IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 94-60746 (Summary Calendar)

LORENZO LEE LONGINO and Wife, CYNTHIA JOHNSON LONGINO,

Plaintiffs-Appellants,

versus

CHILES OFFSHORE, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi (2:90-CV-200)

November 16, 1995

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

In appealing from the district court's judgment for the

employer in this case arising under the Jones Act,

,

Plaintiffs-Appellants Lorenzo Lee Longino and Cynthia Johnson

* 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 Pursuant to that Rule, the Court has determined that this opinion should not be published. Longino, husband and wife, urge that the district court clearly

erred in its causation findings and abused its discretion in

allowing an alleged "surprise" witness to testify. Discerning no

clear error in the court's factual findings and no abuse of

discretion in its allowing the subject witness to testify for

purposes of impeachment only, we affirm the judgment of the

district court. In light of this decision, we deny as unnecessary

the motion of Defendant-Appellee Chiles Offshore, Inc. for leave to

file a supplemental brief.

I

FACTS AND PROCEEDINGS

On September 6, 1990, Longino was helping to place a 36-inch

"spacer" inside the "mouse hole" on a jack-up rig. Longino was

assigned to attach the geolograph line to another component of the

machinery on the rig, a "kelly shuck." Upon completion of that

task, Longino was asked by a fellow employee whether the spacer was

ready to be dropped into the mouse hole, and Longino replied that

it was. The fellow employee then dropped the spacer into the mouse

hole, causing the "geolograph line" to uncoil and knock Longino off

his feet.1

Longino testified that he landed on his upper back and

shoulders and that he felt pain and soreness in his back and

shoulders after the accident. Longino added that, because another

crew member was off duty attending a funeral and the crew was

1 When a spacer is no longer needed, it is retrieved by means of a small line, called a "geolograph line," which is attached to the spacer in anticipation of such eventuality.

2 attempting to qualify for a bonus conditioned on there being no

lost-time accidents for one year, he (Longino) felt compelled to

continue working after his fall. Marty Granger, the only crewman

who saw Longino fall, testified that, although Longino's feet were

swept from under him by the geolograph line, causing him to fall on

his side, Longino's head and shoulders did not touch the surface.

Three days later, on September 9, 1990, Longino stepped off a

rotary table and fell onto his back. He did not complain of injury

immediately after either incident.

Chiles introduced evidence to show that Longino had complained

of numbness in his hands and arms prior to the accidents.2 As

noted, however, Longino did not complain of numbness or soreness

immediately following his accidents. Longino's fall on September

6thSQthe one to which he attributes his injuriesSQwas not

particularly serious; he merely fell onto his buttocks and hands,

or onto his side, from a height of approximately one foot.

Despite the two incidents described above, Longino completed

his multi-day shift without complaint,3 working routinely until

September 14, 1990. On that date Longino complained again of

numbness in his arms and soreness in his shoulders and asked for

medical attention. He did not, however, refer to any particular

causal incident at that time.

2 Longino denied that he complained of numbness in his hands and arms prior to the accidents. 3 Longino testified that he complained to Doug Hoffpauir, Billy Roderick, and Byron Poole, but Hoffpauir and Roderick denied that Longino had complained to them. Poole did not testify at trial.

3 In response to his request for treatment, Longino was taken to

a hospital where he stayed for eight days. Within two weeks he

underwent cervical fusion surgery. Longino told his treating

physicians that his "soreness" first appeared after his September

6, 1990, accident. Even though Longino reported both incidents to

his treating physicians, one of those physicians was of the opinion

that Longino's cervical abnormality existed prior to the September

6, 1990, fall. This physician was of the opinion that either fall

could have aggravated the preexisting condition; however, no firm

opinion was expressed as to whether one or both of the falls in

fact aggravated the condition. ("The falls could have made a

preexisting structure abnormality symptomatic.")

After Mr. and Mrs. Longino filed the instant Jones Act lawsuit

against the rig owner, the district court conducted a bench trial.

The court denied Chiles' motion for a directed verdict, but after

Chiles rested the district court entered judgment for that

employer. The court found that Chiles' negligence was not a

proximate cause of Longino's injury,4 noting that Longino's

testimony was contradicted by the testimony of five other crew

members and rejecting Longino's contention that the crew members

would perjure themselves as revenge for his having caused the loss

of the bonus.

Based principally on Longino's behavior before and after the

4 The district court also found that Longino was a "seaman," that the jack-up rig was a "vessel" for purposes of the Jones Act, that Chiles had been negligent, and that Longino was contributorily negligent. Chiles has not appealed these findings.

4 accident, the relatively mild nature of Longino's fall, and the

medical testimony, the district court found that Longino had a

preexisting condition and that it was not aggravated by the

September 6, 1990, accident. After the court denied the Longinos'

Fed. R. Civ. P. 59(e) motion, they timely filed a notice of appeal.

II

ANALYSIS

Negligence, seaworthiness, and causation are questions of fact

in admiralty actions. Verdin v. C & B Boat Co., Inc.,

(5th Cir. 1988). When, as here, the action was tried

without a jury, we review the district court's factual findings

under the clearly erroneous standard, giving due regard to that

court's opportunity to judge the credibility of the witnesses.

Fed. R. Civ. P. 52(a); Johnson v. Offshore Express, Inc.,

(5th Cir.), cert. denied,

(1988). The

plaintiff's burden in showing causation in a Jones Act negligence

action is "featherweight," and evidence of the slightest negligence

will sustain a finding of liability. Johnson,

.

Longino characterizes as clearly erroneous the district

court's finding that the September 6, 1990, accident did not cause

his injury. He insists that his testimony to the effect that he

fell on his back and shoulders was not fully rebutted by Chiles.

Longino argues that he may recover, notwithstanding a preexisting

condition, if the accident aggravated that condition, citing

Sandidge v. Salen Offshore Drilling Co.,

(5th Cir.

1985).

5 In Sandidge, we held that the district court had not misled

the jury by using a hypothetical case to illustrate its instruction

that the plaintiff would be entitled to recover if he proved that

the defendant had caused an injury that aggravated a preexisting

condition.

. The Third Circuit, in Evans v.

United Arab Shipping Co. S.A.G.,

(3rd

Cir. 1993), cert. denied,

(1994), held that a

seaman could recover, under the "featherweight" standard applicable

in Jones Act cases for a condition that was aggravated by a work-

related accident, even though he had failed to present sufficient

evidence to show causation under the traditional common law

standard.

Here, the district court could have found that the accident

aggravated Longino's preexisting condition; however, its conclusion

to the contrary is not clearly erroneous.5 See Zapata Haynie Corp.

v. Arthur,

(5th Cir. 1992) ("Where there are two

permissible views of the evidence, the factfinder's choice between

them cannot be clearly erroneous.") (internal quotations omitted),

cert. denied,

(1993). As the district court did

not clearly err in finding that the accident neither proximately

caused Longino's injury nor aggravated a pre-existing condition, we

affirm that court's judgment in favor of Chiles.

Longino contends nevertheless that the district court erred

5 The district court's reliance on Varnado v. Ocean Drilling & Exploration Co.,

(5th Cir. 1979), was misplaced. In Varnado, we considered a different legal issue-- whether the evidence was adequate to make a jury issue on proximate cause.

6 reversibly in permitting Alfred Roberts to testify, as Chiles had

failed to identify Roberts as a witness in its responses to

Longino's interrogatories or in connection with preparation of the

joint pre-trial order. The district court permitted Roberts to

testify because his testimony was offered for impeachment purposes

only.

The requirement of Fed. R. Civ. P. 26(a)(3)SQthat a party must

provide to other parties information regarding the evidence that it

may present at trialSQdoes not apply to evidence presented solely

for impeachment purposes. Evidentiary rulings are reviewed for

abuse of discretion and will require reversal only if the

challenged ruling affects a substantial right of the aggrieved

party. This is especially so in bench trials. Southern Pacific

Transp. Co. v. Chabert,

(5th Cir. 1992), cert.

denied,

(1993).

A trial judge sitting without a jury is entitled to greater latitude in the admission or exclusion of evidence. In a bench trial, reversal is only warranted if all of the competent evidence is insufficient to support the judgment, or if it affirmatively appears that the incompetent evidence induced the court to make an essential finding which it otherwise would not have made.

Id. (footnote omitted). In contrasting Longino's testimony with

that of the rest of the crew in connection with its analysis of the

causation issue, the district court took particular note of

Roberts' testimony that Longino was observed walking over a couch

as he was leaving the rig on his way to the hospital. This

evidence may well have induced the district court to make its

essential finding on the issue of causation.

7 Longino testified that, on the day he left the rig, he could

barely hold his head up, and doubts that he could have run to catch

the helicopter; but Roberts' testimony impeached these statements.

Roberts also testified that Longino had complained of numbness in

his arms prior to his accident. This testimony was merely

cumulative. As Roberts' testimony was offered solely for

impeachment purposes, the district court did not abuse its

discretion in admitting it.

Finally, Longino argues that the district court erred

reversibly in finding him contributorily negligent. We note,

however, that the district court found as fact that, in response to

his co-worker's inquiry, Longino had announced that he was ready

for the spacer to be dropped even though he had failed to determine

first that he was clear of the geolograph line. The district

court's conclusion that Longino was negligent in failing to avoid

the hazard was not clearly erroneous.

AFFIRMED; Motion DENIED as unnecessary.

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