764 F.2d 252 (5th Cir. 1985), 84-2303, Sandidge v. Salen Offshore Drilling Co.

Docket Nº:84-2303.
Citation:764 F.2d 252
Party Name:Roland SANDIDGE, Plaintiff-Appellee, v. SALEN OFFSHORE DRILLING COMPANY, Defendant, Salen Protexa Drilling Company, Defendant-Appellant.
Case Date:April 01, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 252

764 F.2d 252 (5th Cir. 1985)

Roland SANDIDGE, Plaintiff-Appellee,

v.

SALEN OFFSHORE DRILLING COMPANY, Defendant,

Salen Protexa Drilling Company, Defendant-Appellant.

No. 84-2303.

United States Court of Appeals, Fifth Circuit

April 1, 1985

Page 253

[Copyrighted Material Omitted]

Page 254

Clann & Pearson, Susan R. Abrams, Houston, Tex., for defendant-appellant.

Edwards, Perry, McMains & Constant, Russell H. McMains, Corpus Christi, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

In this appeal, we must determine whether the district court erred in not permitting the defendant-appellant's counsel to ask during voir dire if the prospective jurors would give more weight to a videotaped deposition over a written deposition; whether the court's comments regarding the videotaped deposition constituted an abuse of discretion; and whether the court's instructions on aggravation constituted reversible error as involving an impermissible comment on an ultimate issue of fact. Resolving each of these issues in favor of the plaintiff-appellee, we affirm.

I.

On December 28, 1980, Ronald Sandidge sustained multiple fractures to his mid-back area while employed by Salen Offshore Drilling Company (Salen Offshore). In February 1981, he returned to work in the employ of Salen Protexa Drilling Company (Salen Protexa) as a floorhand-roustabout aboard the rig Salen Energy 4 (formerly Nahautl). The rig was owned and operated by Salen Protexa. On March 10, 1981, Sandidge was struck in the back by an air-powered spinning wrench. Following the second accident, which involved an injury to the same mid-back area that had been injured in the December 1980 accident, Sandidge continued to work for Salen Protexa until August 1982. He received medical treatment as a result of both the December 1980 and March 1981 accidents. He presently suffers pain that allegedly prevents him from returning to his former work.

On March 14, 1983, Sandidge filed this lawsuit under the Jones Act, 46 U.S.C. Sec. 688, and the general maritime law against both Salen Protexa and Salen Offshore, seeking damages for the personal injuries he sustained in the December 1980 and March 1981 accidents. Discovery proceeded space until, on April 16, 1984, the morning of jury selection, Salen Offshore settled with Sandidge. Sandidge's claim against Salen Protexa then proceeded to trial with the jury returning a verdict for

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Sandidge on April 18, 1984. The district court entered an order entitled "Final Judgment" on April 23 and Salen Protexa filed its notice of appeal on May 21. Thereafter, on June 4, 1984, the district court dismissed Sandidge's claim against Salen Offshore with prejudice.

On appeal, Salen Protexa contends that (1) the district court erred in not permitting Salen Protexa's counsel to inquire during voir dire whether the prospective jurors would give more weight to a videotaped deposition than to a written deposition; (2) the court abused its discretion in commenting on the modes of presenting deposition testimony; and (3) the court committed reversible error by commenting on an ultimate issue of fact when instructing the jury.

II.

Preliminarily we must consider on our own motion whether we have appellate jurisdiction. On May 21, Salen Protexa filed its notice of appeal from the April 23 judgment--a judgment that only disposed of Sandidge's claim against Salen Protexa. Although Sandidge had previously settled his claim with Salen Offshore, that claim was not dismissed from the case until June 4, after Salen Protexa filed its notice of appeal. Hence, regardless of the district court's nomenclature, the April 23 judgment did not constitute a final judgment at the time it was entered since Sandidge's claim against Salen Offshore was then still pending. See Fed.R.Civ.P. 54(b). Moreover, Salen Protexa did not obtain a Rule 54(b) certificate that would have permitted it to take an appeal from the April 23 judgment. Nevertheless, we have consistently held that there is an exception to the requirements of Rule 54(b) that allows the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation. See Alcorn County v. U.S. Interstate Supplies, 731 F.2d 1160, 1166 (5th Cir.1984); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973); see also Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Pireno v. New York State Chiropractic Association 650 F.2d 387, 389-90 n. 4 (2d Cir.1981), aff'd sub nom. Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Anderson v. Allstate Insurance Co., 630 F.2d 677, 680-81 (9th Cir.1980). In Jetco, the district court dismissed the action as to one of three defendants, who then filed a premature notice of appeal, and several months later the court entered an agreed judgment as to the remaining defendants. We gave effect to the notice of appeal as of the date of the agreed judgment, heeding the admonition of Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1964), that "practical, not technical considerations are to govern the application of principles of finality."

In the instant case, we do not confront any of the specific prohibitions against giving effect to premature notices of appeal that are enumerated in Fed.R.App.P. 4(a)(4). 1 Alcorn County, 731 F.2d at 1166. "[T]here is no danger of piecemeal appeal confronting us if we find jurisdiction here, for nothing else remains in the federal courts." Anderson, 630 F.2d at 681. Hence, because the June 4 dismissal of Salen Offshore, when viewed in conjunction with the April 23 judgment against Salen Protexa, effectively terminated this litigation, we find that we have appellate jurisdiction. Accordingly, we turn to the merits of the appeal.

III.

During the voir dire examination, which was conducted by counsel, Sandidge's attorney

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asked if any of the jurors felt they could not pay attention to evidence presented by videotape rather than by live testimony. The court allowed the question. During the voir dire by Salen Protexa's counsel, the following exchange occurred:

COUNSEL: [Sandidge's counsel] asked you if any of you had a problem with regard to a video deposition of the doctor. We will also be reading a deposition of an independent medical exam done by Dr. Greg Hanson....

...

COUNSEL: What I want to ask about that, whether anyone on this jury panel would give any more weight to the evidence presented by video deposition which is basically live deposition of a doctor, versus the written transcript or deposition that was taken out of court. Is there anyone that feels the video is more substantial or consequential.

THE COURT: You can't ask the jury to give weight to it. It is up to the jury to give how much weight to the testimony they want to give. You can't ask what weight they will give. They don't know. They haven't heard either one, so they really can't answer your questions.

Jurors, let me explain something to you. Normally testimony comes to you in two forms in these trials. It comes in the forms of witnesses' testimony, that is, answers to questions that the lawyers ask witnesses on the witness stand and the answer the witnesses give under oath to the question to the lawyer is the evidence in the case for which you will decide[ ] whatever issues are submitted to you, whatever controversies are submitted to you for your decision. That's one form of evidence. It is ideal for it to be presented to you from the witness stand, where there are disputes, that's where one witness says one thing, another witness is saying something else or is saying the opposite. You have to figure out which witness is right, which witness is wrong, which one is being truthful and which one's not being truthful or which is correct and which is mistaken. So, obviously, when you sit and observe the witness and listen to the witness' testimony it enables you to better perform this function. Sometimes a witness cannot be questioned until a deposition is taken and the deposition is taken much like testimony is given in a courtroom. That is, lawyers from both sides in turn ask the witness questions. The witness answers the questions and there is a video camera trained on the witness and you see him and observe him as you would someone talking on television. Here again, you have an opportunity to observe the witness' mannerisms and his demeanor as he testifies whether or not he delays in his answers or whatever. Sometimes neither of those systems for whatever reasons, neither of those systems are available, so you have what we call a written deposition. While the witness is orally asked questions by the lawyer, then those questions are transcribed in the form of a little book and then questions and answers are read to the jury in the courtroom. This is not an ideal way to present testimony because you jurors are not able to judge the witness by observing him as he speaks, but it is certainly better than being deprived of the testimony completely. So, you as jurors will have to do the best you can with the situation you are faced with. You decide of how much you heard, what credible evidence is and what the believable evidence is. So, it's handled this way because it's the best way it can be done under the circumstances. You are entitled, jurors, to give all the testimony...

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