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[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]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 bri
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for appellant.

Michael B. Latti, with whom Carolyn M. Latti and Latti Associa

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LLP were on brief for appellee.
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October 24, 1997

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Per Curiam.
Per Curiam
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Michigan

Fishing,

Inc.

appeals the district

court's denial of its motion

after the jury found

it liable under the Jones Act,

688

(Supp. 1997),

for bodily

Manuel Tavares while a seaman

Michigan.

In particular,

injuries

("Michigan")

for new trial

46 U.S.C.

sustained by

plaintiff

aboard the F/V CONCORDIA, owned by

Michigan contends that

the following

jury argument by plaintiff's counsel was unfairly prejudicial:

[Captain

Jacobsen]

remember.

I don't

someone a

list after

it.

I don't

That's

says,

don't

remember whether

I gave

this accident,

to fix

remember.

all he keeps

I don't

on saying, but
___

that
____

four days
____ ____

done
____

and there was an invoice

___ _____ ___ __ _______

was
___

done
and
__________

hoister.
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after there was

_____ _____ ___

it
__

remember.

was
___

on
__

(emphasis added).
________ _____

we know
__ ____

this repair
____ ______
for it and it
___ __ ___ __

that
____

starboard
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Michigan argues

treat

that

the invoice

the quoted

as substantive

language invited

evidence

the jury

of liability,

to

even

though the invoice was never admitted in evidence.

There

was

no abuse

of

discretion.

See Correa
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v.

Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995), cert.
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denied, 116 S. Ct.

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earlier to

1423 (1996).

impeach the ship's

whether any repairs were made

The same invoice

captain, after he

had been used

denied knowing

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

disregarded the district court instruction.

the jury must have

It points to a later

jury

note:

"Why

was

invoice for

repairs

not submitted

for

evidence?

trial

Exactly

judge firmly

what did it show."

disabused

the

Thereafter, however, the

jury

of

any

misconception

portended by the note:

First, "Why was

submitted for

invoice for repairs not

evidence?"

Because it's

not

admissible under the laws of evidence and the

law governing this case.

So, in
I'll
or

answer to

the second

question,

have nothing to say about what it shows

not . . . or even

repairs.

You

if it's an invoice for

have heard those things

are admissible

and I

which

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

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

was sufficient to keep

v.

the jury on the proper track.

Starlight I, Inc., 103

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normally

presume that a

improper argumentation.").

Affirmed.
Affirmed
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F.3d 210, 213

(1st Cir.

jury follows instructions

nothing else

instruction

See Conde
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1997) ("We

to disregard