UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-30351
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DAVID S. HUGHES, Plaintiff-Appellee,
Cross-Appellant,
versus
INTERNATIONAL DIVING AND CONSULTING
SERVICES, INC., ET AL., Defendants-Appellants,
Cross Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
(October 17, 1995)
Before WIENER and DAVIS, Circuit Judges, and VANCE,* District
Judge.
PER CURIAM:
Appellants International Diving and Consulting Services, Inc.
and David Maurice Golding, as representative of Certain
Underwriters of Lloyds of London and London & Hull Maritime
Insurance Company Limited, Sphere Drake Insurance, Dai-Tokyo
Insurance Company, Ocean Marine Insurance Company, and Prudential
Insurance Company (collectively "International") appeal from a jury
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
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verdict in favor of plaintiff-appellee David Hughes. Appellants
assert several errors on appeal. First, appellants contend that
the jury award of future wages was not based on competent evidence
and that the trial court erred in denying International's motion
for judgment as a matter of law on that issue. Appellants also
assert that the trial court erred by failing to instruct the jury
on piercing the corporate veil and on plaintiff's duty to mitigate
damages. Alternatively, appellants contend that the trial court
erred by failing to set aside or reduce the damage award for past
wages due to plaintiff's alleged failure to mitigate and because
the past wage award was based on an expert opinion not supported by
the evidence. Finally, appellants seek a credit of $2,150 on any
damages awarded based on a pretrial stipulation that they advanced
that amount to Hughes as part of their obligation to pay
maintenance and cure benefits. Plaintiff David Hughes cross-
appeals asserting that the trial court erred by granting a new
trial on the issue of past wages and by setting aside the jury's
award for future medical expenses, punitive damages, and attorneys'
fees. We have thoroughly reviewed the record in this matter. We
find no error in the trial court's rulings and, therefore, affirm
the judgment entered in these proceedings.
I. BACKGROUND
David Hughes was formerly employed by International Diving and
Consulting Services as a commercial diver aboard its vessels. On
December 29, 1990, after performing an 118-foot dive from a jack-up
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barge, Hughes experienced nausea during his ascent and while he was
in a surface decompression chamber. A supervisor attributed
plaintiff's nausea to oxygen sickness and altered the surface
decompression schedule for Hughes without consulting a physician.
Nevertheless, by the completion of his decompression schedule,
Hughes's nausea had subsided, and he was able to shower, eat
dinner, and sleep without difficulty. The next day, Hughes
performed a second 118-foot dive. Upon ascending, however,
Hughes's entry into a decompression chamber was delayed for a
period of six minutes. Approximately 26 hours after completing the
second dive, Hughes experienced numbness in his right chin and left
foot. He notified his supervisor, who ordered Hughes to return to
the decompression chamber. When his condition did not improve,
Hughes was brought shoreside and admitted to a medical facility for
further examination and testing.
Hughes was ultimately examined by Dr. Keith Van Meter, his
treating physician and an expert in the field of hyperbaric and
diving medicine, and by Dr. Thor Borreson, an expert in the field
of neurology. Initial tests revealed peripheral polyneuropathy
involving both legs. Dr. Borreson concluded that Hughes suffered
from a central spinal chord injury caused by decompression
sickness. Dr. Van Meter concurred in Borreson's diagnosis and
disqualified Hughes from diving indefinitely.
In May 1991, subsequent tests revealed that Hughes's central
spinal chord was normal. Based on these tests, Dr. Borreson
revised his initial diagnosis and found that Hughes's neuropathy
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was not caused by decompression sickness. Dr. Van Meter, however,
continued to hold the opinion that Hughes's neuropathy was causally
connected to decompression sickness. While Hughes's neuropathy did
not cause him any pain or restrict his physical activity, Dr. Van
Meter further believed that Hughes's condition could be susceptible
to reinjury or exacerbation if he returned to diving. Dr. Van
Meter thus advised Hughes and his employer that plaintiff should
not return to diving. Hughes received similar advice from another
treating physician, Dr. Larry Weiss.
At trial, Hughes alleged that International violated the Jones
Act and general maritime law by negligently failing to follow
recognized industry safeguards for divers and by failing to pay
maintenance and cure. Hughes further alleged that International
was therefore liable for past and future wage losses arising from
his inability to return to his former profession. The jury
rendered a verdict for Hughes in the amount of $300,450 for past
and future wages, medical expenses, physical pain and suffering,
mental anguish, and maintenance and cure. The jury also awarded
plaintiff punitive damages and attorneys' fees of $25,000 for
International's alleged failure to provide maintenance and cure.
International filed a post-trial motion for judgment as a
matter of law, a new trial, to alter or amend the judgment, and
remittitur. Finding that International had paid Hughes's medical
expenses, the trial court granted its motion for judgment as a
matter of law on plaintiff's claims for maintenance and cure,
attorneys' fees, and punitive damages. The trial court further
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concluded that Hughes had failed to produce sufficient evidence to
support the jury award of $54,000 for past wages and granted a new
trial on that issue. The trial court denied appellants' motion on
the remaining issues. The second trial on past wages resulted in
an award of $35,132. The trial court subsequently entered judgment
in favor of Hughes and against International in the amount of
$232,132.
II. ANALYSIS
A. Expert Testimony
International contends that the jury award for future wages
was based on the inadmissible expert testimony of Dr. Van Meter.
Prior to trial, International filed a motion in limine to exclude
the testimony of Dr. Van Meter as speculative under Daubert v.
Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S.Ct. 2786,
2976 (1993). In connection with its motion, International
requested a hearing to determine the admissibility of Van Meter's
expert testimony pursuant to Fed. R. Civ. Pro. 104.1 The trial
court denied International's request for a hearing and reserved
judgment on the admissibility of Van Meter's testimony until the
time of trial.
1
Fed. R. Evid. Rule 104(c) provides as follows:
Hearings on the admissibility of confessions shall in all
cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so
conducted when the interests of justice require, or when
an accused is a witness and so requests.
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At trial, Dr. Van Meter testified that decompression sickness
is a risk commonly associated with commercial diving and that the
neuropathy suffered by Hughes could be reinjured or exacerbated by
another episode of decompression sickness. Dr. Van Meter opined
that given the risk of decompression sickness, Hughes was medically
disabled from returning to work as a commercial diver. On cross-
examination, Dr. Van Meter conceded that while "many physicians"
shared his view that neuropathy was susceptible to reinjury from
decompression sickness, his opinions were not based on objective
scientific evidence such as publications or testing. International
responded by reurging its motion to strike Dr. Van Meter's
testimony as speculative. The trial court initially denied the
motion to strike. However, after two days of additional expert
testimony, the court reconsidered its ruling, ordered the portion
of Dr. Van Meter's testimony concerning reinjury stricken and
instructed the jury to disregard it.
International argues that the trial court committed reversible
error by refusing to hold a Rule 104 hearing, by allowing Dr. Van
Meter to testify on the likelihood of reinjury if Hughes returned
to diving and by failing to immediately strike the testimony.
International further asserts that the trial court's curative
instruction came too late to offset the prejudice caused by the
admission of Dr. Van Meter's testimony earlier in the trial. We
need not decide whether the trial court's failure to conduct a
pretrial hearing and to strike Dr. Van Meter's testimony
immediately was error because, if it were, it was harmless. See
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Wheat v. Phizer, Inc., 31 F.3d 340, 342 (5th Cir. 1994); see also
Pregeant v. Pan American World Airways, Inc., 762 F.2d 1245, 1248
(5th Cir. 1985)("Any error in the admission of evidence will be
disregarded unless the admission affects the substantial rights of
the complaining party."). There was substantial evidence,
independent of Dr. Van Meter's testimony, to support plaintiff's
claim that he is permanently disabled from diving. This evidence
is discussed below in connection with our review of the trial
court's denial of International's motion for judgment as a matter
of law on the issue of future wages.
B. Future Wages
We review the district court's denial of International's
motion for judgment as a matter of law under the standard
enunciated in Lavender v. Kurn, 352 U.S. 521, 77 S.Ct. 457 (1957).
Under Lavender, judgment as a matter of law on a Jones Act count is
appropriate only when there is a complete absence of probative
facts supporting the nonmovant's position. Springborn v. American
Commercial Barge Lines, 767 F.2d 89, 98 (5th Cir. 1985); Gaspard v.
Taylor Diving & Salvage Co., 649 F.2d 372, 373 n.2 (5th Cir. 1981);
Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.
1980); see also Wooden v. Missouri Pacific R.R., 862 F.2d 560 (5th
Cir. 1989)(application of standard in FELA case). This standard is
highly favorable to the plaintiff and requires that we validate the
jury verdict if at all possible. In making this determination, we
consider only competent evidence and, therefore, disregard that
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portion of Dr. Van Meter's testimony that the trial court struck as
speculative.
At trial, Hughes argued that he is permanently disabled from
diving because decompression sickness is a hazard commonly faced by
divers, and another bout of decompression sickness could reinjure
or aggravate his neuropathy. On appeal, International does not
dispute that the evidence at trial established that decompression
sickness is a hazard commonly faced by divers or that Hughes
suffers from neuropathy. Nor does it contest plaintiff's claim
that there is a causal connection between decompression sickness
and neuropathy. Rather, International asserts that the evidence at
trial was insufficient to support the inference that Hughes's
condition would be aggravated or reinjured if he were to contract
decompression sickness in the future. We disagree.
Dr. Harold Ginzburg, an expert for the plaintiff, specifically
testified that Hughes was disqualified from diving because his
neuropathy was susceptible to reinjury if he returned to his former
position. International contends that Ginzburg's testimony is
irrelevant because his opinion was based on the expert testimony of
Dr. Van Meter. However, in addition to relying on the testimony of
Dr. Van Meter, Dr. Ginzburg stated that his opinion was based on a
review of the medical literature, plaintiff's medical record, his
experience, and the testimony of another expert Dr. Joseph Jackson.
There is nothing to indicate that Dr. Ginzburg would have arrived
at a different opinion if he had not heard Dr. Van Meter's
testimony.
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Nor do we think that Dr. Ginzburg's opinion is inherently
untrustworthy or without scientific foundation. Indeed, Ginzburg's
expert opinion finds support in the testimony of defense expert Dr.
Mark Bradley, who opined that "sick nerves appear to be more
susceptible to decompression sickness." While International argues
that Dr. Bradley's statement was made in reference to carpal tunnel
syndrome and does not apply to plaintiff's neuropathy, our review
of the record did not disclose such a qualification. The risk of
reinjury for divers with neuropathy is also evident from
International's own hiring practices. Gerald Ashker, an
International representative, testified that Hughes was not
"hirable" in the face of a report from his treating physician
disqualifying him from diving due to the risk of reinjury for
neuropathy. Gerald Asker's testimony was underscored by
International's safety manual, which prohibits a person with
"significant central or peripheral nervous system disease" from
returning to work as a diver.
In sum, we find that the evidence of permanent disability in
this case easily surpasses "the complete absence of probative
facts" standard applied in reviewing the sufficiency of evidence
for a Jones Act claim. International has not challenged the
sufficiency of the evidence to support the measure of damages
awarded for the disability. Accordingly, the trial court's denial
of International's motion for judgment as a matter of law on the
issue of future wages is affirmed.
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C. The Offset Claim
International contends that any damage award should be reduced
by $2,500 because it advanced that amount to Hughes in 1991. In
support of its argument, International relies on a stipulation
entered into by the parties prior to trial. In ruling on this
issue, the trial court refused to reduce the damage award because
the jury in the second trial was apprised of the stipulated advance
in connection with its consideration of past wages. Specifically,
the trial court found that plaintiff's expert economist had
deducted all income reported by Hughes on his 1991 W2 tax form, and
there was no evidence to suggest that the wage advance had not been
reported, or that it was not otherwise considered by plaintiff's
expert in estimating the amount of past wages owed. We agree.
The stipulation upon which International relies does not
provide that any damage award will be reduced by $2,500. Nor did
the parties remove the issue of damages from the province of the
jury by stipulating that $2,500 was the total sum of past wages
owed to Hughes. See Jones v. Wal-Mart Stores, Inc., 870 F.2d 982,
985 (5th Cir. 1989). Rather, the stipulation merely states that
International advanced $2,500 to Hughes in 1991 as part of its
obligation to pay maintenance and cure benefits. As such, it was
nothing more than a convenient way for International to avoid
having to introduce evidence on the amount of past wages previously
paid and to which Hughes was not entitled. Indeed, International
used the stipulation for its intended purpose by eliciting
testimony from Hughes during the second trial concerning the
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stipulated advance. Because the stipulated advance was presented
to the jury for consideration in its determination of past wages,
we find no error in the trial court's decision not to reduce the
damage award by the stipulated amount.
D. Remaining Issues
The remaining issues raised on appeal can be addressed
summarily. We find no error with the trial court's instructions to
the jury on mitigation of damages and piercing the corporate veil.
Further, we agree with the trial court's refusal to reduce or set
aside the jury award for past wages obtained by Hughes in the
second trial. For the reasons stated in its well-reasoned opinion,
we also agree with the trial court's decision to grant
International's post-trial motion for a new trial on the issue of
past wages and for remittitur on the issue of maintenance and cure,
punitive damages, and attorneys' fees.
III. CONCLUSION
For the foregoing reasons, the judgment of the trial court is
AFFIRMED.
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