### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30077 Summary Calendar

BUD JOHN CHAPMAN, Plaintiff–Appellant,
v. ENSCO OFFSHORE COMPANY, Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana

No. 2:09-CV-6099

Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Appellant Bud Chapman (Chapman) appeals from a jury verdict against him in his suit against ENSCO Offshore Company (ENSCO). Chapman asserts two points of error on appeal. F i r s t, he argues that the district court erred in excluding a document produced as a result of ENSCO’s investigation into his accident. Second, he challenges the jury’s verdict. We affirm. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 24 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-30077 Document: 00511767402 Page: 1 Date Filed: 02/24/2012No. 11-30077 I Chapman worked for ENSCO for approximately f i v e y e ars as an electrician on board the ENSCO 74, a n o i l r i g
. He was transferred to the ENSCO 7500, a much larger oil rig, also owned by ENSCO. When he arrived on t h e ENSCO 7500, the acting electrical supervisor, Artemus Skipper, assigned him to work with Justin Maxwell, another electrician that Ch a p m an had trained aboard the ENSCO 74. After arriving on the ENSCO 7500, Chapman noticed that a set of gauges had been left on an HVAC unit. At a brief meeting between Chapman, Maxwell, and Skipper, Chapman informed Skipper that the gauges had been left on the unit. Skipper instructed them to find out why the gauges had b e e n l e f t t h ere. They were unable to do so, and no one has since discovered who left the gauges
on the unit or why they were left. On Chapman’s third day of work aboard the ENSCO 7500, there was another brief meeting b e tw e e n Chapman, Maxwell, and Skipper. Chapman again indicated that the gauges were still on the HVAC unit. Skipper then said that if there was time that night, then the gauges could be removed. The parties dispute whether Skip p e r was talking to both Chapman and Maxwell, or only to Maxwell. Chapman and Maxwell’s first task that shift was to install cord grips on the rig’s pipe rack system. As Chapman was on his way to take some required paperwork for the pipe rack job to the ballast control office, he passed the gauges still attached to the HVAC system and decided to remove them. Chapman testified that he tightened the v a l v e on the port to which the gauges were
a t t a c h e d before removing the gauges, which should have shut off the flow of Freon, a refrigerant. The valve did not c l o s e , and as he removed the gauges, Freon sprayed out of the port and onto Chapman’s hands, which were protected by only thin gloves that Chapman described as having the consistency of panty

2 Case: 11-30077 Document: 00511767402 Page: 2 Date Filed: 02/24/2012No. 11-30077

hose. The Freon resulted in serious chemical bu r ns to Chapman’s hands. ENSCO contends that Chapman did not close the shut-off valve correctly. After his injuries, Chapman underwent several months of treatment, and contends that he still has restricted use of his left hand.

. He has not returned to work at ENSCO, nor has he resumed any type of offshore work. About a year
a f t e r his injuries, Chapman filed suit against ENSCO, asserting negligenc e under the Jo n es Act, unseaworthiness, and claims for maintenance and cure. 1 After a trial, the j u r y f o u nd against Chapman on all of his claims. Chapman

now appeals, asserting two points of error: (1) the district court erred in excluding an incident investigation report as inadmissible hearsay, and (2) the jury clearly erred by finding that ENSCO was not negligent in a manner which caused the injuries to Chapman’s h a n d s . We have jurisdiction pursuant to 28 U.S.C. § 1291. II Chapman contends that the district court erred in excluding an incident investigation report as inad m i s s i b l e hearsay. We review a district court’s evidentiary rulings for an abuse of discretion. Even if an evidentiary ruling was 2 in error, however, we will not reverse unless “the error affects a substantial right of the party.” 3 According to Chapman, the report was important to his case because it performed a r o o t

- cause analysis of the accident and had several findings supporting his case, including: (1) Chapman did not receive an orientation upon

46 U. S. C. § 3 0104. 1
Braz os Riv er Auth. v . GE Ionic s, Inc. , 469 F.3d416 , 423 (5t h Cir

. 2006)

. 2
F E D

. R. E VID

. 103( a); see also Vi az is v. Am

. As s’n of Or thodonti sts , 314 F.3d 758, 767 3 (5t h Cir. 2002) (“ In any event , we wi ll no t rever se err oneo us evide ntiar y rulin gs unles s the aggrieved par ty can dem ons tra te ‘s ubs tant ial pr ejudi ce. ’” (quo ting Kona Tec h. Corp

. v. S. Pac. Tra nsp . Co. , 225 F.3d595 , 602 (5t h Cir

. 2000) ))

. 3 Case: 11-30077 Document: 00511767402 Page: 3 Date Filed: 02/24/2012No. 11-30077

joining the ENSCO 7500, (2) he a t

- insulating gloves were not available on the rig, and (3) there was a lack of communication regarding the Safe System of Work,

a system put in place by ENSCO requiring the review and completion of various items of paperwork prior to performing a job in order to apprise rig workers of the risks and hazards of performing a certain task. Prior to trial, ENSCO filed a motion in limine, arguing that the incident investigation report is evidence of subsequent remedial m e a s ures because the report contains several suggested corrective measures , a nd is therefore inadmissible. The dist r i c t c o urt ruled that the document was inadmissible

4 hearsay and did not reach the subsequent remedial measures issue. In its order, the d i s t r ict court specifically ruled that “[t]he document may be used for i m p e a c hment,” and that “Mr. Rusty Fox [the author] may testify as to h i s observations about the accident.” Chapman argue s on appeal that the report falls within the business records exception to the general rule excluding hearsay. Chapman, however, 5 cites nothin g i n the record establishing that the document meets the requirements for invoking that exception. He baldly asserts that the report “was an ordinary business record kept in the course of ordinary business,” and cites Fox’s dep o s i t i o n , w h ich was not in evidence at trial, and in any event only establishes that Mr. Fox prepared the document after conducting his investigation. It does not establish that the report meets the requirements of the business records exception. Chapman additionally asserts that the document is not hearsay because t h e a u t hor, Rusty Fox, testified at trial. The mere fact that Fox testified, however, does not have any bearing on whether the document itself is hearsay.

See F E D

. R. E VID

. 407. 4
See F E D

. R. E VID

. 803( 6). 5
4 Case: 11-30077 Document: 00511767402 Page: 4 Date Filed: 02/24/2012No. 11-30077

Chapman also argues that the district court abused its discretion by sua sponte ruling that the report was inadmissible hearsay. He cites a single case, which holds that a district court should give a party notice and an opportunity to respond before dismissing an action sua sponte. Chapman argues that the 6 district court should similarly have provided him with notice and an opportunity to respond before excluding the report as ina d m i s s ible hearsay. Dismissing claims, however, is very different from excluding evidence, and Chapman cites

no cases and makes no arguments in support of extending the law for dismissing claims sua sponte to the present case. Furthermore, Chapman di d n o t argue b e low that the report was not inadmissible hearsay. In addition, a l e a d i n g authority on the law of evidence notes that “[t]he trial judge c a n t a k e s teps to insula t e t h e jury from inadmissible evidence without any objection or other request to do so from the parties.” For all of t h e a b o v e r easons, the district 7 court did not abuse its discretion in excluding the report as inadmis s i b le hearsay. Even if Chapman had raised a ground for the admission of the report, we could n o t r e v e rse the decision because Chapman has not shown that his substantial rights were affected by t h e r u l i ng. The order excluding the report explicitly a l lowed Fox to testify as to his observations about the accident. He could, therefore, have testified as to his findings, and the report would have been merely cumulative. Chapman did not call Fox to testify and instead questioned 8

Carr ollv . Fort Jam es Corp

. , 470 F.3d117 1, 1177 (5t h Cir

. 2006)

. 6
C HA RL E S AL

AN WRI G H T & K E NN E T H W. G R AHA M , J R ., F E DE R

AL P R A C T IC E & P R O C E D UR E 7 § 5042 , a t 9 7 0 ( 2 d ed. 2005) ; see also Uni ted States v. De l Lla no , 354 F.2d 844, 847 (2d Cir. 1 9 6 5 ) (“A tri al cour t may, of cour se , exclud e evide nce on its ow n mo tio n even bef ore a n y objec tio n ha s been mad e . . . . ”)

. See Peters v. Fiv e Star Ma r i n e Se r v. , 898 F.2d 448, 450 (5t h Cir. 1990) (ho ldi ng the 8 exclus ion of acc ide nt rep ort s harm les s beca use all of the info rm atio n cont ained in the rep ort s wa s availabl e t hrough tes tim ony). 5 Case: 11-30077 Document: 00511767402 Page: 5 Date Filed: 02/24/2012No. 11-30077

him only on cross-examination. Because Fox was available to testify about his findings, exclusion of the report could not have affected Chapman’s substantial rights. III Chapman also asserts t h a t the jury’s verdict that ENSCO was not negligent in a manner that caused his injury was clearly erroneous. We construe this argument as a challenge to the sufficiency of the evidence suppo r t i ng the jury’s verdict, and therefore a challenge to the district court’s failure to grant judgment as a matter of law to Chapman. 9 “A claimant who bears the burde n o f proof and who believes that he is entitled to judgment as a matter of law, is also obliged to move for judgment as
a matter of law before the case is submitted to the jury.” Chapman, however, 1 0

never moved for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure. We consequently review Chapman’s challenge to the sufficiency of the evidence for plain error. We must determine whether there 1 1

was any evidence to support the jury verdict. If any evidence supported the 1 2 verdict, we will not overturn it. 1 3 There was ample evidence adduced at trial to support a finding that any negligence was solely Chapman’s. For example, there was testimony in support of the following: Maxwell, not Chapman was instructe d to remove the gauges;

See Brow n v . P

a r k er Dr il li ng Of

fs hore Corp

. , 410 F.3d 166, 170- 71 (5t h Cir. 2005) 9 (c ons tru ing an ass ert ion that the jury com mit ted clea r err or as an argum ent that the dis tri ct cour t err ed in denyi ng a mo tio n f or judgm ent as a m att er of law ).
Uni ted Stat e s e x r e l

. Wal la ce v. Fli ntco, Inc. , 143 F.3d 955, 967- 68 (5t h Cir. 1998) 1 0 (c itin g F E D

. R. C IV

. P. 50(a ))

.

Stove r v. Ha tties burg Pub. Sch. Di st. , 549 F.3d 985, 995 (5t h Cir. 2008) ; Fli ntco , 143 1 1 F.3dat963 -64, 968

.

Fli ntco , 143 F.3dat964

. 1 2
Id. 1 3 6 Case: 11-30077 Document: 00511767402 Page: 6 Date Filed: 02/24/2012No. 11-30077

Chapman was not s u pposed to be removing the gauges at the time of his accident, but was supposed to be working on the pipe rack system; Chapman did not perform and review the necessary paperwork and obtain the proper permit for removing the gauges, which w o u l d h a v e informed him of the risks and the safety measures he should have taken; Chapman did not us e a t o o l that was made to close the valve at issue, even thou g h s u ch a tool was on board; and insulated gloves were on board, but Chapman never asked for them. An expert testified that ENSCO did nothing wrong. There was also evidence that after the accident, Chapman said, “I messed up. I screwed up.” At trial, Chapman said, “Accidents happen, man. You cannot control them. They’re going to happen no matter how safe you are.” This evidence, which is not an exhaustive list, easily satisfies the “any evidence” standard. We accordingly will not disturb the jury’s verdict. * * * For the foregoing reasons, the judgment of the district court is AFFIRMED.

7 Case: 11-30077 Document: 00511767402 Page: 7 Date Filed: 02/24/2012