by Matthew H. Ammerman on May 28th, 2017

You take your plaintiff as you find him. That is a general principle of tort law. The common example is a person with an eggshell skull who is in an accident and suffers brain damage, whereas you and I would only suffer a headache. The liable tortfeasor is responsible for all damages from the accident.

Here, that principle was applied to Ricky Koch, 54, a foreman for Economy Iron Works who fell backwards on a stairwell on the public vessel S/S Altair on February 2, 2012, during a pre-bid inspection. Koch sued the U.S. government for vessel negligence through Section 905(b) of the LHWCA, claiming neck, arm, and knee injuries that necessitated a cervical fusion and one total knee replacement. At least 3 additional knee surgeries and a posterior cervical fusion revision were planned. U.S. District Court Judge Susie Morgan of the Eastern District of Louisiana awarded $2.83M after a bench trial, including pain and suffering of $1.3M. The federal government appealed.

Prior to his fall, Koch needed total knee replacements, had been diagnosed with carpal tunnel syndrome, and had cervical fusion surgery in 2008. In January 2012 -- less than a month prior to the fall - rheumatologist Merlin Wilson, M.D., told Koch that he needed a total knee replacement "in the worse way."

The federal government argued that Koch's damages were not due to the fall. Its orthopedic surgeon reviewed reports of the MRI films and saw no changes before and after the accident.

The Fifth Circuit recounts the eggshell-skull rule included in the Restatement (Third) of Torts and points out two exceptions: (1) if a person is disabled or incapacitated prior to an accident, the defendant is only liable for the additional harm or aggravation he caused; and, (2) when a plaintiff has a preexisting condition that would inevitably worsen, damages should be reduced to what would have been suffered even in the absence of the subsequent injury, but the burden of proof in such cases is upon the defendant to prove the extent of the damages that the preexisting condition would inevitably have caused.

As to the first exception, the Fifth Circuit held it did not apply because there was not evidence that Koch was disabled prior to his fall. Koch, his wife, and a supervisor testified that Koch had been working and expected that he would continue. The second exception is not discussed. A key part to that exception is that the defendant has the burden of proof to show what plaintiff would have suffered even if he had not fallen. For example, testimony from doctors as to pain, suffering, and surgery that would have happened regardless of the fall, as well as a presumed shortened industrial work life due to serious preexisting orthopedic conditions. There is no indication the government presented evidence of that and instead sought to show that none of the damages were due to the fall. The Fifth Circuit, applying the clear-error standard to the district court's reliance on Koch's treating physicians, rejected that argument.

The government also argued the trial court applied the wrong standard, making the unusual argument that the eggshell-skull rule only applies in cases where the preexisting condition is latent. The Fifth Circuit said there was no legal support for that limitation, and the panel also rejected the government's argument that Judge Morgan abused her discretion for failing to allow an additional expert opinion developed after the report deadline. The government made no proffer of that evidence. The $2.83M judgment was affirmed in all respects.

Koch v. United States, 2017 U.S. App. LEXIS 8486 (5th Cir. May 12, 2017).

by Matthew H. Ammerman on May 15th, 2017

In Texas, medical expenses are often proven up by affidavits signed a medical records clerk stating the amount charged was reasonable and necessary. Tex. Civ. Prac. & Rem. Code § 18.001. But amounts that are written off due, for example, to workers' compensation schedules are not recoverable or admissible. Tex. Civ. Prac. & Rem. Code § 41.0105; Haygood v. De Escabedo, 356 S.W.3d 390, 399 (Tex. 2011).

The 5th Circuit delved into this issue in 2012 in the Manderson case that involved the employer's general maritime law's duty of medical cure to a seaman. There, the 5th Circuit held that only the lower amounts accepted by the medical providers -- not retail charges -- could be awarded to the injured seaman. Manderson v. Chet Morrison Contrs., Inc., 666 F.3d 373, 382 (5th Cir. 2012)This is relevant to damages because the amount of medical costs paid is often a metric used by the injured worker to support compensatory damage awards for, for example, pain and suffering.

Here, Robert dePerrodil, 70, an oilfield consultant, sued third-party vessel owner Bozovic Marine, Ltd. for negligence in operating a vessel and failing to advise him to go back to his seat when seas got rough. DePerrodil fell and injured his back, and his immune employer, PEI, paid his medical expenses under the Longshore & Harbor Workers' Compensation Act. DePerrodil incurred charges for medical treatment of $186,080.30. But the medical providers accepted $57,385.50 in payment of those medical bills. In a bench trial, the judge found Bozovic liable and awarded the full amount of billed charges. Bozovic appealed, and the 5th Circuit held the collateral source rule applied, and Bozovic Marine was liable for medical expenses paid by PEI's LHWCA insurer. But it reversed the trial court's medical expense award because dePerrodil may not be awarded medical costs that were billed but not paid. The judgment was affirmed except for the award of medical expenses.

Therefore, the actually-paid-or-incurred limitation applies under general maritime law  -- not just in the cure context.

The 5th Circuit also affirmed the trial court's reliance on a higher-than-average work life expectancy argued for by dePerrodil because it was supported by evidence. The appellate panel distinguished other 5th Circuit cases in which the fact finder's deviation from average work life was based solely on the worker's argument that he intended to continue working. Cf. Barto v. Shore Constr., L.L.C., 801 F.3d 465 (5th Cir. 2015). Here, dePerrodil's vocational expert relied on his work history, etc. in presenting evidence that he would likely work until age 75. The trial court relied on that evidence, and the 5th Circuit found that was not clear error.

Deperrodil v. Bozovic Marine, Inc., 842 F.3d 352, 356 (5th Cir. 2016).

by Matthew H. Ammerman on April 29th, 2017

An injured worker gets LHWCA compensation for disability. Disability is the incapacity because of injury to do his or her job at the time of injury. 33 U.S.C. Sec. 902(10). What if an injured employee working in suitable alternate employment opts for retirement and his condition worsens -- is additional LHWCA compensation due?

No, not if the worker was able to do his job or suitable alternate job at the time of voluntary retirement says the Benefits Benefits Review Board in two recent opinions.

The most recent, Christie v. Georgia Pacific Co., decided March 7, 2017, involved carpenter Stanley Christie who injured his back on June 29, 1999. He returned to work but had back surgery in 2004. In 2007 or 2008, Christie switched jobs to a safety inspector at Georgia-Pacific's Portland warehouses due to concerns about re-injuring his back.

Christie opted for early retirement in 2010 at age 56 before Georgia-Pacific's generous early-retirement package was  phased out. His back condition, however, worsened after retirement and, in December 2012, Christie's doctor imposed additional work restrictions. Christie then sought permanent, total disability compensation under the LHWCA.

The Board holds that the only relevant inquiry is whether claimant’s work injury precluded him from performing his usual work or suitable alternate employment at the time of his retirement. If not, there is no additional LHWCA compensation due. The Board relied on its holding in a similar retirement case, Moody v. Huntington Ingalls, 50 BRBS 9 (2016)(appeal pending), where the Board denied post-retirement TTD compensation for a knee injury that worsened after retirement from a light-duty job. The Moody case is on appeal to the U.S. Court of Appeals for the 4th Circuit.

Here, Christie was able to do his post-injury job as a safety inspector when he retired. He opted to retire despite that ability, and, consequently, had no earning capacity to lose post-retirement when his back got worse. That holding applies even though the trial judge found that Christie opted for early retirement in part because of fears he would not be able to continue to work due to his back problems.

Christie was not entitled to post-retirement permanent, total disability compensation. He retains his right for medical treatment related to the work injury.

Christie v. Georgia-Pacific Co., 50 BRBS 7 (March 7, 2017).

by Matthew H. Ammerman on April 29th, 2017

This case may go to the en banc Fifth Circuit at the urging Judge Eugene Davis. The judge seeks to cure the lack of predictability arising from the fact-parsing required by the Davis & Sons maritime contract-or-not test. Recall Judge Davis authored 2009's Grand Isle opinion that sought to do the same - leave behind a messy, fact-specific, maritime-contract-or-not test relevant to work on the Outer Continental Shelf. And that case changed the law such that offshore shelf contracts are now interpreted by the locus of the contract rather than the location of the injury. And, taking their cue from Judge Davis, several losing parties indeed filed a motion for hearing en banc in the Doiron case on March 9, 2017, that is currently pending.

Now to the meat of the Doiron case. The issue was whether maritime or Louisiana law applied to the master service contract (MSC) under which the work was conducted. If Louisiana's law applied, the Louisiana Oilfield Indemnity Act would void the indemnity agreement. Indemnity, however, would be valid under maritime law.

Apache contracted with Specialty Rental Tools & Supply (STS) to perform a flow-back operation to clear out debris from a well situated on a fixed platform in the inland waters of West Lake Verret. STS employee Peter Savoie was hurt on a crane barge owned by Larry Doiron while rigging down the crane during the flow-back job. Doiron's crane barge was needed to help lift heavy equipment needed for the flow-back operation. Savoie sued Doiron and others for his injuries. Doiron sought indemnity from STS, which STS rejected.

Judge Southwick applied the Davis & Sons test, assessing the first prong that there was no case on all fours with a flow-back job. Next, the judge moves on to the next prong, analyzing the six Davis & Sons factors and holds that the contract was maritime. The crux of that holding was whether execution of the contract "required the use of a vessel," which it did. Savoie and his co-worker were unable to pull off the job the day earlier without heavy equipment. That is why the crane barge was hired -- to move the heavy equipment on and around the fixed platform.

Four of the six Davis & Sons factors support finding the MSC, and, more specifically, the oral work order arising out of the MSC, was a maritime contract. The MSC includes language that contemplated the use of a vessel, the STS workers relied on Doiron's crane barge to do their work, the operation at issue related to the mission of the vessel of lifting heavy equipment, and Savoie was hurt while working on the crane affixed to the barge. Therefore, the contract was maritime and Doiron's indemnity claim against STS was not voided by LOIA.

Judges Davis and Southwick concurred in the result but urged re-hearing en banc because "It is time to abandon the Davis & Sons test ... " that engenders a lack of predictability and consistency. The losers in the panel opinion, STS and others, took them up on it a few weeks later. We wait to see if the court grants re-hearing en banc.

Larry Doiron, Inc. v. Specialty Rental Tools & Supply, L.L.P. (In re Larry Doiron, Inc.), 849 F.3d 602, 603 (5th Cir. February 23, 2017)(pet. en banc pending).

by Matthew H. Ammerman on April 23rd, 2017

William Bell died of mesothelioma alleged to have been caused by asbestos exposure working as an engineman, machinery repairman, and machinist mate aboard various U.S. Navy ships in the 1960s. His exposure occurred on land at a training facility in Idaho, in territorial waters, and on the high seas. Bell and his survivors, including his girlfriend and brother, sued several companies that manufactured pumps, valves, condensers, compressors, and turbines on the vessels upon which Bell served.

Several defendants moved for partial summary judgment to knock out some of the plaintiffs' damages claims.

Bell was a seaman. Non-pecuniary damages – those measurable in dollars and cents -- are not recoverable by seamen. But wait. Pain and suffering are non-pecuniary damages, right? Wrong. The Jones Act adopted FELA’s limitation to pecuniary damages. But pain and suffering damages were customary to an injured FELA worker, and, consequently, are recoverable under the Jones Act as well. The same applies for a seaman’s estate’s claim for pre-death pain and suffering. Therefore, Judge Lance Africk holds that William Bell’s pre-death pain and suffering are considered pecuniary damages “in the maritime context,” and those damages may be recoverable in the survival claim of the estate.

The defendants also challenged the claim of Bell’s brother, John Bell, arguing the Death on the High Seas Act (DOHSA) only permits a survival claim by the personal representative of the estate. William’s girlfriend, Vickie Campos, was the personal representative of his estate. But the judge held that DOHSA did not apply. First, state law applied to William’s alleged injurious exposure to asbestos when working on land. Second, general maritime law – not DOHSA – applies to William’s exposure on ships.

When an indivisible injury to a seaman occurs due to exposure in territorial waters and the high seas, DOHSA does not apply. The survival claim for exposure on water was governed by general maritime law, and, consequently, not barred by DOHSA. Also, John had a wrongful death claim under the general maritime law for John’s alleged pecuniary losses from his brother’s passing. But the general maritime law precludes non-pecuniary damages. Therefore, John had no claim for mental anguish, loss of society, and affection from the death of his brother – those damages being considered indeed non-pecuniary (unlike pain and suffering).

Last, the defendants scored a partial win by knocking out Campos’ claim in her personal capacity. Campos was not related to William. Therefore, she had no claim in her personal capacity under either state or general maritime law.

To sum it up: Vickie can sue on behalf of the estate, John can sue in his personal capacity, and no one gets non-pecuniary damages under general maritime law. But pre-death pain and suffering are pecuniary in the maritime context.

Bell v. Foster Wheeler Energy Corp., No. 15-6394, 2017 U.S. Dist. LEXIS 31119 (E.D. La. March 6, 2017)

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., No. 16-30481, 2017 U.S. App. LEXIS 6159 (5th Cir. 2017).

by Matthew H. Ammerman on March 1st, 2017

A court in the U.S. District Court for the Eastern District of Louisiana holds that punitive damages are not available in a general maritime law negligence claim against a 3rd party. Wade v. Clemco Indus. Corp., et al., 2017 U.S. Dist. LEXIS 13580 (E.D. La. February 1, 2017).

Rose Wade, widow of a seaman, sued an equipment manufacturer, a silica company, and Chevron, all 3rd parties, for exposing her husband to asbestos through negligently-designed or marketed products resulting in her husband's death. She claimed the defendants were negligent under general maritime law and sought punitive damages. Judge Eldon Fallon dismissed her punitive-damage claims, holding they were not available under general maritime law.

Wade had no claims for punitive damages against her husband's employer for Jones Act negligence or unseaworthiness, that issue having been settled by the 5th Circuit in McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014)(en banc).

But what about a general maritime law claim against non-employer 3rd parties? That issue has been the subject of conflicting federal district court opinions.

There is no Jones Act negligence claim against a non-employer 3rd party. That means that the widow's general maritime law claims for negligence stood on their own with no accompanying Jones Act negligence claim.

Judge Fallon reasoned that the uniformity principle espoused by the U.S. Supreme Court decades ago in the Miles case was reaffirmed by the 5th Circuit in the en banc McBride decision in 2014 and still applied. Therefore, 5th Circuit's past cases based on the Miles uniformity principle were still good law. In one such opinion from 2004, the 5th Circuit held that a seaman's widow may not recover nonpecuniary damages from a non-employer 3rd party under general maritime law. Consequently, Judge Fallon held Mrs. Wade's claims for non-pecuniary damages, here, punitive damages arising from a maritime negligence claim, must be dismissed.

The reasoning in Wade should also apply to other general maritime law negligence claims, such as vessel negligence asserted through Section 905(b) of the Longshore & Harbor Workers' Compensation Act.

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