Kenneth B. O’bright v. JOHN’S TOWING SERVICE, INCORPORATED, a Pennsylvania Corporation, No. 00-1292 

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 KENNETH B. O’BRIGHT,
Plaintiff-Appellant,
v.
JOHN’S TOWING SERVICE,
INCORPORATED, a Pennsylvania
Corporation, No. 00-1292 
Defendant-Appellee,
and
J&C TOWING SERVICES,
INCORPORATED, a Corporation,
Defendant. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CA-96-201-5)
Argued: February 28, 2001
Decided: May 25, 2001
Before WILKINS and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Fiorino Basile, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Kenneth F. Klanica,

-- 1 of 6 --

HEINTZMAN, WARREN, WISE & FORNELLA, P.C., Pittsburgh,
Pennsylvania, for Appellee. ON BRIEF: Brian A. Glasser, BAILEY
& GLASSER, L.L.P., Charleston, West Virginia, for Appellant.
Roger L. Wise, HEINTZMAN, WARREN, WISE & FORNELLA,
P.C., Pittsburgh, Pennsylvania, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth B. O’Bright filed an action to recover damages for per-
sonal injuries sustained while working as a deckhand aboard the M/V
Lori Johnson ("the Lori Johnson"), a vessel owned by John’s Towing,
Inc. O’Bright alleged a claim of negligence under the Jones Act, 46
U.S.C.A. § 688, and claims of unseaworthiness and maintenance and
cure under federal maritime law.1 Following a jury verdict in favor of
John’s Towing as to all claims, the district court denied O’Bright’s
motions for a new trial and for relief from judgment. O’Bright filed
a timely notice of appeal. For the reasons that follow, we affirm.
I.
O’Bright testified that during the early morning of December 13,
1994, he was employed as a deckhand on the Lori Johnson when he
fell into the Monongahela River because a stanchion on the boat
broke while he was leaning against it. O’Bright claimed that he had
just finished urinating into the river when a gust of wind came along
and pushed him into the stanchion, which snapped under his weight,
1"Maintenance and cure provide a seaman who becomes ill or injured
in the service of his ship lodging, board, and medical expenses until he
reaches maximum recovery." Williams v. Kingston Shipping Co., Inc.,
925 F.2d 721, 723 (4th Cir. 1991).
2 O’BRIGHT v. JOHN’S TOWING SERVICE

-- 2 of 6 --

causing him to fall into the water. There were no witnesses to the inci-
dent. O’Bright was hospitalized and treated for acute hypothermia,
myoglobinuria, and hypoglycemia resulting from his exposure to the
cold water. Additionally, O’Bright claims that he suffers from ongo-
ing back pain as a result of the incident.
Other members of the crew testified that they thoroughly inspected
the Lori Johnson and found no broken stanchions or any other physi-
cal reason why O’Bright would have fallen into the water. Addition-
ally, John’s Towing argued vigorously that O’Bright’s back injuries
were not caused by this incident, but that, instead, they were likely the
result of progressive degenerative disc disease.
II.
On August 1, 1996, O’Bright filed this action in the United States
District Court for the Southern District of West Virginia. The case
was transferred to the United States District Court for the Northern
District of West Virginia. At trial, the jury considered three issues: 1)
negligence under the Jones Act; 2) unseaworthiness; and 3) maritime
cure. On June 3, 1999, the jury returned a verdict for John’s Towing
on all three claims. On June 15, 1999, O’Bright filed a motion for a
new trial pursuant to Federal Rule of Civil Procedure 59. On August
11, 1999, O’Bright filed a combined motion for relief from judgment
under Federal Rule of Civil Procedure 60 and for sanctions. On Feb-
ruary 8, 2000, the district court in a memorandum opinion denied the
motions for new trial and relief from judgment and granted the
motion for sanctions.2 On March 7, 2000, O’Bright appealed the judg-
ment entered against him on June 3, 1999, and the portion of the dis-
trict court’s memorandum opinion denying O’Bright’s Rule 59
motion for a new trial.
On appeal, O’Bright argues that the district court erred by refusing
to grant his motion for a new trial because (1) the evidence estab-
lished his entitlement to maintenance and cure and (2) the district
court erroneously instructed the jury as to the standard of causation
2The district court’s award of sanctions was based upon John’s Tow-
ing’s lack of diligence in answering discovery requests and slow
response in providing information pursuant to a court order.
3 O’BRIGHT v. JOHN’S TOWING SERVICE

-- 3 of 6 --

with respect to O’Bright’s negligence claim under the Jones Act.3 We
address each argument in turn.
III.
O’Bright first contends that the district court erred by denying his
motion for a new trial with respect to his claim for maintenance and
cure because the evidence clearly established his entitlement to such
relief. O’Bright claims that because no evidence was introduced dem-
onstrating that O’Bright was not in service of the ship at the time of
his fall overboard from the Lori Johnson, he was entitled to cure as
a matter of law. Thus, O’Bright argues that the jury misapplied the
law with respect to maintenance and cure, warranting a new trial.4
When considering a motion for a new trial, the district court weighs
the evidence and considers the credibility of the witnesses, and if it
"finds the verdict is against the clear weight of the evidence, is based
on false evidence or will result in a miscarriage of justice, [it] must
set aside the verdict, even if supported by substantial evidence, and
grant a new trial." Chesapeake Paper Products Co. v. Stone & Web-
ster Engineering Corp., 51 F.3d 1229, 1237 (4th Cir. 1995) (internal
citations and quotation marks omitted). "The decision to grant or deny
a motion for a new trial is within the sound discretion of the district
court and will not be disturbed absent a clear showing of abuse of dis-
cretion." Id. When reviewing the denial of a motion for a new trial,
this Court reviews "the evidence only to determine whether there was
any evidence to support the jury’s verdict, irrespective of its suffi-
ciency, or whether plain error was committed which, if not noticed,
would result in a manifest miscarriage of justice." Id. at 1238 (internal
citations and quotation marks omitted).
As O’Bright points out, the shipowner’s duty to provide mainte-
nance and cure for ill or injured seaman is quite broad. See Vella v.
Ford Motor Co., 421 U.S. 1, 4 (1975). The Supreme Court has held
3O’Bright does not challenge the jury’s verdict with respect to the
unseaworthiness claim.
4O’Bright concedes that the district court properly instructed the jury
as to the law of maintenance and cure. He challenges only the jury’s
application of the law to the facts.
4 O’BRIGHT v. JOHN’S TOWING SERVICE

-- 4 of 6 --

"that the duty arises irrespective of the absence of shipowner negli-
gence and indeed irrespective of whether the illness or injury is suf-
fered in the course of the seaman’s employment." Id. at 4. The
Supreme Court has further held: "Conceptions of contributory negli-
gence, the fellow-servant doctrine, and assumption of the risk have no
place in the liability or defense against [the duty of maintenance and
cure]." Warren v. United States, 340 U.S. 523, 528 (1951) (internal
citations and quotation marks omitted). Nevertheless, if the seaman’s
injuries are the result of a "wilful act of indiscretion," he will be
barred from recovery. Id. (internal citations and quotation marks
omitted).
As the district court noted, the weight of the evidence on the issue
of maintenance and cure did not clearly favor O’Bright. Regardless
of whether the evidence indicated that O’Bright was in service of the
ship at the time of the incident, it did not clearly establish that
O’Bright’s injury was not the result of his "wilful misbehavior or
deliberate act of indiscretion." Warren, 340 U.S. at 528. The jury had
sufficient direct and circumstantial evidence from which it could have
determined that O’Bright purposefully jumped off the boat. For exam-
ple, several crewmen testified that after a thorough inspection of the
Lori Johnson, they found no broken stanchions or any other physical
reason why O’Bright would have fallen into the water. Because jurors
are presumed to follow the instructions that they are given, we will
not assume that the jury misapplied the law. See Hinkle v. City of
Clarksburg, 81 F.3d 416, 427 (4th Cir. 1996). Accordingly, we hold
that the district court did not abuse its discretion by failing to grant
O’Bright’s motion for a new trial on his maintenance and cure claim.
IV.
O’Bright next argues that he is entitled to a new trial because the
district court committed reversible error by giving an improper jury
instruction with respect to the standard of causation under the Jones
Act. The district court rejected O’Bright’s proffered instruction that
stated that the plaintiff has a "slight" or a "featherweight" burden to
prove his claim for Jones Act negligence. Instead, the district court
instructed the jury that "[u]nder the Jones Act, if the employer’s neg-
ligent act caused the plaintiff’s injury in whole or in part, then you
must find that the employer is liable under the Jones Act." The district
5 O’BRIGHT v. JOHN’S TOWING SERVICE

-- 5 of 6 --

court also made clear to the jury that different causation standards
apply to Jones Act and unseaworthiness claims.
This Court reviews challenges to jury instructions for abuse of dis-
cretion. See Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir.
1999). "The test of the adequacy of jury instructions is whether the
jury charge, construed as a whole, adequately states the controlling
legal principle without misleading or confusing the jury." Id. The
instructions given by the district court adequately stated the control-
ling law. In Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d
432 (4th Cir. 1999), we held that
to prevail on a Jones Act negligence claim against his
employer, a seaman must establish (1) personal injury in the
course of his employment; (2) negligence by his employer
or an officer, agent, or employee of his employer; and (3)
causation to the extent that his employer’s negligence was
the cause "in whole or in part" of his injury.
Id. at 436. Because the district court’s instructions correctly stated the
controlling law as enunciated in Hernandez, the district court did not
abuse its discretion in denying O’Bright’s motion for a new trial on
his Jones Act claim.
V.
In conclusion, we hold that the district court did not abuse its dis-
cretion in denying O’Bright’s motion for a new trial in regard to
O’Bright’s claim that he was entitled to maintenance and cure as a
matter of law. We also hold that the district court’s Jones Act jury
instruction adequately stated the controlling law and, therefore, were
not an abuse of discretion. Accordingly, the judgment and order of the
district court are affirmed.
AFFIRMED
6 O’BRIGHT v. JOHN’S TOWING SERVICE

-- 6 of 6 --