United States Court of Appeals
For the First Circuit
No. 02-2337
ANTHONY W. RICHARDS,
Plaintiff, Appellant,
v.
RELENTLESS, INC.,
Defendant, Appellee.
GREG BRAY,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Merlyn P. O'Keefe with whom Packer & O'Keefe was on brief for
appellant.
J. Renn Olenn with whom Olenn & Penza, LLP was on brief for
appellee.
August 14, 2003
LIPEZ, Circuit Judge. Plaintiff-appellant Anthony
Richards was injured while working aboard the fishing vessel
Relentless in 1998. Richards sued his employer, Relentless, Inc.,
alleging violations of the Jones Act, 46 U.S.C. § 688 (2002), and
the warranty of seaworthiness, and seeking recovery for maintenance
and cure under general principles of maritime law. The jury found
that Richards's recovery was precluded by a release of claims he
signed shortly after his accident. In this appeal, Richards asks
us to vacate the jury verdict in favor of Relentless on a variety
of grounds. Finding no reversible error, we affirm.
I.
Richards was working as a deck hand on the F/V Relentless
in February 1998 when he stepped onto the deck one morning, slipped
on squid tentacles, and fell. After the vessel returned to port
later that month, Richards sought medical attention for his injury.
He was examined by Dr. Robert Marchand, an orthopedic surgeon, and
complained that he could not raise his leg and was experiencing
"shooting pains" down that leg. Dr. Marchand performed a bone scan
to rule out a fracture, and eventually diagnosed the injury as a
hip contusion. Dr. Marchand prescribed pain medication and an
anti-inflammatory, and on March 16, 1998, signed a "fit-for-duty"
slip authorizing Richards to return to work on March 23, 1998.
While Richards was out of work after his hip injury, the Relentless
went out on two fishing trips.
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On May 13, 1998, after Richards had returned to work on
the Relentless, he signed a release waiving any claims against the
Relentless and its insurers arising from the February injury in
exchange for a settlement of $8,000, in addition to the maintenance
and cure1 he had already received. The terms of the release stated
that Richards was settling "every right and claim [he] ha[d] for
damages as well as for past, present and future maintenance, cure,
and wages." Richards negotiated the amount of the settlement over
a three-day period with Neil Stoddard, a claims adjuster
representing Sunderland Marine Mutual Insurance Company,
defendant's insurance carrier.
On February 7, 2001, Richards filed suit against
Relentless and Greg Bray, who was the captain of the Relentless at
the time of Richards's injury.2 After discovery, the defendant
moved to bifurcate the proceedings and first try its asserted
affirmative defense -- the validity of the release Richards signed
-- before reaching the personal injury claims. If the release
Richards signed in May 1998 was deemed valid by the jury, he would
1
Maintenance and cure is the traditional form of compensation
paid to a seaman who becomes ill or injured aboard a vessel. The
value of the maintenance paid must be comparable to what the seaman
is entitled to while aboard the vessel, and cure is the cost of the
medical care he receives. Calmar S.S. Corp. v. Taylor, 303 U.S.
525, 527-28 (1938). The duty of paying maintenance and cure falls
to the owner of the vessel. Id. at 528.
2
The claims against defendant Bray were dismissed before
trial.
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be precluded from recovering against the defendant. Over
Richards's objection, the court granted the motion for a bifurcated
trial. After a three-day trial, the jury returned a verdict for
the defendant, finding that the release was valid and enforceable.
Because the jury found that the defendant had established its
affirmative defense, there was no need to proceed to the second
stage of the trial, and the court entered judgment in favor of the
defendant.
Richards alleges five errors on appeal: (1) failure to
award Richards judgment as a matter of law under Rule 50; (2) the
magistrate judge's denial of Richards's motion to amend the
complaint to add claims against Sunderland, the defendant's
insurer; (3) the acceptance of the defendant's use of a peremptory
strike against a Hispanic juror; (4) the district court's
instructions to the jury on the legal standards applicable to a
release of claims under the Jones Act; and (5) the district court's
ruling that Richards's second doctor's testimony was irrelevant.
We will address these arguments in turn.
II.
A. Rule 50 Motion
At the close of the defendant's presentation of evidence,
Richards moved for judgment as a matter of law under Rule 50.3 He
3
Since the defendant had to establish by a preponderance of
the evidence the validity of the release, the defendant presented
its case first.
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renewed his motion after the close of his case. The court withheld
its ruling until after the jury's verdict, and then denied the
motion in a written opinion. The court noted that the defendant
had presented evidence concerning the medical advice Richards had
at the time he signed the release, the amount of income he lost
during his period of recovery, and the amount of the settlement he
received. The defendant also presented evidence on the content of
the negotiations between Richards and Stoddard, and the explanation
of rights Stoddard gave Richards before Richards signed the
release. Given this evidence, the district court held that it
could not "say that there was a legally insufficient evidentiary
basis from which the jury could reasonably find in favor of the
defendant." Richards v. Relentless Inc., No. 01-64ML, slip op. at
9 (D.R.I. Sept. 20, 2002).
We review the court's denial of the motion de novo.
Espada v. Lugo, 312 F.3d 1, 2 (1st Cir. 2002). Judgment as a
matter of law under Rule 50(a) is appropriate if "there is no
legally sufficient evidentiary basis for a reasonable jury to find
for [the non-moving] party." Fed. R. Civ. P. 50(a). When
reviewing the district court's denial of the motion, we examine the
evidence in the light most favorable to the non-moving party --
here, the defendant -- and do not "consider the credibility of
witnesses, resolve conflicts in testimony, or evaluate the weight
of the evidence." Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir.
-5-
1996) (quoting Richmond Steel, Inc. v. Puerto Rican Am. Ins. Co.,
954 F.2d 19, 22 (1st Cir. 1992)). We affirm the denial of the
motion unless "reasonable persons could not have reached the
conclusion that the jury embraced." Negron-Rivera v. Rivera-
Claudio, 204 F.3d 287, 290 (1st Cir. 2000).
In cases involving seamen, the burden is on the defendant
to show that a release of claims "was executed freely, without
deception or coercion, and that it was made by the seaman with full
understanding of his rights." Garrett v. Moore-McCormack Co., 317
U.S. 239, 248 (1942). In the Garrett case, the Supreme Court
recognized that the relationship between a seaman and his employer
was unlike the traditional employee-employer relationship. Seamen
are "wards of admiralty," and their relationship with their
employers is similar to the relationship between a beneficiary and
fiduciary. Id. at 246. Necessarily, then,
[i]f there is any undue inequality in the
terms, any disproportion in the bargain, any
sacrifice of rights on one side, which are not
compensated by extraordinary benefits on the
other, the judicial interpretation of the
transaction is that the bargain is unjust and
unreasonable, that advantage has been taken of
the situation of the weaker party, and that
pro tanto the bargain ought to be set aside as
inequitable.
Id. (internal citations and quotation marks omitted). Therefore,
releases signed by seaman "are subject to careful scrutiny. 'One
who claims that a seaman has signed away his rights to what in law
is due him must be prepared to take the burden of sustaining the
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release as fairly made with and fully comprehended by the seaman.'"
Id. at 248 (quoting Harmon v. United States, 59 F.2d 372, 373 (5th
Cir. 1932)). In order to satisfy this burden of showing the
release is valid, the party seeking to enforce it must
show that it was executed freely, without
deception or coercion, and that it was made by
the seaman with full understanding of his
rights. The adequacy of the consideration and
the nature of the medical and legal advice
available to the seaman at the time of signing
the release are relevant to an appraisal of
this understanding.
Id. at 248.
There are special concerns that arise when a seaman is
signing a release without the benefit of counsel. In such a
situation, there is a burden on the agent of the vessel owner or
insurance carrier negotiating the release with the seaman to "bring
home to the plaintiff an understanding of the rights he [is] giving
up in exchange for the settlement offered." Bay State Dredging &
Contracting Co. v. Porter, 153 F.2d 827, 833 (1st Cir. 1946). More
specifically:
At the very least [the seaman] should have
been told that he had an unbeatable right of
action under the maritime law for maintenance
and cure, not dependent on proof of
negligence; and that in addition he had, under
the Jones Act, a right to maintain an action
at law for damages for injuries resulting from
the negligence of any of the officers or
employees of the defendant.
Id. Therefore, in order to prove the validity of a release, the
party seeking to enforce it must show that it gave the seaman a
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full explanation of his rights before he signed the release. The
logic of such a rule is clear: "Otherwise, the [seaman] would
necessarily not be in a position to make an intelligent decision as
to whether the offer [of settlement in exchange for the release]
should be accepted." Id.
Stoddard, working on behalf of Sunderland, Relentless's
insurance agent, testified at trial that he negotiated the
settlement with Richards over a three-day period. Stoddard first
called Richards on May 11 with an offer of $6,000, which Richard
rejected. Richards then called Stoddard the next day and they
agreed to settle the claim for $8,000. Stoddard and Richards met
at the Relentless offices on May 13 so that Richards could sign the
release and receive his settlement check. Stoddard testified that
before Richards signed the release, he explained the effect of the
release and Richards's rights:
I said to him that just because we had
prepared this document and because I had
traveled to North Kingstown, Rhode Island,
didn't mean that he had to go through with the
signing of the release; that any time he
became uncomfortable with anything that he
read, that was read to him or anything that
was said to him, he could stop the conference,
he could take a copy of the release and he
could go talk to an attorney. After I told
him that, I told him that he also had the
absolute right to get a second medical
opinion. He could either go back to his
treating physician, Dr. Marchand, or he could
go get a second opinion from another doctor
that we would pay for.
-8-
Stoddard also testified that he "discussed the Jones Act with
[Richards], the fact that he was giving up his rights to any claim
under the Jones Act by signing that document" and also explained
that by signing the release he was "giving up any right to recovery
. . . from unseaworthiness." In terms of explaining the meaning
of these claims to a non-lawyer, Stoddard testified that he "was
generally explaining to him what unseaworthiness was, what
negligence was and what rights he was giving up by signing this
document."
Regarding maintenance and cure, Stoddard testified that
"prior to signing the release, I explained to him what maintenance
was, that it was the $15 a day that we had paid him,4 and that by
signing this release he would give up any right to any continued or
further maintenance." Stoddard also explained that the insurance
company would pay any remaining medical bills Richards had yet to
receive from doctors visits he had made prior to the date of the
release.
Richards did not present an alternative version of what
occurred in the meeting between him and Stoddard on the day he
signed the release. Therefore, even after the close of the
plaintiff's case, Stoddard's description of the explanation he gave
4
Relentless's insurer paid Richards $15 a day in maintenance
for those days in February and March he was injured and could not
fish. Since Richards had returned to work by the time the release
was being negotiated, he had stopped receiving maintenance
payments.
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Richards before he signed the release was uncontradicted. Given
this testimony, we cannot say that no reasonable jury could have
found for Relentless on the validity of the release under Garrett
and Bay State Dredging. Richards's motion for judgment as a matter
of law was properly denied.
B. Motion to Amend
Prior to trial, Richards moved to amend his complaint to
add a claim against Sunderland, the defendant's insurance carrier,
for tortuous interference with the employment relationship between
Richards and Relentless. Richards argued that Sunderland
interfered with Relentless's contractual burden to pay Richards's
daily maintenance during his period of convalescence because
Sunderland set its maximum payment at $15 per day. Relentless
objected to the amendment, and the motion was referred to the
magistrate judge. After a hearing on the issue, the magistrate
judge denied leave to amend, holding that the amendment sought by
Richards would be futile because "there is a requirement that for
the action of tortuous interference with contractual relations to
be maintained the defendant must be a stranger to the contract,"
and Sunderland was not a stranger to the contract between Richards
and Relentless. The district court affirmed the decision without
comment. "We review denials of leave to amend under Rule 15 for
abuse of discretion, deferring to the district court for any
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adequate reason apparent from the record." Resolution Trust Corp.
v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).
We agree with the magistrate judge's reading of the law,
see Finley v. Giacobbe, 79 F.3d 1285, 1295 (2d Cir. 1996) (holding
that a plaintiff bringing a tortuous interference claim must show
that the defendant was not a party to the contract), and its
determination that Sunderland was not a stranger to the contract.
When Sunderland informed Richards it would pay him $15 a day in
maintenance, it was acting on behalf of Relentless. The burden of
paying maintenance to an injured seaman falls to the vessel. See
Calmar S.S. Corp., 303 U.S. at 528. In this case, Relentless
voluntarily contracted that burden to Sunderland when it purchased
an insurance policy. Sunderland cannot be considered a "stranger"
or "third-party" to the contract between Richards and Relentless
within the meaning of the tortuous interference case law. The
ruling on the motion to amend the complaint was correct.
C. Use of Peremptory Challenge
Richards argues that Relentless's use of a peremptory
strike against prospective juror Corazon Fernando violated Batson
v. Kentucky, 476 U.S. 79 (1986), which prohibits the use of
peremptory strikes based on the race of the juror. After Richards
objected to the use of the peremptory against Ms. Fernando, the
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magistrate judge5 asked Relentless to explain the basis of its
challenge. Noting that Ms. Fernando was a resident of Pawtucket,
Rhode Island, Relentless's counsel explained:
The basis of my challenge, your Honor, is that
Pawtucket and Central Falls is the largest
area of cocaine dealing in the state, and I
have a substantial number of convictions of
the Plaintiff for cocaine use. And it's my
concern that this woman may be from an area
where cocaine use is found more acceptable
than in other places and it would diminish the
use of my impeaching material.
Taking this explanation into consideration, and noting that
Relentless did not challenge two other jurors of color, the
magistrate judge concluded that Relentless's peremptory challenge
was not motivated by racial discrimination. On appeal, Richards
contends that it was error for the court to have taken into
consideration Relentless's failure to challenge other jurors of
color, and that the explanation Relentless offered was a surrogate
for an impermissible racial bias.
We employ a three-part framework to evaluate the claim
that the use of a peremptory challenge violated Batson. See United
States v. Bergodere, 40 F.3d 512, 515 (1st Cir. 1994). First, the
party objecting to the challenge "must make a prima facie showing
of discrimination" in the opposing party's use of the challenge.
Id. If the objecting party "fulfills this requirement by
5
The jury in this case was impaneled by Magistrate Judge
Martin according to the district court's pretrial order.
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establishing, say, a prima facie case of a racially driven
impetus," the party seeking to use the challenge "must proffer a
race-neutral explanation for having challenged the juror." Id.
Once such an explanation is given, the district court must then
decide whether the objecting party "has carried the ultimate burden
of proving that the strike constituted purposeful discrimination on
the basis of race." Id. As this decision involves "a mixed
question of law and fact that is peculiarly fact-sensitive, we
review it for clear error." United States v. Lara, 181 F.3d 183,
193 (1st Cir.), cert. denied, 528 U.S. 979 (1999); see Rodriguez-
Hernandez v. Miranda-Velez, 132 F.3d 848, 855 (1st Cir. 1998)
(applying clear error review to this question in a civil case).
To make a prima facie showing, Richards described his
race as black, and offered the opinion that the challenged juror,
Corazon Fernando, was Hispanic, given her surname and "Spanish
accent." Assuming arguendo that these considerations satisfied
Richards's prima facie case, we next consider the defendant's race-
neutral explanation. "In order to meet the second-step
requirement, a [party's] explanation need only be unrelated to race
on its face." Lara, 181 F.3d at 194; see Hernendez v. New York,
500 U.S. 352, 360 (1991) ("Unless a discriminatory intent is
inherent in the [attorney's] explanation, the reason offered will
be deemed race neutral."). The explanation Relentless offered --
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that Ms. Fernando was being challenged because of her city of
residency, not her race -- satisfies this burden.
Once a race-neutral explanation is offered, the court is
presented with the ultimate question -- whether the objecting party
has convinced the court that this race-neutral explanation "rings
hollow." Lara, 181 F.3d at 194. The magistrate judge accepted
Relentless's explanation:
I do not find that the challenge was motivated
by racial discrimination. I note that
[Relentless's attorney] has left two persons
who appear to be black persons on the jury. I
also note that the reason offered is not one
which indicates to the Court that it's based
on race.
Richards argues that striking Ms. Fernando based on her city of
residence was a proxy for striking her on the basis of her race
because Pawtucket has a larger Hispanic population than other towns
in Rhode Island. This statistical fact alone cannot convert a
facially race-neutral explanation into one based on race. See
Caldwell v. Maloney, 159 F.3d 639, 654 (1st Cir. 1998) ("But even
when the criterion used by the prosecutor has a discriminatory
impact, unless the government actor adopted a criterion with the
intent of causing the impact asserted, that impact itself does not
violate the principle of race neutrality."); cf. Hernandez, 500
U.S. at 360 (holding that a prosecutor's explanation that he was
striking Spanish-speaking jurors was race-neutral, given the fact
that witnesses would be testifying in Spanish and that the
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testimony would be officially translated into English in court by
a court-appointed translator). Although Relentless's posited link
between residency and a forgiving attitude towards the use of
cocaine seems a bit of a stretch, our role is not to evaluate
whether the use of the challenge was wise, but merely whether it
was race-neutral. Richards's proxy argument does not convince us
that the magistrate judge clearly erred. As we have said
previously, because this decision "often pivots on credibility,
appellate tribunals must scrutinize the trial court's response
under a highly deferential glass." Lara, 181 F.3d at 194; see
Caldwell, 159 F.3d at 649 ("[A] trial judge's Batson findings are
given substantial weight because the trial judge is in the best
position to evaluate context, nuance, and the demeanor of the
prospective jurors and the attorneys.").
In accepting the race-neutral explanation for the use of
the peremptory challenge, the court also relied on the presence of
other jurors of color who were not challenged. Although Richards
argues otherwise, the race and ethnicity of the jurors seated,
especially when those jurors are of the same racial group as the
objecting party, is a permissible consideration. See United States
v. Escobar-De Jesus, 187 F.3d 148, 165 (1st Cir. 1999) (rejecting
Batson argument and noting that "six or seven African-Americans
were eventually selected to serve on the jury"); Lara, 181 F.3d at
194 (stating that the lack of a pattern of discrimination in the
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use of peremptories is relevant to determining whether a race-
neutral explanation is pretextual). Therefore, we find no clear
error in the magistrate judge's decision to permit the use of the
peremptory.
D. Jury Instructions
Richards contends that the district court's instructions
to the jury "did not reflect the vaunted status of seamen who sign
personal injury releases" because the court failed to explain the
tremendous burden on a vessel owner seeking to enforce a release
against an injured seaman. More specifically, Richards argues that
the district court erred in instructing the jury (1) that by
signing the release the plaintiff "gave up certain rights,"6 (2)
that the jury was not to consider which party was at fault for the
underlying injury when considering the validity of the release,7
(3) that the jury was to determine whether the plaintiff had a
6
The district court charged the jury, in pertinent part,
This case involves the validity of a release entered into
by the Plaintiff and the Defendant as a result of an
injury suffered by the Plaintiff on the Defendant's
fishing vessel. By signing that release, the Plaintiff
gave up certain rights in exchange for a lump sum cash
settlement. As the jury, you must decide, in light of
the law as I will describe it to you and in light of the
facts as you find them to be, whether the release in this
case is valid or invalid.
7
The district court told the jury "[y]ou are not to decide
which party was or was not at fault with regard to the underlying
injury, but rather only whether the release that was entered into
after the accident is valid. . . ."
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"fair understanding" of his rights when he signed the release,8 and
(4) that the jury must consider whether the compensation the
plaintiff received was "plainly inadequate."9
8
The relevant portion of the instruction stated:
In order for a release of a seaman's claim to be valid,
it must be entered into knowingly and voluntarily. In
other words, the seaman must have had an informed
understanding of his rights and a full appreciation of
the consequences when he executed the release.
. . . .
First, you must determine whether the Plaintiff
understood the nature of his injuries at the time that he
signed the release. Second, you must consider whether
the Plaintiff had a fair understanding of his legal
rights before he signed the release. And third, you must
consider whether the Defendant used unfair practices in
reaching the settlement described in the release, that
is, whether the terms of the release so unfairly favored
the Defendant that the release must be invalidated.
9
On the question of the adequacy of the compensation the
plaintiff received, the court instructed:
If you find that the amount of the settlement was plainly
inadequate for the Plaintiff's injuries at the time the
release was signed, you may consider that as evidence in
determining whether the Plaintiff understood his rights
at the time the release was signed. However, inadequate
compensation alone is not enough to find the release
invalid. If you decide that the amount is plainly
inadequate, you must still find for the Defendant unless
you decide that there are other considerations that lead
you to believe that the Plaintiff did not have the
required understanding of his rights at the time he
entered into the release. . . . In sum, you must first
decide whether the compensation was plainly inadequate or
not. If, and only if, you decide that it is plainly
inadequate may you then consider that as evidence in
determining whether Plaintiff understood his rights. . .
.
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"A jury instruction, duly objected to, constitutes
reversible error only if it (i) is 'misleading, unduly
complicating, or incorrect as a matter of law'; and (ii) cannot be
considered harmless, viz., as adversely affecting the jury verdict
and the 'substantial rights' of the objecting party." Davignon v.
Clemmey, 322 F.3d 1, 9 (1st Cir. 2003) (quoting Crowley v. L.L.
Bean, 303 F.3d 387, 394 (1st Cir. 2002), and Romano v. U-Haul
Int'l, 233 F.3d 655, 665 (1st Cir. 2000)). Richards made timely
objections to these jury instructions at trial, and renews his
arguments on appeal that the first challenged instruction was
misleading, and that the other three challenged instructions were
incorrect as a matter of law.
1. "Plaintiff gave up certain rights. . . ."
There was nothing misleading about the first challenged
instruction. Immediately after explaining that the plaintiff gave
up certain rights by signing the release, the court outlined the
jury's task: "[Y]ou must decide, in light of the law as I will
describe it to you and in light of the facts as you find them to
be, whether the release in this case is valid or invalid." Given
that statement, and the subsequent instructions focusing on the
factors the jury should consider when determining the validity of
the release, the judge made clear to the jury that the waiver of
rights contained within the release would be enforced against the
plaintiff only if the release was valid.
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2. "You are not to decide which party was or was not at
fault. . . ."
The district court had decided to bifurcate the trial,
addressing the validity of the release first and then moving on to
issues of fault only if necessary. Fault testimony and argument
during the "release" stage of the trial would have defeated the
purpose of the bifurcation. Hence, it was important for the court
to remind the jury that comparative fault was irrelevant at this
stage of the proceedings.
Richards argues otherwise, contending that fault is
relevant to the question of whether the consideration he received
for signing the release was adequate. Assuming arguendo that his
contention has some validity (a point we do not concede), his
argument is too little too late. Richards does not argue on appeal
that the district court erred in bifurcating the case into separate
"release" and "personal injury" trials, even though he objected to
the defendant's pre-trial motion to bifurcate. Therefore, the
bifurcation ruling -- and the court's decision to put off all
discussion of comparative fault until the second stage of the trial
-- stands, and Richards has waived any argument that depends on the
invalidity of the bifurcation ruling. Smilow v. Southwestern Bell
Mobile Sys., 323 F.3d 32, 43 (1st Cir. 2003) ("Issues raised on
appeal in a perfunctory manner (or not at all) are waived.").
Richards's argument that comparative fault is relevant to the
release relies on the theory that the questions of fault could not
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be separated from a determination of the validity of the release.
But his assertion on appeal that the jury instruction was
erroneous, without an accompanying argument that the bifurcation
was erroneous, is illogical. Therefore, the court's instruction to
the jury not to consider fault when determining its verdict in the
first stage of the trial was correct.
3. "Fair understanding of his rights. . . . Whether
compensation was plainly inadequate. . . ."
After reviewing the third and fourth challenged
instructions, we conclude that they were incorrect statements of
the law. The standards for judging a seaman's release of claims
were laid out by the Supreme Court in Garrett, 317 U.S. at 248, and
discussed in Part II.A. of this opinion. In the Garrett case, the
court announced the oft-quoted rule by which future courts should
analyze releases signed by seamen:
We hold, therefore, that the burden is upon
one who sets up a seaman's release to show
that it was executed freely, without deception
or coercion, and that it was made by the
seaman with full understanding of his rights.
Id. (emphasis added), quoted in Orsini, 247 F.3d at 959; Simpson v.
Lykes Bros. Inc., 22 F.3d 601, 602 (5th Cir. 1994); Bay State
Dredging, 153 F.2d at 833; Pereira v. Boa Viagen Fishing Corp., 11
F. Supp. 2d 151, 152 (D. Mass. 1998). The district court's
instruction to the jury, that it "must consider whether the
Plaintiff had a fair understanding of his legal rights before he
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signed the release," was not a correct statement of the principle
of Garrett.
The district court also instructed the jury that it
needed to decide whether the amount of the settlement Richards
received was "plainly inadequate." Richards argues that the
correct standard is "inadequate," without the modifier. The
Garrett court did not use the modifier "plainly" when discussing
the adequacy of consideration. See 317 U.S. at 248 ("The adequacy
of the consideration . . . [is] relevant."); id. at 247 (holding
that the burden of persuasion on a shipowner "is particularly heavy
where there has been inadequacy of consideration"). Nor have we
ever held that consideration for a Jones Act release must be
"plainly inadequate" in order to justify an invalidation of such a
release. See Bay State Dredging, 153 F.2d at 833 (discussing the
"adequacy of the consideration") (quoting Garrett, 317 U.S. at
248). The district court's chosen wording of the jury instruction
-- "plainly inadequate" -- is not supported by prior Supreme Court
or First Circuit precedent.
In its defense of the jury instruction, the defendant
cites a trio of Ninth Circuit cases where the court described
consideration for a release as "wholly inadequate," Orsini, 247
F.3d at 962, "plainly inadequate," Resner v. Arctic Orion
Fisheries, 87 F.3d 271, 274 (9th Cir. 1996), and "clearly
inadequate," Durden v. Exxon Corp., 803 F.2d 845, 848 (9th Cir.
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1986). However, none of these cases involved a challenge to jury
instructions on appeal. In those cases, the court was reviewing de
novo the consideration offered for the releases and concluding that
the consideration offered failed the adequacy test by a wide
margin. Although it may have characterized the consideration as
"plainly inadequate," it never stated that inadequate consideration
could be evidence of a seaman's lack of understanding of his rights
only if it rose to the level of "plainly inadequate" consideration.
Defendant's insistence on the "plainly inadequate" language in the
district court, like its insistence on the "fair understanding"
language, was ill-advised overreaching.
In summary, the controlling language in a case such as
this remains as stated by the Supreme Court in Garrett. The party
asserting a seaman's release as an affirmative defense must
show that it was executed freely, without
deception or coercion, and that it was made by
the seaman with full understanding of his
rights. The adequacy of the consideration and
the nature of the medical and legal advice
available to the seaman at the time of signing
the release are relevant to an appraisal of
this understanding.
Garrett, 317 U.S. at 248. If the jury finds that the compensation
or settlement the seaman received was inadequate, it may consider
that inadequacy of consideration as evidence that the plaintiff did
not understand his rights at the time he signed the release. Id.
at 247.
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4. Harmless Error
An error in a jury instruction is governed by the
harmless error standard -- "a new trial is necessary only if the
error could have affected the result of the jury's deliberation."
Romano, 233 F.3d at 667; see Davignon, 322 F.3d at 9; Fed. R. Civ.
P. 61. The court's use of the term "fair" instead of "full," while
arguably placing a lighter burden on the defendant, must be
considered in the context of the instruction as a whole. After
charging the jury with the task of determining whether the
plaintiff "had a fair understanding of his legal rights," the court
elaborated on the factors that informed the jury's analysis of the
understanding issue: the adequacy of the medical and legal advice
Richards had when he signed the release; the adequacy of the
compensation Richards received; and whether the defendant used
"unfair practices" to secure the release from Richards. These
factors were outlined in Garrett and reaffirmed by our court in Bay
State Dredging. Therefore, the court did not fail to identify any
of the considerations that inform the concept of a "full
understanding." Under these circumstances, the mistaken use of
"fair understanding" instead of "full understanding" was a harmless
error.
We arrive at the same conclusion when we consider the
court's use of the phrase "plainly inadequate" instead of
"inadequate." Richards argues that these phrases have a different
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import, and we agree. Under Garrett, the party seeking to enforce
the release has the burden of proving that the consideration is
adequate. If the jury concludes that the consideration was
"inadequate," the jury may then consider that inadequacy in
deciding if the seaman had a full understanding of his rights when
he signed the release. By instructing the jury that the amount of
consideration could be evaluated as evidence of the seaman's
understanding only if the jury found that the consideration was
"plainly inadequate," the judge made it less likely that the
inadequacy of the consideration would become relevant to the
seaman's understanding of his rights.
In another case, this particular error could have
affected the result of the jury's deliberation. Here, however, we
conclude that the error was harmless because of the strength of the
evidence on the adequacy of the consideration. The defendant
introduced evidence that Richards received an $8,000 settlement for
what he believed, at the time he signed the release, was only a
bruise to his left hip. He also received maintenance payments of
$435 and cure in the amount of $702.16. By the time Richards
negotiated and accepted the settlement, his doctor had told him
that he had recovered from his injury, and Richards was already
back at work on the Relentless after missing only two fishing
trips. On these facts, a jury would be hard pressed to conclude
that the settlement was not adequate.
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E. Relevance of New Doctor's Testimony
In his final argument, Richards asserts that the district
court erred in ruling that the testimony of Dr. Bellafiore, a
physician Richards began seeing in 2001, was irrelevant to the
issues being tried in the first part of the trial. A district
court has broad discretion to make relevancy determinations, and we
review its decisions only for abuse of discretion. Tiller v.
Baghdady, 244 F.3d 9, 14 (1st Cir. 2001). In his brief on appeal,
Richards argues that Dr. Bellafiore would have testified that
Richards was suffering from a neurological problem in his leg
relating back to the fall on the Relentless. According to
Richards, this diagnosis contradicts Dr. Marchand's prior diagnosis
of a hip contusion10 and casts doubt on whether Richards had
adequate medical advice when he signed the release.
Whatever the merits of this argument on appeal, see
Charpentier v. Fluor Ocean Servs., Inc., 613 F.2d 81, 85 (5th Cir.
1980) ("A mistaken diagnosis concerning the extent of a plaintiff's
injury has been recognized as a basis for setting aside a
release."), Richards failed to explain the relevance of Dr.
Bellafiore's testimony to the district court. In his Objection to
the Defendant's Motion in Limine, Richards stated only that Dr.
Bellafiore found "there to have been more tha[n] a bruise caused by
Plaintiff's fall aboard the F/V Relentless in February 1998 in
10
Dr. Marchand testified to this diagnosis at trial.
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terms of intensity and duration." When the court was addressing
the various motions in limine before the trial began, Richards's
attorney and the district court had the following exchange
regarding Dr. Bellafiore:
MR. O'KEEFE [Richards's attorney]: Peter
Bellafiore being Mr. Richards's neurologist,
was going to say that at the time of the fall,
he injured a nerve. That's the evidence I was
going to put on, and that I think is relevant,
your Honor.
THE COURT: Well, I think what you're going to
need to do is to make an offer of proof along
those lines. I have not seen any records from
Dr. Bellafiore, nor have I seen any deposition
testimony.
MR. O'KEEFE: He has not been deposed, your
Honor.
THE COURT: Then I suggest to you that you may
need to present an affidavit or at least a
report that reflects precisely what Dr.
Bellafiore's testimony would be rather than a
summary of what you believe his testimony
might be along those lines because I think
that we need to be very clear in an offer of
proof of precisely what evidence the Court is
ruling inadmissible.
There is no indication in the record that any such document was
filed with the court. Instead, at trial, Richards's attorney made
a verbal offer of proof regarding Dr. Bellafiore's testimony:
Peter Bellafiore is a board certified
neurologist to whom Mr. Richards was referred
by Dennis Jones. The referral, your Honor,
came sometime in 2001, after Dr. Jones became
of an opinion that it was a neurological
problem causing Mr. Richards the problems that
he had and not so much the arthritis, although
the arthritis flare-up was a problem as well.
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Dr. Bellafiore would say he's seen him four or
five times and that he has a diagnosis of
neuralgia that he relates back to the fall of
February 1998 as described to him by Mr.
Richards, and he would say that Mr. Richards
is not able to go back to sea.
On the basis of that offer of proof, the court concluded that Dr.
Bellafiore's testimony was not relevant to the question of the
validity of the release. We agree.
"[T]he nature of the medical and legal advice available
to the seaman at the time of signing the release are relevant to an
appraisal of [whether the seaman understood the rights he was
waiving]." Garrett, 317 U.S. at 248 (emphasis added). Absent an
offer of proof linking Dr. Bellafiore's testimony to the adequacy
of the medical advice Richards had at the time he signed the
release, such as testimony that Dr. Marchand erred by failing to
diagnose nerve damage back in 1998, the testimony was properly
excluded. United States v. Lussier, 929 F.2d 25, 31 (1st Cir.
1991).
III.
For the aforementioned reasons, we find no reversible
error in any of Richards's claims.
AFFIRMED.
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