United States Court Of Appeals
For The First Circuit
No. 00-1116
____________________________________________
Jack Sheek,
Plaintiff, Appellee
v.
Asia Badger, Inc.
Defendant, Appellant
____________________________________________
On Appeal From A Judgment Of The
United States District Court
For The District Of Massachusetts
____________________________________________
Brief For The Plaintiff/Appellee
____________________________________________
Dana A. Curhan
Bar # 44690
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Kenneth Levine
Ross Annenberg
Annenberg and Levine
One Bromfield Street
Suite 600
Boston, MA 02108
(617) 338-8800
Attorneys for the Plaintiff/Appellee
June, 2000
Statement of Jurisdiction
The district court had jurisdiction over this case pursuant to 28 U.S.C. § 1332, which vests in the United States District Courts jurisdiction over civil actions in which the amount in controversy exceeds $75,000 and in which there is diversity of citizenship among the parties.
This court has jurisdiction over the defendant's appeal pursuant to 28 U.S.C. § 1291, which vests in the United States Courts of Appeals jurisdiction of appeals from all final decisions of the district court.
Statement Regarding Oral Argument
Pursuant to Fed. R. App. P. 34(a) the plaintiff/appellee states that oral argument is not essential to the resolution of the issues raised in this appeal. The issues raised by the appellant are neither novel nor substantial. Each issue can be easily decided by reference to well-settled precedents.
1. Whether the judge erred (a) in striking a brief portion of the defense expert's testimony where that testimony was based on materials he reviewed after preparing his reports, where the defendant failed to disclose the change in the witness's testimony in violation of Fed. R. Civ. P. 26, and where the sanction imposed, to which the defendant failed to object, was minimal and could not have harmed the defendant's case; (b) in admitting certain testimony based on hearsay grounds where the record clearly established that the witnesses had personal knowledge of the facts to which they testified.
2. Whether the district court erred in denying the defendant's motions for judgment notwithstanding the verdict and for a new trial where the evidence, viewed in the light most favorable to the plaintiff, amply supported the jury's verdict.
3. Whether the defendant is entitled to a new trial based on claimed errors in the jury instructions on vicarious liability and in language used in the verdict form where the judge instructed correctly on vicarious liability and where the verdict form presented the factual questions to the jury in correct and complete language.
On June 1, 1995, the plaintiff Jack Sheek (hereinafter "Sheek") filed a civil claim (95-cv-377) in the United States District Court for the Eastern District of Texas against the defendant Asia Badger, Inc. (hereinafter "Asia Badger") and others. Sheek alleged 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. Asia Badger filed its answer and denied liability. The case was removed to the Massachusetts district based on diversity of citizenship and was entered on the docket of United States District Court for the District of Massachusetts on September 5, 1996. (96-CV-11787). [Appendix 3].
Trial commenced before the Honorable Reginald Lindsay and a jury on July 19, 1999. [Appendix 9, 808]. After the plaintiff rested at the end of the eighth day of trial, Asia Badger moved for judgment as a matter of law. Judge Lindsay denied that motion on August 2, 1999. After the defendant rested and the plaintiff called one rebuttal witness, Asia Badger renewed its motion for judgment as a matter of law on August 2, 1999. Judge Lindsay denied the renewed motion. [Appendix 11-12]. Jury deliberations commenced on August 3, 1999. On August 5, 1999, the jury returned a verdict in the amount of $387,000. The judge ordered interest to be calculated according to the federal rate of 4.5% as of the date the action commenced. [Appendix 12-13].
Judgment entered on September 8, 1999. On September 17, 1999, Asia Badger filed a motion for a new trial and remittitur, as well as a motion for judgment notwithstanding the verdict. [Appendix 13, 49-79]. Asia Badger filed a notice of appeal on October 8, 1999. On that same day, Judge Lindsay issued an order denying Asia Badger's motion for a new trial and remittitur and the motion for judgment notwithstanding the verdict. [Appendix 13]. Asia Badger filed a second notice of appeal on October 28, 1999. The two appeals were entered on the docket of this court on February 1 and 16, 2000. [Appendix 14].
A. The Plaintiff's Evidence
Jack Sheek grew up on the Texas panhandle and moved to Louisiana during high school. Growing up, he worked on the family farm. He met his wife during his senior year and married her two years later in February of 1961. At the time of trial they had been married for thirty-nine years. They have two daughters and three grandchildren. [Appendix 938-951].
After graduating high school, he went to work for his father building homes. After a few months, he took a job with Amoco Chemicals. He was supposed to work in Brownsville, Texas, but when the plant closed, they sent him to a new complex near Joliet, Illinois. He started as a loader in a warehouse and then moved to the operations side. He worked his way up to a position as an A operator and assistant foreman. After six years, he left Amoco and took a job with Mobil as an operator in a dimethyl unit. He would run feed stock from the refinery through various distillation columns. He would then process the purified ethylene into ethylene, propane, and other chemicals. As an operator, he would have to climb towers as high as 300 feet and open or close large block valves. [Appendix 940-945].
After a month on the job, Sheek's operations manager sent him to Houston to inspect some equipment that was being manufactured for use at the plant. A few months later, they sent him to a nitrogen complex that Mobil was constructing in Beaumont. Sheek assisted with the piping and punch lists during two years of construction. When the plant came on line, he first operated the nitric acid unit and eventually became a controlman for the whole complex. In this latter position, he worked in a central control room, where he would control pressures, temperatures, and flows. [Appendix 945-948]. After eight years of operating the facility, he was sent to another facility in Beaumont where Mobil was constructing a world-class polyethylene unit. He did the same thing at this plant-working on punch lists and inspecting equipment to make sure everything worked properly. After the construction was completed, he stayed on as a controlman. Shortly thereafter, he was promoted to production supervisor with oversight of the entire complex. [Appendix 949-950].
In 1981, the President of Nampic, a joint venture between Mobil and the government of Saudi Arabia, asked him to come to Saudi Arabia to work on the construction of a new facility. He initially declined the offer, but eventually went when Mobil agreed to his schedule of home visits and a guarantee of his job when he returned. [Appendix 950-952]. As shift manager for the evening and night shifts, he helped bring this highly complex plant on line. He then worked in a unit that produced ethylene glycol. In June of 1990, the plant manager went to work on a project in Singapore. Mobil had a refinery in Jurong but wanted to build a new facility to process some of the byproducts from the refinery into usable chemicals. He asked Sheek to join him in constructing an aromatics complex. Sheek agreed. Initially, Sheek spent two years in Cambridge, Massachusetts doing some pre-engineering work at Badger Engineering's facilities. He reviewed drawings and provided input into the designs that would make the operation more efficient. [Appendix 953-958].
Asia Badger, a subsidiary of Badger, was the general contractor on the project. When Sheek arrived in Jurong, he would do a daily walkthrough of the plant and then report to his supervisor Frank Fairbaim on the work being done by Asia Badger. He would make a punch list, later referred to as a deficiency list. Fairbaim reported to the venture manager Mike Brow. At the initial stages of the project, Sheek and other member's of Mobil's project task force did not communicate directly with Asia Badger but would pass their recommendations up the line. After December of 1993, things became less formal, and Sheek would meet directly with Asia Badger superintendents or field people every day at noon to go over the punch list. Since Asia Badger was the general contractor, they, and not Mobil, were responsible for correcting any deficiencies or modifying any unit so that it would operate properly. Once the modifications had been made, Sheek would inspect the work to make sure it had been done properly. [Appendix 959-967].
Mobil employees wore distinctive dark blue uniforms. Asia Badger employees wore hats with the company's name but did not wear uniforms. He would see Asia Badger working in various areas around the complex. [Appendix 967-970].
In late December of 1993 or early January, Sheek shifted to night work and was made night superintendent. His supervisors put him in this position because he had a reputation for getting things done and could make his own decisions. He began working twelve-hour shifts from 6:00 p.m. to 6:00 a.m. doing pre-commission work in order to prepare the plant to operate. He ran equipment, flushed pipes, and did other start-up preparations. Even after areas of the plant began to operate, he continued to identify punch list items. Each day, he would pass the punch list on to the day shift. Asia Badger people would work on those items during the day, and Sheek would review the work each night. If a piece of equipment was scheduled to be worked on, he would have it taken out of service, which was often an involved process. [Appendix 971-975].
Among the equipment that had to be taken out of service were four xylene splitter bottom pumps. These were very large pumps operating at high temperature. They were cooled by running cold water through them, which would then be sent through a cooling tire and recirculated. In late 1993 through February of 1994, as Sheek began to operate these pumps, it became clear that they were running too hot. Tests indicated that the piping was too small and that not enough water was circulating through the pumps. As a temporary measure, Sheek ran fresh water through the system and allowed that water to run out through an open valve. That solution improved the cooling but wasted tons and tons of cooling water. Since the cooling problem was a design defect, Asia Badger as the general contractor would be responsible for resolving it. Accordingly, Sheek spoke to Barry Birch, an Asia Badger supervisor. On several occasions, Sheek received orders to take these pumps out of service so that work could be performed on them during the day shift. [Appendix 976-978, 982, 988-996].
In March of 1994, employees from both Mobil and Asia Badger worked on the xylene splitter bottom pumps. However, the work differed substantially. Mobil employees would do routine maintenance, such as replacing seals and bearings that had been damaged by the lack of coolant. To replace these items, the worker would simply unscrew a flange, remove a piece of piping, replace the parts, and screw the pipes back together. There was no cutting or welding involved, since the cooling systems were designed so that the seals and bearings were easily replaced. [Appendix 997-999, 1096-1107]. Asia Badger employees were actually replacing the inadequate cooling pipes with larger diameter piping. The old pipes would be cut out, and new pipes would be installed in their place. This work took place during the day shift. Sheek observed the work when he came on duty. He also received from Asia Badger several memoranda describing the work to be performed, preliminary field drawings showing the modifications of the piping as it was actually built, and more detailed isometric drawings of the new piping. These documents were passed onto Sheek by his boss. He would review them and send them back up the chain of command to Asia Badger. Only then would the work commence. [Appendix 995-996, 1000, 1005-1006, 1019-1025].
In February of 1994, Sheek had reviewed Asia Badger's designs for repiping the D pump, the last of the four of the xylene splitter bottom pumps. On March 8, 1994, he took this pump down so that the modifications to the pipes could be made. On March 9, he observed that work was being done on the pump. On that same day, a large control valve on a machine about twenty to twenty-five feet from the xylene splitter pump had been sent out for maintenance. It was returned at about 11:00 p.m., and Mobil's maintenance people reinstalled it. This work did not involve removing any pipes, but was simply bolted in place. Sheek checked the valve repair two or three times as the work was being done. At about 3:00 a.m. on March 10, he went to take another look at the valve, since the work should have been nearing completion. He walked past the xylene splitter pumps wearing rubber-soled boots, safety glasses, a hard hat, and his Mobil uniform. He described the floor in this area as broom concrete-concrete with a ridged texture to make it safer. While there were some areas that needed better lighting, the area around the pumps was well lighted. [Appendix 995, 1000-1004, 1006-1010, 1031]. As he walked past the last pump, he stepped on something with his right foot. His foot went out from under him, and he fell backwards. As he fell, he caught hold of a drain line with his right hand about eighteen inches from the ground to break his fall. He eased himself to the ground and then looked at what he had stepped on. It was a piece of pipe about four and a half inches long and about an inch in diameter. It had been cut off with a cutting tool, and he recognized it as a piece of the piping from the cooling water lines associated with Asia Badger's modification of the D pump. He put the pipe next to a column adjacent to the walkway, picked himself up, and continued on to where he was going. [Appendix 1010-1015, 1025].
When Sheek finished his shift at 6:00 a.m., he went home and went to bed. When he got up later in the day, his right shoulder hurt, and he could not raise his right arm. He realized he had a problem. [Appendix 1011, 1032]. Later that day, he went to see Dr. Wong, a physician employed by Mobil. Dr. Wong sent him to see Dr. Daruwalla, a specialist at Mt. Elizabeth Hospital. Dr. Daruwalla sent him for x-rays, which showed no broken bones. On March 12, the doctor sent him for an MRI and concluded that he may have partially torn his right shoulder muscle. He gave Sheek some inflammatory medication and started him on physical therapy. [Appendix 1032, 1037-1039].
Two days after the accident, Sheek went to the plant and filled out an accident report. That report listed the date of the accident as March 9, 1994, although since it occurred at 3:00 a.m., the actual date was March 10. He and his boss walked down to the area where the accident had taken place. [Appendix 1025-1031, 1033-1035].
A few days before the accident, Quinn Pit, manager of a Mobil facility in Saudi Arabia, had asked Sheek if he would be willing to take a three-week assignment in Saudi Arabia. Sheek's role would be strictly supervisory. Since his assignment in Singapore was coming to an end, he had Pit talk to his boss and arrange for the assignment. [Appendix 1035-1037]. Sheek returned to Beaumont on March 18 to pick up his visa for his trip and to see a company doctor to determine whether he could do the job in Saudi Arabia. At that time, he could not raise his arm and had pain if he moved it in the wrong direction. Ultimately, he went to Saudi Arabia. He was careful with his arm and did not strain or injure it during the assignment. [Appendix 1039-1042]. As soon as he returned to Texas, he went back to a Mobil doctor, who sent him to Dr. Reid, an orthopedic surgeon. Dr. Reid determined that his rotator cuff was torn and recommended surgery. The initial operation took place in June of 1994. A few weeks after the surgery, he went back to Dr. Reid complaining of very sharp pain in his shoulder. He had further surgery to remove some bone spurs and scar tissue. [Appendix 1042-1045].
Sheek kept his shoulder in a foam cast for about twelve weeks and did some rehabilitation in his home after that. However, he did not recover full use of his arm. While he can lift objects from the ground to his waist, he cannot do anything that requires lifting his arm overhead, such as climbing and vertical twisting. He also has a limited range of motion. [Appendix 1046-1049, 1074-1075]. He reviewed a videotape prepared by the defense which showed him working in his yard. None of the activities depicted in the tape involved the limitations he described. The objects that he lifted were low to the ground, and he used his left arm for many of the activities. [Appendix 1050-1068, 1077-1079].
After the surgery, Sheek could not obtain a medical release to return to his job at the plant in Beaumont. Dr. Reid gave him a limited release stipulating that he should do no vertical climbing and should not lift more than thirty pounds. He accepted a temporary assignment for a few months which involved working from a desk, but the production supervisor job that he had been promised was not available. When the temporary assignment ended, Mobil's human resources people told him they had no job for him without a full medical release. They offered to place him on half pay. Instead, Sheek retired in 1995 at the age of 55. He accepted a lump sum payment of retirement benefits-something less than $300,000, which was based on his age and years of service. His annual income during 1993 and 1994, as reflected in his tax returns, was about $156,000-160,000. [Appendix 1080-1088, 1094-1095]. Had he not been injured, other oversees assignments would have been available that he certainly would have taken, and if they were not available, he would have finished his career in the Beaumont plant. The injuries also prevented him from engaging in other activities that he found enjoyable. [Appendix 1108-1111].
James Edward Syar testified by deposition. He worked for Mobil Chemical and was assigned to the Singapore plant from 1992 to 1994 as a supervisor in the aromatics project. Frank Fairbaim was his supervisor. Syar's job during January through March of 1994 was to do whatever was necessary to keep the unit running, which included correcting deficiencies and normal maintenance. [Appendix 1591-1599]. During this time, Asia Badger was responsible for all contract work. They had their own safety people, and Syar would only check on a piece of equipment after Asia Badger said it was ready and turned it over to him. Syar's people would change valves or replace pressure gauges on equipment that was already in service, but Mobil's people would not have handled any new construction work. [Appendix 1599-1602, 1620-1622].
Syar was familiar with the xylene splitter bottom pumps, and in particular, the cooling pumps. During the early part of 1994, the header and cooling water lines were replaced. They were wrong from the start and had to be replaced with larger diameter pipes to improve the cooling. Asia Badger did all of his work beginning in late January or February 1994. The work took place during the day. [Appendix 1602-1610, 1648-1649]. Mobil employees also worked on the pumps. They would replace seals, which involved disassembling the pumps. The pumps would be reassembled when the work was done. [Appendix 1651].
On March 9, 1994, Syar was walking between the pumps about three feet behind Sheek. Sheek did not know Syar was behind him. Syar saw Sheek fall and then get back up. Sheek looked around and picked up a piece of pipe. The pipe looked like it had come from one of the cooling water lines that was being replaced by Asia Badger, and the ends had been cut off. There were some other pieces of pipe on the ground, as well as some pieces of wood. Syar asked Sheek if he was hurt. Sheek said he was not, and they both laughed about it. They continued on to the control valve. A couple of days later, he learned that Sheek was hurt. [Appendix 1611-1619, 1623-1626, 1652].
Asia Badger was on the premises the day before March 9, 1994 installing new cooling water lines. The pipes that they were replacing were the same type of pipe that Sheek fell on. The pipes that Mobil employees would have removed had they been changing a seal was an entirely different size. [Appendix 1650-1651].
Portions of Mark Edwin Henderson's deposition were read to the jury. He worked as a project control manager for Raytheon Engineers and Constructors, Inc. from 1989 to 1996. In September of 1991, he went to the home office in Boston to work on the Singapore project. In December of 1991, he moved to Singapore. As part of his job, he monitored each of the sixty or so subcontractors. He would review any change orders as they came in, estimate the costs of the changes, negotiate those costs, track the expenditures, and forecast cash flow. Toward the end of the project, he essentially took over all of the administrative roles. [Appendix 1656-1660].
Prior to his leaving Singapore in April of 1994, there was a punch list, which consisted of items that needed to be completed prior to finishing the project. Those items were handled by Asia Badger and its subcontractors. [Appendix 1660-1661].
According to Henderson, mechanical acceptance occurs when the systems are mechanically complete and can be run. Some superficial tasks may still remain after the area is turned over. [Appendix 1661]. By late December, some of the systems were up and running. From that time forward, he, his subcontractors, and Mobil's people were meeting on a daily basis to get the plant up and running, to complete the punch list, and to finish the last of the construction. Perry Birch, a piping superintendent for Asia Badger, was in charge of fixing pump problems or pipefitting or anything along those lines in the aromatics area. He was there through January or February. [Appendix 1661-1663]. Sometime in February or March of 1994, a plant dedication ceremony took place. [Appendix 1664-1665].
Asia Badger was responsible for construction around the aromatics unit, although Henderson believed that once the area had live steam, Mobil had absolute control of the site. If there were pipes that needed to be replaced, Mobil could do the work themselves or they could ask Asia Badger to do it under their supervision. He found it inconceivable that a pile of debris would be left near one of the pumps, since there were such strict controls. In the months before he left, he continually had problems with Mobil sending their own people in and making modifications, although he never witnessed any Mobil people welding. [Appendix 1665-1672].
H.A. Reid, an orthopedic surgeon from Beaumont, Texas, first saw Jack Sheek in his office on June 14, 1994. Sheek stated that he had injured his right shoulder while working for Mobil Chemical in Singapore on March 9, 1994. The local medical staff in Singapore had ordered an MRI and diagnosed a possible rotator cuff tear. Sheek complained of not being able to reach up or out and had had weakness in that arm since. Reid reviewed the x-rays, which he found to be consistent with the history Sheek had provided. He examined Sheek and suspected a full tear. He sent him for an MRI and an arthrogram. The results indicated a complete rotator cuff tear. [Appendix 602-608].
On June 27, 1994, Reid operated on Sheek's right shoulder. He found massive rotator cuff avulsion. The muscle had pulled loose and retracted, which indicated that the injury had taken place some time ago. Reid repaired the injury, which was an extensive and difficult repair. He also removed some scar tissue. He then put Sheek in an abduction pillow to take the pressure off the repair. Sheek was released from the hospital after a few days. Eleven days after the surgery, he had Sheek start to move the shoulder. The pillow stayed on for sixty-one days, and after ten weeks, he started Sheek on more active motion. After three months, he seemed to be doing well, but he continued to have difficulty lifting his arm over his head. After nine months, he complained that his shoulder started bothering him more when he started using it more. He had a lot of tightness when he lifted his arm to ninety degrees, as well as some tenderness around the scar. By April, he was still lacking strength and had some locking or catching when he lifted his arm. He also had some discomfort in the joint where the collarbone joins the shoulder bone. [Appendix 609-613].
Reid operated a second time on May 10, 1995. He found that the rotator cuff had healed well, but found a few conditions that might have caused the discomfort. He removed a scar, a bone spur, a neuroma (nerve cyst), and some sutures. The results of the second surgery were good. Sheek appeared to have much less pain. However, he did lack some abduction and external rotation. After three months of rehab, he saw him again. He concluded that Sheek would likely have a useful shoulder with good function of the rotator cuff. He should be able to use both arms. However, he will have some weakness, and he will not be able to do overhead work very well. The pain should be minimal. [Appendix 613-624].
Reid was not aware of what Sheek did for work. He did not offer an opinion as to whether he could work, although Sheek clearly could not do heavy manual labor that involved overhead work and could not lift over 25 pounds. He could do some manual work as long as he kept his hand below his shoulder. [Appendix 632-634].
Craig Moore, a Ph.D. in economics and statistics and a professor of political economy at the University of Massachusetts, described his background, training, and qualifications. [Appendix 1680-1686]. He reviewed various documents related to Jack Sheek's case in order to assess his lost earning capacity and the present value of his expected loss. [Appendix 1687-1689]. Line seven of Sheek's 1994 federal tax return had a figure of $164.741. [Appendix 1719-1720].
B. The Defendant's Evidence
Dr. Michael Kennedy, an orthopedic surgeon, described his background and training. Rotator cuff injuries are common orthopedic injuries. Sometimes they require surgery, and sometimes they do not. He described the anatomy of the human shoulder, and in particular, what is referred to as the rotator cuff. [Appendix 1149-1160]. The rotator cuff has four muscles with tendons at the end. In a typical rotator cuff injury, one or more of the tendons tears. That tearing may be partial, in which it shreds somewhat like a fan belt. Such injuries repair themselves within two or three months with sufficient rest. It may also be a full thickness tear, which will not repair itself. Even with a full tear, surgery is not always necessary. The shoulder can function with three of the four muscles as long as there is no pain. [Appendix 1160-1165].
Kennedy first saw Sheek on March 18, 1997, three years after the accident. Sheek described how the injury occurred. Kennedy examined him to determine his range of motion and prepared reports in this case. In lifting his arm, Sheek described pain of four or five on a scale of one to ten. Kennedy saw some minimal atrophy in his right shoulder, but not the amount of atrophy that he would have expected with this level of pain. [Appendix 1165-1174]. According to Kennedy, Sheek told him that his job required him to climb and repetitively lift loads of up to fifty or sixty pounds. He said he needed to have use of his arms in a repetitive overhead motion. He also said that the worked in different countries inspecting construction of oil facilities. He said he had no limits on the amount of time he could sit, stand or walk, but that with his right shoulder, he could only lift four and a half pounds and only to his waist. Holding a newspaper or book in front of him with his right arm was uncomfortable after four to five minutes. Based on his examination, Kennedy graded the degree of impairment at eight percent of the right upper extremity. [Appendix 1174-1177].
Kennedy reviewed medical records from Dr. Daruwalla, Dr. Reid and Dr. Weldon, a physician for Mobil. According to Dr. Daruwalla's report describing the MRI taken three days after the injury, Sheek suffered a partial tear to the tendon from one of the rotator muscles. Dr. Daruwalla's also stated that Sheek was feeling better and could abduct his arm more than the previous day, which indicated a partial tear. [Appendix 1178-1181]. Dr. Weldon's report indicates that Sheek was advised that the tear would heal by itself and that he was not fit to go to Saudi Arabia. That report also suggested a partial tear and indicated that Sheek had reported some improvement in the two weeks since the injury. According to the report, Sheek left prior to completing the evaluation, and there was no treatment. [Appendix 1182-1186, 1196-1197].
Dr. Reid performed surgery on the rotator cuff on June 27, 1994. Sheek initially did well but then complained of increasing pain around the right shoulder. A second surgery was performed in May of 1995. Because there is no mention of a torn rotator cuff, Kennedy assumed that it had healed. [Appendix 1187-1190].
Dr. Haig, an orthopedic surgeon in Port Arthur, Texas, re-evaluated Sheek's condition on October 26, 1995. [Appendix 1191-1195].
Kennedy saw Sheek a second time on April 22, 1999. Sheek's range of motion decreased slightly in some tests and remained the same in others. However, that test is purely subjective, and his strength was always normal in all motions. The objective factors and ancillary testing did not change significantly. [Appendix 1199-1203]. Kennedy reviewed records prepared by Dr. Reid. Dr. Daruwalla. Dr. Molnar, and Dr. Weldon. [Appendix 1203-1204, 1208-1210]. An injury to the rotator cuff would not affect the ability to grasp. [Appendix 1226-1227].
Ch Tai testified by deposition. At the time of his deposition, he worked for Mobil Oil Singapore as operation manager at the Singapore refinery. In 1994, worked for Mobil Oil Singapore Private Venture as the venture manager for the CCR Aromatic Project. He was responsible for ensuring that the plant was constructed according to plan, for starting up the plant, and for plant maintenance. [Appendix 656-658]. By early 1994, the plant was operating. Tai was familiar with the xylene splitter bottom pumps. According to computer printouts, Mobil employees performed some routine maintenance in 1994. Specifically, on February 22, 1994, an inboard bearing was replaced on pump C. That repair would have entailed dismantling and reassembling the water lines. The records also show repairs to pump A on September 22, 1997. [Appendix 659-665].
In early 1994, a problem was discovered with the water cooling lines to these four pumps. Plans were made to upgrade the water pipe with a larger diameter pipe and replace the cooler with a higher capacity cooler. Prior to doing that work, some interim modifications were made to the water lines. Instead of returning the water to the cooling tower in a continuous loop, water was sent to the sewer. Mobil employees performed this work around February of 1994. [Appendix 666-668]. At some later point, probably around August of 1994, Mobil employees replaced the cooler and the piping system. The piping was replaced with wider diameter piping. [Appendix 669-670].
On March 8, 1994, a dedication ceremony took place. Work in the plant was suspended for a couple of days prior to the ceremony, and Mobil employees cleaned up the area. [Appendix 671-675]. Because the plant was swept clean prior to the ceremony, any piping left behind during the February 1994 repairs to the pumps would have been found. Work began again after March 8, and work was being done on March 9. [Appendix 693-694].
Tai testified that there was a punch list consisting of work not yet completed by Asia Badger by the time of the dedication. If there was something that needed to be fixed, Mobil would tell Asia Badger, and Asia Badger would fix it. Their workers were on the job site for many months after the dedication ceremony. Tai could not recall if the changes to the xylene pumps were part of the punch list. He noted that Asia Badger was responsible for design changes that were on the punch list through March of 1994. [Appendix 687, 690, 692].
In 1994, Gary Steinmetz worked as a mechanical engineer for Badger Company. (At the time of trial he was no longer employed by Badger). He was assigned to Asia Badger, a Badger subsidiary, and was the site project engineering manager for the Jurong project in Singapore from 1991 through 1994. By early 1994, the project was winding down, and Asia Badger had reduced its staff from about sixty to twelve or thirteen people. Steinmetz left Singapore on April 8 and was the second to the last Badger employee to leave. [Appendix 1754-1759, 1769].
The Jurong project started with the front-end design work in Cambridge, where a basic plan would be drawn up. Next, detailed engineering plans would be drawn up, with input from the client, and the necessary materials would be ordered. There may be as many as 50,000 drawings prepared during this stage. These drawings would be sent to subcontractors, who would then construct the project. The physical assembly work would be done by Asia Badger, but Mobil would have some say in the selection of the subcontractors. Any problems or misunderstandings would be resolved through meetings with the client. [Appendix 1760-1764].
On this project, there was more than one subcontractor for piping work. However, there was only one subcontractor for the xylene splitter bottom pumps-Poon Lim, which is a Caribbean outfit. In order for a subcontractor to begin any work, it would need an isometric drawing. That drawing would have a bill of materials. The bill of materials would be taken to Asia Badger's warehouse, and the necessary materials would be issued. Without the isometric drawings, the subcontractor would not have any means to draw materials from the warehouse. The isometric drawing would also be necessary to bill for the work. Where the modifications to the pipes were not part of the original work, isometric drawings for those modifications should have been issued. [Appendix 1765-1767]. Steinmetz had limited communications with the subcontractors, since most of the laborers did not speak English. He would communicate only through a designated supervisor. [Appendix 1768-1769].
As the project wound down in September of 1993, Mobil began producing a deficiency list, which listed items that needed correction. After Asia Badger assigned these problems to the appropriate subcontractor, and after the subcontractor corrected the problems, Mobil employees would inspect the work and sign off on the corrections. Once the plant was turned over to Mobil, the deficiency list was called a punch list. [Appendix 1770-1772]. Once an area became fully operational, Asia Badger's work was generally complete. Asia Badger and its subcontractors would be permitted to complete work that would not affect operation, such as painting, some types of installation, or pipe support. However, any work that affected operations would generally require what was known as a hot work permit, since the materials produced by the aromatics unit were generally flammable. That permit would have to be approved by Ch Tai. [Appendix 1773-1775].
Steve Lummus did not leave the job site until the middle of March of 1994, but Perry Birch was gone by March 1. Poon Lim was also gone by late February or early March. As of March 1, all of Asia Badger's offices were being torn down, and the people who remained were working out of trailers. [Appendix 1776-1777].
Steinmetz would meet with Tai on a daily basis, but he did not recall Sheek attending the meetings regarding the punch list. [Appendix 1779-1782]. He attended the dedication ceremony. Prior to that ceremony, all work in the area stopped for a few days. Mobil had its people clean up the entire area, including the area around the xylene splitter bottom pumps. [Appendix 1783-1784].
Steinmetz was aware of the cooling problems with the xylene splitter pumps, and the second item on the punch list was to replace the coolers. As a temporary measure, Asia Badger proposed to divert some of the water around areas where it would pick up heat. However, Tai rejected that solution and proposed that the water simply be dumped in the sewer. The diversion of the return water to the drain would have been done on February 22. [Appendix 1784-1787]. According to Steinmetz, they identified a second cooling problem. Specifically, the manufacturer of the pump had erred in calculating the quantity of cooling water that would be required for the machine. The coolers were grossly undersized and had to be replaced with much larger coolers. The piping could not be replaced until the coolers were replaced. [Appendix 1788-1791].
Steinmetz further testified that Mobil was the only party with the proper equipment to change the piping. [Appendix 1792-1793]. The piping on the xylene splitter bottom pumps was a galvanized carbon steel scheduled 160 pipe. It was different from the schedule 40 piping. Asia Badger did not use schedule 40 galvanized piping. [Appendix 1794-1799].
C. The Plaintiff's Rebuttal
Jack Sheek testified on rebuttal that the work described by Tai, in which Mobil employees replaced certain piping in August of 1994, was not the same work that Asia Badger did in March of that year. When the facility began operating, it became clear that the cooling water exchanger for pumps in the aromatics unit was too small. According to Tai, the header, the lateral, and some of the cooler piping was changed out in August. Some additional piping was also changed. However, the work that was done in March of 1994 was further downstream from the main header. [Appendix 1863-1868].
1. The defendant is not entitled to a new trial based the decision of the trial judge to strike a brief portion of Dr. Kennedy's testimony. The issue is not properly before this court, since the defendant never objected to the ruling or the instruction to the jury. Even if this court reaches the issue, The defendant is not entitled to relief. The judge found, and the record supports, that the witness reviewed additional materials after preparing his two reports and that the defendant failed to disclose the resulting change in his testimony in clear violation of Fed. R. Civ. P. 26. Finally, any error in the judge's ruling was clearly harmless where the sanction was extremely limited and could not have affected the outcome of the case.
The defendant is also not entitled to relief on its claim that two witnesses testified to facts which they had not personally observed. The record strongly supports that both witnesses had personal knowledge of the facts to which they testified, based on direct observations, as well as inferences and opinions grounded in personal observations and experience. Any shortcomings in the extent of their knowledge goes to the weight rather than the admissibility of the testimony. The judge did not err in admitting such testimony.
2. The judge committed no error in denying the defendant's post-verdict motions. Viewed in the light most favorable to the plaintiff, the evidence amply supported the jury's verdict.
3. The judge correctly instructed the jury on vicarious liability, and the verdict form properly presented the factual questions to the jury in language that was complete and correct. The judge was not required to instruct in the specific language requested by the defendant, and indeed, the defendant's proposed instructions were confusing, incorrect, and misleading. Assuming the judge made some error in instructing the jury or drafting the verdict form, in the circumstances, that error was clearly harmless.
1. (a) The defendant's challenge to the imposition of sanctions is not properly before this court, since he failed to preserve the issue through objection. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 328 (7th Cir. 1995); Prince v. Poulos, 876 F.2d 30, 33-34 (5th Cir. 1989). In the absence of an objection, this court may only review for "plain error." Beatty v. Michael Business Machines Corp., 172 F.3d 117, 121 (1st Cir. 1999).
(b) Review of the challenge to the admission of claimed hearsay evidence is for error of law inconsistent with substantial justice or affecting the substantial rights of the parties. Id.
2. In reviewing the trial court's denial of the defendant's post-verdict motions challenging the sufficiency of the evidence, this court must review the motions de novo, examining the evidence in the light most favorable to the nonmoving party. Negron-Rivera v. Rivera-Claudio, 204 F.3d 287, 289 (1st Cir. 2000); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 509 (1st Cir. 1996).
3. Review of the defendant's challenge to jury instructions is for error of law inconsistent with substantial justice or affecting the substantial rights of the parties. Beatty v. Michael Business Machines Corp., 172 F.3d at 121.
I. The Defendant Is Not Entitled To A New Trial Based On The Challenged Evidentiary Rulings, Since In Each Instance The Judge Properly Exercised His Discretion In Admitting Or Excluding Evidence, And Since None Of The Rulings Prejudiced The Defendant
The defendant contends that the trial court made a number of erroneous evidentiary rulings that so affected its substantial rights that a new trial is required. In each instance, however, the judge acted within his discretion in admitting or excluding evidence, and in each instance, no prejudice has been shown. The defendant is not entitled to a new trial.
A. The Judge Did Not Err In Striking A Brief Portion Of Dr. Kennedy's Testimony Where (1) That Testimony Was Based On Materials He Reviewed After Preparing His Reports; (2) The Defendant Failed To Disclose The Change In The Witness's Testimony Prior To Trial As Was Required Under Rule 26; And (3) The Sanction Imposed, To Which The Defendant Failed To Object, Was Minimal And Could Not Have Harmed The Defendant's Case
The defendant claims that the judge committed reversible error by striking a brief portion of Dr. Kennedy's testimony based on the failure to disclose changes in his expected testimony. The defendant never objected to the imposition of this sanction, and thus, the issue is not properly before this court. Should this court choose to address the issue, the defendant is still not entitled to relief, since the judge acted properly and entirely within his discretion. Further, assuming some error on the judge's part, such error was clearly harmless. A new trial is not warranted in these circumstances.
1. The Violation Of Rule 26 And The Sanctions Imposed
During his direct testimony, Dr, Kennedy testified that "[t]he first indication of a full thickness tear was on June 17, 1994, after Mr. Sheek had gotten back from Saudi Arabia and after he had been doing significant pulling, pushing, climbing, lifting loads over in Saudi Arabia." The judge sustained the plaintiff's objection and struck this testimony. [Appendix 1190]. Shortly thereafter, the defendant's counsel had Dr. Kennedy read a portion of Dr. Haig's report describing Sheek's alleged activities in Saudi Arabia-that "he had to do a great deal of heavy work, climbing, pushing, pulling, et cetera, for about 40 days." [Appendix 1195]. Dr. Kennedy then identified this report as his source of information about Sheek's activities in Saudi Arabia. [Appendix 1195].
During cross-examination, plaintiff's counsel questioned Dr. Kennedy as to opinions not expressed in his March 1997 and April 1999 reports. [Appendix 1332-1334]. Dr. Kennedy acknowledged that he had reviewed medical records since preparing the April 1999 report. [Appendix 1334]. At that point, the court held a voir dire, during which Dr. Kennedy testified that he had not reviewed Dr. Haig's report prior to drafting his two reports. He read it for the first time about three weeks prior to trial. Dr. Haig's report, prepared in 1995, changed his opinion as to the cause of the injury, since it explained how Sheek had gone from a partial tear to a total tear of all four muscles. He also reviewed videotapes sent to him by the defendant's counsel within the past three weeks, which he felt were inconsistent with what Sheek had told him. [Appendix 1335-1338].
The judge initially ruled that he would strike Dr. Kennedy's testimony, since "the opinions he rendered are based upon material that was not noticed to the plaintiff." [Appendix 1351-1352, 1353]. The judge noted, and the defendant's counsel acknowledged, that nowhere in the reports does he render an opinion that a partial tear developed into a full tear based on activities in Saudi Arabia. [Appendix 1360]. The judge subsequently allowed the parties to continue their examination of the witness, subject to his determining the appropriate sanction. [Appendix 1363-1364]. The judge heard further argument on the issue a few days later. [Appendix 1628-1641].
Prior to submitting the case to the jury, the judge ruled that he was not going to strike Dr. Kennedy's testimony. However, he indicated that he would ask the jurors to disregard portions of the doctor's testimony based on the passage in Dr. Haig's report describing Sheek's activities in Saudi Arabia. The defendant's counsel voiced no objection to the proposed limitation. [Appendix 1880]. The judge subsequently instructed the jury to disregard any part of Dr. Kennedy's testimony that was based on Dr. Haig's account of what Sheek might have done in Saudi Arabia. Again, the defendant's counsel failed to object to this instruction. [Appendix 1899].
2. The Standards
"Federal Rule of Civil Procedure 26(e) requires parties to supplement the testimony of their expert witnesses to inform the opposing party of any changes or alterations. If a party fails to supplement expert testimony, the district court may order appropriate sanctions as provided for in Rule 37(c). Sanctions may include exclusion of the testimony, a continuance to allow depositions to be taken, or the grant of a new trial." Tenbarge v. Ames Taping Tool Systems, Inc., 190 F.3d 862, 865 (8th Cir. 1999). In fact, the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26 was either justified or harmless. Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998); Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996).
Appellate courts review the imposition of sanctions under Fed. R. Civ. P. 37(c) for abuse of discretion. Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175 F.3d 18, 34 (1st Cir. 1999); Licciardi v. TIG Ins. Group, 140 F.3d 357, 362-363 (1st Cir. 1998); Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.), cert. denied, 513 U.S. 1000 (1994). Reversal is not appropriate in the absence of "manifest" error in the district court's choice of sanction. Freund v. Fleetwood Enterprises, Inc., 956 F.2d 354, 358 (1st Cir. 1992).
3. The Defendant's Appeal On This Point Is Not Properly Before This Court Where Counsel Failed To Object To The Sanction Ultimately Imposed By The Trial Court
When the judge first proposed striking all of Dr. Kennedy's testimony, the defendant vehemently objected to that sanction. However, the judge ultimately imposed a very limited sanction. The trial judge was entitled to assume, when no objection was forthcoming, that the defendant's counsel was satisfied with the judge's ruling. Indeed, the decision not to strike all of Dr. Kennedy's testimony was a victory for the defendant.
Where counsel failed to object to the imposition of the sanction either at the time the judge announced his ruling or when the court subsequently instructed the jury on the subject, the defendant waived that issue for purposes of appeal. Lorentzen v. Anderson Pest Control, 64 F.3d at 328 (party waived his right to appeal the imposition of sanctions when he failed to properly object to those sanctions); Prince v. Poulos, 876 F.2d at 33-34 (plaintiff's failure to object to award of costs when action was dismissed as discovery sanction waived objection that costs were not specifically requested during the hearing). See Alexander v. Riga, 208 F.3d 419, 426 (3rd Cir. 2000) (a party who does not clearly and specifically object to a ruling by the judge or a jury instruction he believes to be erroneous waives the issue on appeal); Beatty v. Michael Business Machines Corp., 172 F.3d at 121; Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1394 (11th Cir. 1997); Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996); Modine Mfg. Co. v. Allen Group, Inc., 917 F.2d 538, 542 (Fed.Cir. 1990); DiPaola v. Riddle, 581 F.2d 1111, 1113 (4th Cir. 1978). Accordingly, the issue is not properly before this court unless this court chooses to review the defendant's claim under the "plain error" exception. Beatty v. Michael Business Machines Corp., 172 F.3d at 121. That exception is "'confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.'". Id., quoting Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976) and 9 A C. Wright & A. Miller, Federal Practice and Procedure, 2558, at 675 (1971). As will be discussed below, "[t]his is not such a case." Id.
4. The Modest Sanctions Imposed By The Judge Were Justified In The Present Circumstances And Did Not Constitute An Abuse Of Discretion
As noted above, the record strongly supports the judge's conclusion that the defendant violated Rule 26. Freund v. Fleetwood Enterprises, Inc., 956 F.2d at 359. Dr. Kennedy testified on voir dire that he first reviewed Dr. Haig's report and the videotapes within three weeks prior to the start of trial, well after the date of his last report. As a result of those materials, he changed his opinion as to the cause and severity of the injuries. The change in his opinion was never disclosed to the plaintiff as the rule required. Furthermore, counsel for the defendant offered no legitimate reason for his failure to timely disclose the change in the doctor's testimony. See Id. While the judge contemplated imposing more severe sanctions, he ultimately imposed an extremely narrow sanction. The judge did not strike Dr. Kennedy's testimony that Sheek appeared to have only a partial rotator cuff tear shortly after the accident but had a full tear when he returned from Saudi Arabia, nor did he prevent the jury from considering whether Sheek's activities in Saudi Arabia might have exacerbated his injuries. He struck only the conclusions based on a single sentence in Dr. Haig's report describing Sheek's purported activities in Saudi Arabia, which amounted to no more than a few answers to a few questions. By challenging this sanction, the defendant argues, in effect, that the judge had no authority to impose any sanction for the violation of Rule 26.
Where a party violates Rule 26, appellate courts have consistently upheld the district court's exercise of its discretion in imposing sanctions. See Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 175 F.3d at 34 (judge acted within his discretion in excluding testimony of expert witness where there was considerable and unjustified variance between the expert's Rule 26 report and his testimony); Salgado by Salgado v. General Motors Corp., 150 F.3d at 742 ("the district court acted well within its discretion when it decided to impose the sanction of precluding the witnesses from testifying."); Licciardi v. TIG Ins. Group, 140 F.3d at 364 (expert testimony should have been excluded where such testimony went "far beyond the scope of [the expert's] report"); Walsh v. McCain Foods Ltd., 81 F.3d 722, 727 (7th Cir. 1996) (upholding district court's decision to limit defense witness's testimony to that previously disclosed to plaintiffs in his report and deposition); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 283-284 (8th Cir. 1995) (district court did not abuse discretion in limiting testimony of motorist's expert witness based on failure to comply with discovery order regarding disclosure of experts); Freund v. Fleetwood Enterprises, Inc., 956 F.2d at 358-359 (district court did not abuse its discretion in excluding testimony of plaintiff's expert as sanction for plaintiff's failure to seasonably supplement information given to defendants about the expert witness' proposed testimony even though exclusion as sanction deprived plaintiff of potentially useful evidence). Compare Tenbarge v. Ames Taping Tool Systems, Inc., 190 F.3d at 865 (new trial was warranted as result of defendant's failure to comply with duty to disclose medical expert's newly arrived-at conclusions as to cause of plaintiff's injuries); Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) (appropriate remedy for discovery violation was exclusion of evidence; judge erred in finding violation to be harmless).
The imposition of sanctions was particularly appropriate in this case. "[T]he purpose of our modern discovery procedure is to narrow the issues, to eliminate surprise, and to achieve substantial justice." Tenbarge v. Ames Taping Tool Systems, Inc., 190 F.3d at 865, quoting Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir. 1993) and Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968). In this case, the plaintiff was certainly surprised by the unexpected change in the doctor's opinion. Freund v. Fleetwood Enterprises, Inc., 956 F.2d at 359. The change in the witness's testimony also created a strong potential for prejudice. In many respects, the doctor's two reports supported the plaintiff's contention as to the cause of the injury and the existence of a continuing disability. However, the witness's trial testimony was less favorable than expected, and counsel for the plaintiff did not learn the basis for the change until the middle of his cross-examination. The defendant's failure to make timely disclosure denied the plaintiff the opportunity to develop his cross-examination of Dr. Kennedy on his newly arrived at conclusions or to present additional evidence to counter his changed opinion. Tenbarge v. Ames Taping Tool Systems, Inc., 190 F.3d at 865. The violation of Rule 26 thus "resulted in a fundamental unfairness[.]" Id. See Porchia v. Design Equip. Co., 113 F.3d 877, 882 (8th Cir. 1997).
Arguably, the sanctions in this case did not go far enough. See Klonoski v. Mahlab, 156 F.3d at 269 (1993 amendment to Rule 37 "clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule, and the required sanction in the ordinary case is mandatory preclusion"). In any event, the record clearly supported a finding that the defendant failed to meet its discovery obligations, that the violation of the rule was unjustified, and that the plaintiff was surprised and prejudiced. "The resulting sanction [was] well within the district court's discretion" and certainly did not constitute manifest error. Freund v. Fleetwood Enterprises, Inc., 956 F.2d at 359; United States v. Ladd, 885 F.2d 954, 959 (1st Cir. 1989); Sexton v. Gulf Oil Corp., 809 F.2d 167, 170 (1st Cir. 1987).
5. Assuming Some Error On The Judge's Part, Such Error Was Clearly Harmless
Assuming that the judge made some error in striking portions of the witness's testimony, that error was clearly harmless. On the one hand, the defendant claims that Dr. Kennedy provided the only evidence on what had caused the injury to go from a partial tear to a full tear. On the other hand, the defendant argues that this testimony was brought out on cross-examination. If indeed the defendant did not intend to elicit this testimony in its direct examination, it could not have been of great importance to the defendant's case and therefore could not have been prejudicial.
Moreover, although the judge struck the conclusion that Dr. Kennedy had drawn based on the language in Dr. Haig's report, he did not strike the witness's testimony that Sheek may have only had a partial tear in Singapore , that he went to Saudi Arabia, and that when he returned he had a full tear. Thus, nothing in the judge's ruling prevented the defendant from developing the theory that something had happened in Saudi Arabia causing the injury to become worse. Indeed, counsel devoted much of his closing argument to that theme, and the jury ultimately reduced the verdict by ten percent based on Sheek's contributory negligence. In these circumstances, the defendant cannot show prejudice from the claimed error.
B. The District Court Committed No Error Of Law, Nor Did He Abuse His Discretion, In Admitting Certain Testimony About The Pipe Replacement Where The Record Clearly Established That The Witnesses Had Personal Knowledge Of The Facts To Which They Testified
Without citing any authority in support of its argument, the defendant claims that the trial judge erred in allowing Sheek and Jim Syar to testify to facts based entirely on hearsay which would not have been within their personal knowledge. More specifically, the defendant challenges the admission of (1) Sheek's testimony that the cooling water issue was a "design" problem rather than a maintenance problem; (2) his rebuttal testimony that the work done in August of 1994 described by Ch Tai was not the same work done in March of that year; and (3) his testimony about his understanding of the purpose of the repiping work. The defendant also challenges Syar's deposition testimony that Asia Badger handled the repiping work in March of 1994, arguing that Syar did not personally observe the work being done. The plaintiff contends that the testimony of both witnesses was not hearsay but was based on facts within their personal knowledge.
Accordingly, the judge did not err in admitting their testimony.
Fed. R. Evid. 602, requires that a witness have "personal knowledge" about the matter to which he testifies. "Personal knowledge can include 'inferences and opinions, so long as they are grounded in personal observations and experience.'" United States v. Rodriguez, 162 F.3d 135, 144 (1st Cir. 1998), quoting United States v. Neal, 36 F.3d 1190, 1206 (1st Cir. 1994), cert. denied, 519 U.S. 1012 (1996). In fact, the "modern trend favors the admission of opinion testimony [from lay witnesses], provided it is well founded on personal knowledge and susceptible to cross- examination." United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989). See United States v. Santana-Rosa, 132 F.3d 860, 866 (1st Cir. 1998). As this court has explained, "the individual experience and knowledge of a lay witness may establish his or her competence, without qualification as an expert, to express an opinion on a particular subject outside the realm of common knowledge." Id. Finally, the fact that the witness may not have directly observed a matter about which he testifies does not render such testimony inadmissible. "'The extent of a witness' knowledge of matters about which he offers to testify goes to the weight rather than the admissibility of the testimony.'" Hallquist v. Local 276, Plumbers & Pipefitters Union, 843 F.2d 18, 24 (1st Cir. 1988), quoting Nielson v. Armstrong Rubber Co., 570 F.2d 272, 277 (8th Cir. 1978). See United States v. Rodriguez, 162 F.3d at 144.
In this case, the record establishes that Sheek was brought to the job site to supervise the construction and startup of the plant. He certainly had the background and expertise to distinguish between a design defect and a simple maintenance issue. It was his job to identify and correct such defects, and he was uniquely qualified through his personal knowledge to identify the cooling water issue as a design defect. Compare United States v. Doe, 960 F.2d 221, 223 (1st Cir. 1992) (sports shop owner's testimony that he "knows" Taurus pistols are "manufactured in Brazil" was properly admitted, since "[a] reasonable trier of fact could believe [he] had firsthand knowledge from which he could infer that the pistol was made outside of Massachusetts, indeed in Brazil," even though he did not personally observe the gun being made). Further, the fact that Asia Badger prepared several memoranda describing the work to be performed, issued preliminary field drawings showing the modifications of the piping as it was actually built, and later prepared more detailed isometric drawings of the new piping provided an ample independent basis for concluding that the piping problem was indeed a design defect. Compare United States v. Neal, 36 F.3d at 1206 (bank employee permitted to testify that she had observed records indicating that branch of bank was federally insured, although she had not personally seen such a certificate posted at the branch on the date of the robbery, and was also permitted to testify that bank records to which she was exposed indicated that the branch had customers in Vermont and Massachusetts).
Sheek's rebuttal testimony was also based on his personal knowledge and not on inadmissible hearsay. He had worked on the site during its construction and was intimately familiar with the location of certain piping and equipment that had been described by Tai. Again, the test for admissibility is "whether a reasonable trier of fact could believe the witness had personal knowledge." Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 764 (2d Cir. 1991). See United States v. Doe, 960 F.2d at 223. A jury could certainly find that Sheek had personal knowledge that the work done in March of 1994 was further downstream from the location described by Tai. [Appendix 1863-1868].
Sheek's understanding that the purpose of the repiping was to increase the water flow to allow for improved cooling [Appendix 1867] was also within his personal knowledge. In fact, even without being certified as an expert witness, Sheek was uniquely qualified to testify to this rather obvious point. Compare United States v. Rivera-Santiago, 107 F.3d 960, 969 (1st Cir. 1997). Even if improperly admitted, Jim Syar, Ch Tai, and Gary Steinmetz all offered similar testimony, rendering any error in its admission harmless.
With regard to Syar's deposition testimony, the judge initially indicated that it was not clear whether Syar was saying that he personally observed repiping being done. However, he allowed the answer to stand since it appeared that Syar was "saying that some of the work on this pipe was done at night" when he would have had an opportunity to observe it personally. [Appendix 1606].
Although Syar could not specify the dates, he later testified that some of the work did take place at night in his presence. [Appendix 1610]. He also testified that his people would not have handled new construction, such as the installation of new piping, but that such work would have been handled by Asia Badger. When Asia Badger advised him that the work was completed on a particular project, he would inspect the work. As a supervisor in the aromatics unit, a reasonable jury could certainly find that he had personal knowledge of who was handling the work, even if he did not personally observe all of that work as it took place. Folio Impressions, Inc. v. Byer California, 937 F.2d at 764. See United States v. Doe, 960 F.2d at 223.
Finally, as noted above, even if it is not clear that the witnesses personally observed events about which they testified, such ambiguity goes to the weight rather than the admissibility of the testimony. Hallquist v. Local 276, Plumbers & Pipefitters Union, 843 F.2d at 24. The defendant's remedy was to cross-examine the witnesses on whether they had personally observed what they were testifying to, and in each instance, the defendant did precisely that. The judge committed no error or abuse of discretion in admitting such testimony.
II. The Defendant's Challenge To The Sufficiency Of The Evidence Must Fail Where The Plaintiff Presented Ample Evidence From Which The Jury Could Have Found Negligence On The Part Of Asia Badger Or One Of Its Agents
The defendant contends that the evidence was insufficient as a matter of law to establish its liability on a negligence theory. Therefore, the district court abused its discretion in denying its motions for judgment notwithstanding the verdict and for a new trial. In reviewing the trial court's denial of a motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a) & (b), this court reviews that motion de novo, examining the evidence in the light most favorable to the nonmoving party. Negron-Rivera v. Rivera-Claudio, 204 F.3d 287, 289 (1st Cir. 2000); Jacques v. Clean-Up Group, Inc., 96 F.3d at 509. See Troy v. Bay State Computer Group, Inc., 141 F.3d 378, 382 (1st Cir. 1998). This court "may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987). "Reversal of the denial of the motion is warranted 'only if the facts and inferences "point so strongly and overwhelmingly in favor of the movant" that a reasonable jury could not have reached a verdict against that party.'" Jacques v. Clean-Up Group, Inc., 96 F.3d at 509, quoting Golden Rule Ins. Co. v. Atallah, 45 F.3d 512, 516 (1st Cir. 1995) and Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993). In this case, the evidence, viewed in the light most favorable to the plaintiff, amply supports the jury's verdict. The judge properly denied the defendant's motion.
On appeal, the defendant does not appear to contest that leaving debris around the work site would constitute negligence on someone's part. It contends, however, that the verdict cannot be sustained where Sheek "failed to set forth sufficient evidence to show either that Asia Badger or an Asia Badger subcontractor was responsible for the presence of the pipe upon which Sheek allegedly fell." [D. Brief at 24]. The plaintiff submits, however, that he presented ample evidence on this point. Accordingly, the judge committed no error, nor did he abuse his discretion, in refusing to set aside the verdict.
Viewed in the light most favorable to the plaintiff, the following evidence was presented at trial:
At the time of the accident, Sheek and Jim Syar were both a supervisors on the night shift and were familiar with the work being performed. Their jobs included resolving construction problems and handling normal maintenance issues.
After the cooling problem had been identified, Sheek met with Asia Badger piping supervisor Perry Birch and other Asia Badger people to discuss the solution. Since it was a design problem rather than a maintenance issue, Asia Badger, as the contractor, was responsible for the repairs. It was a punch list item. Sheek received from Asia Badger several memoranda describing the work they intended to do, preliminary field drawings prepared by Asia Badger showing the modifications to the piping as it was actually built, and more detailed isometric drawings of the new piping prepared by Asia Badger. He reviewed them and sent them up the chain of command to Asia Badger. Before Asia Badger would do the work, Sheek would shut off the appropriate pumps, and when he started his shift he would inspect the work that had been done. [Appendix 995-996, 1000, 1005-1006, 1019-1025]. On March 8, 1994, he took the D pump down so that Asia Badger could replace the cooling pipes. On March 9, both Sheek and Syar observed that work was being done on the pipes around that pump. [Appendix 995, 1650-1651].
As supervisors in the aromatics area, Sheek and Syar were familiar with the maintenance tasks that needed to be performed on the equipment in this area. The routine maintenance that would have been performed by Mobil employees would not have involved cutting or welding pipes. Any pipes taken apart would simply be reassembled. [Appendix 997-999, 1096-1107, 1599-1602, 1620-1622, 1651].
Both Sheek and Syar testified that Sheek fell after stepping on a piece of pipe that had been left on the ground. That pipe was the same type as the cooling pipes that was being replaced by Asia Badger. It appeared to have been cut off with a pipe cutter. There were some other pieces of pipe on the ground, as well as some pieces of wood. The pipes that Mobil employees would have removed had they been changing a seal were an entirely different size. [Appendix 1010-1015, 1025, 1611-1619, 1623-1626, 1650-1651].
Mark Henderson testified that Perry Birch was in charge of fixing pump problems or pipefitting or anything along those lines in the aromatics area. He further testified that beginning in late December of 1993, he met with Mobil's people on a daily basis to complete the punch list and finish the last of the construction. [Appendix 1661-1663]. Although Mobil's people were constantly making modifications to equipment, he never witnessed any Mobil people welding. [Appendix 1672].
Ch Tai confirmed that there was a punch list consisting of work not yet completed by Asia Badger by the time of the dedication. If there was something that needed to be fixed, Mobil would tell Asia Badger, and Asia Badger would fix it. Their workers were on the job site for many months after the dedication ceremony. Tai could not recall if the changes to the xylene pumps were part of the punch list. He noted that Asia Badger was responsible for design changes that were on the punch list through March of 1994. [Appendix 687, 690, 692].
With regard to the issue of Asia Badger's supervision of its subcontractors, Sheek personally observed Asia Badger foremen supervising, directing and controlling the work of its employees and subcontractors on punch list items on a daily basis from September through December of 1993. [Appendix 963-970].
Gary Steinmetz testified that he would generally communicate with subcontractors through a designated supervisor. [Appendix 1768-1769]. He further testified that Poon Lim, the subcontractor assigned to the xylene splitter bottom pumps, would not have performed any work without detailed isometric drawings. [Appendix 1765-1767]. Such "[d]esign specifications . . . describe in precise detail the materials to be employed and the manner in which the work is to be performed. The contractor has no discretion to deviate from the specifications, but is 'required to follow them as one would a road map.'" Blake Constr. Co. v. United States, 987 F.2d 743, 745 (Fed.Cir. 1993), quoting J.L. Simmons Co. v. United States, 188 Ct.Cl. 684, 412 F.2d 1360, 1362 (Ct.Cl. 1969). See Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1363-1364 (Fed.Cir. 1998) (government contract and attached drawings left contractor with no discretion to determine the location of excavation lines).
Finally, separate and apart from the issue of supervision of subcontractors, the contract signed by Asia Badger required it to "maintain all work sites free of waste materials and rubbish", including sites where "its affiliates and subcontractors" handled the work. [Appendix 531]. It also made Asia Badger responsible "for safety and security in connection with the WORK and in respect of all personnel for which it is responsible" which included ""its subcontractors' employees and agents[.]" [Appendix 531]. Even if Asia Badger could not be found to have directly supervised its subcontractor, the jurors clearly could have found Asia Badger negligent in not cleaning up after its subcontractor where it had assumed an obligation to do so under the contract.
Based on the above facts, there was ample support for the jury's finding that Asia Badger or one of its subcontractors performed work in the area of pump D and negligently failed to clean up debris from this work. The fact that the defendant presented contrary evidence does not dictate a different result. Neither the judge nor the jury were required to accept the defendant's version of the facts, and in this case, neither did. See Troy v. Bay State Computer Group, Inc., 141 F.3d at 381. The defendant has failed to show that the facts and inferences point so strongly and overwhelmingly in its favor that a reasonable jury could not have reached a verdict against it. Jacques v. Clean-Up Group, Inc., 96 F.3d at 509. The judge's denial of the defendant's motion to set aside the verdict must be affirmed.
III. The Defendant Is Not Entitled To Reversal Based On Claimed Errors In The Jury Instructions On Vicarious Liability Or The Language Used In The Verdict Form
The defendant contends that the judge provided misleading and confusing instructions on the issue of vicarious liability and then exacerbated that error by submitting a poorly worded verdict form to the jury. The plaintiff submits, however, that the judge instructed correctly on vicarious liability and that the verdict form properly presented the factual questions to the jury in language that was both complete and correct. Further, assuming the judge made some error, that error was harmless in the present circumstances.
A. The Judge Correctly Instructed The Jurors On The Standards For Determining Vicarious Liability
Under Singapore law, a contractor "is under a general duty to use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work." Ng Shin Hon v. Chow Wai Chuang, 1965-1968 SLR 672, 1967 Lexis 133 (at 7-8) (High Ct. 1967). "A person who appoints independent contractors does not, ipso facto, absolve himself of any liability in negligence" to others. Mohd bin Sapri v. Soil-Build (Pte) Ltd., 1996-2 SLR 505, 1996 SLR Lexis 61 (at 28) (1996). That party may be held vicariously liable for the negligent acts of its subcontractors if it controlled the operations of its subcontractor or was involved in any substantial supervisory or coordinating capacity. Id. The judge in this case gave clear, precise and legally correct instructions on this subject.
Although challenging these instructions, the defendant fails to identify a single element that was omitted or stated incorrectly. Rather, the defendant claims error in the judge's refusal to "enumerate and clarify the standard for vicarious liability" using the language set forth in its proposed instructions.
"[A] defendant has no absolute right to the use of particular language" in a jury instruction as long as the charge as a whole conveys the substance of the theory. United States v. Dockray, 943 F.2d 152, 154 (1st Cir. 1991). See United States v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997). Where the instructions adequately conveyed the substance of the law on vicarious liability, the judge was not required to give the defendant's proposed instructions.
Further, the proposed instructions were repetitive, confusing, and contain a number of incorrect statements of the applicable standards. For example, paragraph 5 of the proposed instructions would require proof that an Asia Badger employee was present at the location where the work was being performed and that the employee "personally directed the work of the subcontractor's workers, including the details and manner in which the work was to be done, and the subcontractor's workers took instructions from him[.]" [D. Brief at 28, n.11]. The defendant cites no case, nor is there any authority, supporting the contention that vicarious liability requires the physical presence of an Asia Badger employee or requires that the employee personally direct the subcontractor's workers. There was evidence in this case that Asia Badger officials met with supervisors of its subcontractors on a daily basis, but the most compelling evidence of direct supervision and control was the use of detailed isometric drawings described by witnesses for both parties. This evidence could certainly establish that Asia Badger controlled, supervised or coordinated the work of its subcontractors, yet the instructions requested by the defendant would have required the jury to ignore such evidence. The proposed instructions were misleading, incorrect, and incomplete, and the judge properly rejected them.
B. The Verdict Form Presented The Proper Factual Questions In Language That Was Both Complete And Correct
The defendant complains that the verdict form "did not separate the issue of direct liability from vicarious liability." [D. Brief at 29]. By simply asking the court to pass on the defendant's negligence, the defendant claims that the judge committed reversible error.
"The questions in a special verdict form must be 'reasonably capable of an interpretation that would allow the jury to address all factual issues essential to judgment.'" Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996), quoting United States v. Real Property Located at 20832 Big Rock Dr., 51 F.3d 1402, 1408 (9th Cir. 1995). However, the court's instructions to the jury as well as the wording of the special verdict form are examined as a whole to determine if they fairly presented the issues to the jury. Id. "'When, therefore, the general charge adequately directs the jury to its duties in answering the questions submitted to it there is no need to accompany the submission with repetitive instruction.'" Id., quoting Lawrence v. Gulf Oil Corp., 375 F.2d 427, 429 (3d Cir. 1967).
In this case, the first question on the verdict form was as follows: "Were employees or agents of the defendant, Asia Badger, negligent in performing the work in the area of the alleged accident?" [Appendix 46]. The language used required the jury to consider both direct and vicarious liability, and especially in view of the clear and correct instructions on vicarious liability in the judge's charge, the jurors could not have been misled. Id. (failure to break down question of liability into two separate issues on verdict form was not error where the judge's instructions alerted the jurors to the two theories).
C. Any Error In The Judge's Instructions On Vicarious Liability Was Clearly Harmless
Assuming the judge's instructions on vicarious liability were somehow deficient, that error was certainly harmless.
Asia Badger's main theory of defense was not that the negligent conditions were caused by an unsupervised subcontractor. Rather, counsel argued to the jury "that it was in fact Mobil that did the work" [Appendix 1900]; that at the time of the accident Asia Badger no longer had pipefitters or its piping subcontractors on the site [Appendix 1901, 1920-1921]; and that "it was Jack Sheek's own negligence which caused his injury." [Appendix 1900].
Once the jury rejected Asia Badger's contention that it or its subcontractors did not perform the piping work, there was little room for finding that it did not exercise sufficient control over its subcontractors to establish vicarious liability. As discussed in detail above, the record strongly supports that Asia Badger did in fact closely supervise the work of its subcontractors.
Even if it did not, the issue of vicarious liability is something of a red herring. Whatever the level of supervision, the jurors would almost certainly have found Asia Badger to have been negligent in not cleaning up hazardous conditions created by its subcontractor where it had assumed an obligation to do so under the contract.
Finally, the defendant does not and cannot identify any harm that might have resulted from the claimed error in the verdict slip. The jury could find liability under either a direct or vicarious liability theory and was not required to find both. To the extent that the court failed to present the latter theory for the jurors' consideration, such error could only have worked to the defendant's benefit by preventing them from finding liability on a theory supported by the evidence.
Where the claimed errors could not have affected the defendant's main theories of defense and was not likely to have affected the jury's verdict, it must be viewed as harmless.
IV. Conclusion
Based on the authorities cited and the reasons stated above, the plaintiff/appellee respectfully requests that this court affirm the judgment of the district court.
Respectfully submitted,
Jack Sheek
By his attorneys,
Dana A. Curhan
Bar # 44690
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800
Kenneth Levine
Ross Annenberg
Annenberg and Levine
One Bromfield Street
Suite 600
Boston, MA 02108
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