The Company makes two principal arguments for transposition. First, it asserts that the jury ‘s findings for the plaintiff on the negligence call and for the defendant on the unseaworthiness claim are irreconcilable and that, as a result, a newly trial must be ordered. adjacent, the Company contends that the jury verdict was excessive and that it was caused by an answer to an improper leading motion and by incendiary remarks made by plaintiff ‘s rede during trial and particularly during closing argument.
I.
With respect to the Company ‘s controversy that the jury ‘s findings are inconsistent, we note that the trial evaluate instructed the jury that it could reach antonym verdicts on the negligence and unseaworthiness claims :
The claims of negligence and of unseaworthiness, are different, and you must consider them separately in accordance with these instructions. As to a particular incident, you may find for Donald Kokesh on both the claim of negligence and the claim of unseaworthiness, or for him on one and not on the other, or for American Steamship on both claims, all depending on how you find the facts.
The Company did not object to this direction. The zone court besides instructed the jury that the Company had a duty to exercise “ ordinary wish, ” and that if the Company ‘s negligence “ contributed in any direction toward any injury or damage suffered by Donald Kokesh, you may find that such injury or damage was caused by American Steamship ‘s omission. ” The direction on unseaworthiness provided that the jury could find the Consumers Power unseaworthy if it found “ any unfitness due to a miss of adequate and safe devices and methods, reasonably fit for their intended function. ” A bankruptcy to exercise average concern may or may not result in an unfit vessel. The jury could have concluded from the proof that although the fendant did not exercise average care in allowing the deck to be made slippery by bubble over from the vessel ‘s ballast resistor tanks, the deluge of the deck did not make the vessel unseaworthy. indeed, there was testimony that the deck ‘s safety had been enhanced by non-skid rouge, and it is reasonable to conclude from its verdict on the unseaworthiness count that the jury believed the defendant ‘s proof in this see. At the same time, the jurors may have believed that the deck ‘s wetness contributed to Kokesh ‘s fall, compelling them to find that his injury was caused by the Company ‘s negligence. therefore, the jury ‘s findings can be harmonized. In Bernardini v. Rederi A/B Saturnus, 512 F.2d 660 ( 2d Cir. 1975 ), the court concluded that the jury ‘s finding that the vessel was not unseaworthy and its find that the owner was negligent were irreconcilable. however, unlike here, the test pronounce had implicitly “ recognized in his agitate that a detect of unseaworthiness was a condition to a line up of negligence. ” Id. at 663. even were the Company decline in its claim that the verdicts were inconsistent, based upon the proofread here we do not believe that such inconsistency was damaging. The verdict plainly reflects the jury ‘s belief that the Company was negligent and that such negligence caused Kokesh ‘s injuries. The only error, consequently, would have been the jury ‘s failure, as a count of law, to return a verdict in plaintiff ‘s prefer on the unseaworthiness count adenine well. Thus, evening if we agreed with the Company ‘s controversy that the verdict was in mistake because it was inconsistent — and we do not — we are convinced that the error would have been wholly harmless.
II.
We besides are not persuaded that the leading interrogate and incendiary remarks by plaintiff ‘s rede compel reversion. While questioning his client about his node ‘s annual earnings before the injury, plaintiff ‘s rede asked : “ Your testimony is up to thirty-two thousand and more, is that your sympathize ? ” While this question was no doubt leading, defense advocate did not object to it at trial, and it was not incumbent upon the test estimate to intervene absent an protest. moderate questions are frequently tolerated by opposing guidance because they speed up the trial. This is specially true when there is no good reason to challenge the accuracy of the witness ‘ answer and a seasonably expostulation will merely lead to the presentation of direct and thus more convert proof. These observations are specially apposite here, because Kokesh was the Company ‘s employee, and the Company would know from its own records whether his estimate of his wages was accurate. similarly, while some of the remarks made by plaintiff ‘s advocate during closing controversy were inappropriate, they were not so crying as to require a fresh trial when refutation advocate did not make a contemporaneous objection.
III.
last, although the Company claims that the jury ‘s award of $ 500,000 is “ grossly excessive ” for the plaintiff ‘s injury, we find substantial evidence in the criminal record from which a rational jury could have arrived at this calculate. The company in its brief and during oral controversy vigorously stressed adverse tell tending to show that Kokesh was not as badly injured as he maintains. At best, however, this argument convinces us that the conflicting proof on the interview of damages was by rights for the jury to weigh and decide.
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On the basis of his examination of the plaintiff, Dr. Stephen E. Newman testified that Kokesh had suffered a permanent injury to his back muscles and permanent wave price to a phonograph record. Dr. Newman offered the follow prognosis :
[T]hese problems that occur are permanent. He’s always going to have to treat his back in an exceptional manner. .. for any type of activity of any sort in terms of lifting, bending, turning, or twisting. He’s going to continue to have discomfort in this area regardless if he has surgery or otherwise.
Dr. Newman besides expressed the opinion that the plaintiff should not engage in “ insistent activities in terms of revoke, bend, turning, twisting ” and should “ become reorient. .. to a more sedentary occupation. ” The plaintiff testified that his side on the Consumers Power had involved deck cultivate, and that because of the limitations on effort recommended by his doctor he had decided he could not return to that job. He far testified that his inability to stand for an prolong period precluded his switch to a “ wheel ” or “ watch ” situation, and that there is no such thing as a “ light duty job ” on a lake carrier. According to Kokesh, he had earned entirely $ 9,900 the previous year working in an car parts memory. At the same time, he answered in the affirmative when asked on the stand whether he earned “ up to thirty-two thousand and more ” as a mariner in 1978. Since Kokesh testified that he was only thirty-five years old at the prison term of the trial, which took place about two-and-a-half years after his injury, the jury rationally could have based its $ 500,000 prize just on the tell that Kokesh ‘s gain capacitance would be impaired for the respite of his working liveliness. The size of the award may besides reflect the evidence that Kokesh continues to suffer from pain and that his ability to enjoy liveliness has been impaired. Kokesh testified that his binding was sensitive, that he now wears a back brace “ just about all the clock, ” and that he is awakened at night by muscle cramps in his stage. He besides testified that he used to enjoy hunting and fishing and that he can no long hunt and does identical little fish. In upholding the jury ‘s award, we decline to apply here the principle of Rodgers v. Fisher Body Division, 739 F.2d 1102 ( 6th Cir. 1984 ). In Rodgers, our court, considering the consequence sua sponte, held that “ [ i ] thymine was homely error for the [ trial ] motor hotel not to instruct [ the jury ] on reducing future damages ( loss of income ) to present value. ” At 1107. The present respect topic in Rodgers was raised by our court even though neither party had proposed a present rate charge or objected to the test judge ‘s instructions on compensatory damages. Id. at 1106. here, besides, the trial woo did not instruct the jury to reduce future damages to present measure, and neither party has raised the publish on invoke. The court in Rodgers concluded, upon the finical facts before it, that the absence of such a care was “ to some degree responsible for a shockingly boastfully verdict ” and that an education on reduction to present worth was necessary upon remit to avoid a repeat of what the motor hotel found to be a grossly excessive damage prize. Id. at 1106-1107. We are confident that the Rodgers court did not intend to pronounce an invariable govern of cosmopolitan lotion. Our reluctance to apply Rodgers to the particular situation before us is besides motivated in separate by our necessitate to adhere to the Supreme Court ‘s analysis in Jones Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 ( 1983 ), another sheath involving federal nautical law. In that decision, the Court refused to adopt any individual rule “ as the exclusive method in all federal trials for calculating an award for lost earnings in an inflationary economy. ” Id. 103 S.Ct. at 2555. The Court noted that one possible overture is to assume that the market rate of interest is precisely offset by price inflation and productivity gains, sparing the trier of fact “ the need to cope with inflation estimates, productivity trends, and confront measure tables. ” Id. 103 S.Ct. at 2557 n. 32. Writing for a solid Court, Justice Stevens explained :
Although such an approach has the virtue of simplicity and may even be economically precise, we cannot at this time agree with the Court of Appeals for the Third Circuit that its use is mandatory in the federal courts. Naturally, Congress could require it if it chose to do so. And nothing prevents parties interested in keeping litigation costs under control from stipulating to its use before trial.
Id. 103 S.Ct. at 2557 ( footnotes omitted ). Litigants in the federal courts frequently agree to forego the time and expense involved in proving inflationary trends and discount rate rates in trials involving lost future wages. In many cases, defense guidance may wisely conclude that there is short benefit to be gained and solid bias to be risked in giving the jury a very specify direction on the calculation of damages. Given the vigorous advocacy and degree of legal skill reflected in the trial of this shell, we are led to conclude that the failure to request more specify instructions was intentional and credibly represented an intelligent use of trial strategy. We agree with the trial judge that while the award of damages here may have been generous, it was supported by sufficient proof in the case, and was not shockingly big. We see no cause to question the jury instructions entirely because they did not include a agitate on reducing future damages to present worth, an direction which neither party requested or obviously desired.
This lawsuit was vigorously tried by both parties in the zone court. The jury verdict which resulted was no doubt larger than had been anticipated by the defensive structure, but no error, plain or otherwise, produced it. Although the defense may harbor the lingering hope that some early department of defense might have produced a different leave, we doubt it. The tactical and strategic decisions made by the defense seem to have been adenine sensible as any others which might have been made at the time. That a different strategy might possibly have produced a different resultant role does not provide any basis for reversion. AFFIRMED.
