A recent Fifth Circuit per curiam opinion proves to be a lesson for maritime and admiralty attorneys in how to preserve issues on appeal, particularly in Jones Act jury trials.
In 2014, Plaintiff Richard Bosarge applied for employment with Cheramie Marine, L.L.C. and was hired as a relief captain. While on duty, Mr. Bosarge sustained injuries to his back when he was tossed out of his bunk when his vessel hit a large wave. Cheramie responded by arguing that the waves were not violent and alleging that Mr. Bosarge never reported any injuries to his superiors, other than some seasickness.
Mr Bosarge sued his employer under the Jones Act to recover for his back injuries. During his pre-employment physical examination, Mr. Bosarge denied having any prior back pain or injury, although he had sought medical care for back pain in the past. At trial, Defendant’s medical expert was able to compare pre-injury and post-injury MRIs of Mr. Bosarge’s back, and testified that the post-injury MRI showed less injury than the pre-injury MRI. The jury returned a zero verdict and Plaintiff appealed.
Plaintiff first challenged the jury’s verdict arguing there was insufficient evidence to support such a verdict. However, the plaintiff had not moved for a directed verdict, judgment as a matter of law, or a new trial. As a result, the Fifth Circuit could not review the sufficiency of the evidence.
Plaintiff also claimed the lower court committed reversible error by improperly instructing the jury, particularly regarding the use of the word “accident” in the jury instructions and the fact that the court did not use the Fifth Circuit’s pattern jury instructions. Mr. Bosarge contended that the word “accident” conveyed a meaning that there was no liability attached to the injuries he sustained. The Court held that the definition of “accident” mirrored the definition of “negligence” in the Fifth Circuit’s pattern instructions. The judges also found that the jury was not confused about the meaning of the word accident, particularly in light of a question they sent to the judge during deliberations. Additionally, the court found that the fact a district court chose not to use the pattern instructions is not alone sufficient to overturn the jury’s verdict. Further, the Court concluded that the instructions given by the judge in this case were nearly identical to what is provided for in the pattern instructions. The Fifth Circuit ultimately found no abuse of discretion in the trial court’s choice of wording in its jury instructions.
Finally, Plaintiff argued the district court committed error by admitting the expert testimony of Defendant’s expert regarding the pre-injury MRI. Plaintiff argued that he did not receive the actual MRI films on which the expert based his testimony. The court, however, held that the expert’s report had been timely disclosed seven months prior to trial and allowed the expert to testify consistently with his report. In admitting the testimony, the district court balanced the competing interests of the parties by limiting the expert’s testimony to the contents of his report, but excluding the actual MRI films. Upon review, the Fifth Circuit found that allowing Defendant’s expert to testify in this regard was not reversible error and fell within the trial court’s wide latitude in admitting expert testimony.
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