Engineering, Inc., was the general contractor on the Project.

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During the Project's early stages, Sheek worked during the day and was

responsible for walking through the plant and reporting on the work

being done by Asia Badger. Part of his report included operational

problems, or "punch list" items, that needed to be corrected. Sheek

referred these items, directly or through intermediaries, to Asia

Badger. In turn, Asia Badger or its subcontractors worked on the

identified problems.

In January 1994, Sheek became the night superintendent and

began working twelve-hour shifts from 6:00 p.m. to 6:00 a.m. Sheek

ran equipment, flushed pipes, and completed other start-up tasks in

order to prepare the plant for operation. Sheek also continued to

identify punch list items which were passed on to the day shift. These

items were addressed during the day, and Sheek checked the progress of

the work while on duty at night.

In mid-January or early February 1994, Mobil discovered that

four xylene splitter pumps were operating at excessively high

temperatures. Tests indicated that the piping was too small,

preventing cooling water from adequately circulating through the pumps.

Sheek received orders to take these pumps out of service so that work

could be performed on them during the day shift. The pumps required

two types of work. The first was maintenance work, such as the

replacement of seals and bearings damaged by the lack of coolant: this

involved unscrewing a flange, removing piping, replacing the parts, and

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screwing the piping back together. The second type of work involved

repairing the actual design defect, i.e., cutting out the inadequate

cooling pipes and replacing them with larger diameter piping. Like

other punch list items, Sheek noted the work completed on the pumps

when he arrived on duty in the evening.

B. Sheek's Accident

When the facility entered its final stages of construction

in early 1994, Mobil gradually took control of sections of the plant as

they became operational and expanded its maintenance work in those

areas. Full mechanical acceptance of the plant by Mobil occurred on

March 1, 1994. One week later, on March 8, Mobil held a dedication

ceremony for the plant. In preparation, some areas of the plant were

shut down and cleaned.

Also on March 8, Sheek received instructions to take the last

of the four pumps, the "D" pump, out of service. On the evening of

March 9, Sheek observed that some of the piping in the D pump had been

changed to a larger diameter size. At 11:00 p.m. that same evening,

Mobil workers arrived with a large control valve which had been removed

during the day for maintenance. Sheek checked up on the workers

several times as they reinstalled the valve. At about 3:00 a.m. on

March 10, Sheek walked past the xylene splitter pumps on his way to

look at the valve once more, since the work was nearing completion. As

Sheek neared the D pump, he stepped on a piece of pipe, fell backwards,

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threw his right arm behind him and grasped a drain line to break his

fall. As he got up, Sheek saw the pipe, removed it from the walkway

and continued with his shift.

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C. Injury and Treatment

When Sheek awoke the next morning, he felt pain in his right

shoulder and could not raise his arm. On March 12, Sheek saw Dr. Jimmy

Darwulla, an orthopedic surgeon in Singapore. Dr. Darwulla determined

that Sheek had a partial tear in his right shoulder muscle and

prescribed medication and physical therapy. That same day, Sheek filed

an accident report with Mobil, identifying the pipe he slipped on as

the kind being replaced on the xylene splitter pumps. On March 18,

Sheek returned to his home in Texas to obtain a visa for a three-week

assignment with Mobil in Saudi Arabia, which had been arranged prior to

his accident. Although Dr. Darwulla had advised Sheek that he was not

fit to go on the assignment, Sheek left for Saudi Arabia shortly

thereafter.

After returning from his assignment in Saudi Arabia, Sheek

visited Dr. Reid, an orthopedic surgeon in Texas. Dr. Reid diagnosed

a complete tear in Sheek's rotator cuff and recommended surgery, which

was performed in June 1994. Sheek underwent a second surgery several

weeks later to remove bone spurs and scar tissue that was causing him

pain. Following the surgery, Sheek accepted a temporary assignment

with Mobil but was unable to obtain a full medical release and thus

return to work permanently. Sheek declined Mobil's offer to place him

on half pay and retired in 1995.

D. Trial

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 Sheek filed suit against Asia Badger in the district court

for the Eastern District of Texas on June 1, 1995. On September 5,

1996, the case was transferred to the District of Massachusetts.

During the nine-day trial, both parties presented conflicting testimony

concerning almost every fact in the case. For purposes of this appeal,

we will briefly highlight the evidence relating to three main issues:

(i) who replaced the piping work on the xylene splitter pumps; (ii)

whether Asia Badger exercised control over the persons who performed

the work; and (iii) whether Sheek's injuries were caused by the pipe on

which he slipped.

1. The Piping Replacement

Asia Badger's central defense was that it was not responsible

for the repiping work performed on the pumps. To support this

contention, Asia Badger presented the deposition testimony of Gary

Steinmetz, who worked as a mechanical engineer for Asia Badger during

the Project. According to Steinmetz, the problem with the xylene pumps

was a result of a manufacturing error. Specifically, in addition to

the inadequate piping, the coolers were grossly undersized and had to

be replaced with larger capacity coolers. The piping could not be

replaced until the coolers were replaced. Steinmetz testified that

Mobil was the only party with the proper equipment to change the

piping: Asia Badger did not work with galvanized schedule 40 pipe,

identified by Sheek as the type of pipe on which he slipped. The

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deposition of Ch Tai, Mobil's venture manager for the Project,

supported Steinmetz's testimony by revealing that Mobil had received

and replaced both the cooler and piping system in August 1994.

Sheek did not dispute that Mobil changed the coolers and

piping in August. He added, however, that a different set of pipes

were also changed in March by Asia Badger. Sheek testified that in

addition to observing some replaced pipes on the evening of March 9, he

had seen a memorandum prepared by Asia Badger indicating that the pipes

would be replaced and the design drawings altered accordingly to

reflect the change. According to Sheek, moreover, the overheating of

the pumps was a result of a design problem. During the period Sheek

worked on the night shift, Mobil only performed maintenance work on the

xylene pumps. James Syar, a supervisor on the Project at the time of

Sheek's accident, also testified that while Mobil replaced seals on the

pumps, Asia Badger took responsibility for the pipe replacement

beginning in January or February 1994. Syar also witnessed the

accident and identified the pipe that Sheek fell on as the same type

being replaced on the xylene splitter pumps.

2. Control Over the Work Performed

Asia Badger also rejected the notion that it had control over

any persons who had allegedly completed the claimed work on the pumps

in March 1994. To this end, the testimony of Mark Henderson, a project

control manager, indicated that after full mechanical acceptance on

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March 1, 1994, control and custody passed to Mobil. Any remaining work

was conducted by Mobil or by Asia Badger subcontractors under Mobil's

supervision. Gary Steinmetz also testified that by this time, all but

thirteen Asia Badger personnel had left the site.

Sheek, however, countered this theory by testifying that

during his day duty in late 1993, he observed Asia Badger workers --

identified by their hats bearing the company's logo -- directing work

being done on the plant. Although Sheek himself could not see the

actual work performed on the pumps once he assumed the role of night

superintendent, he stated that Asia Badger was responsible for all

punch list work that involved design defects. Finally, Sheek's closing

statement referred to the testimony of Gary Steinmetz, who had stated

that Asia Badger's pattern of work was the same both before and after

January 1994.

3. The Cause of Sheek's Injury

Asia Badger presented Dr. Kennedy, an orthopedic surgeon, to

render his expert opinion concerning Sheek's injury. Dr. Kennedy

examined Sheek on March 18, 1997 and April 22, 1999 and his two medical

reports were admitted as exhibits. During direct examination, he

testified that he had also reviewed the evaluation of Dr. Haig, an

orthopedic surgeon in Port Arthur, Texas, who had evaluated Sheek's

condition on October 26, 1995 as part of a disability rating for the

Texas workers' compensation system. Dr. Kennedy then read from a

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portion of Dr. Haig's report which described Sheek's alleged activities

in Saudi Arabia, including that "he had to do a great deal of heavy

work, climbing, pushing, pulling, et cetera, for about 40 days." Dr.

Kennedy identified this report as the source of information about

Sheek's activities in Saudi Arabia.

On cross-examination, Dr. Kennedy offered the opinion that

the progression of Sheek's partial tear into a massive evulsion of the

rotator cuff could be explained by Sheek's work in Saudi Arabia. Upon

further questioning, Dr. Kennedy acknowledged that he had reviewed Dr.

Haig's report since preparing his own April 1999 report. At this

point, the court held a voir dire, during which Dr. Kennedy testified

that he had read Dr. Haig's report three weeks prior to trial. He also

indicated that his opinion concerning Sheek's worsening injury was

based, in part, on Dr. Haig's report.

E. Jury Instructions and Verdict

Both parties agreed that Singapore law governed the issues

of both direct and vicarious liability. With respect to the latter,

the district court instructed the jury as follows:

The contractor is also liable for the failure
of any of his subcontractors to use such
reasonable care if the contractor exercised
direct supervision and control over the manner in
which the subcontractor does this work. Thus, in
this case, to prevail, Mr. Sheek must first
establish that Asia Badger or one or more of its
employees was negligent or that there was
negligence on the part of an Asia Badger

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 contractor, and that Asia Badger exercised direct
supervision and control in the manner in which
this subcontractor performed his work.

With respect to the concept of Asia Badger's
direct control and supervision over the manner in
which the subcontractor performed the work
assigned to the subcontractor, I instruct you
that direct supervision and control in this
context means more than retention of general
[sic] Asia Badger to watch over the progress of
the work of the subcontractor. It means that
Asia Badger must have exercised direct control,
not only over what work was to be done, but the
actual performance of the subcontractor as well.

In addition, the special verdict form submitted to the jury contained

the following question concerning negligence: "Were employees or agents

of the defendant, Asia Badger, negligent in performing the work in the

area of the alleged incident?" The court denied Asia Badger's request

to modify both the instructions and the verdict form.

During its deliberations, the jury sent the court a note

asking, "Regarding Number 3 on the Verdict Form, is Mr. Sheek's

negligence restricted to the time of the accident or could it include

the subsequent recovery period?"1 The court answered the jury:

I have instructed you that you are to
determine whether in the first instance,
negligence on the part of employees or agents as
I described, as I defined agents, caused the
injury to Mr. Sheek, and if you determine that it
did, that is to say that negligence was the
proximate cause of injury to Mr. Sheek, then you
are to determine whether negligence on the part
of Mr. Sheek was a proximate cause of his injury.

1 Question Number 3 asked, "Was Jack Sheek negligent?"

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 The underlying question in the analysis is of
course what is the injury.

And depending on how you determine, what you
determine the nature of the injury to be that Mr.
Sheek has is how you answer that question. So my
answer to you in short will be, it depends. It
depends on what you say the injury is, whether
you consider the time -- the time of the accident
or you consider some later period.
After additional deliberation, the jury returned a verdict for Sheek in

the amount of $430,000, reduced by ten percent, or $43,000, based on

its finding that Sheek was also negligent. The court entered judgment

on September 8, 1999. On September 17, Asia Badger moved for judgment

notwithstanding the verdict and for new trial and remittitur. The

district court denied both motions, and this timely appeal followed.

II. DISCUSSION

Asia Badger challenges the jury's verdict on three grounds.

First, Asia Badger contends that various evidentiary rulings prejudiced

its case against appellee. Next, Asia Badger asserts that the district

court failed to properly instruct the jury on the requirements for

vicarious liability under Singapore law. Finally, Asia Badger

challenges the sufficiency of the evidence underlying the verdict. We

address each of these claimed errors in turn.

A. Evidentiary Issues

Asia Badger claims that the district court erred in excluding

critical portions of Asia Badger's expert testimony. Asia Badger also

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contends that the court improperly allowed Sheek and Syar to offer

testimony about which they had no personal knowledge. We disagree.

1. Dr. Kennedy's Testimony

At trial, the district court excluded portions of testimony

from Asia Badger's medical expert, Dr. Kennedy, for failure to

supplement his medical report to include changes in his medical opinion

as required by Fed. R. Civ. P. 26(e)(1). The court noted that neither

of Dr. Kennedy's own reports linked the development of Sheek's massive

rotator cuff evulsion to his work in Saudi Arabia, and that

consequently, his opinion as to the cause of Sheek's injury was

inadmissable. We will reverse a trial court's decision to admit or

exclude expert testimony only when there is an abuse of discretion.

Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175

F.3d 18, 34 (1st Cir. 1999); Licciardi v. TIG Ins. Group, 140 F.3d 357,

362-63 (1st Cir. 1998).

Fed. R. Civ. Proc. 26(e)(1) requires a party to supplement

its disclosures "if the party learns that in some material respect the

information disclosed is incomplete or incorrect and if the additional

or corrective information has not otherwise been made known to the

other parties during the discovery process or in writing." As we have

noted previously, the supplement requirement helps a party avoid the

burden of responding to unexpected and last-minute changes in its

opponent's expert testimony. See Licciardi, 140 F.3d at 363. This, in

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turn, promotes the broader purpose of discovery, which is "the

narrowing of issues and the elimination of surprise." Johnson v. H.K.

Webster, Inc., 775 F.2d 1, 7 (1st Cir. 1985) (internal quotation marks

omitted).

Asia Badger asserts that, as an initial matter, it did not

violate Rule 26 because Dr. Kennedy was originally scheduled to testify

after the close of appellee's case. Since by this time Dr. Haig's

report would have been introduced into evidence by appellee, Dr.

Kennedy would be qualified to testify based on the Haig report pursuant

to Fed. R. Evid. 703, which states that "[t]he facts or data in the

particular case upon which an expert bases an opinion or inference may

be those perceived by or made known to him at or before the hearing."

Fed. R. Evid. 703. According to Asia Badger, although Dr. Kennedy had

to testify earlier than planned due to scheduling conflicts, the same

result should ensue.

We are not persuaded by this evidentiary sleight of hand. It

seems clear that Rule 703, which outlines the permissible bases for

expert testimony, was not designed to thwart the goals of open and fair

discovery embraced by Rule 26. Here, Dr. Kennedy revealed during voir

dire that Dr. Haig's report -- written in 1995 -- was provided to him

by Asia Badger at least three weeks prior to trial. In addition, Asia

Badger itself introduced the report and questioned Dr. Kennedy on its

contents, suggesting that it was aware of his changed opinion. Thus,

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even if appellee intended to introduce Dr. Haig's report before Dr.

Kennedy testified (which is itself uncertain), Asia Badger would not be

excused from its duty to abide by the rules of discovery and inform

appellee of the change in the expert's pretrial report. See Licciardi,

140 F.3d at 365 (defendant required to inform plaintiff of material

change in expert's opinion, even where plaintiff might have reason to

expect that it might change); see also Thibeault v. Square D Co., 960

F.2d 239, 244 (1st Cir. 1992) (emphasizing that this Court attempts "to

ensure that the spirit of open discovery embodied in Rule 26 is not

undermined either by evasion or dilatory tactics"). Furthermore,

appellant offered no explanation whatsoever for its failure to amend

Dr. Kennedy's reports to reflect his new opinion. There is thus ample

support in the record for the district court's conclusion that Asia

Badger stood in violation of Rule 26(e)(1), and we do not believe that

Rule 703 was intended to end-run this basic requirement of fair play.

When faced with a discovery violation, the district court

"possesses wide latitude in formulating the appropriate sanction."

Poulin v. Greer, 18 F.3d 979, 984 (1st Cir. 1994). Under the Federal

Rules of Civil Procedure, a party that fails to disclose information

under Rule 26(e)(1) "shall not . . . be permitted to use as evidence .

. . any witness or information not so disclosed." Fed. R. Civ. P.

37(c). Although the court originally ruled to exclude all of Dr.

Kennedy's testimony -- a sanction well within the district court's

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scope of discretion -- the court ultimately decided to strike only

those portions of Dr. Kennedy's testimony based on the passage in Dr.

Haig's report describing Sheek's activities in Saudi Arabia. It is

true, as Asia Badger points out, that causality was an important issue

in this case. However, Dr. Haig's report itself remained in evidence,

and the jury was free to infer, as Asia Badger argued in its closing,

that Sheek's activities in Saudi Arabia contributed to his injury.

Given its minimal impact on appellant's case, the district court's

sanction was relatively lenient and we see no reason to disturb it.

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 2. Sheek and Syar's Testimony

Asia Badger challenges the admission of (1) Sheek's testimony

that the cooling water issue was a "design" problem rather than a

maintenance problem and that Asia Badger was responsible for the design

work; (2) Sheek's testimony regarding the purpose of the repiping work;

and (3) Sheek's rebuttal testimony that the work done in August of 1994

described by Ch Tai was not the same work done in March of that year.

Appellant also challenges Syar's deposition testimony that Asia Badger

handled the repiping work in March of 1994, arguing that Syar did not

personally observe the work being done. We review evidentiary issues

for abuse of discretion. Kelley v. Airborne Freight Corp., 140 F.3d

335, 345 (1st Cir. 1998).

Fed. R. Evid. 602 requires that a witness have "personal

knowledge" about the matter to which he testifies. Such knowledge can

include "inferences and opinions, so long as they are grounded in

personal observations and experience." United States v. Rodríguez, 162

F.3d 135, 144 (1st Cir. 1998) (quoting United States v. Neal, 36 F.3d

1190, 1206 (1st Cir. 1994)); see also Fed. R. Evid. 701. We believe

that the record supports the district court's conclusion that Sheek and

Syar met this threshold in each of their disputed statements.

First, as his testimony reveals, Sheek had been a Mobil

employee for twenty-eight years, beginning as an operator in a chemical

processing unit. He later worked as a controlman and then as a

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production supervisor during the construction of new Mobil plants in

the United States and abroad. By the time he arrived in Singapore,

Sheek had completed two years of pre-engineering work in Cambridge,

Massachusetts, which involved reviewing drawings and providing input

into the design of the Project. During his day duty, Sheek was

personally responsible for relaying, directly or indirectly, all punch

list items to Asia Badger. Finally, Sheek also observed a memorandum

from Asia Badger outlining the modifications of the piping.2 Combined,

these factors provided a sufficient foundation for Sheek to identify

the cooling water issue as a design defect and to infer that Asia

Badger had performed the design work. Given his experience and

observations, moreover, Sheek was qualified to testify that the purpose

of the repiping was to increase the flow of the cooling water -- a fact

that appears uncontroverted by both parties.

Sheek's rebuttal testimony did not even require inference or

opinion, but was grounded in his personal observations alone.

According to the deposition testimony of Ch Tai, Mobil performed

modifications on the cooling water pipes that led to the xylene

splitter pumps in August 1994. This work allegedly took place in the

aromatics unit, an area that Sheek supervised for a period of three

months. Sheek countered that during one of his shifts in March 1994,

2 The district court properly admitted this testimony as an admission
by a party opponent. Fed. R. Evid. 801(d)(2).

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he observed that the piping in the D pump had been changed to a larger

diameter size. Sheek therefore had the personal knowledge to not only

distinguish the work described by Tai (on the pipes leading to the

pumps) from that which he observed (within the pump itself), but also

to testify that they involved different locations within the aromatics

unit.

Finally, the court properly admitted James Syar's testimony

that Asia Badger performed the repiping work. Syar's deposition

testimony included the following colloquy:

Q: Okay. When you say December and April are you talking about
December '93 and April '94?

A: Yes.

Q: All right. You were on the night shift that whole time
period?

A: Yes.

Q: Okay. Now, the work being done on these cooling water
pipes, that was done during the daytime?

A: Most of them were done -- yeah, because we were limited to
what we could have done at night.

Q: Okay. So it's yes that they -- that they were?

A: Yes.

Q: Okay. So you couldn't have actually seen the work being
done, is that right?

A: On that particular pipe, no. I-piping, only if they were
there, worked over at night.

Q: And did they?

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A: I was there for some of it. Now, for the main header, that
was done during the day. Most of the time what we dealt
with was just what connected to our pumps so....

Q: All right. Tell me -- tell me the dates when you actually
saw the work being done at night.

A: I can't. I can't do that.

Although appellant makes much of the court's initial impression that

the testimony was "unclear," the court subsequently concluded that

Syar's testimony indicated that some of the repiping work took place at

night, while he was working. In fact, Syar affirmatively responded

that some of the work took place in his presence. The fact that Syar

was unable to specify the dates on which he saw the work being done may

affect the weight, but not the admissibility, of his testimony. See

Neal, 36 F.3d at 1206. Viewing his statements as a whole, Syar

demonstrated sufficient personal knowledge to testify to the party

responsible for the repiping work on the xylene pumps.

In sum, we hold that the district court did not abuse its

discretion in admitting any of the testimony claimed as error by

appellant.

B. Jury Instructions

Asia Badger next contends that the district court provided

misleading and confusing instructions on the issue of vicarious

liability and then exacerbated that error through a poorly-worded

special verdict form. Once again, we cannot agree.

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 1. The Jury Charge

According to Asia Badger, the district court erred when it

refused its request to "enumerate and clarify the standard" for

vicarious liability.3 Because Asia Badger objected to the court's

3 Asia Badger's request included the following instruction:

1. The burden is on Mr. Sheek to prove by a preponderance of the
evidence that it was an Asia Badger employee, and not any other
person or entity, who failed to use reasonable care with regard
to the pipe which is alleged to have caused the plaintiff's
injury.

2. If you believe that another person or entity failed to use
reasonable care with regard to the pipe, including an Asia Badger
subcontractor, then Asia Badger is not liable unless Asia Badger
actually exercised direct detailed control over [the] manner of
the doing of the work of the person or entity or subcontractor who
failed to use reasonable care with regard to the pipe.

3. In this case, Asia Badger is only liable for the actions of one
of its subcontractors if an Asia Badger employee personally
supervised and directed the manner and details of the doing of the
work of that subcontractor.

4. Direct supervision and control is more than retention of the
general rights of watching over the progress of the work which the
subcontractor agreed to do. You must find that Mr. Sheek has
proved by a preponderance of the evidence that Asia Badger not
only determined the work to be done but that an Asia Badger
employee exercised direct control over the actual performance of
the work which caused the injury. This means that there must be
actual control and direction of the details of the manner in which
the subcontractor performed the allegedly negligent work.

5. For example, if an Asia Badger employee was at the location of the
subcontractor's work and personally directed the work of the
subcontractor's workers, including the details and manner in which
the work to be done, and the subcontractor's workers took
instructions from him, then Asia Badger would be liable for the
work. On the other hand, if no Asia Badger employee personally
directed the work of the subcontractor's workers, then Asia Badger

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instructions before the jury retired, it met the requirements of Fed.

R. Civ. P. 51 and must be reviewed to see whether there was error and,

if so, whether it was harmless. Beatty v. Michael Bus. Mach. Corp.,

172 F.3d 117, 121 (1st Cir. 1999). To this end,

[t]he rules of decision are uncontroversial. "The
trial court's refusal to give a particular
instruction constitutes reversible error only if
the requested instruction was (1) correct as a
matter of substantive law, (2) not substantially
incorporated into the charge as rendered, and (3)
integral to an important point in the case."
Elliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st
Cir. 1998) (quoting United States v. DeStefano,
59 F.3d 1, 2 (1st Cir. 1995)). Similarly, the
giving of an instruction is reversible error only
if it (1) was misleading, unduly complicating, or
incorrect as a matter of law, and (2) adversely
affected the objecting party's substantial
rights. Levinsky's Inc. v. Wal-Mart Stores,
Inc., 127 F.3d 122, 135 (1st Cir. 1997).

Faigin v. Kelly, 184 F.3d 67, 86-87 (1st Cir. 1999). Using these

guidelines, we discern no error in the district court's instruction.

Asia Badger meets the first and third prongs of the test for

the court's refusal to accept its proffered instruction. Both parties

agree that Singapore law governs the issue of vicarious liability. For

is not liable. In addition, if Asia Badger directed the
subcontractor what work was to be done, but did not provide
detailed control over the manner of the doing of the work, then
Asia Badger is not liable.

6. Thus, if you find that Mr. Sheek has not shown by a preponderance
of the evidence that Asia Badger exercised direct control over the
manner in which the persons or entities performed the work that
caused Mr. Sheek's injury, then you must find in favor of Asia
Badger.

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this issue, both Sheek and Asia Badger cite as authority Mohd bin Sapri

v. Soil-Build Private Ltd., 1996 SLR Lexis 324 (Sing. Ct. App. 1996),

which held that a party was not liable for the negligent act of its

subcontractor because the party did not control the work of the

subcontractors and was not involved in any substantial supervisory or

coordinating capacity. Id. at *29 ("[The party] had left the matter

entirely to is sub-contractors."). Distinguishing the facts in Soil-

Build from an English case where such liability was found to exist,

McArdle v. Andmac Roofing Co., 1 Eng. Rep. 583 (Eng. C.A. 1967), the

Singapore court highlighted two scenarios where a contractor may be

liable for the negligence of its subcontractors.4 Soil-Build, 1996 SLR

Lexis 61 at *28. First, the party may be liable where the working

conditions are inherently dangerous, thereby "requiring the exercise of

a significant degree of supervision and control over persons with whom

he has no contractual relationship." Id. Alternatively, the party may

owe a duty of care if "he [has] taken it upon himself to exercise a

degree of control and actively coordinate the [sub]contractors'

activities, given that the work environment itself involved inherent

risks or danger." Id.

4 It should be noted that the court was concerned with a party's
liability towards the employees of its subcontractor, rather than
towards third parties in general. See Soil-Build, 1996 SLR Lexis 61
at *28.

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 The record suggests that the parties and the court took the

second route for determining liability. To be sure, Sheek did not

argue that Asia Badger was required to exercise control over its

subcontractors or third parties due to the "inherent danger" of the

work and facilities, nor did Asia Badger defend on this theory.

Rather, the issue presented to the jury was whether Asia Badger did, in

practice, exercise control over the claimed repiping work, which would

lead to a duty of care to Sheek. On this point, Asia Badger's proposed

instruction was correct as a matter of substantive law: it required the

jury to find that an Asia Badger employee "personally supervised and

directed the manner and details of the doing of the work of that

subcontractor" in order to be liable for the negligence of its

subcontractor.5 It is unquestionable, moreover, that the issue of

vicarious liability was integral to an important point -- perhaps the

most important point -- of the case.

Nevertheless, the refusal to incorporate the exact wording

offered by the appellant will not constitute error unless the court

failed to substantially incorporate the offered theory in its

instruction. Elliott, 134 F.3d at 6. According to Asia Badger, the

court did not properly instruct the jury on the elements of vicarious

5 Asia Badger appears to have taken this statement of law from McArdle,
as articulated by the Singapore court. Soil-Build, 1996 SLR Lexis 61
at *17 ("[In McArdle, the party] personally directed the work of the
sub-contractors, including the details and manner in which the work was
to be done.")

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liability, namely, that a party must have control over "the details and

the manner of the work to be done" by the subcontractor. However, we

can find no disparity between this concept and the court's charge to

the jury. The court explicitly noted that the jury was required to

find that Asia Badger exercised "direct control, not only over what

work was to be done, but the actual performance of work of the

subcontractor as well." This indicated to the jury that it was to

consider both the "details and the manner" of the work performed. When

the court has sufficiently conveyed a litigant's theory, that litigant

is not "entitled to dictate the turn of phrase the judge should use to

acquaint lay jurors with the applicable law." Id. We therefore uphold

the district court's refusal to give the instructions offered by Asia

Badger.

However, Asia Badger also claims that the given instruction,

though incorporating its theory of applicable law, nonetheless confused

and misled the jury. We find this contention without merit. If

anything, the court condensed the lengthy and somewhat repetitive

instruction offered by Asia Badger into concise and straightforward

language that would be more easily comprehended by the jury. See id.

at 7 (decision to give a general statement of law in order to avoid

potential confusion from proffered instruction by counsel lies

"uniquely within the trial judge's discretion"). As we noted above,

the court offered a correct statement of the law, and appellant has

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failed to identify any misleading or unduly complicating aspect of the

given instruction. Since we find none, we hold that there was no error

in the jury charge rendered by the district court.

We also reject appellant's challenge to the adequacy of the

court's response to the jury's query. We acknowledge that jury

instructions given during the course of deliberations come "at a

particularly delicate juncture" and require the court to construct its

wording carefully. Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 175

(1st Cir. 1998) (warning that "the court can err as easily by

overinclusiveness as by underinclusiveness"). However, we have also

noted that as long as the court correctly addresses the issue submitted

by the jury, it may amplify the instruction at its discretion. See

id. at 176. The court here, after reminding the jury that it first

needed to resolve the issue of negligence, proceeded to explain that

Mr. Sheek's negligence could include either the time of the accident or

"some later period," depending on the nature of the injury. While it

may be true that the court could have phrased its answer more simply,

we find no basis to conclude that the instruction was confusing,

misdirecting, or misleading. See Steckstor v. Hancock, 984 F.2d 274,

278 (8th Cir. 1993) (concluding that district court's reference to

insurance in answering jury's question concerning liability, though

"unfortunate," was not error). We presume that the jury followed the

court's instruction, United States v. González-Vázquez, 219 F.3d 37,

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48 (1st Cir. 2000), and Asia Badger's disappointment that the award was

reduced by "only" ten percent for comparative negligence does little to

rebut this presumption.

2. Verdict Form

Asia Badger also objects to the wording of the verdict form,

which it argues conflated the issues of direct and vicarious liability.

A verdict form must be "reasonably capable of an interpretation that

would allow the jury to address all factual issues essential to

judgment." Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir.

1996) (quoting United States v. Real Property Located at 20832 Big Rock

Dr., 51 F.3d 1402, 1408 (9th Cir. 1995)). We examine the court's

instructions to the jury and the wording on the verdict form as a whole

to determine whether the issues were fairly presented to the jury. Id.

at 28.

As we have already discussed, the court clearly instructed

the jury on the requirements for vicarious liability. The court also

separately addressed Asia Badger's direct liability for its own

employees. Given this distinction, the jury could reasonably interpret

the phrase "employees or agents" included in Question 1 of the verdict

form to refer to employees or subcontractors and hence, the respective

theories of direct and vicarious liability. If "the general charge

adequately directs the jury to its duties in answering the questions

submitted to it there is no need to accompany the submission with

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repetitive instruction." Id. (quoting Lawrence v. Gulf Oil Corp., 375

F.2d 427, 429 (3d Cir. 1967)). Since the jury was so directed, we hold

that the court was not required to ask separate questions concerning

direct and vicarious liability in the verdict form.

C. Sufficiency of the Evidence

Finally, Asia Badger maintains that the district court erred

in refusing its motions for judgment notwithstanding the verdict and

new trial, because the evidence was insufficient as a matter of law to

sustain the jury's verdict. Specifically, Asia Badger contends that

Sheek failed to establish two crucial elements of his claim: that Asia

Badger or its subcontractors actually performed the repiping work in

March 1994 and that Asia Badger exercised control over any work so

performed. Our standard of review is de novo, viewing all facts and

inferences in the light most favorable to the verdict. Sinai v. New

England Tel. & Tel. Co., 3 F.3d 471, 472 (1st Cir. 1993).

First, Asia Badger contends that the evidence establishes,

"unequivocally," that Mobil did the repiping work. The facts and

inferences most favorable to Sheek, however, suggest otherwise. Sheek

testified that on March 8, 1994, he took the D pump out of service.

The next evening, he observed that some of the piping within the pump

had been changed to a larger diameter. A jury could reasonably infer,

despite Tai's testimony to the contrary, that some repiping work was

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indeed performed on the pumps in March of 1994.6 With respect to the

March 1994 work, moreover, Sheek conceded that Mobil performed

maintenance work -- such as replacing the seals -- on the xylene pumps.

He noted, however, that in the course of this work, any piping that was

removed would necessarily have to be reconnected. Based on this

testimony, a jury could reasonably believe that the pipe on which Sheek

slipped could not be related to the work done by Mobil. Finally, Asia

Badger's performance of some punch list work,7 Sheek's observation of

a memorandum from Asia Badger outlining repiping work to be done in the

field, and the fact that some work on the pumps was performed at night

by Asia Badger in Syar's presence all provide a sufficient foundation

6 In fact, a jury need not even disbelieve Tai to arrive at this
conclusion: since Sheek identified the August 1994 work described by
Tai as "further downstream" from the work he himself observed, the
conclusion that someone changed the piping within the pumps in March
1994 is not inconsistent with Mobil's replacement of the piping leading
from the pumps to the main headers in August 1994. Similarly, refuting
appellant's claim that Asia Badger did not "use" schedule 40 pipe is
not a sine qua non of Sheek's case, as appellant would have us believe.
On the contrary, Sheek identified schedule 40 pipe as the type being
removed from within the pumps. It is entirely possible, then, that
Asia Badger, while not utilizing this type of pipe in its own work,
nevertheless removed this type of piping from a pump manufactured by
someone else.
7 Steinmetz testified that both Mobil and Asia Badger took
responsibility for punch list work after January 1994. Although Asia
Badger claims that there is no evidence that the repiping formed part
of the punch list work, Sheek's definition of a "punch list" as an
"operational problem" supports the inference that the pumps' piping
problem would be included on this list.

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for the conclusion that work done on the pumps in March 1994 was done

by Asia Badger or one of its subcontractors.

We also believe that there was sufficient evidence for the

jury to find that any work performed was done under the supervision of

Asia Badger. Asia Badger emphasizes that no one witnessed Asia Badger

exercise control over a subcontractor after January 1994. However,

Sheek testified that during his day duties in late 1993, he saw Asia

Badger employees actually directing work done by its subcontractors.

Steinmetz further testified that Asia Badger's work continued in the

same manner before and after January 1994. Taken together, these two

pieces of evidence could, as the district court noted, support the

inference that Asia Badger controlled the work done by its

subcontractors in the period from January to March of 1994 in the same

way that Sheek described this control before January 1994.

Although Asia Badger presents numerous inconsistencies and

alternative theories based on the facts, we do "not consider the

credibility of witnesses, resolve conflicts in testimony, or evaluate

the weight of the evidence." Hendricks & Assoc., Inc. v. Daewoo Corp.,

923 F.2d 209, 214 (1st Cir. 1991) (quoting Wagenmann v. Adams, 829 F.2d

196, 200 (1st Cir. 1987)). Rather, we will uphold the jury's verdict

unless the evidence points "to one conclusion and one conclusion only:

that the losing party was entitled to win." Sinai, 3 F.3d at 473.

Without a doubt, the facts here are myriad and conflicting. Wading

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through this morass, however, we believe there is enough evidence to

support the jury's verdict in favor of Sheek.

III. CONCLUSION

The judgment of the district court is affirmed in all

respects.

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