Sheek v. Asia Badger Inc

• Decision Date: 06 October 2000
• Docket Number: Nos. 99-2221,00-1116,s. 99-2221
• Parties: (1st Cir. 2000) JACK SHEEK, Plaintiff, Appellee, v. ASIA BADGER, INC., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 687

235 F.3d 687 (1st Cir. 2000)

JACK SHEEK, Plaintiff, Appellee, v. ASIA BADGER, INC., Defendant, Appellant.

Nos. 99-2221, 00-1116.

United States Court of Appeals, For the First Circuit.

Heard Oct. 6, 2000.

Decided December 29, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Reginald C. Lindsay, U.S. District Judge. [Copyrighted Material Omitted] William A. Zucker, with whom Risa G. Sorkin and Gadsby Hannah LLP, were on brief, for appellant.

Dana A. Curhan, with whom Kenneth Levine, Ross Annenberg and Annenberg and Levine, were on brief, for appellee.

Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Boudin, Circuit Judge.

TORRUELLA, Chief Judge.

On March 9, 1994, plaintiff-appellee Jack Sheek, while working as an employee of Mobil Oil Singapore Private Ltd. ("Mobil") in Jurong, Singapore, slipped on a small pipe and injured his shoulder. Sheek brought suit in United States district court against defendant-appellant Asia Badger, Inc. ("Asia Badger"), alleging that Asia Badger or one of its subcontractors performed certain repiping work and negligently failed to correct a known hazardous condition which proximately caused him serious injuries. A jury found in favor of Sheek and awarded him $387,000. Asia Badger appeals, arguing that the district court committed reversible error by: (1) making erroneous evidentiary rulings; (2) giving the jury confusing and misleading jury instructions; and (3) denying Asia Badger's post-verdict motions for judgment notwithstanding the verdict and a new trial.

For the reasons set forth below, we affirm the district court on all issues.

I. BACKGROUND

The basic facts of the case may be summarized as follows.

A. The Project

In June 1992, Sheek went to Jurong, Singapore to work as an operations specialist on a new aromatics plant under construction by Mobil (the "Project"). Asia Badger, a wholly-owned subsidiary of Badger Engineering, Inc., was the general contractor on the Project. During the Project's early stages, Sheek worked during the day and was responsible for walking through the plant and reporting on the work being done by Asia Badger. Part of his report included operational problems, or "punch list" items, that needed to be corrected. Sheek referred these items, directly or through intermediaries, to Asia Badger. In turn, Asia Badger or its subcontractors worked on the identified problems.

In January 1994, Sheek became the night superintendent and began working twelve-hour shifts from 6:00 p.m. to 6:00 a.m. Sheek ran equipment, flushed pipes, and completed other start-up tasks in order to prepare the plant for operation. Sheek also continued to identify punch list items which were passed on to the day shift. These items were addressed during the day, and Sheek checked the progress of the work while on duty at night.

In mid-January or early February 1994, Mobil discovered that four xylene splitter pumps were operating at excessively high temperatures. Tests indicated that the piping was too small, preventing cooling water from adequately circulating through the pumps. Sheek received orders to take these pumps out of service so that work could be performed on them during the day shift. The pumps required two types of work. The first was maintenance work, such as the replacement of seals and bearings damaged by the lack of coolant: this involved unscrewing a flange, removing piping, replacing the parts, and screwing the piping back together. The second type of work involved repairing the actual design defect, i.e., cutting out the inadequate cooling pipes and replacing them with larger diameter piping. Like other punch list items, Sheek noted the work completed on the pumps when he arrived on duty in the evening.

B. Sheek's Accident

When the facility entered its final stages of construction in early 1994, Mobil gradually took control of sections of the plant as they became operational and expanded its maintenance work in those areas. Full mechanical acceptance of the plant by Mobil occurred on March 1, 1994. One week later, on Marcha8, Mobil held a dedication ceremony for the plant. In preparation, some areas of the plant were shut down and cleaned.

Also on March 8, Sheek received instructions to take the last of the four pumps, the "D" pump, out of service. On the evening of March 9, Sheek observed that some of the piping in the D pump had been changed to a larger diameter size. At 11:00 p.m. that same evening, Mobil workers arrived with a large control valve which had been removed during the day for maintenance. Sheek checked up on the workers several times as they reinstalled the valve. At about 3:00 a.m. on March 10, Sheek walked past the xylene splitter pumps on his way to look at the valve once more, since the work was nearing completion. As Sheek neared the D pump, he stepped on a piece of pipe, fell backwards, threw his right arm behind him and grasped a drain line to break his fall. As he got up, Sheek saw the pipe, removed it from the walkway and continued with his shift.

C. Injury and Treatment

When Sheek awoke the next morning, he felt pain in his right shoulder and could not raise his arm. On March 12, Sheek saw Dr. Jimmy Darwulla, an orthopedic surgeon in Singapore. Dr.aDarwulla determined that Sheek had a partial tear in his right shoulder muscle and prescribed medication and physical therapy. That same day, Sheek filed an accident report with Mobil, identifying the pipe he slipped on as the kind being replaced on the xylene splitter pumps. On March 18, Sheek returned to his home in Texas to obtain a visa for a three-week assignment with Mobil in Saudi Arabia, which had been arranged prior to his accident. Although Dr. Darwulla had advised Sheek that he was not fit to go on the assignment, Sheek left for Saudi Arabia shortly thereafter.

After returning from his assignment in Saudi Arabia, Sheek visited Dr. Reid, an orthopedic surgeon in Texas. Dr. Reid diagnosed a complete tear in Sheek's rotator cuff and recommended surgery, which was performed in June 1994. Sheek underwent a second surgery several weeks later to remove bone spurs and scar tissue that was causing him pain. Following the surgery, Sheek accepted a temporary assignment with Mobil but was unable to obtain a full medical release and thus return to work permanently. Sheek declined Mobil's offer to place him on half pay and retired in 1995.

D. Trial

Sheek filed suit against Asia Badger in the district court for the Eastern District of Texas on June 1, 1995. On September 5, 1996, the case was transferred to the District of Massachusetts. During the nine-day trial, both parties presented conflicting testimony concerning almost every fact in the case. For purposes of this appeal, we will briefly highlight the evidence relating to three main issues: (i) who replaced the piping work on the xylene splitter pumps; (ii) whether Asia Badger exercised control over the persons who performed the work; and (iii) whether Sheek's injuries were caused by the pipe on which he slipped.

1. The Piping Replacement

Asia Badger's central defense was that it was not responsible for the repiping work performed on the pumps. To support this contention, Asia Badger presented the deposition testimony of Gary Steinmetz, who worked as a mechanical engineer for Asia Badger during the Project. According to Steinmetz, the problem with the xylene pumps was a result of a manufacturing error. Specifically, in addition to the inadequate piping, the coolers were grossly undersized and had to be replaced with larger capacity coolers. The piping could not be replaced until the coolers were replaced. Steinmetz testified that Mobil was the only party with the proper equipment to change the piping: Asia Badger did not work with galvanized schedule 40 pipe, identified by Sheek as the type of pipe on which he slipped. The deposition of Ch Tai, Mobil's venture manager for the Project, supported Steinmetz's testimony by revealing that Mobil had received and replaced both the cooler and piping system in August 1994.

Sheek did not dispute that Mobil changed the coolers and piping in August. He added, however, that a different set of pipes were also changed in March by Asia Badger. Sheek testified that in addition to observing some replaced pipes on the evening of Marcha9, he had seen a memorandum prepared by Asia Badger indicating that the pipes would be replaced and the design drawings altered accordingly to reflect the change. According to Sheek, moreover, the overheating of the pumps was a result of a design problem. During the period Sheek worked on the night shift, Mobil only performed maintenance work on the xylene pumps. James Syar, a supervisor on the Project at the time of Sheek's accident, also testified that while Mobil replaced seals on the pumps, Asia Badger took responsibility for the pipe replacement beginning in January or February 1994. Syar also witnessed the accident and identified the pipe that Sheek fell on as the same type being replaced on the xylene splitter pumps.

2. Control Over the Work Performed

Asia Badger also rejected the notion that it had control over any persons who had allegedly completed the claimed work on the pumps in March 1994. To this end, the testimony of Mark Henderson, a project control manager, indicated that after full mechanical acceptance on March 1, 1994, control and custody passed to Mobil. Any remaining work was conducted by Mobil or by Asia Badger subcontractors under Mobil's supervision. Gary Steinmetz also testified that by this time, all but thirteen Asia Badger personnel had left the site.

Sheek, however, countered this theory by testifying that during his day duty in late 1993, he observed Asia Badger workers -- identified by their hats bearing the company's logo -- directing work being done on the plant. Although Sheek himself could not see the actual work performed on the pumps once he...