Cook v. American S.S. Co., 93-1571
| Decision Date | 05 May 1995 |
| Docket Number | No. 93-1571,93-1571 |
| Citation | 53 F.3d 733 |
| Parties | , 41 Fed. R. Evid. Serv. 1148 Robert D. COOK, Plaintiff-Appellant, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Donald A. Krispin, Robert A. Jenkins (argued), Jaques Admiralty Law Firm, Detroit, MI, Leonard C. Jaques (briefed), The Maritime Asbestosis Legal Clinic, Detroit, MI, for plaintiff-appellant.
Thomas W. Emery (argued), Daniel S. Saylor, David M. Shafer (briefed), Garan Lucow, Miller, Seward, Cooper & Becker, Detroit, MI, for defendant-appellee.
Before: RYAN and SILER, Circuit Judges; DOWD, District Judge. *
The plaintiff, Robert D. Cook, appeals from the judgment entered after a jury verdict in this action for negligence under the Jones Act, 46 U.S.C. Sec. 688, and for unseaworthiness. Cook brought suit after he was injured when a line that was supporting him in a bos'n's chair parted and he fell to the dock. The jury awarded Cook compensatory damages, but reduced them by 50% for Cook's comparative negligence.
Cook assigns error to three of the district court's rulings: 1) the admission of expert opinion as to the cause of the line's parting; 2) the denial of Cook's motion for a directed verdict on the issues of unseaworthiness and comparative negligence; and 3) the admission of evidence of Cook's alcohol related ailments.
Our holding is threefold: First, the district court erred when it allowed American Steamship's expert to offer his opinion as to the cause of the line's parting because the opinion was not expert testimony. Second, the district court erred in denying Cook's motion for judgment as a matter of law on the issue of unseaworthiness, but it did not err in denying Cook's motion for judgment as a matter of law on the issue of comparative negligence. Third, the district court did not err when it allowed the defendant to introduce evidence of Cook's alcohol related ailments. Therefore, the judgment entered below must be vacated and the case remanded for a new trial.
Robert Cook worked as a deckhand for the defendant, the American Steamship Company. On the afternoon of December 26, 1990, Cook was working aboard the Motor Vessel BUFFALO, which was entering the port of Escanaba, Michigan, to take on a load of iron ore. Escanaba is located on the southern shore of Michigan's upper peninsula, on Lake Michigan. Because there were no personnel on the dock at Escanaba to assist the BUFFALO in tying up, one of the ship's crew had to be lowered to the dock. This was a common procedure and was accomplished by lowering a crewman on a bos'n's chair, which was basically a board supported by a line, much like a child's playground swing. The line supporting the bos'n's chair is threaded through a large boom on the ship; the boom is swung out over the dock side of the vessel; and the crewman is lowered to the dock. On the day in question, the lake was turbulent and the temperature was below freezing. Cook was the most experienced deckhand on duty that afternoon and he was designated to be lowered on the bos'n's chair.
Ordinarily, the crew would have an hour to rig the boom with the bos'n's chair, but the lake was so rough, the ship's master, Captain Edward Derry, ordered that no one go on deck until the BUFFALO had passed the breakers of Escanaba harbor. This left the crew with only 15 to 20 minutes to complete the rigging of the boom. Worsening matters was the large amount of ice that had formed on the deck and the boom. The spray from the rough sea quickly froze wherever it landed on the ship in the sub-zero temperatures and wind. Cook and crewman Gordon Cherup used propane torches to deice the boom. These torches had a large tank connected to a three foot wand that emitted a one foot flame.
The boom has a 27-foot horizontal arm from which hang two pulleys. The horizontal arm is connected to a vertical post that pivots on two bearings. One bearing is at deck level and the other is chest high. While the ship is moving, the boom is secured inboard. When the crew is ready to lower someone in the bos'n's chair, the boom is swung outboard over the dock.
When Cook tested the boom, it would not swing out because the crew had failed to change the grease in the bearings from summer to winter grease and the summer grease had frozen. To correct the problem, Cook applied the flame of his torch to the bearings. He worked on each bearing for several minutes before the grease loosened up enough for the boom to pivot.
After Cook had finished with the bearing at chest height, but while he was still working on the bearing at deck level, crewman Kirk Austin began to rig the line for the bos'n's chair. The line attached to the bos'n's chair was kept in the windlass room, which is waterproof and heated by two powerful gas heaters. The line was 3/4 diameter manilla rope approximately 134 feet long. The crew had used this line for some time, and in the summer months it had been left rigged while the ship traveled from port to port. Cook used his deicing torch on the deck level bearing for perhaps a minute after Austin finished rigging the line.
Austin rigged the line by feeding it through the two pulleys that hung from the boom. He passed the line around the post, ran it around a cleat, and coiled it on the deck. This rigging would allow the third mate to feed the line out slowly, lowering Cook in the bos'n's chair. Austin was to be the second man lowered to the dock after Cook.
When everything was ready, Cook mounted the bos'n's chair, the crew swung the boom out, and the third mate, Dominick Gorno, began to feed out the line. When Gorno had fed out about 10 feet of line, the line parted and Cook fell about 20 feet to the dock. Cook's left arm and wrist fractured, his left heel was crushed, and he suffered a back injury. He was taken to the hospital and treated for his injuries.
After the accident, the line that had parted was removed from the boom and stored in the windlass room. The crew prepared accident reports for the U.S. Coast Guard and for the American Steamship Company. Captain Derry notified the company by telephone of the accident. Don Pfohl, one of the company's accident investigators, and Thomas Emery, one of its attorneys, met the BUFFALO at its next port of call, Ashtabula, Ohio, and took possession of the line that had parted.
One of Cook's theories at trial was that the BUFFALO had been unseaworthy because the line had parted in its normal functioning. Cook also claimed that the vessel owner was negligent and that Cook was entitled to recover for his injuries under the Jones Act, 46 U.S.C. Sec. 688. American Steamship's counter-theory was that Cook had somehow burned the line with his torch, and that his negligence in doing so was the sole cause of the line parting and of his injuries. Cook alleged that he was permanently disabled because of his injuries. American Steamship countered that Cook would be fit to return to work except for his alcohol related ailments.
The jury found that the BUFFALO had been unseaworthy and that American Steamship had been negligent. The jury found that Cook's damages were $200,000, but that he had been 50% negligent. A judgment in Cook's favor for $100,000 was entered. Cook timely filed notice of appeal.
Cook's first claim on appeal is that the district court erred in allowing American Steamship's expert, Michael Timmons, to offer his opinion as an expert that the cause of the accident was that the line supporting Cook had parted because it had been burned. Cook argues that Timmons was not qualified to render this opinion.
As the Supreme Court explained in Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the standards for admissibility of expert testimony are found in Fed.R.Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The first and universal requirement for the admissibility of expert opinion testimony is that the evidence must be reliable and relevant. Under Daubert, id. at ---- - ----, 113 S.Ct. at 2796-97, the reliability requirement is met if the trial judge makes a preliminary finding under Fed.R.Evid. 104(a) that the scientific or technical theory which is the basis for the expert's opinion is indeed "scientific, technical, or ... specialized knowledge." Also, the relevancy requirement is met if the trial judge determines, under 104(a), that the expert's opinion "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702.
Many opinions from this and other circuits have declared that a district court's decision to admit expert testimony is reviewed for an abuse of discretion. 1 That statement is an oversimplification and is often incorrect; and, in all events, does not adequately describe the standard of review required by the Federal Rules of Evidence for the admissibility of expert opinion evidence.
Appellate review of trial court rulings on the admissibility of expert opinion testimony under Fed.R.Evid. 702, depending upon the assignment of error, may involve as many as three separate standards of review. The trial court's preliminary factfinding under Rule 104(a) is reviewed for clear error. These facts include, but are not limited to, whether the witness's "knowledge, skill, experience, training, or education," Fed.R.Evid. 702, are such as to qualify him or her to testify as an expert at all, and it may include a determination of the tests or experiments that the proffered expert conducted, if any. The court's determination whether the opinion the expert wishes to offer is properly the...
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