Richards v. Relentless, Inc.

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

-10-
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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