Snyder v. Whittaker Corp., No. 86-6002

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, JOHNSON, and HIGGINBOTHAM; JOHNSON
Citation839 F.2d 1085
Parties, 24 Fed. R. Evid. Serv. 1217, Prod.Liab.Rep.(CCH)P 11,708 Melanie SNYDER, et al., Plaintiffs-Appellees, v. WHITTAKER CORPORATION, Defendant-Appellant. Billie Fay ALLEN, et al., Plaintiffs-Appellees, v. WHITTAKER CORPORATION, Defendant-Appellant.
Docket NumberNo. 86-6002
Decision Date14 March 1988

Page 1085

839 F.2d 1085
1988 A.M.C. 2534, 24 Fed. R. Evid. Serv. 1217,
Prod.Liab.Rep.(CCH)P 11,708
Melanie SNYDER, et al., Plaintiffs-Appellees,
v.
WHITTAKER CORPORATION, Defendant-Appellant.
Billie Fay ALLEN, et al., Plaintiffs-Appellees,
v.
WHITTAKER CORPORATION, Defendant-Appellant.
No. 86-6002.
United States Court of Appeals,
Fifth Circuit.
March 14, 1988.

Page 1087

Jack L. Allbritton, Houston, Tex., for Whittaker Corp.

Timothy H. Pletcher, Houston, Tex., for Snyder.

Anthony E. Pletcher, Yancey White, Corpus Christi, Tex., for Allen.

Mary Ellen Blade, Beaumont, Tex., for Joseph Buckmaster, et al.

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

Before BROWN, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

Page 1088

JOHNSON, Circuit Judge:

A boat manufacturer appeals a judgment for two crewmen in a Death on the High Seas Act (DOHSA) suit. The manufacturer raises issues of sufficiency of the evidence, admission of evidence, and damages. For the reasons outlined below, we affirm.

I. BACKGROUND

In 1978, Desco Marine, a division of Whittaker Corporation (Whittaker), built a seventy-five foot shrimp boat. The boat was bought by Jack Yardley, who sold it in 1979 to the partnership of Joe Buckmaster and Andrew Allen. Allen operated the boat, now named the TEXAS LADY, while Buckmaster handled financial and business matters. Allen was an experienced shrimp boat captain.

In late March, 1983, Captain Allen and a deckhand, Robert Cameron, set out from Freeport, Texas, on a shrimping trip. Because a crew member failed to show up, the boat was one short of its normal three-man crew. On April 6, 1983, at around 5:45 in the evening, Ron Banta, the supervisor on an ANR Pipeline drilling platform on the outer continental shelf, felt a jar to the platform. Banta later testified that the jar felt like the impact boats normally made when attempting to dock at the platform. Seeing no boat at the main platform, Banta walked to the other side to look at a smaller platform supporting a gas flare stack, about 500 feet away at the end of a cat walk. About twenty-five to thirty yards from the flare stack, Banta saw a shrimp boat. He saw two crew members, one of whom leaned over to examine the hull near the bow and then walked back to talk to the other. The crew showed no signs of distress and did not attempt to contact the rig. Banta went back to work.

About forty-five minutes or an hour later, a rig employee told Banta that a shrimp boat was sinking at about 300 feet away. Banta radioed the Coast Guard, which had already received a distress call at 5:47 p.m. In the dusk, Banta thought he could see a capsized boat and a figure clinging to the hull. The Coast Guard rescue team was unable to save Allen and Cameron; their bodies were never found.

Eighteen hours after the distress call, a team of Coast Guard divers headed by Howard Teves found the TEXAS LADY, keel up, with its bow imbedded in the bottom forty feet below the surface. The water around the bow was too murky for anything to be seen, but Teves was able to feel a sizeable hole in the hull about two feet from the keel near the port bow. Teves later testified that the hole had smooth edges and appeared to have burned through from a heat source within the vessel. Teves also testified that the boat's outriggers, normally held horizontally while a boat is a sea, were tied upright, making the boat unstable. The Coast Guard report attributed the sinking to collision with "an unknown submerged object." Record, Vol. 5 at 313. The TEXAS LADY later broke up and was never salvaged.

On April 9, Captain Allen's brother, Donald Allen, reached the spot with David Sullivan, a certified diver and nephew of Andrew Allen's widow. Donald Allen and Sullivan attempted, fruitlessly, to find the bodies. They also took photographs of the flare stack supports, showing white paint and scrape marks. Sullivan dived down to the bow of the wreck and, because visibility had improved, was able to see a hole in the port bow near the waterline. Sullivan testified that the hole was jagged.

Allen and Cameron's representatives (Snyder and the other plaintiffs) sued the ANR Pipeline Co. and Whittaker under DOHSA and the Texas Survival Statute. 46 U.S.C. Sec. 761 et seq.; Tex.Civ.Prac. & Rem.Code Sec. 71.021. At trial, Snyder presented evidence that ANR had not sounded its foghorn as required by Coast Guard regulations. ANR settled on the last day of trial. In the suit against Whittaker, the boat manufacturer, Snyder attempted to prove that Whittaker had defectively designed and manufactured the TEXAS LADY, and had misrepresented the strength of its shrimp boats' hull in sales literature. The gist of Snyder's case was that Whittaker's decision to build its shrimp boat hulls of two materials--balsa-

Page 1089

core material above the waterline and fiberglass laminate below--created weak points or "stress spots" that allowed a small impact to cause a large hole. Both sides presented expert testimony. The jury rejected Snyder's misrepresentation and defective manufacture claims, but found that the TEXAS LADY had been defectively designed and that this design had caused the accident. The jury allocated 10 percent of the fault to ANR pipeline; 50 percent to Whittaker; 35 percent to Allen; and 5 percent to Cameron. The jury awarded $100,000 for the pain and suffering of each decedent. Allen's family was awarded $300,000 for lost inheritance; $736,000 for past and future loss of support and services; and $107,600 for the Allen children's loss of care and support. The district court granted prejudgment interest on past damages. After seeking in vain a judgment n.o.v., Whittaker appealed to this Court.

II. DISCUSSION

A. Evidentiary Issues

Whittaker raises several evidentiary issues. First, Whittaker contends that the district court erred in handling the testimony of James C. Flanagan, an expert witness called by Snyder. Whittaker suggests that Flanagan should have been prevented from testifying because Flanagan is a "professional expert" who earns a substantial portion of his income from trials. Because Whittaker did not raise this objection in the district court, it is barred here unless it involved plain error. Fed.R.Evid. 103. This Court has held that a witness cannot be disqualified merely because he "spends substantially all of his time consulting with attorneys and testifying...." In re Air Crash Disaster at New Orleans, La, Eymard, 795 F.2d 1230, 1234 (5th Cir.1986). Moreover, Whittaker was able to bring before the jury Flanagan's experience as a professional witness. The district court had no reason to exclude Flanagan's testimony on this ground.

Whittaker also argues that Flanagan should not have been allowed to indulge in "speculation" about the speed at which the TEXAS LADY struck the platform. However, Flanagan's testimony on speed is more aptly characterized as an expert opinion, expressly allowed by the Federal Rules of Evidence. Fed.R.Evid. 702. The facts on which Flanagan based his opinion as to speed were laid out before the jury; Whittaker was free to argue--and did argue--that these facts were thin. Similarly, the district court did not err in allowing Flanagan to give his opinion on the TEXAS LADY's design. The Federal Rules envision that such opinions can be given in response to hypothetical questions or facts presented to the expert at trial. Fed.R.Evid. 703. Whittaker had the same latitude with its own experts.

Second, Whittaker argues that the district court erred in admitting certain documents. One document was a magazine article lauding balsa-core material, which Whittaker objected to as not properly authenticated. However, Fed.R.Evid. 902(6) dispenses with "[e]xtrinsic evidence of authenticity" for printed articles from periodicals.

Whittaker also contests the admission of notes written by Charles Underwood, former senior manager of the Desco engineering department. At trial, Whittaker objected to the notes on the ground that "the author of it is not here." Assuming that this objection went to authentication of the notes, it has no merit. Federal Rule of Evidence 901(a) requires only "evidence sufficient to support a finding that the matter in question is what its proponent claims." A district court's ruling on authentication can be reversed only for abuse of discretion. United States v. Feldman, 788 F.2d 544, 556 (9th Cir.1986), cert. denied , --- U.S. ----, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987); Meadows and Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir.1969). Whittaker's witnesses acknowledged that Underwood was a senior employee of the design department, and Whittaker produced the Underwood notes during discovery. The district court did not err in accepting these facts as adequate authentication, particularly since Whittaker has never claimed that the notes were not Underwood's.

Page 1090

Third, Whittaker objected to the admission of a memorandum between two officers in the sales division of Baltek, Norman Boyer and Ray Olson, dated December 3, 1974. This "Baltek memo" reported the results of a computer analysis that purportedly showed balsa-core material to be over four times stiffer than fiberglass laminate without balsa. The writer expressly observes that his calculations do not take into account the effect of a stringer system. The writer closes with a suggestion that the analysis be sent to Desco. In fact, the memorandum was unearthed from Desco files during discovery. We reject Whittaker's challenge to the authentication of this document, for the reasons given in our discussion of the Underwood notes.

However, Whittaker also objected that the memo was hearsay. Snyder counters that the memo qualified under the business record exception to the hearsay rule. Fed.R.Evid. 803(6). The proponent of a document offered under the business record exception must show that the document was prepared in the regular...

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56 practice notes
  • Castaic Lake Water Agency v. Whittaker Corp., No. CV 00-12613 AHM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 15 July 2003
    ...(9th Cir. 1996), 81 F.3d 881, 889 n. 12 (document authenticated when produced by defendant in discovery); Snyder v. Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir.1988) (same). Cf. also Orr v. Bank of America, NT & SA, 285 F.3d 764, 776 & n. 20 (9th Cir.2002) (citing Maljack and Snyder). And......
  • Upton County, Tex. v. Brown, No. 08-96-00378-CV
    • United States
    • Court of Appeals of Texas
    • 4 September 1997
    ...court's holdings that even statutory causes of action are held to survive the death of a claimant. Page 817 Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir.1988)(Death on the High Seas Act claim allows recovery of pain and suffering damages under state's survival statute); Thomes v.......
  • Contreras v. City of Chicago, No. 94 C 4201.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 29 March 1996
    ...181 F.2d 70 (7th Cir.1950), rev'd on other grounds, 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951)); see also Snyder v. Whittaker Corp., 839 F.2d 1085, 1090 (5th Cir.1988); Henein v. Saudi Arabian Parsons Ltd., 818 F.2d 1508, 1512 (9th Cir.1987). Here, the only significance of the statemen......
  • Neal v. Barisich, Inc., Civil A. No. 88-3119.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 28 February 1989
    ...F.2d 1298 (5th Cir.), cert. dism'd sub nom. Warren v. Serody, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir.1988). First, this purported application of state law is dictum, inasmuch as neither award turns on any distinction between ......
  • Request a trial to view additional results
56 cases
  • Castaic Lake Water Agency v. Whittaker Corp., No. CV 00-12613 AHM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 15 July 2003
    ...(9th Cir. 1996), 81 F.3d 881, 889 n. 12 (document authenticated when produced by defendant in discovery); Snyder v. Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir.1988) (same). Cf. also Orr v. Bank of America, NT & SA, 285 F.3d 764, 776 & n. 20 (9th Cir.2002) (citing Maljack and Snyder). And......
  • Upton County, Tex. v. Brown, No. 08-96-00378-CV
    • United States
    • Court of Appeals of Texas
    • 4 September 1997
    ...court's holdings that even statutory causes of action are held to survive the death of a claimant. Page 817 Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir.1988)(Death on the High Seas Act claim allows recovery of pain and suffering damages under state's survival statute); Thomes v.......
  • Contreras v. City of Chicago, No. 94 C 4201.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 29 March 1996
    ...181 F.2d 70 (7th Cir.1950), rev'd on other grounds, 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951)); see also Snyder v. Whittaker Corp., 839 F.2d 1085, 1090 (5th Cir.1988); Henein v. Saudi Arabian Parsons Ltd., 818 F.2d 1508, 1512 (9th Cir.1987). Here, the only significance of the statemen......
  • Neal v. Barisich, Inc., Civil A. No. 88-3119.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 28 February 1989
    ...F.2d 1298 (5th Cir.), cert. dism'd sub nom. Warren v. Serody, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir.1988). First, this purported application of state law is dictum, inasmuch as neither award turns on any distinction between ......
  • Request a trial to view additional results

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