Lopez v. United States ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30216
(Summary Calendar)
JOSE A. LOPEZ,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(93-CV-3860)
December 27, 1995
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Jose A. Lopez filed this Jones Act suit for damages for personal injuries allegedly sustained
on board the S/S METEOR as a result of an accident on December 17, 1992. The parties stipulated
to Lopez's seaman status and the facts of the accident. The main issue at trial concerned the extent
of Lopez's injuries which could be related to the accident.
*
Local Rule 47.5 provides: “The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless expense
on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined
that this opinion should not be published.
The parties presented several expert witnesses who offered conflicting explanations for
Lopez’s back injury. While one witness related Lopez’s symptoms of back pain to the accident,
others attributed them to aging and mild degenerative changes only.
At the conclusion of the trial, the district court appointed Dr. James C. Butler to provide an
additional medical opinion. Dr. Butler's report stated that "[o]ne cannot determine with any certainty
as to whether these degenerative changes `previously asymptomatic were made symptomatic' by this
accident," but that this was "probably not the case."
The district court found that "any back problems currently suffered by plaintiff are as a result
of the normal aging process, and cannot be attributed to the negligence of defendant."
DISCUSSION
Standard of causation
Lopez argues that the district court erred by not applying the proper standard of causation
required by the Jones Act. He argues that using the "featherweight" standard of causation required
would result in a finding that the disabling condition suffered by him was caused by the December 17
accident. He argues that the district court's correspondence to Dr. Butler did not present the doctor
with the proper standard of causation. He contends that the district court's use of the words
"probable cause" in her letter did not properly present the standard of causation, which caused Dr.
Butler to use the incorrect standard.
Causation questions in admiralty cases are treated as fact questions. Johnson v. Offshore
Exp., Inc., 845 F.2d 1347, 1352 (5th Cir.), cert. denied, 488 U.S. 968 (1988). A district court's
findings of fact in an admiralty case may not be set aside unless they are clearly erroneous. Walker
v. Braus, 995 F.2d 77, 80 (5th Cir. 1993). A finding of fact is clearly erroneous when, although there
is evidence to support it, the reviewing court, based on all the evidence, is left with the definite and
firm conviction that a mistake has been made. Id. The clearly erroneous standard of review does not
apply if the district court made t he factual finding under an erroneous view of controlling legal
principles. Id.
2
There is no evidence in the record to suggest that the district court applied an incorrect legal
standard. The burden of proof on a plaintiff for showing causation in a Jo nes Act case has been
described as "featherweight." Johnson, 845 F.2d at 1352. This does not mean that the plaintiff wins
if he puts on any evidence of causation. This burden of proof applies in the context of deciding
whether a plaintiff's case should go to the jury when a defendant files a motion for summary
judgment, or a motion for directed verdict at the close of plaintiff's case, or whether a jury verdict
should be upheld when the defendant files a motion for judgment notwithstanding the verdict. See
Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 97-100 (5th Cir. 1985). It does
not follow from the featherweight burden "that the plaintiff is entitled to a directed verdict if there
is only slight evidence in his favor." Nor does it follow that "if the defendant wins the verdict, the
plaintiff should be able to overturn it if there is only slight evidence in his favor."
When the findings of the district court in a bench trial are based on credibility determinations,
this court affords those findings even greater deference. Dardar v. Lafourche Realty Co., Inc., 985
F.2d 824, 827 (5th Cir. 1993). The district court's finding that Lopez's back condition was not
related to the accident of December 17 was not clearly erroneous.
Further, Lopez's suggestion that the district court should have informed Dr. Butler of the
"featherweight" standard of review has no basis in law. As noted above, not only is the standard not
applicable in that context, but any applicable legal standard is for the district court to apply, not the
physician.
Examination of court appointed expert
Lopez argues that it was reversible error for the district court to accept and consider the
opinion of Dr. But ler without presenting him for examination by the parties prior to rendering
judgment, in violation of Fed. R. Evid. 706. He contends that the district court rendered judgment
while Dr. Butler's opinions remained open, making him unable to obtain Dr. Butler's complete
conclusions through sworn testimony and cross-examination.
3
Federal Rule of Evidence 706(a) provides that the district court may appoint an expert
witness, whose "deposition may be taken by any party," and who "may be called to testify by the
court or any party," and who would be "subject to cross-examination by each party, including a party
calling the witness." Rule 706(a) does not explicitly require the district court to "present" the witness
for examination by the parties, as Lopez suggests in his brief without citati on to any authority.
Granted, the application notes to Rule 706(a) state that the "rule has been revised to make definite
the right of any party, including the party calling him, to cross-examine." However, this revision does
not create a right to examine in the first instance absent a request.
There was a delay of three months from the time Dr. Butler issued his report until the court
rendered judgment. Lopez never asked to depose Dr. Butler and never indicated that he felt that Dr.
Butler's opinion regarding the cause of his back condition was somehow unclear. If Lopez felt that
Dr. Butler's opinion was in some way incomplete, he could have deposed him and/or moved the court
to reopen the evidence for an examination of Dr. Butler.
AFFIRMED.
4