Crane v. Crest Tankers, Inc.

Decision Date09 February 1995
Docket NumberNo. 94-2682,94-2682
Citation47 F.3d 292
Parties, 41 Fed. R. Evid. Serv. 351 Margaret CRANE, Plaintiff-Appellee, v. CREST TANKERS, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

James W. Herron, St. Louis, MO, argued (Elizabeth W. Lane, on brief), for appellant.

Elizabeth Blair Starkey, New York City, argued, for appellee.

Before BOWMAN and LOKEN, Circuit Judges, and BOGUE, * Senior District Judge.

BOGUE, Senior District Judge.

Appellant appeals the district court's admission into evidence an exhibit entitled "Future Damage Calculator." For the reasons stated below, we reverse and remand for a new trial on the issue of damages.

I. BACKGROUND

Appellee was a seaman who served as a Second Mate aboard the S/S Pomerol, an oil tanker owned and operated by the appellant. She filed the underlying action under the Jones Act, 46 U.S.C.App. Sec. 688, and general admiralty and maritime law to recover damages for injuries sustained in separate incidents aboard the ship. During the course of a six-day jury trial, appellee offered into evidence a "Future Damage Calculator" marketed and distributed by the "Lawyers and Judges Publishing Co." This exhibit is a slide rule-type device which has life expectancy and work life expectancy tables on one side, and a "present value" table on the other. See addendum. The exhibit was offered without being identified or sponsored by any witness.

The trial transcript indicates that the appellee attempted to offer the exhibit as a means to establish life expectancy. As she was asking for future damages for pain and suffering and future lost wages, appellee's life expectancy, work life expectancy, as well as present value computations were potentially relevant to issues in the case. Appellant objected to the exhibit both prior to and during the trial. Specifically, the appellant objected to the device on the grounds that it was hearsay, not properly authenticated, that it constituted improper expert testimony, and that it was not the best evidence.

After taking the matter under advisement, the district court informed the jury as follows:

Previously, the plaintiff offered into evidence Plaintiff's Exhibit 17, which is a life expectancy table. The defendant objected to that. I've considered the defendant's objection, and it is overruled, and Plaintiff's Exhibit 17 will be received into evidence. In light of that, the Court has taken judicial notice of the information contained in Plaintiff's Exhibit 17. Specifically, the Court takes judicial notice that a woman of plaintiff's age, which is 45 years old, has a life expectancy of 35.8 years. And because the Court has taken judicial notice of that fact, the jury is to consider that fact to be--to have been proved. 1

Following its deliberations, the jury reached a verdict in favor of the appellee and assessed damages in the total amount of $270,850.00, less 10% for the appellee's contributory negligence. The verdict form did not delineate the award between present and future damages. Appellant moved for a new trial on the issue of damages, or to alter or amend the judgment, which were both denied.

The issues on appeal are whether it was error for the district court to admit the Future Damage Calculator into evidence, and if so, whether the error was prejudicial to the appellant requiring reversal. The abuse of discretion standard governs our review of a district court's decision regarding the admissibility of evidence. Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 410 (8th Cir.1987), citing, Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 134 (8th Cir.1985). Because we are convinced prejudicial error was committed, we reverse the judgment of the district court and remand for a new trial on the issue of damages. 2

II. DISCUSSION
A. Admitting the Exhibit was Error

As an initial consideration, we must address whether the issue was properly preserved for appeal. Appellee contends that appellant may not seek review for alleged errors not called to the attention of the trial court. She contends the appellant's objections focused only on the life expectancy portion of the exhibit and therefore appellant should be precluded from urging error as to other components. It is clear that both prior to, and at trial, appellant was objecting to the exhibit as a whole, not merely to the life expectancy table. Appellant tendered, inter alia, the following objection in its pretrial submissions:

"Plaintiff's Exhibit 17: Defendant objects to Exhibit 17 on the grounds that it is hearsay, that it is not properly authenticated, that it constitutes an attempt to introduce expert testimony or opinion into the case ... with no foundation. It purports to be a summary of data which is hearsay and not subject to cross-examination...." (emphasis added).

This is essentially the same objection which was raised when appellee offered the exhibit at trial. Appellee's argument in this regard is indicative of the misunderstandings which are the gravamen of this entire appeal. The objections were made to the entire exhibit, which included not only the life expectancy table, but a table denoting work life expectancy as well as a method for discounting future damages to present value. The nature of the exhibit compels that the life expectancy table for which it was offered, cannot be separated from the remainder of the exhibit, absent physical excision of inadmissible portions by judicial order or otherwise. 3 The failure to appreciate the multiple aspects of this device is the reason appellee's present argument fails, and is the same misunderstanding made by the district court which gave rise to the appeal in the first instance. We are satisfied that appellant adequately preserved its right to appeal.

Appellant contends that the district court abused its discretion in admitting the exhibit into evidence and submitting the exhibit to the jury because there is no basis for such admission under any Federal Rule of Evidence. Of the various rules of evidence cited by appellant in support of its position, it appears the rules relating to expert testimony are most pertinent. In this regard it should be re-emphasized that we are reviewing the submission of the exhibit as a whole. It should also be noted that of the three components of the exhibit, the "present value table" section is the most troubling. 4 Future damages, in the form of future pain and suffering and (importantly) future lost wages, were at issue in the case. 5

There are numerous ways of presenting a case involving future damages. Typically the district court will, as here, take judicial notice of the plaintiff's life expectancy. If the case involves an issue of future lost wages, generally an expert witness is employed who, once qualified, opines on various issues including work life expectancy, future damages, and methods for discounting the same to present value. In the present case, no expert was used by appellee regarding future economic damages. Nor was an instruction given about them, other than the fact that the jury was able to award future damages if the facts dictated. Despite the lack of direction, the jury was given, among other exhibits, the Future Damage Calculator. Following the life expectancy and work life expectancy directions, the exhibit explains that, "After finding the applicable 'Expectancy' you can determine the present value of future payments over that number of years by using the other side of this calculator (Present Value Tables)." (Emphasis in the original).

Once the user refers to the reverse side of the exhibit, they are confronted with instructions "[t]o compute the total present value of future lost earnings (or other anticipated annual future damages, e.g. hospital, medical care, drugs, etc.)." Users are instructed to:

1. Set the calculator for the number of years of future earnings, or any other anticipated annual future damages;

2. Choose a fair rate of interest on reasonable safe investments;

3. Read the Present Value for each $ payable in each future year under the fair rate of interest you have chosen;

4. Multiply the total earnings (or other item of damage) in each future year times the number you have read on the calculator.

The instructions are followed by an example explaining the use of the calculator to determine the present value of future lost wages and the formula by which the answer is derived.

The record reveals no foundation being laid for the exhibit itself or its method of calculation. No evidence was presented as to what would constitute a "fair rate of interest." In short the jury was given this tool to do with as they would. The appellant was not given an opportunity to challenge the author's expertise or methods of calculation. The exhibit is all the more troubling because the name of the publisher, "Lawyers and Judges Publishing Co.," suggests that the judiciary has vouched for it. The submission of this exhibit into evidence as something resembling expert testimony without foundation, qualification or instruction was an abuse of discretion. 6

As an additional source of error, the exhibit constituted inadmissible hearsay. Appellee defends the exhibit's admission as falling under the hearsay exception for market reports and commercial publications. Fed.R.Evid. 803(17) provides an exception to the hearsay rule for "market quotations, tabulation, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations." (emphasis added). Appellee's contention must fail because the she made no showing and offered no foundation that the exhibit is generally used or relied upon by the public or persons in the legal or other professions.

Further, the appellee again places excessive emphasis on the life expectancy table, as opposed to the exhibit as a whole. There is little doubt that life...

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