Nevor v. Moneypenny Holdings, LLC

• Decision Date: 22 November 2016
• Docket Number: 16-1565,Nos. 16-1302,s. 16-1302
• Citation: 842 F.3d 113
• Parties: Kenneth Nevor, Plaintiff, Appellee, v. Moneypenny Holdings, LLC, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

842 F.3d 113

Kenneth Nevor, Plaintiff, Appellee,

v.Moneypenny Holdings, LLC, Defendant, Appellant.

Nos. 16-1302

16-1565

United States Court of Appeals, First Circuit.

November 22, 2016

Robert P. Powers , Boston, MA, with whom Michael R. Byrne and Melick & Porter, LLP were on brief, for appellant.

Maurice J. Cusick , with whom Vincent M. Morgera was on brief, for appellee.

Before Barron, Selya and Stahl, Circuit Judges.

SELYA, Circuit Judge.

In this maritime personal injury case, the district court awarded the plaintiff compensatory damages for past and future harms totaling nearly $1,500,000. Adding insult to injury, the court tacked on prejudgment interest at the Rhode Island state rate of 12% per annum and entered judgment in the plaintiff's favor for $2,318,487. The defendant appeals, challenging both the damages award and the prejudgment interest increment.

After careful consideration, we find the award of damages to be unimpugnable. The award of prejudgment interest, though, presents greater complications: with respect to that award, we tackle a question of first impression within this circuit and, following the resolution of that question, affirm the interest award in part and reverse it in part. The tale follows.

I. BACKGROUND

We rehearse the relevant facts as found by the district court, seeNevor v. Moneypenny Holdings, LLC, 2016 WL 183906 (D.R.I. Jan. 14, 2016), consistent with record support. Plaintiff-appellee Kenneth Nevor was once a professional sailor. His experience included sailing, racing, and transporting racing yachts. His skillset extended to maintaining and repairing sailboats, their mechanical equipment, and their electronic gear.

Nevor began sailing as a boy and—by the age of 35—had participated in a number of elite racing events worldwide. At the time of the mishap giving rise to this action, Nevor was an employee of defendant-appellant Moneypenny Holdings, LLC (Moneypenny), which owned a 52–foot sailing vessel called the Vesper and a 35–foot motor support vessel called the Odd Job.

In March of 2011, Nevor was part of a crew preparing the Vesper for a regatta in the Caribbean. The Vesper was travelling in the British Virgin Islands when the members of the crew learned that they—but not the boat—needed to return to St. Thomas to clear customs. To facilitate this process, the Odd Job met the Vesper with a view toward carrying some crewmembers back to shore. When the Odd Job pulled up alongside the Vesper, the Vesper's captain directed some of the crew (including Nevor) to transfer from the Vesper to the Odd Job. The wind was blowing at between eight and twelve knots—normal for that time of year—but the sea was choppy. Still, the captain did not lash the Odd Job and Vesper together before proceeding with the transfer.

As Nevor disembarked the Vesper to board the Odd Job, the boats separated. Nevor slipped, grasping the Vesper's lifeline as he reached for the Odd Job with his foot. He was able to complete the transfer, but the stress on his right arm caused his bicep to tear from the bone.

Nevor stayed with the Vesper for two weeks after his injury to assist with race preparations. He then returned stateside to undergo surgery. Once the operation was performed, he completed six months of physical therapy. Even after he had finished the prescribed course of therapy, his treating physician found residual atrophy in the reattached muscle. Several months later, Nevor visited another specialist who determined that Nevor's right arm remained weaker than his left and was unlikely to improve. This specialist concluded that Nevor could not do the heavy lifting that his previous job demanded.

In June of 2013, Nevor invoked admiralty jurisdiction, see28 U.S.C. § 1333, and sued Moneypenny in Rhode Island's federal district court.¹ His complaint alleged negligence under the Jones Act, see46 U.S.C. §§ 30101 –30106, and unseaworthiness under general maritime law.

Following a four-day bench trial, the district court wrote a thorough and closely reasoned rescript stating its findings of fact and conclusions of law. The court awarded Nevor $1,460,458 in damages ($710,458 for loss of earnings and loss of future earning capacity and $750,000 for pain, suffering, and mental anguish).² SeeNevor, 2016 WL 183906, at *7. The court subsequently granted Nevor's motion to add prejudgment interest to the damages award. This increment, which totaled $858,029, brought the aggregate judgment to $2,318,487 (plus costs).

These consolidated appeals ensued.³ In them, Moneypenny concedes liability but challenges several of the monetary components of the judgment.

II. ANALYSIS

Moneypenny's claims of error fall into two broad categories. First, it offers various reasons why the award of damages should be deemed excessive. Second, it assails the prejudgment interest award as totally inappropriate and, alternatively, says that no prejudgment interest should accrue on damages for future harm. We address these claims sequentially.

A. Damages.

As an opening salvo, Moneypenny blasts the district court's stated basis for awarding economic damages (lost wages and prospective loss of earning capacity). In its words, the court's factual findings were "clearly erroneous" and "premised on inadmissible speculation."

In the aftermath of a bench trial, we review the district court's factual findings for clear error. SeeReliance Steel Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d 575, 576 (1st Cir. 1989). We will set aside those findings "only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed." Id.(citation omitted). Whether we would have reached the same result as the district court is not the issue: "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. at 577 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ).

This deferential standard of review applies with unabated force when a district court's findings depend wholly or in part on expert testimony. When judges act as factfinders, they are given "considerable leeway in choosing among the views of experts and in determining the weight and value to be assigned to the opinions of each expert." Reilly v. United States, 863 F.2d 149, 167 (1st Cir. 1988).

At trial, the parties presented detailed information about the sailing industry, as well as expert testimony about Nevor's physical limitations, projected wages, past and future earning capacity, vocational capabilities, and work-life expectancy. With respect to Nevor's projected wages and lost earning capacity—the focal points of the district court's economic damages calculation—Nevor's experts testified that at the time of the accident he was "at the cusp" of joining the ranks of the ultra-elite sailors who earned between $100,000 and $120,000 per year. This evidence was consistent with the fact that, in the first three months of 2011 (the year of his injury), Nevor already had earned just shy of $30,000 working for Moneypenny. The experts went on to explain that Nevor was one of "only maybe a thousand people" competing internationally at an elite level and that he had the skills and strength required to advance. Similarly, they opined that, but for the injuries sustained in the accident, Nevor could have remained employed as a top-echelon sailor for several decades.⁴

Of course, this evidence did not go unrebutted. Moneypenny presented expert testimony that Nevor sustained virtually no loss in earning capacity as a result of the accident and that, even if not injured, he was unlikely to earn more than $100,000 per year as a sailor.

The district court sided with Nevor's experts. It concluded that, but for the injuries sustained in the accident, Nevor "would have continued to be employed in high-level sailing" and "would have advanced as a professional sailor in his chosen field if he had not been injured." Nevor, 2016 WL 183906, at *6. In reaching these conclusions, the court found persuasive the testimony voiced by Nevor's witnesses regarding his vocational capabilities, earning capacity, and work-life expectancy.

In this venue, Moneypenny asseverates that the compiled record offered "no reliable means of predicting the duration of Nevor's sailing career, the positions which he may have held, or the income which he might have earned." And although Moneypenny concedes that it might have been "possible" for Nevor to reach sailing's upper echelon and earn the wages commensurate with sailing at that level, it insists that the evidence fell well short of the "reliable demonstration" benchmark set by the Supreme Court. SeeJones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534–35, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983) (explaining that "[a]lthough it may be difficult to prove when, and whether, a particular injured worker might have received [ ] wage increases, ... they may be reliably demonstrated for some workers").

Contrary to Moneypenny's importunings, a reliable demonstration does not demand proof positive. Forecasting future losses necessarily requires the trier to sift through the projections of experts, gauge the credibility of witnesses, and draw reasonable inferences from the facts. SeeJohnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995) ; Reliance Steel, 880 F.2d at 576. While robes and gavels, not tea leaves or crystal balls, are the tools of a trial judge's trade, some degree of speculation is inherent in any such forecast. A reliable demonstration demands only that the court's prediction is reasonable, given the facts in the record. Here, we must give due weight to the court's determinations of witness credibility, its findings as to the relative persuasiveness of various experts, and its appraisal of competing facts. SeeReliance Steel, 880 F.2d at 576.

Viewed through this prism, we find plentiful support in the record for the court's determination that...