Hughes v. International Diving and Consulting Services. Inc.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________________

No. 94-30351

____________________________

DAVID S. HUGHES, Plaintiff-Appellee,
Cross-Appellant,

versus

INTERNATIONAL DIVING AND CONSULTING
SERVICES, INC., ET AL., Defendants-Appellants,
Cross Appellees.

_________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Louisiana

_________________________________________________________________
(October 17, 1995)

Before WIENER and DAVIS, Circuit Judges, and VANCE,* District
Judge.

PER CURIAM:

Appellants International Diving and Consulting Services, Inc.

and David Maurice Golding, as representative of Certain

Underwriters of Lloyds of London and London & Hull Maritime

Insurance Company Limited, Sphere Drake Insurance, Dai-Tokyo

Insurance Company, Ocean Marine Insurance Company, and Prudential

Insurance Company (collectively "International") appeal from a jury

*
District Judge of the Eastern District of Louisiana,
sitting by designation.

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verdict in favor of plaintiff-appellee David Hughes. Appellants

assert several errors on appeal. First, appellants contend that

the jury award of future wages was not based on competent evidence

and that the trial court erred in denying International's motion

for judgment as a matter of law on that issue. Appellants also

assert that the trial court erred by failing to instruct the jury

on piercing the corporate veil and on plaintiff's duty to mitigate

damages. Alternatively, appellants contend that the trial court

erred by failing to set aside or reduce the damage award for past

wages due to plaintiff's alleged failure to mitigate and because

the past wage award was based on an expert opinion not supported by

the evidence. Finally, appellants seek a credit of $2,150 on any

damages awarded based on a pretrial stipulation that they advanced

that amount to Hughes as part of their obligation to pay

maintenance and cure benefits. Plaintiff David Hughes cross-

appeals asserting that the trial court erred by granting a new

trial on the issue of past wages and by setting aside the jury's

award for future medical expenses, punitive damages, and attorneys'

fees. We have thoroughly reviewed the record in this matter. We

find no error in the trial court's rulings and, therefore, affirm

the judgment entered in these proceedings.

I. BACKGROUND

David Hughes was formerly employed by International Diving and

Consulting Services as a commercial diver aboard its vessels. On

December 29, 1990, after performing an 118-foot dive from a jack-up

2
barge, Hughes experienced nausea during his ascent and while he was

in a surface decompression chamber. A supervisor attributed

plaintiff's nausea to oxygen sickness and altered the surface

decompression schedule for Hughes without consulting a physician.

Nevertheless, by the completion of his decompression schedule,

Hughes's nausea had subsided, and he was able to shower, eat

dinner, and sleep without difficulty. The next day, Hughes

performed a second 118-foot dive. Upon ascending, however,

Hughes's entry into a decompression chamber was delayed for a

period of six minutes. Approximately 26 hours after completing the

second dive, Hughes experienced numbness in his right chin and left

foot. He notified his supervisor, who ordered Hughes to return to

the decompression chamber. When his condition did not improve,

Hughes was brought shoreside and admitted to a medical facility for

further examination and testing.

Hughes was ultimately examined by Dr. Keith Van Meter, his

treating physician and an expert in the field of hyperbaric and

diving medicine, and by Dr. Thor Borreson, an expert in the field

of neurology. Initial tests revealed peripheral polyneuropathy

involving both legs. Dr. Borreson concluded that Hughes suffered

from a central spinal chord injury caused by decompression

sickness. Dr. Van Meter concurred in Borreson's diagnosis and

disqualified Hughes from diving indefinitely.

In May 1991, subsequent tests revealed that Hughes's central

spinal chord was normal. Based on these tests, Dr. Borreson

revised his initial diagnosis and found that Hughes's neuropathy

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was not caused by decompression sickness. Dr. Van Meter, however,

continued to hold the opinion that Hughes's neuropathy was causally

connected to decompression sickness. While Hughes's neuropathy did

not cause him any pain or restrict his physical activity, Dr. Van

Meter further believed that Hughes's condition could be susceptible

to reinjury or exacerbation if he returned to diving. Dr. Van

Meter thus advised Hughes and his employer that plaintiff should

not return to diving. Hughes received similar advice from another

treating physician, Dr. Larry Weiss.

At trial, Hughes alleged that International violated the Jones

Act and general maritime law by negligently failing to follow

recognized industry safeguards for divers and by failing to pay

maintenance and cure. Hughes further alleged that International

was therefore liable for past and future wage losses arising from

his inability to return to his former profession. The jury

rendered a verdict for Hughes in the amount of $300,450 for past

and future wages, medical expenses, physical pain and suffering,

mental anguish, and maintenance and cure. The jury also awarded

plaintiff punitive damages and attorneys' fees of $25,000 for

International's alleged failure to provide maintenance and cure.

International filed a post-trial motion for judgment as a

matter of law, a new trial, to alter or amend the judgment, and

remittitur. Finding that International had paid Hughes's medical

expenses, the trial court granted its motion for judgment as a

matter of law on plaintiff's claims for maintenance and cure,

attorneys' fees, and punitive damages. The trial court further

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concluded that Hughes had failed to produce sufficient evidence to

support the jury award of $54,000 for past wages and granted a new

trial on that issue. The trial court denied appellants' motion on

the remaining issues. The second trial on past wages resulted in

an award of $35,132. The trial court subsequently entered judgment

in favor of Hughes and against International in the amount of

$232,132.

II. ANALYSIS

A. Expert Testimony

International contends that the jury award for future wages

was based on the inadmissible expert testimony of Dr. Van Meter.

Prior to trial, International filed a motion in limine to exclude

the testimony of Dr. Van Meter as speculative under Daubert v.

Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786,

2976 (1993). In connection with its motion, International

requested a hearing to determine the admissibility of Van Meter's

expert testimony pursuant to Fed. R. Civ. Pro. 104.1 The trial

court denied International's request for a hearing and reserved

judgment on the admissibility of Van Meter's testimony until the

time of trial.

1
Fed. R. Evid. Rule 104(c) provides as follows:

Hearings on the admissibility of confessions shall in all
cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so
conducted when the interests of justice require, or when
an accused is a witness and so requests.

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 At trial, Dr. Van Meter testified that decompression sickness

is a risk commonly associated with commercial diving and that the

neuropathy suffered by Hughes could be reinjured or exacerbated by

another episode of decompression sickness. Dr. Van Meter opined

that given the risk of decompression sickness, Hughes was medically

disabled from returning to work as a commercial diver. On cross-

examination, Dr. Van Meter conceded that while "many physicians"

shared his view that neuropathy was susceptible to reinjury from

decompression sickness, his opinions were not based on objective

scientific evidence such as publications or testing. International

responded by reurging its motion to strike Dr. Van Meter's

testimony as speculative. The trial court initially denied the

motion to strike. However, after two days of additional expert

testimony, the court reconsidered its ruling, ordered the portion

of Dr. Van Meter's testimony concerning reinjury stricken and

instructed the jury to disregard it.

International argues that the trial court committed reversible

error by refusing to hold a Rule 104 hearing, by allowing Dr. Van

Meter to testify on the likelihood of reinjury if Hughes returned

to diving and by failing to immediately strike the testimony.

International further asserts that the trial court's curative

instruction came too late to offset the prejudice caused by the

admission of Dr. Van Meter's testimony earlier in the trial. We

need not decide whether the trial court's failure to conduct a

pretrial hearing and to strike Dr. Van Meter's testimony

immediately was error because, if it were, it was harmless. See

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Wheat v. Phizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994); see also

Pregeant v. Pan American World Airways, Inc., 762 F.2d 1245, 1248

(5th Cir. 1985)("Any error in the admission of evidence will be

disregarded unless the admission affects the substantial rights of

the complaining party."). There was substantial evidence,

independent of Dr. Van Meter's testimony, to support plaintiff's

claim that he is permanently disabled from diving. This evidence

is discussed below in connection with our review of the trial

court's denial of International's motion for judgment as a matter

of law on the issue of future wages.

B. Future Wages

We review the district court's denial of International's

motion for judgment as a matter of law under the standard

enunciated in Lavender v. Kurn, 352 U.S. 521, 77 S.Ct. 457 (1957).

Under Lavender, judgment as a matter of law on a Jones Act count is

appropriate only when there is a complete absence of probative

facts supporting the nonmovant's position. Springborn v. American

Commercial Barge Lines, 767 F.2d 89, 98 (5th Cir. 1985); Gaspard v.

Taylor Diving & Salvage Co., 649 F.2d 372, 373 n.2 (5th Cir. 1981);

Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.

1980); see also Wooden v. Missouri Pacific R.R., 862 F.2d 560 (5th

Cir. 1989)(application of standard in FELA case). This standard is

highly favorable to the plaintiff and requires that we validate the

jury verdict if at all possible. In making this determination, we

consider only competent evidence and, therefore, disregard that

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portion of Dr. Van Meter's testimony that the trial court struck as

speculative.

At trial, Hughes argued that he is permanently disabled from

diving because decompression sickness is a hazard commonly faced by

divers, and another bout of decompression sickness could reinjure

or aggravate his neuropathy. On appeal, International does not

dispute that the evidence at trial established that decompression

sickness is a hazard commonly faced by divers or that Hughes

suffers from neuropathy. Nor does it contest plaintiff's claim

that there is a causal connection between decompression sickness

and neuropathy. Rather, International asserts that the evidence at

trial was insufficient to support the inference that Hughes's

condition would be aggravated or reinjured if he were to contract

decompression sickness in the future. We disagree.

Dr. Harold Ginzburg, an expert for the plaintiff, specifically

testified that Hughes was disqualified from diving because his

neuropathy was susceptible to reinjury if he returned to his former

position. International contends that Ginzburg's testimony is

irrelevant because his opinion was based on the expert testimony of

Dr. Van Meter. However, in addition to relying on the testimony of

Dr. Van Meter, Dr. Ginzburg stated that his opinion was based on a

review of the medical literature, plaintiff's medical record, his

experience, and the testimony of another expert Dr. Joseph Jackson.

There is nothing to indicate that Dr. Ginzburg would have arrived

at a different opinion if he had not heard Dr. Van Meter's

testimony.

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 Nor do we think that Dr. Ginzburg's opinion is inherently

untrustworthy or without scientific foundation. Indeed, Ginzburg's

expert opinion finds support in the testimony of defense expert Dr.

Mark Bradley, who opined that "sick nerves appear to be more

susceptible to decompression sickness." While International argues

that Dr. Bradley's statement was made in reference to carpal tunnel

syndrome and does not apply to plaintiff's neuropathy, our review

of the record did not disclose such a qualification. The risk of

reinjury for divers with neuropathy is also evident from

International's own hiring practices. Gerald Ashker, an

International representative, testified that Hughes was not

"hirable" in the face of a report from his treating physician

disqualifying him from diving due to the risk of reinjury for

neuropathy. Gerald Asker's testimony was underscored by

International's safety manual, which prohibits a person with

"significant central or peripheral nervous system disease" from

returning to work as a diver.

In sum, we find that the evidence of permanent disability in

this case easily surpasses "the complete absence of probative

facts" standard applied in reviewing the sufficiency of evidence

for a Jones Act claim. International has not challenged the

sufficiency of the evidence to support the measure of damages

awarded for the disability. Accordingly, the trial court's denial

of International's motion for judgment as a matter of law on the

issue of future wages is affirmed.

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 C. The Offset Claim

International contends that any damage award should be reduced

by $2,500 because it advanced that amount to Hughes in 1991. In

support of its argument, International relies on a stipulation

entered into by the parties prior to trial. In ruling on this

issue, the trial court refused to reduce the damage award because

the jury in the second trial was apprised of the stipulated advance

in connection with its consideration of past wages. Specifically,

the trial court found that plaintiff's expert economist had

deducted all income reported by Hughes on his 1991 W2 tax form, and

there was no evidence to suggest that the wage advance had not been

reported, or that it was not otherwise considered by plaintiff's

expert in estimating the amount of past wages owed. We agree.

The stipulation upon which International relies does not

provide that any damage award will be reduced by $2,500. Nor did

the parties remove the issue of damages from the province of the

jury by stipulating that $2,500 was the total sum of past wages

owed to Hughes. See Jones v. Wal-Mart Stores, Inc., 870 F.2d 982,

985 (5th Cir. 1989). Rather, the stipulation merely states that

International advanced $2,500 to Hughes in 1991 as part of its

obligation to pay maintenance and cure benefits. As such, it was

nothing more than a convenient way for International to avoid

having to introduce evidence on the amount of past wages previously

paid and to which Hughes was not entitled. Indeed, International

used the stipulation for its intended purpose by eliciting

testimony from Hughes during the second trial concerning the

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stipulated advance. Because the stipulated advance was presented

to the jury for consideration in its determination of past wages,

we find no error in the trial court's decision not to reduce the

damage award by the stipulated amount.

D. Remaining Issues

The remaining issues raised on appeal can be addressed

summarily. We find no error with the trial court's instructions to

the jury on mitigation of damages and piercing the corporate veil.

Further, we agree with the trial court's refusal to reduce or set

aside the jury award for past wages obtained by Hughes in the

second trial. For the reasons stated in its well-reasoned opinion,

we also agree with the trial court's decision to grant

International's post-trial motion for a new trial on the issue of

past wages and for remittitur on the issue of maintenance and cure,

punitive damages, and attorneys' fees.

III. CONCLUSION

For the foregoing reasons, the judgment of the trial court is

AFFIRMED.

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