USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1089
JOAQUIM CONDE,
Plaintiff, Appellee,
v.
STARLIGHT I, INC.,
Defendant, Appellant.
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No. 96-1209
JOAQUIM CONDE,
Plaintiff, Appellant,
v.
STARLIGHT I, INC.,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
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Before
Cyr, Boudin and Lynch,
Circuit Judges.
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Thomas E. Clinton, with whom Kathleen B. Carr and Clinton &
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Muzyka, P.C. were on brief for Starlight I, Inc.
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David F. Anderson, with whom Latti Associates was on brief for
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Joaquim Conde.
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January 9, 1997
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2
CYR, Circuit Judge. Plaintiff-appellee Joaquim Conde
CYR, Circuit Judge.
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sustained a permanent injury to his left hand on August 13, 1988,
while serving as first mate aboard the commercial fishing vessel
F/V ALENTEJO which was navigating in rough waters east of
Nantucket on the Georges Bank.1 Two days after the accident,
Edward Monteiro, an adjuster for the ALENTEJO's insurer, obtained
an oral statement from Conde in Portuguese. Since Conde could
speak little English and was unable to read it, Monteiro purport-
ed to translate the written English statement back to Conde in
Portuguese. Unbeknownst to Conde, the statement he signed
indicated that the ALENTEJO had been travelling at slow speed
when the accident occurred and it makes no mention of other
critical facts about which Conde had informed Monteiro in his
interview. For instance, the written statement omits any refer-
ence to the captain's refusal to slow the vessel and lower the
fishing net to deck-level so that Conde and his fellow worker
would not have to stand on the slippery deck, from which tiles
were missing, while repairing the net.
In September 1990, Conde brought the present action for
negligence and unseaworthiness against appellant Starlight I,
Inc., owner of the ALENTEJO. See 46 U.S.C. 688 (Jones Act);
___
Miles v. Apex Marine Corp., 498 U.S. 19, 29 (1990) (unseaworthi-
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ness). At trial, the defense relied heavily upon the apparent
discrepancies between Conde's trial testimony and the written
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1Almost six years later, Conde obtained a nonmaritime
factory job at a reduced salary.
3
statement he unwittingly gave to Monteiro, the adjuster. Conde,
on the other hand, contended that Starlight and Monteiro, antici-
pating litigation, had collaborated to misrepresent the oral
statement Conde made to Monteiro.
After the jury awarded Conde $350,000 in damages, the
district court granted a new trial due to improper closing
argument by Conde's counsel. The second trial resulted in a
$968,500 award to Conde: $118,500 for past economic loss;
$50,000 for pain and suffering; and $800,000 for future economic
loss. The district court denied Starlight's second motion for
new trial, subject to Conde's agreement to remit all damages for
future economic loss above $254,212.50. On appeal, Starlight
challenges both the denial of its second motion for new trial and
the amount of the remittitur.2
I. Second Motion for New Trial
I. Second Motion for New Trial
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Starlight contends that four improper statements by
Conde's counsel in closing argument warrant yet a third trial.
First, counsel observed, without evidentiary support, that
Monteiro and defense attorney Thomas Clinton, Esquire, were
"friends" and had "been working together for twenty years."
Starlight argues that the veiled reference to possible collusion
between Monteiro and Clinton was wholly immaterial and deliber-
ately inflammatory. We find no abuse of discretion. See Ahern
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2Since we deny Starlight's appeal, we need not reach Conde's
contingent cross-appeal from the district court order granting
Starlight's first motion for new trial. We assume that Conde
would opt for a reduced total remittitur of $364,736, rather than
reinstatement of the first jury award (i.e., $350,000).
4
v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996).
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Monteiro testified on redirect examination that he
asked Conde to sign the August 15, 1988, statement in three
places for Conde's own "protection," to prevent its alteration
after it left Monteiro's possession. Later in his testimony,
however, Monteiro admitted that he himself had given the state-
ment directly to Thomas Clinton, Esquire, Starlight's counsel.
When asked whether he had known Clinton well prior to August
1988, Monteiro acknowledged that they were on a "first-name
basis," and had worked together previously.
We normally presume that a jury follows instructions to
disregard improper argumentation. See Greer v. Miller, 483 U.S.
___ _____ ______
756, 766 n.8 (1987); Sweeney v. Westvaco Co., 926 F.2d 29, 36
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(1st Cir.), cert. denied, 502 U.S. 899 (1991). So it is here.
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After Clinton objected to the remark by Conde's counsel in
closing argument, the court promptly cautioned the jury that the
evidence did not establish a "friendship" between Monteiro and
Clinton. Moreover, Monteiro's business relationship with Clinton
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was in evidence. Finally, the Monteiro-Clinton relationship was
at least somewhat probative of the plausibility of Monteiro's
testimony concerning why he considered it necessary that Conde
sign the August 15, 1988, statement in three places.
Second, Starlight relies on a closing remark to the
effect that the captain's consumption of several alcoholic
beverages as late as the evening meal the day of the accident had
impaired his judgment, and likely explained his negligent refusal
5
to slow the vessel and lower the net as Conde had requested.
Although another fishing vessel captain testified that no vessel
captain should consume alcohol while navigating a vessel, Star-
light insists that it was necessary for Conde to adduce expert
toxicological evidence as to how the particular level of alcohol
consumption established by the evidence typically would impair
human judgment.
The authorities cited by Starlight simply stand for the
thesis that expert toxicological testimony may be used to estab-
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lish the likely effects of alcohol. See Armand v. Louisiana
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Power & Light Co., 482 So. 2d 802, 804 (Ct. App. La. 1986) ("[A]ll
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experts agreed that .30% or .23% [blood alcohol] would impair the
motor abilities and judgment of anyone."); see also People v.
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Modesto, 427 P.2d 788, 790 (Cal.), cert. denied, 389 U.S. 1009
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(1967), overruled on other grounds, Maine v. Superior Court, 438
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P.2d 372, 377 n.8 (Cal. 1968). These authorities in no manner
suggest that such testimony is invariably required. Cf., e.g.,
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United States v. Hillsberg, 812 F.2d 328, 333 (7th Cir.) ("The
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jury would likely have little knowledge of the effects of mental
diseases and defects. Laymen do have occasion, however, to learn
the effects of alcohol."), cert. denied, 481 U.S. 1041 (1987).
_____ ______
Third, Starlight contends that repeated references to
Monteiro as an "adjuster," during direct and redirect examination
and in closing remarks by Conde's counsel, violated Federal
Evidence Rule 411 ("Evidence that a person was or was not insured
against liability is not admissible upon the issue whether the
6
person acted negligently or otherwise wrongfully."). We do not
agree.
For one thing, Starlight did not object to Conde's
repeated references to Monteiro as an "adjuster" throughout
either the first or second trial. Thus, the tardiness of its
objection calls into serious question whether the litigants, let
alone the jury, inferred that Monteiro was an "insurance adjust-
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er," cf., e.g., NLRB v. International Bhd. of Elec. Workers Local
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340, 481 U.S. 573, 581 (1987) (union's "grievance adjuster or
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collective bargainer"); Ferguson v. Skrupa, 372 U.S. 726, 732
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(1963) ("debt adjuster"), let alone that Starlight carried
liability insurance. In all events, Rule 411 does permit mention
of insurance coverage, not to prove negligence, but collaterally
to show the possible "bias or prejudice of a witness." See
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Pinkham v. Burgess, 933 F.2d 1066, 1072 (1st Cir. 1991) ("Rule
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411 itself contemplates that evidence that the defendant was
insured may be admissible on issues other than negligence.");
Charter v. Chleborad, 551 F.2d 246, 248 (8th Cir.) ("[T]he fact
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that defendant's insurer employed [a witness] was clearly admis-
sible to show possible bias of that witness."), cert. denied, 434
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U.S. 856 (1977). Starlight's entire defense centered on
Monteiro's credibility in regard to the authenticity of his
"translation" of Conde's August 15, 1988 statement.
Finally, Starlight argues that Conde's attorney once
again argued facts not in evidence, and invited the jury to
engage in rank speculation, by noting that the captain might have
7
been steaming the ALENTEJO full speed ahead in an attempt to flee
Canadian waters before Canadian patrol boats detected the vessel.
On the contrary, according to Starlight's own expert, based on a
reverse extrapolation of its known course immediately after the
accident, the ALENTEJO probably had been on the Canadian side of
the Hague Line just prior to the accident. This circumstantial
evidence combined powerfully with the captain's own testimony
that he previously served aboard a fishing vessel seized by a
Canadian patrol boat and that he knew on August 13, 1988 that the
same Canadian patrol boat was within one-half mile of the
ALENTEJO. II. The Remittitur
II. The Remittitur
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Starlight claims that the trial court miscalculated the
remittitur at $254,212.50.3 Starlight first projects a total
future economic loss as low as $27,199, by using Conde's 1987
income, rather than the higher 1988 income figure, for arriving
at a base annual salary. As Conde was injured in mid-August,
1988, however, the jury reasonably could have looked to Conde's
higher 1988 income projection as a more accurate reflection of
his future earning power than the 1987 income. See Eastern
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Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d
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492, 502 (1st Cir. 1994) (in ruling on remittitur motion, court
examines evidence "in the light most favorable to the prevailing
party"); see also Jones & Laughlin Steel Corp. v. Pfeifer, 462
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3Once a district court has decided to exercise its discre-
tion to grant a remittitur, appellant "must show . . . that the
reduced figure remains so extravagant as to shock the appellate
conscience." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 724
_______ ____________________
(1st Cir. 1994).
8
U.S. 523, 538 (1983) ("It is both easier and more precise to
discount the entire lost stream of earnings back to the date of
injury -- the moment from which earning capacity was im-
paired.").4
Starlight next argues that the 3% per annum adjustment
for inflation in "non-agricultural" workers' wages from 1988 to
1995 (i.e., 20.25% in aggregate) was excessive because a commer-
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cial fisherman would not be classified as a "non-agricultural
worker" and recent federal restrictions upon commercial fishing
on Georges Bank have depressed fishermen's wages. Starlight
offers no evidentiary support for its contention that a commer-
cial fisherman would not qualify as a "non-agricultural" worker
(i.e., one who does not cultivate land) for purposes of the 1995
____
Economic Report of the President, which the parties otherwise
stipulated as a source of the applicable "non-agricultural"
inflation rate. Nor did Starlight adduce any evidence as to how
its suggested offset to the stipulated inflation rate should be
calculated. We therefore conclude that it has failed to
demonstrate any "conscience-shocking" adjustment in calculating
an inflation rate. See supra note 3.
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Finally, Starlight argues that the trial court used the
$118,500 jury award for past economic loss to calculate the
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4Although Conde earned $35,930 in gross income during 1987,
he incurred extraordinary unreimbursed work expenses ($19,404)
which effectively reduced his annual income to only $16,526. See
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Jones & Laughlin, 462 U.S. at 534 (recommending that unreimbursed
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work expenses be deducted before estimating future lost stream of
income). This figure is substantially lower than Conde's pro-
jected 1988 gross income of $22,332. See infra note 7.
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9
relevant "base year" salary (i.e., Conde's lost income for 1995)
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with which to extrapolate his future (i.e., post-1995) economic
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loss, rather than predicating the base figure calculation direct-
ly on the trial evidence.5 Although neither we nor the parties
have been able to reconstruct the exact mathematical calculations
utilized by the district court,6 the trial evidence, viewed in
the light most favorable to Conde, would yield an approximate
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5The court explained its methodology as follows:
In determining the figure to which to remit the
award for loss of future earning capacity, I shall
endeavor to arrive at the maximum figure which the jury
could have awarded using as a guide the amount the jury
awarded the plaintiff for lost wages from the date of
the accident to the date of the verdict, i.e.,
$118,500. For this purpose, I shall assume the jury,
in arriving at the $118,500 figure, deducted an amount
for what was earned and what could have been earned
after the plaintiff reached an end medical result. I
shall also take into account the fact that the wages of
non-agricultural workers from 1988 to 1995 rose approx-
imately 3% a year or 20.25% over the entire period.
After making these adjustments, what results is a
figure of expected earnings for 1995 in the amount of
$29,020. I shall then apply a reduction of 20% for
taxes and a 1% discount rate to arrive at the amount
the plaintiff would have earned over the 26 year period
of his work expectancy reduced to present value. Using
this methodology, the result is $254,212.[50]. (Foot-
notes omitted.)
6As future loss calculations are multiplex, effective appel-
late review may be greatly inhibited by any lack of particularity
in the trial court's methodology. Given these latent ambigu-
ities, we could remand to the district court for clarification,
see Jones & Laughlin, 462 U.S. at 546, 552 (refusing invitation
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to adopt one calculation methodology as "the exclusive method"),
but for reasons of judicial economy we opt to calculate the
maximum future economic loss based directly on the evidence
before the jury. See infra note 7.
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10
discounted future economic loss of $196,236.7
The unknowable and unquantifiable factors involved in
calculating a future stream of lost income (e.g., future infla-
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tion rates; actual work life), militate against "a search for
'delusive exactness,'" since "[i]t is perfectly obvious that the
most detailed inquiry can at best produce an approximate result."
Jones & Laughlin, 462 U.S. at 546, 552. Even viewing the trial
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evidence most generously to Conde, however, the $254,212.50 award
for future economic loss effectively disregards a significant and
practicably quantifiable factor: the need to reduce future
economic loss to present value, even if only by the most conser-
vative discount figure (1%), see supra note 7, particularly since
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the parties stipulated below that some "present value" reduction
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would be appropriate, albeit reserving the precise discount rate
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7Viewing the evidence most favorably to Conde, the alterna-
tive remittitur amounts would work out as follows:
Annual gross income from 1/88 to 8/88 $ 14,106
Extrapolated income from 8/88 to 12/88 + 8,816
Unreimbursed work expenses - 590
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Total projected gross income for 1988 22,332
Inflation rate between 1988-95 (20.25) + 4,522
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Adjusted projected annual gross income (1995) 26,854
Actual gross income for factory job (1995) - 15,080
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Total loss of annual gross income (1995) 11,774
Taxes on lost income (@ 1988 rate of 16.97%) - 1,998
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Net annual lost income (1995) 9,776
Remaining work life in 1995 (26 years) x 26
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Total lost future income stream 254,176
Discounted to present value (@ 1%) 196,236
Discounted to present value (@ 2%) 151,890
Discounted to present value (@ 3%) 117,860
Although the $254,212.50 remittitur calculated by the
district court purportedly factored in a 1% discount rate, see
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infra note 8, it actually approximates our pre-discount amount of
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$254,176.
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(1% or 2%). Cf. id. at 548 (noting that use of discount rate
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between 1% and 3% in Jones Act case would not be an abuse of
discretion).8
III. Conclusion
III. Conclusion
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Given these somewhat less "elusive" circumstances, we
conclude that the 30% discrepancy between the $254,212.50 and the
$196,236 economic-loss figures is sufficiently quantifiable and
substantial that it ought not stand. Sanchez v. Puerto Rico Oil
_______ _______________
Co., 37 F.3d 712, 724 (1st Cir. 1994); cf. Jones & Laughlin, 462
___ ___ ________________
U.S. at 552 (noting that jury awards for pain and suffering are
"highly impressionistic"); Ruiz v. Gonzalez Caraballo, 929 F.2d
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31, 34 (1st Cir. 1991) ("After all, '[t]ranslating legal damage
[viz., physical effects of post-traumatic stress syndrome] into
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money damages -- especially in cases which involve few signifi-
cant items of measurable economic loss -- is a matter peculiarly
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8Using a "market interest" rate (e.g., 6%) to reduce a
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future-earnings award to present value recognizes that, at least
in an inflation-free economy, the plaintiff's immediate accession
to a lump-sum award would enable him to earn interest by rein-
vestment, an opportunity not available to him had the same amount
been earned incrementally over time. See Jones & Laughlin, 462
___ _________________
U.S. at 536-37 n.20 ("present value" reduction premised on
plaintiff's duty to mitigate damages). In an inflationary
economy, however, a discount rate (or offset) below the "market
interest" rate (e.g., 1 or 2%, instead of 6%) may be used,
____
because even though Conde did not adduce specific evidence from
which to forecast actual inflation rates in future years, it
nonetheless may be presumed that anticipated future inflationary
trends will tend to curtail investment returns at levels below
the market rate. Id. at 538-39. Although the Supreme Court has
___
declined to mandate a single "present value" reduction or a
single discount methodology for use in all Jones Act damages
calculations, see id. at 550, absent extraordinary circumstances
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the factfinder normally should essay some measure of "present
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value" reduction.
12
within a jury's ken.'") (quoting Wagenmann v. Adams, 829 F.2d
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196, 215 (1st Cir. 1987)). Accordingly, we direct a further
remittitur. See Kolb v. Goldring, Inc., 694 F.2d 869, 875 (1st
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Cir. 1982) (appellate court may order a new trial, in the event
claimant rejects further remittitur, where trial court error in
calculating remittitur was clear and mere "mechanical" correction
is required) (citing Stapleton v. Kawasaki Heavy Indus., 608 F.2d
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571, 574 n.7 (5th Cir. 1979)); Everett v. S.H. Parks & Assocs.,
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Inc., 697 F.2d 250, 253 (8th Cir. 1983).
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The district court ruling denying defendant-appellant's
The district court ruling denying defendant-appellant's
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motion for new trial is affirmed. The remittitur for future
motion for new trial is affirmed. The remittitur for future
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economic loss is further reduced to $196,236. Upon remand, the
economic loss is further reduced to $196,236. Upon remand, the
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district court should fix an appropriate time within which plain-
district court should fix an appropriate time within which plain-
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tiff-appellee must either accept the revised remittitur or submit
tiff-appellee must either accept the revised remittitur or submit
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to a new trial on damages for future economic loss. The parties
to a new trial on damages for future economic loss. The parties
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shall bear their own costs.
shall bear their own costs.
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SO ORDERED.
SO ORDERED.
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