Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-1998

Wilburn v. Maritrans GP Inc
Precedential or Non-Precedential:

Docket 97-1012




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Filed March 10, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1012

MICHAEL T. WILBURN,
       Appellant

v.

MARITRANS GP INC.
       Appellee

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-2806)

Argued October 23, 1997

BEFORE: MANSMANN, GREENBERG AND ALARCON1 ,
Circuit Judges

(Filed: March 10, 1998)



_________________________________________________________________

1. Honorable Arthur L. Alarcon, United States Senior Circuit Judge for
the Ninth Circuit, sitting by designation.
       Leonard C. Jaques
       Donald A. Krispin
       Michael J. Connor (argued)
       Cynthia J. Sherburn
       Jaques Admiralty Law Firm
       1370 Penobscot Building
       Detroit, MI 48226

        Attorneys for Appellant

       Stuart M. Goldstein (argued)
       Hollstein, Keating, Cattell
       Johnson & Goldstein
       1030 Laurel Oak Road, Ste. 2
       Voorhees, NJ 08043

        Attorney for Appellee

OPINION OF THE COURT

ALARCON, Circuit Judge.

Michael T. Wilburn ("Wilburn") was injured when he was
swept off the deck of the tug, the Enterprise, by a huge
wave during a storm. He filed an action against his
employer, Maritrans GP Inc. ("Maritrans") to recover
damages for negligence pursuant to the Jones Act, 46
U.S.C. S 688, and for the unseaworthiness of the Enterprise
under general maritime law.

At trial Wilburn did not present any expert testimony in
support of his theories of liability. The jury found that
Maritrans was negligent and that the Enterprise was
unseaworthy. The district court granted Maritrans's
motions for judgment as a matter of law and for a new trial
on the basis that the evidence was insufficient because
Wilburn failed to present expert testimony. The court ruled
that the facts and circumstances of the case were beyond
the common knowledge and experience of the jurors. The
court also found that the evidence was insufficient to
support the jury's award of damages.

                                  2
We conclude that an expert's testimony was not required
to support the jury's finding of liability as to one of
Wilburn's theories of negligence. The failure to require the
jury to return special verdicts, however, precludes us from
determining which theory or theories of negligence and
unseaworthiness were adopted by the jury. We also hold
that the district court erred in excluding lay opinion
testimony. Accordingly, we reverse the judgment as a
matter of law and we affirm the district court's order
granting a new trial as to liability. Regarding damages, we
hold that the evidence was sufficient to show a narrowing
of Wilburn's economic opportunities, however, it was
insufficient to support the jury's award of damages. We
therefore reverse the district court's judgment as a matter
of law and affirm the order granting a new trial with respect
to damages.

I

ISSUES ON APPEAL

Wilburn seeks reversal of the district court's orders on
the following grounds:

One. The district court abused its discretion in
precluding lay witnesses from presenting opinion testimony
based on facts within their personal knowledge.

Two. The district erred as a matter of law in ruling that
expert testimony was required because a rational jury could
not comprehend the primary facts and draw a correct
conclusion regarding whether the captain of the Enterprise
acted negligently and whether the Enterprise was
seaworthy.

Three. The district court erred in concluding that the
evidence was insufficient to support the jury's award of two
million dollars in damages.

We discuss each contention and the facts pertinent
thereto under separate headings.

                                3
II

LIABILITY

A. Judgment as a Matter of Law

During trial, Wilburn's counsel requested the court's
permission to introduce the lay opinion of Charles Stanley,
the barge captain, and Wilburn regarding the cause of
Wilburn's injuries based on their experience working on
tugs and barges. Maritrans's counsel objected on the
ground that Wilburn and Stanley had not been listed or
identified as experts as required by Rule 26(a)(2)(A) of the
Federal Rules of Civil Procedure. Defense counsel argued
that Stanley and Wilburn's opinion testimony was
precluded by the court's April 18, 1996 pretrial order. The
order reads as follows:

       IT IS HEREBY ORDERED that plaintiff is precluded
       from offering at the time of trial of this matter, any
       expert opinions and other expert evidence which have
       not been provided to defendant by March 15, 1996.

The order was issued in response to Maritrans's motion to
compel discovery filed on November 20, 1995 and its
January 23, 1996 motion in limine for an order precluding
Wilburn from offering any expert opinions or other expert
evidence.

The district court sustained Maritrans's objection to the
introduction of the opinions of Wilburn's lay witnesses
because they had not been listed as experts in response to
the district court's pre-trial order. In so ruling, the district
court appears to have concluded that Rule 26(a)(2)(A) of the
Federal Rules of Civil Procedure compels disclosure of the
fact that an identified lay witness will also testify regarding
his or her opinion concerning a fact in issue. To the extent
that the district court's exclusion of the opinions of lay
witnesses was based on an interpretation of Rule
26(a)(2)(A), our review is plenary. See International Union,
UAW v. Mack Trucks, Inc., 

, 110 (3d Cir.
1990). We must also decide whether the district court's
ruling was consistent with Rule 701 of the Federal Rules of

                                 4
Evidence. We review independently a district court's
interpretation of Rule 701. See Asplundh Mfg. Div. v. Benton
Harbor Eng'g, 

, 1194 (3d Cir. 1995); U.S. v.
Furst, 

, 571 (3d Cir. 1989).

Pursuant to Rule 26(a), a party must disclose certain
evidence to the other parties in the action without awaiting
a discovery request. A party is expressly required to
disclose "the identity of any person who may be used at
trial to present evidence under Rules 702, 703, or 705 of
the Federal Rules of Evidence." Fed. R. Civ. P. 26(a)(2)(A). "If
a party fails to make a disclosure required by Rule 26(a),
any other party may move to compel disclosure and for
appropriate sanctions." Fed. R. Civ. P. 37(a)(2)(A).

Rule 702 of the Federal Rules of Evidence provides as
follows:

       If scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence
       or determine a fact in issue, a witness qualified as an
       expert by knowledge, skill, experience, training, or
       education, may testify thereto in the form of an opinion
       or otherwise.

Fed. R. Evid. 702. Wilburn and Stanley were not called by
the plaintiff to testify as expert witnesses. Wilburn's
counsel informed the district court that as lay witnesses
"[t]hey will render opinion evidence about this situation,
but they are not experts. They have not been retained as
such nor are they specially in this case, because they give
expert testimony."

Rule 701 of the Federal Rules of Evidence permits a lay
witness to provide opinion evidence. Rule 701 states:

       If the witness is not testifying as an expert, the
       witness' testimony in the form of opinions or inferences
       is limited to those opinions or inferences which are
       (a) rationally based on the perception of the witness
       and (b) helpful to a clear understanding of the witness'
       testimony or the determination of a fact in issue.

Fed. R. Evid. 701.

Rule 701 permits evidence that is considered " `shorthand
renditions' of a total situation, or . . . statements of

                               5
collective facts." Asplundh at 1196 (internal quotation
marks and citations omitted). These are situations where
"the differences between fact and opinion blur and it is
difficult or cumbersome for the examiner to elicit an answer
from the witness that will not be expressed in the form of
an opinion." 

There is, however, a trend towards an even more liberal
construction of Rule 701. "[Rule 701] jurisprudence has
expanded beyond this core area to permit lay persons to
express opinions that are not shorthand statements of fact,
so long as the personal knowledge, rational basis, and
helpfulness standards of Rule 701 are met." 

basis prong requires that the witnesses' opinion be
"grounded in either experience or specialized knowledge."
Asplundh Mfg. Div. v. Benton Harbor Eng'g, 

,
1198 (3d Cir. 1995).

Today, "[a] lay witness with first hand knowledge can
offer an opinion akin to expert testimony in most cases, so
long as the trial judge determines that the witness
possesses sufficient and relevant specialized knowledge or
experience to offer the opinion." 

"The
essential difference between [Rule 701 and 702 testimony]
. . . is that a qualified expert may answer hypothetical
questions." Teen-Ed, Inc. v. Kimball Int'l Inc., 

,
404 (3d Cir. 1980). Moreover, Rule 704 of the Federal Rules
of Evidence authorizes the admission of the opinion of lay
witnesses regarding the ultimate issues to be decided by
the trier of fact. Fed. R. Evid. 704.

Rule 26(a)(2) of the Federal Rules of Civil Procedure does
not require a party to provide the name of any person who
may be used at trial to present evidence under Rule 701.
Because disclosure of a lay witness's opinion testimony is
not required by Rule 26(a)(2)(A), the district court lacked
the power to sanction Wilburn solely because he failed to
disclose the fact that he and Stanley would be testifying
regarding their opinions as to a fact in issue.

This court confronted a similar   situation in Teen-Ed, Inc.
v. Kimball Int'l Inc., 

(3d Cir. 1980). In Teen-
Ed, the district court rejected   a lay witness's opinion
testimony because the appellant   failed to identify him

                                  6
before trial as an expert witness. See 

This court
noted that the district court "failed to distinguish between
opinion testimony which may be introduced by lay
witnesses and that which requires experts." 

In
reversing the district court's ruling, this court held as
follows: "We interpret the pre-trial ruling in this case to
have required identification of expert witnesses under Rules
702 and 703, but not of lay witnesses under Rule 701." 

The district court also erred in failing to determine
whether Wilburn and Stanley, as percipient witnesses to
the events that occurred before Wilburn was tossed from
the deck of the Enterprise by a gigantic wave, possessed the
requisite knowledge or experience to provide opinion
testimony.

The district court's error in excluding the opinions of lay
witnesses prevented Wilburn from presenting evidence in
support of his theories that the negligence of an employee
of Maritrans and the unseaworthiness of the Enterprise
were the direct cause of his injuries. A defendant is not
entitled to a judgment as a matter of law on the basis that
the evidence is insufficient if the trial court has erroneously
excluded relevant and admissible evidence. See Scott v.
Plante, 

, 136 (3d Cir. 1981), vacated on other
grounds, 

(1982). Accordingly, we must
reverse the judgment as a matter of law, entered pursuant
to Rule 50(b) of the Federal Rules of Civil Procedure,
regarding Maritrans's liability for negligence and
unseaworthiness.

B. Motion for a New Trial

Our reversal of the order granting judgment as a matter
of law requires us to consider the district court's
conditional grant of a new trial pursuant to Rule 50(c)(1).
Wilburn contends that the district court erred in
concluding as a matter of law that the evidence regarding
liability was insufficient because of his failure to present a
maritime expert to prove negligence and unseaworthiness.
Wilburn disputes the district court's finding that "the facts
and circumstances presented in this case were beyond the

                               7
realm of knowledge and experience of the jurors." This
court exercises plenary review when the grant of a motion
for new trial is based on the application of a legal precept.
See Starceski v. Westinghouse Elec. Corp., 

,
1095 (3d Cir. 1995).

"The duty of the vessel owner to furnish a reasonably
safe place for a seaman . . . to perform his chores is clearly
a duty of care, the breach of which results in liability for
negligence . . . ." Earles v. Union Barge Line Corp., 

, 1104 (3d Cir. 1973). Under the Jones Act, an
employer is liable for injury suffered by a seaman through
the negligence of the employer or a fellow employee. See
Barnes v. Andover Co., L.P., 

, 634 (3d Cir.
1990) (citing De Zon v. American President Lines, 

(1943)). As the district court instructed the jury,
"negligence requires the defendant to guard against those
risks or dangers of which it knew, or by the exercise of due
care, should have known. . . . [T]he defendant's duty is
measured by what a reasonably prudent person would
anticipate or foresee resulting from particular
circumstances." The standard of proof for causation is
relaxed in cases filed pursuant to the Jones Act. Causation
is satisfied if "the proofs justify with reason the conclusion
that employer negligence played any part, even the
slightest, in producing the injury . . . ." Rogers v. Missouri
Pacific R.R. Co., 

, 506 (1957).

The evidence established the following facts concerning
the events that occurred aboard the Enterprise on
November 9, 1992. On that date, Wilburn was employed as
an able-bodied tankerman ("AB tankerman") on the
Enterprise. The Enterprise was en route from Corpus
Christi, Texas to New York. It was pushing the Ocean 262,
a 590 foot barge. The barge was loaded with crude oil.

Pushing is the most efficient method of transporting
cargo in a tug-barge configuration in fair weather. In that
setup, the bow of the tug is inserted in a deep, v-shaped
notch in the stern of the barge. Lines are used to secure the
tug's bow to the barge's stern. In stormy weather, the tug-
barge configuration must be changed so that the tug pulls
the barge using a hawser cable.

                               8
The weather was uneventful on the morning and
afternoon of November 9, 1992 as the Enterprise pushed
the barge north along the coast of Florida. Weather
conditions began to deteriorate steadily in the early evening
hours. By 6:00 p.m., the wind had reached twenty-five to
thirty miles per hour, and the waves were eight to ten feet
high.

At approximately 9:00 p.m., Norval Hearn, the captain of
the Enterprise, contacted the National Weather Service
because it was evident that weather conditions were
worsening. Up until that point, he had been receiving
reports indicating that weather conditions would improve.
For that reason, he did not decide to get out of the notch
earlier. Captain Hearn was informed that the Enterprise
was in the worst possible place it could be in relation to the
storm. At that time, the Enterprise was approximately
seventeen and one-half miles off the Florida coast. Captain
Hearn was advised to leave the area as soon as possible.

After receiving this report, Captain Hearn conferred with
Herb Potter, the chief engineer. Potter informed Captain
Hearn that there was no other choice except to get out of
the notch and switch to a pulling configuration to avoid
tearing up the tug and the barge. The wind was blowing in
one direction and the waves were coming from the opposite
direction. These forces caused the Enterprise to move back
out of the notch and then slam into the barge because the
two vessels were connected together by the Samson line.
The wave action was also causing the tug's fendering
system to ride on top of the combing of the barge. If the tug
twisted in the notch under such circumstances, it could
tear out the side of the Enterprise and cause it to sink.
Potter also testified that while he and Captain Hearn were
discussing exiting the notch, Captain Hearn attempted to
change course in an effort to minimize the impact of the
wave action. In every position he attempted, however, the
conditions got worse.

Captain Hearn testified that he considered going into port
or one of the nearby inlets off the coast. He was concerned,
however, that the easterly weather was causing the seas to
build up close to shore and the tides would be rising,
making the vessels hard to control and navigation unsafe

                               9
through the inlets. He also considered going closer to shore,
but was concerned that the tug would run aground because
of its thirty-six foot six inch draft. At the time of the
incident, the Enterprise was seventeen to twenty miles off-
shore, and the ocean was approximately 876 feet deep at
that distance from shore. Captain Hearn testified that even
though running aground was not an immediate problem, he
didn't think the weather conditions would be any better
closer to shore. Although the weather reports indicated that
conditions at shore might be milder, he didn't trust the
reports because they didn't reflect the extremely bad
weather that the tug was experiencing. Maritrans's weather
expert also testified that the reports received by the
Enterprise did not reflect the weather that the tugboat was
experiencing, but did accurately reflect the weather at
shore.

Captain Hearn also testified that dropping anchor and
waiting out the storm was not a feasible option. Because of
the depth of the ocean, he did not think they had enough
anchor chain. Moreover, the anchor was located on the bow
of the barge and waves were breaking over the bow; it
would have been unsafe to send someone to drop anchor
under those conditions.

Notwithstanding the fact that Captain Hearn had
concluded at approximately 9:00 p.m. that the current
storm conditions compelled switching the Enterprise from
the pushing setup to a towing configuration, he stayed the
course and the Enterprise continued to push northward in
the notch position until 10:40 p.m.. By then, the wind
velocity was forty to fifty miles per hour. The waves had
increased in height to eighteen to twenty-two feet. At that
time, Captain Hearn ordered the crew to back the
Enterprise out of the notch. To carry out this maneuver, it
was necessary to release the Samson line connecting the
tug to the barge. Disconnecting the Samson line can be
accomplished in three ways: It can be released from the
bow of the tug in which case the Samson line will trail
harmlessly behind the barge until it is hauled aboard. It
can be released from the stern of the barge and left
connected to the tug. Because the Samson line can get
caught in the tug's propellers, however, it must be hauled

                               10
aboard the tug by members of the crew using a capstan.
The line can also be released from both vessels and left in
the water; although, this also creates a risk that it will get
caught in the tug's propellers.

Captain Hearn testified that the most prudent choice
during severe storm conditions would be to release the
Samson line from the bow of the tug so that it would trail
behind the barge. This choice would permit the crew to
seek refuge below deck.

There is a conflict in the evidence regarding whether
Captain Hearn ordered the Samson line disconnected from
the tug or the barge. Captain Hearn testified that he
ordered it disconnected from the bow of the tug. Charles
Stanley, the barge captain, testified that Captain Hearn
ordered him to disconnect the Samson line from the stern
of the barge. After members of the crew on board the
Enterprise slacked the Samson line, Stanley disconnected
the line and threw it off the barge. Stanley testified that
Captain Hearn directed him to let the Samson line go.
According to Stanley, Captain Hearn stated: "Lose the line."
Stanley testified that this command meant: "Let it go in the
water. We don't need it; Don't waste any time trying to
collect it." Stanley stated that Captain Hearn changed his
mind, however, and ordered him to "[s]ave the line if you
can." Stanley ordered Bill Shelley, a crew member, to turn
on the capstan located on the bow of the Enterprise in order
to retrieve the Samson line.

Captain Hearn testified that he did not order Stanley to
"lose the line," or detach it from the Enterprise after it had
been released from the barge. Rather, he ordered the
Samson line hauled on board the tug after Stanley failed to
disconnect it in accordance with his instructions. Captain
Hearn issued this order because he was afraid the Samson
line would get caught in the tug's propellers.

Wilburn and other crew members proceeded to assist in
hauling the Samson line aboard the Enterprise. While the
Samson line was being reeled in, the Enterprise went over
a huge wave and then plunged down into another wave. A
wall of water crashed down on the bow of the Enterprise,
lifted Wilburn up, and carried him thirty feet beyond the
side of the tug.

                                11
After Wilburn went overboard, Captain Hearn called the
United States Coast Guard and informed them that they
had a man overboard. As the tug swung back around to
find Wilburn, the crew focused a spotlight on him. After
several attempts to throw Wilburn a life ring, the crew
finally succeeded. A crew member informed Wilburn that a
helicopter would be there in five minutes. The crew was
unaware, however, that the Coast Guard could not send a
cutter to Wilburn because of the heavy seas. Believing he
would only have to wait a short time, Wilburn decided not
to board the tug because he was concerned that he might
be slammed against the hull. In order to avoid that risk to
Wilburn, the crew added another piece of line to the life line
so that Wilburn could swim farther away from the
Enterprise. Despite the extra line, Wilburn was pulled
underwater as the tug reacted to the eighteen to twenty-two
foot waves. The crew was forced to let the line go. Wilburn
began to drift away from the tug to a point where the
spotlight could no longer focus on him. Finally, after being
in the water for two hours, a Coast Guard helicopter
rescued Wilburn and transported him to a hospital.

Maritrans urges us to affirm the district court's
determination that expert testimony was required in this
matter because

       the incident involves complex, technical, and
       specialized areas of the maritime experience and
       practice, knowledge of vessel characteristics and
       functions, ocean-going navigation, vessel handling, sea
       going operations and procedures, and safety at sea, all
       areas about which a jury must have guidance before it
       can make a determination.

Appellee's Br. at 27.

The Supreme Court has instructed that

       expert testimony not only is unnecessary but indeed
       may be properly excluded in the discretion of the trial
       judge "if all the primary facts can be accurately and
       intelligibly described to the jury, and if they, as men of
       common understanding, are as capable of
       comprehending the primary facts and of drawing
       correct conclusions from them as are witnesses pos-

                               12
       sessed of special or peculiar training, experience, or
       observation in respect to the subject under
       investigation . . . ."

Salem v. United States Lines Co., 

, 35 (1962)
(quoting United States Smelting Co. v. Parry, 

.
415 (8th Cir. 1909)). We must decide whether persons of
common understanding could comprehend the primary
facts offered by Wilburn to demonstrate the cause of his
injuries.

One of the negligence theories presented to the jury was
whether a reasonable person would anticipate or foresee
that disconnecting the Samson line from the barge and
creating the need for the crew to be on the deck to retrieve
it under the prevailing extreme weather and sea conditions
could produce an injury to the plaintiff. The jury received
photographs that permitted it to visualize the bow of the
Enterprise in the notch. The severe nature of the storm and
the immensity of the eighteen to twenty-two feet waves were
vividly described by Captain Hearn and other members of
the crew. The jury also heard Captain Hearn's testimony
that releasing the Samson line from the Enterprise was the
safest procedure under the extraordinary circumstances
they were confronting in order to keep the crew safely off
the deck.

The district court relied on three cases in support of its
conclusion that expert testimony was required regarding
each of Wilburn's negligence theories. In Smith v. United
Gas Pipeline Co., 

(5th Cir. 1988)
(unpublished table opinion), an unpublished opinion
discussed in Peters v. Five Star Marine Service, 

(5th Cir. 1990), the trial judge refused to allow a
maritime operations expert to testify as to the
reasonableness of a ship-to-ship transfer of machinery dur-
ing rough seas. Without the guidance of an expert, the jury
was asked to gauge the reasonableness of using a ship's
crane equipped with a "headache ball" and a shackle
without a "tag line" while the two ships were stern-to-stern
in heavy seas. See 

The Fifth Circuit held in
Smith that "[t]he trial judge abused his discretion in
deciding that an analysis of the confluences of these factors

                               13
was within the realm of the average juror's knowledge and
experience." 

, the court distinguished Smith by holding that
a jury could determine from its common knowledge and
experience "whether it was reasonable for an employer to
instruct his employee to manually move equipment on the
deck of a boat during heavy seas." 

with the
court's reasoning in Peters, and the distinction it drew
between the factual question presented in that matter as
opposed to the complex and technical engineering question
that faced the jury in Smith.

In Martin v. United Fruit Co., 

(2d Cir. 1959),
the Second Circuit upheld the trial court's decision to
exclude from the jury's consideration the question whether
the placement of a hinge at the bottom of a deadlight was
an improper method of ship construction. See 

The court held that "expert knowledge of nautical
architecture is required in order to form an intelligent
judgment." 

v. Nederlandsch-Ameridaansche Stoomvaart,
Maatschappij, 

(2d Cir. 1960), the Second
Circuit held that the district court erred in submitting to
the jury the plaintiff's theory that the vessel was
unseaworthy because of the absence of a stopping
arrangement that could have feasibly been constructed to
prevent a boom from swinging against the kingpost causing
the plaintiff's injury. The court held that the plaintiff had
failed to present any evidence to support this theory. See

In dictum, the court observed that "[i]n any
event, the question was one of nautical architecture about
which jurors lack the knowledge to form an intelligent
judgment in the absence of expert testimony." 

v. United Fruit Co., 

(2nd Cir. 1959)).
Unlike Martin and Fatovic, in the matter sub judice, no
question of the construction of either vessel was at issue.

The jury did not require expert   testimony in order to
understand that the only reason   Wilburn was on the deck
of the tug, and consequently in   a position where he could
get washed overboard by a wave,   was because he was
ordered to haul the Samson line   on board the tug during a

                                  14
violent storm that was producing enormous waves, which
caused the ship to roll and pitch. It was also easily
comprehendible to a person of common understanding that
if the Samson line had been disconnected from the
Enterprise rather than the barge, there would have been no
need to haul the Samson line on board the tug. The jury
could have found that Maritrans was liable for negligence
because the Samson line was not released in a manner that
was reasonably prudent under the exigent circumstances
confronting the persons aboard the Enterprise.

Because Maritrans was responsible for the acts of all its
employees, see Barnes v. Andover Co., L.P., 

,
634 (3d Cir. 1990) (citing De Zon v. American President
Lines, 

(1943)), the evidence was sufficient
to demonstrate to the jury that Maritrans was liable
without the aid of expert testimony whether Captain Hearn
directed the release of the Samson line from the barge or
whether, instead, Stanley did so in violation of Captain
Hearn's order.

Having determined that the district court erred in
concluding that the evidence was insufficient to
demonstrate negligence on any of the theories asserted by
Wilburn in the absence of expert testimony, we must now
consider whether the district court's order granting
Maritrans a new trial may stand notwithstanding the
district court's erroneous ruling. We may affirm a district
court's judgment if the result it reached is correct although
we disagree with its reasoning. See PAAC v. Rizzo, 

, 308 & n.1 (3d Cir. 1974).

Wilburn argued to the jury that Captain Hearn
committed several negligent acts each of which caused his
injuries. The acts were as follows: 1) the inabili ty to
maneuver the vessels out of the effects of the storm; 2) the
captain's decision to heed the initial weather forecasts and
not leave the notch earlier; 3) the decision not t o take the
vessels in-shore or to port; 4) the decision not t o drop
anchor; 5) the manner of releasing the Samson line ; 6) the
decision not to remain in the notch after the lines were
removed; and 7) the failure to anticipate a large wave.

Unfortunately, the jury was not presented with special
verdict forms concerning Wilburn's discrete theories of

                                15
negligent conduct. As a result, we cannot determine from
the record whether the jury found that Captain Hearn was
negligent in ordering the Samson line released from the
barge, or whether the verdict was based on a finding that
he acted negligently in the performance of one of the other
alleged negligent acts.

We are persuaded that the question whether Captain
Hearn was negligent in failing to change course and
maneuver the vessels shoreward or in his decision not to
leave the notch earlier was beyond the common knowledge
possessed by the members of the jury. These decisions
require a knowledge of the navigation and operation of an
ocean going tug and barge in bad weather. Where a jury
has returned a general verdict and one theory of liability is
not sustained by the evidence or legally sound, the verdict
cannot stand because the court cannot determine whether
the jury based its verdict on an improper ground. See
Anixter v. Home-Stake Prod. Co., 

, 1229 (10th
Cir. 1996); Nowell v. Universal Elec. Co., 

,
1312 (5th Cir. 1986). Although we have determined that
expert testimony was not required to support Wilburn's
theory that Maritrans was liable for negligence because the
Samson line was released from the barge, the verdict
cannot stand because we conclude that the question
whether any of Captain Hearn's navigational decisions were
negligent was outside the common knowledge of the jury.

We do not reach the question whether Wilburn and
Stanley possess the requisite knowledge and experience to
present their lay opinions on the navigation of a tug and
barge during a storm to guide the jury in reaching a proper
verdict, or whether expert testimony is required for this
purpose.

The jury also found that the Enterprise was unseaworthy.
Wilburn alleged four theories of unseaworthiness: one,
there was no company policy or procedures for dealing with
rough weather; two, the tug failed to have enough life line
on board to aid Wilburn once he went overboard; three, the
Samson line fouled on itself as it was being hauled onto the
capstan; and four, the captain and his officers were not
reasonably adequate to perform their assigned tasks of
navigating the tug out of the storm area or adapting to the

                               16
weather situation in a timely manner. We conclude that the
question whether the captain and crew were reasonably
able to perform their assigned duties was outside the
common understanding of the jury. The use of a general
verdict negates the need to determine whether any of the
other theories of unseaworthiness could be proved without
expert testimony because we cannot discern from this
record which theory the jury adopted.

III

SUFFICIENCY OF THE EVIDENCE TO SUPPORT
THE AWARD OF DAMAGES

A. Judgment as a Matter of Law

In setting forth its reasons for granting the judgment as
a matter of law, the district court separately concluded that
the evidence was insufficient to support an award of
damages for loss of future earning capacity. The district
court explained its ruling as follows:

       Wilburn produced no evidence regarding what, if any,
       positions as barge captain were available to him and
       his prospect of attaining such a position in relation to
       other qualified individuals. There was no evidence as to
       when Wilburn could expect to attain such a position,
       what his anticipated work-life as a barge captain would
       be, or what salary he would receive.

A plaintiff may recover compensatory damages for loss of
future earning capacity in Jones Act and FELA cases. See
Fashauer v. New Jersey Transit Rail Operations, Inc., 

, 1284 (3d Cir. 1995). The plaintiff must produce,
however, "competent evidence suggesting that his injuries
have narrowed the range of economic opportunities
available to him." Gorniak v. National R.R. Passenger Corp.,

, 484 (3d Cir. 1989) (citing Wiles v. New York,
Chicago, and St. Louis R.R. Co., 

, 332 (3d Cir.
1960)).

Under the law of this circuit, a plaintiff may recover an
award for future lost earning capacity,

                                 17
       if he has produced competent evidence suggesting that
       his injuries have narrowed the range of economic
       opportunities available to him. This means that a
       plaintiff need not, as a prerequisite to recovery, prove
       that in the near future he will earn less money than he
       would have but for his injury. Rather, a plaintiff must
       show that his injury has caused a diminution in his
       ability to earn a living. Such a diminution includes a
       decreased ability to weather adverse economic
       circumstances, such as a discharge or lay-off, or to
       voluntarily leave the defendant employer for other
       employment.

(citation omitted).

In Wiles v. New York, Chicago, and St. Louis Railroad Co.,

(3d Cir. 1960), this court reversed the district
court's order setting aside the jury's award for loss of future
earning capacity. See 

Due to his employer's
negligence, Wiles sustained a back injury and had a series
of back operations resulting in permanent scars and a
minor back deformity. See 

At trial, Wiles
introduced expert medical testimony showing that,

       he would have difficulty in getting a job in heavy
       industry elsewhere than with the Railroad for most
       heavy-industry employers require physical
       examinations. Such an examination would compel
       Wiles to disclose the nature of his operations and that
       he had a history of disc protrusion and back fusion
       and these disclosures would militate against his
       securing employment.

was employed with the Railroad at a
salary greater than what he had been earning at the time
of his injury, this court held that "[t]he availability to Wiles
of the labor market for heavy-duty workers was certainly a
factor which the jury was entitled to take into consideration
in fixing an amount for damages due to him for loss of
future earning power." 

In Gorniak v. National Railroad Passenger Corp., 

(3d Cir. 1989), Gorniak was injured while working as
a materials handler for Amtrak. See 

After his
injury, he was given another job with Amtrak as a ticket

                                 18
clerk, which paid him more than his job as a materials
handler. See 

injury did not affect his
ability to perform his new job, or other light-duty positions
with Amtrak, Gorniak testified that under the seniority
provisions of the collective bargaining agreement between
his union and Amtrak, he could be displaced by a more
senior employee if Amtrak were to cut back on its force of
light-duty workers. See 

were to happen, Gorniak
stated that the only position available within his craft at
Amtrak might be as a materials handler, which his injury
precluded him from performing. See 

evidence of Gorniak's secure employment as a ticket
clerk and the slight probability of being precluded from
holding any light-duty job with Amtrak, this court held that
"the district court did not err in allowing Gorniak's lost
earning capacity claim to go to the jury." 

.

At trial Wilburn introduced evidence of both physical and
psychological limitations caused by his traumatic
experience that limit his economic opportunities. Dr. Steven
Newman testified that Wilburn has permanent injury to his
left shoulder resulting in mobility and functional limitations
in both his shoulder and arm. With these permanent
injuries, Wilburn is restricted from performing activities
that involve overhead or repetitive reaching and stretching,
pushing or pulling, and very strenuous activities.
Performing these activities is both painful for Wilburn and
can be expected to exacerbate the injury. Despite his
injuries, Wilburn has continued to work as an AB
tankerman. He compensates for his limitations by using his
right arm and hand.

Wilburn testified that as a result of his harrowing
experience, he has a fear of sailing coastwise--that is
leaving the sight of land. Although he has made eight to ten
coastwise trips during good weather, he fears that if he
were on a coastwise trip during bad weather, he would be
unable to go out on deck to perform his mariner's duties
even if he were ordered to do so.

Dr. Robert Sadoff, a forensic psychiatrist, testified that
Wilburn suffers from post-traumatic stress syndrome, and
his fears of sailing coastwise are consistent with that
diagnosis. While Wilburn has made progress in overcoming

                                19
his fears, and has made some voyages coastwise, he would
need to undergo a behavioral desensitization program in
order to overcome his "realistic reasons for being afraid."
Such a program, however, is "not practical because you
have to deal with companies who own ships and they're not
there for [Wilburn's] therapy." In absence of a
desensitization program, Dr. Sadoff testified "I just don't
think that without treatment, as I have outlined it, he's
going to go much further than he is now. . . . [H]e's gone
pretty far in what he's done, but he's limited and he's
reached a kind of plateau at this point . . . ."

Wilburn testified that he made a bid for a barge captain
position, but withdrew his name when Richard Steady,
Maritrans's port captain, told him he would never get a
barge captain position as long as he would not go
coastwise. Wilburn also stated that he was concerned about
bidding on barge captain positions because as a barge
captain, he would lose his union protection; therefore, even
if he were successful in obtaining a barge captain position
on an inland barge, the company could transfer him to a
coastwise barge or fire him if he refused to go coastwise.
Although Steady denied telling Wilburn that he would never
become a barge captain if he were unwilling to go
coastwise, Steady testified that an inland barge could be
required to go coastwise.

We conclude that the evidence, when viewed in the light
most favorable to Wilburn, demonstrates a narrowing of
Wilburn's economic opportunities and provides a sufficient
basis upon which the jury could have decided to
compensate Wilburn for loss of future earning capacity. The
fact that Wilburn has continued to work as an AB
tankerman since the accident and has compensated for his
physical injuries by using his right arm does not preclude
a recovery for loss of future earning capacity. Rather, those
were factors the jury could consider in deciding whether
Wilburn's economic prospects have been narrowed or
whether he "is chained to his present job in a kind of
economic servitude." 

. Finally, while
there is a conflict in testimony as to whether Wilburn was
told he could never become a barge captain due to his
psychological limitation, "[i]t was the duty of the jury to

                               20
resolve the conflicting testimony and it did so in favor of
[Wilburn]." 

B. Order Granting a Motion for a New Trial

The jury awarded Wilburn a total of two million dollars in
compensatory damages. One million dollars of that amount
was awarded for loss of future earning capacity. Wilburn
also seeks reversal of the district court's conditional order
granting a new trial on the issue of damages. The district
court held that the award of damages was against the
weight of the evidence and excessive.

This court generally reviews the grant of a new trial for
abuse of discretion. See Klein v. Hollings, 

,
1289 (3d Cir. 1993). "Our degree of scrutiny, however,
differs depending on the reasons for granting the new trial."

court exercises a closer degree of scrutiny
when the district court grants a motion for new trial
because it believes the jury's verdict is against the weight of
the evidence. See 

We do so because the district
court has " `to some extent at least, substituted [its]
judgment for that of the jury.' " 

v.
Consolidated Rail Corp., 

, 1352 (3d Cir.
1991) (alteration in original)). Closer scrutiny is especially
warranted in cases involving simple factual determinations
well within the comprehension of the jurors. See Delli Santi
v. CNA Ins. Cos., 

, 201 (3d Cir. 1996).

Despite this closer degree of scrutiny, "we recognize that
considerable deference remains due to [the district court's]
determination that a verdict is against the weight of the
evidence. The trial judge observes `the witnesses and
follow[s] the trial in a way that we cannot replicate by
reviewing a cold record.' " Williamson v. Consolidated Rail
Corp., 

, 1353 (3d Cir. 1991) (quoting Roebuck
v. Drexel Univ., 

, 735 (3d Cir. 1988)) (second
alteration in the original). This court has also noted that
"reversal of a judgment [as a matter of law] upon a finding
of sufficient evidence to support the jury's verdict does not
preclude affirmance of a new trial order arising from the
conclusion that the verdict is against the weight of the
evidence." Fineman v. Armstrong World Indus., Inc., 

, 211 (3d Cir. 1992).

                               21
Balancing these competing interests, this court has held
that "new trials because the verdict is against the weight of
the evidence are proper only when the record shows that
the jury's verdict resulted in a miscarriage of justice or
where the verdict, on the record, cries out to be overturned
or shocks our conscience." 

.

The district court concluded that the award of one million
dollars for loss of future earning capacity was excessive and
not supported by the evidence. We agree.

We use the shockingly excessive standard to review jury
verdicts, but "review the calculation methods of a jury in
cases which are `susceptible to mathematical formula.' "
Peco Energy Co. v. Boden, 

, 858 (3d Cir. 1995)
(quoting Chuy v. Philadelphia Eagles Football Club, 

, 1279 n.19 (3d Cir. 1979)). Loss of future
earnings capacity is subject to mathematical calculation.
See, e.g., Williams v. Rene, 

, 1102 (3d Cir.
1995); Gorniak v. National R.R. Passenger Corp., 

(3d Cir. 1989). "Although the determination of such
damages often involves a host of uncertain contingencies,
the verdict must still have its basis in evidence, not
conjecture." Hoffman v. Sterling Drug, Inc., 

,
143 (3d Cir. 1973).

Wilburn was thirty-eight years old at the time he was
injured. The evidence showed that he had been receiving
$44,000 a year as an AB tankerman. The pay for a barge
captain is $50,000 a year. Assuming a retirement age of 65,
the gross loss of earnings would be approximately
$162,000. That is far less than the one million dollars
awarded by the jury.

In FELA and Jones Act cases, "a defendant is`entitled to
have the jury instructed that when future payments or
other pecuniary benefits are to be anticipated, the verdict
should be made up on the basis of their present value
only.' " 

(quoting St. Louis
Southwestern Ry. Co. v. Dickerson, 

, 411
(1985) (internal quotation marks and citation omitted)).
While making the present value determination is a job for
the jury, not the court, see 

has the burden
"to produce evidence permitting a rational reduction to

                                22
present value . . . ." 

We noted the following in
Gorniak:

       In most of the reduction to present value cases which
       have been decided by this court the principal focus has
       been on whether the plaintiff produced sufficient
       evidence to guide the jury in determining an
       appropriate discount factor and in performing the
       mathematical calculations involved in reducing an
       award to present value. In these cases the dangers that
       the juries' damage awards were based on mere
       conjecture or guesswork were too high to support the
       awards, since the juries had been provided with no
       guidance as to the appropriate formula to use to
       reduce the awards. In Russell, for example, we held
       that "[t]he determination of the appropriate interest
       rate and the computation of present value on the basis
       of it involve[ ] facts and mathematical procedures of
       which the jury could not be assumed to have personal
       knowledge from their own prior experience. They were,
       therefore, entitled to receive evidence and appropriate
       mathematical guidance with respect to these matters if
       they were to act rationally and not upon mere
       conjecture or guess."

n.4 (quoting Russell v. City of Wildwood, 

, 1183 (3d Cir. 1970)) (other citations omitted).

Here, the jury was instructed to reduce the loss of future
earning capacity award to its present value, however,
Wilburn presented no evidence to guide the jury in its
determination. On this basis alone, we would be required to
determine that the district court did not abuse its
discretion in granting a new trial on Wilburn's loss of future
earning capacity.

The district court did not abuse its discretion infinding
that the jury's award of one million dollars for loss of future
earning capacity was not supported by the evidence and
was excessive.

The district court also held that the jury's award of one
million dollars for Wilburn's physical and psychological
damage was excessive and not supported by the evidence.
Wilburn suffered injuries to his left shoulder and knee.

                                23
Physical therapy has improved the condition of his knee.
His left shoulder has not responded to treatment. He has
continued to work for Maritrans as an AB tankerman. In
performing his duties, however, he must compensate for his
limitations by using his right arm and hand. He is unable
to participate in the recreational activities he formerly
enjoyed such as wind-surfing, softball, and basketball.

Wilburn's experience in being thrown overboard by a
giant wave has caused him to suffer from a post-traumatic
stress disorder. He is now afraid of ocean storms. He will
not leave the sight of land if there is a chance of bad
weather. As a result of his fear, he believes that he could
not go on deck to perform his job if he were in a storm off
the coast. He also feels his psychological disorder cannot be
treated successfully.

In ordering a new trial on this issue, the district court
reasoned as follows:

       Despite Wilburn's claimed fears, his psychological
       expert testified that Wilburn has made much progress
       over the last three and a half years and will continue to
       improve. In addition, Wilburn has sailed coastwise
       approximately eight to ten times and has performed his
       duties satisfactorily. Wilburn's psychological expert has
       opined that with up to one year of treatment, Wilburn's
       prognosis for a full recovery is good. Although the
       residual pain in his shoulder is permanent in nature, it
       has not prevented Wilburn from performing his job.

The record supports the district court's factualfindings.
After returning to work after a two-months' absence,
Wilburn did not miss a day's work in the three and one-half
years prior to the commencement of trial. No one had
complained that his job performance was unsatisfactory. He
continues to exercise and stretch his shoulder in order to
maintain as much strength in it as possible. He has not
been required to undergo any surgical procedures.

With respect to his psychological trauma, Dr. Sadoff
testified that the symptoms Wilburn experienced after the
accident -- flashbacks, nightmares, difficulty sleeping, and
depression -- have all improved. His symptoms of

                                24
irritability, withdrawal, and excessive startle reaction have
also improved and are likely to continue to do so.

Regarding Wilburn's fear of storms at sea, Dr. Sadoff
testified that Wilburn has a good prognosis for a complete
recovery if he undergoes the behavioral sensitization
program that Dr. Sadoff outlined. While Dr. Sadoff testified
that the program is not practical to implement because it
requires the cooperation of a company that owns ships, Dr.
Sadoff also testified that Wilburn might be able to overcome
his fear of storms at seas in the same manner that has
allowed him to take several coastwise trips during good
weather. Dr. Sadoff testified as follows:

       There may be some other steps that he could take. I
       don't think he's going to get to the point where anybody
       is going to take him out on an excursion just for the
       point of helping him deal with his anxieties.

       But if, for example, if he's on board and there is a
       storm and they have to go out or they are out at sea,
       maybe going to Norfolk or up to New York, and a storm
       comes up unexpectedly and he's on board and if he
       handles it and deal with it -- doesn't panic and doesn't
       run below deck -- it may be that would be an impetus
       for the next step after that.
       . . .

       But I just can't plan for that.

Dr. Sadoff also testified that he reviewed a psychiatrist
report prepared by Dr. Harold Byron, a psychiatrist
Wilburn was referred to by his counsel. Dr. Byron's report
stated that Wilburn had a good prognosis for recovery with
treatment.

Under these circumstances, we are persuaded that the
district court did not abuse its discretion in finding that an
award of one million dollars for Wilburn's physical and
psychiatric disorders is excessive.

CONCLUSION

The district court erred in excluding the opinion
testimony of lay witnesses. A judgment as a matter of law

                                25
must be reversed if the insufficiency of the evidence is
attributable to the district court's evidentiary rulings.

The district court properly granted the motion for a new
trial on liability, however, for a different reason than
asserted by the district court. Expert testimony was not
required to establish whether Captain Hearn was negligent
in the disconnection of the Samson line; rather, this was
only one of several theories alleged by Wilburn. The failure
to utilize special verdicts regarding the basis for the jury's
findings precludes us from determining whether this was
the theory adopted by the jury in reaching its verdict.
Similarly, several theories of unseaworthiness were alleged.
Because at least one of the theories of unseaworthiness was
beyond the common knowledge of the jury, the use of a
general verdict makes it impossible for us to decide which
theory of liability persuaded the jury. Accordingly, we must
affirm the order granting a new trial.

The evidence was also sufficient to withstand a motion
for a judgment as a matter of law on the question whether
Wilburn's injuries limited his future earning capacity
because of his fear of performing the duties of a barge
captain on a coastwise voyage during a storm. We
conclude, however, that the district court did not abuse its
discretion in granting a motion for a new trial because the
jury's award of one million dollars for lost future earnings
far exceeded the difference between the pay of an AB
tankerman and that of a barge captain.

The record also supports the district court's exercise of
its discretion to grant a motion for a new trial regarding the
award of one million dollars to compensate Wilburn for his
physical and psychological injuries. This amount appears to
be excessive in light of the fact that his physical injuries do
not preclude him from performing his duties as an AB
tankerman and his psychological condition has significantly
improved.

Upon remand, the district court is directed to enter an
order vacating the judgment as a matter of law on the issue
of liability and the demand for damages for lost future
earnings.

                               26
AFFIRMED in part, REVERSED in part, with directions.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               27