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

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 4:09-cv-00003-BR Copies to all parties and the district court/agency. [998890040].. [11-1052]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1052

BENJAMIN G. HINES, JR.,
Plaintiff - Appellee,
v.
TRIAD MARINE CENTER, INCORPORATED, d/b/a Boats Unlimited NC;
JOHN BANISTER HYDE,
Defendants - Appellants.

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

Argued:

May 15, 2012

Decided:

July 9, 2012

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

Affirmed by unpublished opinion.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

the

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

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Lawson Johnston, PION, JOHNSTON, NERONE, GIRMAN,
SMITH, PC, Pittsburgh, Pennsylvania, for Appellants.

CLEMENTS

Unpublished opinions are not binding precedent in this circuit.

2

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BARBARA MILANO KEENAN, Circuit Judge:
In this maritime personal injury case, Triad Marine Center,
Inc.

(Triad

Marine),

and

its

employee,

John

Banister

Hyde

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

awarding

more

Benjamin G. Hines, Jr.

than

$10

million

in

damages

to

Dr.

The district court’s judgment was based

on injuries Hines suffered during a sea trial of a boat offered
for sale by Triad Marine.

The defendants assert that the court

committed

concluding

clear

error

in

that

they

breached

the

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

court’s

gainful

finding

employment.

that
The

Hines

no

longer

defendants

also

can

engage

argue

in

that

any

their

substantial rights were affected by the exclusion of evidence
regarding Hines’ disability insurance income, and that the court
abused its discretion by applying the North Carolina statutory
interest rate in the calculation of prejudgment interest.

We

disagree, and hold that the district court neither committed
clear error nor abused its discretion.

Accordingly, we affirm

the district court’s judgment.

I.
On

March

20,

2006,

Hines,

a

urologist

who

owns

a

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

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in New Bern, North Carolina. 1

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Hines and his wife owned a small

flat-bottomed skiff, but they were looking for a larger boat
that would provide a more comfortable ride and would minimize
the

“splash”

they

experienced

during

their

boat

outings.

Accordingly, Hines visited Triad Marine and spoke with one of
its employees, Hyde.

Based on Hines’ description of his needs,

Hyde recommended that Hines consider purchasing a Triton model
2286.

Hines requested a sea trial of the vessel, and Hyde

agreed to bring the boat to Beaufort the following day.
Later that night, the National Weather Service issued a
small craft advisory for the area, including Beaufort, effective
from

5:00

a.m.

following day. 2

on

March

21

through

the

afternoon

of

the

Nevertheless, Hyde brought the boat to Beaufort,

where Hines and his friend, Neil Wagoner, who previously had
purchased a boat from Triad Marine, boarded the Triton.

From

Beaufort, Hines drove the boat in a southeast direction toward
Shackleford Banks.

On the inland side of Shackleford Banks,

1

We describe the facts in this case in the light most
favorable to Dr. Hines, the prevailing party in the district
court.
See F.C. Wheat Mar. Corp. v. United States, 663 F.3d
714, 723 (4th Cir. 2011) (applying standard in admiralty case).
2

On the east coast of the United States, from Maine to
South Carolina, the National Weather Service issues a small
craft advisory when sustained winds or frequent gusts are
expected to range between 25 and 33 knots, or waves are expected
between five and seven feet or greater.

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where the waves were only about one foot high, Hines brought the
boat to “planing speed.” 3
In order to achieve planing speed, Hines found that he had
to attain speeds of about 20 miles per hour.
reaching

this

speed,

he

observed

that

Further, after
the

boat

began

“porpoising,” that is, the bow of the boat repeatedly dipped and
rose during travel.

When he had encountered porpoising during a

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

salesman

present

sea

who

had

trial,

accompanied

after

him.

experiencing

Accordingly,
the

boat

move

in
in

the
this

manner, Hines asked Hyde to demonstrate the proper way to handle
the boat.
As Hyde assumed the boat’s controls, Hines moved aside,
holding

onto

the

center console.

“T-top”

frame

that

surrounded

the

vessel’s

With his left hand grasping the handle of the

frame’s vertical support, and his right hand holding onto the
top of the frame, Hines was able to observe Hyde operating the
boat.

Once in control of the vessel, Hyde again brought the

boat to planing speed.
The return trip took the party north of Beaufort Inlet.

At

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

3

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

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

20

and

25

miles

per

hour.

Without

providing

any

warning, Hyde turned the boat directly into the oncoming waves
passing through the inlet.

Hyde then accelerated in a southerly

direction,

oncoming

and

struck

an

wave

“head-on”

that

was

between five and six feet in height.
As the wave passed beneath the boat, the bow lost contact
with the water and rose into the air.

Immediately thereafter,

the bow “slammed back down,” causing Hines to strike his head on
the underside of the T-top.
deck,

injuring

passengers

both

about

the

his

At this time, Hines fell to the

ankles.

oncoming

Hyde

wave,

or

had
of

not

warned

the

its

potential

to

in

Beaufort,

an

affect the boat’s movement.
Upon

the

boat’s

ambulance

transported

hospital,

Hines

return
Hines

learned

to
to

that

he

the
a

dock

nearby
had

hospital.

sustained

a

At

the

bimalleolar

fracture to his left ankle, and a less severe injury to his
right ankle.
Hines

After receiving initial treatment at the hospital,

received

additional

medical

care

from

Boyette, who performed surgery on his left ankle.

Dr.

Deanna

M.

Because Hines

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

also

referred

Hines

to

management.

6

Dr.

Ronald

M.

Long

for

pain

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Based on Hines’ previous experience with pain medicines,
Dr.

Long

prescribed

Percocet,

a

medication

containing

a

combination of acetaminophen and oxycodone, an opioid.

Hines

later

is

reported

experiencing

cognitive

potential side effect of opioid use.

impairment,

which

a

Also, despite taking this

medication, Hines reported that he was experiencing continuing
chronic pain.

Hines has continued to consult with Dr. Long

regarding this ankle pain between two and four times per year.
Because of this pain, and Hines’ intake of opioids and their
effect on his cognitive functions, Hines has withdrawn from the
practice of medicine.
In

January

2009,

Hines

filed

a

complaint

under

the

admiralty jurisdiction of the district court, alleging one cause
of action in negligence against Hyde and Triad Marine.

After a

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

that

his

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

The

court

in

also

partial

his

operation

determined

impairment

that

with

of

the

Hines

respect

had
to

Triton,

a
his

20

and

percent

left

permanent

ankle,

which,

together with his chronic pain and use of narcotics medication,
prevented

him

Accordingly,

the

from

engaging

court

in

entered

any

judgment

gainful
in

the

employment.
amount

of

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

Included in this award were $900,000 in compensatory
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damages

for

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future

pain

and

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suffering,

and

$3,320,995.58

in

prejudgment interest, which the court determined by using the
North Carolina statutory interest rate of eight percent.

The

defendants timely appealed from the district court’s judgment.

II.
The defendants raise four challenges on appeal.

First,

they contend that the district court erred in finding that Hyde
violated the standard of care applicable to a boat operator when
piloting the Triton in Beaufort Inlet.

Second, the defendants

argue that the court clearly erred in concluding that Hines was
totally disabled and was entitled to significant damages for
lost

wages

and

for

future

pain

and

suffering.

Third,

the

defendants assert that the court committed reversible error by
limiting

their

disability
court

cross-examination

income.

abused

its

Fourth,

the

discretion
rate

in

regarding

Hines’

defendants

in

contend

using
the

fixing

the
amount

statutory

interest

interest.

receipt

North
of

that

of
the

Carolina

prejudgment

We address these issues in turn.
A.

We

first

consider

the

issue

whether

the

district

court

erred in concluding that the defendants violated the standard of
care applicable to a boat operator.

In particular, the court

found that Hyde was negligent in failing to reduce the speed of
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the boat when necessary, and in failing to navigate properly the
waves in Beaufort Inlet.
In

reviewing

a

district

court’s

factual

findings,

we

examine the record for clear error, viewing the evidence in the
light most favorable to the prevailing party in the district
court.

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

In

admiralty cases, issues of negligence are treated as factual
issues,

and

therefore,

standard of review.
“It

is

are

subject

to

the

clearly

erroneous

choices

and

Id.

axiomatic

that

credibility

the

resolution of conflicting testimony are within the province of
the court sitting without a jury,” and are subject to review
only under the clear error rule of Fed. R. Civ. P. 52(a).

Parks

v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154, 159 (5th Cir.
1983) (quotation marks omitted) (applying standard in admiralty
case).

A finding is clearly erroneous when, although there is

evidence to support the finding, the reviewing court considering
all the evidence is “left with a definite and firm conviction
that a mistake has been committed.”

Evergreen Int’l, S.A. v.

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

defendants
expert

standard of care.

or

contend

that

otherwise,

We disagree.

9

present

record

establishing

a

contains

breach

of

no
the

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Both Hines and his expert witness, Captain Donald Davis,
provided evidence from which the district court could conclude
that the defendants breached the standard of care.

Using data

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

that

waves

in

the

area

of

Hines’

accident

varied

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

Davis also testified that, given the wind conditions

and the geography of the inlet, the interval of time between
waves would have shortened as the Triton approached the area of
the accident.

Davis opined that under these conditions, vessels

of

and

the

size

configuration

of

the

Triton

should

have

proceeded at idle speed and have approached the oncoming waves
at an angle.

Davis further concluded that the act of operating

the boat at speeds between 15 and 20 miles per hour “straight
over” a wave constituted a failure to exercise due care.
In challenging Davis’ conclusion, the defendants focus on a
single

statement

that

Davis

made

during

cross-examination.

During their questioning, the defendants asked Davis whether he
still would have concluded that Hyde failed to exercise due care
if Hines had not suffered an injury.

Davis replied, “[P]robably

not.”
When the defendants raised this issue before the district
court, the court observed that the defendants successfully had
elicited testimony from Davis that, absent the injury, he would
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not have concluded that Hyde had failed to exercise due care.
However, the court further observed that Davis had rehabilitated
his

testimony

by

opining

that

all

the

factors

involved,

including Hyde’s navigation of the Triton under the prevailing
conditions, contributed to his conclusion that Hyde breached the
applicable standard of care.
We

hold

that

Davis’

expert

opinion,

when

considered

together with Hines’ testimony, provided sufficient evidence to
support

the

district

court’s

conclusion

breached the standard of care.

that

the

defendants

Hines testified regarding the

height of the waves, the orientation of the vessel relative to
the oncoming waves, and the porpoising that caused the bow of
the Triton to leave the surface of the water.

Additionally,

Davis testified that in view of the conditions present during
the small craft advisory, the proper operation of a vessel the
size of the Triton required that the boat be operated at idle
speed

and

approach

oncoming

waves

at

an

angle.

Given

this

testimony, we cannot say that we are “left with a definite and
firm conviction that a mistake has been committed.”

Id. at 308.

B.
The defendants next raise a number of challenges to the
district
defendants

court’s
contend

findings
that

the

regarding
evidence

Hines’
did

not

damages.
establish

The
that

Hines was unable to return to work, and that objective evidence
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in the record clearly refuted the court’s finding that he was
totally
failed

disabled.
to

The
his

mitigate

defendants
damages,

also
and

maintain

challenge

that
the

Hines

court’s

determination concerning Hines’ pain and suffering.
1.
The

defendants

advance

three

reasons

to

support

their

contention that the district court clearly erred in concluding
that Hines was unable to return to work.
that

the

medical

healed,

that

continuing

evidence

Hines

pain,

established

The defendants assert
that

provided
that

and

insufficient
court

the

did

Hines’

ankle

evidence

not

give

of

had
his

sufficient

weight to a surveillance video, which showed Hines engaging in
various

post-injury

activities.

We

find

no

merit

in

these

arguments.
First, although Dr. Boyette testified that Hines’ ankle had
healed from the original trauma he sustained, she nevertheless
concluded

that

Hines’

left

ankle

has

impairment as a result of his injury.
supported

the

district

court’s

a

20

percent

Therefore, the evidence

conclusion

that

Hines

from a disability that will never completely “heal.”
further

found

that

in

addition

to

permanent

the

permanent

suffers

The court
structural

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

pain

he

has

suffered

as

a

result

of

the

injury.

Although the defendants produced evidence from other witnesses
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expressing contrary opinions regarding the permanent nature of
Hines’ injury, the district court acted within its discretion in
crediting

the

testimony

of

Hines’

experts

over

that

of

the

defendants’ experts.
Second, Hines’ inability to return to work was supported by
his own testimony concerning his degree of pain and suffering.
Contrary to the defendants’ suggestion, this type of testimony
is not inherently weak simply because it rests on an injured
party’s own subjective assessment of pain.
necessarily

is

measurement.

subjective

and

defies

any

Such an assessment
objective

means

of

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

testified that Hines will require pain management for the rest
of his life, that opioids were the only form of medication that
provided Hines sufficient relief, and that Hines’ pain would
progressively

worsen.

Although

the

defendants

produced

testimony from other witnesses that, if believed, would have
undermined this testimony from Dr. Long and Hines, such issues
of credibility were properly resolved by the district court as
the finder of fact.
The

defendants

argue,

nonetheless,

that

certain

surveillance footage taken of Hines after the accident shows
that the district court clearly erred in determining that Hines
is totally disabled.

Citing our decision in Nicholson v. Mullis

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

surveillance

assert

footage

that

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the

justifies

objective

a

nature

relaxation

of

of

the

the
usual

deference that we accord to a district court’s factual findings,
including the district court’s conclusion here that Hines is
totally disabled.
The defendants’ argument is unpersuasive, however, because
it essentially asks us to reweigh one piece of evidence and to
afford

it

more

weight

than

did

the

district

court.

After

considering all the evidence, the district court determined that
Hines’ disability results from his chronic ankle pain, which can
be managed effectively only by the use of narcotics.
the

surveillance

because
recorded

the

video

video

could

fails

not

have

does
to

not

undermine

demonstrate

been

performed

this

that
by

a

Moreover,
conclusion,

the

activities

person

having

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

Therefore, based on our review of the record,

we are not “left with a definite and firm conviction that a
mistake has been committed” with regard to the district court’s
disability determination.

Evergreen Int’l, 531 F.3d at 308.

Accordingly, we conclude that the district court did not clearly
err

in

determining

that

Hines’

injury,

pain,

and

necessary

medications prohibit him from pursuing gainful employment.

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2.
The defendants also challenge the district court’s decision
awarding Hines $900,000 in compensatory damages for future pain
and

suffering.

They

contend

it

was

that

not

this

based

award

clearly

sufficient

on

was

medical

erroneous

because

evidence.

We disagree with the defendants’ argument.

As described above, Dr. Boyette testified that Hines has a
20 percent permanent impairment of his left ankle, and Dr. Long
testified

that

Hines’

pain

increase

progressively

in

resulting
the

from

future.

that

injury

Therefore,

will
Hines

presented evidence sufficient to support the district court’s
conclusion

that

he

will

continue

to

experience

pain

and

suffering.
The

defendants

argue,

however,

that

the

amount

of

the

court’s award for future pain and suffering exceeds the bounds
of reason and is punitive in nature.

We are not persuaded by

this argument.
Trial

courts

retain

“great

latitude”

in

assessing

the

proper amount of damages that should be awarded to an injured
party.

Parks, 712 F.2d at 160.

necessarily
observations

depends
of

the

in

An award for pain and suffering

large

measure

witnesses

and

on

the

determinations regarding their testimony.

the

trial

court’s
Id.

court’s

credibility

On the record

before us, we cannot conclude that the district court committed
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error

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in

awarding

Hines

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$900,000

for

future

pain

and

suffering.
3.
The defendants also argue that the district court committed
clear error in its award of damages, because the evidence showed
that

Hines

failed

to

mitigate

his

damages.

The

defendants

contend that undisputed medical evidence showed that Hines could
alleviate some of his pain by losing weight and by using his
cane

in

a

different

manner.

These

remedial

actions,

the

defendants contend, could minimize the stress on Hines’ ankle,
possibly to the extent that he would no longer require narcotics
for pain management.

The defendants assert that without the

cognitive impairment caused by narcotics, Hines may be able to
resume gainful employment.
We reject this argument, because it is purely speculative
in nature.

There is no evidence in the record to support the

defendants’

contention

that

if

Hines

took

the

steps

they

suggest, his pain would decrease to a level that he would no
longer require the use of narcotics.
C.
The

defendants

also

contend

that

the

district

court

committed reversible error in barring them from cross-examining
Hines about the income he receives from disability insurance.
We disagree.
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We

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examine

the

district

abuse of discretion.
(4th

Cir.

Pg: 17 of 21

court’s

evidentiary

ruling

for

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

2011).

Before

trial,

Hines

requested

that

the

district court prohibit the admission of evidence of payments
from collateral sources.
sought

to

introduce

The defendants responded that they

evidence

of

Hines’

income

received

from

disability insurance to challenge his credibility, rather than
to show that he was receiving income from other sources as a
result of his injury.

The defendants argued that such evidence

would show that Hines had no incentive to return to the practice
of medicine.
With respect to the motion in limine, the district court
observed that “it’s pretty clear that evidence by defendant[s]
of

collateral

source

payments

are

not

permissible.”

Nevertheless, the court allowed the defendants to cross-examine
Hines

about

the

information

insurance application.

he

provided

on

his

disability

In sustaining Hines’ objection to the

defendants’ attempt to question him about income he received
from such insurance, the court ruled that the defendants “can go
into what he made on the applications, but what he’s getting [in
the form of insurance proceeds] is irrelevant.”
The defendants were permitted to question Hines regarding
his multiple insurance policies, and they did so.
restriction

imposed

on

the

defendants’
17

questioning

The only
was

their

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ability to inquire about the actual amounts Hines was being paid
based on his insurance policies.

Under these circumstances, we

conclude that the district court did not abuse its discretion in
limiting the defendants’ cross-examination in this regard.
D.
The

district

court,

in

an

exercise

of

its

discretion,

applied the North Carolina statutory rate of eight percent 4 in
calculating its award of prejudgment interest.

The defendants

argue that the court’s application of this rate was unfairly
punitive, and that, compared to the prevailing market rate of
interest during the time period covering this award, the use of
the North Carolina rate resulted in a windfall for Hines.
We review an award of prejudgment interest for abuse of
discretion.

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

Cir. 2006) (applying standard in admiralty case).

“The award of

prejudgment interest in admiralty cases rests within the sound
discretion of the district court.”

Ameejee Valleejee & Sons v.

M/V Victoria U., 661 F.2d 310, 313-14 (4th Cir. 1981).
Under maritime law, an award of prejudgment interest is
“the rule rather than the exception, and, in practice, is well-

4

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

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nigh automatic.”

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U.S. Fire Ins. Co. v. Allied Towing Corp., 966

F.2d 820, 828 (4th Cir. 1992) (quoting Reeled Tubing, Inc. v.
M/V Chad G, 794 F.2d 1026, 1029 (5th Cir. 1986)).

In setting

the proper rate of prejudgment interest, admiralty courts “have
broad discretion and may look to state law or other reasonable
guideposts

indicating

a

fair

level

of

compensation.”

Todd

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

1985)

(applying

Louisiana

statutory

rate);

see

also Ameejee, 661 F.2d at 313-14 (“district courts are not bound
by state statutory maximums in setting the rate of prejudgment
interest in admiralty cases”).
The

defendants

cite

a

number

of

cases

from

around

the

country in which our sister circuits have reversed awards of
prejudgment interest.

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

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

However, such reversals

generally have occurred because the district courts failed to
provide
Other

adequate

appellate

reasoning
decisions

for
have

the

rates

vacated

selected.

trial

courts’

See
use

id.
of

certain interest rates because the methods of calculating the
rates were unsound.

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

Standard Bank & Trust, 172 F.3d 472, 480 (7th Cir. 1999).
In the present case, the district court, located in North
Carolina and hearing a personal injury case arising within its
admiralty jurisdiction, expressly elected to employ the North
19

Appeal: 11-1052

Doc: 56

Carolina

Filed: 07/09/2012

statutory

rate.

We

Pg: 20 of 21

decline

to

hold

that

that

the

such

an

election constitutes an abuse of discretion.
The

defendants

assert,

nevertheless,

district

court’s determination was inconsistent with other calculations
made by the court, creating a discrepancy that constituted an
abuse of discretion.

The defendants argue that the court’s use

of

rate

an

eight

percent

for

the

prejudgment

interest

award

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

arriving

at

the

“present

value”

determination

amounts of damages to be incurred in the future.

regarding

We disagree

with the defendants’ argument.
In reaching its “present value” determination, the district
court adopted the damages calculation presented by Hines’ expert
witness.
4.11

It was only in this manner that the court employed the

percent

calculations

rate.
does

The

not

court’s

render

adoption

invalid

the

of

that

court’s

witness’

independent

election of the statutory rate for the assessment of prejudgment
interest.

Additionally, the determination of the 4.11 percent

discount rate, to convert future dollars into present dollars,
involved

a

fundamentally

different

task

than

the

one

of

assessing interest on dollars remaining within the defendants’
control from the date of the accident.
that

the

district

court

did

not

20

abuse

Accordingly, we hold
its

discretion

by

Appeal: 11-1052

Doc: 56

employing

Filed: 07/09/2012

two

different

Pg: 21 of 21

interest

rates

in

making

the

two

did

not

distinctly different types of calculations.

III.
In

conclusion,

we

hold

that

the

district

court

clearly err with respect to any of its factual findings or its
awards of damages.

We also conclude that the district court did

not abuse its discretion with regard to its evidentiary rulings,
or

by

using

calculating

the
the

North

Carolina

court’s

award

statutory
of

interest

prejudgment

rate

in

interest.

Accordingly, we affirm the district court’s judgment.
AFFIRMED

21