Tavares v. Michigan Fishing ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





        No. 96-2208



                                   MANUEL TAVARES,



                                 Plaintiff, Appellee,



                                          v.



                               MICHIGAN FISHING, INC.,



                                Defendant, Appellant.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                        Before



                                Stahl, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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             Thomas E. Clinton, with whom Clinton & Muzyka, P.C. was on brief
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        for appellant.

             Michael B. Latti, with whom Carolyn M. Latti and Latti Associates
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        LLP were on brief for appellee.
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                                   October 24, 1997


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                    Per  Curiam.     Michigan  Fishing,  Inc.  ("Michigan")
Per  Curiam
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          appeals the district  court's denial of its motion  for new trial



          after the jury found  it liable under the Jones Act,  46 U.S.C.



          688  (Supp. 1997),  for bodily  injuries  sustained by  plaintiff



          Manuel Tavares while a seaman  aboard the F/V CONCORDIA, owned by



          Michigan.   In particular,  Michigan contends that  the following



          jury argument by plaintiff's counsel was unfairly prejudicial:



                         [Captain   Jacobsen]   says,   I   don't

                    remember.   I don't  remember whether  I gave

                    someone a  list after  this accident,  to fix

                    it.   I don't  remember.   I don't  remember.

                    That's  all he keeps  on saying, but  we know
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                    that  four days  after there was  this repair
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                    done  and there was an invoice  for it and it
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                    was  done   and  it  was  on  that  starboard
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                    hoister.  (emphasis added).
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          Michigan argues  that  the quoted  language invited  the jury  to



          treat  the invoice  as substantive  evidence  of liability,  even



          though the invoice was never admitted in evidence.



                    There  was  no abuse  of  discretion.    See Correa  v.
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          Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995), cert.
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          denied, 116 S. Ct.  1423 (1996).  The same invoice  had been used
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          earlier to  impeach the ship's  captain, after he  denied knowing



          whether any repairs were made  to the hoister after the accident.



          Furthermore, the trial judge promptly cautioned the jury that the



          invoice was not to be  considered substantive evidence, but  only



          for impeachment purposes.



                    Michigan nonetheless maintains that  the jury must have



          disregarded the district court instruction.  It points to a later



          jury  note:   "Why  was  invoice for  repairs  not submitted  for





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          evidence?  Exactly  what did it show."   Thereafter, however, the



          trial  judge firmly  disabused  the  jury  of  any  misconception



          portended by the note:



                         First, "Why was  invoice for repairs not

                    submitted for  evidence?"   Because it's  not

                    admissible under the laws of evidence and the

                    law governing this case.

                         So, in  answer to  the second  question,

                    I'll  have nothing to say about what it shows

                    or  not . . . or even  if it's an invoice for

                    repairs.  You  have heard those things  which

                    are admissible  and I  have charged you  with

                    respect to them.



                    Coupled with  its earlier instruction  that the invoice



          could be considered only "to get a handle on the believability of



          the witnesses who  testified before [the jury], and  nothing else



          whatsoever[,]" the district court's later cautionary  instruction



          was sufficient to keep  the jury on the proper track.   See Conde
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          v.  Starlight I,  Inc., 103  F.3d 210, 213  (1st Cir.  1997) ("We
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          normally  presume that a  jury follows instructions  to disregard



          improper argumentation.").



                    Affirmed.
Affirmed
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