Holmes v. J. Ray McDermott & Co., Inc.

• Decision Date: 25 June 1984
• Docket Number: No. 83-3356,83-3356
• Citation: 734 F.2d 1110
• Parties: , 15 Fed. R. Evid. Serv. 1682 Harry HOLMES, Plaintiff-Appellee, v. J. RAY McDERMOTT & COMPANY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1110

734 F.2d 1110

1985 A.M.C. 2024, 15 Fed. R. Evid. Serv. 1682

Harry HOLMES, Plaintiff-Appellee, v. J. RAY McDERMOTT & COMPANY, INC., Defendant-Appellant.

No. 83-3356.

United States Court of Appeals Fifth Circuit.

June 25, 1984.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Edward J. Koehl, Jr., New Orleans, La., for defendant-appellant.

Windhorst, Heisler, De Laup & Wysocki, James A. Wysocki, Bonnie L. Zakotnik, for plaintiff-appellee.

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

Before GEE, RANDALL and JOHNSON, Circuit Judges.

RANDALL, Circuit Judge:

In this action brought under the Jones Act and the general maritime law, the defendant appeals the district court's judgment on numerous grounds. For the reasons set forth below, we affirm in part, reverse in part, and remand.

I. Factual and Procedural Background.

On May 8, 1977, the plaintiff-appellee, Harry Holmes, was employed as a rigger by the defendant-appellant, J. Ray McDermott & Company. Holmes was working on McDermott's Lay Barge 23, which was situated in the Gulf of Mexico.

While working on Lay Barge 23, Holmes and several other workers were instructed by their foreman to move a length of steel cable from one part of the vessel to another. As the men carried the cable, an eye (a doubled-over loop of cable) caught on a padeye on the deck, jerking the men to a halt. The others dropped the cable; Holmes did not, and his back was injured.

McDermott paid for Holmes' medical treatment and maintenance and cure from May 9, 1977 through August 14, 1977. During that period, Holmes was examined by four doctors to whom McDermott referred him. None found any objective indication of a back injury. McDermott's termination of Holmes' maintenance and cure on August 14, 1977 was based on these findings.

On August 16, 1977, Holmes went to Dr. Kenneth Vogel, who examined him and diagnosed a herniated lumbar disc. When Holmes did not respond to conservative treatment, Dr. Vogel hospitalized him and, on September 17, 1977, Holmes underwent a lumbar laminectomy and rhisotomy.

Suit was filed on August 24, 1977. McDermott refused to reinstate Holmes' maintenance and cure or to pay his medical bills, despite being sent Dr. Vogel's report and Holmes' hospital records.

At trial, Dr. Vogel testified that Holmes reached maximum medical recovery on September 18, 1978, and that at that time, Holmes' back pain had been alleviated seventy per cent by the surgery. He also testified that another ten per cent of Holmes' pain was relieved by the subsequent use of a transcutaneous electrical nerve stimulator, or TENS unit, for a total recovery of eighty per cent.

A psychologist and a psychiatrist, both of whom had treated Holmes, testified as expert witnesses. The psychologist testified that Holmes' injury had contributed to a depression that continued at least until 1981, and that Holmes was not prevaricating about his continued back pain. An offshore operations safety expert testified that, in his opinion, the cable that Holmes had lifted was of an excessive and unsafe weight, whether the diameter of the cable was one-and-a-half, two-and-a-half, or four inches in diameter.

Two of Holmes' co-workers also testified with regard to the events of May 8, 1977. On direct examination, both of them were shown prior statements that they had made to Holmes' attorney. Holmes also testified as to what transpired on the day he was injured. Holmes stated that the cable was four inches in diameter, and that it was forty feet long doubled-over. He testified that there were five men involved in lifting the cable: two at each end, and himself in the middle. He stated that when he first bent over to pick up the cable, he felt a "ripping loose feeling" in his back, but continued to lift. As the crew proceeded down the barge's deck, the looped end of the cable caught on a padeye on the deck, and the rest of the men dropped the cable but Holmes held on. He testified that he felt pain in his back at that point.

The jury found for Holmes, and awarded him $412,098.22 in general damages; $7,918 for maintenance and cure from the date that it was terminated by McDermott, August 14, 1977, until the date that the jury found Holmes to have reached maximum medical recovery, June 21, 1979; special damages in the amount of $11,550 for McDermott's willful and arbitrary refusal to reinstate Holmes' maintenance and cure; and attorneys' fees in an unspecified amount for services rendered with reference to McDermott's arbitrary and willful conduct.

On the first appeal of this case, we held that because the trial court had not at the time of the appeal determined the amount of the attorneys' fee award, the judgment was not final and we did not have jurisdiction to hear the appeal. Holmes v. J. Ray McDermott & Co., Inc., 682 F.2d 1143 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983) ("Holmes I "). We recognized that in certain categories of cases, an attorneys' fee award is merely collateral to the main dispute, see, e.g., Obin v. District No. 9 of the Int'l Ass'n of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir.1981), and may sometimes be characterized as akin to costs, see, e.g., Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980). We held, however, that in a case involving an award of attorneys' fees as part of the plaintiff's damages for the defendant's willful and arbitrary failure to pay maintenance and cure, the fee award constituted an element of the plaintiff's damages and "was not uniquely separable from the merits but was bound hand in hand with them." 682 F.2d at 1147. Because the amount of the award had not been set by the district court, therefore, we held that the order appealed from was not final and dismissed the appeal for want of jurisdiction. Id. at 1148.

On remand, the trial court heard testimony with regard to the amount of attorneys' fees and fixed them in the amount of $10,000 for services rendered with regard to the maintenance and cure issue. This appeal on the merits of the case, including the attorneys' fee award, followed.

ISSUES ON APPEAL.

II. Use of Prior Statements.

At trial, two of Holmes' co-workers who were in the crew that lifted the cable, George Bass and Stanley Thibodeaux, testified with reference to Holmes' accident. During direct examination, Thibodeaux testified that he could not remember the events of May 8, 1977 because "[i]t's hard for me to remember that far back. That's over four years ago." Record Vol. IV at 165. Holmes' attorney then asked Thibodeaux if he recalled giving a statement on March 21, 1981. Thibodeaux confirmed that he gave such a statement and that, although there were certain errors in the statement, it refreshed his recollection as to what had happened on May 8, 1977. Although the statement asserted that the cable was four inches in diameter, Thibodeaux testified that the cable was actually two-and-a-half inches, and that his prior statement was mistaken on that point.

Similarly, Bass indicated that a statement that he had given to Holmes' attorney on January 7, 1980 refreshed his recollection as to the events of May 8, 1977. Like Thibodeaux, Bass recanted his prior statement to the extent that it stated the diameter of the cable to be four inches, and testified that he did not know what the diameter actually was. He also recanted his prior statement to the extent that it said that Holmes had "let out a scream of pain," testifying instead that Holmes "more or less grunted and grabbed his back." Record Vol. VII at 134. During closing argument, Holmes' attorney quoted from Bass' and Thibodeaux' statements.

On appeal, McDermott contends that the district court erred in permitting Holmes to use the prior statements. McDermott asserts that the statements were not taken when the events in question were fresh in the witnesses' minds; that there was insufficient indication that the witnesses did not independently recall the events in question; that the witnesses partially recanted the statements; and that the statements were handwritten by Holmes' attorney.

Federal Rule of Evidence 803(5) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness;

* * *

* * *

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

McDermott contends that because Bass' statement was taken almost three years after the accident and Thibodeaux' statement was taken nearly four years after the accident, they cannot be considered "fresh" in the witnesses' memories. McDermott acknowledges that there is no clear standard by which freshness is determined, but asserts that "it is difficult to imagine when statements taken three and four years after the accident could be considered 'fresh.' " Holmes contends that the prior statements were used to impeach the witnesses pursuant to Federal Rule of Evidence 607, rather than to refresh their recollection pursuant to rule 803(5). Holmes also asserts that, in any case, the prior statements met the requirements of rule 803(5).

Our analysis of this issue renders it unnecessary for us to decide the propriety of the use of the prior statements under either rule. With regard to Bass, the record clearly reflects that, even if his prior statement was inadmissible under either rule 803(5) or rule 607, its admission was harmless error. See Federal Rule of Civil Procedure 61. Bass testified at length and in detail before his prior statement was brought in. His version of the...