Richard Bosarge v. Cheramie Marine, L.L.C.
Filing
UNPUBLISHED OPINION FILED. [16-30187 Affirmed] Judge: CDK, Judge: PRO, Judge: CH. Mandate pull date is 01/31/2017 [16-30187]
Case: 16-30187
Document: 00513829423
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Date Filed: 01/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30187
United States Court of Appeals
Fifth Circuit
FILED
January 10, 2017
RICHARD BOSARGE,
Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
CHERAMIE MARINE, L.L.C.,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CV-2153
Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Richard Bosarge sued his employer, Cheramie Marine, L.L.C.
(“Cheramie Marine”), under the Jones Act, 46 U.S.C. § 30101 et seq., for
negligence and for maintenance and cure after allegedly sustaining serious
injuries on a voyage of the M/V MR. BENITO, one of Cheramie Marine’s utility
vessels.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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The jury entered a take nothing verdict on Bosarge’s claims. Adopting
the jury’s verdict, the trial court subsequently entered final judgment. Bosarge
now appeals. We AFFIRM.
I.
Bosarge applied to work at Cheramie Marine in 2014. As part of a preemployment physical, he was asked whether he had any prior back pain or
injury.
Bosarge responded in the negative, despite the fact that he had
previously sought medical care to help with back pain. Eventually, Cheramie
Marine hired him as a relief captain. On July 18, 2014, Bosarge was on the
M/V MR. BENITO.
At trial, he testified that, as a result of the Master
Captain’s decision to travel through high waves, Bosarge was injured. He
described the events as follows: while he was in his bunk, the vessel “hit a real
big wave and [he] came up out the bed and [] was slammed down [and that he]
[p]robably came off the bed about two-foot . . . and slammed down.”
Cheramie Marine, however, presented evidence that the waves were not
violent. It also showed that Bosarge made statements that he did not fall and
that he thought his back was hurting from being seasick. In fact, the Master
Captain testified that Bosarge did not report having any sort of accident at all.
Based on this day’s events, Bosarge sued Cheramie Marine. At trial,
Cheramie Marine’s medical expert testified about two MRI film studies of
Bosarge’s back. In doing so, he compared a pre-injury MRI film of Bosarge’s
back with a post-injury MRI film of the same area, concluding that the preinjury MRI looked worse than the post-injury MRI.
After trial, the jury entered a take nothing verdict on Bosarge’s claims.
The verdict form stated:
(1) Do you find from a preponderance of the evidence that
Plaintiff Richard Bosarge had an accident on July 18, 2014?
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(5) Do you find from a preponderance of the evidence that
when he applied for employment with Defendant Cheramie
Marine, the Plaintiff Richard Bosarge intentionally
misrepresented or concealed material medical facts during
his pre-employment medical examination and interview
process, and that the facts which were concealed were
causally linked to the injuries he suffered while in the
service of the vessel, the M/V MR. BENITO?
The jury responded “no” to Question One and “yes” to Question Five. The
trial court subsequently entered final judgment, adopting the jury’s verdict.
Bosarge did not file a motion for judgment as a matter of law or a motion for
new trial.
II.
Appellate review for sufficiency of the evidence is not available if the
appellant files neither a motion for judgment as a matter of law nor a motion
for new trial. Price v. Rosiek Constr. Co., 509 F.3d 704, 707 (5th Cir. 2007)
(citing Unitherm Food Sys. Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 404
(2006)).
“We review challenges to jury instructions for abuse of discretion and
afford the trial court great latitude in the framing and structure of jury
instructions.” Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 240 (5th
Cir. 2014) (citing United States v. Carrillo, 660 F.3d 914, 925–26 (5th Cir.
2011)). “[Jury] instructions need not be perfect in every respect provided that
the charge in general correctly instructs the jury, and any injury resulting from
the erroneous instruction is harmless.” Id. (quoting Rogers v. Eagle Offshore
Drilling Servs., Inc., 764 F.2d 300, 303 (5th Cir. 1985)). However, “[i]f a party
does not object, this court reviews jury instructions for plain error.” In re Isbell
Records, Inc., 774 F.3d 859, 870 (5th Cir. 2014) (citing Duvall v. Dallas County,
631 F.3d 203, 206 (5th Cir. 2011); Dahlen v. Gulf Crews, Inc., 281 F.3d 487,
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494 (5th Cir. 2002). Because Bosarge objected to the instructions at trial, this
court evaluates Bosarge’s challenge for abuse of discretion.
Furthermore, “appellate review of the [t]rial [c]ourt’s use of special
interrogatories is confined to whether such use was an abuse of discretion.”
Bryan v. Cargill, Inc., 723 F.2d 1202, 1204 (5th Cir. 1984) (citations omitted);
see also Seymore v. Penn Mar. Inc., 281 F. App’x 300, 302 (5th Cir. 2008). 1
“We apply an abuse of discretion standard when reviewing evidentiary
rulings. If an abuse of discretion is found, the harmless error doctrine is
applied.
Thus, evidentiary rulings are affirmed unless the district court
abused its discretion and a substantial right of the complaining party was
affected.” Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 581 (5th Cir.
2004) (quoting Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 660
(5th Cir. 2002), overruled on other grounds by Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53 (2006)). “A trial court abuses its discretion when it bases
its decision on an erroneous view of the law or a clearly erroneous assessment
of the evidence.” United States v. Caldwell, 586 F.3d 338, 341 (5th Cir. 2009)
(citation omitted). “An error does not affect substantial rights ‘if the court is
sure, after reviewing the entire record, that the error did not influence the jury
or had but a very slight effect on its verdict.’” Kelly v. Boeing Petroleum Servs.,
Inc., 61 F.3d 350, 361 (5th Cir. 1995) (quoting EEOC v. Manville Sales Corp.,
27 F.3d 1089, 1094 (5th Cir. 1994)).
III.
A.
Bosarge brought a claim for maintenance and cure to recover for injuries
that he allegedly sustained while on board the M/V MR. BENITO. He now
Although Seymore is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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challenges the jury’s finding, arguing that there is no evidence to support the
verdict. However, Bosarge admits that he did not move for directed verdict,
new trial, or judgment notwithstanding the verdict.
We have clearly stated that appellate review of the sufficiency of the
evidence is not available if the appellant files neither a motion for judgment as
a matter of law nor a motion for new trial. Price, 509 F.3d at 707 (citing
Unitherm, 546 U.S. at 404); see also OneBeacon Ins. Co. v. T. Wade Welch &
Assocs., 841 F.3d 669, 676 (5th Cir. 2016); Singleton v. Thompson, 294 F. App’x
943, 944–45 (5th Cir. 2008). Therefore, because Bosarge filed neither a motion
for judgment as a matter of law nor a motion for new trial, we do not review
his sufficiency of the evidence arguments. 2
B.
Bosarge next argues that the district court erred in its drafting of the
jury charge. Specifically, he challenges Question One of the jury verdict form:
“(1) Do you find from a preponderance of the evidence that Plaintiff Richard
Bosarge had an accident on July 18, 2014?” The jury responded “no.” Bosarge
Even if we were to evaluate Bosarge’s sufficiency of the evidence arguments under
plain error review, however, we find that there was evidence presented to support the jury’s
verdict. See McLendon v. Big Lots Stores, Inc., 749 F.3d 373, 374 n.2 (5th Cir. 2014) (not
designated for publication) (collecting cases decided after Unitherm, explaining that some
cases used a plain error review and noting “the question under plain error is whether any
evidence exists to support the jury award.” (citations omitted)). Cheramie Marine presented
evidence showing that the question from the pre-employment physical was rationally related
to Bosarge’s ability to perform the job of relief captain and that Cheramie Marine would not
have hired Bosarge if it had known of his prior injuries. See Jauch v. Nautical Servs., Inc.,
470 F.3d 207, 212 (5th Cir. 2006) (footnotes omitted) (citing McCorpen v. Cent. Gulf S.S.
Corp., 396 F.2d 547, 548–49 (5th Cir. 1968)). Specifically, a nurse practitioner who conducted
Bosarge’s physical testified that, if he had disclosed the injury, some kind of further
evaluation would have been necessary before Bosarge would have been allowed to work at
Cheramie Marine. Although this evidence does not show how long such a hold would take, a
fact finder could have made a reasonable inference that the hold would be long enough to
have delayed Bosarge’s hiring so that he would not have boarded the M/V MR. BENITO the
day of the alleged injury. In fact, it appears that less than a month passed between the date
Bosarge filled out the medical questionnaire and the date of the alleged injury.
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contends that the word “accident” confused the jury because it potentially
connotes an event that occurs without fault. Bosarge also suggests that the
question’s use of the words, “an accident,” was confusing because it referred to
a singular event, rather than the several alleged events that injured Bosarge,
including being slammed from his bed and being tossed violently throughout
the bunks. Lastly, Bosarge contends that the issue of whether an incident
occurred is subsumed within the Fifth Circuit Pattern Jury Charge
Instructions, and therefore, no separate question about “an accident” was
needed.
Whether an accident occurred is typically subsumed within the
negligence instruction and its corresponding special interrogatory.
See
Seymore, 281 F. App’x at 302. However, a district court’s decision not to use
the Pattern Jury Instructions is not reason alone to overturn the verdict.
“Although it is good practice to do so, trial judges need not follow the Pattern
Jury Instructions promulgated by the United States Fifth Circuit District
Judges Association.” United States v. Hunt, 794 F.2d 1095, 1099 (5th Cir.
1986).
Furthermore, the district court here, for the most part, did give
verbatim instructions from the Fifth Circuit Pattern Jury Instructions.
This court applies the Dreiling factors to determine whether the district
court’s use of a special interrogatory was an abuse of discretion: “(i) whether,
when read as a whole and in conjunction with the general charge the
interrogatories adequately presented the contested issues to the jury,
(ii) whether the submission of the issues to the jury was ‘fair’, and (iii) whether
the ‘ultimate questions of fact’ were clearly submitted to the jury.” Dreiling v.
Gen. Elec. Co., 511 F.2d 768, 774 (5th Cir. 1975) (citations omitted). Based on
an application of these factors, the district court did not abuse its discretion.
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Although the word “accident” may sometimes imply an event that
occurred without fault, Merriam Webster’s also defines it as “an unfortunate
event resulting esp. from carelessness or ignorance.”
Accident, MERRIAM
WEBSTER’S COLLEGIATE DICTIONARY 7 (10th ed. 1994). This definition tracks
closely with the definition of negligence in the Fifth Circuit Pattern Jury
Instructions and the concept of negligence in general. COMM. ON PATTERN
JURY INSTRUCTIONS, DISTRICT JUDGES ASSOC., FIFTH CIRCUIT, PATTERN JURY
INSTRUCTIONS (CIVIL CASES) 43, 47 (2014) (“Negligence is doing an act that a
reasonably prudent person would not do, or failing to do something that a
reasonably
prudent
person
would
do,
under
the
same
or
similar
circumstances.” . . . . “The accident must be the cause of the injury.”); W. PAGE
KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 169 (5th ed. 1984)
(“In most instances, [negligence] is caused by heedlessness or inadvertence
. . . . ”). Furthermore, Bosarge has put forth no support—in this instance or in
general—that a layperson’s use of the word, “accident,” assumes that no one is
at fault (indeed, most people would refer to an automobile collision as an
“accident” without suggesting that no one was at fault). Similarly, the notion
that “an accident” was somehow misleading here is equally unavailing. The
series of events he claims were all part of one incident not separated in time.
Therefore, a jury finding that no accident occurred in this case is effectively
concluding, as Cheramie Marine argued at trial, that no injury-causing
incident occurred. Indeed, the question does not appear to have confused the
jury, but rather, the jury appears to have believed this defense: during
deliberations, the jury sent a question to the court that said, “[w]e believe the
plaintiff intentionally misrepresented or concealed medical facts, however, do
not believe that an injury occurred. Confusion?” This question about the
McCorpen Defense interrogatory further supports the conclusion that the jury
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did not believe that any injury-causing incident occurred on the date in
question.
Given the broad discretion district courts have to draft jury instructions,
we find no reversible error in the district court’s decision to ask whether
Bosarge “had an accident” because, when read in conjunction with the rest of
the instruction, Question One adequately and fairly presented the issue of
liability to the jury. See Dreiling, 511 F.2d at 774.
C.
Bosarge next argues that the district court erred in allowing Cheramie
Marine’s expert to offer his opinions about a pre-incident MRI film study
because the actual MRI film (Bosarge’s own medical record) was not produced
to Bosarge prior to trial. However, the expert report that was disclosed seven
months earlier referred to the same comparison to which the expert testified
at trial. The district court weighed the effect of the non-disclosure against the
matters that were disclosed and ruled that the expert would be permitted to
testify consistently with the timely expert report but that the MRI films
themselves would not be admitted.
“District courts enjoy wide latitude in determining the admissibility of
expert testimony . . . .” Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir.
2006) (quoting Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997); see
also Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563–64 (5th
Cir. 2004) (quoting Tex. A&M Research Found. v. Magna Transp., Inc., 338
F.3d 394, 402 (5th Cir. 2003)). Given this wide latitude, we conclude that the
district court did not err in this regard.
AFFIRMED.
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