Frederick v. Kirby Tankships Inc., Nos. 98-2734

• Citation: 205 F.3d 1277
• Decision Date: 08 March 2000
• Docket Number: Nos. 98-2734,99-2457
• Parties: (11th Cir. 2000) TERRANCE J. FREDERICK, Plaintiff-Appellee, Cross-Appellant, v. KIRBY TANKSHIPS, INC. Defendant-Appellant, Cross-Appellee. TERRANCE J. FREDERICK, Plaintiff-Appellee, v. KIRBY TANKSHIPS, INC., Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1277

205 F.3d 1277 (11th Cir. 2000)

TERRANCE J. FREDERICK, Plaintiff-Appellee, Cross-Appellant, v. KIRBY TANKSHIPS, INC. Defendant-Appellant, Cross-Appellee.

TERRANCE J. FREDERICK, Plaintiff-Appellee, v. KIRBY TANKSHIPS, INC., Defendant-Appellant.

Nos. 98-2734, 99-2457

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

March 8, 2000

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Appeals from the United States District Court for the Middle District of Florida

Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and NESBITT^*, Senior District Judge.

DUBINA, Circuit Judge:

This case involves an appeal from a jury verdict in favor of Plaintiff/Appellee/Cross-Appellant, Terrance J. Frederick ("Frederick"), on his claim for Jones Act negligence, unseaworthiness, maintenance, cure, and unearned wages arising from injuries Frederick received from a slip and fall while aboard the ship "Champion." Kirby Tankships, Inc. ("Kirby"), Defendant/Appellant/Cross-Appellee, presents seven issues for appellate review: (1) whether the jury's damages award for unearned wages, maintenance, and cure was excessive; (2) whether the district court erred in denying Kirby's motion for judgment as a matter of law on the issue of maintenance and cure; (3) whether the district court erred in not giving a limiting instruction as to the evidence on Frederick's termination; (4) whether the district court abused its discretion by not granting a mistrial after a witness testified on evidence excluded earlier by an in limine ruling; (5) whether the district court erred in refusing to limit the testimony of an expert witness; (6) whether the failure to plead mitigation as an affirmative defense precludes a jury instruction on that defense; and (7) whether the district court abused its discretion in denying Kirby's Federal Rule of Civil Procedure 60(b) motion. Frederick presents two issues on cross-appeal: (1) whether the district court erred in directing a verdict against his claim for penalty wages under 46 U.S.C. § 10504; and (2) whether the district court erred in applying the collective bargaining agreement's maintenance rate, instead of Frederick's actual maintenance expenditures. After a thorough review of the record, we conclude that the jury's damages award for unearned wages, maintenance, and cure is not supported by the evidence. Therefore, we reverse that part of the judgment and remand this case to the district court with instructions to either remit the jury's damages award to $107,946.43 or grant Frederick a new trial on damages. We affirm the district court's judgment on all other issues.

I. Background

Kirby owns and operates oil tankers, including the Champion. Kirby hired Frederick, a career ship engineer, to work on the Champion as its chief engineer. Frederick worked on the Champion as it delivered oil from Pascagoula, Mississippi, to various U.S. ports on the Atlantic Ocean.

On September 12, 1994, while aboard the Champion, Frederick slipped and fell on an allegedly oily ramp. As a result, he suffered severe pain in his left knee, hips, and back. He laid on the deck until another crewmember found him and assisted him to his room. The ship's captain, Captain Fox, visited Frederick and entered a notation into the ship's log that Frederick suffered injuries to his "left leg, knee to hip." The ship arrived in port on September 13, and Frederick went to a medical facility where he received a "not fit for duty" slip. He returned to the ship for the night and left the ship the next day. Subsequently, he traveled to his mother's house and stayed with his fatally-ill mother until she died on October 30, 1994.

While at his mother's house, Frederick sought treatment for his injuries. Dr. Sicari treated Frederick for his knee and recommended that he seek further treatment from Dr. Hottentot, an orthopedic surgeon. Dr. Hottentot examined Frederick's knee and concluded that his knee had recovered. Dr. Hottentot, however, discovered that Frederick, for the last 10 to 15 years, has suffered from a degenerative hip condition. As a result, Dr. Hottentot advised Frederick to undergo a bilateral hip replacement and advised Frederick that he should not return to work.

Even though Frederick's hip problems persisted, he returned to work on the Champion in January of 1995 because he needed money. His hips caused him constant pain, but he could not take pain medication onboard the ship because Kirby had a policy against drug use by its employees. Due to the constant pain, Frederick cut short his tour of duty. A few months later, Kirby terminated Frederick, alleging that he falsified oil records. After his termination, Frederick consulted an orthopaedic surgeon, Dr. Choung, who eventually performed right hip replacement surgery on Frederick.

On May 23, 1996, Frederick filed a complaint against Kirby, asserting Jones Act claims of negligence, unseaworthinesss, maintenance, and cure for injuries to his left knee, both hips, and back that he suffered in the slip and fall. He also sought lost wages and penalty wages pursuant to 46 U.S.C. § 10504. After a series of in limine rulings, the district court conducted a jury trial.

After the conclusion of the trial, the jury returned a verdict in favor of Frederick in the amount of $810,903.80. This award included $525,069.00, for unearned wages, maintenance, and cure, and $1,242,760.00, for Jones Act negligence and unseaworthiness, adjusted downward by 77% due to Frederick's pre-existing hip condition. The district court denied Kirby's renewed motion for judgment as a matter of law, or alternatively, motion for a new trial or remittitur. Kirby then appealed to this court.

On August 6, 1998, Frederick filed a second complaint against Kirby seeking additional maintenance and cure payments. This second action, Case No. 98-1559, Civ. T-23 C ("Frederick II"), has been stayed pending resolution of this appeal. On August 21, 1998, Frederick filed another complaint, Case No. 98-207, Civ. OC-10B ("Frederick III"), alleging disability discrimination under the American with Disabilities Act ("ADA") and age discrimination under the Age Discrimination in Employment Act ("ADEA").

Soon after the filing of Frederick II and III, Kirby filed a Federal Rule of Civil Procedure 60(b) motion for relief from judgment, alleging that the two subsequent actions contradicted allegations presented by Frederick in Frederick I. The district court denied Kirby's Rule 60(b) motion, and Kirby appealed the district court's ruling to this court. We have consolidated the appeals.

II. Discussion

A. Appeals by Kirby

1. Excessiveness of the Maintenance, Cure, and Unearned Wages Damages Award

Kirby contends on appeal that the district court erred in not granting its motion for remittitur, or alternatively, a new trial on damages only, due to the jury's allegedly excessive award for maintenance, cure, and unearned wages. In particular, Kirby avers that the evidence presented at trial supported a maximum award for maintenance, cure, and unearned wages of only $107,947.43, a figure well below the jury's award of $525,069, especially considering that the jury did not award extra damages caused by a willful and arbitrary refusal to pay maintenance and cure.

In an appeal from a denial of a motion for remittitur, this court "must independently determine the maximum possible award that is reasonably supported by the evidence in the record." Deakle v. John E. Graham & Sons , 756 F.2d 821, 827 (11th Cir. 1985). Any excess must be remitted, or alternatively, a new trial may be granted on damages. See id. at 827-28.

We conclude that the record supports $107,947.43 as the maximum possible amount for maintenance, cure, and unearned wages. Frederick's economist, Dr. Susan Long, who relied upon a daily maintenance rate of $15 per day, calculated the maximum past and future maintenance that Kirby owed Frederick to be $20,910.73. Dr. Long also testified that Frederick's past and future medical expenses, i.e. cure, total $75,000, absent any complications. Frederick did not produce any evidence of complications. As to unearned wages, Frederick is entitled to wages from the time of his discharge until his employment term expired. The collective bargaining agreement set his daily wage at $326.24, which, when adjusted at the 21.5 percent tax rate utilized by Dr. Long, amounts to $256.10 per day. Frederick should receive unearned wages for the time between September 14, 1994, the date he disembarked the Champion, and October 30, 1994, the date his mother died, because Frederick testified that he would have disembarked upon her death regardless of his health. For those 47 days, Frederick's unearned wages total $12,036.70. By adding together $20,910.73 for maintenance, $75,000 for cure, and $12,036.70 for unearned wages, we conclude that the maximum possible amount for maintenance, cure, and unearned wages is $107,947.43.

Furthermore, the jury did not award extra damages caused by a willful and arbitrary refusal to pay maintenance and cure. Pursuant to jury instruction number 13, the jury could award damages to Frederick based on a finding of a willful or arbitrary failure by Kirby to pay maintenance and cure.¹ The jury, however, held that Kirby was not willful and arbitrary in its failure to pay maintenance and cure.² Thus, the jury's award of $525,069 exceeds the maximum amount of damages supported by the evidence.

Now, we must determine whether to order a remittitur or a new trial. The rule in this circuit states that where a jury's determination of liability was not the product of undue passion or prejudice, we can order a remittitur to the maximum award the evidence can support. See Hendrix v. Raybestos-Manhattan, Inc. , 776 F.2d 1492, 1507 (11th Cir.1985); Howell v. Marmpegaso Compania Naviera , 536 F.2d 1032, 1034 (5th Cir. 1976).³ Because the jury refused to find Kirby...