Another 5th Circuit ride for McBride - pre-death damages and medical affirmed

by Matthew H. Ammerman on April 15th, 2017

Skye Sonnier was killed and three other crew members claimed injuries when a truck-mounted rig toppled over on the barge supporting it in Bayou Sorrell, a navigable waterway in Louisiana. Sonnier's estate, daughter, and the allegedly injured men sued their employer and rig owner, Estis Well Service, under the Jones Act and general maritime law.

This is the second trip to the Fifth Circuit for the McBride case, the first having been ultimately decided en banc that punitive damages were not recoverable arising out of an unseaworthiness claim under general maritime law. A one-week bench trial ensued, and the damages award included $400,000 in pre-death pain and suffering to Sonnier's estate, plus lost support for Sonnier's daughter. Touchet was awarded $55,185 in future medical expenses. The total award to the Sonnier plaintiffs and Touchet was nearly $1.9M not including prejudgment interest.

The appellate court's opinion can primarily be chalked up to the limited standard of review -- factual findings are reviewed for clear error.

Estis appealed, arguing that Sonnier was unconscious and, therefore, there was no basis for pre-death fear and pain and suffering to Sonnier's estate. The pathologist who performed the autopsy testified, however, that it was more likely than not that Sonnier was conscious for 1-2 minutes before he died. Estis also claimed the district judge's finding on lost monetary support to Sonnier's daughter was erroneous because it was too speculative and should have been limited to rescinded child support. The trial court based its finding on Sonnier's prospective earnings on a potential career path for Sonnier derived from his existing job skills, and also found he supported his daughter. The Fifth Circuit affirmed.

Touchet, who survived the incident, was awarded $55,185 in future medical expenses after maximum cure. Estis cried foul because seaman's right to cure terminates when the seaman has reached maximum cure. That is correct. But a seaman is also entitled to claim future medical damages, which are not subject to the maximum cure limitation (though subject to reduction for the seaman's comparative negligence).

The Fifth Circuit affirmed the district court's judgment on all points.

McBride v. Estis Well Serv., L.L.C., 853 F.3d 777 (5th Cir. 2017).







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