Wactor v. Spartan Transp. Corp., 93-1537

• Decision Date: 23 June 1994
• Docket Number: No. 93-1537,93-1537
• Parties: 40 Fed. R. Evid. Serv. 1308 James WACTOR, Darlene Wactor, Appellants, v. SPARTAN TRANSPORTATION CORPORATION, also known as Spartan Transportation Company, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 347

27 F.3d 347

40 Fed. R. Evid. Serv. 1308

James WACTOR, Darlene Wactor, Appellants, v. SPARTAN TRANSPORTATION CORPORATION, also known as Spartan

Transportation Company, Appellee.

No. 93-1537.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1994.

Decided June 23, 1994.

C. John Caskey, Baton Rouge, LA, argued (Robert A. Useted, W. Hugh Sibley and Richard D. McShan, on the brief), for appellants.

Gary T. Sachs, St. Louis, MO, argued (Jeanne Knowles Townsend, on the brief), for appellee.

Before BOWMAN and WOLLMAN, Circuit Judges, and ALSOP, ^* Senior District Judge.

BOWMAN, Circuit Judge.

James Wactor and Darlene Wactor appeal the judgment of the trial court ¹ in this maritime action for neck and back injuries suffered by James Wactor in April 1988, while he served as deckhand on the M/V Phaeton, a towboat working the Mississippi River. We affirm.

I.

The jury rendered a verdict for the Spartan Transportation Corporation (Spartan) in this case brought by James Wactor under the Jones Act, 46 U.S.C.App. Sec. 688 (1988), and general maritime law, for personal injuries sustained aboard Spartan's river towboat the M/V Phaeton. Before trial, the trial court dismissed as a matter of law Darlene Wactor's claim for loss of consortium, citing Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). ²

Wactor claims that he was injured during the routine procedure of stopping a tow of barges in lock and dam seventeen on the upper Mississippi River. Wactor, other crew members, and two lockmen from the Army Corps of Engineers were in the process of stopping the barges along the lockwall when the lockline broke and hit Wactor in the neck or the head. In order to bring the barges to a halt, Wactor had placed the eye of the lockline on one end of the kevel, a deckfitting at the stern of the towboat, and then handed the end of the line to the lockmen standing on the lockwall. The lockmen placed the line on a "pin" and then handed it back down to Wactor. Wactor then wrapped the line around the kevel to bring the barges to a stop.

Wactor claims he made no more than two figure-eight wraps around the kevel and that in this position the line should have been able to feed through the kevel to bring the barges to a gradual stop. The line did not feed through the kevel; instead, it fouled. Wactor attempted to loosen one of the figure-eight wraps and slack-off the line, but the line broke against the weight of the moving barges and struck Wactor. Wactor claims that the breakage and his subsequent injuries were caused by the worn condition of the lockline. Spartan contends that the lockline was not in an unsafe, unserviceable, or unseaworthy condition and that the lockline broke because it was wrapped too many times around the kevel. The lockmen, to whom Wactor handed the line before wrapping it around the kevel, testified at trial that they told Wactor to "slack-off" the line when they saw him wrapping it more than two times, and possibly as many as six times around the kevel. Wactor did not heed their warning and the lockline broke almost immediately.

The jury found that no recovery by Wactor was merited because Spartan was not negligent and its locklines were not unseaworthy. The jury also found that Wactor concealed his previous neck and back injuries on his employment application, thus barring an award of maintenance and cure. Judgment was entered on the jury verdict, and this appeal followed.

II.

Wactor first contends that the trial court violated Federal Rule of Evidence 609 in allowing the testimony of a psychiatrist, whose deposition on behalf of Wactor was read into evidence, to refer to Wactor's prior juvenile and adult criminal convictions as contained in a narrative history given by Wactor to the psychiatrist during an examination. We review for abuse of discretion a trial court's decision to admit, over objection, a party's criminal history into evidence. United States v. Swanson, 9 F.3d 1354, 1356 (8th Cir.1993). In this case, where the testimony of the psychiatrist was offered into evidence by Wactor, Wactor has no basis for an appeal.

Before the psychiatrist's deposition testimony was admitted into evidence, the trial court granted in part Wactor's motion in limine based upon Rule 609, ruling that the portion of the deposition regarding Wactor's 1979 felony and earlier juvenile convictions was admissible as part of the basis for the doctor's opinion, but forbidding argument using the convictions to impugn Wactor's credibility or to establish a defense to maintenance and cure. Tr.Vol. III at 56, 57. It was Wactor, however, who then chose to introduce the psychiatrist's deposition testimony into evidence, revealing Wactor's criminal history to the jury. Id. at 67-69, 76. In offering the deposition into evidence, Wactor invited the error that he claims resulted from his own witness's testimony and thus cannot now argue that the trial court committed reversible error. See United States v. Steele, 610 F.2d 504, 505 (8th Cir.1979) ("It is fundamental that where the defendant 'opened the door' and 'invited error' there can be no reversible error.") (quoted case citation omitted); United States v. Pina, 844 F.2d 1, 8 (1st Cir.1988) ("When allegedly inadmissible evidence is introduced due to the actions of the party seeking to exclude it, admission of that evidence does not constitute reversible error."); cf. United States v. Brown, 956 F.2d 782, 787 (8th Cir.1992) (declining to review the prosecution's use of the prior criminal convictions for impeachment purposes was precluded where a defendant moved before trial to exclude evidence of prior criminal convictions and was denied, failed to renew the objection at trial, and then proceeded to testify about the convictions on direct examination). We conclude that appellate review of this issue is not available to Wactor.

III.

Wactor next contends that the trial court abused its discretion in allowing the testimony of the two lockmen from the Army Corps of Engineers to come in as lay opinion under Federal Rule of Evidence 701. Wactor contends that the testimony took the form of expert opinions that the lockmen were not qualified to give and that the trial court was not empowered to receive as "lay" opinion. We review the trial court's admission of opinion testimony for abuse of discretion. Burlington N.R.R. v. Nebraska, 802 F.2d 994, 1004 (8th Cir.1986).

Rule 701 requires that "[a] lay witness' [sic] testimony in the form of opinions or inferences need only be rationally based on perception and helpful to a determination of a fact in issue." Id. We have held that "[p]ersonal knowledge ... or perceptions based on industry experience [ ] is a sufficient foundation for lay opinion testimony." Id. We have adopted the Seventh Circuit's reasoning that: "in order to conclude that [lay opinion] testimony is admissible, the court must find that the witness' testimony is based upon his or her personal observation and recollection of concrete facts ..., and that those facts cannot be described in sufficient detail to adequately convey to the jury the substance of the testimony." Kreuger v. State Farm Mut. Auto. Ins. Co., 707 F.2d 312, 317 (8th Cir.1983), quoting United States v. Jackson, 688 F.2d 1121, 1124 (7th Cir.1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1441, 75 L.Ed.2d 797 (1983) (alteration in Kreuger, bracketed alterations added). Therefore, an analysis of the events, in the form of an opinion, is necessary.

The testimony of lockmen Carson Peters and Michael Jeffcoat satisfies the requirements of Rule 701 for admission of lay opinion testimony and meets the standard adopted in Kreuger. At the time of trial, Peters and Jeffcoat had been lockmen for nine and six years, respectively. Each man stated that he had assisted hundreds, if not more, tows and barges through the locks and had inspected the locklines provided by each of the tows. In addition, both men testified that the process of stopping tows and barges with a lockline wrapped on the tow's kevel is a routine procedure. Thus, the lockmen were sufficiently qualified to give lay opinion testimony, based upon industry experience, regarding the condition of the lockline and the events each participated in and witnessed preceding Wactor's alleged injury. See Farner v. Paccar, Inc., 562 F.2d 518, 528-29 (8th Cir.1977) (holding that lay opinion regarding the proper use of safety chains on truck suspension system had sufficient foundation to be admissible where witness had worked in the trucking industry for many years and also had experience with the specific truck model in question).

Both men testified that they personally saw Wactor place more than two wraps, and possibly as many as six wraps, around the kevel as they helped slow the barges against the lockwall. Their opinions, that wrapping the lockline more than two times was not correct procedure and that the excessive wraps subsequently caused the lockline to foul and break, were based upon their personal experience and observations and were helpful in explaining the significance of the warnings they called out to Wactor as they saw him place more than two figure eights on the kevel.

Further, their opinions consisted of much more than a gratuitous "short-hand rendition" of a situation that could be adequately described by a statement of the facts. See Kreuger, 707 F.2d at 317. The condition of the lockline was a central issue at trial, as were the number and significance of the wraps around the kevel. Therefore, the lockmens' opinions, based as they were upon their years of personal experience, their personal inspection of the lockline, their participation with Wactor in the stoppage of the barges, and their positions as the sole eyewitnesses to the wrapping, fouling, and breaking of the line, were helpful to the jury in obtaining a clear understanding of the events giving rise to this action and in determining...