October 2017
Notes From Your Updater: Looking for a position handling Longshore claims? Ports America is looking to fill a Claims Adjuster II position in its New Orleans, LA office at the Nashville Avenue wharf. The ideal candidate will have a 4-year college degree or the relevant experience equivalent, a claims office background of 3+ years, and 5+ years of Longshore or maritime claims administration or the equivalent in the insurance industry. Applicants may use the following link to begin the application process or contact John Adams at John.Adams@portsamerica.com.
Effective October 1, 2017, the new NAWWis $735.87, a 2.46% increase over last year. This means that the new maximum weekly compensation rate under the Longshore Act is $1,471.78 (twice the NAWW), and the new minimum weekly compensation rate is $367.94 (one-half the NAWW). Additional information can be found at the Department Of Labor website.
The Chief Administrative Law Judge has issued Administrative Orders 2017-MIS-00007& 2017-MIS-00004 postponing OALJ hearings, and tolling hearing related deadlines, for cases impacted by Hurricanes Irma and Harvey.
On September 7, 2017, a petition for certiorari was filed with the U.S. Supreme Court, in the case of Touchet v. Estis Well Service, LLC, et al.[a.k.a. McBride] Docket No. 17-346. The questions presented are, “whether seamen may recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel, as held by the Washington Supreme Court and the Ninth and Eleventh Circuits, or whether punitive damages are categorically unavailable in an action for unseaworthiness, as held by the Fifth, First, and Sixth Circuits and the Texas Supreme Court. Whether the Jones Act, 46 U.S.C. § 30104, "prohibits the recovery of punitive damages in actions under that statute," a question explicitly left open by this Court in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424 n.12 (2009).”
On September 22, 2017, a petition for a writ of certiorari was filed with the U.S. Supreme Court in the case of American Triumph, LLC, et al. v. Tabingo, Docket No. 17-449 [see April 2017 Longshore Update]. The question presented is, “Whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.”
BIG JURY AWARD AFFIRMED IN §905(B) ACTION
MURRAY V. SOUTHERN ROUTE MARITIME SA, ET AL.
Roger Murray, a longshore worker, was working aboard a vessel, owned by Southern Route Maritime SA and Synergy Maritime Pvt. Ltd., when he allegedly experienced an electrical shock when a piece of rebar he was holding came into contact with a floodlight provided by the vessel owner. Murray sued under §905(b) of the LHWCA, alleging that the vessel owner had been negligent in turning over the ship with a faulty floodlight. A jury awarded Murray over $3.3 million for his injuries and awarded his wife $270,000 for loss of consortium. The district court denied the vessel owner's motions for judgment as a matter of law, new trial, and remittitur. Unwilling to go down with its ship, the vessel owner appealed, asserting a flawed jury instruction and two errors related to the admission of testimony by Murray's experts. Notwithstanding a strong dissent regarding the admissibility of expert testimony, the majority of the panel held that the district court properly instructed the jury that the vessel owner owed a duty to Murray as a longshore worker to turn over the ship and its equipment in a reasonably safe condition, which necessarily required the vessel owner to take reasonable steps to inspect the ship and equipment before turnover. The majority also held that the district court did not abuse its discretion in allowing Murray’s key scientific expert to describe his theory of electrical injury because the court adequately assessed the reliability of his theory and fulfilled its gatekeeping function under Federal Rule of Evidence 702 and Daubert. The district court also did not err in admitting the medical experts' testimony. The majority affirmed the district court's in favor of Murray. (9thCir, August 31, 2017) 2017 U.S. App. LEXIS 16760
LIMITS OF OCSLA JURISDICTION
UNITED STATES V. MOSS
A fatal welding accident occurred on an offshore oil platform in the Gulf of Mexico. Three years after that incident, the government indicted the owner and operator of the platform and several oil platform contractors, charging criminal violations of the Outer Continental Shelf Lands Act (OCSLA) and the Clean Water Act, as well as involuntary manslaughter. The defendants moved to dismiss. The district court left all of the charges in place except for the OCSLA charges against the contractor defendants, appellees Grand Isle Shipyards, Inc., Don Moss, Christopher Srubar, and Curtis Dantin, which it dismissed for failure to state an offense. The government timely appealed. The appellate court found that the district court properly dismissed the criminal violations brought against the oil platform contractors under regulations adopted pursuant to the OCSLA given the consistency of over 60 years' prior administrative practice in eschewing direct regulatory control over contractors, subcontractors, and individual employees. Because the OCLSA regulations did not apply to these appellees, the judgment of the district court was affirmed. (5th Cir, September 27, 2017) 2017 U.S. App. LEXIS 18665
SETTLEMENT OF LHWCA CLAIM DOES NOT BAR FILING OF JONES ACT CLAIM
GIBSON V. AMERICAN CONSTRUCTION COMPANY, INC.
American Construction Company, Inc. employed Gibson as a mechanic in its marine construction department. Gibson fell through a hatch while working on a crane barge moored at American's dock. He was treated for head, back, neck, arm, and leg injuries. Gibson continued to receive medical treatment over the next nine months and received medical payments from American. Gibson quit working and filed a claim under the LHWCA. American paid Gibson disability and medical benefits under the LHWCA from May 2014 to December 2015. In December 2015, the parties agreed to settle the LHWCA claim, signed a settlement agreement, and submitted an application to the district director for approval. The parties agreed that Gibson contended that he suffered a work related injury, the claim was subject to the LHWCA, that a speedy resolution was in his best interest, and that by paying the agreed amount, American discharged its liability for the LHWCA claim. The district director approved the agreed settlement and signed a final compensation order, closing Gibson's LHWCA claim. In March 2016, Gibson filed a Jones Act complaint against American for negligence, unseaworthiness, and vessel owner negligence for his injuries, which had already been compensated under the LHWCA. In his complaint, he alleged that he was both a sea-based and land-based maritime worker. American filed a motion to dismiss based on failure to state a claim upon which relief can be granted and submitted declarations. American argued that the LHWCA compensation order precluded Gibson from bringing a Jones Act claim and asserted election of remedies, equitable estoppel, and collateral estoppel. Gibson responded that the compensation order did not resolve his maritime worker status because his status was never adjudicated in a formal hearing under the LHWCA. The superior court denied the motion to dismiss. American filed a motion for reconsideration, asserting the same arguments. The superior court granted American's motion for reconsideration and dismissed Gibson's Jones Act claims with prejudice. Gibson appealed, arguing that the trial court erred in dismissing his Jones Act claims because under Gizoni, the issue of his maritime worker status, non-seaman or seaman, was never adjudicated and the compensation order did not expressly resolve this issue under the LHWCA, any LHWCA recovery he has received will be credited to his employer if he is successful in his Jones Act claims, and election of remedies, equitable estoppel, and collateral estoppel did not apply to bar his Jones Act claims. The appellate court initially noted that the case presented an issue of first impression in Washington State - whether an injured maritime worker who accepts voluntary benefits and settles his claim under the LHWCA, when there is no adjudication of his status as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for personal injuries under the Jones Act. The appellate court held that, because Gibson's maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA, under Gizoni, Gibson's Jones Act claims were not barred, and election of remedies, equitable estoppel, and collateral estoppel did not apply. The appellate court reversed the superior court's summary judgment dismissal order of Gibson's Jones Act claims, and remanded for further proceedings consistent with this opinion. (Wash. App. Ct., September 26, 2017) 2017 Wash. App. LEXIS 2217
COURT FINDS COMPLAINT SORELY LACKING (CONT.)
SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD. V. DIGNITY HEALTH, ET AL.
Dwayne Washington was a longshoreman employee at the Port of Oakland working for Total Terminals International, Inc., when he allegedly suffered a work-related injury while operating a sidepick. Total Terminal began paying worker's compensation benefits Washington, who later underwent disc-replacement surgery at Dignity Health Hospital. Dr. David Cohen performed the surgery and Dr. Cohen, Dr. Clement Jones, and hospital staff performed the post-operative care. On the third post-operative day, Washington died. Signal Mutual Indemnity Association, Ltd. filed this lawsuit in federal court against Dignity Health St. Francis Memorial Hospital, Dr. Jones, and Dr. Cohen, alleging that preventable medical error was the cause of death and arguing it would not have been required to pay compensation to decedent's heirs, pursuant to the terms of the LHWCA, were it not for the negligence of the defendants. Defendants moved to dismiss the complaint under FRCP 12(b)(1), 12(b)(6), and 12(e). The court granted defendants' motion with leave to amend [see August 2016 Longshore Update]. Signal filed its first amended complaint, following the Court's order granting the motion to dismiss its original complaint. Signal alleged that, as a result of Washington's death, it became liable to pay death benefits under the LHWCA to his heirs, which Signal has paid and continues to pay, and that it also became obligated to pay funeral and medical expenses related to Washington's death and may be liable for other payments under the LHWCA. Signal argued that, but for defendants' negligence, it would not have been required to make such payments. The court found that Signal's negligence claim was barred because Signal lacked standing to bring a wrongful death claim. Additionally, Signal's negligence claim was barred by the applicable statute of limitations, which is one year. Thus, Signal's negligence claim failed on both standing and statute of limitations grounds. Signal's breach of contract claim failed on two independent grounds. First, Signal's allegations could not plausibly demonstrate the existence of a contract between Signal and the defendants regarding the medical care and treatment of Washington. Second, Signal's allegations could not plausibly show that such a contract included an implied warranty of workmanlike performance that defendants breached. Consequently, Signal's breach of contract claim failed. Signal's claim for implied contractual entity was premised on the existence of contracts between Signal and defendants. However, Signal failed to allege facts plausibly showing the existence of any contract between Signal and defendants, which was fatal to Signal's claim for implied equitable indemnity. Finally, the court found that Signal failed to state a claim for equitable indemnity. The court granted defendants' motions to dismiss without leave to amend. (USDC NDCA, September 21, 2017) 2017 U.S. Dist. LEXIS 154471
COURT REJECTS BERTRANDEXCEPTION FOR SEAMAN STATUS (CONT.)
LEBRUN V. BAKER HUGHES INC., ET AL.
Jonathan Lebrun was employed by Baker Hughes Oilfield Operations, Inc. as a field service specialist, whose job duties were to collect mud samples from shale shakers and deliver the mud samples to on-site data engineers and geologists for analysis. Baker Hughes assigned Lebrun to work a 28 day rotation aboard a drillship, owned and operated by Transocean Offshore Deepwater Drilling, Inc. Baker Hughes notified Lebrun he would spend at least two work shifts on the drillship, where he would also sleep and eat. However, after completion of his first rotation, Lebrun was terminated by Baker Hughes , due to a company-wide reduction in force necessitated by the severe downturn in the oil & gas exploration industry. Lebrun brought this suit to recover for back injuries he allegedly incurred during his assignment to the drillship. Lebrun asserted claims under the Jones Act and general maritime law for unseaworthiness and maintenance and cure. Both parties filed cross motions for summary judgment of the sole issue of whether Lebrun was a seaman for purposes of the Jones Act. The court previously found that Lebrun was not a Jones Act seaman as he did not demonstrate a connection to a vessel in navigation (or to an identifiable group of such vessels) that was substantial in terms of both its duration and its nature [see July 2016 Longshore Update]. In his second amended complaint, Lebrun alleged a claim for unseaworthiness as a Sieracki seaman as well as for negligence and gross negligence under the general maritime law. Alternatively, Lebrun alleged an action under the LHWCA and the general maritime law. Lebrun then moved for summary judgment on his claims for Sierackiseaman status, which defendants opposed, arguing that any such injury alleged by Lebrun would be covered under the LHWCA. The court noted that, in order to qualify as a Sieracki seaman, a plaintiff must show that he is doing a traditional seaman's work and incurring a seaman's hazard. Lebrun’s work as a sampler was not traditional seaman's work such that he incurred a seaman's hazard. Rather than performing traditional navigational chores and/or contributing to the function, mission, or maintenance of the vessel, Lebrun performed oilfield services that were developed on land and transferred to the sea when oil and gas was discovered beneath the sea floor. Based on the court's determination that Lebrun did not meet the standard required to be classified as a Sieracki seaman as well as the fact that the drillship was not located in foreign waters during the period Lebrun worked on board, the court will denied Lebrun’s motion for summary judgment. (USDC WDLA, September 18, 2017) 2017 U.S. Dist. LEXIS 151042
COURT FINDS RECORD WOULD NOT SUPPORT SUMMARY JUDGMENT (CONT.)
FETTER V. MAERSK LINE, LIMITED, ET AL.
Jason Fetter was allegedly injured while performing a maintenance project, in the engine room of a Maersk Line, Limited vessel, while it as in port. Because there were various maintenance projects going on that day, Maersk hired 3MC Mobile & Mechanical Repair LLC to directly supervise the day engineers' work. Following his alleged injury, Fetter filed suit in Texas state court and the suit was subsequently removed to the Southern District of Texas and transferred to New Jersey District Court. The complaint alleged that Fetter was injured as a result of negligence on the part of Maersk and 3MC, and both Maersk and 3MC filed cross-claims against each other for indemnity and contribution. Prior to the completion of expert discovery, Maersk moved for summary judgment on the issue of whether it was immune from liability under the LHWCA. Maersk's sought summary judgment that Fetter was its employee at the time of his injury, but was not a Jones Act seaman. Thus, Maersk maintained that the LHWCA provided Fetter's exclusive remedy and that his negligence action must be dismissed. The court found that the record before it was by no means definitive on the issue of Maersk's employer-employee relationship with Fetter, as it would need to be for a summary judgment ruling in Maersk's favor. The court found that Maersk was not entitled to judgment as a matter of law on this record, and its motion was denied [see January 2017 Longshore Update]. Maersk then moved for reconsideration of the court's decision ,denying its motion for summary judgment that it was immunized from liability on Fetter's negligence claims pursuant to the LHWCA. Maersk argued that the court's decision rested on a clear error of law, specifically that the court overlooked Third Circuit precedent applicable to employment status and misapplied the summary judgment standard. The court disagreed. The facts Maersk relied on, including how Fetter came to get the job, and which entity was paying him, must be evaluated alongside other evidence showing that when Fetter arrived at the ship, he reported to 3MC employee Higgs, who directed him to remove the stuck injector, and whose job it was to supervise him in the completion of the task that ultimately resulted in his injury. The court found that there was no clear error in its application of the summary judgment standard to Third Circuit precedent governing the issue of Fetter's employment status. Maersk was not entitled to judgment as a matter of law on the record, and its motion for reconsideration was denied. (USDC DNJ. September 27, 2017, UNPUBLISHED) 2017 U.S. Dist. LEXIS 158909
COURT LETS UNSEAWORTHINESS QUESTION GO TO THE JURY
RINEHART V. NATIONAL OILWELL VARCO L.P., ET AL.
Donald Rinehart, Jr. allegedly sustained injuries while he was employed as a seaman by Starfleet Marine Transportation Inc. aboard their vessel. Rinehart alleged that he was ordered by the vessel's captain to assist with loading pallets aboard a docked ship. National Oilwell Varco, L.P. (NOV) owned the mobile crane and hook used in loading the pallets and employed the crane operator. Rinehart claimed he was injured when a pallet fork slipped from the crane's hook onto the back of his head while loading pallets onto the vessel's deck. Rinehart was flown by helicopter for emergency medical treatment and has since undergone multiple complex surgical procedures with alleged residuals such as permanent scarring; severe headaches with substantial neurological deficits, including memory loss and a severely-diminished reading ability; and the inability to swallow normal food, relying on a feeding tube surgically-implanted into his stomach. Rinehart filed suit under the Jones Act and general maritime law. In response, Starfleet asserted a number of defenses, including that Rinehart’s injuries were caused by his own negligence or by third parties, that his claims are prescribed, and that Starfleet is entitled to limited liability pursuant to 46 U.S.C. § 30501, et seq. NOV also asserted a number of defenses, including that Rinehart’s injuries were caused by his own negligence or by third parties, that Rinehart failed to mitigate his damages, and that his claims are barred by prescription or by either the LHWCA or the Louisiana Workers' Compensation Act. Rinehart and Starfleet filed cross motions for summary judgment pertaining to the seaworthiness of vessel. Rinehart contended that the accident itself, or the alleged broken crane hooks, made the Starfleet vessel unseaworthy because the broken hooks allowed a 460-pound steel palette lifter to slip off and injure him. Starfleet asked the court to dismiss Rinehart’s unseaworthiness claim because the shore-based crane was owned and operated by a third party, NOV. The court found that both parties' arguments failed to satisfy summary judgment standard. Regarding Rinehart’s argument, the court noted that the accident itself did not establish a cause for unseaworthiness, as an isolated personal negligent act of the crew is not enough to render a ship unseaworthy. As for Starfleet’s point, the fact that the defective crane equipment did not belong to Starfleet also did not alter the fact that the vessel had become unseaworthy. Because the crane was used during loading and unloading operations, it was closely related and has a substantial relationship to a traditional maritime activity. Accordingly, the instant issue boiled down to questions of fact best left for the jury. Both motions for partial summary judgment were denied. (USDC EDLA, September 5, 2017) 2017 U.S. Dist. LEXIS 142941
ANOTHER REMOVAL ACTION BITES THE DUST
DELAGARZA V. TRAFIGURA TRADING LLC, ET AL.
Cesar Praxedis DeLaGarza worked as a marine terminal operator for Buckeye Partners, L.P. and claimed that he was injured while trying to remove a defective "belly cap" attached to a tank railcar containing the chemical petroleum naphtha. DeLaGarza sued multiple parties in state court, including Big West Oil, LLC, who removed the case to federal court on the basis of diversity jurisdiction. DeLaGarza moved to remand his case back to state court, arguing the case was improperly removed based on diversity. The court noted that, while it was undisputed that the amount in controversy met the requirement of § 1332(a), it was further undisputed that both DeLaGarza and defendant Buckeye Texas were Texas citizens for jurisdictional purposes. This lack of diversity ostensibly eliminated complete diversity, preventing removal to federal court. In removing the case, Big West asserted that because Buckeye Texas was improperly joined, its citizenship need not be considered and the case was therefore removable on the basis and that the remaining defendants were diverse. Big West's fraudulent joinder argument rested on giving dispositive force to Buckeye’s responsive pleading that it had no employees. Without employees, the argument concluded that Buckeye could not be held liable for claims sounding in respondeat superior, could not have attained "actual possession and/or control" of the rail car containing the allegedly defective belly cap; and could not have had notice of the belly cap's alleged condition. DeLaGarza thus had no hope of establishing a negligence claim against Buckeye, making it an improper party. The court disagreed, noting that it was well-established that a bare allegation in a defendant's pleading does not constitute proof of any fact, much less a fact that the plaintiff disputes. The court rejected Big West's argument that Buckeye’s pleading that it had no employees should be construed to eliminate DeLaGarza's claim against Buckeye. Even assuming for purposes of argument that Buckeye in fact had no employees, DeLaGarza alleged that he suffered his injuries as a result of negligence by, among others, "employees, agents, officers, representatives or servants of” Buckeye, a broader category than simply "employees." Because Big West failed to address liability based on the actions of these workers, its challenge was incomplete and failed to satisfy its removal burden to show no possibility of a claim against Buckeye. As another method for demonstrating improper joinder, Big West contended that DeLaGarza's claim against Buckeye was barred by the exclusive remedy provisions of §905(a) of the LHWCA and/or Texas Labor Code §408.001. DeLaGarza's pleading alleged that he filed a claim under the LHWCA, against non-party Buckeye Partners, L.P., which he identified as his employer. The caption of a deposition transcript attached to his motion for remand, however, named a different entity, Buckeye Ltd., as appearing in DeLaGarza's benefits matter.
Th court noted that nothing in the record explained the variance between the reference to Buckeye Partners in DeLaGarza's pleading, the appearance of Buckeye, Ltd. in the deposition transcript. Nevertheless, the court concluded that the record did not support a conclusion that DeLaGarza's claim was barred by either federal or state exclusive remedy provisions contained in workers' compensation statutes. For the foregoing reasons, the court concluded that Big West had not sustained its burden to demonstrate that DeLaGarza has no viable claim against Buckeye Texas and that Buckeye Texas was improperly joined. Consequently, removal based upon diversity jurisdiction was improper. DeLaGarza's motion to remand granted. (USDC SDTX, September 26, 2017)2017 U.S. Dist. LEXIS 157308
And on the Admiralty front . . .
PUBLIC VESSEL CAN’T BE SUED UNDER OPA
IRONSHORE SPECIALTY INSURANCE CO. V. UNITED STATES OF AMERICA, ET AL.
This case arose out of an incident involving a large military transport vessel that unexpectedly spilled over 11,000 gallons of fuel next to Boston Harbor. Ironshore Specialty Insurance Company, the entity that paid the clean-up costs, brought claims against American Overseas Marine Company, LLC (AMSEA) and the United States under the Oil Pollution Act of 1990 (OPA), general admiralty and maritime law. The United States and AMSEA each filed a motion to dismiss Ironshore's OPA claims under FRCP 12(b)(6). AMSEA also asked the district court to dismiss Ironshore's negligence claims against it. The district court granted both parties' motions to dismiss in full. The district court went further, however, and also dismissed sua sponte Ironshore's negligence claim against the United States, concluding that the OPA foreclosed the option of bringing any negligence claim relating to oil spills under general admiralty and maritime law. Ironshore timely appealed, asserting that the district court inappropriately considered documents outside the pleadings when it decided the defendants' motions to dismiss; and it erroneously dismissed each of Ironshore's OPA and negligence claims. On appeal, the appellate court found that the district court did not commit a reversible error by considering the contract between AMSEA and the Military Sealift Command. Because the vessel involved in the oil spill qualified as a public vessel under the OPA, it was exempt from liability under the OPA. The appellate court also found that the district court properly dismissed the insurer's OPA claims against the U.S. and the contractor. Because public vessels were outside the sweep of OPA liability, any preexisting admiralty and maritime law that applied to public vessels before the OPA's passage survived its enactment. Finally, the appellate court found that the district court erred in dismissing the insurer's negligence claims against the U.S. when it did so sua sponte. The contractor crewed the vessel as a U.S. agent. As such, the Suits in Admiralty Act's exclusivity provision prevented the insurer from advancing any claims against it. The district court’s judgment was affirmed in part, reversed and remanded in part. (1st Cir, September 15, 2017) 2017 U.S. App. LEXIS 17928
CROSBY PREVAILS ON PARTIAL SUMMARY JUDGMENT MOTION BEFORE FALLON
RANDLE V. CROSBY TUGS, LLC
David Randle was allegedly injured while employed by Crosby Tugs, LLC as a member of the crew of its vessel. Randle claimed he suffered a stroke, while working on board his assigned vessel. Ship personnel called 911 and Randle was evacuated from the vessel and brought to the emergency room at a local hospital. Randle claimed he suffered permanent disability as a result of the medical treatment he received at the hospital, that the vessel was unseaworthy and Crosby was negligent in failing to provide immediate proper medical treatment. As a result of Crosby’s alleged negligence and the unseaworthiness of the vessel, Randle filed suit under the Jones Act and general maritime law, claiming past, present, and future physical, mental, and emotional pain and suffering, medical expenses, loss of wages, fringe benefits, and wage earning capacity. Randle sought past, present, and future maintenance and cure benefits, and claimed punitive damages based on Crosby’s alleged failure to pay for medical treatment. Crosby moved for partial summary judgment, arguing that there is no evidence that it was negligent or that the vessel was unseaworthy. In addition to its summary judgment motion, Crosby sought to exclude or limit Randle’s experts. Further, Crosby argued that it was not vicariously liable for any alleged medical malpractice of emergency medical personnel who evacuated Randle from the vessel after the stroke. Crosby provided an expert report averring that Crosby’s crew responded promptly and immediately to Randle’s stroke and obtained medical help. The expert further opined that there was no treatment, regulation, or procedure that could prevent a stroke or lessen its affects before arrival of emergency medical personnel. Crosby argued that it could not be held vicariously liable for any alleged medical malpractice committed by the emergency medical responders or doctors who eventually treated Randle because they were not Crosby’s agents and were not referred by Crosby, but that it was Acadian emergency responders who took Randle to the medical facility.
Randle responded in opposition arguing that he had enough evidence to demonstrate a genuine issue of material fact regarding his claims. After reviewing all the evidence and the parties briefs, the court found that Randle had failed to produce any evidence or allege that Crosby itself was negligent or that there was anything wrong with the vessel that would make it unseaworthy. Instead, Randle’s argument rested on alleged vicarious liability of Crosby for the alleged medical malpractice of doctors at the medical facility. The court concluded that the summary judgment record confirmed that Randle could not prove an essential element of his vicarious liability claim. Randle was not referred by Crosby to the hospital, the doctors at the hospital were not Crosby’s employees or agents, and there was no contractual agreement with Crosby for the hospital to treat its injured employees. Rather, Crosby promptly sought medical treatment for Randle by calling 911 and ensuring that he was taken to a medical facility for treatment. The particular medical facility was chosen by the ambulance service and initial medical responders. Therefore, Crosby may not be held vicariously liable for alleged medical malpractice of doctors at the hospital. Crosby’s motion for partial summary judgment was granted and its motion to exclude and/or limit testimony of plaintiff's experts was granted in part and denied in part. (USDC EDLA, September 22, 2017) 2017 U.S. Dist. LEXIS 155082
ESTATE UNABLE TO PIERCE THE CORPORATE VEIL OF DEFENDANT (CONT.)
UNTERBERG V. EXXONMOBIL OIL CORP., ET AL.
Kelan Unterberg filed this action in state court, individually and as personal representative of the estate of her late husband, Jurgen Unterberg against twenty-two corporate defendants, including ExxonMobil Oil Corporation, bringing causes of action for negligence under the Jones Act, unseaworthiness and maintenance and cure. Plaintiff alleges that these claims arose out of decedent's exposure to asbestos, asbestos dust and asbestos fibers while working on civilian vessels as a chief engineer and merchant seaman between 1973 and 1978. Plaintiff further alleged that such exposure directly and proximately caused decedent to develop malignant mesothelioma, other asbestos-related diseases, and his eventual death on August 11, 2012. Defendants removed the action to this federal court under 28 U.S.C. §§1331, 1441, and 1446(a), on Jones Act and maritime jurisdictional grounds. ExxonMobil then moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that, as a threshold matter, the court should dismiss plaintiff's first and third causes of action under the Jones Act because ExxonMobil was neither decedent's employer nor the owner of the subject vessels during the relevant time period. ExxonMobil's motion for summary judgment on plaintiffs breach of seaworthiness claim under general maritime law was granted. ExxonMobil's motion for summary judgment dismissing it from the action was granted in its entirety [see October 2016 Longshore Update]. However, the court granted plaintiff leave to file a second amended complaint to name Mobil Shipping and Transportation Company (MOSAT) as a defendant in the case. MOSAT moved to dismiss the second amended complaint arguing that as a Marshall Islands corporation that did not engage in business in New York when the complaint was filed, the court lacked personal jurisdiction over MOSAT under Rule 12(b)(2) of the FRCP, and in the alternative, plaintiff's claims should be dismissed as time-barred. After reviewing all the evidence and viewing the evidence in the light most favorable to plaintiff, the court found that MOSAT was transacting business in New York during decedent's employment period and there was an articulable nexus between business transacted and plaintiff’s cause of action. Finally the court found that the case did not present the exceptional situation where the exercise of jurisdiction was unreasonable even though minimum contacts are present. The exercise of personal jurisdiction over MOSAT therefore comported with notions of fair play and substantial justice. Having met all three requirements under Rule 15(c), the plaintiff’s second amended complaint related back to the date of filing of the original New York State complaint and was therefore timely. MOSAT's motion to dismiss was denied. (USDC SDNY, September 20, 2017) 2017 U.S. Dist. LEXIS 154661
COURT GRANTS EMPLOYER’S MOTION FOR PARTIAL SUMMARY JUDGMENT
BAKER V. AMERICAN RIVER TRANSPORTATION CO., LLC
Derrick Baker was employed by American River Transportation Co. (ARTCO), as a deckhand on ARTCO’s towboat. Baker was allegedly injured while attempting to loosen a wire cable that was attached a barge. Baker was provided immediate medical treatment and was diagnosed with a laceration to his lower lip and a chipped tooth. Baker was also referred to, and seen by, a dentist to evaluate his chipped tooth. He was cleared and returned to work shortly after, until his termination about three months later. After his termination, Baker filed suit against ARTCO for Jones Act negligence, unseaworthiness, and maintenance and cure, alleging that the wire injury struck his face, injured his lip and teeth, as well as his eye, and introduced foreign bodies into his bloodstream and eye. ARTCO moved for partial summary judgment, contending that Baker would be unable to carry his burden of proof at trial that his alleged eye injury arose during or within the scope of his course of employment with ARTCO. Baker's responded, countering that ARTCO had not proved that there were no genuine issues of material fact and that ARTCO's motion was premature. Baker moved the court to defer ruling on ARTCO’s motion until after discovery was completed. The court found that Baker had not provided sufficient evidence to support his allegations that an eye injury was sustained during the scope of his employment with ARTCO. Under Rule 56, it was Baker's responsibility to present essential facts that the eye injury arose within the scope of his employment. Although Baker alleged that his eye injury was the result of the wire cable incident, the uncontested facts showed that on multiple occasions ARTCO requested any and all evidence substantiating the claim for maintenance and cure for Baker's injury. Baker failed to provide any medical records or evidence substantiating allegations that his eye injury was a result of either the wire incident or any other injury during his employment with ARTCO. The court granted ARTCO’s motion for partial summary judgment. (USDC EDLA, August 29, 2017) 2017 U.S. Dist. LEXIS 141793
BIG PAYDAY FOR RELIEF CAPTAIN WHO SLIPPED ON OIL IN ENGINE ROOM
DUNN V. MARQUETTE TRANSPORTATION COMPANY, LLC
Kelvin Dunn alleged that he sustained injuries while he was employed as a relief captain on a Marquette Transportation Company, LLC vessel. Specifically, Dunn alleged that he slipped and fell on diesel fuel that had accumulated in the engine room due to a fuel leak on the vessel and sustained injuries to his leg, hip, and back. Dunn filed suit against Marquette, seeking damages under the Jones Act and general maritime law for Marquette’s alleged negligence and vessel unseaworthiness. Marquette denied liability claiming that Dunn’s alleged injuries were caused in whole or in part by Dunn’s own actions. Following a two day bench trial the court found that the testimony presented clearly established that Dunn was a Jones Act seaman at the time of the accident and the credible evidence supported the finding that Marquette breached its duty in failing to properly maintain its vessel, specifically the fuel gauge on the starboard generator. This unseaworthy condition directly caused the fuel leak and the dangerous condition Dunn encountered. Therefore the court concluded that the vessel was unseaworthy and Dunn’s injuries and resulting damages were proximately caused by the vessel's unseaworthiness, as well as Marquette’s negligence in failing to provide him with a safe place to work. However, the court also found that the testimony of the fact witnesses and expert witnesses presented by both sides established that Dunn violated the company's safety rule regarding proper footwear in the engine room and was therefore negligent. Nevertheless, Dunn’s negligent actions were not a cause of his fall and resulting injury. The evidence clearly supported the conclusion that the cause of his fall, as well as his fellow crew member's fall, was the slippery condition of the engine room decks which rendered the vessel unseaworthy. Furthermore, the court found that Dunn was not contributorily negligent in his decision to enter the engine room and shut off the starboard generator. Dunn was faced with an emergency. He had to choose between shutting off all power to the vessel, which was pushing two loaded chemical barges towards the fleeting area, after already been pushed off course by the current or entering the engine room to see if he could stop the leak. The court found that Dunn's response to this emergency was reasonable under the circumstances. Furthermore, the court found that the evidence supported the conclusion that Dunn had after-tax past lost earnings of $234,360.00 and future wage loss of $1,665,121.00. Considering all of Dunn’s established future medical expenses, the court found that an award of $641,435.89 for future medical expenses was appropriate.. The court found that Dunn was entitled to an award of $100,000.00 for past pain and suffering and $400,000.00 for future pain and suffering, given the nature and extent of Dunn’s injuries. The court awarded Dunn a total of $3,359,718.87 in damages, as well as pre-judgment interest on the above-mentioned past losses totaling at the rate of 3% percent per annum from the date of judicial demand until satisfied. Furthermore, Dunn was entitled to post-judgment interest at the federal judicial rate from the date of judgment until paid. (USDC EDLA, September 6, 2017) 2017 U.S. Dist. LEXIS 143917
CLAIM FOR LOSS WAGES FIZZLES OUT
MUSLEH V. AMERICAN STEAMSHIP COMPANY
Musid Musleh, filed suit, claiming that he was improperly denied unearned wages after he was declared fit for duty following an injury suffered while he was serving as a seaman for American Steamship Company (ASC) aboard its vessel. ASC responded that Musleh was not qualified to return to work on an ASC vessel because he failed to obtain a Vessel Personnel and Designated Security Duties (VPDSD) endorsement before returning to work, a requirement imposed by ASC on all seaman who, like Musleh, come to ASC through the Seafarer's International Union (SIU). Musleh moved for summary judgment on his claim for unearned wages and ASC cross- moved for summary judgment. The court reviewed the evidence, noting that sometime in late 2013 or early 2014, ASC adopted and began to impose on all seamen seeking work with ASC a heightened security certification requirement - the VPDSD enhancement. It was undisputed that when Musleh was declared FFD and cleared to return to work six months after his injury, he sought new employment on a new voyage with ASC and was now subject to the VPDSD certification requirement. There was no evidence, or even a suggestion, that ASC was in any way targeting Musleh or that ASC imposed the VPDSD requirement on Musleh discriminatorily or with any bad intent or ill will. The court found that Musleh provided no authority to support the suggestion that ASC was legally obligated to make an exception to the VPDSD requirement for Musleh or that ASC was legally obligated to pay Musleh unearned wages while he obtained his VPDSD enhancement. The voyage on which Musleh suffered his injury ended on December 26, 2014, the date of Musleh’s injury. Musleh was no longer entitled to unearned wages once his last voyage for ASC ended. Accordingly, ASC was entitled to summary judgment on Musleh’s claim for unearned wages. The court denied Musleh’s motion and granted ASC’s motion for summary judgment. (USDC EDMI, September 8, 2017) 2017 U.S. Dist. LEXIS 145516
NON-OWNER CANNOT BE HELD LIABLE FOR UNSEAWORTHINESS
WOODS VERSUS SEADRILL AMERICAS, INC.
Donald Woods, a Jones Act seaman, allegedly sustained injuries while assigned to a drill ship by his employer Seadrill Americas, Inc. Woods brought this action under general maritime law and the Jones Act, alleging that he sustained personal injuries as a result of Seadrill’s negligence, including its failure to provide him with a safe place to work, failure to give proper warnings, and failure to adequately plan the drilling operation. Woods also alleged that the unseaworthiness of the drill ship was a proximate cause of his injury. Woods claimed maintenance and cure as well as monetary damages for lost wages, lost earning capacity, pain and suffering, medical expenses, disability and loss of enjoyment of life. Seadrill moved for partial summary judgment as to Woods’ unseaworthiness claim, arguing that the only proper defendant for an unseaworthiness claim is the owner of the vessel in question and that it is not now and never has been the owner or operator of the vessel. The court agreed that Woods’ claim for unseaworthiness arose from injuries that occurred on the drill ship. Seadrill was not the legal owner of the drill ship, nor was Seadrill the bareboat, or demise, charterer of the drill ship. Therefore, Seadrill could not be held liable for unseaworthiness. Seadrill’s motion of partial summary judgment was granted. (USDC EDLA, September 25, 2017) 2017 U.S. Dist. LEXIS 157080
CAPTAIN DAVID SCRUTON WITHSTANDS IN LIMINE CHALLENGE
DAVID V. M N M BOATS, INC.
Carlos David alleged that he was employed by M N M Boats, Inc. as a deckhand on their vessel, when he was struck by a personnel basket and allegedly injured. This case arose out of an accident aboard a vessel owned by A & A Boats, Inc. David’s accident allegedly occurred while he was helping to guide and land the personnel basket on the deck. David asserted that the captain of the vessel and the crane operator each failed to follow proper and safe procedures in performing the personnel basket transfer, and that their negligence directly caused his alleged injuries. David filed a seaman's complaint for damages and, shortly prior to trial, moved in limine to exclude defense experts James Pritchett and David Scruton on the basis that some of their opinions are either unreliable or constitute improper legal conclusions. Defendants subsequently withdrew Pritchett as a testifying expert. Therefore, the court only considered David’s motion to exclude Scruton. The court observed that Scruton was a marine consultant with over 16 years of experience at sea, including service as a vessel safety officer and captain, and 27 years of experience as a marine consultant and surveyor. David did not contest Scruton's general maritime expertise, but argued that Scruton lacks specific experience in offshore crane operations and was not qualified to offer opinions from the perspective of a crane operator. Scruton's report included three opinions related to crane operations. The court found that these opinions related primarily to the general safety practices and procedures that a crane operator should follow during personnel basket transfers and did not require personal experience as a crane operator. The court found that Scruton had sufficient expertise to testify about whether the crane operator involved in plaintiff's accident followed proper practices and procedures, and that Scruton's opinions were outside the common understanding of the jury. David also contended that Scruton's opinions were unreliable because Scruton cited to a federal regulation that did not apply to offshore operations. Scruton’s report referenced the Occupational Safety and Health Administration (OSHA) definition of a "danger zone" contained in 29 CFR §1917.2.20 and the report acknowledged that this regulation did not apply to offshore operations but explains that OSHA's definitions are widely understood in the offshore industry. The court found that Scruton had sufficient experience to testify about how a term such as "danger zone" is understood in maritime operations, and that this testimony may assist the trier of fact. Because Scruton did not assert that the regulation was binding, there was little risk that his opinion would confuse the jury. Finally, David asserted that several of Scruton's opinions offered improper legal conclusions. The court found that Scruton's challenged opinions were not legal conclusions and would assist the jury to understand the evidence. Scruton's opinion that the captain operated the vessel in conformity with industry practices and company policies is a factual conclusion outside the common understanding of the jury. Similarly, Scruton's opinion that David is an experienced deckhand who should have been familiar with his responsibilities and with the appropriate hand signals is a factual rather than a legal conclusion. To the extent that David disputed Scruton's characterization of his experience, he would have the opportunity to cross-examine Scruton at trial. David’s motion to exclude Scruton was denied and his motion to exclude Pritchett was denied as moot. (USDC EDLA, September 8, 2017) 2017 U.S. Dist. LEXIS 145614
FRIVOLOUS APPEAL OF MAGISTRATE’S DISCOVERY ORDER
YOUNG V. T. T. BARGE SERVICES MILE 237, LLC
Marcus Young alleged that he was employed by T. T. Barge Services Mile 237, LLC (TTBS) aboard its vessel, when he suffered injuries to his ribs, his back, and other parts of his body. Following his alleged injuries, Young filed a seaman's complaint for damages against TTBS. Young then filed a motion to compel disclosure of the personal contact information of witnesses employed by TTBS. After a hearing, the magistrate judge denied Young’s motion but permitted him to re-urge it at a later date if circumstances warranted. Young appealed the magistrate’s decision. The court found that Young’s motion was moot, as he had originally requested the personal contact information of four employees named in TTBS’s initial disclosures. TTBS represented that it no longer employed three of those individuals, and provided documentation showing that it had communicated their personal contact information to Young, who had already obtained the personal contact information of the fourth individual through a deposition. Young argued that his motion was not moot because he had also requests the personal contact information of all other employees of TTBS likely to have relevant information about the matter. However, the court pointed out that Young had not established that these unnamed employees were covered by the relevant provision of FRCP 26. Young’s motion was denied. (USDC EDLA, August 31, 2017) 2017 U.S. Dist. LEXIS 140708
PROCEDURALLY FAULTY CROSS-CLAIM ALLOWED TO PROCEED
ZIEGLER V. M/V INTERMISSION
Nicholas Ziegler commenced this action by filing claims against LAH Yachts and Hamid Hashemi for unseaworthiness, negligence under the Jones Act for failure to provide a reasonably safe place to work and failure to provide prompt, proper, and adequate medical care. In addition, Ziegler alleged claims for maintenance and cure against LAH Yachts, Hashemi and the M/Y Intermission and a state law negligence claim against Beers Group. His claims arose from two alleged incidents that occurred while Ziegler was a mate on board the M/Y Intermission, resulting in alleged personal injuries to him. The Captain of the M/Y Intermission hired Beers Group to repair the vessel's air conditioning system. Beers Group sent two of its technicians to remove the necessary equipment for repairs and the Captain ordered Zieglar to assist them. While removing the air chiller from the vessel's engine room to a hand truck on the adjacent dock, one of the technicians let go of the chiller, causing it to slip out of Ziegler’s grasp and injuring his right hand and middle finger. Ziegler alleged his medical bills remain unpaid and that he was discharged from his employment on the vessel prior to recovering for the second injury. From a procedural standpoint, Beers Group argued the cross-claim should be stricken because it was filed without leave of the court. The court agreed that Beers Groups was correct in stating that the cross-claim was improperly filed pursuant to Rule 15(a)(1)(A). However, in their response to the motion, cross-plaintiffs conceded the error and belatedly sought leave of court to retroactively cure this procedural deficiency. The court found that the allowance of the cross-claim would promote judicial efficiency by having matters of indemnity and contribution decided in the main action. Given that Beers Group was on notice of the cross-claim prior to the deadline to amend the pleadings, there was little to no prejudice by the belated amendment. As such, the court found that good cause existed to modify the scheduling order and allow an amendment of the pleadings. Having found that good cause exists, the court next considered whether leave to amend should be granted or whether the pleading should be stricken. Upon review of the proposed cross-claim, the court did not agree that the amendment would be futile. Beers Group's motion to strike the cross-claim was denied. (USDC SDFL, September 18, 2017) 2017 U.S. Dist. LEXIS 150916
MAGISTRATE RESOLVES DISCOVERY ISSUS
GOODE V. CELEBRITY CRUISES, INC. ET AL.
Kenneth Goode, a Canadian citizen, worked as a carpenter onboard a ship owned and operated by Celebrity Cruises, Inc. and claimed that he was directly paid by Akira Entertainment, Inc. in connection with the removal of theater and lighting equipment from the Celebrity’s cruise ship. The removal of the equipment was supposedly necessitated by the conclusion of a contractual relationship between Poet Holdings, Inc., Poet Theatricals Marine, LLC, and Poet Technical Services, LLC's and Celebrity, whereby Poet produced various entertainment shows on five separate Celebrity-owned vessels. Celebrity allegedly contracted with Akira because Celebrity lacked sufficient personnel with the requisite knowledge and experience to remove and/or install the equipment, and Celebrity was unwilling to hire Poet to remove Poet's own equipment because Poet's rates were too expensive. Thereafter, Akira hired Goode, in addition to other individuals, as a carpenter and to serve as a member of its workforce upon the vessel. Goode was working on the tension grid located in the theater of the vessel, when he fell through an opening in the tension grid when another Akira employee removed one of the grid posts. Goode allegedly suffered injuries as a result of the fall, including broken wrists, broken ankles, multiple fractures in his back and neck vertebrae, and other unspecified trauma. Poet moved for a reasonable stay of discovery pending Akira's joinder, a protective order with regard to the production of non-party witnesses for deposition whom were under the control of Poet, and a reasonable extension of all deadlines. Poet argued that a stay and a modification of the scheduling order was necessary because Akira may be the actual employer of Goode, the Court had personal jurisdiction over Akira, Akira was an indispensable party, and a determination as to Akira's participation must be ascertained before substantive discovery could proceed. Because the court could not determine whether there was personal jurisdiction over Akira, it turned back to Poet's motion to stay discovery. It was clear that Akira was served in September 2017, which was the primary reason as to why Poet did not want to proceed with any discovery in this case. Accordingly, the court found that there is no persuasive reason to halt the proceedings and that Poet's motion for a stay of discovery was denied. As for Poet's motion to extend all of the pre-trial deadlines in the court's scheduling order, all parties (except Akira) had indicated that completing fact discovery by November 17, 2017 would be a burdensome task. The reason for the lack of progress stemmed back to Poet believing that discovery could not proceed until Akira became a party in the case. Now that Akira has been served, a sixty-day extension of all the Court's pretrial deadlines should provide the parties enough time to conduct all necessary discovery. As such, Poet's motion was granted and the court's pre-trial deadlines were extended for sixty additional days. Poet's motion for a status conference and a protective order were denied as moot. (USDC SDFL, September 29, 2017) 2017 U.S. Dist. LEXIS 160752
ANOTHER REMOVAL ACTION BITES THE DUST
PINEDA V. OCEANIA CRUISES, INC.
Julia Damaris Toruno Pineda, while a cabin stewardess aboard an Oceania Cruises, Inc. cruise ship in international waters, claimed to have been injured when she slipped from an allegedly defective ladder, descending from her bunk. Pineda initially filed suit, in state court under the savings to suitors clause of 28 U.S.C. § 1333(1), against Nautica Acquisition, LLC, the owner of the cruise ship, and Oceania Cruises, Inc., whom she alleged was her "borrowing employer." The defendants removed the case to federal court, submitting that removal was proper because Pineda's claims were subject to an arbitration clause that falls under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After removing the case, the defendants filed a motion asking the court to, on the one hand, dismiss the case on substantive grounds, and to compel the parties to arbitration, on the other. Pineda responded, arguing that dismissal would be improper and that her case should be remanded to state court because her claims were not subject to arbitration. Because the Court found the arbitration clause relied upon by the defendants was inapplicable to Pineda's claims, it concluded that subject-matter jurisdiction was lacking and remanded the case back to state court. The parties did not dispute that Pineda entered into an employment agreement, the "Crew Agreement," with staffing company and non-party International Cruise Services, Inc. Pineda, however, contended that, after being hired by ICS, and once she was on board the cruise ship, she was under the exclusive direction and control of Oceania and became Oceania's borrowed employee. Because the court ultimately found that Pineda's claims against Nautica and Oceania, as set forth in her complaint, did not relate to an arbitration agreement falling under the Convention, it found subject-matter jurisdiction lacking and removal, therefore, to have been improper. (USDC SDFL, September 28, 2017) 2017 U.S. Dist. LEXIS 159509
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