Fifth Circuit Affirms “Take Nothing” Jury Verdict in Jones Act Suit

Plaintiff filed suit against his Jones Act employer, Cheramie Marine, L.L.C., alleging negligence and seeking maintenance and cure after an alleged injury on one of its utility vessels. Plaintiff alleged that on July 18, 2014, he was injured as a result of the captain’s decision to travel through high seas. Cheramie put on contrary evidence that the waves were not violent and that plaintiff had made contradictory statements that he, in fact, did not fall and that his alleged back pain was the result of being seasick. The captain testified at trial that plaintiff never reported having any kind of accident. Cheramie’s medical expert also offered testimony at trial about two different MRI films taken of plaintiff’s back, one taken prior to his alleged injury and the other taken after the injury. Cheramie’s expert offered his opinion that the pre-injury MRI actually looked worse than the one taken after the alleged accident. After a jury entered a “take nothing” verdict on plaintiff’s claims, plaintiff appealed to the United States Court of Appeals for the Fifth Circuit.

 

Prior to appealing, plaintiff did not file a motion for a judgment as a matter of law or a motion for new trial. Accordingly, on appeal, the Fifth Circuit was limited in what it could review. Review for sufficiency of the evidence was not an option because of plaintiff’s failure to move for judgment as a matter of law or new trial. The only review available was a challenge to the jury instructions. One of the questions on the jury verdict form asked the jury: “(1) Do you find from a preponderance of the evidence that plaintiff had an accident on July 18, 2014?” In response to this question, the jury answered “no.” On appeal, plaintiff argued that the word “accident” was confusing to the jury because, among other reasons, it may have given them the impression that it was something that happened without fault. Applying an abuse of discretion standard in reviewing the challenge to the jury verdict form, the Fifth Circuit found no reversible error in the inquiry as to whether plaintiff had an accident because it fairly presented the issue of liability to the jury.

 

Plaintiff also challenged the trial court’s decision to allow Cheramie’s medical expert to offer an opinion about the pre-incident MRI because the actual film of the MRI was not produced prior to trial. However, the pre-incident MRI was discussed in the expert’s Rule 26 expert report that was disclosed seven months prior to trial and the opinions offered in that report mirrored the testimony offered at trial. The Fifth Circuit concluded that the district court did not err in allowing the expert to testify consistent with his report while not admitting the actual MRI films into evidence.

 
Bosarge v. Cheramie Marine, L.L.C., 2017 WL 105891 (5th Cir. 2017)

Eleventh Circuit Considers Challenge to Admiralty Jurisdiction in Florida Drainage Canal Injury

On August 3, 2016, the United States Eleventh Circuit Court of Appeals issued its decision in Tundidor v. Miami-Dade County, a case highlighting an interesting limitation on the federal district courts’ original admiralty jurisdiction.  The plaintiff, Tundidor, sued Miami-Dade County after striking his head on a low hanging water line while on a pleasure boat traveling on a drainage canal.  Tundidor brought his claim in admiralty and the County moved to dismiss for lack of jurisdiction.

 

Noting that federal courts have original jurisdiction over admiralty and maritime tort cases that have a nexus to traditional maritime activity and that occur on navigable waters, the court explained that navigable waters are those capable of use in commerce.  The court further explained that “navigable waters of the United States” as opposed to “navigable waters of the States” is an important distinction to make as the test for navigability for admiralty jurisdiction purposes requires both navigability in fact and an interstate nexus.  See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 3-3 (5th ed. 2015).

 

Agreeing with the other federal appellate courts that have considered the question, the Eleventh Circuit determined that when artificial obstructions block interstate commercial travel, admiralty jurisdiction will not lie.  Here, due to artificial obstructions, the drainage canal could not be navigated outside of the State of Florida.

 

The Eleventh Circuit concluded that there was no admiralty jurisdiction over the suit and affirmed the decision of the district court.

 

Tundidor v. Miami-Dade Cty.

Failure to Conduct JSA for Routine Task is Not a Breach of Duty

On August 5, 2015, the United States Fifth Circuit Court of Appeals issued its opinion in Glaze v. Higman Barge Lines Inc.  The court was asked to review the grant of summary judgment in favor of Higman on the Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims.  The Plaintiff, who worked for Higman as a relief captain for approximately four years, alleged injury as a result of maintenance he performed on one of Higman’s vessels.  He claimed that he was instructed to perform a task in the absence of a job safety analysis and that these unsafe work methods rendered the vessel unseaworthy.  The district court granted summary judgment on all Plaintiffs’ claims and he appealed.

 

On appeal, The Fifth Circuit first analyzed the Plaintiff’s Jones Act claim and determined that is was without merit.  The Court ruled that the Captain’s alleged failure to conduct a job safety analysis did not establish a violation of the standard of care.  Further, although a company safety manual can inform what constitutes ordinary prudence, it does not itself create a legal duty.  The task that the Plaintiff was performing—grinding and stripping rust with a needle gun—was a routine task and the Fifth Circuit had previously held that failure to perform a job safety analysis on a routine task is not breach of duty.  The Plaintiff was an experienced seamen of forty years and admittedly knew how to use a needle gun and failed to controvert testimony that he himself trained at least one other crew member on how to use a needle gun to chip rust.

 

The Fifth Circuit also affirmed the grant of summary judgment as to Plaintiff’s unseaworthiness claim.  The basis of Plaintiff’s claim for unseaworthiness was the failure of the Captain to perform a job safety analysis, that the ship did not have safe housekeeping measures, and that the plaintiff was required to perform this task only one month before the vessel entered dry dock for maintenance.  The Fifth Circuit held that a Captain’s failure to conduct a job safety analysis, even if negligent, did not give rise to an unseaworthiness claim.  The Court further found that there was no support for the Plaintiff’s claim of unsafe work methods.  Plaintiff presented no evidence that the needle gun was working improperly or that its use or the vessel was unsafe.  Also, the fact that the vessel was set to undergo routine maintenance in dry dock failed to demonstrate that the vessel or any appurtenance thereto was unfit for its intended purpose or that the crew was inadequate, understaffed, or ill trained.

 

Addressing the Plaintiff’s maintenance and cure claim, the Court found that there was no evidence that the Plaintiff was injured while working on the vessel except for his lawsuit.  Further the Plaintiff did not report an injury to his employer until the suit was filed and he previously told his physicians from who he had sought treatment for his pain that he had not been injured.  The vessel logs did not reflect that any chipping work was done on the day the Plaintiff claimed that he was injured.  The Fifth Circuit affirmed the district court’s grant of summary judgment in favor of the defendant employer, Higman.

Glaze v. Higman Barge Lines, Inc.

Historical Background Anchors Judge Clement’s McBride Concurrence

On September 25, 2014, the Fifth Circuit Court of Appeals, sitting en banc, rendered its decision in the high-profile case McBride v. Estis Well Service, L.L.C.,12-30714, 2014 WL 4783683 (5th Cir. Sept. 25, 2014)McBride garnered national attention after the Fifth Circuit panel reversed the district court and held that punitive damages were available to seamen as a remedy for the general maritime law claim of unseaworthiness.  731 F.3d 505.  On rehearing, a majority of the Fifth Circuit judges determined that punitive damages were not available.  The majority opinion was about fifteen pages long and was followed by nearly sixty pages of concurring and dissenting opinions.

The first concurrence, penned by Circuit Judge Edith Brown Clement and joined by Circuit Judges Jolly, Smith, and Owen, took a closer look at the historical background that, in Judge Clement’s opinion, mandated the result reached by the majority.  Judge Clement dissected what she viewed as the three main points that McBride relied on and determined that, “[w]hen examined closely, none of these arguments establish McBride’s ultimate contention.”  Id. at *7.

Judge Clement first analyzed and concluded that United States Supreme Court jurisprudence does not require punitive damages in unseaworthiness cases.  The Judge noted that Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), only addressed the narrow issue of whether punitive damages were preempted by the Clean Water Act and that this narrowness accounted for the Court’s need in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), to even address the issue of punitive damages in maintenance and cure cases.  According to Judge Clement, this left McBride with “only the thin strand of Townsend.”  McBride at *7.  However, Townsend, a maintenance and cure case, was of little help in light of the “significant differences” between actions for maintenance and cure and unseaworthiness.  Judge Clement cleverly cited to the academic writings of McBride’s own counsel to underscore the well-recognized distinction between the two causes of action. The Judge concluded that “[t]he difference between maintenance and cure and unseaworthiness actions make maintenance and cure cases a poor guide for determining unseaworthiness remedies.”  McBride at *8.

Judge Clement went on to examine the Fifth Circuit’s pre-Miles case law approving punitive damages in unseaworthiness cases, starting with In re Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B 1981).  She concluded that, notwithstanding Merry Shipping and a handful of other cases, there is an absence of actual authority establishing that pre-Jones Act plaintiffs claiming unseaworthiness were entitled to punitive damages.  The Judge characterized the support for such entitlement to punitive damages the result of a “collective judicial ‘oh, hell, why not’ principle” equating the availability of punitive damages in other types of actions to the availability of punitive damages for unseaworthiness.  McBride at *9.

Finally, Judge Clement waded through pre-Jones Act unseaworthiness cases cited by McBride in support of the availability of punitive damages and found only one unseaworthiness case that arguably awarded punitive damages.  The Judge concluded that, even assuming that this case did award punitive damages, one “dust-covered” case should not provide the basis for the general availability of punitive damages in unseaworthiness cases.  This was particularly true when considering the Supreme Court decisions in The Osceola, 189 U.S. 158 (1903) and Pacific Steamship Co. v. Peterson, 278 U.S. 130 (1928) that recognized the remedy for unseaworthiness was an indemnity by way of compensatory damages.

Judge Clement concluded her concurrence by explaining the need for caution “before signing off on an aggressive expansion of punitive damages in the unseaworthiness context.”  McBride at *12.  This is a product of the varying availability of insurance for punitive damages and the direct and indirect impacts such an expansion would have on commercial shipping.  “In light of the potentially sizable impact, this court should not venture too far and too fast in these largely uncharted waters without a clear signal from Congress.”  McBride at *12.

McBride v. Estis Well Serv., L.L.C., 12-30714 (5th Cir. Sept. 25, 2014) (en banc).