Norman Seymore v. Penn Maritime Inc

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40430
NORMAN SEYMORE
Plaintiff - Appellee
v.
PENN MARITIME INC
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
3:05-CV-528
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Penn Maritime, Inc. appeals following a jury verdict in favor of its
employee, Norman Seymore, who filed suit alleging claims of Jones Act
negligence and unseaworthiness. Penn raises several challenges to the district
court’s rulings during trial. For the reasons that follow, we modify the district
court’s judgment and AFFIRM AS MODIFIED.
1. Penn argues first that Seymore’s claim for past maintenance
and cure should have been dismissed because Seymore’s attorneys
United States Court of Appeals
Fifth Circuit
F I L E D
June 5, 2008
Charles R. Fulbruge III
Clerk

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paid for Seymore’s surgery and provided him with funds to cover his
living expenses. It also argues that Seymore did not give Penn prior
notice of his neck surgery. Penn argued this issue to the district
court in a motion for judgment as a matter of law at the close of the
plaintiff’s case and again at the close of all evidence; therefore, our
review is de novo. See Palastota v. Haggar Clothing Co., 499 F.3d
474, 480 (5th Cir. 2007). We conclude that the evidence was
sufficient to show that Seymore’s expenses were covered by loans
from his attorneys, and because the loans did not extinguish the
liability he incurred, the maintenance and cure claim was proper.
See Gauthier v. Crosby Marine Serv., Inc., 752 F.2d 1085, 1089–90
(5th Cir. 1985) (holding that a set off for maintenance and cure for
employee’s medical insurance payment was not required where
employee incurred expense for insurance). We also conclude that
the evidence of notice that surgery was required was sufficient.
2. Penn next argues that the medical opinion of Seymore’s
treating physician, Dr. Zoran Cupic, concerning Seymore’s injuries
and need for surgery should have been stricken as unreliable under
FED. R. EVID. 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). “[A] district court has
broad discretion in deciding the admissibility vel non of expert
testimony, [and] we will not find error unless the ruling is
manifestly erroneous.” Guy v. Crown Equip. Corp., 394 F.3d 320,
325 (5th Cir. 2004). We do not find that standard met here. We
note that Penn did not contemporaneously object to Dr. Cupic’s
testimony and never sought a Daubert hearing. Instead, it moved
to strike the testimony after Cupic had left the stand. Furthermore,
Dr. Cupic’s opinions, which Penn controverted with opinions from

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its own expert, were based on his experience, training, and
examination of Seymore, as well as Cupic’s evaluation of objective
tests performed on Seymore. The district court did not abuse its
discretion by admitting the doctor’s testimony. See Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (noting that “this
circuit has upheld the admission of expert testimony where it was
based on the expert’s specialized knowledge, training, experience,
and first-hand observation while supported by solid evidence in the
scientific community”).
3. Penn also challenges under Daubert the testimony of
Seymore’s economist, Dr. Kenneth McCoin. Penn argues that Dr.
McCoin’s testimony was based on insufficient facts because McCoin
lacked knowledge of Seymore’s vocational potential and employment
history. McCoin provided the methodology for the jury to determine
the economic loss, which Penn does not challenge. He encouraged
the jury to account for the actual facts in the case, and Penn had
adequate opportunity to cross-examine him about his assumptions.
Penn fails to show the testimony was not relevant or reliable.
4. Penn next argues that the district court erroneously failed to
admit under Rule 404(b) records from two of Seymore’s prior
employers. The district court permitted Penn to develop its theory
largely through cross-examination, and Penn read from a portion of
one of the records. We see no abuse of discretion in the district
court’s exclusion of the records, and, even assuming error, it was
harmless in light of Penn’s cross-examination. See Brunet v. United
Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994) (“We review the
admission of evidence for abuse of discretion and will reverse only

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if the challenged ruling is erroneous and affects a substantial right
of the party.”).
5. Penn next argues that the jury verdict form and special
interrogatories were erroneous because the jury was not asked
specifically whether an accident occurred. The jury was asked to
determine whether Penn was negligent and whether such
negligence caused Seymore’s injuries. The existence vel non of an
accident is subsumed within that question. We conclude that the
district court did not abuse its discretion in framing the
interrogatories and that the interrogatories, read in conjunction
with the charge as a whole, adequately presented the contested
issues to the jury. See Dreiling v. Gen. Elec. Co., 511 F.2d 768, 774
(5th Cir. 1975).
6. Penn further challenges as arbitrary the district court’s
limitation of its time to cross-examine witnesses and present its case
to 10 hours. Penn did not object to the district court’s time
restrictions at trial, and our review is limited to plain error. We are
convinced from a review of the record that Penn had sufficient time
to develop its defensive theories and present its case. Penn fails to
show that the district court abused its broad discretion to manage
its docket and control the trial. See Sims v. ANR Freight System,
Inc., 77 F.3d 846, 849 (5th Cir. 1996).
7. Penn also argues that plaintiff’s counsel was allowed to make
improper comments during closing argument that attacked defense
counsel, appealed to regional prejudices, and accused defense
counsel of suborning perjury. A review of the record, including the
district court’s cautionary instruction to the jury, shows that the
error, if any, was harmless.

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8. Finally, Penn argues that the district court erroneously
awarded prejudgment interest on the jury’s award, which did not
apportion damages between the Jones Act claim and the
unseaworthiness claim. Seymore does not oppose reformation of the
judgment to omit interest on the damages but not maintenance and
cure. We agree that there was error, and therefore the judgment
must be modified to omit the prejudgment interest to that extent.
See McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 531–32 (5th
Cir. 1987); see also Ferrero v. United States, 603 F.2d 510, 515 (5th
Cir. 1979) (noting that circuit court may recompute a damages
award “if a remand would be mere wasted motion”)
The district court’s judgment is AFFIRMED AS MODIFIED.

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