June 2018
Notes From Your Updater: On May 21, 2018, the U.S. Supreme Court denied the petition for certiorari in the case of Doiron, et al. v. Specialty Rental Tools & Supply, LLC, et al., Docket No. 17-1420 [see February 2018 Longshore Update]. The questions presented were: “Whether it runs afoul of this Court’s consistent, deeply-established, and binding precedents for the court of appeals to decline the uniform application of federal maritime law, including its choice of law rules, in order to give preference to a state’s parochial interests;” and “Whether a downstream commercial maritime service provider whose services are utilized in the performance of a contract may rely on and enforce that contract under federal maritime law in a federal court sitting in admiralty.
On April 19, 2018, the Longshore Division of the Office of Workers’ Compensation Programs published a final rule, at 83 FR 17287, which contained regulations implementing the Longshore
and Harbor Workers’ Compensation Act’s provisions on maximum and minimum amounts of compensation payable. These regulations attempt to clarify how the Department interprets and applies these provisions in accordance with several court decisions to ensure injured workers are compensated properly and insurers and employers are aware of their responsibilities. In addition, the rule implements the Act’s annual compensation-adjustment mechanism for permanent total disability compensation and death benefits. This rule becomes effective May 21,
2018.
On May 14, 2018, the U.S. Supreme Court denied the petitions for certiorari in the case of Kopras v, Marco Marine Construction, Inc., Docket No. 17-1066. The question the had been presented to the Court was, “Does damaging a recreational vessel while it rests securely in a boat lift both before and well after the damage have a realistic potential to disrupt maritime commerce?”
On May 14, 2018, the U.S. Supreme Court granted the petition for certiorari in the case of BNSF Railway Company v. Loos, Docket No. 17-1042. The question presented is, “Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act. More specifically, the petition questions whether payroll taxes should be deducted from compensation owed to an employee who recovered lost wages in an FELA suit.
On May 14, 2018, the U.S. Supreme Court granted the petition for certiorari in the case of Air and Liquid Systems Corp., et al v. Devries, et al., Docket No. 17-1104. The question presented is, “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?”
On May 23, 2018, the Ninth Circuit Court of Appeals denied the motion for rehearing en banc in the case of Colaruotolo v. Benefits Review Board, et al.2018 U.S. App. LEXIS 13626 [see May 2018 Longshore Update].
On May 22, 2018 the Ninth Circuit Court of Appeals dismissed the appeal in the case of The Dutra Group, Inc., et al. v. Zaradnik, et al.2018 U.S. App. LEXIS 13601 for lack of jurisdiction over an appeal of the Benefit Review Board.
On May 3, 2018, a petition for a writ of certiorari was been filed in the case of Benoit v. St. Charles Gaming Co., 2018 U.S. S. Ct. Briefs LEXIS 2028 [see December 2017 Longshore Update]. The questions presented are “Whether a riverboat gaming vessel is "practically capable of navigation" as per the Court's decision in Stewart v. Dutra Constr. Company, 543 U.S. 481, 496, 125 S. Ct. 1118, 160 L.Ed.2d 932 (2005) and Lozman v. City of Riviera Beach, Fla., 133 S. Ct. 735, 184 L.Ed.2d 604 (2013) when the undisputed evidence shows that the vessel: 1) has operable steering and propulsion making it fully and practically capable of navigating on open water; 2) carries a crew including captain, engineer, and boatswain [*5] mates which maintain the vessel's engines, generators, and navigational equipment; 3) is moored in a shipping channel and uses its engines to hold position when other ocean going vessels pass; 4) must by State law be designed and built to mimic an 1800's era paddlewheel steamboat,” and “Whether a riverboat gaming vessel moored in a shipping channel and otherwise practically capable of navigation remains a vessel when the undisputed evidence shows it can quickly and easily release its moorings and other shoreside connections within a couple of hours to sail on navigable waters even though the owner chooses not to do so.”
NINTH CIRCUS ADDRESSES LHWCA SITUS TEST
AHMED V. WESTERN PORTS TRANSPORATION, ET AL.
Abdulaziz Ahmed fractured his elbow during the course of his work as a commercial truck driver for Western Ports Transportation (WPT), which operated a trucking company headquartered five miles from the Port of Seattle. Ahmed initially sought workers’ compensation benefits from the State of Washington. This claim was rejected after the state concluded that Ahmed was not an employee, but a private contractor, who had not elected to pay for industrial insurance coverage. Ahmed then filed for compensation benefits under the LHWCA. The ALJ found that Ahmed was an independent contractor, rather than WPT’s employee, that he did not regularly engage in maritime employment, and that he was not injured on a covered situs. Accordingly, the ALJ found that claimant was not covered by the Act and denied his claim for benefits. On appeal Ahmed contended the ALJ erred in finding that the rail yard where his injury occurred is not an “adjoining area” as defined by the Act. The Board noted that the ALJ found that the Union Pacific Intermodal Facility functioned as a railroad facility located, for economic reasons, near the port. Once containers are taken to the rail facility, the functional nexus is with the landward transportation of cargo, and not the loading or unloading of vessels. Additionally, the Board concluded that the ALJ rationally found that Ahmed’s work was more like that of the truck driver in McKenziethan the driver in Booker, as the facts established that he was not involved in intermediate cargo-moving steps within the Port of Seattle. Consequently as Ahmed had not satisfied either the status or situs requirement of the Act, he had not established essential elements of his claim, and the ALJ’s denial of the claim was affirmed by the Board. On further appeal, the 9thCircuit denied the petition, finding that substantial evidence supported the Board's conclusion that the rail facility’s functional connection to the port was too attenuated under the situs test to confer coverage. Nor was the rail facility an adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. As Ahmed failed to satisfy the "situs" requirement for coverage, the appellate court declined to address whether he satisfied the Act's maritime "status" requirement. (9th Cir, May 14, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 12486
NO SHOWING OF “CASUAL NEXUS” TO SUPPORT FEDERAL JURISDICTION
TEMPLET V. HUNTINGTON INGALLS, INC., ET AL.
Robert J. Templet worked for Huntington Ingalls from 1968 to 2002 and alleged that between 1968 and 1979 he handled asbestos and asbestos-containing products at various worksites, causing him to contract diffuse malignant pleural mesothelioma. Templet sued Huntington Ingalls in Louisiana state court for negligently failing to warn him of the dangers of asbestos and failing to implement safety procedures for handling asbestos. Huntington Ingalls removed the case to the United States District Court for the Eastern District of Louisiana under the federal officer removal statute, alleging that the company used asbestos to construct vessels under government-mandated contract specifications. Templet moved to remand his case back to state court, and the district court granted the motion. Huntington Ingalls appealed, arguing the district court erred in remanding the case to state court. The appellate court began its analysis by pointing out that this case was one of several brought by former Huntington Ingalls employees in state court alleging that the company failed to warn them of the risks of asbestos exposure and failed to implement proper safety procedures for handling asbestos. The appellate court noted that it had recently confirmed that asbestos claims regarding negligent failure to warn, train, or implement safety procedures do not give rise to federal jurisdiction when un-rebutted evidence shows that the government did nothing to direct the shipyard's safety practices. Because of this, the district court correctly held that Huntington Ingalls failed to show the required "causal nexus" to support federal jurisdiction under 28 U.S.C. §1442 and the district court's order remanding this case to state court was affirmed. (5th Cir, May 1, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 11214
THIRD CIRCUIT ADDRESSES COGSA AND FORUM SELECTION CLAUSES
LIBERTY WOODS INTL, INC. V. THE MOTOR VESSEL OCEAN QUARTZ, T AL.
Liberty Woods International (LWI) brought suit for cargo damage sustained during a trip to Camden, New Jersey, on the M/V Ocean Quartz. Liability for the damage was governed by the carrier's bill of lading, which contained a forum selection clause requiring suit to be brought in South Korea. LWI instead sought to bring an in rem suit against the vessel in the District of New Jersey, arguing that the foreign forum selection clause violated the Carriage of Goods by Sea Act (COGSA) because South Korea does not allow in rem suits. The district court dismissed the case, and LWI took a timely appeal of that ruling. The appellate court concluded that the COGSA did not invalidate the forum selection clause in the carrier's bill of lading simply because the selected jurisdiction, i.e., South Korea, did not acknowledge in rem suit. The appellate court ruled that since there was no indication that South Korea does not provide adequate processes for adjudication of cargo damage claims the forum selection clause was not invalidated. The judgment of the district court was affirmed. (3rdCir, May 4, 2018) 2018 U.S. App. LEXIS 11667
DELETING FEDERAL CLAIMS MAY NOT DESTROY FEDERAL JURISDICTION (CONT.)
PITRE, ET AL. V. HUNTINGTON INGALLS, INC., ET AL.
This case arose out of alleged asbestos exposure at Avondale Shipyard, where Steward Pitre worked as a pipefitter from 1964 to 1972. Pitre developed lung cancer, allegedly as a result of exposure to asbestos at Avondale and passed away. Pitre's wife and children filed suit in state court asserting claims for wrongful death and survival under Louisiana law, naming numerous defendants, including Huntington Ingalls, Inc. (Avondale) and Lamorak Insurance Company. Plaintiffs alleged that Mr. Pitre was exposed to asbestos during his employment at Avondale, and that his injuries were caused by the negligence of Avondale and three deceased Avondale executive officers. Defendants removed the action to federal court on the basis of federal officer Plaintiffs moved to remand to state court. In an earlier decision, the court denied plaintiffs' motion to remand [see January 2018 Longshore Update]. Avondale and Lamorak then moved for summary judgment, on the grounds that plaintiffs' claims against them are subject to the exclusivity provisions of the Longshore and Harbor Workers' Compensation Act, and plaintiffs moved to voluntarily dismiss their claims against both defendants without prejudice. The court agreed that plaintiffs' state law claims against Avondale and Lamorak were preempted by the LHWCA, and the defendants were entitled summary judgment. The court granted the motion for summary judgment and plaintiffs' state law claims were dismissed with prejudice. (USDC EDLA April 30, 2018) 2018 U.S. Dist. LEXIS 71932
AMBIGUOUS AGREEMENT PREVENTS SUMMARY JUDGMENT
JOHN BLUDWORTH SHIPYARD, INC. V. CAPITAL CONSULTANTS, INC. OF LA, ET AL.
Capital Consultants, Inc. of Louisiana and Wire Industrial, Inc. are engaged in the business of leasing laborers to other businesses. Capital and Wire entered into a teaming agreement in which Wire agreed to handle the hiring and leasing out of laborers to customers while Capital handled certain financial and administrative matters. The parties agreed to share profits on a 50/50 basis. As part of the agreement, Capital agreed to provide liability insurance. Thereafter, Wire leased two workers, Gilberto Flores and Santos Beltran Silva, to John Bludworth Shipyard Inc. pursuant to a subcontractor agreement between Wire and Bludworth that predated the teaming agreement . While working for Bludworth, Flores and Silva were allegedly injured and subsequently filed suit against Bludworth for its negligence in causing their injuries. Pursuant to indemnity and insurance coverage clauses in the subcontractor agreement, Wire's insurer provided Bludworth with defense, indemnity, and insurance coverage for Flores's and Silva's claims. The insurer settled the claims brought by Flores and Silva for a confidential amount and then instituted this action, in which the insurer, Bludworth, and Wire sought indemnity, defense, and insurance coverage from Capital and its insurer, Liberty Mutual Insurance Company, under the terms of the teaming agreement. Each party brought cross motions for summary judgment. Capital also argued that plaintiffs could not succeed on their claims because the LHWCA was Flores's and Silva's exclusive remedy, and the subcontractor agreement was not in place at the time of the accident. The court could not determine from the terms of the teaming agreement what sort of liability insurance the parties contemplated Capital would procure or whether that insurance would cover contractual liabilities incurred by Wire. The court pointed out that summary judgment was not appropriate where a contract is ambiguous and the intent of the parties becomes a question of fact. Accordingly, both parties' requests for summary judgment were denied. The court found that Capital’s remaining arguments were equally unsuccessful. , arguments. They argued that the underlying settlement was unreasonable because Bludworth was immune from tort liability under the LHWCA as the borrowed employer of Flores and Silva. Plaintiffs pointed out that this argument was made to and rejected by the Texas district court on summary judgment. Capital also argued that the subcontractor agreement was not in effect when Flores and Silva were injured. The court found that each of these arguments presented defenses to the underlying claim by Flores and Silva against Bludworth and therefore sought to attack the propriety of the settlement. Under Louisiana law, a settlement agreement entered into by a policy holder or insured may be enforced against the liability insurer which did not consent to the settlement if the insured shows that the settlement is made in good faith, on a reasonable basis, in a reasonable amount and, in the event of a coverage denial, coverage is found to exist. Accordingly, assuming the settlement of Flores's and Silva's claims was reasonable and made in good faith, Capital waived its right to contest it or assert defenses to the underlying claim. All the motions for summary judgment were denied. (USDC EDLA, May 9, 2018) 2018 U.S. Dist. LEXIS 77849
DOES LOIA NULLIFY INDEMNIFICATION OBLIGATION IN OCSLA CASE
WHITTINE V. ANADARKO PETROLEUM CORPORATION, ET AL.
Nicholas Whittine filed suit against Anadarko Petroleum Corporation and Dolphin Services, LLC for injuries he allegedly sustained while working on a floating oil production platform. Whittine was employed as a blaster/painter with Omni Energy Services to work on the floating oil production platform, and claimed that he stepped on a piece of fiberglass grating that was not properly affixed to the underlying frame, causing the grating to shift and resulting in Whittine falling through the grating and injuring himself. Whittine claimed that Dolphin was responsible for the grating and welding work on the platform at the time of the incident. Dolphin, a subcontractor of Anadarko, filed a cross-claim against Anadarko, seeking defense, indemnity, and insurance coverage. Anadarko moved for summary judgment on Dolphin’s cross claim, contending there were no genuine issues of material fact in dispute in the matter, asserting that the Outer Continental Shelf Lands Act ("OSCLA") governed the dispute and that under OSCLA the laws of the adjacent state, here Louisiana, apply as surrogate federal law. Specifically, Anadarko contended that the Louisiana Oilfield Indemnity Act ("LOIA") nullified the indemnification provision contained within the underlying master service contract. Anadarko also asserted that the insurance demand included in Dolphin's cross claim should be dismissed, arguing that Section 9:2780(G) of LOIA prohibits parties from skirting the indemnity prohibition by employing insurance contracts to provide the illegal indemnities. In its opposition, Dolphin cited Meloy v. Conoco, a Louisiana Supreme Court case, to support the assertion that LOIA only prohibits indemnity provisions where the indemnitee was either negligent or at fault. Dolphin asserted that Anadarko did not argue that Dolphin was at fault for Whittin’s accident. Furthermore, Dolphin concluded that its indemnity cross claim against Anadarko was valid if Dolphin is found to be free of fault. Although the parties did not dispute that OCSLA governed, the court still went on to find that all three requirements of the PLT Test were met, and held that Louisiana substantive law governed the dispute. The court then turned to the issue of whether LOIA applied and nullified the indemnification and additional insurance provisions contained within the MSC. LOIA only applied if the party seeking indemnity is at fault. As Anadarko had not provided evidence related to Dolphin's negligence or fault and the court had not made a finding as to Dolphin's alleged liability or fault, the court declined to decide whether LOIA applied at this stage, and if it does, whether it nullified the indemnification provision in the MSC. Furthermore, the court could not decide whether the insurance demand in Dolphin's cross claim should be dismissed as the provision would only be void if the MSC fell within the scope of LOIA. Anadarko’s motion for summary judgment was denied. (USDC EDLA, May 10, 2018) 2018 U.S. Dist. LEXIS 79564
REMOVAL ACTION DOESN’T BITE THE DUST FOR A CHANGE
PILETTE V. UNITED MARINE OFFSHORE, LLC, ET AL.
Eunice Pilette was a tank cleaner employed by Francis Drilling Fluids, Ltd. His employer was hired by McMoran to perform certain tank cleaning operations in connection with one of its permanent production platforms. Pilette was allegedly injured aboard the platform, when it was hit by another vessel. Pilette filed suit in state court against United Marine Offshore, LLC, the owner of the offending vessel, Warrior Energy Services Corporation, and Superior Energy Services, LLC, owners of the platform. Pilette sued under general maritime law, as well as the Savings to Suitors Clause. The defendants timely removed the case citing 28 U.S.C. §1331 and the Outer Continental Shelf Lands Act (OCSLA), as the basis for federal court jurisdiction. Pilette filed a motion to remand contending that his petition does not state a cause of action under the OCSLA, his alleged injuries did not occur on an OCSLA situs, and there was no basis to remove a maritime claim brought under the savings to suitors clause. The court began its analysis by noting that OCSLA contains its own independent grant of original jurisdiction. The then cited Tennessee Gas as dispositive. Based on the facts evidence submitted, and the allegations in Pilette’s petition, the allision between the platform and vessel arose from, or in connection with, what is indisputably an operation conducted on the OCS involving the production of minerals. The court concluded that the case fell within the jurisdictional grant of OCSLA, and therefore, removal was proper regardless of whether the only claim for relief was brought under the general maritime law. Pilette’s motion to remand was denied. (USDC WDLA, April 26, 2018) 2018 U.S. Dist. LEXIS 81826
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #287. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005. However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
And on the Admiralty front . . .
FATHER’S DEATH CLAIM FAILS AS A MATTER OF LAW
IN RE: MAGNOLIA FLEET, LLC
James Swafford was killed when the vessel he was on capsized in the Mississippi River. Facing actual and potential lawsuits, the vessel's owner and its operator, Magnolia Fleet, LLC, and River Construction, Inc., respectively, filed a complaint in federal court to exonerate or limit their liability. Other litigation was stayed, and various claimants answered the complaint. Eventually, all claims were settled and dismissed, except for Carl Swafford's, James Swafford's father. In his answer, Carl Swafford claimed that Magnolia and River Construction were liable under the Jones Act for negligence and under general maritime law for unseaworthiness. He alleged several types of damages: survival damages based on his son's pain and suffering before death; loss of his son's future earnings; loss of his son's consortium, love, and affection; punitive damages; and pecuniary damages for loss of support and services. In response, Magnolia and River Construction moved for summary judgment. The district court granted the motion, holding that survival damages, loss of future earnings, loss of society, and punitive damages were not available remedies as a matter of law. It also dismissed Swafford's claim for pecuniary damages, holding that he failed to create a genuine dispute of material fact over whether he suffered any loss of support or services. Swafford appealed, contending that the district court erred in dismissing his claims. The appellate court found that the district court's grant of summary judgment was proper, as Swafford could not show he was entitled to any of the damages he sought. Swafford's claims for survival damages and loss of future earnings failed because Swafford failed to adequately brief an argument that he was the proper party to sue for such damages. The district court concluded that only the personal representative of his son's estate may sue for survival damages under the Jones Act and general maritime law. The district court further concluded that wrongful death damages, which included the loss of future earnings, were available for the parent of a Jones Act seamen only if the seaman is not survived by a child or spouse. It was uncontroverted that Swafford was not the representative of his son's estate and that his son was survived by a child. Thus Swafford could not recover survival damages or loss of future earnings as a matter of law. Swafford's claims for loss of his son's society, and punitive damages also failed, because in a wrongful death case under the Jones Act and general maritime law, a survivor's recovery is limited to pecuniary losses and punitive damages and loss of society are not covered. Finally, the appellate court held that the district court properly found that no genuine issue of material fact existed on Swafford's claim for pecuniary damages based on the alleged loss of his son's support and services. The judgment of the district court was affirmed. (5thCir, May 9, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 12130
UNTIMELY DISCLOSURE OF EXPERT WITNESSES IS FATAL TO PASSENGER’S CASE
GONCHARENKO V. ROYAL CARIBBEAN CRUISES, LTD.
Olena Goncharenko was a passenger on the Royal Caribbean cruise ship. While aboard, she went to an upper deck to get some ice cream. There was a video camera on this upper deck. That camera captured the incident that gave rise to the suit. As Goncharenko walked toward the ice cream machine, she encountered a crewman. The crewman began to open two small metal swinging doors at the top of the ice cream machine, both roughly at eye level. As the crewman began to open these doors, he paused when he saw Goncharenko, and he physically pointed at the doors. Then, another passenger tapped Goncharenko on the shoulder and likewise pointed to the doors. Goncharenko grasped one of the opening doors in unison with the crewman and assisted him in opening the door Goncharenko then bent under the now-open doors and retrieved some ice cream from the container below. Ice cream in hand, she walked away from the ice machine, she struck one of the open doors’ corners with her head, allegedly causing injury. Goncharenko filed suit against Royal Caribbean Cruises, Ltd. And the court issued a scheduling order requiring expert disclosures by a date certain. On that day, Goncharenko sent an email purporting to be an expert witness disclosure. The email did not include the names of any witnesses, but stated: “At trial, the only witnesses whom I may ask to provide expert opinions are the medical providers whose records you have received through the discovery process. More than a month later, after Royal Caribbean moved to strike the expert witnesses, the magistrate judge granted Royal Caribbean’s motion to strike. Goncharenko objected to and appealed from the magistrate judge’s order, and the district court affirmed. The district court then granted Royal Caribbean’s motion for summary judgment on Goncharenko’s case in chief. Goncharenko appealed the district court’s order striking her expert witnesses and the subsequent order of summary judgment against her. The appellate court did not find an abuse of discretion in the district court’s striking of the expert witnesses. Goncharenko complied with neither the Federal Rules of Civil Procedure nor the district court’s scheduling order in her attempt to disclose her expert witnesses. The only timely purported disclosure did not even include names. In fact, it contained almost no information, except a reference to the records and reports that Royal Caribbean received through discovery. Allowing this type of vague reference defeats the purpose of the Federal Rules, and would invite a party to dump voluminous medical records on the opposing party, contrary to the rule’s attempt to extract a summary. Therefore, the appellate court affirmed the district court’s decision to strike the witnesses. With respect to Goncharenko’s case in chief, the district court found that a reasonable trier of fact could not find that Royal Caribbean had a duty to warn Goncharenko of the fact that the doors were open. Regardless of whether it had a duty to warn, Royal Caribbean did actually warn Goncharenko of the doors. The crewman stopped opening the doors when he saw Goncharenko, and he physically pointed out the opening doors. A personal warning surely satisfies any duty Royal Caribbean had on this matter. As to all of her negligence theories, Goncharenko could not show proximate causation, and this was fatal to her case. The appellate court affirmed the district court’s order striking the expert witnesses and the district court’s entry of summary judgment against Goncharenko in all respects. (11th Cir, May 10, 2018) 2018 U.S. App. LEXIS 12407
9TH CIRCUS DISSATISFIED WITH COURT’S HANDLING OF SEAMAN’S CASE (CONT.)
BARNES V. SEA HAWAII RAFTING, LLC, ET AL.
Chad Barnes was a seaman who was allegedly injured when the boat on which he was working exploded. During his recovery, Barnes received some monetary assistance from either Sea Hawaii Rafting, LLC (SHR), which owned the vessel, or Kris Henry, SHR's owner and manager, but those payments soon stopped. Seeking the ancient maritime remedy of maintenance and cure, Barnes sued the vessel in rem and SHR and Henry in personam to enforce his seaman's lien against the vessel. Although admiralty courts normally handle such matters expeditiously, that did not happen here for two reasons. First, the district court rejected Barnes's pretrial requests to enforce SHR's obligation to pay maintenance and cure. The court concluded that Barnes was entitled to maintenance and cure and had demonstrated his actual maintenance expenses. Nonetheless, despite undisputed evidence that Barnes was entitled to at least some of his actual expenses, the district court declined to award Barnes any maintenance until trial. Second, when SHR declared bankruptcy after fifteen months of litigation and shortly before trial, the district court stayed Barnes's action. The district court concluded that the vessel was an asset of the debtor's estate and that the automatic bankruptcy stay barred proceedings to enforce Barnes's maritime lien against the vessel. The bankruptcy court partially lifted the bankruptcy stay to allow the district court to evaluate Barnes's claims against SHR but expressly prohibited the district court from issuing any ruling that would affect the maritime lien's status. Ultimately, the district court dismissed Barnes's claims against the vessel. The court reasoned that it lacked in rem jurisdiction because, even though Barnes verified his original complaint, he failed to verify the amended complaint. Then, while Barnes's appeal was pending, the bankruptcy trustee—with the bankruptcy court's approval—sold the vessel purportedly free and clear of Barnes's maritime lien. The trustee subsequently moved to dismiss this appeal as moot. The appellate court held that it had jurisdiction under 28 U.S.C. §1292(a)(3) to review the district court's interlocutory order dismissing Barnes’ claims against the vessel because the order affected his substantive rights. The appellate court concluded that it lacked jurisdiction to review the district court's denial of summary judgment as to a maintenance amount, but it treated the notice of appeal as a mandamus petition. The appellate court went on to hold that the district court erred in staying the action when the vessel owner declared bankruptcy and in dismissing Barnes’ claims against the vessel for lack of in rem jurisdiction. The appellate court concluded that the district court obtained jurisdiction over the vessel when Barnes filed a verified complaint and the defendants appeared generally and litigated without contesting in rem jurisdiction, and Barnes’ failure to verify his amended complaint did not divest the district court of in rem jurisdiction. The district court did not lose in rem jurisdiction while the vessel remained in its constructive custody, and the court's control over the vessel, once obtained, was exclusive. The vessel owner's later-filed bankruptcy petition did not divest the district court of in rem jurisdiction. Moreover, the automatic bankruptcy stay did not affect Barnes’ maritime lien against the vessel, and the bankruptcy court had no authority to dispose of the lien through the application of bankruptcy law. The appellate court denied the bankruptcy trustee's motion to dismiss the appeal as moot after the trustee, with the bankruptcy court's approval, sold the vessel purportedly free and clear of the seaman's maritime lien. The appellate court held that the district court erred by denying Barnes’ maintenance requests in full and held that when a seaman establishes his entitlement to maintenance and provides some evidence of his actual living expenses, the burden shifts to the vessel's owner to produce evidence that the seaman's actual costs were unreasonable. Whether or not the vessel's owner produces such evidence, the seaman is entitled to a maintenance award in the amount of his actual costs up to the reasonable rate in his locality. The appellate court issued a writ of mandamus to the district court to award the seaman maintenance for his undisputed actual and reasonable expenses of $34 per day, subject to a potential increase after trial. The judgment of the district court was reversed and remanded with a mandamus grant [see April 2018 Longshore Update]. Barnes then moved to have the court order the seizure of the vessel pursuant to the ruling of the Ninth Circuit and to perform the arrest without prepayment of at least ten days of the marshal's expenses otherwise required under 28 U.S.C. §1291. The court initially noted that the 1988 amendments to 28 U.S.C. §1291 resolved a previous split in authority and the question of whether a seaman must prepay marshal's expenses was no longer an open question. Accordingly, it appeared to the court that prepayment of the marshal's expenses-even by a seaman-was required under the applicable law. The court gave the parties seven days from the entry of this order, however, to file any memoranda (of no more than five pages) if they disagreed with the court's conclusion. (USDC DHI, May 3, 2018) 2018 U.S. Dist. LEXIS 75063 In a separate ruling, pursuant to the Ninth Circuit's writ of mandamus, the court found Barnes was entitled to an award of maintenance at the rate of $34 per day, subject to a potential upward modification after trial. (USDC DHI May 2, 2018) 2018 U.S. Dist. LEXIS 74621
NON-PARTIES TO FORUM SELECTION AGREEMENT CANNOT ENFORCE IT
BLACK V. DIAMOND OFFSHORE DRILLING, INC., ET AL.
William Black was working as an assistant mechanic aboard a vessel was owned by Diamond Rig Investments, Ltd. While working on the vessel, Black allegedly sustained chemical burns on his buttocks when he sat on a chemical container marked corrosive. Black filed suit in state court, with claims arising under theories of negligence and unseaworthiness in accordance with the Jones Act and general maritime law against appellees Diamond Offshore Drilling, Inc., Diamond Offshore Drilling, Limited, Diamond Rig Investments Limited, Diamond Bermuda and Diamond Offshore General Co. Black asserted that all the defendants were his Jones Act employers at the time of his accident and that all defendants were liable as employers for Jones Act negligence and maintenance and cure payments under general maritime law. Diamond Offshore Drilling, Inc., Diamond Offshore Drilling, Limited, Diamond Offshore General Company, and Diamond Rig Investments Limited filed a motion to dismiss based on the application of forum-selection clause, or, in the alternative, based on forum non conveniens. In their motion, defendants argued that, as non-signatories, they could enforce the forum-selection clause between Diamond Bermuda and Black because they were closely enough related to the signatory and the transaction. The trial court granted the non-signatory defendants' motion to dismiss based on the contractual forum-selection clause, but was silent as to which of the theories argued by the non-signatories was the basis for its dismissal. The trial court expressly found that it did not reach the arguments based on forum non conveniens. Black appealed the trial court's dismissal of his personal-injury claims against Diamond Offshore Drilling, Inc., Diamond Offshore Drilling Limited, and Diamond Offshore Company, claiming the trial court erred in determining that non-signatory defendants could enforce the forum-selection clause contained in his employment contract. The appellate court found that the scope of the forum-selection clause was specifically limited to enforcement by the parties to the contract, and only covered disputes brought by one party against the other party. There were no other parties to the agreement other than Black and Diamond Bermuda. Moreover, the forum-selection clause limited its application to any claims, disputes, suits, actions or proceedings brought between Black and Diamond Bermuda. Additionally, to the extent the trial court relied on concerted-misconduct estoppel to enforce the forum-selection clause, the trial court abused its discretion. To the extent the trial court relied on the intertwined-claims estoppel theory to enforce the forum-selection clause, the trial court similarly abused its discretion. To the extent the trial court relied on direct-benefits estoppel to enforce the forum-selection clause, the trial court abused its discretion because the theory was inapplicable to the case. In sum, the trial court abused its discretion in granting the non-signatory defendants' motion to dismiss. The appellate court reversed the trial court's judgment and remanded the case to the trial court for further proceedings. (Tex. 14thApp., May 15, 2018) 2018 Tex. App. LEXIS 3362
COURT GRANTS MOTION TO STRIKE EMPLOYER’S JURY TRIAL DEMAND (CONT.)
BALL V. WESTBANK FISHING, LLC
Vincent Ball filed suit against his employer, Westbank Fishing, LLC, alleging claims under the Jones Act and general maritime law, with causes of action for negligence, unseaworthiness, and for maintenance and cure. Vincent Ball claimed that he was allegedly injured when he was thrown from the dock of the captain's purse boat as the result of the negligent acts of a crew member. Ball also contended that he was entitled to punitive damages for the unseaworthy condition of the vessel and because Westbank had arbitrarily, capriciously, and without reasonable basis in fact failed to pay maintenance and cure. In its answer to the complaint, Westbank prayed for a trial by jury. Ball then moved to strike Westbank’s jury demand, arguing that because jurisdiction is not also based on diversity, the right to demand a jury trial under the Jones Act belongs only to the plaintiff. Westbank opposed Ball’s motion, arguing that when jurisdiction is based on the Jones Act, both the Jones Act seaman and his employer have the right to demand a trial by jury, and it had a constitutional right to a trial by jury. The court had jurisdiction by virtue of the Jones Act and general maritime law, not based on diversity. Given that Ball declined his right to a trial by jury, which the law grants only to him, Ball was entitled to have Westlake’s jury demand stricken. Ball’s motion to strike that jury demand was granted [see August 2017 Longshore Update]. Ball then filed a motion to compel discovery of any and all written or recorded statements taken by Westbank, which related in any way to Ball’s alleged injury and the production of all documentation reflecting maintenance and cure paid since the date of his alleged injury. Despite Westbank’s protestations to the contrary, the court found that Westbank had not satisfied the burden of showing that the motivating purpose of taking the audio recorded statements of crew members aboard the vessel was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. The court noted that Westbank had not attached any exhibits to support their claim the statements fell within work product doctrine, the statements were not taken by defense counsel, no affidavit of the HR director who took the statements was attached, and information with respect to the HR director's job title led to its conclusion. The court also ordered Westbank to produce documents regarding the payment of cure because Westbank’s objection was overruled. Westbank immediately moved for reconsideration of the magistrate judge's order granting Ball’s motion to compel, continuing to argue there was not any non-litigation purpose for the taking of these statements and included numerous documents which it argued supported its position that the statements are protected by the work product doctrine. The court pointed out that, ultimately, the burden for establishing work product protection is on the party who asserts the claim. Further, motions for reconsideration were meant to correct manifest errors of fact or law or allow for the presentation of newly discovered evidence. The court found that the documentation submitted by Westbank were not newly discovered evidence and should have been attached to the original opposition. Further, a review of the record [*15] and facts, including the deposition of Westbank’s in-house claims investigator, all indicated to the court that it had not committed a manifest error of fact or law and that Westbank had not met its burden of establishing that the primary motivating purpose in securing the witness statements was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim. Westbank’s motion for reconsideration was denied. (USDC EDLA, May 29, 2018) 2018 U.S. Dist. LEXIS 88969
COURT FINDS QUESTION OF FACT PRECLUDES SUMMARY JUDGMENT (CONT.)
GUIDRY V. NOBLE DRILLING SERVICES INC, ET AL.
Glen Guidry was employed as a field service representative by VAM USA, LLC, a subcontractor of Shell. VAM performed casing operations aboard a drill ship, which was owned by Noble Drilling Services. Guidry was inspecting a joint casing while standing upon the drilling floor, which was covered in mud. Guidry slipped and allegedly sustained injuries to his back, ligaments, muscles, and nervous system. He sued Noble, claiming that he was injured as a result of the their negligence and seeking relief under general maritime law and the LHWCA. Nobel moved for summary judgment, contending that nothing in the record created a material fact issue and that Guidry had not submitted evidence that supports his claim that Nobel breached the duty owed to him. But the court found that Guidry had submitted testimony that undermined Nobel’s arguments, and concluded that these issues demonstrated that a genuine dispute of fact existed regarding whether Nobel breached their duty of reasonable care. Nobel’s motion for summary judgement was denied [see May 2018 Longshore Update]. Guidry eventually underwent a six level thoracic fusion. The defendants' physician conducted an independent medical exam and, believing that the IME was insufficient to determine Guidry’s current physical capabilities, the defendants moved to compel the plaintiff to submit to a functional capacity evaluation. However, Guidry's physician refused to release Guidry for an FCE because he is not physically capable of participating in the evaluation. The magistrate judge denied the motion to compel the FCE, holding that while Guidry's physical condition was in controversy, there was no good cause for an FCE because there are several other sources of information for the defendants to evaluate Guidry's functional capabilities. Additionally, the magistrate noted in the order that Guidry agreed to a second IME by the defendants’ physician. The defendants sought reconsideration of the magistrate judge’s order. On reconsideration the court found that the magistrate did not clearly err. The first IME was completed less than a year ago, and Guidry had agreed to undergo a second one. Guidry's physician claimed that Guidry is not physically capable of participating in the FCE. Additionally, the defendants failed to address how the FCE would provide information that the initial IME, the second IME, and the physical therapist could not. The defendants' motion for review of the magistrate judge's order was denied. (USDC EDLA, May 29, 2018) 2018 U.S. Dist. LEXIS 88965
COURT HOLDS THAT SECOND ALLEGED INJURY IS OUT OF THE CASE
NORBERG V. CENAC MARINE SERVICES, LLC
This case involved alleged injuries sustained by Derrick Norberg while he was employed as a tankerman aboard a Cenac Marine Services, LLC vessel. Norberg allegedly initially injured his back while operating a winch aboard the vessel on August 22, 2015, but continued to work until January 13, 2016, when he picked up a 3" line and experienced immediate back pain. Norberg later filed suit seeking damages for Jones Act negligence and unseaworthiness. Cenac moved for summary judgment in its favor in regards to Norberg’s second cause of action. The court found that there were no genuine issues of material facts as to the cause Norberg’s January 2016 injury. Norberg offered no evidence as to any unseaworthiness on the part of Cenac’s vessel in relation to the alleged second injury. Further, Norberg clarified in his opposition to the motion that he did not allege a second injury; just a continuation of his original injury. Norberg’s allegations that he "bent over" and "stood up" were insufficient to allege a second cause of action against Cenac for unseaworthiness under the Jones Act. Accordingly, Cenac’s motion for partial summary judgment was granted as to Norberg’s second cause of action, relative to unseaworthiness and Jones Act negligence claims arising from the January 13, 2016 event, and Norberg’s second cause of action was dismissed with prejudice. (USDC EDLA, May 29, 2018) 2018 U.S. Dist. LEXIS 88972
MOTION FOR “CURE FOR LIFE” DENIED
MYERS, V. ALEUTIAN ENDEAVORS, LLC, ET AL.
Thomas Myers was working as a deckhand/cook/engineer on a Aleutian Endeavors, LLC vessel, when he allegedly fell while running across the deck. Myers also alleged that he was injured in a separate incident when he was struck in the back by a loose deck board. Myers contended that the injuries he suffered would likely require medical attention for the remainder of his natural life, and he moved for a declaration that he was entitled to cure for life. Citing Farrell v. United States, The court noted that the accepted legal standard holds that maximum cure is achieved when it appears probable that further treatment will result in no betterment of the seaman's condition. Myers argued that with the closure of the Public Health hospitals, the maintenance and cure doctrine reverted back to its status between the signing of the Constitution in 1787 and
the establishment of the Public Health hospital system in 1798. And, plaintiff contends that between 1787 and 1798, seamen were entitled to lifetime cure from shipowners, also citing to Atlantic Sounding Co., Inc. v. Townsend in support of this argument. The court noted that the Ninth Circuit had previously rejected this argument, explaining that because laches does not operate as a matter of law, the seamen first must seek relief from the shipowners. In a later case, the Ninth Circuit plainly stated that any right to maintenance is tied to the right to cure, and both extend to the point of maximum recovery. In light of this plain statement, the court found that Myers’ argument that he was entitled to cure for life because of his alleged permanent injuries must be rejected. But even if the court were to determine that seamen who were permanently injured were entitled to cure for life, Myers’ motion would still be denied because Myers had not shown that he is permanently injured. Plaintiff's motion for cure for life was denied. (USDC DAK, May 22, 2018) 2018 U.S. Dist. LEXIS 86034
MCCORPEN DEFENSE UPHELD ON PARTIAL SUMMARY JUDGMENT
CARTER V. PARKER TOWING COMPANY, INC.
Gerald Carter was employed as a seaman by Parker Towing Company, Inc., when he allegedly injured his back on his second hitch with the company. Carter and another deckhand were breaking down tow and moving the rigging gear from one barge to another. The other employee allegedly instructed Carter to toss or throw the rigging equipment, which included heavy metal wires and ratchets, from the barge on which they were standing to an adjoining barge. During this activity, Carter allegedly injured his lower back. Ultimately, Carter filled out an accident report in which he stated that he could no longer work due to the pain. Shortly thereafter, Carter filed his complaint in which he asserted causes of action, including Jones Act negligence, unseaworthiness, and maintenance and cure. Parker filed its answer and affirmative defenses to Carter's complaint. Parker then moved for partial summary judgment on Carter's claim for maintenance and cure, asserting a McCorpendefense, arguing that Carter knowingly failed to disclose pre-existing back pain when he applied for employment. Parker required Carter to attend a pre-employment medical examination. During this examination, Carter was posed several questions regarding his current and past medical treatment, and specifically denied any back pain, joint problems, or orthopedic surgery. Carter also denied taking any prescription medications within 30 days prior to the date that the applicant signed the questionnaire. However, 18 days before he completed the medical questionnaire, Carter visited a medical center in Mississippi, where he complained of chronic, lumbar-type back pain and was prescribed Cyclobenzaprine, 10-milligram tablets, to take three times a day as needed for back pain. Two days later, just 16 days before he completed Parker’s medical questionnaire, Carter returned for a follow up on back pain. Carter argued that the McCorpen defense was not created to force a seaman to inform a potential employer of every ache and pain from which he has suffered, and a genuine issue of material fact existed as to whether any back pain from which he suffered constituted a serious medical condition as envisioned by McCorpen or if it was more "akin to a cold." The court rejected this argument, holding that Parker had fully satisfied all three elements of the McCorpen defense. Parker’s motion for partial summary judgment on Carter’s maintenance and cure claim was granted. (USDC EDLA, May 3, 2018) 2018 U.S. Dist. LEXIS 75011
COURT REFUSES TO ENTERTAIN EMPLOYER’S DECLARATORY JUDGMENT
COASTAL ALASKA PREMIER SEAFOODS, LLC, ET AL. V. REDFERN
Joseph Redfern allegedly injured his wrist while working on Coastal Alaska Premier Seafoods LLC’s fishing vessel and had surgery to repair it. Thereafter, Redfern’s liver failed and he alleged the failure, which is related to an underlying condition (Wilson's disease), was triggered by the anesthesia he received during surgery. Redfern was actively pursuing a liver transplant and sought payment from Coastal for the cost of surgery and lifelong maintenance medication. Redfern filed suit in state court, seeking these and other damages. The complaint also brought federal maritime claims for maintenance and cure, claims under the Jones Act, and state law claims against Coastal, who filed a complaint for a declaratory judgment in federal court five days before Redfern filed his state court complaint. Coastal averred that Redfern’s liver failure predated his employment and was directly related to Redfern’s decision to stop taking medication for Wilson's disease, and had Redfern fully disclosed his medical condition before his 2014 re-hire, Coastal would not have re-hired him. Coastal sought a declaration from the court that they had no obligation under the federal maritime doctrine of maintenance and cure to pay for Redfern’s liver transplant and subsequent maintenance medication. Redfern moved to dismiss Coastal’s DJ action, asking the court to decline to exercise jurisdiction in the matter, given the pendency of his state court proceeding. After weighing the discretionary factors in a declaratory judgment action, the court found that while the first factor favored Coastal, the remaining factors favored Redfern. Therefore, the court granted Redfern’s motion to dismiss in part. The court exercised its discretion to stay the declaratory judgment matter pending resolution of the state court proceeding. The parties were instructed to advise the court once the state court proceeding was complete, should they wish to reopen the matter. Coastal’s motion for a speedy hearing was denied as moot. (USDC WDWA, May 15, 2018) 2018 U.S. Dist. LEXIS 81813
TESTIMONY MORE THAN MERE SPECULATION DEFEATS SUMMARY JUDGMENT
BROWN V. AMERICAN RIVER TRANSPORTATION CO.
Christopher Brown worked as a seaman aboard a vessel, owned and operated by American River Transportation Co. (ARTCO), when he allegedly injured his left knee while descending a set of stairs aboard the vessel. Just prior to the incident, he had worked for many hours in a kneeling position, and Brown alleged that ARTCO’s negligence in failing to provide appropriate knee pads and safety gear caused his injury. He brought claims for Jones Act negligence, unseaworthiness, and maintenance and cure. ARTCO moved for summary judgment, arguing that Brown could not succeed on his negligence and unseaworthiness claims because he cannot show medical causation. ARTCO also moved to limit the testimony of treating physician, Dr. Thomas Lyons, to his reports and opinions given at his deposition. The root of both of ARTCO’s motions was the fact that Dr. Lyons failed to expressly link Brown’s kneeling to his injury in either his reports or deposition. ARTCO argued that Dr. Lyons should not be allowed to testify outside of those statements and that Brown therefore could not prove causation. The court pointed out the Rule 26 requires that a party need only disclose the name of a treating physician along with the subject matter on which the witness is expected to present evidence and a summary of the facts and opinions to which the witness is expected to testify. ARTCO was on notice as to the opinions that Brown intended to elicit from Dr. Lyons and was free to explore those areas at his deposition. ARTCO’s failure to question Dr. Lyons regarding his opinion on medical causation rests solely in the hands of its attorneys. Therefore, the court refused to limit Dr. Lyons's testimony at trial. Additionally, at his deposition, Dr. Lyons testified that kneeling for a long period of time without proper safety gear could have caused Brown’s injury. The court found that this statement was more than mere speculation and was sufficient to create a material issue of fact as to medical causation. ARTCO’s motions in limine and for summary judgment were denied. (USDC EDLA, May 14, 2018) 2018 U.S. Dist. LEXIS 80431
EVACUATION DELAY RAISES QUESTION OF FACT
KNOX V. BISSO MARINE, LLC, ET AL.
Patrick Knox allegedly sustained injuries during a personnel basket transfer while employed by Coastal Towing, LLC. Knox first transferred from a Coastal vessel to a Bisso Marine vessel, and then from that vessel to a REC Marine Logistic vessel. According to Knox, during the transfer the crane operator slammed the personnel basket onto the deck, causing Knox to be ejected. A declaratory judgment action was initiated by Coastal, who sought a declaratory judgment that REC was responsible for the incident and must indemnify Coastal for all sums paid to Knox. REC filed a third-party demand against Dawn Services, Inc. seeking defense and indemnity under Dawn's contract with Bisso. Knox was granted leave to intervene to assert claims against Bisso, REC, and Coastal. Coastal moved for summary judgment on the issue of liability for Knox's injuries, arguing that Knox could not prove that any active negligence by Coastal injured him. Knox, Bisso, and REC opposed Coastal's motion for partial summary judgment. All three oppositions criticize Coastal for conveniently focusing only on the events that occurred after Knox was delivered to the Bisso vessel, suggesting that the second basket transfer that injured Knox was particularly risky because of rough seas and high winds. But that transfer could not wait because by the time Knox arrived on the Bisso vessel his health had deteriorated to the point that he had to be transported via helicopter to a hospital on shore. The opposition points out that Coastal's personnel waited between 13-15 hours after learning of Knox's illness before taking steps to transport him. The court was persuaded that Knox, Bisso, and REC had supported their contentions with sufficient evidence to create an issue of fact as to Coastal's liability for its employee's injuries. Coastal's motion for partial summary judgment was denied. REC moved to exclude Knox's liability expert, John Pierce from trial, challenging Pierce's qualifications and reliability because he has no training as a crane operator, rigger, or crew boat captain. However the court noted that Pierce's CV demonstrated that he had extensive Coast Guard experience and has served as an expert in many cases. Any perceived deficiencies in either his qualifications or opinions will go to the weight of the evidence at the non-jury trial. REC's motion in limine was denied. (USDC EDLA, May 21, 2018) 2018 U.S. Dist. LEXIS 84737
COURT ALLOWS PUNITIVE DAMAGES AGAINST NON-EMPLOYER TO PROCEED
WAYMAN V. PERDUE AGRIBUSINESS, LLC
Brett Wayman was a seaman and mate aboard a tug, employed by Jackson Creek Marine, LLC, when he was allegedly injured. The tug was maneuvered alongside a wooden fender, and Wayman stepped off the tug, onto the fender, and ultimately onto a concrete mooring dolphin, which collapsed under him, sending him into the river. Wayman sued alleging that despite having actual knowledge, due to numerous reports of the unsafe condition of the mooring dolphin for approximately 13 years, Perdue Agribusiness, LLC failed to inspect, maintain, or repair the structure. The complaint alleged negligence under the common law of Virginia and general maritime law, and sought punitive damages. Perdue demured on grounds that exclusive jurisdiction over the matter lay in admiralty, and punitive damages are not recoverable for negligence actions under the general maritime law. The court acknowledged that the true issue before it arose from application of the uniformity principle and whether a plaintiff seaman should be entitled to recover punitive damages in a general maritime law negligence action brought against a third party where the same damages would not be recoverable against his employer due to the Jones Act. The Jones Act, although limiting seamen to the recovery of pecuniary damages, only applies to actions against a seaman's employer, and Congress has taken no action to limit such damages in seamen's actions against third parties. Moreover, a lack of uniformity in the damages recoverable against an employer and a non-employer is readily distinguished from a general lack of uniformity in the face of governing legislation. Purdue’s demurrer was sustained in part and overruled in part. (Vir. Cir. Ct., April 27, 2018) 2018 Va. Cir. LEXIS 64
SIX DAY DIVER FAILS TO MAKE HIS JONES ACT CASE AGAINST EMPLOYER
THORNGATE V. LEGACY OFFSHORE, LLC
Braxton Thorngate was employed by Legacy Offshore, LLC as a tender aboard its dive vessel for six days. He performed two dives during that period. Prior to both dives, Thorngate underwent a pre-dive neurological examination and after each dive, he underwent proper surface decompression protocol. After his last dive, Thorngate remained aboard the dive boat, performing normal deck duties without incident or complaint, never exhibiting any symptoms of decompression sickness, never requesting any medical treatment, and never complaining of any symptoms consistent with decompression sickness. He left the vessel without incident. Three days later, Thorngate slept for 15 hours, during which time he urinated on himself. Once he woke up, he had difficulty hearing, right shoulder pain, and right-sided weakness. He went to a hospital, where he tested positive for amphetamines and opiates and incorrectly reported that his last dive had been two days prior. Based on this inaccurate history, he was transferred to another facility for hyperbaric treatments. At the treatment facility, Thorngate tested positive for amphetamine/methamphetamine, cannabinoid, cocaine, and opiates. He was diagnosed with rhabdomyolysis, NSTEMI , hyperglycemia, acute kidney injury, acute liver injury, polysubstance abuse, leukocytosis, hearing loss and possible decompression sickness, and VTE prophylaxis. He received hyperbaric treatments for decompression sickness and was monitored for conditions possibly resulting from his serious drug and alcohol binge. He was discharged and a week letter went to another facility complaining of chest pain. He again tested positive for opiates and cannabinoids. The emergency room physicians found that Thorngate was not suffering from complications of decompression sickness. Thorngate visited several other medical facilities over the next couple months, before suing his former employer. Legacy moved for partial summary judgment, seeking dismissal of Thorngate's claims for Jones Act negligence and unseaworthiness on the basis that the undisputed material facts did not support a finding of medical causation. Legacy retained two experts who executed declarations that offered opinions that did not support the conclusion that Thorngate suffered any form of decompression sickness while working for Legacy . Thorngate offered no expert opinion(s) in support of his position. When viewing the entire record, the court found it clear that Thorngate could not establish the existence of a genuine dispute of material fact as to medical causation. He presented no evidence at all in response to Legacy's motion, much less the type of expert testimony or declaration required to defeat that motion. The full extent of his opposition is the argument that certain portions of his medical records, because they list decompression sickness as a possible cause of his symptoms, should carry the day. This ignored both the full and undisputed factual picture of the case. Legacy not only pointed to an absence of evidence to support the essential element of medical causation, it affirmatively produced its own evidence that convincingly negates medical causation. In the face of this affirmative evidence, Thorngate's mere argument - not supported by any testimony or declaration - that portions of his medical records demonstrate a theoretical possibility that his claim is valid is insufficient to carry his burden in opposing Legacy's motion. Legacy's motion for partial summary judgment was granted. (USDC EDLA, April 30, 2018) 2018 U.S. Dist. LEXIS 71931
COURT FINDS NEGLIGENT OPERATION OF FORKLIFT CAUSED DRIVER’S INJURY
SCOTT V. WEEKS MARINE, INC.
This case arose from alleged injuries John Scott, Jr. sustained while delivering a package to Weeks Marine, Inc. Scott, a UPS driver, brought his action in state court, but removed the case to federal court on the basis of diversity. Scott asserted he was delivering a 500 pound piece of industrial furniture when Weeks’ employee negligently operated a forklift, causing the furniture to fall on Scott’s hand. Following a one day bench trial the trial court entered judgment in favor of Scott. The court pointed out that Weeks’ employee, Justin Self, operated the forklift to unload the cabinet as one of his duties as a Weeks employee. The court also found that the testimony established that Self had prior issues with unloading deliveries. The court found that Weeks was partially liable for Scott's injuries under the doctrine of respondeat superior because its employee negligently operated a forklift and causing Scott's injury while in the course and scope of his employment. The court found as a matter of law that Self had a duty to operate the forklift, and remove the freight delivery of the cabinet, in such form and fashion as to not cause harm to Scott. He knew that the cabinet being delivered was not on the best of pallets, yet he proceeded with unloading. Self also failed to follow unloading protocol by attempting to lift and unload the cabinet, skipping the steps of readjusting the forks when the cabinet was brought to the end of the deck plate. Failing to readjust the forks and tilt the cabinet back against the mast of forklift caused it to rock and the pallet to break. Therefore, Self breached his duty to properly and safely unload the UPS delivery as an ordinarily prudent forklift operator. The court also found as a factual matter that Scott was partly at fault for the cause of his accident and injuries. While Scott’s decision to put his hands up to keep the cabinet from rocking was likely instinctive, Scott had no responsibility to participate in the unloading of the cabinet after Self began the unloading process. Therefore, Scott's fault lay not in the instinctive placing of his hands on the cabinet, but in standing close enough to the cabinet in the first place. By standing next to the cabinet in this manner, Scott placed himself in the zone of danger. Because Scott should have been clear of the cabinet and forklift during the unloading process, he was held partially at fault for his injuries. The Court found that Weeks was 80% at fault for the cause of Scott’s accident and injuries and Scott was 20% at fault for the cause of his accident and injuries. The court awarded damages totaling $65,675.59 as well as judicial interest and taxed costs. Finally, the court found that UPS’s workers’ compensation carrier, Liberty Mutual Insurance Company, was entitled to reimbursement sufficient to reimburse it for benefits paid pursuant to the Louisiana State Workers' Compensation Act totaling $22,448.73. (USDC EDLA, May 7, 2018) 2018 U.S. Dist. LEXIS 76529
COURT FINDS VESSEL OWNER DID NOT BREACH ANY DUTY OWED
BATISTE V. QUALITY CONSTRUCTION & PRODUCTION LLC, ET AL.
Donald Batiste was employed by Quality Construction and Production, LLC as a rigger. He and his crew were working on a construction project on an offshore platform that was owned and operated by Arena Energy, LP. Helmerich & Payne International Drilling Company (H&P) was conducting drilling operations on the platform pursuant to a separate contract with Arena. Batiste claimed that he was injured while standing on the deck of a vessel engaged in the task of backloading material baskets to the vessel from the platform. He contended that he gave an "all stop" signal that was ignored by the H&P crane operator and that the crane operator proceeded to set a material basket down on a pipe that was laying on the vessel's deck. Batiste alleged that he was injured when the basket's contact with the pipe caused him to be flung into the side of the basket and also caused the pipe to rise up into the air and strike him in the head. Batiste asserted negligence claims against several defendants. In a supplemental and amending complaint, Batiste asserted a claim against Alliance Offshore LLC, contending that Alliance and others were responsible for keeping the vessel steady during the transfers, keeping the deck clear from hazards, and providing a safe work environment. Alliance moved for summary judgment on the claims against it, which Batiste failed to oppose. No evidence was presented that supported a conclusion that Alliance had a duty to intervene in the backloading operation. To trigger the duty to intervene, the plaintiff must show that the vessel owner was actually aware of a dangerous condition and also aware that the stevedore meant to proceed with working despite the hazard and could not be relied upon to remedy There was no evidence that Alliance or its boat captain could have predicted that the job could not be performed safely. Therefore, Alliance did not have a duty to intervene. In summary, there was no evidence that Alliance breached any of the duties it might have owed to Batiste due to its ownership of the vessel. Accordingly, there is no basis for finding Alliance liable for the breach of any such duty. After considering the evidence, the law, and the arguments of the parties, the court granted Alliance's motion and dismissed Batiste’s claim against Alliance with prejudice. (USDC WDLA, May 9, 2018) 2018 U.S. Dist. LEXIS 78624
COURT DECLINES TO PLACE TEMPORAL LIMITATIONS ON STATE CONTACTS SCHINDLER V. DRAVO BASIC MATERIALS COMPANY, INC.
Robert Schindler filed suit claiming personal injuries, specifically mesothelioma, allegedly caused, in part, by the exposure to asbestos while working in the engine room of a vessel, which was owned and operated by Dravo Basic Materials Company, Inc., formerly known as Radcliff Materials, Inc. Dravo moved to dismiss the action for lack of personal jurisdiction under FRCP 12(b)(2), specifically arguing that the court lacked both general and specific jurisdiction, because it was not organized under Louisiana law and does not have its principal place of business in Louisiana, so it was inappropriate for this Court to exercise general jurisdiction. Dravo also asserted that it would be unconstitutional for the court to exercise specific jurisdiction because it has not had any contacts with Louisiana in almost a quarter of a century, and the court’s exercise of jurisdiction over it would be unreasonable. In support of its argument that the court should not exercise specific jurisdiction because its contacts with Louisiana are remote or historical, Dravo urged the court to extend certain temporal limitations that courts consider in general jurisdiction analyses to the Court's assessment of specific jurisdiction. Is his opposition, Schindler only responded to Dravo's arguments regarding specific jurisdiction. Thus, the court focused its analysis as to whether it possessed specific jurisdiction. The Court declined to place temporal limitations on its assessment of Dravo's minimum contacts with Louisiana in the context of specific jurisdiction. Further, the court found that Schindler had satisfied his burden in proving that Dravo had sufficient minimum contacts with Louisiana at the time of his alleged exposure to asbestos. Therefore, the burden shifted to Dravo to demonstrate that the exercise of jurisdiction would be unreasonable. Despite Dravo’s protestations to the contrary, the court disagreed that its exercise of jurisdiction would be unreasonable in the instant matter as to offend traditional notions of fair play and substantial justice. Additionally, the court noted that Louisiana had an interest in a claim that allegedly resulted from exposure to asbestos while a person was working for a company that was performing shell dredging within the state. Moreover, Schindler also had an interest in litigating his claim in Louisiana, where he was allegedly exposed to asbestos over the course of a few months. The court found that Dravo had not met its burden in proving that this Court's exercise of specific jurisdiction over the instant matter was unreasonable under the circumstances. Dravo’s motion to dismiss for lack of personal jurisdiction was denied. (USDC EDLA, May 18, 2018) 2018 U.S. Dist. LEXIS 83922
COURT FINDS REQUESTED DISCOVERY A FISHING EXPEDITION
DELGADO V. TARABOCHIA, ET AL.
Daniel Delgado allegedly injured his hand while on board a Tarbochia, Inc. fishing vessel and sued the vessel and vessel owner for Jones Act negligence and unseaworthiness. Delgado alleged that he lost his balance and his hand went through a plate glass window on the wheelhouse, causing injuries with continuing disabilities. Defendants disputed Delgado’s version of events based on evidence acquired to date. Another crew member on board the fishing vessel at the time of the incident had indicated that Delgado was using heroin in the days leading up to the incident and was in the midst of a heated argument with his girlfriend when he punched through the window. After Delgado left the vessel, defendants located a computer file, apparently created by Delgado, containing text messages, emails, and photographs that seemed to reflect drug transactions and a volatile relationship. At his deposition, Delgado denied using heroin after 2011, denied fighting with his girlfriend before the incident, and denied punching through the wheelhouse window. Delgado reported that he had no feeling in three of his fingers and his thumb, that he had no coordination or grip strength in his right (dominant) hand, and that he is in constant, severe pain. Defendants obtained surveillance video which seemingly contradicts Delgado’s testimony regarding the extent and severity of his deficits. With regards to the post-incident phone and bank records, the court found that defendants were simply fishing. Defendants have evidence that plaintiff recently engaged in activities that he arguably should not be able to do if his testimony regarding the extent of his injuries were truthful. While focused discovery regarding plaintiff's post-injury activities may be fruitful, the discovery sought, including records of all communications and bank records from the accident to the present, reflected nothing more than defendants' hope that they will catch Delgado calling a bowling alley, paying for a round of golf, or doing something else defendants feel he should not be able to do. The balance of the benefits and burdens of these post-incident discovery requests were not in defendants' favor, as they were not prompted by any specific need for information and were likely to drive discovery and generate disputes that were wholly collateral to the primary issues in the case. Delgado’s motion to quash was granted in part. The subpoenas to the banks were quashed, as were the subpoenas issued to the wireless providers to the extent they sought post-incident records. Any responsive records produced by the wireless providers related to the period January 1, 2014 through June 16, 2015 shall be used only for purposes of the litigation. (USDC WDWA, May 4, 2018) 2018 U.S. Dist. LEXIS 75978
VENUE SELECTION AGREEMENT FAILED TO MENTION SUBSIDIARY COMPANIES
LEWIS V. MARQUETTE TRANSPORTATION COMPANY, LLC, ET AL.
This case arose from injuries Joshua Lewis allegedly sustained when he slipped and fell while exiting the vessel to the outside deck. Lewis alleged that Marquette Transportation Company, LLC and Marquette Transportation Company Gulf Inland, LLC owned and operated the vessel. Lewis worked for Marquette in the capacity of relief mate and alleged that the deck of the vessel was not properly coated or covered with a nonskid surface. Lewis brought suit against Marquette under the Jones Act and general maritime law. Marquette answered the complaint generally denying the allegations and raising multiple defenses, including failure to state a claim, contributory negligence, assumption of risk, failure to mitigate damages, and preexisting conditions. Marquette also averred that Lewis was not a Jones Act seaman and requested that the court transfer venue because Lewis executed a Venue Selection Agreement mandating that any future suit against Marquette arising out of the matters alleged in the complaint must be brought in Kentucky federal or state court. Lewis responded in opposition, arguing that the forum-selection agreement only applied to Marquette and not to Marquette Gulf Inland, his employer. The court reviewed the forum selection agreement and found that it was between Marquette Transportation and Lewis. No mention was made of Marquette Gulf Inland or Marquette's "subsidiaries." Because the agreement is clear on its face regarding the parties, the court pointed out that it may not go outside the four corners of the document to decipher the parties' intent. Therefore, the court held that the forum-selection agreement was between Marquette and Lewis alone and was not enforceable by Marquette Gulf Inland. Marquette’s motion to change venue was denied. (USDC EDLA, May 10, 2018) 2018 U.S. Dist. LEXIS 78737
MOTIONS, MOTIONS AND MORE MOTIONS
BOTELHO V. NORDIC FISHERIES, INC.
Kevin Botelho was working on a fishing vessel, owned by Nordic Fisheries, Inc., when he fell and allegedly injured his head. Botelho filed suit, asserting claims for negligence, unseaworthiness, maintenance and cure, and intentional and/or negligent failure to provide maintenance and cure. The principal factual dispute in the case concerned whether Botelho slipped on the metal deck of the vessel or whether he slipped because he stepped on a skate fish. Nordic moved to exclude the entire testimony of three of Botelho’s experts at trial. Botelho moved to preclude certain portions of the defendant's experts' testimony. Christopher D. Barry, P.E., was Botelho’s liability expert. He had provided an initial report and a rebuttal report. Nordic moved to exclude Barry's testimony on the grounds that he failed to perform certain tests; that the tests he did perform were unreliable; that there is no basis for his opinions about alternative designs; and that he fails to opine on the ultimate cause of Botelho’s injuries. In the alternative, Nordic requested an opportunity to depose Barry prior to trial. The court pointed out that Botelho’s expert was not required to perform any particular tests in order to arrive at his opinion. Rather, the question is whether the methods he used are reliable. The court found that Barry explained in detail the principles he used to form his opinions. To the extent that Nordic believed that the testing conditions were different from the time of the fall in a way that might have affected the results, it was free to cross-examine Barry or offer its own expert testimony. But Nordic offered nothing more than attorney argument in support of its position. Nordic’s final argument was that Barry's reports are inadequate because he failed to opine as to the ultimate issue, that is, whether Nordic’s failure to provide a non-skid surface caused Botelho’s injuries. But the court found an expert report may be helpful to a trier of fact even though it does not opine on the ultimate issue. In the alternative, Nordic requested an opportunity to depose Barry prior to trial. The court noted that Botelho offered Nordic this opportunity, after serving Barry's rebuttal report, and Nordic affirmatively chose not to take it. The court found that Nordic had not shown good cause as to why it should be allowed to reopen discovery now. William H. Burke, Ph.D., is Botelho’s life-care expert. Nordic contended that his testimony should be excluded because Dr. Burke did not rely on an identifiable methodology, gave opinions that should be given by medical doctors, and might confuse the jury into believing that certain care has actually been prescribed to Botelho. Although Nordic was correct that Dr. Burke was not a Certified Life Care Planner, the court found that he nevertheless appeared to be qualified to render an opinion as to plaintiff's future-care needs. Although Nordic argued that Dr. Burke did not identify his methodology, the court noted that he explained his methodology in his deposition testimony. While Nordic argued that Dr. Burke provided no documentation as to where he obtained the cost data on which he relied, those costs were in fact documented, and that they came from the doctors and billing office of Botelho’s treating providers or facilities in his area. Nordic argued that Dr. Burke's assessment of Botelho’s needs were speculative and unsupported. Under the circumstances, the court found that was a proper ground for cross-examination, but not a reason to exclude the testimony. Nordic has also moved to exclude the opinion of Neal McGrath, Ph.D., who was Botelho's expert on neuropsychological issues. Nordic contended that Dr. McGrath had not been qualified as an expert, that he did not identify a reliable methodology for coming to his conclusions, that he purported to make a medical diagnosis, although he is not a doctor, and that he came to his conclusion without reviewing any of Botelho’s medical records. Nordic’s motion to exclude Dr. McGrath's testimony was denied. Nordic moved to exclude a particular portion of the opinion of Simon Bellemare, Ph.D., particularly his conclusion that the addition of a non-skid coating on the surface of the deck would have had no effect if Botelho did indeed slip on a skate fish. Because the report did not contain that information, Nordic’s motion to prohibit Dr. Bellemare from testifying that the non-skid coating would have made no difference if Botelho slipped on a skate was granted. Finally, Nordic moved to exclude the opinions in Captain Richard DiNapoli's report that appear under the heading "Findings of the IFISH Conference," particularly that part of the report discussing a presentation at a conference titled "An Experimental Comparison of Marine Vessel Deck Materials and Footwear Slip Resistance Under Varying Environmental Conditions," given by Brad Wallace. With some misgivings, the court concluded that the flaws in the Wallace paper were not so egregious as to render any reference to it inadmissible. However, the Court noted that Botelho was not permitted to mischaracterize the Wallace paper. Nordic’s motion to exclude the "findings of the IFISH Conference" was granted in part and denied in part. (USDC DMA, May 18, 2018) 2018 U.S. Dist. LEXIS 8374
COURT REFUSES TO ACCEPT STIPULATION IN LIMITATION ACTION
IN RE: TEXAS PETROLEUM INVESTMENT COMPANY
Gentry Hebert moved to enter a stipulation and to lift the injunction and stay of proceedings, in a limitation action filled by Texas Petroleum Investment Company. Herbert’s motion was opposed by Texas Petroleum and others. The magistrate judge issued a report and recommendation, in which she recommended that the motion be denied because Hebert's proffered stipulations were not joined by the other defendants/claimants and were, therefore, not sufficient to protect Texas Petroleum's right to limit its liability. Hebert filed objections to the magistrate judge’s recommendations and Texas Petroleum filed a response thereto. After conducting a de novo review of the record, including the objections and responses, the court found that the magistrate judge correctly stated and applied the law and adopted her report and recommendation. Hebert's motion to enter stipulation and lift the injunction and stay of proceedings was denied. USDC WDLA, May 10, 2018) 2018 U.S. Dist. LEXIS 79455
ANOTHER REMOVAL ACTION BITES THE DUST
PELAGIDIS V. FUTURE CARE, INC., ET AL.
Ioannis Pelagidis was allegedly injured by an exploding air valve while working as an engineer aboard a tanker ship. He sued Future Care, Inc., Marine Management Services M.C., London P&I Club, Valero Marketing and Supply Company, and Valero Energy Corporation in Texas state court. London P&I Club filed a notice of removal, and Pelagidis moved to remand. The court heard argument from counsel and requested supplemental briefing on three issues relating to remand, and the parties complied. Pelagidis sued multiple defendants and argued that remand is required because the notice of removal failed to establish that all of the defendants had consented to the removal. The court disagreed, finding the removal was timely and complied with the statutory requirements. Remand on the ground of procedurally defective removal was denied. Pelagidis argued that because he asserts both Jones Act and general maritime-law claims, the case cannot be removed. London Club, against which Pelagidis asserts only general maritime law claims, argued that these claims were removable. Pelagidis asserted general maritime law claims against all defendants and argued that the claims were not removable unless there was a separate, independent basis for federal jurisdiction, which the defendants did not assert. Maritime Management argued that the Jones Act does not apply to the case because, under a choice-of-law analysis, Greek law governs, making the non-removability of Jones Act claims irrelevant. The court agreed with Pelagidis that his general maritime law claims were not removable without an independent jurisdictional basis, which was not present. The court also agreed with Marine Management that the Jones Act did not apply. But because the court lacked a separate basis to retain jurisdiction over the maritime-law claims, the case must be remanded. The court granted the motion for remand. (USDC SDTX, May 15, 2018) 2018 U.S. Dist. LEXIS 82858
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