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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-9529
BEVERLY P. DAVIS, wife of/and WILLIE EARL DAVIS,
Plaintiffs-Appellees,
versus
ODECO, INC.,
Defendant,
MURPHY EXPLORATION & PRODUCTION COMPANY,
originally sued as Odeco, Inc.,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
(April 4, 1994)
Before VAN GRAAFEILAND*, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellee Willie Earl Davis (Davis) and his wife sued
Defendant-Appellant Murphy Exploration & Production Company (Murphy
Co.),1 alleging that Murphy Co. contravened the Jones Act and
*Circuit Judge of the Second Circuit, sitting by
designation.
1Although Murphy Co. was formerly known as ODECO, Inc.,
throughout this opinion we shall refer to the Appellant as Murphy
Co., even when referring to events that took place when it was
known as ODECO, Inc.

general maritime law by exposing him to hydrocarbons while he
worked aboard its vessels. Davis contends that this exposure
caused him to contract Goodpasture's Syndrome (GPS), a rare disease
with renal, pulmonary, and autoimmune symptoms. Davis won a
$675,600.00 jury verdict, and the district court entered a judgment
for Davis in that amount. Murphy Co. timely appealed, positing
that the district court committed 19 reversible errors in the
course of the trial.
I
FACTS AND PROCEEDINGS
Davis worked for Murphy Co. for approximately ten years as a
roustabout, a floorhand, and a shaker hand))all positions involving
unskilled labor. During that time, he worked aboard thirteen
different Murphy Co. vessels. In November 1989, while aboard the
Ocean Titan, Davis coughed up blood. Although contemporaneous
records of Davis' medical treatment reveal that he had abnormally
high concentrations of protein and blood in his urine, he was not
advised that he had any serious problem, and he went back to work.
On February 23, 1990, however, just before boarding the Ocean
America, Davis again felt sick. Five days later he collapsed and
was promptly evacuated by Murphy Co. to West Jefferson Medical
Center where he was admitted in critical condition. For a time
medical specialists were unable to diagnose Davis' condition,
although they were able to rule out a number of diseases, including
Legionnaire's disease and AIDS. Ultimately, Davis was diagnosed as
having GPS, an uncommon condition comprising three disease
2

components: kidney disease, lung disease, and autoimmune disease.2
During his illness, Davis received $174,259.68 in medical and
disability payments from the Group Insurance Plan (the Plan), which
was established (and largely funded) by Murphy Co. to compensate
employees for nonwork-related accidents and illnesses.3
Davis
ultimately filed a complaint in district court, contending that his
exposure to hydrocarbons while working for Murphy Co. caused him to
develop GPS.4 Although medical evidence exists that links
development of GPS with exposure to hydrocarbons, a causal
relationship between such exposure and development of GPS has not
been firmly established.5 Davis nevertheless asserted that Murphy
2GPS apparently has an estimated incidence rate of about one
case per two million individuals. Only about 500 cases have been
documented worldwide since 1919.
3The Plan actually subsumed two plans: the Major Medical
Plan (90% funded by Murphy Co.) and the Accident and Sickness
Plan (100% funded by Murphy Co.).
4One of Davis' duties was to spray paint things, and he
testified that he was often covered with paint that contained
hydrocarbons. Additionally, he worked with paint thinners and
diesel fuel, both of which are essentially hydrocarbon mixtures.
5Case reports, longitudinal studies, and animal experiments
all suggest a correlation between exposure to hydrocarbons and
development of GPS. Some scientists opine that "although there
may be some doubt, . . . the evidence supports a causal
relationship" between hydrocarbons and GPS. Others aver,
however, that the evidence is not sufficient to support a causal
nexus. Obviously, then, doubt persists about the causal
relationship between exposure to hydrocarbons and development of
GPS, although there is sufficient evidence upon which a jury
might reach a verdict.
If the basic causal connection between exposure to
hydrocarbons and development of GPS remains in doubt, then the
precise molecular mechanism for that putative disease process is
obviously unknown. Some believe that the hydrocarbons themselves
damage the tissues, with the patient's immune system then
recognizing and attacking those damaged tissues epiphenomenally.
3

Co. was negligent in failing to (1) provide him with a respirator,
(2) train him to use a respirator, and (3) require him to use a
respirator, all the while forcing him to work with compounds rich
in hydrocarbons. He also averred that Murphy Co. was negligent per
se in violating Coast Guard Regulations that required Murphy Co. to
(1) have a written policy regarding use of respirators, (2) fit-
test employees annually to ensure that their respirators fit
properly, and (3) perform air monitoring for hazardous substances
and medical monitoring of employees for signs of exposure to such
substances. Finally, Davis alleged that several of Murphy Co.'s
vessels aboard which he served were "unseaworthy," essentially for
the same reasons that Murphy Co. was allegedly negligent.
After the district court ruled on a barrage of pre-trial
motions, the case went to trial, with Davis winning a verdict. The
jury concluded that Murphy Co. had been both negligent and
negligent per se, and that several of the Murphy Co.'s vessels had
been unseaworthy. The jury awarded Davis a total of $675,600.00 in
damages and maintenance, as follows: $300,000 for past pain and
suffering, $100,000 for future pain and suffering, $30,000 in past
lost wages, $43,000 in future lost wages, $142,000 for past medical
expenses, $48,000 for future medical expenses, and $12,600 for
maintenance. The court duly entered judgment for $675,600.00, and
Murphy Co. timely appealed, contending that the district court
Others speculate that the hydrocarbon molecules insinuate
themselves into the membranes of healthy cells, thereby turning
them antigenic and stimulating autoimmunity.
4

committed nearly a score of reversible errors in the course of the
trial.
II
ANALYSIS
After carefully considering the facts and legal arguments
advanced by counsel in their briefs to this court and in their oral
arguments to this panel, and after reviewing the record from the
district court, we conclude that the majority of the 19 claims of
error advanced by Murphy Co. on appeal))while not frivolous))lack
sufficient factual and legal substance to justify reversing the
district court and are not here entitled to elaborate treatment.
Several issues, however, do merit more extensive discussion, and we
proceed to consider these.
A.
Fault or Breach of Standard of Care
Davis essentially asserted two causes of action in this case:
negligence under the Jones Act, and the unseaworthiness of Murphy
Co.'s vessels under general maritime law. To establish negligence
under the Jones Act, Davis also averred that Murphy Co. violated
applicable Coast Guard regulations, and thus was negligent per se.6
The jury found that Murphy Co. was negligent and negligent per se
"in the manner claimed by the plaintiff." The jury also found
certain of Murphy Co.'s vessels to have been unseaworthy. On
6It does not really matter whether we regard negligence per
se as a distinct cause of action or a means of establishing a
violation of the appropriate standard of due care. Rarely does
anything turn on this distinction because, however the theory is
characterized, a plaintiff must nonetheless prove causality and
damages.
5

appeal, Murphy Co. argues, inter alia, that the evidence was
insufficient to support the jury's verdict.
We may overturn the jury's determination that some of Murphy
Co.'s vessels were unseaworthy only if the facts and inferences
favor Murphy Co. so strongly that a reasonable jury could not have
reached a verdict for Davis.7 In contrast, as Davis' negligence
claims were brought under the Jones Act, the jury's verdict that
Murphy Co. was negligent and negligent per se must stand unless
"there is a complete absence of probative facts to support the
verdict."8 Consequently, we must not disturb the verdict unless
Davis failed to advance even a marginal claim for relief.9 We have
appropriately labeled this burden as "featherweight."10
As the jury did not apportion damages among applicable legal
theories, we must affirm the jury's award))and the judgment of the
district court))if the verdict is supportable under any legal
theory advanced by Davis. Because the "complete absence of
supporting probative facts" standard is appreciably more
deferential to jury verdicts than the reasonable jury standard, we
7See, e.g., Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th
Cir. 1969) (en banc); accord Phillips v. Western Co. of North
America, 953 F.2d 923, 927 (5th. Cir. 1992).
8Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 188 (5th
Cir. 1991) (citing Thornton v. Gulf Fleet Marine Corp., 752 F.2d
1074, 1076 (5th Cir. 1985)). Significantly, the parties agree
that Davis is properly classified as a seaman; Davis' claim thus
fell within the purview of the Jones Act.
9See, e.g., Springborn v. American Commercial Barge Lines,
Inc., 767 F.2d 89, 98 (5th Cir. 1985); Holmes v. J. Ray McDermott
& Co., 734 F.2d 1110, 1120 (5th Cir. 1984).
10Bommarito, 929 F.2d at 188.
6

need only consider whether Davis adduced sufficient evidence to
meet the "featherweight" burden under the Jones Act.11 We conclude
that he did.
Although Murphy Co. vigorously contested Davis' allegations
that it was negligent for failing to provide him with a respirator,
to train him to use a respirator, and to require him to use a
respirator at all relevant times, we cannot say that our review of
the record reveals the complete absence of probative facts that is
required to overturn a verdict under the Jones Act.12 At trial,
Murphy Co. did introduce convincing evidence that respirators were
available for Davis' use, that Davis knew how to use a respirator,
and that Murphy Co. had a policy requiring its employees to use
respirators at appropriate times. Nonetheless, there was not a
complete absence of probative fact supporting Davis' allegations,
and we are therefore constrained to uphold the jury's verdict.
Moreover, Murphy Co. did not adequately respond to Davis'
contention that it was negligent per se. Davis argued that Murphy
Co. was negligent per se under the Jones Act because it violated
applicable
Coast
Guard
Regulations
(hereinafter
"ANSI
standards")13))effective January 12, 1987))that established a
11Id.
12Id. Davis himself testified that Murphy Co. had not
always made respirators available, had never trained him to use
one, and had not always required him to wear one when working
with hydrocarbons.
13ANSI is an acronym that stands for "American National
Standards Institute." See infra note 14 for a discussion of how
these standards were incorporated into the Coast Guard
Regulations.
7

standard of care requiring Murphy Co. to (1) have a written policy
regarding use of respirators, (2) fit-test employees annually to
ensure that their respirators fit properly, and (3) perform air
monitoring for hazardous substances and medical monitoring of
employees for signs of exposure to such substances.14 In response
to these arguments, Murphy Co. asserts that its policies regarding
use of respirators were stricter than those imposed by the ANSI
standards because Murphy Co. required (presumably through an
unwritten policy) that "respirators be used at all times."15
This response is, however, something of a non sequitur. The
ANSI regulations did not require Murphy Co. to enact respirator use
policies of a given arbitrary stringency. Rather, they required
Murphy Co. to establish a written policy concerning use of
respirators. Murphy Co.'s response is thus feckless.
Additionally, Murphy Co. did not even allege that it complied with
the ANSI standards requiring fit-testing and air monitoring.
Indeed, Murphy Co. conceded that it may not have "follow[ed] the
ANSI standards to the letter." Murphy Co. thus appears unable
14The relevant regulatory provision, ANSI z88.2))1980,
details a standard operating procedure for use of respirators in
certain work environments. As of January 12, 1987, ANSI z88.2
was incorporated into the Coast Guard Regulations. 51 Fed. Reg.
28,381 (1986); 33 C.F.R. 142.39. In view of this incorporation,
the district court "reach[ed] the inevitable conclusion that the
ANSI Z88.2-1980 standards relative to respiratory protection
applied without limitation to [Murphy Co.] subsequent to January
12, 1987." Murphy Co. does not here dispute the district court's
conclusion. Informed in the course of trial of the applicability
of the ANSI Z88.2-1980 standards to Murphy Co.'s conduct, the
Jury found Murphy Co. negligent per se in violating those
standards, which were intended to benefit workers such as Davis.
15Emphasis in Murphy Co.'s Brief.
8

convincingly to gainsay the jury's finding that Murphy Co. violated
applicable Coast Guard Regulations and was thus negligent per se.
As there was not a complete absence of probative facts to support
the jury's determination that Murphy Co. was negligent and
negligent per se under the Jones Act, we will not upset the jury's
finding that Murphy Co. breached the applicable standard of care.
B.
Causality
Murphy Co. also asserts that "the jury lacked sufficient
evidence to find medical causation." We agree that the evidence
supporting the hypothesis that exposure to hydrocarbons causes GPS
is inconclusive. Obviously then, the evidence supporting the
narrower premise that Davis' exposure to hydrocarbons induced his
GPS is even more tenuous. But again, there was not a complete
absence of probative factual evidence on the issue of medical
causation))as there must be to overturn a jury verdict under the
Jones Act.16 Significantly, Davis is entitled to recovery under the
16Bommarito, 929 F.2d at 188 (citing Thornton v. Gulf Fleet
Marine Corp., 752 F.2d 1074, 1076 (5th Cir. 1985)). At trial,
Davis called three medical experts to testify to the causal
relationship between exposure to hydrocarbons and development of
GPS. Dr. Garth Kirkwood, a nephrologist who treated Davis,
opined "that it is more probable than not that Mr. Davis'
hydrocarbon exposure played a contributory causal role in his
development of Goodpasture's Syndrome." These experts also cited
several studies that discuss the relationship between exposure to
hydrocarbons and development of glomerulonephritis (GN)))a kidney
disease essentially identical to the renal disease component of
GPS. Additionally, Davis cited articles in medical journals that
assert the existence of a causal relationship between exposure to
hydrocarbons and development of GPS. Admittedly, the evidence
supporting Davis' contention that exposure to hydrocarbons
induced his development of GPS is underwhelming. It is, however,
sufficient to support the jury's verdict under the Jones Act's
featherweight standard.
9

Jones Act if he adduced probative evidence that Murphy Co.'s
negligence played any part))however small))in the development of his
condition.17 Moreover, the jury was entitled to infer causation
from unexplained events.18 Whether we believe that Davis' evidence
of a causal nexus between his exposure to hydrocarbons and his
development of GPS preponderates is irrelevant. He clearly
proffered some evidence of such a nexus, and that is all that is
required to survive appellate review of a favorable verdict on a
Jones Act negligence claim.19
C.
The Collateral Source Rule
The district court ruled that the Plan, which was established
and largely funded by Murphy Co., was a "collateral source" and,
consequently, that Plan payments received by Davis could neither be
set-off against the jury's award of damages nor brought to the
attention of the jury.20 Murphy Co. insists that both aspects of
17See, e.g., Rogers v. Missouri Pacific R.R. Co., 352 U.S.
500, 506, 77 S. Ct. 443, 1 L. Ed. 2d 493, 499 (1957) (discussing
the standard of review under the Federal Employers' Liability Act
(FELA), which was incorporated into the Jones Act); see also
Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394, 2
L. Ed. 2d 382 (1958) (defendant is liable when injury to worker
is caused))in whole or in part))by defendant); Ellen M. Flynn et
al., 1B Benedict on Admiralty � 21 (6th ed. 1993) (Jones Act
requires only that defendant's negligent act or omission have
played any part))even the slightest))in producing plaintiff's
injury).
18Landry v. Two R. Drilling Co., 511 F.2d 138, 142 (1975)
(citing Johnson v. United States, 333 U.S. 46, 49, 68 S. Ct. 391,
92 L. Ed. 468 (1948)).
19Clearly, a defendant's best hope of defeating a Jones Act
negligence claim is at trial.
20The collateral source rule is "plainly applicable in Jones
Act negligence cases." Phillips v. Western Co. of North America,
10

this ruling were erroneous.
The collateral source rule is a substantive rule of law that
bars a tortfeasor from reducing the quantum of damages owed to a
plaintiff by the amount of recovery the plaintiff receives from
other sources of compensation that are independent of (or
collateral to) the tortfeasor.21 Married to this substantive rule
is an evidentiary rule that proscribes introduction of evidence of
collateral benefits out of a concern that such evidence might
953 F.2d 923, 930 (5th Cir. 1992) (citing Tipton v. Socony Mobil
Oil Co., 375 U.S. 34, 35, 84 S. Ct. 1, 2, 11 L. Ed. 2d 4 (1963)
(per curiam)); Bourque v. Diamond M Drilling Co., 623 F.2d 351,
354 n.2 (5th Cir. 1980).
21Phillips, 953 F.2d at 929. One underlying rationale for
the collateral source rule is that plaintiffs should not be
penalized because they had the foresight and prudence (or good
fortune) to establish and maintain collateral sources of
compensation. Phillips, 953 at 930. If tortfeasors could set
off compensation available to plaintiffs through collateral
sources, then plaintiffs who pay their own insurance premiums
would suffer a net loss because they would derive no benefit from
any premiums paid. Lomax v. Nationwide Mut. Ins. Co., 964 F.2d
1343, 1347 (3rd Cir. 1992). Additionally, such plaintiffs might
be left exposed to other misfortunes once their insurance
coverage was depleted by the tortfeasors' negligence. Phillips,
953 F.2d at 930. Moreover, even when third parties pay the
compensation for plaintiffs' injuries, such payment should not
have the effect of giving a windfall to tortfeasors. The
liability of tortfeasors should not be excused or reduced simply
because other sources of compensation are available. Quinones v.
Pennsylvania Gen. Ins. Co., 804 F.2d 1167, 1171 (10th Cir. 1986).
Permitting tortfeasors to set-off compensation available to
plaintiffs from collateral sources would allow them to escape
bearing the costs of their own conduct. Additionally, some
courts emphasize that the collateral source rule prevents the
deterrent effect of tort judgments from being undermined.
Phillips, 953 F.2d at 930. Properly interpreted, however, the
collateral source rule also prevents tortfeasors from paying
twice for the same injury))a result that would achieve both
overdeterrence and overcompensation. Thomas v. Shelton, 740 F.2d
478, 484-85 (7th Cir. 1984); accord Phillips, 953 F.2d at 931;
Perry v. Larson, 794 F.2d 279, 286 (7th Cir. 1986).
11

prejudice the jury.22 Murphy Co. contends that the district court
erred in not allowing it to deduct Plan payments received by Davis
from Davis' damage award, and in not allowing it to introduce to
the jury evidence of such payments. We proceed to discuss first
the issue of offset or deduction.
Sources of compensation that have no connection to the
tortfeasor are inevitably collateral. The characterization of
sources of compensation to which the tortfeasor contributes,
however, is more problematic: such sources may be))but are not
necessarily))collateral.23 Although a bright-line test allowing a
tortfeasor to reduce its liability to an employee by the amount of
compensation paid would have the virtue of simplicity, such a test
could yield absurd results. For example, should the salary paid by
an employerSQtortfeasor be allowed to offset damages awarded to an
employee plaintiff because of the employer's negligence? Obviously
not. Yet a myopic fixation on the source of compensation in
analyzing the collateral source rule could produce such bizarre
results.
Generally speaking, when a employee has bargained for a fringe
benefit as additional consideration for employment, compensation
received by the employee under that fringe benefit should not be
deducted from damages awarded to the employee as a result of the
22Phillips, 953 F.2d at 930.
23Id. at 931.
12

employer's negligence.24 As the employee is already contractually
entitled to that benefit, allowing the employer to deduct such
compensation would both undercompensate the employee and provide
the employer with an undeserved windfall.25 Thus, in evaluating
whether a benefit derives from a collateral source, we ordinarily
assess whether that benefit is in the nature of a fringe benefit
(or deferred compensation) or instead reflects a tortfeasor's
effort to anticipate potential legal liability.26 Current
application of the collateral source rule thus turns on the
character of the benefits received, as well as the source of those
benefits.27
In Phillips, we articulated several factors that assist in
distinguishing fringe benefit plans from benefit plans intended to
respond to legal liability: (1) whether the employee contributes
to the plan, (2) whether the benefit plan stems from a collective
bargaining agreement, (3) whether the plan covers both work-related
and nonwork-related injuries, (4) whether payments under the plan
24See, e.g., E.E.O.C. v. Grady, 857 F.2d 383, 391 (7th Cir.
1988) (pension benefits were collateral source, even though
employer contributed to fund from which benefits were paid,
because they were "part of claimants' compensation"); In re Air
Crash Disaster Near Chicago, Illinois, On May 25, 1979, 803 F.2d
304, 308 (7th Cir. 1986) (life insurance policy was as much a
part of employee's compensation as his salary, fringe benefits,
and pension benefits); Haughton v. Blackships, Inc., 462 F.2d 788
(5th Cir. 1972) (trial court erred in deducting benefits received
under seaman's maritime pension from damages awarded to seaman
because of employer's negligence).
25See ante note 19.
26Phillips, 953 F.2d at 932.
27Haughton, 462 F.2d at 790.
13

correlate with the employee's length of service, and (5) whether
the plan contains specific language requiring that benefits
received under the plan be set-off against a judgment adverse to
the tortfeasor.28 These factors must not, however, be applied
woodenly: In determining whether a benefit plan that is wholly or
partly funded by the tortfeasor is a collateral source, the
ultimate inquiry remains whether the tortfeasor established the
plan as a prophylactic measure against liability.
In this case, determining whether the Plan is a collateral
source presents a close question: neither party has cited us to
precedents that neatly dispose of the issue, and we are aware of
none. Applying the Phillips (actually the Allen) factors to the
instant case, the district court concluded that the Plan
constituted a collateral source. Although the court acknowledged
several factors that militate against finding the Plan to be a
collateral source,29 it ultimately held that the Plan was a
collateral source because (1) Davis contributed 10% to the funding
of the Major Medical portion of the Plan, (2) the Plan applied
exclusively to nonwork-related injuries, and (3) the Plan lacked
explicit language requiring Plan benefits to offset any liability
incurred by Murphy Co. We review de novo the district court's
28Phillips, 953 F.2d at 932 (citing Allen v. Exxon Shipping
Co., 639 F. Supp. 1545, 1548 (D. Me. 1986)).
29Those factors are that (1) Murphy Co. had funded 90% of
the Major Medical Plan and 100% of the Accident and Sickness Plan
(which together comprised the Group Insurance Plan that paid
Davis $174,259.68 in benefits), (2) the Plan did not arise from a
collective bargaining agreement, and (3) the Plan did not base
medical and disability payments upon length of service.
14

conclusion that the Plan is a collateral source.30
Our plenary review convinces us that the district court was
correct in holding the Plan to be a collateral source.
Nevertheless, our affirmation of the district court should not be
read to indicate that an employer may never insulate itself from
liability by purchasing medical, accident, and disability insurance
for its employees. In this case, however, the Plan's exclusive
application to nonwork-related injuries is strong evidence that
Murphy Co. did not establish the Plan to reduce its own legal
liability. As an employer, Murphy Co. would not ordinarily be
liable for nonwork-related injuries. The Plan therefore applies
only under circumstances in which Murphy Co. is unlikely to be
found liable for the injuries or illnesses of its employees. Thus,
the Plan does not appear to have been devised to reduce Murphy
Co.'s legal liability for its employees' maladies. Rather, it is
closely akin to a fringe benefit))part-and-parcel of its employees'
compensation package.
We do not here attempt to delineate the exact circumstances in
which we would hold that a medical and disability insurance plan,
30If we were reviewing the district court's underlying
factual findings))such as that Murphy Co. had funded 90% of the
Major Medical Plan))such a review would be based on the clearly
erroneous standard. Here, however, we are reviewing the district
court's analysis and application of several criteria that
together comprise a legal test for whether a benefit is a
collateral source. Such a review is de novo, whether we regard
the analysis as a purely legal question, see, e.g., Leeper v.
United States, 756 F.2d 300, 303 (3rd Cir. 1985) ("the gravamen
of [Plaintiff's] argument is that the district court misapplied
the law") (emphasis added), or as a mixed question of fact and
law. See, e.g., United States v. Altech, Inc., 929 F.2d 1089,
1092 (mixed question of fact and law is reviewed de novo).
15

largely funded by an employer, is not a collateral source. We
certainly would not want to discourage employers from taking
prudent and wholesome prophylactic measures against potential
liability: such prescience benefits both employer and employee.
In this case, though, we are satisfied that the district court
correctly
held
the
Plan
to
be
a
collateral source,
and))consequently))that payments received by Davis under the Plan
should not offset damages awarded to Davis because of Murphy Co.'s
negligence under the Jones Act.31
We are not satisfied, however, that the district court was
correct in holding that Plan payments may not offset amounts
awarded to Davis for maintenance and cure. But as the district
court found))in the alternative))that Murphy Co. had failed timely
to raise the defense of set-off, we affirm the district court.
Nevertheless, we briefly discuss the issue of maintenance and cure
obiter dictum to provide guidance in an area of law that is but
31We share the district court's concern that requiring
Murphy Co. to pay both Plan premiums and Davis' past and future
medical expenses (as part of Davis' damage award) appears to be
making Murphy Co. pay twice for the same injury in contravention
of a fundamental policy underlying the collateral source rule.
See, e.g., Thomas v. Shelton, 740 F.2d 478, 484-85 (7th Cir.
1984); accord Phillips, 953 F.2d at 931; Perry v. Larson, 794
F.2d 279, 286 (7th Cir. 1986). As noted above, however, when the
benefit at issue was established and funded by the employer as
additional compensation (i.e., as a fringe benefit), refusing to
deduct benefit payments from the plaintiff-employee's damage
award does not make the employer pay twice))any more than
refusing to set off employee's salary would make the employer pay
twice. Additionally, in this case the insurance company))qua
subrogor))may well have the right to recover insurance payments
wrongly received by Davis under the erroneous assumption that
Davis' injury was nonwork-related. Ultimately, then, Davis may
not be paid twice for the same injury.
16

sparsely populated with relevant jurisprudence.
Maintenance and cure is a seaman's right under general
maritime law to receive food and lodging (maintenance) and
necessary medical services (cure) if he falls ill while in the
service of a vessel.32 The owner of a vessel has a duty to pay
maintenance and cure that is unrelated to any duty of care under
tort law.33 "Because of the unique nature of maintenance and cure,
normal rules of damages, such as the collateral source rule in
tort, are not strictly applied."34
Generally speaking, a seaman "may recover maintenance and cure
only for those expenses actually incurred."35 Despite this general
rule, however, a shipowner is not entitled to set-off against an
award for maintenance and cure all monies that a seaman receives.36
In Vaughan v. Atkinson, for example, the Supreme Court held that a
32Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527, 58 S. Ct.
651, 82 L. Ed. 993 (1938); see also generally Thomas J.
Schoenbaum, Admiralty and Maritime Law � 5-2 (1987 & Supp. 1989)
(discussing seaman's right to maintenance and cure).
33Adams v. Texaco, Inc., 640 F.2d 618, 620 (5th Cir. 1981).
34Gauthier v. Crosby Marine Serv. Inc., 752 F.2d 1085, 1089
(5th Cir. 1985).
35Id. (citing Field v. Waterman S.S. Corp., 104 F.2d 849,
851 (5th Cir. 1939)). For example, in Brown v. Aggie & Miller,
Inc., we concluded that a seaman was not entitled to maintenance
and cure because he had received care and treatment in a public
hospital and thus had incurred no expense. 485 F.2d 1293, 1296
(5th Cir. 1973). Similarly, in Johnson v. United States, the
Supreme Court held that an injured seaman who received care and
treatment from his parents was not entitled to maintenance and
cure because he had not incurred any actual expense. 333 U.S.
527, 533, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962).
36Gauthier, 752 F.2d at 1090.
17

shipowner was not entitled to deduct monies earned by an injured
seaman))who worked as a taxicab driver while his claim was
pending))from the seaman's maintenance and cure award.37 The Court
reasoned that if a shipowner were permitted to disregard its
obligation to provide maintenance and cure and then deduct money
earned by the seaman during the pendency of his claim, the
underlying purpose of a shipowner's duty to provide maintenance and
cure))namely the protection of injured seamen))would
be
undermined.38 Following the Supreme Court's reasoning, we held in
Gauthier that when a seaman has alone purchased medical insurance,
a shipowner is not entitled to deduct from its maintenance and cure
obligation monies received by the seaman from his insurer.39 Thus,
while an injured seaman is not generally entitled to maintenance
and cure when he does not incur any expense, the law establishes an
exception))one which forbids the shipowner from escaping his
obligation to provide maintenance and cure by referring to monies
received by the seaman through his own efforts. In this case,
however, the exception is inapplicable.
The record indicates that Davis contributed very little to the
Plan established by Murphy Co. to pay for nonwork-related injuries:
he paid 10% of the premiums for the Major Medical portion of the
Plan and none of the premiums for the Accident and Sickness portion
of the Plan. As the district court noted, it is undisputed that
37369 U.S. 527, 533, 82 S. Ct 997, 8 L. Ed. 2d 88 (1962).
38Id.
39Gauthier, 752 F.2d at 1090.
18

through these plans Davis "received payments sufficient to satisfy
any food, lodging, or medical expenses." Thus, given that))as
noted above))normal rules of damages, such as the collateral source
rule in tort, are not strictly applied to awards for maintenance
and cure,40 the district court may possibly have erred in concluding
that Murphy Co. could not deduct these Plan disability payments
from Davis' maintenance award. As the district court found in the
alternative that Murphy Co. had waived its "set-off defense" by
failing to plead it prior to the deadline for filing amended
pleadings, however, we affirm the district court's denial of a set-
off with respect to Davis' maintenance award as well.41
D.
Other Assignments of Error
Most of Murphy Co.'s remaining criticism involves alleged
errors by the district court in refusing to permit Murphy Co. to
introduce certain evidence or in allowing Davis to introduce
certain other evidence. We review a district court's evidentiary
rulings only for abuse of discretion42 and here find no such abuse.
One evidentiary issue was of special concern to us, however, so we
discuss it in some detail.
Murphy Co. complains that its defense was prejudiced by the
40Gauthier, 752 F.2d at 1089.
41In his brief to this panel, Davis reiterated his
contention that Murphy Co. "did not plead off-set, mistake,
estoppel, payment or any other defense of an equitable nature"
and thus waived these defenses. Murphy Co. never responded to
this contention.
42United States v. Central Gulf Lines, Inc., 974 F.2d 621,
625 (5th Cir. 1992); Wright v. Hartford Accident & Indem. Co.,
580 F.2d 809, 810 (5th Cir. 1978).
19

district court's refusal to allow admission of several health
insurance claim forms (the Forms), which indicated that Davis'
illness was not work-related. Murphy Co. contends that the
admission of the Forms would have allowed it more effectively to
dispute the central issue of medical causality, as well as to
better impeach Davis' expert medical witness, Dr. Kirkwood.
The district court based its decision to exclude the Forms on
several factors. First, it noted that Davis had himself filled out
many of the Forms, and that he was not qualified under Federal Rule
of Evidence 703 to offer expert testimony on the etiology of his
condition. Second, as discussed above, the district court held
that the Plan constituted a collateral source. As such, the court
concluded, evidence of insurance payments simply had no relevance
to the lawsuit.43 Third, the district court found the probative
value of the Forms to have been substantially outweighed by the
danger of unfair prejudice and therefore excluded the Forms under
Fed. R. Evid. 403.
Technically, the district court was probably incorrect in
determining that the Forms literally had no relevance because they
were evidence of a collateral source. As the Plan was a collateral
source, the Forms were clearly not relevant (and could not be
admitted) with respect to the issue of mitigation (or set-off) of
damages. Yet, the forms may very well have been relevant with
43The district court cited Phillips v. Western Co. of North
America, 953 F.2d 923, 930 (5th Cir. 1992), for the proposition
that evidence of collateral sources has no relevance.
20

respect to the issue of medical causality.44 But the district court
also offered two additional grounds for excluding the Forms.
We find the district court's ruling based on Fed. R. Evid. 403
to be particularly defensible. The court indicated that))in its
judgment))the Forms had very low probative value because they were
filled out by Davis and by anonymous medical clerks relying on
Davis' representations. The court also noted that the signatures
of the attending physicians were rubber-stamped onto the Forms.45
Moreover, the attending physicians submitted affidavits in which
they declared that the Forms did not reflect their true medical
opinions, thus further reducing the probative value of the Forms.
On the other hand, the district court found that the Forms were
highly prejudicial because "no juror . . . will misunderstand the
import of submitting a claim form to an insurance administrator."
In view of these observations, we cannot say that district court
abused its discretion in refusing to admit the Forms.
III
CONCLUSION
None of Davis' 19 claims of error justifies reversing the
district court in this case. After carefully reviewing the record,
44The district court doubtless could have admitted the Forms
with a limiting instruction to the jury to the effect that the
Forms could be considered with respect to the issue of medical
causality and for impeachment, but not with respect to the issue
of damages, i.e., set-off. Nonetheless, the district court's
decision to exclude the Forms under Fed. R. Evid. 403 and 702
does not amount to an abuse of discretion.
45Murphy Co. did ultimately present to the district court a
few forms bearing Dr. Kirkwood's actual signature, but the court
ruled this evidence to have been untimely presented.
21

we cannot say that Davis' Jones Act negligence claim is
characterized by a complete absence of supportive, probative facts,
and we are therefore constrained to affirm the jury's verdict that
Murphy Co. was negligent. Whether or not we are convinced that a
scientifically verifiable causal nexus exists between exposure to
hydrocarbons and development of GPS is irrelevant: we are not here
to second-guess the jury as factfinder, and it found causation on
the basis of "some" probative evidence. We also affirm the
district court's conclusion that the Group Insurance Plan was a
collateral source, even though it was funded almost entirely by
Murphy Co. Although we emphatically do not wish to discourage
employers from taking prophylactic measures against future
liability, in this case, the fact that the Plan applied exclusively
to nonwork-related injuries leads us inexorably to the conclusion
that the Plan was conceived not as a hedge against liability but as
a fringe benefit to further compensate employees. The verdict of
the jury and the judgment of the district court are therefore
AFFIRMED.
22