Benjamin Hines, Jr. v. Triad Marine Center, Incorporated

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1052

BENJAMIN G. HINES, JR.,

Plaintiff - Appellee,

v.

TRIAD MARINE CENTER, INCORPORATED, d/b/a Boats Unlimited NC;
JOHN BANISTER HYDE,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, District
Judge. (4:09-cv-00003-BR)

Argued: May 15, 2012 Decided: July 9, 2012

Before DAVIS and KEENAN, Circuit Judges, and James R. Spencer,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Davis and Judge Spencer joined.

ARGUED: Burley B. Mitchell, Jr., WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Raleigh, North Carolina; Julius Holman Hines, WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, Charleston, South Carolina, for
Appellants. Stevenson Lee Weeks, Sr., WHEATLY, WHEATLY, WEEKS &
LUPTON, PA, Beaufort, North Carolina; Charles R. Hardee, HARDEE
& HARDEE, Greenville, North Carolina, for Appellee. ON BRIEF:
Mary C. Adams, James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Winston-Salem, North Carolina; John T. Pion, L.
Lawson Johnston, PION, JOHNSTON, NERONE, GIRMAN, CLEMENTS &
SMITH, PC, Pittsburgh, Pennsylvania, for Appellants.

Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:

In this maritime personal injury case, Triad Marine Center,

Inc. (Triad Marine), and its employee, John Banister Hyde

(collectively, the defendants) appeal from the district court’s

judgment awarding more than $10 million in damages to Dr.

Benjamin G. Hines, Jr. The district court’s judgment was based

on injuries Hines suffered during a sea trial of a boat offered

for sale by Triad Marine. The defendants assert that the court

committed clear error in concluding that they breached the

standard of care, and in determining damages based in part on

the court’s finding that Hines no longer can engage in any

gainful employment. The defendants also argue that their

substantial rights were affected by the exclusion of evidence

regarding Hines’ disability insurance income, and that the court

abused its discretion by applying the North Carolina statutory

interest rate in the calculation of prejudgment interest. We

disagree, and hold that the district court neither committed

clear error nor abused its discretion. Accordingly, we affirm

the district court’s judgment.

I.

On March 20, 2006, Hines, a urologist who owns a

condominium in Beaufort, North Carolina, was shopping for a boat

3
in New Bern, North Carolina. 1 Hines and his wife owned a small

flat-bottomed skiff, but they were looking for a larger boat

that would provide a more comfortable ride and would minimize

the “splash” they experienced during their boat outings.

Accordingly, Hines visited Triad Marine and spoke with one of

its employees, Hyde. Based on Hines’ description of his needs,

Hyde recommended that Hines consider purchasing a Triton model

2286. Hines requested a sea trial of the vessel, and Hyde

agreed to bring the boat to Beaufort the following day.

Later that night, the National Weather Service issued a

small craft advisory for the area, including Beaufort, effective

from 5:00 a.m. on March 21 through the afternoon of the

following day. 2 Nevertheless, Hyde brought the boat to Beaufort,

where Hines and his friend, Neil Wagoner, who previously had

purchased a boat from Triad Marine, boarded the Triton. From

Beaufort, Hines drove the boat in a southeast direction toward

Shackleford Banks. On the inland side of Shackleford Banks,
1
We describe the facts in this case in the light most
favorable to Dr. Hines, the prevailing party in the district
court. See F.C. Wheat Mar. Corp. v. United States, 663 F.3d
714, 723 (4th Cir. 2011) (applying standard in admiralty case).
2
On the east coast of the United States, from Maine to
South Carolina, the National Weather Service issues a small
craft advisory when sustained winds or frequent gusts are
expected to range between 25 and 33 knots, or waves are expected
between five and seven feet or greater.

4
where the waves were only about one foot high, Hines brought the

boat to “planing speed.” 3

In order to achieve planing speed, Hines found that he had

to attain speeds of about 20 miles per hour. Further, after

reaching this speed, he observed that the boat began

“porpoising,” that is, the bow of the boat repeatedly dipped and

rose during travel. When he had encountered porpoising during a

sea trial in the past, Hines relinquished control of the boat to

the salesman who had accompanied him. Accordingly, in the

present sea trial, after experiencing the boat move in this

manner, Hines asked Hyde to demonstrate the proper way to handle

the boat.

As Hyde assumed the boat’s controls, Hines moved aside,

holding onto the “T-top” frame that surrounded the vessel’s

center console. With his left hand grasping the handle of the

frame’s vertical support, and his right hand holding onto the

top of the frame, Hines was able to observe Hyde operating the

boat. Once in control of the vessel, Hyde again brought the

boat to planing speed.

The return trip took the party north of Beaufort Inlet. At

this time, four-foot waves from the ocean were moving through

3
Planing speed is the velocity at which an accelerating
ship’s hull rises to the top of the water’s surface.

5
the inlet, and wind was blowing from the north at a speed of

between 20 and 25 miles per hour. Without providing any

warning, Hyde turned the boat directly into the oncoming waves

passing through the inlet. Hyde then accelerated in a southerly

direction, and struck an oncoming wave “head-on” that was

between five and six feet in height.

As the wave passed beneath the boat, the bow lost contact

with the water and rose into the air. Immediately thereafter,

the bow “slammed back down,” causing Hines to strike his head on

the underside of the T-top. At this time, Hines fell to the

deck, injuring both his ankles. Hyde had not warned the

passengers about the oncoming wave, or of its potential to

affect the boat’s movement.

Upon the boat’s return to the dock in Beaufort, an

ambulance transported Hines to a nearby hospital. At the

hospital, Hines learned that he had sustained a bimalleolar

fracture to his left ankle, and a less severe injury to his

right ankle. After receiving initial treatment at the hospital,

Hines received additional medical care from Dr. Deanna M.

Boyette, who performed surgery on his left ankle. Because Hines

continued to complain of chronic pain in his left ankle, Dr.

Boyette also referred Hines to Dr. Ronald M. Long for pain

management.

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 Based on Hines’ previous experience with pain medicines,

Dr. Long prescribed Percocet, a medication containing a

combination of acetaminophen and oxycodone, an opioid. Hines

later reported experiencing cognitive impairment, which is a

potential side effect of opioid use. Also, despite taking this

medication, Hines reported that he was experiencing continuing

chronic pain. Hines has continued to consult with Dr. Long

regarding this ankle pain between two and four times per year.

Because of this pain, and Hines’ intake of opioids and their

effect on his cognitive functions, Hines has withdrawn from the

practice of medicine.

In January 2009, Hines filed a complaint under the

admiralty jurisdiction of the district court, alleging one cause

of action in negligence against Hyde and Triad Marine. After a

four-day bench trial, the district court concluded that Hyde was

negligent in his operation of the Triton, and that his

negligence was imputed to Triad Marine, as Hyde’s employer. The

court also determined that Hines had a 20 percent permanent

partial impairment with respect to his left ankle, which,

together with his chronic pain and use of narcotics medication,

prevented him from engaging in any gainful employment.

Accordingly, the court entered judgment in the amount of

$10,397,291.58, jointly and severally, against Hyde and Triad

Marine. Included in this award were $900,000 in compensatory

7
damages for future pain and suffering, and $3,320,995.58 in

prejudgment interest, which the court determined by using the

North Carolina statutory interest rate of eight percent. The

defendants timely appealed from the district court’s judgment.

II.

The defendants raise four challenges on appeal. First,

they contend that the district court erred in finding that Hyde

violated the standard of care applicable to a boat operator when

piloting the Triton in Beaufort Inlet. Second, the defendants

argue that the court clearly erred in concluding that Hines was

totally disabled and was entitled to significant damages for

lost wages and for future pain and suffering. Third, the

defendants assert that the court committed reversible error by

limiting their cross-examination regarding Hines’ receipt of

disability income. Fourth, the defendants contend that the

court abused its discretion in using the North Carolina

statutory interest rate in fixing the amount of prejudgment

interest. We address these issues in turn.

A.

We first consider the issue whether the district court

erred in concluding that the defendants violated the standard of

care applicable to a boat operator. In particular, the court

found that Hyde was negligent in failing to reduce the speed of

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the boat when necessary, and in failing to navigate properly the

waves in Beaufort Inlet.

In reviewing a district court’s factual findings, we

examine the record for clear error, viewing the evidence in the

light most favorable to the prevailing party in the district

court. Martin v. Harris, 560 F.3d 210, 217 (4th Cir. 2009). In

admiralty cases, issues of negligence are treated as factual

issues, and therefore, are subject to the clearly erroneous

standard of review. Id.

“It is axiomatic that credibility choices and the

resolution of conflicting testimony are within the province of

the court sitting without a jury,” and are subject to review

only under the clear error rule of Fed. R. Civ. P. 52(a). Parks

v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154, 159 (5th Cir.

1983) (quotation marks omitted) (applying standard in admiralty

case). A finding is clearly erroneous when, although there is

evidence to support the finding, the reviewing court considering

all the evidence is “left with a definite and firm conviction

that a mistake has been committed.” Evergreen Int’l, S.A. v.

Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008).

The defendants contend that present record contains no

evidence, expert or otherwise, establishing a breach of the

standard of care. We disagree.

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 Both Hines and his expert witness, Captain Donald Davis,

provided evidence from which the district court could conclude

that the defendants breached the standard of care. Using data

gathered from a buoy located close to the Beaufort Inlet, Davis

determined that waves in the area of Hines’ accident varied

between four and five feet in height at the time the accident

occurred. Davis also testified that, given the wind conditions

and the geography of the inlet, the interval of time between

waves would have shortened as the Triton approached the area of

the accident. Davis opined that under these conditions, vessels

of the size and configuration of the Triton should have

proceeded at idle speed and have approached the oncoming waves

at an angle. Davis further concluded that the act of operating

the boat at speeds between 15 and 20 miles per hour “straight

over” a wave constituted a failure to exercise due care.

In challenging Davis’ conclusion, the defendants focus on a

single statement that Davis made during cross-examination.

During their questioning, the defendants asked Davis whether he

still would have concluded that Hyde failed to exercise due care

if Hines had not suffered an injury. Davis replied, “[P]robably

not.”

When the defendants raised this issue before the district

court, the court observed that the defendants successfully had

elicited testimony from Davis that, absent the injury, he would

10
not have concluded that Hyde had failed to exercise due care.

However, the court further observed that Davis had rehabilitated

his testimony by opining that all the factors involved,

including Hyde’s navigation of the Triton under the prevailing

conditions, contributed to his conclusion that Hyde breached the

applicable standard of care.

We hold that Davis’ expert opinion, when considered

together with Hines’ testimony, provided sufficient evidence to

support the district court’s conclusion that the defendants

breached the standard of care. Hines testified regarding the

height of the waves, the orientation of the vessel relative to

the oncoming waves, and the porpoising that caused the bow of

the Triton to leave the surface of the water. Additionally,

Davis testified that in view of the conditions present during

the small craft advisory, the proper operation of a vessel the

size of the Triton required that the boat be operated at idle

speed and approach oncoming waves at an angle. Given this

testimony, we cannot say that we are “left with a definite and

firm conviction that a mistake has been committed.” Id. at 308.

B.

The defendants next raise a number of challenges to the

district court’s findings regarding Hines’ damages. The

defendants contend that the evidence did not establish that

Hines was unable to return to work, and that objective evidence

11
in the record clearly refuted the court’s finding that he was

totally disabled. The defendants also maintain that Hines

failed to mitigate his damages, and challenge the court’s

determination concerning Hines’ pain and suffering.

1.

The defendants advance three reasons to support their

contention that the district court clearly erred in concluding

that Hines was unable to return to work. The defendants assert

that the medical evidence established that Hines’ ankle had

healed, that Hines provided insufficient evidence of his

continuing pain, and that the court did not give sufficient

weight to a surveillance video, which showed Hines engaging in

various post-injury activities. We find no merit in these

arguments.

First, although Dr. Boyette testified that Hines’ ankle had

healed from the original trauma he sustained, she nevertheless

concluded that Hines’ left ankle has a 20 percent permanent

impairment as a result of his injury. Therefore, the evidence

supported the district court’s conclusion that Hines suffers

from a disability that will never completely “heal.” The court

further found that in addition to the permanent structural

damage to Hines’ left ankle, his disability also is based on the

continuing pain he has suffered as a result of the injury.

Although the defendants produced evidence from other witnesses

12
expressing contrary opinions regarding the permanent nature of

Hines’ injury, the district court acted within its discretion in

crediting the testimony of Hines’ experts over that of the

defendants’ experts.

Second, Hines’ inability to return to work was supported by

his own testimony concerning his degree of pain and suffering.

Contrary to the defendants’ suggestion, this type of testimony

is not inherently weak simply because it rests on an injured

party’s own subjective assessment of pain. Such an assessment

necessarily is subjective and defies any objective means of

measurement. Further, Hines’ pain management expert, Dr. Long,

testified that Hines will require pain management for the rest

of his life, that opioids were the only form of medication that

provided Hines sufficient relief, and that Hines’ pain would

progressively worsen. Although the defendants produced

testimony from other witnesses that, if believed, would have

undermined this testimony from Dr. Long and Hines, such issues

of credibility were properly resolved by the district court as

the finder of fact.

The defendants argue, nonetheless, that certain

surveillance footage taken of Hines after the accident shows

that the district court clearly erred in determining that Hines

is totally disabled. Citing our decision in Nicholson v. Mullis

Engineering & Manufacturing Co., 315 F.2d 532 (4th Cir. 1963),

13
the defendants assert that the objective nature of the

surveillance footage justifies a relaxation of the usual

deference that we accord to a district court’s factual findings,

including the district court’s conclusion here that Hines is

totally disabled.

The defendants’ argument is unpersuasive, however, because

it essentially asks us to reweigh one piece of evidence and to

afford it more weight than did the district court. After

considering all the evidence, the district court determined that

Hines’ disability results from his chronic ankle pain, which can

be managed effectively only by the use of narcotics. Moreover,

the surveillance video does not undermine this conclusion,

because the video fails to demonstrate that the activities

recorded could not have been performed by a person having

chronic ankle pain who must rely on the use of narcotics to

manage that pain. Therefore, based on our review of the record,

we are not “left with a definite and firm conviction that a

mistake has been committed” with regard to the district court’s

disability determination. Evergreen Int’l, 531 F.3d at 308.

Accordingly, we conclude that the district court did not clearly

err in determining that Hines’ injury, pain, and necessary

medications prohibit him from pursuing gainful employment.

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 2.

The defendants also challenge the district court’s decision

awarding Hines $900,000 in compensatory damages for future pain

and suffering. They contend that this award was clearly

erroneous because it was not based on sufficient medical

evidence. We disagree with the defendants’ argument.

As described above, Dr. Boyette testified that Hines has a

20 percent permanent impairment of his left ankle, and Dr. Long

testified that Hines’ pain resulting from that injury will

increase progressively in the future. Therefore, Hines

presented evidence sufficient to support the district court’s

conclusion that he will continue to experience pain and

suffering.

The defendants argue, however, that the amount of the

court’s award for future pain and suffering exceeds the bounds

of reason and is punitive in nature. We are not persuaded by

this argument.

Trial courts retain “great latitude” in assessing the

proper amount of damages that should be awarded to an injured

party. Parks, 712 F.2d at 160. An award for pain and suffering

necessarily depends in large measure on the trial court’s

observations of the witnesses and the court’s credibility

determinations regarding their testimony. Id. On the record

before us, we cannot conclude that the district court committed

15
clear error in awarding Hines $900,000 for future pain and

suffering.

3.

The defendants also argue that the district court committed

clear error in its award of damages, because the evidence showed

that Hines failed to mitigate his damages. The defendants

contend that undisputed medical evidence showed that Hines could

alleviate some of his pain by losing weight and by using his

cane in a different manner. These remedial actions, the

defendants contend, could minimize the stress on Hines’ ankle,

possibly to the extent that he would no longer require narcotics

for pain management. The defendants assert that without the

cognitive impairment caused by narcotics, Hines may be able to

resume gainful employment.

We reject this argument, because it is purely speculative

in nature. There is no evidence in the record to support the

defendants’ contention that if Hines took the steps they

suggest, his pain would decrease to a level that he would no

longer require the use of narcotics.

C.

The defendants also contend that the district court

committed reversible error in barring them from cross-examining

Hines about the income he receives from disability insurance.

We disagree.

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 We examine the district court’s evidentiary ruling for

abuse of discretion. United States v. Cole, 631 F.3d 146, 153

(4th Cir. 2011). Before trial, Hines requested that the

district court prohibit the admission of evidence of payments

from collateral sources. The defendants responded that they

sought to introduce evidence of Hines’ income received from

disability insurance to challenge his credibility, rather than

to show that he was receiving income from other sources as a

result of his injury. The defendants argued that such evidence

would show that Hines had no incentive to return to the practice

of medicine.

With respect to the motion in limine, the district court

observed that “it’s pretty clear that evidence by defendant[s]

of collateral source payments are not permissible.”

Nevertheless, the court allowed the defendants to cross-examine

Hines about the information he provided on his disability

insurance application. In sustaining Hines’ objection to the

defendants’ attempt to question him about income he received

from such insurance, the court ruled that the defendants “can go

into what he made on the applications, but what he’s getting [in

the form of insurance proceeds] is irrelevant.”

The defendants were permitted to question Hines regarding

his multiple insurance policies, and they did so. The only

restriction imposed on the defendants’ questioning was their

17
ability to inquire about the actual amounts Hines was being paid

based on his insurance policies. Under these circumstances, we

conclude that the district court did not abuse its discretion in

limiting the defendants’ cross-examination in this regard.

D.

The district court, in an exercise of its discretion,

applied the North Carolina statutory rate of eight percent 4 in

calculating its award of prejudgment interest. The defendants

argue that the court’s application of this rate was unfairly

punitive, and that, compared to the prevailing market rate of

interest during the time period covering this award, the use of

the North Carolina rate resulted in a windfall for Hines.

We review an award of prejudgment interest for abuse of

discretion. Jauch v. Nautical Servs., 470 F.3d 207, 214 (5th

Cir. 2006) (applying standard in admiralty case). “The award of

prejudgment interest in admiralty cases rests within the sound

discretion of the district court.” Ameejee Valleejee & Sons v.

M/V Victoria U., 661 F.2d 310, 313-14 (4th Cir. 1981).

Under maritime law, an award of prejudgment interest is

“the rule rather than the exception, and, in practice, is well-

4
This interest rate is set forth in N.C. Gen. Stat. § 24-1,
which provides that “[t]he legal rate of interest shall be eight
percent (8%) per annum for such time as interest may accrue, and
no more.”

18
nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966

F.2d 820, 828 (4th Cir. 1992) (quoting Reeled Tubing, Inc. v.

M/V Chad G, 794 F.2d 1026, 1029 (5th Cir. 1986)). In setting

the proper rate of prejudgment interest, admiralty courts “have

broad discretion and may look to state law or other reasonable

guideposts indicating a fair level of compensation.” Todd

Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 753 (5th

Cir. 1985) (applying Louisiana statutory rate); see

also Ameejee, 661 F.2d at 313-14 (“district courts are not bound

by state statutory maximums in setting the rate of prejudgment

interest in admiralty cases”).

The defendants cite a number of cases from around the

country in which our sister circuits have reversed awards of

prejudgment interest. See, e.g., Ohio River Co. v. Peavey Co.,

731 F.2d 547, 549-50 (8th Cir. 1984). However, such reversals

generally have occurred because the district courts failed to

provide adequate reasoning for the rates selected. See id.

Other appellate decisions have vacated trial courts’ use of

certain interest rates because the methods of calculating the

rates were unsound. See, e.g., First Nat’l Bank of Chicago v.

Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir. 1999).

In the present case, the district court, located in North

Carolina and hearing a personal injury case arising within its

admiralty jurisdiction, expressly elected to employ the North

19
Carolina statutory rate. We decline to hold that such an

election constitutes an abuse of discretion.

The defendants assert, nevertheless, that the district

court’s determination was inconsistent with other calculations

made by the court, creating a discrepancy that constituted an

abuse of discretion. The defendants argue that the court’s use

of an eight percent rate for the prejudgment interest award

cannot be reconciled with the court’s use of a 4.11 percent rate

when arriving at the “present value” determination regarding

amounts of damages to be incurred in the future. We disagree

with the defendants’ argument.

In reaching its “present value” determination, the district

court adopted the damages calculation presented by Hines’ expert

witness. It was only in this manner that the court employed the

4.11 percent rate. The court’s adoption of that witness’

calculations does not render invalid the court’s independent

election of the statutory rate for the assessment of prejudgment

interest. Additionally, the determination of the 4.11 percent

discount rate, to convert future dollars into present dollars,

involved a fundamentally different task than the one of

assessing interest on dollars remaining within the defendants’

control from the date of the accident. Accordingly, we hold

that the district court did not abuse its discretion by

20
employing two different interest rates in making the two

distinctly different types of calculations.

III.

In conclusion, we hold that the district court did not

clearly err with respect to any of its factual findings or its

awards of damages. We also conclude that the district court did

not abuse its discretion with regard to its evidentiary rulings,

or by using the North Carolina statutory interest rate in

calculating the court’s award of prejudgment interest.

Accordingly, we affirm the district court’s judgment.

AFFIRMED

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