January 2012 HAPPY NEW YEAR!!!
Notes From Your Updater - In Memoriam: Administrative Law Judge Richard D. Mills passed away on December 10, 2011 in Diamondhead, Mississippi at the age of 79. Judge Mills had a long and distinguished career at the U.S. Department of Labor, Office of Administrative Law Judges (OALJ). He served as the District Chief Judge at OALJ's Metairie, Louisiana district office, and continued work as a highly respected and popular settlement judge and mediator even after ending actively hearing cases before the Department.
Brad Soshea, District Director of the Houston Longshore office, has announced that he is leaving his position as District Director in the Houston Longshore district office in a couple of weeks to return to private law practice.
On December 30, 2011, the Office of Workers’ Compensation Programs issued the final rule implementing amendments to the Longshore & Harbor Workers’ Compensation Act relating to the exclusion of certain recreational-vessel workers from the LHWCA’s definition of “employee.” OWCP did withdraw its highly controversial proposed rule §701.303. The new rules come into effect on January 30, 2012.
On December 5, 2011, the U.S. Supreme Court denied the petition for certiorari filed in the case of Green v. United States of America, Docket No. 11-403 [see April 2011 Longshore Update]. The question presented to the Court was : Whether under the Suits in Admiralty Act (“SAA”) and the Public Vessels Act (“PVA”), the United States is subject to the same liability in-rem for the negligence of those conducting its business as agents for the vessels it owns, as would attach to a private vessel owner, i.e., according to the principles of law and the rules of practice applicable in like cases between private parties, as provided by statute.
On December 7, 2011 (possibly a new date which will live in infamy), a petition for certiorari was filed with the U.S. Supreme Court in the case of National Maritime Safety Association v. Occupational Safety and Health Administration, et al., Docket No. 11-711. The question presented to the Court is: “Whether the grant of power authorizing the Secretary of Labor to establish legally binding safety standards as long as those standards are ‘reasonably necessary or appropriate to provide safe . . . employment or places of employment,’ 29 U.S.C. § 652(8), is an unconstitutional delegation of legislative power?”
A petition for certiorari has been filed with the U.S. Supreme Court in the case of Lozman v. City of Riviera Beach, Florida, Docket No. 11-626. The question presented to the Court is : Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a “vessel” under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction. No response to the petition has been filed.
The Transportation Security Administration (TSA) has issued a notice that approximately 26,000 Transportation Worker Identification Credentials (TWIC) cards were issued with improperly coded Federal Agency Smart Credential Numbers on their integrated circuit chips. As a result, these TWIC cards will not work in an electronic card reader. TSA will replace these defective cards at no cost. TSA has issued a 543-page list of the eight-digit Agency Serial Numbers of the affected cards, which were issued prior to April 5, 2011.
Arbitrator Orders Striking ILWU Members Back to Work - Most, but not all, of 700 dockworkers have returned to work at the ports of Los Angeles and Long Beach after walking off the job in the first week of December as part of a strike organized by ILWU Local 63, the clerical unit of the International Longshore and Warehouse Union. On December 6, 2011, an arbitrator ruled against the labor action and ordered that work resume. The union has appealed the arbitrator’s decision, according to an ILWU spokesman.
SUBJECT TO THE SCINDIA, NOT KERMAREC, STANDARD
HUDSON V. SCHLUMBERGER TECHNOLOGY CORPORATION, ET AL.
Mark Hudson, an employee of Schlumberger Technology Corporation, was spooling seismic lines from the aft deck of a vessel, operated by Alpha Marine Services, Inc., when he allegedly stepped in an uncovered padeye hole and injured his knee. Though Hudson admitted that he knew some of the vessel’s pad-eye holes were uncovered, he alleged that poor lighting and a film of sea water covering the deck contributed to his accident because it made identification of the holes difficult in the early morning light. At the time of the incident, the deck light had been turned off by the boat’s captain because the sun was coming up. Hudson and a fellow Schlumberger worker were the only personnel on deck at the time of Hudson’s injury. There was a BP representative aboard the vessel, who was asleep below deck, and no Alpha employees were on deck because Schlumberger had requested they not be in the area while seismic operations were underway. The district court ultimately granted summary judgment to Alpha and BP, and Hudson timely appealed, arguing that the district court applied the wrong negligence standard and that even under the standard adopted by the district court, summary judgment is not appropriate because there is a material issue of disputed fact. In his appeal, Hudson contended that Kermarec, not Scindia, should serve as the proper standard to judge the conduct underlying his claim under §905(b) of the LHWCA. In this respect, Hudson avers that the district court applied the wrong standard to his claim by applying Scindia’s three vessel-owner duties, rather than Kermarec’s “reasonable care” approach. Hudson alternatively argued that even if Scindiais the appropriate standard under the LHWCA, the district court erred in applying Scindia. Hudson contended that Alpha was in complete charge of the vessel, supervised everyone on board, and, despite Hudson’s prior inquiries, insisted the covers remain off the pad-eye holes to prevent them from washing overboard. Hudson also argued that BP’s representative aboard the vessel, directed the outfitting and inspection of the vessel, as well as the work being done, to assure that working conditions were safe. As a result of the investigation that followed Hudson’s accident, the BP representative allegedly recommended covering the padeye holes in the future. The appellate court rejected Hudson’s contention finding, because Hudson is a longshoreman, under the LHWCA by virtue of his maritime employment, and was injured while working in the scope of his employment over navigable waters, his potential recovery under §905(b) is subject to the Scindia, not Kermarec, standard. The Scindia factors all supported Alpha’s position. Indeed, the record showed that Alpha was actually restricted to some extent from accessing the area in which Hudson was working while he was performing his seismic duties. Though the lighting was controlled by Alpha, the record showed the pad-eyes were plainly visible. The record was also absent of any indication that Alpha knew Hudson’s work around the uncovered pad-eyes created an unreasonable risk of harm and that Schlumberger could not be relied on to address the potential hazard. The appellate court concluded that Hudson had failed to show a genuine issue of material fact either that Schlumberger’s work was done with obvious imprudence, or that Alpha had any knowledge if it was. The appellate court also found that BP’s role as a time charterer, rather than traditional vessel owner, further cabined its obligations with respect to liability under §905(b), subject to liability only for negligence in its time-charterer capacity. The appellate court held that Hudson had. not shown that BP is accountable in its traditional sphere as time charterer and had failed to raise a material fact issue about BP’s liability under §905(b). The court affirmed the ruling of the district court, granting summary judgment in favor of Alpha and BP.(5th Cir, December 6, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 24244
WAVE HEIGHT IS NOT A SHOWING OF NEGLIGENCE (CONT.)
CALLAHAN V. GULF LOGISTICS, LLC ET AL.
Christopher Callahan filed suit, under §905(b) of the LHWCA, after allegedly sustaining bodily injuries while he was employed by Cooper Cameron Corporation as a field service technician aboard a mobile drilling unit. Callahan was allegedly injured during a basket transfer from a supply vessel to the mobile drilling unit during rough seas. Callahan sued multiple parties, including owners, charterers, and operators (“defendants”). Defendants moved for summary judgment. After reviewing all the evidence, the court concluded that there was no negligence in the case because it was uncontested that it was not too dangerous to make a basket transfer. Accordingly, there was no genuine issue of material fact for trial. Callahan alleged that the defendants transferred him in extremely hazardous weather conditions that made even standing on deck dangerous. The court found that even Callahan’s own testimony disputed this assertion and showed that he did not believe the seas were too dangerous for work or to make the personnel basket transfer, and in fact, safely completed a personnel basket transfer after his injury. While Callahan argued that it was "undisputed" that sea conditions reached fifteen to eighteen feet, the court disagreed, noting Callahan’s own accident report stating that the waves were ten feet. Considering the evidence and applicable law, the court concluded that the defendants had established that there is no issue of material fact that they performed their duty to act reasonably under the circumstances such that summary judgment was warranted. The court granted defendants’ motion for summary judgment [see May 2009 Longshore Update]. Callahan appealed the district court’s grant of summary judgment, arguing that the district court erred in finding that the conduct of some of the defendants, particularly Diamond, Gulf Logistics, and LLOG, was reasonable as a matter of law. With respect to Eagle Consulting, Callahan argued that his proffered evidence established a genuine issue of fact regarding Eagle Consulting’s control over the events in question. Thus, he argues, Eagle Consulting was not entitled to summary judgment. The appellate court affirmed the district court’s granted of summary judgment in favor of all defendants except one. The appellate court considered a “clarifying” affidavit of Callahan’s in reaching its conclusion with respect to Gulf Logistics, observing that while the district court correctly noted that no one directed Callahan to leave the cabin of the ship, this did not necessarily absolve Gulf Logistics of liability. Callahan’s affidavit suggested that custom and experience surrounding basket transfers involves certain expectations to which he conformed his conduct by moving his bags and preparing for the transfer. A jury could disbelieve this explanation if it credited instead Callahan’s admission that according to his employer’s “stop work” policy, he could refuse to make a personnel basket transfer and had done so in the past without adverse consequences. Alternatively, a reasonable jury could find that Gulf Logistics implicitly directed him to prepare for a transfer, and he was required to prepare his bags and position himself appropriately on the deck. The appellate court also found that Callahan’s subjective belief concerning the safety of a personnel basket transfer may be probative, but it was not dispositive of whether Gulf Logistics breached its duty of care by setting up the transfer. The measure of danger in the situation is an objective, not subjective, question. The court found that Callahan’s deposition testimony and the accident report furnished some evidence that the conditions in which the transfer was made were hazardous. Although the appellate court acknowledged that Callahan’s evidence was thin, it was nonetheless sufficient to create a fact issue as to Gulf Logistics’ breach. The appellate court concluded that the district court erred in granting summary judgment to Gulf Logistics. The summary judgments in favor of all other defendants was affirmed, but reversed and remanded as to the Gulf Logistics. (5th Cir, December 29, 2011, UNPUBLISHED) No. 10-30019 (consolidated with No. 09-30503) 2011 U.S. App. LEXIS 26012
Updater Note: It is unfortunate that the appellate court chose to give consideration to a supplemental affidavit in order to determine that there was a genuine fact issue that should have been considered by the trier of fact, rather than ruled on as a matter of law.
DUMMY WALKS OFF PIER WITHOUT LOOKING & HAS AUDACITY TO SUE
BRODERICK ET AL. V. THE PORT OF SEATTLE
The Port of Seattle contracted with Northwest Asphalt to perform asphalting work at its marine cargo terminal in Seattle. Northwest Asphalt was fully and exclusively responsible for the safety of its employees, the conditions of the work site, and for the safe performance of its work. Larry Broderick was employed by Northwest Asphalt and was experienced in construction work, particularly road construction. Broderick was directly supervised by Northwest Asphalt and not the Port. On the morning of his accident, Broderick raked asphalt behind the paver for about two and a half hours. As Broderick stood with his back to the pier's edge, the paver operator directed Broderick to step out of the way to allow the paver to turn. Without looking behind, Broderick stepped backward and fell off the edge of the pier onto the rocks below, sustaining knee and head injuries. Following Broderick’s accident, the Washington Department of Labor and Industries cited Northwest Asphalt for a serious safety violation for failure to install guardrails or barriers along the edge of the pier. The Department found the Port committed no health or safety violations. Broderick sued the Port for negligence and damages stemming from his fall, claiming his fall happened because a chunk of pavement gave way underneath him. The Port moved for summary judgment arguing no enforceable common law duty of care for workplace safety, statutory duty, or common law duty of care to invitee. The trial court granted the Port's summary judgment motion, ruling no material issues of fact and no duty owed to Broderick as a matter of law. Broderick appealed, arguing that the Port breached its duties under the Washington Administrative Code (WAC)'s waterfront safety provisions. The Port responded that it owed Broderick no duty of ordinary care and no WAC duties because it retained no control over Northwest Asphalt's work. The appellate court agreed with the Port, finding the case involved an independent contractor's employee who fell off a pier owned by the Port. Turning to Broderick’s theory of liability the appellate court found that, even assuming the Port knew that the asphalt near the edge of the pier was loose and broken up, Broderick had failed to present any evidence the Port should have anticipated that Northwest Asphalt would pave near the edge of the pier, perform its work negligently, or that Broderick would fall. Because the Port owed Broderick no duty of ordinary care, no statutory duty, and no duty as a business invitee, the appellate court affirmed the trial court's summary judgment order dismissing Broderick's claims. (Wa. App. Ct, December 19, 2011, UNPUBLISHED) 2011 Wash. App. LEXIS 2817
SUBSTANTIAL FACTUAL DISPUTES RESOLVED IN FAVOR OF LONGSHOREMAN
DASBACH V. AMERICAN COMMERCIAL LINES, LLC
David Dasbach was employed as a longshoreman by Holcim, Inc., a wholesale cement distributor and stevedore. Dasbach and a co-worker were unloading cement from a barge owned and operated by American Commercial Lines, LLC (ACL). The barge had eight rolling covers over its cargo hold. Each rolling cover was held in place by latches called toggle locks. Dasbach allegedly injured his back, when he used a pry bar to loosen two toggle locks that were too tight to open manually. Dasbach later sued ACL for negligence under §905(b) of the LHWCA, alleging that the barge’s toggle locks were defective and that ACL had actual or constructive knowledge of the defect before the barge was turned over to the stevedore. Following a trial, a jury awarded Dasbach $800,000. After the court entered judgment, ACL appealed the jury award, arguing it was entitled to a directed verdict or a judgment notwithstanding the verdict because Dasbach failed to prove that a latch on the barge was defective before the barge was turned over for unloading operations; there was no evidence ACL had notice of a defective latch before the turnover; the defective latch was open, obvious and anticipated by Dasbach; and there was no evidence that Dasbach’s alleged injuries were proximately caused by ACL’s negligence. The appellate court began its analysis by observing that, because ACL was seeking a judgment not on verdict, it must demonstrate that the evidence adduced at trial, when considered in the light most favorable to Dasbach, so overwhelmingly favored ACL that no contrary verdict based on the evidence could ever stand. After a careful review of the evidence adduced at trial, the appellate court concluded that it was reasonable for the jury to conclude that, before the barge was turned over to Holcim, either the toggle lock at issue had been improperly adjusted by ACL or its agents or they failed to properly adjust the toggle lock after an event occurred that necessitated the resetting of some covers and placed increased tension on the lock. The trial testimony established that the toggle locks at issue had been adjusted at some time before the turnover because the locks were bent and had burn marks and bubbled paint. Moreover, the testimony showed that the toggle lock in question was too tight to open by hand and difficult to open with a pry bar. It was also reasonable for the jury to conclude that ACL either knew about the excessive tension on the toggle locks or should have discovered the hazard through a reasonable inspection. Even assuming, arguendo, that the defective condition of the lock was open, obvious and anticipated by Dasbach, the evidence, when viewed in the light most favorable to Dasbach, was sufficient for a jury to reasonably conclude that ACL failed to avoid the harm to Dasbach because the hazard was one which ACL should have known Dasbach would not avoid by using a crane or other practical alternatives under the circumstances. With respect to Dasbach’s alleged injury, the appellate court noted that this case, like many cases involving an unwitnessed accident, rises or falls on the credibility of the witnesses and the interpretation of the evidence. The court concluded that it could not substitute its judgment for that of the jury as to the credibility of witnesses or the inferences to be drawn from the evidence. Finding that ACL had failed to meet this burden, the appellate court held that ACL was not entitled to a judgment notwithstanding the verdict because all the evidence, when viewed in its aspect most favorable to Dasbach, did not so overwhelmingly favor ACL that the verdict rendered against ACL could not stand. Reasonable inferences of ACL's negligence could be drawn from the established facts and circumstances concerning whether a barge latch was defective before the barge was turned over to the stevedore, whether ACL should have known of the defect, whether ACL should have known a longshoreman would not avoid the hazard by using practical alternatives, and whether Dasbach's injuries were proximately caused by ACL’s negligent breach of its duties. The judgment of the trial court was affirmed. (Ill. 1st App, December 23, 2011, UNPUBLISHED) 2011 Ill. App. Unpub. LEXIS 3244; 2011 IL App (1st) 93307U
JONES ACT & §905(B) CLAIMS REJECTED, AS FORMER BARGE IS NOT A “VESSEL”
POOLSON V. MALLEY REPAIRS, INC., ET AL.
Edward Poolson, Jr., allegedly injured his left arm while working at Holcim US, Inc.’s cement transfer facility. Poolson filed this suit against Holcim alleging claims under the Jones Act and §905(b) of the LHWCA, alleging that Holcim’s barge is a vessel and that he is a Jones Act seaman. In the alternative, Poolson alleged a claim against Holcim as the vessel owner under §905(b) of the LHWCA. Holcim is supplier of cement and it operates a distribution terminal where bulk cement is received from railcars and barges and transferred to silos for loading onto trucks for shipment. Holcim uses a stationary floating barge to receive the cement, which is moored adjacent to Holcim's terminal and contains the equipment necessary for the transfer, such as an air compressor, vacuum pump, tanks, cranes, and piping. While originally constructed a deck barge, Holcim converted it into a stationary floating transfer facility, which receives electricity from a generator on the shore, is held in place by two welded I-beam brackets that are collared around 48" diameter steel mooring piles. It can move vertically on its moorings with the motion of the tides and waves, and due to the weight of the cement. The barge is not used to move materials or people along the water, but has been moved for maintenance. Holcim moved for summary judgment arguing that Poolson’s Jones Act and § 905(b) claims must be dismissed because its former barge is not a vessel under either statute and that Poolson’s exclusive remedy is workers' compensation under the LHWCA. After allowing both parties “vessel experts” to testify, denying motions in limine filed by each respective party, the court held that Holcim’s former barge is not a "vessel" under the Jones Act or LHWCA. Although the barge can physically be used for transportation on water, such a use was merely theoretical. The barge was essentially taken out of navigation when it was permanently moored adjacent to Holcim's cement transfer facility by two welded I-beam brackets that are collared around 48" diameter steel mooring piles. While acknowledging the fact that the barge has been moved for maintenance, the court found that it has not been used as a seagoing vessel, and Holcim does not intend to use it as such. Further, the barge receives electricity from a land-based source, and is an integral part of Holcim's land-based cement transfer operation. Moving the barge would require multiple steps, such as disconnecting power lines and cement transfer equipment in addition to cutting the welded I-beam brackets. The court concluded these facts demonstrated the impracticability of using it as a means of marine transport and held that it is not a vessel under the Jones Act or LHWCA. Holcim’s motion for summary judgment was granted and Poolson’s claims were dismissed with prejudice. (USDC EDLA, November 30, 2011) 2011 U.S. Dist. LEXIS 137744
DON’T WAIT FOR CMS TO APPROVE YOUR SETTLEMENT - FILE A DJ ACTION
GUIDRY, ET AL. V. CHEVRON USA, INC.
Branden Guidry was allegedly injured in a workplace accident while he was employed by Kelley Completion Services (KCS) and assigned to work on a Chevron structure located on the Outer Continental Shelf, where he fell into a hole, with one leg in the hole and one leg on the platform. As a result of the accident, Guidry was diagnosed with a disc herniation and underwent low back surgery. Guidry and his wife, individually and on behalf of their minor children (hereinafter “Guidry”), filed suit against Chevron U.S.A., Inc. and Danos & Curole Marine Contractors, LLC. Guidry’s third-party claims were eventually settled amicably after lengthy negotiations. The defendants agreed to pay Guidry the sum of $975,000. In consideration for a settlement approved by OWCP under §908(i) releasing the claims brought under the LHWCA, KCS’s insurer agreed to pay Guidry $50,000 and to waive its intervention and any lien it might have had. Part of the consideration for all of the settlements was that Guidry would be responsible for protecting Medicare's interests under the Medicare Secondary Payer Statute (MSP). Although the parties wanted the Medicare Set Aside (MSA) approved by Centers for Medicare and Medicaid Services (CMS) for purposes of complying with the provisions of the MSP, and the commensurate regulations, the parties were concerned that the settlement could not be finalized and cited the delay associated with obtaining approval from CMS and the fact that approval may not ever be forthcoming. In an effort to avoid rescinding the settlement altogether and to achieve compliance with the provisions of the MSP, Guidry filed a motion for declaratory judgment seeking (1) approval of the settlement, (2) a declaration that the interests of Medicare are adequately protected by setting aside a sum of money determined by the court to fund any of Guidry's future medical expenses related to the injuries claimed and released in this lawsuit, and (3) an order setting that amount aside from the settlement proceeds and depositing it into an interest-bearing account to be self-administered by Guidry. Protocols, Inc., a Medicare set-aside vendor, was retained to prepare an MSA, which determined that Guidry's future potential medical expenses that would be covered by Medicare and were related to the injuries claimed in the lawsuit amounted to $75,420.59 if the cost of anticipated future psychological and/or psychiatric treatment is waived or $77,204.16 if those costs are included. The court found that the sum of $77,204.16, to be utilized by Guidry out of the settlement proceeds to pay for future medical items or services, that would be otherwise covered by Medicare, reasonably and fairly took Medicare's interests into account in that the figures are based on reasonably foreseeable medical needs. Additionally, since CMS provided no other procedure by which to determine the adequacy of protecting Medicare's interests for future medical needs and/or expenses in conjunction with the settlement of third-party claims, and since there is a strong public interest in resolving lawsuits through settlement, the court found that Medicare's interests had been adequately protected in the settlement within the meaning of the MSP. (USDC WDLA, December 28, 2011) 2011 U.S. Dist. LEXIS 148942
THERE HAS TO BE A VESSEL TO SUPPORT AN UNSEAWORTHINESS CLAIM
KAHUE V. PACIFIC ENVIRONMENTAL CORPORATION, ET AL.
Cedric K. Kahue filed a Complaint against Pacific Environmental Corporation (PENCO), seeking recovery under the Jones Act, for injuries allegedly incurred while employed by PENCO as a seaman. PENCO ins in the business of providing environmental remediation and spill cleanup services, primarily on land. Only a small percentage of PENCO's work takes place at sea, including marine spill responses, deploying containment booms around vessels for fueling, and transporting people and equipment to and from job sites. Kahue claimed that he was injured while preparing for a hazardous waste spill response, when a large bale of rags from the second story of a PENCO building fell on his head, leaving him a partial quadriplegic. Kahue asserted various causes of action, including negligence, unseaworthiness, and maintenance and cure. PENCO’s insurer intervened in the case, asserting a workers’ compensation lien, based on the claim that it continues to pay disability compensation and medical expenses under the LHWCA for Kahue as a result of the alleged injury. PENCO moved for summary judgment on all of Kahue's claims on the grounds that he may not recover under the Jones Act because he does not qualify for seaman status, and is already receiving lifetime benefits under the Longshore Act. Alternatively, PENCO sought partial summary judgment on Kahue unseaworthiness claim because no vessel was involved, and on their affirmative defense to limit liability to the value of the vessel involved pursuant to 46 U.S.C. § 30501 et seq. PENCO argued that it hired states that it hired Kahue as a laborer, and he later worked as a HAZMAT technician and foreman. The majority of Kahue’s work with PENCO was on land jobs operating cranes, backhoes, excavators, dozers, boom trucks, loaders, forklifts and pickup trucks. According to PENCO, during Kahue's entire employment with PENCO, he spent 14.82% of his time in the service of PENCO's skiffs away from a dock or underway, and 4.9% of his time on other company's vessels. On the date of his alleged injury, Kahue was the foreman in charge of mobilizing equipment and supplies at PENCO's shop for a highway spill response job. A co-employee dropped an unopened bale of cleaning rags, weighing forty to fifty pounds, in a land-based storeroom, hitting Kahue on the head. PENCO argued that Kahue was not in the service of a vessel at the time of his injury, and spent less than twenty percent of his time on PENCO's marine projects. PENCO argued that Kahue’s work does not satisfy the duration element of the substantial connection test, which requires that roughly thirty percent of a worker's time be spent in service of a vessel in navigation. Alternatively, PENCO sought partial summary judgment on Kahue’s unseaworthiness claim, arguing that he was not injured by a vessel, let alone an unseaworthy one. In opposition, Kahue argued that he is a Jones Act seaman, and that this determination is a mixed question of law and fact, which is for the trier of fact and not appropriate for summary judgment. Under the summary judgment standard, the court found that PENCO had not met its burden of establishing that Kahue did not have a connection to a vessel. The court found the Kahue had presented evidence that he had a connection to PENCO's and other vessels and that he contributed to the accomplishment of the vessels' mission, namely, marine clean up. As to the second prong of the Chandris test, whether his connection to the vessel was substantial in duration, the court found that there is a question of fact as to this material issue, and, therefore, summary judgment is not appropriate. Turning to PENCO’s alternative motion for partial summary judgment. The court found that Kahue was not injured by a vessel, a piece of the ship's equipment, or an appurtenant appliance. Rather, Plaintiff was injured while supervising the loading of a truck with supplies to clean up a roadside oil spill. The court therefore granted PENCO's Motion as to Kahue’s unseaworthiness claim. (USDC HI, November 29, 2011) 2011 U.S. Dist. LEXIS 137747
COURT NOT CONVINCED JONES ACT WAS FRAUDULENTLY PLED
GUTIERREZ V. SAFWAY SERVICES, LLC, ET AL.
Carlos Gutierrez was allegedly injured while employed by Safway Services, LLC as a scaffolding builder working aboard a drillship, owned by Transocean Offshore USA, Inc. Gutierrez filed his Jones Act suit in state court, asserting claims under the Jones Act, general maritime law, and the saving to suitors clause. Transocean filed a Notice of Removal in federal court, which Safway joined in, both arguing that Gutierrez’s Jones Act claim had been fraudulently pled, and asking that the court exercise removal jurisdiction over the case. Gutierrez filed a Motion to Remand the case to state court, claiming that he had properly alleged that he is a seaman under the Jones Act and that, as such, his case is not removable. The defendants asserted that Gutierrez’s claims were covered by the LHWCA, as extended by the Outer Continental Shelf Lands Act (OSCLA), claiming the drillship qualified as a OSCLA situs and that Gutierrez was performing land-based work on an offshore rig. Safway further claimed that because Gutierrez was hired as a scaffolding worker and because Safway planned to place him on land-based projects in the future Gutierrez could not show a substantial connection to a vessel or fleet of vessels. The court rejected defendants’ arguments finding, instead, that the drillship is a vessel in navigation under the Jones Act. Citing Manuel, the court noted that if the owner constructs or assembles a craft for the purpose of transporting passengers, cargo, or equipment across navigable waters and the craft is engaged in that service, that structure is a vessel. Such a vessel retains its vessel status even while moored, dry-docked, or otherwise immobilized and secured to land. It was undisputed that the drillship in question was capable of transporting people and equipment across water, and was immobilized during Gutierrez’s work merely for repairs. It was also undisputed that Gutierrez worked as a lead carpenter building scaffolding aboard the drillship to facilitate repairs of various equipment on the ship. Whether or not this work contributed to the function of the drillship was a question of fact. Because factual disputes had to be resolved in favor of Gutierrez, the court found it was compelled to find that the Gutierrez had established that his work contributed to the function of the vessel or to the accomplishment of its mission. Because there were questions of fact as to whether Gutierrez’s work aboard the drillship contributed to the function or mission of the vessel and whether Gutierrez’s connection to the vessel was substantial in nature and duration, the court granted Gutierrez’s Motion to Remand. (USDC EDLA, November 28, 2011) 2011 U.S. Dist. LEXIS 136087
MOTION, MOTION, WHOSE GOT A MOTION?
WILLIAMS V. TRIPLE C ENTERPRISE INC. OF LOUISIANA, ET AL
David Williams filed suit under the Jones Act, general maritime law, and §905(b) of the LHWCA, claiming that he was injured on two occasions while working in the scope of his employment as a contract welder for C & G Welding Service, including a left shoulder injury on a barge owned by Manson Gulf, LLC, when a contract rigger for Ocean Marine Operators, LLC, performing work for Manson pursuant to contract, tossed him a five-gallon milk container. Williams’ second alleged injury was to the back and neck when he tripped on the base of a staircase on a vessel owned and operated by International Construction Group, LLC. Ocean Marine moved for summary judgment, arguing that it is not liable under a theory of respondeat superior for Williams’ injuries and that instead Manson was liable under the borrowed servant doctrine, because the milk thrower was Manson's borrowed employee. The court found that a genuine issue of material fact existed as to the extent of Ocean Marine and Manson's control over the milk thrower on the day of Williams’ accident and that Ocean Marine had failed to make a prima facie case that no genuine issues of material fact existed as to whether he was Manson's borrowed employee. The court next addressed Williams’ motion to sever his two claims. Williams’ argued that his two injuries should be severed because trying them together would confuse the jury and result in an unfair disposition of the case. The court denied Williams’ motion, finding the claims had overlapping questions of fact and that severing the claims would likely require duplicative testimony and could prejudice the defendants by making it more likely that Williams would obtain double recovery for his injuries rather than having a jury consider the injuries according to the totality of the circumstances. Finally, the court addressed two motions in limine filed by the defendants, holding that one was premature, but granting the motion to strike Williams’ expert witness, Dennis Howard. The court found that the trier of fact could understand the circumstances of Williams’ two accidents based on their own experiences. (USDC EDLA, December 28, 2011) 2011 U.S. Dist. LEXIS 148932
And on the Admiralty front . . .
QUESTIONS OF FACT AS TO WHETHER SEAMAN DESERTED HIS VESSEL (CONT.)
ATLANTIC SOUNDING COMPANY, INC. V. VICKERS, ET AL.
Jimmie Vickers was a dredge tender operator for Atlantic Sounding Company, Inc., when he allegedly sustained a shoulder injury by falling against the console or steering wheel (depending upon which version of his story you want to believe) of the boat he was operating. After Vickers deserted his vessel, avoided the post-accident substance testing, and Atlantic Sounding completed its investigation, the employer filed a declaratory judgment action, asking the court to determine whether Vickers was injured as he claimed, whether Vickers reached maximum medical improvement, whether Vickers willfully deserted his vessel without a justifiable reason, and whether he was not entitled to maintenance and cure under admiralty law. Vickers filed his Answer and asserted a Counterclaim for Jones Act negligence, unseaworthiness, and punitive damages for Atlantic’s Sounding’s failure to pay maintenance and cure. Vickers then moved for partial summary judgment on the grounds that there are no material facts in dispute to contradict his status as a Jones Act seaman. Thus, as a matter of law, he contended that he was entitled to maintenance and cure for the injuries he allegedly suffered while operating the tender boat for Atlantic Sounding. The court concluded that material fact questions remained as to whether Vickers was a Jones Act seaman at the relevant times and whether Atlantic Sounding properly terminated maintenance and cure payments to Vickers following the accident and denied summary judgment. [see July 2010 Longshore Update] Prior to his bench trial, counsel for Vickers withdrew and Vickers, proceeding pro se, moved to dismiss his Jones Act negligence and unseaworthiness claims. Vickers retained his claim for maintenance and cure and his request for sanctions against Atlantic Sounding. At trial, the court found that Atlantic Sounding had paid Vickers maintenance and cure up until the point when Vickers attained maximum cure. The court also found the Vickers’ failure to complete prescribed physical therapy amounted to willful misconduct, constituting an abandonment of treatment, precluding any further maintenance and cure. The court also found the Vicker’s failed to accurately disclosed his medical history, an act which could itself be a bar to maintenance and cure. The court held that the facts and law supported the conclusion that Atlantic Sounding was entitled to judgment as a matter of law. Atlantic Sounding’s motion to dismiss Vickers’ counterclaim for maintenance, cure and sanctions was granted [see March 2011 Longshore Update]. Vickers appealed maintaining that he was employed by Weeks Marine, Inc., Atlantic’s parent company, contending that Atlantic had no standing to bring its original declaratory judgment action. The appellate court affirmed the district court’s finding that Vickers was working for Atlantic at the time of his accident and injury, because it was supported by the evidence introduced at trial and was not clearly erroneous. The appellate court also held that, since Vickers made no argument on appeal with respect to the counter claims he had filed against Atlantic, he had abandoned his counterclaims on appeal. The district court’s judgment was affirmed in all respect. (5th Cir, December 19, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 25339
Update Note: Congratulations to Richard Salloum, of Franke & Salloum in Gulfport, MS on getting an excellent defense verdict affirmed on appeal. Most of my readers know how difficult it can be to get a total defense verdict when you are dealing with a pro se claimant. Only Richard Salloum, with his charismatic demeanor and excellent litigation skills, pulls off a coup like this one.Thanks for the Christmas present, Richard.
IF YOU ARE GOING TO LIE, YOU NEED TO REMEMBER YOUR LIES
BROWN V. OIL STATES SKAGIT SMATCO, ET AL.
Nickey Brown, a former employee of Oil States Skagit Smatco, L.L.C., brought a lawsuit against Oil States under Title VII, alleging claims of racial harassment and constructive discharge. In a deposition for his discrimination case, Brown testified that he quit his job at Oil States solely because of racial harassment. However, four months earlier, in a deposition for a personal injury lawsuit, Brown testified that he left his job at Oil States solely because of back pain related to a car accident. Oil States discovered the contradictory deposition testimony and filed a motion for sanctions, seeking dismissal of both of Brown’s claims. The district court found that Brown committed perjury and granted Oil States’ motion for sanctions, dismissing Brown’s complaint with prejudice. Apart from recommending the dismissal of Brown’s complaint, the court also issued a sanction order against Brown’s attorney, Courtney Wilson, finding that Wilson violated Rules 2.1 and 3.2 of the Rules of Professional Conduct for his conduct at a settlement conference. In response to the sanction order, Wilson did not object to the sanction order itself but instead filed a motion for recusal of the magistrate judge. Brown appealed the district court’s dismissal of his complaint, arguing that a less severe sanction was more appropriate and that the district court should have held an evidentiary hearing to allow Brown to explain his conflicting testimony. Brown’s lawyer, who was separately sanctioned, appealed the denial of his motion for recusal of the magistrate judge. The appellate court initially addressed the issue of whether Brown’s conflicting testimony constituted contumacious conduct to justify the dismissal of his complaint. The court noted that, before the start of his two depositions, Brown took an oath to tell the truth. As the district court correctly observed, “This [oath] is not trivial. The proper administration of justice depends on people testifying truthfully under oath.”The appellate court agreed with the district court’s determination that Brown defied this oath and committed perjury. Through his perjured testimony, Brown committed fraud upon the court, and this blatant misconduct constituted contumacious conduct. The district court did consider several other lesser sanctions, but concluded that these sanctions would not be appropriate to remedy Brown’s misconduct. After analyzing the reasoning in the district court’s opinion, the appellate court rejected Brown’s contention that the district court erred by failing to consider lesser sanctions and to impose the least onerous sanction appropriate. The district court did consider lesser sanctions and explicitly found that dismissal of the complaint in its entirety was the only effective sanction. After reviewing the record, the appellate court concluded that the district court did not abuse its discretion in deciding to dismiss Brown’s complaint with prejudice. Brown plainly committed perjury, a serious offense that constitutes a severe affront to the courts and thwarted the administration of justice. The appellate court found Brown’s argument that the district court failed to hold a hearing was meritless. Finally, the appellate court held that the court did not abuse its discretion in denying Wilson’s motion for recusal of the magistrate judge. The court affirmed the district court’s dismissal of Brown’s complaint with prejudice and the district court’s order denying Wilson’s motion for recusal of the magistrate judge. (5th Cir, December 6, 2011) 2011 U.S. App. LEXIS 24231
Updater Note: On December 27, 2011, the 5th Circuit released a revised opinion in this case; however, the outcome remained the same.
I ONLY SMOKED MARIJUANA AFTER THE ACCIDENT TO RELIEVE MY PAIN (CONT.)
LEDET V. SMITH MARINE TOWING CORPORATION
Chad Ledet brought suit against his employer, Smith Marine Towing Corp., as a result of an alleged back injury he sustained when he was struck by a towline. The sea-going tug Ledet was assigned to, was towing an unloaded offshore deck barge equipped with its own towing equipment, or "chain bridle," which consisted of two chains attached to its front corners connected by a "fishplate" and a pendant wire that extended from the fishplate to the tug. The tug captain conducted a joint safety analysis (JSA), during which the crew discussed the method for releasing the barge and its towing equipment. Ledet claimed that he proposed an allegedly safer method for releasing the towing gear at the JSA. The captain allegedly rejected Ledet's alternate proposal because his method would take less time. At trial, the captain testified that Ledet initially tied the line from the starboard side and was struck as he walked away. Ledet maintained that he followed the captain’s orders, but when he reached the starboard grating, the vessel dipped in the trough of a wave, and the pendant wire came untied and struck him, throwing him against the vessel's bulwarks, and knocking him unconscious. Ledet claimed to have sustained a compression fracture to his spine. Following a bench trial the court concluded that the tug captain was negligent in a number of ways and unreasonably put the crew in harm's way. The court rejected Smith Marine’s assertion that Ledet was contributorily negligent in approaching the scene from the starboard side of the vessel. The court rejected Smith Marine's suggestion that Ledet was impaired by drug use at the time of the accident. Instead, the court credited Ledet's testimony that he smoked marijuana only after the accident in order to alleviate his pain. The court found that Ledet had sustained damages, totaling $1,894,728.39, which included $1,300,000.00 for pain and suffering [see May 2011 Longshore Update]. Smith Marine timely appealed, seeking remittitur and review of
the district court’s finding that Ledet was not contributorily negligent. Smith Marine asserted that Ledet was negligent because he knew that Captain Martin’s plan created a pressure zone and that when he stepped forward beyond the H-beams he would be in the pressure zone. The appellate court rejected this argument, noting that because the district court found that Ledet was following orders, Smith Marine’s argument about Ledet’s own negligence was foreclosed by Williams v. Brasea, Inc., which held that a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger. The appellate court found no clear error in the district court’s determination that Ledet was not negligent. Smith Marine further urged error based on the district court’s award of $1.3 million in damages for past and future pain and suffering. Both Smith Marine and Ledet admitted that there were relatively few cases from Louisiana involving injuries to the lower thoracic and upper lumbar spine to use as comparitors for the maximum recovery rule. Ledet did point the appellate court to two cases that, although distinguishable, had similar pain and suffering awards. Since Smith Marine provided no other basis to upset the district court’s award, the appellate court found no clear error in the district court’s award and affirmed it. (5th Cir, December 21, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 25506
Updater Note: Well, I guess the 5th Circuit told that Longshore Updater what it thought of his opinion that Judge Vance erred by awarding $1,300,000.00 for pain and suffering. So its Merry Christmas Mr. Ledet, and we’ll ignore the “maximum recovery rule” here. One can only hope that the U.S. Coast Guard pulled Mr. Ledet’s license, for his admitted use of marijuana to “ease his pain.”
NO INDEPENDENT BASIS FOR ADMIRALTY JURISDICTION UNDER LIMITATION ACT
MLC FISHING, INC. V VELEZ
MLC Fishing, Inc. owns a fishing vessel which, at all relevant times, was docked. MLC initiated this limitation proceeding following an accident that took place when Julio Angel Velez, intending to go fishing as a passenger aboard the vessel, slipped and fell on a ramp leading from the marina to a floating dock that passengers were required to traverse in order to access the vessel. The district court dismissed MLC’s limitation action for want of subject matter jurisdiction. MLC appealed, arguing that the Limitation Act provides an independent basis for federal jurisdiction over this action. The appellate court held that Velez's accident did not occur on or over navigable waters and so the action fell outside the traditional scope of federal admiralty jurisdiction. In addition, the court held, as a matter of first impression for this Circuit, that the Limitation Act does not provide an independent basis for admiralty jurisdiction for petitions that arise from incidents not occurring on or over navigable waters. Accordingly, the judgment of the district court was affirmed. (2nd Cir, December 15, 2011) 2011 U.S. App. LEXIS 24808
DAMAGES LIMITED TO FAIR MARKET VALUE OF TOTAL CONSTRUCTIVE LOSS
F.C. WHEAT MARITIME CORPORATION, ET AL. V. UNITED STATES OF AMERICA
This appeal arose out of a case involving an allision between a U.S. Army Corps of Engineers (USACE) vessel and a private yacht owned by F.C. Wheat Maritime Corp. The Marquessa measured 70' from bow to transom, with an additional four-foot swim platform extending beyond the transom. Wheat Maritime purchased the Marquessa in 1998 for $875,000 and made numerous modifications. A USACE vessel allided with the Marquessa, which was docked at a pier. The allision occurred because the USACE vessel's captain fell asleep at the helm. The Marquessa was damaged significantly. Wheat Maritime brought suit against the United States under the Public Vessels Act and the Suits in Admiralty Act. The case proceeded to a bench trial in the district court, resulting in a damages judgment for Wheat Maritime, who wound up appealing the judgment, arguing it was infirm in various respects. Wheat Maritime argued that they were entitled to $1,117,859.67, relying upon an estimate from the shipyard for $784,000 in actual repair costs and the additional $333,859.67 was necessary to account for other related expenses. The district court entered judgment for Wheat Maritime, finding that they were entitled to $440,000, the value of the vessel at the time of the allision. The appellate court affirmed based upon the longstanding rule that if the cost of repairing a vessel exceeds her pre-casualty fair market value, the limit of compensation is the vessel's fair market value at the time of collision. On the record before it, the appellate court also declined to disturb the district court's well-supported credibility determination regarding the fair market value of the vessel. The appellate court held that the district court reasonably credited expert testimony establishing a market value for the Marquessa. The judgment of the district court was affirmed. (4th Cir, December 14, 2011) 2011 U.S. App. LEXIS 24731
LIABILITY WAIVER RENDERED VOID BY 46 U.S.C. §30509
JOHNSON V. ROYAL CARIBBEAN CRUISES, LTD.
Charlene I. Johnson was a passenger on a cruise ship owned by Royal Caribbean Cruise, Ltd. Before purchasing a ticket to participate in an on board attraction, Johnson was instructed to sign her name to an electronic waiver. When she signed her name to the waiver, Johnson agreed to release Royal and its employees from actions arising from any accident or injury resulting from her participation in any or all of the shipboard activities she selected. While receiving instruction for body boarding, from an instructor employed by Royal, the instructor released the board and Johnson fell off the board and suffered a fractured ankle. The maneuver attempted by the instructor was in violation of Royal's safety guidelines for the body board attraction. After Johnson filed a complaint alleging injury due to Royal's negligence, Royal moved for summary judgment, arguing that the waiver precluded Johnson from recovering for her alleged injuries. Johnson filed a cross-motion for summary judgment arguing the waiver was rendered void by 46 U.S.C. §30509. The district court granted Royal's summary judgment motion and denied Johnson's, finding that, even if general maritime law was applicable, 46 U.S.C. §30509 was inapplicable, and the waiver was still enforceable. Johnson appealed the district court's grant of summary judgment in favor Royal, arguing that general maritime law applied and the liability waiver she signed was rendered void by 46 U.S.C. §30509. The appellate court initially noted that general maritime law was applicable and the waiver at issue would only be enforceable if it did not run afoul of 46 U.S.C. §30509, which prohibits “the owner . . . or agent of a vessel transporting passengers between a port in the United States and a port in a foreign country” from including in a “contract a provision limiting the liability of the owner . . . or agent for personal injury or death caused by the negligence or fault of the owner or the owner's employees or agents.” The appellate court found that the waiver at issue was clearly a contract with a provision that limited the liability of Royal. The court observed that the statute contains no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found—whether on the back of a ticket or in a separate, signed, electronic document as here. The appellate court concluded that the district court failed to look to the plain and unambiguous meaning of the language of the statute and apply it to Johnson’s case. Had the district court done so, it would have been clear that the statute most certainly applies, and Johnson’s waiver was rendered void by 46 U.S.C. §30509. The appellate court reversed the judgment of the district court and remanded the case for further proceedings consistent with this opinion. (11th Cir, December 20, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 25240
JALDHI ALSO PRECLUDES ATTACHMENT OF FUNDS IN A CRIS ACCOUNT
INDIA STEAMSHIP COMPANY LIMITED V. KOBIL PETROLEUM LIMITED
India Steamship Company, Ltd. appealed a district court order vacating the attachment, pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B, of a check issued by the district court clerk made payable to Kobil Petroleum Limited. India Steamship did not contest that the electronic funds transfers (EFT) were transferred from the bank into the district court's court registry investment system (CRIS) solely as a result of the order of attachment, which the district court subsequently vacated. Nor was there any dispute that the check issued from the CRIS represented the proceeds of EFTs now deemed to be beyond the reach of the district court. The appellate court ruled that wrongfully attached electronic fund transfers (EFTs) do not become attachable when a bank places those funds in a suspense account. The court found that India Steamship had failed to identify any reason why the jurisdictional defect that rendered those EFTs unattachable under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B would not also render unattachable the same funds in the CRIS. No alchemy by the bank could transform EFTs that could not be attached into property of Kobil that could be attached. Accordingly, the attachment of the CRIS check was no more lawful than was the attachment of the EFTs. Further, whether Fed. R. Civ. P. 62(a) applied to stay the execution of the release order, had nothing to do with whether the CRIS check was properly subject to attachment. The order of the district court was affirmed. (2nd Cir, December 13, 2011) 2011 U.S. App. LEXIS 24585
BERRIGAN REFUSES TO FOLLOW LEMELLE’S LEAD ON RESTITUTION CLAIM
DOLMO V. GALLIANO TUGS, INC., ET AL
After Celso Dolmo sued his former employer, Galiano Tugs, Inc., under the Jones Act and general maritime law for injuries he allegedly suffered while working for Galiano. A compulsory counterclaim was filed by Galiano, asserting that Dolmo’s accident was "fabricated" and seeking the recovery of costs and attorney's fees in excess of $225,000.00, for having to needlessly defend themselves against fraudulent, groundless litigation, together with appropriate general damages and punitive damages. Dolmo moved to dismiss Galiano’s counterclaim pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Galiano’s claims were "facially invalid" based on a lack of evidence. Galiano countered that it has no legal liability at all to Dolmo under the Jones Act or general maritime law because the accident did not occur, which prompted its "defenses" including fraud and the McCorpen defense. Galiano also argued that it is entitled to damages from Dolmo for fraud and misrepresentation, based on La. Civ. Code arts. 2315 and 1953. In addressing the legal issue, of whether or not Galiano could counter-claim against the seaman plaintiff for fraud and misrepresentation and recover as damages attorney's fees and costs attendant to their legal representation, the court noted that its “research” had not uncovered a case extending the McCorpen defense into such an affirmative counterclaim or otherwise recognizing the viability of such a claim. While acknowledging Judge Lemelle’s recent ruling allowing such a counterclaim in Boudreaux v. Transocean Deepwater, Inc. [see November 2011 Longshore Update], Judge Berrigan nevertheless expressed concern over the lack of authority that a cause of action exists for an employer to claim restitution of maintenance and cure payments from a seaman. Instead, the court found that the threat of being sued for fraud in response to a seaman's personal injury claim would seriously undercut the historical rationale and the very deference that admiralty gives its wards of the court. The court also expressed its concern that recognition of such a cause of action would cause attorneys to refuse to represent injured seamen. The court also expressed its unwillingness to be the first to subject a jury to Galiano’s prayer for the recovery of the attorney's fees and costs expended in association with the defense of Dolmo’s lawsuit, as there was no legal authority, meaningful legal discussion or other interest in analyzing the issue. The court did note that Judge Lemelle had certified his ruling in Boudreaux to the Fifth Circuit, on joint motion of the parties. Considering that the Boudreaux issue soon will be presented to the Fifth Circuit, the underlying relatedness of the issue presented in that case, and that common counsel is shared by the plaintiffs in both cases, Judge Berrigan noted that certification under Rule 54(b) would be especially appropriate on Galiano’s counterclaim. The court granted Dolmo’s motion to dismiss Galiano’s counterclaim with prejudice under Fed. R. Civ. P. 54(b). (USDC EDLA, December 28, 2011) 2011 U.S. Dist. LEXIS 148921
Updater Note: The rational that Ginny used to support her decision here is just plain scary - wards of the court; attorneys won’t represent seaman; I don’t want to be first. What is the alternative, Judge Berrigan? Do we just continue to countenance fraudulent claims, with no recourse for the employers that are preyed upon by maritime shylocks? It would have been nice to see you exert the same backbone that Judge Lemelle exhibited in Boudreaux, instead of just leaving the issue for the 5th Circuit and driving up litigation costs. Believe it or not, some of your “wards” are outright frauds.
TWICE PERMANENTLY DISABLED? WHY BOTHER DOING AN FCE?
COOK V. BAYOU TUGS, INC.
Steven Earnest Cook filed his personal injury lawsuit against Bayou Tugs Inc., pursuant to the Jones Act, alleging he was a seaman and member of the crew of a vessel owned and operated by Bayou Tugs. Cook claimed that his vessel was hit by another vessel that was being moved by another employee, and the impact caused a refrigerator to fall on him, pinning him against the cabinet counter top and the refrigerator. As a result, Cook allegedly sustained injuries to his right knee, which eventually required surgery. Cook voluntarily underwent an independent medical examination and the examiner concluded that Cook had obtained maximum medical improvement, but also found that Cook could not flex his knee more than 90 degrees and would be restricted from climbing steep narrow steps, one of the requirements of a tugboat Captain. Bayou Tugs asked its medical consultant “whether a functional capacity evaluation would aid in determining Plaintiff's ability to return to work as a tugboat captain.” The examiner replied in the affirmative, but expressed concern about the validity of the test and indicated that any FCE would have to be ordered by the treating physician. Bayou Tugs moved to compel a Functional Capacity Evaluation, arguing that Cook had claimed that as a result of his injury and subsequent left knee surgery, he could not return to work as a tugboat captain. Defendant further argues that an FCE was necessary to assist the jury. In opposition, Cook argued that Bayou Tugs was not entitled to an FCE because Cook voluntarily attended an IME, conducted by Bayou Tugs’ independent medical examiner, who did not indicate that an FCE was necessary. Cook further argued that both Cook’s treating physician and Bayou Tug’s independent medical examiner are in agreement that Cook is physically restricted from performing the tasks of a tugboat captain. Bayou Tugs responded, arguing that an FCE was warranted because this was the second time that Cook had claimed that he could not return to work as a captain, noting that in connection with a previous injury to the same knee, Cook had testified that he was unable to return to work as a result of the injury. Despite this testimony, Cook returned to work and earned his captain's license, and was eventually hired by Bayou Tugs. The court initially focused on the fact that both Bayou Tugs’ independent medical examiner and Cook’s treating physician agreed that Cook cannot perform the physical requirements of a tugboat captain. The court next observed that one of the purposes of FRCP 35 is to level the playing field when a party's physical or mental capacity to engage in gainful employment is at issue. The court found that, in this case, there was playing field to level. None of the circumstances to justify a second examination of Cook were present; thus, Bayou Tugs had not established a stronger showing of necessity for an FCE. Finally, the court was not persuaded by Bayou Tugs’ argument that an FCE is warranted, because this is the second time that Cook had testified that he cannot return to work as a result of an injury to his knee, because Bayou Tugs had failed to provide the court with any medical testimony regarding Cook’s previous case. The court concluded that Bayou Tugs had not established good cause for an FCE, and thus has not met part two of the two-part test for a Rule 35 examination. The motion to compel an FCE was denied. (USDC EDLA, November 29, 2011) 2011 U.S. Dist. LEXIS 136841
NO SUMMARY JUDGMENT, BUT YOU MAY WANT TO SETTLE THIS ONE
LANDRY V. CHET MORRISON CONTRACTORS, LLC, ET AL.
Jacob Landry was a seaman assigned to a pipelay barge, owned and operated by Chet Morrison Contractors, LLC (CMC). His job involved pulling a lever to allow pipes to roll on to a welding rack, covering the pipe so other workers could weld it, and walking back and forth between ends of the rack of pipes. Landry was allegedly injured when slipped and fell on an empty 20-ounce water bottle which was on the floor of the workspace. There is no indication that there was water on the floor or that there were any other problems with traction. Landry sued CMC, pursuant to the Jones Act and general maritime law, alleging that the water bottle was present because of CMC’s negligence or that it was an unseaworthy condition of the barge. CMC moved for partial summary judgment on Landry’s claims of Jones Act negligence and unseaworthiness, contending that at the time of the incident, Landry was engaged in an easy job that simply involved walking, pulling a lever, and covering pipe. CMC argued that slipping on an open and obvious water bottle was entirely the result of Landry negligence and failure to look where he was walking, and that the bottle was not an unseaworthy condition. The court initially noted that the record was devoid of evidence of where the bottle came from. CMC argued that Landry’s deposition established that he was adequately trained to look where he was stepping and that the sole cause of the accident was Landry’s failure to look where he was going. The court concluded that summary judgment was inappropriate, as there were genuine factual disputes as to the extent to which Landry or his co-worker were negligent in failing to see the water bottle on the deck of the barge, and CMC may be liable if the co-worker was negligent. Nonetheless, the court observed that, although Landry survived summary judgment, he may face a significant hurdle at trial in avoiding a finding of his own comparative negligence at a high, if not fatal, percentage. The court also concluded that the loose water bottle could have been an unseaworthy condition depending on how long it remained on the deck, and whether it made the vessel unseaworthy was a question for the trier of fact. Here again, the court noted that at trial Landry would face significant and potentially insurmountable issues of comparative negligence. CMC’s motion for partial summary judgment was denied. (USDC EDLA, December 9, 2011) 2011 U.S. Dist. LEXIS 142035
SOME CLAIMANTS ARE JUST PLAIN GREEDY
DELANCY V. U.S. SEAFOODS, LLC. ET AL.
Donald Delancy brought a seaman's injury action pursuant to the Jones Act and general maritime law, seeking to recover damages for a dental injury he allegedly sustained while working aboard a fishing vessel, together with maintenance and cure. Delancy’s tooth # 25 was allegedly fractured when he was hit in the mouth by a wrench that was dropped by another crew member during a fall. The parties cross-moved for summary judgment, U.S. Seafoods asking that liability, if any, be limited to a single tooth, and Delancy asking for summary judgment as to liability under the Jones Act and general maritime law. The court granted U.S. Seafoods’ motion for summary judgment, limiting liability to damages directly attributable to injury and loss of tooth # 25, but found that issues of fact regarding the accident that caused injury to Delancy’s tooth precluded summary on his Jones Act negligence and unseaworthiness claims, and denied Delancy’s motion. The matter was then set for trial, and the parties agreed to try the issues to the bench on written submissions rather than live testimony. U.S. Seafoods admitted liability under the Jones Act for the purpose of the trial. Thus, the only issue remaining to be determined by the court was the amount of damages. Delancy requested $45,000 in damages; U.S. Seafoods contended that an amount between $1500 and $2500 was more appropriate. Although the court found Delancy’s allegations that he suffered extreme pain in his mouth after the injury was credible, it also noted that Delancy delayed as long as five weeks after returning home before seeking dental treatment. The court held that Delancy had not met his burden of proving, by a preponderance of the evidence, that his pain was extreme for a full month. Further, the court found the Delancy’s claim, that he continues to suffer pain at a level of 5 to 7 on a scale of 10, on a daily basis, was not credible in light of his failure to seek dental care for three years after his initial dental treatment. The court found that $2500 would reasonably and fairly compensate Delancy for the pain he experienced in the weeks following the injury to his mouth. (USDC WDWA, December 14, 2011) 2011 U.S. Dist. LEXIS 144033
PUNITIVE DAMAGES HELD NOT RECOVERABLE IN A MARITIME CONTRACT CASE
RYAN MARINE SERVICES, INC., ET AL V. HUDSON DRYDOCKS, INC., ET AL
Ryan Marine Services Inc. entered into a written time and materials contract with Hudson Drydocks Inc. to repair and overhaul a vessel, which was owned by Columbia Star Inc. and operated by Ryan. During the course of the repair work, the vessel caught fire. Ryan asserted that Hudson's unqualified personnel caused the fire. Additionally, Ryan contended that the cleanup and repair after the fire caused the vessel to be in drydock for an unreasonably extended period of time and that Hudson overcharged or misrepresented the nature of its services. Ryan and Columbia filed an action for breach of contract and fraud against Hudson, its subcontractor, and their insurers, which included a claim for punitive damages. Hudson moved for partial summary judgment, asserting that plaintiffs cannot recover on their punitive damages claim, arguing that under maritime law, punitive damages are unavailable in a purely contractual case. Ryan argued that absent statutory restrictions, the punitive damages remedy exists and should be applied in this case, relying on the opinion of the Supreme Court in Townsend. The court began its analysis by acknowledging that the Supreme Court recognized in Townsend, punitive damages have long been available at common law. However, that did not mean that punitive or exemplary damages are available in all cases under the common law. As the Fifth Circuit recognized in Guevara, punitive damages are generally unavailable for breach of contract. As of yet, the Fifth Circuit had not extended Townsend to contract claims. Similarly, the court noted it had been unable to locate an opinion from any other circuit addressing the scope of Townsend in a contract case. Therefore, the Court concluded that, generally, punitive or exemplary damages are not recoverable in contract cases. Punitive or exemplary damages are recoverable only if the conduct which constitutes the breach is also a tort for which punitive damages are recoverable. Hudson's motion for partial summary judgment was granted. (USDC WDLA, December 13, 2011) 2011 U.S. Dist. LEXIS 144036
DOCTORS WILL SAY ANYTHING THEY ARE PAID TO SAY-IT’S NOT EVIDENCE
LEAKE V. UNITED STATES OF AMERICA
Army Joe Leake worked aboard a U.S. Naval Ship as an able-bodied seaman and, during his last week of work, spent three hours painting the laundry room and four days painting a stairwell on the ship. A week later, Leake allegedly began feeling ill was admitted to a hospital and diagnosed with acute liver failure, which necessitated an immediate liver transplant. Leake claimed that his illness was the result of his work as a painter on the naval cargo ship and he sued the United States of America, under the Jones Act and general maritime law. Leake attempted to establish causation for his injuries through experts, who identified three chemical compounds found in the paints and thinners that could cause liver damage: methyl n-amyl ketone ("MAK"), n-butanol and psuedocumene and opined that Leake developed liver failure from his exposure to known hepatotoxins that were inhaled in high concentrations in enclosed spaces over a period of time. The United States moved exclude the reports and testimony of Leake’s causation experts, and for summary judgment on his claim. In reaching their conclusions, Leake’s experts primarily relied upon: (1) the temporal relationship between Leake’s exposure and his injury; (2) the "pattern of injury" to Leake’s liver, which, in their view, showed signs of an "immune-mediated" response; (3) a 1984 study which reported that the exposure of rats to radioactive labeled MAK caused the incorporation of the radioactivity into three unidentified liver proteins; (4) "precedent" describing the immune-mediated reaction that occurs following "halothane" exposure; and (5) a differential diagnosis, which is "a standard scientific technique which identifies the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. The United States asserted that these opinions should be excluded as unreliable, primarily because there is no scientific study that suggests MAK is capable of causing acute liver failure. Leake conceded that there were no published studies addressing an immune-mediated liver failure resulting from exposure to the organic solvents found in the paints and thinners, but argued that the lack of a published study directly addressing his situation should not preclude his experts from offering a reliable opinion on general causation, particularly considering the temporal analysis and differential diagnosis performed by his experts. The court observed that, although Leake's experts contended that there was a temporal relationship between Leake’s exposure and injury, they failed to point to any scientific evidence to suggest that the pattern or timing of his exposure was "sufficient" to "prime" him for an immune-mediated reaction and then facilitate such a reaction. The court found that the scientific evidence relied upon by Leake’s experts in support of their general causation opinion failed to pass muster under Heller and Daubert, even in light of their reliance upon temporal proximity and a differential diagnosis. Nor had they pointed to any scientific evidence or an example from their clinical experience to suggest MAK, like haltohane, was capable of giving rise to an immune-mediated response or liver failure. The court concluded that Leake’s experts failed to offer reliable opinions that would assist the trier of fact regarding the cause of Leake’s injury and granted the motion to exclude their opinions. Further, as the exclusion of this evidence precluded Leake from establishing causation, the court also granted the motions for summary judgment as to each of Leake’s claims. Leake’s case was dismissed with prejudice. (USDC EDPA, December 29, 2011) 2011 U.S. Dist. LEXIS 149634
IF YOU ARE GOING TO CHARTER SOMETHING, PUT IT IN WRITING
COLLETTI V. TIGER TUGZ, LLC, ET AL.
Keith Colletti, was employed by Tiger Tugz, LLC as a deckhand and was assigned by his employer to build a tow with six barges, owned by Mississippi Louisiana Dirt Co., LLC (MLDC), that Tiger Tugz was contracted to transport. Colletti and another deckhand began to prepare the barges for departure. Colletti assisted the other deckhand in starting a pump so that water could be removed from a hopper barge. When the pump started, Colletti was standing in front of the discharge nozzle. To avoid getting wet, he moved quickly out of the way but lost his balance. He reached for the wire handrail, but he alleged that the wire was not taut and failed to prevent him from falling into the hopper. Colletti claims that he was injured in the fall, and asserted claims against MLDC, Tiger Tugz, and others. MLDC moved for summary judgment in its favor with regard to Colletti's unseaworthiness and negligence claims. MLDC argues, first, that a seaman such as Colletti who is employed by and crewing a tug cannot assert an unseaworthiness cause of action against a barge owned by a non-employer. MLDC also argued that its bareboat charter of the barge to Cahaba Disaster Recovery, LLC, relieves MLDC of liability for the accident. MLDC asserted that the coaming was removed and replaced with the wire handrail after the barge was bareboat chartered to Cahaba, relieving MLDC of liability for Colletti's accident. Colletti, Cahaba, and Tiger Tugz opposed the motion, arguing that MLDC's motion is moot with regard to Colletti's unseaworthiness claim, which was eventually withdrawn as it pertained to MLDC, and arguing that because the hopper barge was not bareboat chartered to Cahaba, there was no basis for MLDC's motion for summary judgment on the negligence claim. The court found that MLDC had failed to satisfy its burden of establishing that there was a bareboat charter from MLDC to Cahaba. The conflicting testimony of the two corporate representatives on the characterization of the relationship between MLDC and Cahaba relating to the hopper barge created a genuine issue of material fact that precluded summary judgment in favor of MLDC. Additionally, the court found that there was a genuine issue of material fact concerning the modification of the barge. The court declined to infer the existence of a bareboat charter from the circumstances concerning the possession and use of the hopper barge. Accordingly, MLDC’s motion for summary judgment was denied. (USDC WDLA, December 16, 2011) 2011 U.S. Dist. LEXIS 145606
I THINK ITS COMPLICATED. I WANT THE EXPERTS IN
MARIN V. FALGOUT OFFSHORE, LLC
Mario Marin claimed that while he was employed by Falgout Offshore, LLC, working as a crew member of their vessel, he was required to manually pull and/or lift boxes containing gallon jugs of water out of side loaded containers. As a result, Marin alleges that he sustained serious permanent injury. Marin sued Falgout, alleging Jones Act negligence, unseaworthiness and entitlement to maintenance and cure. Falgout answered Marin’s Complaint denying any liability. Prior to trial, Falgout moved to exclude Marin’s proffered experts. Marin intended to call Robert E. Borison as a safety expert, who opined that Marin’s alleged injury was caused by the improper design of the grocery container which required an unsafe lifting position to unload it. Additionally, Marin intended to call Dr. Gerald S. George, Ph.D, to testify as an expert in biomechanics, who opined that lifting under the limitations imposed by the grocery container constituted a hazardous lifting condition and imposed a compressive spinal load sufficient to cause Marin’s lower back injury. Falgout moved to exclude both experts, arguing that their opinions are irrelevant and unreliable because they are based on assumptions contradicted by the testimony of fact witnesses. Falgout also argued that both experts offer common-sense opinions based on generalized knowledge that would not assist the trier of fact. The court found that Falgout’s criticism of Mr. Borison and Dr. George did not warrant their exclusion. Although Falgout argued that the opinions were based on assumptions not proven by the record, disputes as to the factual basis of an expert opinion go to the weight of that opinion, not its admissibility, and are ripe for cross-examination. With respect to whether the opinions would assist the trier of fact, the court found that this was more complicated than a simple lifting case, and held that the testimony of Mr. Borison and Dr. George may assist the court as trier of fact, and exclusion of their testimony was not appropriate. Falgout’s motions to exclude the experts was denied. (USDC EDLA, November 30, 2011) 2011 U.S. Dist. LEXIS 137743
ARBITRATION CLAUSE ENFORCED AGAIN BASED ON LINDO
LAZARUS, V. PRINCESS CRUISE LINES, LTD.
Simone Lazarus is a citizen of South Africa who allegedly sustained injuries while employed on the vessel of Princess Cruise Lines, Ltd. This case involves the employment contract between Lazarus and Princess, that contained a foreign arbitration clause. Lazarus filed a Complaint against Princess in Florida state court, alleging negligence under the Jones Act, unseaworthiness of the ship, failure to provide maintenance and cure, failure to treat, and wages and penalties under the Seaman's Wage Act. Princess filed a Notice of Removal and moved to compel arbitration under Article 14 of Lazarus’s employment contract. Lazarus argued that the arbitration provision was unenforceable for public policy reasons. In light of Lindo, the court held that the public policy defense may be raised only at the arbitral award-enforcement stage. Consequently, because the four jurisdictional prerequisites for compelling arbitration had been satisfied, and because Lazarus did not argue that the arbitration provision contained in the employment contract was null and void, inoperative, or incapable of being performed, the court found it appropriate to grant Princess’s Motion to Compel Arbitration. (USDC SDFL, December 6, 2011) 2011 U.S. Dist. LEXIS 140123
Quotes of the Month . . . “Challenges make you discover things about yourself that you never really knew. They're what make the instrument stretch -- what make you go beyond the norm.”--Cicely Tyson
“If there is no struggle, there is no progress.”--Frederick Douglass
“How easy it is to judge rightly after one sees what evil comes from judging wrongly!”--Elizabeth Gaskell
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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