Milone v. Moceri Family, Inc., 87-1528

• Decision Date: 04 April 1988
• Docket Number: No. 87-1528,87-1528
• Citation: 847 F.2d 35
• Parties: Vincent MILONE, Plaintiff, Appellant, v. MOCERI FAMILY, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 35

847 F.2d 35

Vincent MILONE, Plaintiff, Appellant, v. MOCERI FAMILY, INC., Defendant, Appellee.

No. 87-1528.

United States Court of Appeals First Circuit.

Heard April 4, 1988.

Decided May 31, 1988.

Joseph M. Orlando with whom Orlando & Associates, Gloucester, Mass., was on brief, for plaintiff, appellant.

Thomas E. Clinton with whom Clinton & Muzyka, P.C., Boston, Mass., was on brief, for defendant, appellee.

Before COFFIN, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This maritime tort suit, in its ebb and flow, illustrates yet again that "the seaman's story is [one] of tempest." Clauson v. Smith, 823 F.2d 660, 661 (1st Cir.1987) (quoting Sextus Propertius).

I

Plaintiff-appellant Vincent Milone claimed to have injured his right knee on February 20, 1985 while employed aboard the F/V ANDROMEDA. He sued the vessel's owner, Moceri Family, Inc. (MFI), in federal district court. Milone's complaint contained three counts: unseaworthiness (Count 1); negligence under the Jones Act, 46 U.S.C.App. Sec. 688 (1982) (Count 2); and maintenance and cure (Count 3). MFI denied that it was guilty of negligence or that the ANDROMEDA was unseaworthy. It also disputed that plaintiff had been harmed in February of 1985, tracing Milone's complaints to a non-work-related event which occurred over a year earlier. In MFI's view, the surgery performed in April 1985 and all of the associated symptomatology and treatment flowed from the preexisting injury.

The case was tried to a jury, which answered special interrogatories. The jury reported its verdict in open court as follows:

THE CLERK: Mr. Foreman, members of the jury, listen to the verdict as the Court records it.

Question 1: Was there an event on the ANDROMEDA on or about February 20, 1985, which injured plaintiff Vincent Milone's right knee or aggravated a pre-existing injury to that knee?

Answer: Yes.

Question 2(a): On or about February 20th, 1985, was the winch operator of the ANDROMEDA negligent, and, if so, was that negligence a cause of the harm to plaintiff Vincent Milone's right knee?

Answer: Yes.

Question 2(b): Was the defendant Moceri Family Inc. negligent using wire on the winch head of the ANDROMEDA and, if so, was the negligence a cause of the harm to plaintiff Vincent Milone's right knee on or about February 20th, 1985?

Answer: No.

Question 3: Was the ANDROMEDA unseaworthy because wire was used on the winch head and, if so, was that unseaworthiness a proximate cause of the harm to Vincent Milone's right knee on or about February 20th, 1985?

Answer: No.

Question 4(a): What amount, if any, is required to compensate plaintiff Vincent Milone fairly and reasonably for his damages?

Answer: $29,000.

Question 4(b): Do you award the plaintiff Vincent Milone prejudgment interest?

Answer: No.

The court thereupon entered judgment for plaintiff on Counts 2 and 3, and in defendant's favor on the first count (unseaworthiness). Milone, disappointed by the size of the award, moved for a new trial limited to the issue of damages on Count 2 (the Jones Act claim). After entertaining argument, the district judge denied the motion from the bench. This appeal challenges only the refusal to grant the limited new trial.

II

We restate briefly the tenets which govern appellate oversight of new trial motions in civil cases. In the federal system, a trial judge cannot displace a jury's verdict merely because he disagrees with it or would have found otherwise in a bench trial. Absent error of law (and we see none here), the judge's prerogative to set aside a verdict crystallizes only if "it is quite clear that the jury has reached a seriously erroneous result." Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978) (citation omitted). In our litany of cases, we have come to refer to this criterion as the "manifest miscarriage of justice" standard. E.g., Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir.1987); Insurance Co. of North America v. Musa, 785 F.2d 370, 375 (1st Cir.1986); Valm v. Hercules Fish Products, Inc., 701 F.2d 235, 237 (1st Cir.1983); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir.1980). We review a district court's application of the standard solely for abuse of discretion. See Real v. Hogan, 828 F.2d 58, 61 (1st Cir.1987).

Where, as here, an appellant contests the insufficiency or excessiveness of a jury's award of damages in a personal injury case, he bears a particularly heavy burden. As we have said: "Translating legal damage into money damages--especially in cases which involve few significant items of measurable economic loss--is a matter peculiarly within a jury's ken." Wagenmann, 829 F.2d at 215. For just this reason, "[w]e rarely will override the jury's judgment on the appropriate amount of damages to be awarded." Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir.1987). The jury, as we see it, is free to run the whole gamut of euphonious notes--to harmonize the verdict at the highest or lowest points for which there is a sound evidentiary predicate, or anywhere in between--so long as the end result does not violate the conscience of the court or strike such a dissonant chord that justice would be denied were the judgment permitted to stand. See Wagenmann, 829 F.2d at 215; Segal v. Gilbert Color Systems, 746 F.2d 78, 80-81 (1st Cir.1984); McDonald v. Federal Laboratories, 724 F.2d 243, 246 (1st Cir.1984). In other words, if--after scanning the evidence in the light most congenial to the nonmovant, Wagenmann, 829 F.2d at 215--the verdict does not exceed or fall below "any rational appraisal or estimate of the damages that could be based on the evidence before the jury," Segal 746 F.2d at 81 (citation omitted), it should be validated.

With this panorama in mind, we turn to the circumstances at bar.

III

The linchpin of appellant's dissertation is a trial stipulation entered into by the parties to save the jury from computational effort. Under the terms of that stipulation, the parties agreed that, if plaintiff was entitled to recover past lost wages in consequence of his injury, the wages amounted to $29,000, net of taxes. Plaintiff portrays the scenario thusly: since the jurors, having found negligence and harm, were bound to award $29,000 for past earnings, and since they awarded only this amount, then it is evident that they ignored his pain, suffering, and other claimed noneconomic losses entirely. ¹ This makes it likely, plaintiff says, that the jurors became confused and treated the $29,000 verdict "floor" as a "ceiling," or simply ignored the evidence and the judge's instructions. Either way, he claims that he deserves a new trial.

The answer to the conundrum, we think, is not so easily to be constructed. Rather, the solution lies mainly in the court's charge. With respect to Count 2, the venire was told in relevant part:

1. Liability exists "if the plaintiff proves by a preponderance of the evidence that the defendant's negligence ... played any part, however small, in bringing about the injury to ... the right knee or an aggravation of pre-existing injury to the right knee."

2. If "any proven negligence caused or contributed to the harm of the plaintiff's right knee, even to the slightest degree, then you must find for the plaintiff on the issue of negligence."

3. Do not "award the plaintiff any damages ... for the amount he has suffered by virtue of a pre-existing injury or the amount you find he would suffer in the future due to a pre-existing injury.... [I]f you find that he had a pre-existing injury and it was bound to worsen anyway, don't award any damages in the amount that it would have worsened anyway. The concept is that, if you reach the issue of damages, you are to award damages for the harm proven to be caused by the defendant."

4. As to damages, they "are intended to be compensatory.... They have to be actual damages, not speculative damages. And the concept is, if you reach damages, to determine what amount, if any, is necessary to make the plaintiff whole. What amount is necessary to make him as well off as he would have been if the alleged accident had never occurred."

5. As to past lost wages, "if you reach the issue of damages, then you will get to the point where the stipulation regarding past lost earnings is relevant. The parties, by that stipulation, of course, do not agree, particularly the defendant does not agree, that the plaintiff is entitled to recover any damages. But if you ... decide he is entitled to some damages, your award should include the $29,000 for past lost wages and anything else you find established by the evidence. You should not leave that $29,000 amount out because [of the stipulation]."

Plaintiff, despite his evident unhappiness with the niggardly verdict, assigns no error to the instructions and preserved no objections to them. On their face, the charge excerpts quoted above are not patently wrong. They have become, therefore, the law of the case. Murphy v. Dyer, 409 F.2d 747, 748 (10th Cir.1969). See generally Fed.R.Civ.P. 51; McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984).

IV

Because the jury awarded Milone only the amount of the stipulated lost wages--no more, no less--he asserts that the verdict was too paltry and that the district court should have ordered a new trial on damages. He exhorts us to apply what he terms a "per se rule" to reach this result. Alternatively, he argues that, per se rule or no, the interests of justice require that we set the verdict aside. We examine these contentions seriatim.

A. The per se rule. Appellant's formulation of the per se rule seems to be as follows: "Where a personal injury award reflects the exact amount of a plaintiff's out-of-pocket losses, the verdict establishes on its face that the jury failed and refused to award compensation for pain and suffering and for ... disability, and refusal of a trial court to grant a new trial amounts to an abuse of discretion."...