Bommarito v. Penrod Drilling Corp.

• Citation: 929 F.2d 186
• Decision Date: 22 April 1991
• Docket Number: No. 90-3175,90-3175
• Parties: Joseph H. BOMMARITO, Plaintiff-Appellee, v. PENROD DRILLING CORP., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 186

929 F.2d 186

1993 A.M.C. 2107

Joseph H. BOMMARITO, Plaintiff-Appellee, v. PENROD DRILLING CORP., Defendant-Appellant.

No. 90-3175.

United States Court of Appeals,

Fifth Circuit.

April 22, 1991.

Andrew C. Wilson, Bernard H. Ticer, Daniel E. Knowles, III, Burke & Mayer, New Orleans, La., for defendant-appellant.

Robert T. Myers, Robert J. Young, Jr., Young, Richaud, Theard & Myers, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, SMITH, and WIENER, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Plaintiff Joseph Bommarito brought this Jones Act/general maritime law action seeking damages for work-related back injuries against his employer, Penrod Drilling Corporation (Penrod). The trial court entered judgment on a jury verdict in Bommarito's favor and denied Penrod's motions for j.n.o.v., new trial, and remittitur. Penrod now appeals, asserting that the trial court erred in (1) denying its motion for directed verdict, (2) refusing a certain jury instruction, and (3) excluding expert testimony regarding a relevant statistical study. Unable to find any error in the district court's actions, we affirm its judgment.

A Heavy Load

In June 1988 Bommarito was employed as a watch-stander aboard the rig PENROD 78, a semi-submersible drilling rig moored off the Louisiana coast. As a watch-stander, Bommarito was responsible for checking the vessel for proper balance during the drilling operation as well as for adherence to safety regulations. On June 30, 1988, Bommarito came upon several empty oxygen and acetylene tanks (cylinders) that had been left in the lower hold of the rig by Penrod welders. Because these tanks posed a fire hazard, Bommarito reported the misplaced tanks to his supervisor, Cy Thompson, who instructed Bommarito to move the empty cylinders. Thompson sent Johnny Jones, a roustabout, to the lower hold to help Bommarito move the oxygen and acetylene tanks (empty weight 144 lbs. and 180 lbs., respectively) to the proper storage facility.

According to Bommarito, the two moved the first cylinder to the "drill tool room" without incident. In order to reach the room, they had to raise the tank over the "lip" of a watertight doorway. As they were moving the second tank through the doorway, Bommarito suffered an injury to his back. Bommarito alleges that Jones did not properly raise the cylinder and shifted a disproportionate share of its weight to Bommarito, injuring him. Adding to his claim that Jones himself was negligent, Bommarito also states that the employer was negligent in furnishing an unfit helper, who he says had not fully recovered from a serious ankle injury and had a heart ailment at the time of Bommarito's injuries. Jones, called as a witness for Penrod, testified that his ankle was completely healthy on June 30, 1988, that his heart problem did not affect his job performance, and that, in any event, Bommarito was lifting the cylinders by himself in a "bear hug" fashion when he allegedly suffered the injury to his back.

Immediately following this incident Bommarito reported his injury to the toolpusher who prepared an accident report. Thereafter Bommarito was transported by helicopter to a nearby hospital where emergency treatment was administered. Advised by physicians not to return to offshore employment, Bommarito obtained a lower-paying desk job at the Naval Air Station in Pensacola, Florida.

Bommarito filed suit against Penrod under the Jones Act, 46 U.S.C.App. Sec. 688, and charged that his injuries were caused by Penrod's negligence in assigning Jones the task of aiding him in lifting the heavy cylinders, and because of the unseaworthiness of the rig PENROD 78. The jury found for Bommarito on both the negligence and unseaworthiness claims and awarded him $355,000 in damages.

At the close of the plaintiff's evidence, the trial court rejected Penrod's motion for directed verdict on the issues of Jones Act negligence and unseaworthiness. During the defense's presentation, the trial court precluded Penrod's economist expert from mentioning the "Camus Report," a private statistical study of offshore workers. At the end of all the evidence, Penrod renewed its motion for directed verdict, which the court again denied, as it did Penrod's motions for j.n.o.v., new trial, and remittitur. Penrod brings this appeal.

Directed Verdict Properly Denied

Penrod argues that the district court erred in denying the employer's motions for directed verdict as to both the negligence and unseaworthiness claims. The employer contends that Bommarito failed to adduce any evidence which showed Jones was negligent, or that connected his back injury to any act by Penrod or any condition on the rig and, therefore, that it was entitled to a directed verdict.

(i) Jones Act Negligence

As this Court has held in countless cases presenting the Jones Act "featherweight" burden, directed verdict is justified "[o]nly when there is a complete absence of probative facts to support the verdict." Thornton v. Gulf Fleet Marine Corp., 752 F.2d 1074, 1076 (5th Cir.1985) (quoting Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 743, 90 L.Ed. 916, 922 (1946)); see also Comeaux v. T.L. James & Co., 702 F.2d 1023, 1024 (5th Cir.1983), modifying 666 F.2d 294 (5th Cir.1982); Alvarez v. J. Ray McDermott & Co., 674 F.2d 1037, 1042 (5th Cir.1982). The jury's verdict must be allowed to stand unless the plaintiff failed to put forth at least a marginal claim for relief. See id.; Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1120 (5th Cir.1984); Leonard v. Exxon Corp., 581 F.2d 522, 524 (5th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 397 (1979). Like the trial court, we review all evidence in the light most favorable to the party (Bommarito) opposing the motion. Day v. South Park Independent School Dist., 768 F.2d 696, 699-700 (5th Cir.1985); Brewer v. Blackwell, 692 F.2d 387, 391 (5th Cir.1982).

Our review of the record leads us to conclude that Bommarito easily met his "featherweight" burden of proof. See Holmes, 734 F.2d at 1120. Bommarito's theory emphasizes that Jones, the helper assigned to assist Bommarito in lifting the heavy cylinders, by favoring his earlier-injured ankle, shifted a disproportionate amount of weight to Bommarito, resulting in injuries which Bommarito immediately sustained and reported. Penrod asserts that Bommarito failed to put forth any evidence which linked his injuries to Jones's physical condition.

All of this was for jury resolution. At trial, several witnesses, including Jones and Bommarito, testified that Jones suffered a severe injury to his ankle in September 1987 and reinjured it in May 1988. Medical reports corroborated this testimony and supported Bommarito's claim that Jones also had a heart condition. Bommarito also testified that he observed Jones limping and heard him complain of pain from the ankle after he returned to work, and that supervisors had decided to "take it easy on him" until he was fully recovered. Finally, Bommarito testified on direct examination that his back injury occurred as a result of Jones's shifting the weight of the tank, presumably from his favoring his ankle while the two were carrying the heavy cylinder. Bommarito summed it up: "With the condition of his ankle and then he was trying to keep the weight off of it and I ended up getting hurt." ¹ Bommarito also recounted the following exchange:

Q. Did you say anything to Johnny Jones at the time that you injured your back?

A. Yes, sir, something to the effect, Darn it, Johnny, why didn't you pick up more on it? ...

Penrod argues that this crucial portion of Bommarito's testimony was conclusory and did not provide the probative facts necessary to survive the employer's motion for directed verdict. Although Jones countered that Bommarito lifted the cylinder without help and against company regulations, Bommarito's contrary evidence made the issue one for jury determination. See Thornton, 752 F.2d at 1076. Viewing the evidence in Bommarito's favor, we hold that his claim that Jones shifted too much of the cylinder's weight to him is sufficiently supported.

(ii) Unseaworthiness

Because the judgment is adequately supported on the Jones Act negligence claim, consideration of the unseaworthiness aspect of the suit is unnecessary. See F.R.Civ.P. 61. Nevertheless, we sustain the trial court's rulings on unseaworthiness.

We evaluate the denial of Penrod's directed verdict motion as to Bommarito's unseaworthiness claim under a different, less stringent standard than that applied to Jones Act negligence. As we stated in Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), directed verdict disposal of such a claim is justified only "[i]f the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict...." See also, Thornton, 752 F.2d at 1075-76. Bommarito based the unseaworthiness claim on Jones's incapacity. He asserts that the rig PENROD 78 was unseaworthy because of the injured roustabout's inability to perform the heavy labor assigned. See Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955) (unfit crew may provide basis for unseaworthiness claim); Miles v. Melrose, 882 F.2d 976, 981 (5th Cir.1989) (same). We find that the evidence presented in support of the negligence claim also satisfies the Boeing standard and hold that the trial court did not err in denying Penrod's motion for directed verdict on the unseaworthiness claim.

Instruction On Unseaworthiness

Penrod also contends that the trial court improperly charged the jury on the law of unseaworthiness and improperly refused Penrod's requested instruction. We afford the trial judge's choice of jury instructions great deference, employing a two-part test to evaluate objections to the court's...