Seaman’s Widow’s Claim for Punitive Damages Denied

Recently, the United States District Court for the Eastern District of Louisiana further shored up the clearly delineated avenues for recovery available to plaintiffs involved in Jones Act and personal injury suits arising under general maritime law.  In Wade v. Clemco Industries Inc., et al, No. 16502 (E.D. La. Feb. 2, 2017), the court affirmed the Fifth Circuit’s decision in Scarborough v. Clemco Industries, Inc., and denied the widow of a Jones Act seaman the recovery of punitive damages from non-employer third-parties.

 

Court documents show that the decedent, Garland Wade, worked as a sandblaster and paint sprayer on vessels owned by Coating Specialists, Inc., and performed work on permanent fixed platforms owned and/or operated by Chevron USA both in Louisiana and Federal waters.  Several years after leaving his employment as a sandblaster, the decedent died of connective tissue disease. In the case at bar, it was alleged that the decedent was not provided with a protective hood, not given instructions for the proper use of the hood he may have been given, and that he was not provided with a safe work place.

 

Plaintiff, Rose Wade, initially filed suit on grounds that her husband’s death was caused by products manufactured, marketed, designed, sold, and/or distributed by the defendants, and which contained asbestos which she alleged directly caused or aggravated her husband’s illness and death.  As a result of the defendant’s respective actions and/or inactions, Plaintiff sought $5,000,000.00 in damages for the wrongful death of her husband.

 

Defendant quickly filed motions for partial summary judgment seeking the dismissal of Plaintiff’s claims for non-pecuniary losses, under the well-established rule that Jones Act seamen and their survivors are not entitled to recover non-pecuniary damages from a non-employer third parties. (Scarborough v. Clemco Industries, Inc., 391 F.3d 660, 668 (5th Cir. 2004).)  In conjunction with their efforts, Defendants noted that the Plaintiff in the instant matter had already filed a state court suit in which the decedent had been adjudged to have been a Jones Act seaman, and therefore there could be little question that Scarborough would apply to the claims at issue before the Eastern District.  Defendants also argued that the Supreme Court’s holding in Townsend, which had previously resulted in an award of punitive damages for Employer’s arbitrary withholding of maintenance and cure, did not apply, because the Wade matter did not involve the issues of maintenance and cure.

 

In response, Plaintiff averred that her claims against the non-employer third-parties did not arise under the Jones Act or general maritime law; however, the Court disagreed with this assertion.  In so doing, the Honorable Judge Eldon Fallon found this case to be analogous to McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014), cert. denied, 135 S. Ct. 2310 (2015), and noted that in that matter, as in the instant case, Plaintiff elected to bring her claim under general maritime law, and thus the parties were to be bound by the limitations on damages previously established under that body of law.  In granting the defendants’ motions in Wade, the court further solidified the foundation laid by McBride and its progeny, in wrongful death cases brought under general maritime law, which continue to limit a survivor’s recovery from employers and non-employers to pecuniary losses in cases where the Jones Act is implicated.

Fifth Circuit Affirms OSHA Citations Against Mobile Services Rig Operator

In September 2013, a five-man crew was operating a mobile well-servicing rig in Hawkins, Texas.  An inspector for the Occupational Safety & Health Administration (“OSHA”) observed the crew pulling pipe out of a well and photographed the activity.  The photographs demonstrated that the crew had placed guardrails only around the upper part of the rig’s platform.  Further, the investigator observed a set of stairs leading from the ground to the lower platform, but no stairs from the lower to the upper platform.

 

Based on these observations, OSHA cited the rig operator for the missing stairs and missing guardrail.  The matter was tried before an administrative law judge, who affirmed both citations.  In affirming the citations, the ALJ rejected the rig operator’s defenses that compliance with the guard rail regulation was “infeasible” and would have presented a greater hazard.  Further, the ALJ also found that the fixed stairs violation was serious and that the guardrail violation was a repeat violation.  The rig operator was fined penalties of $5,500.00 for the fixed stairs violation and $38,500.00 guardrail infraction.  The rig operator appealed for discretionary review to the Occupational Safety & Health Review Commission as to the fixed stairs violation (which upheld the ALJ’s findings and conclusions), but not as to the guardrail citation.

 

On appeal to the Fifth Circuit, the rig operator argued that the “fixed stairs” requirement did not apply to a mobile rig because the rig itself was not “fixed.”  Further, the rig fell into the “articulated stairs” exception that would apply to structures such as floating roof tanks, dock facilities, or other rigs containing several sections that independently articulated.  In interpreting the word “fixed,” the Fifth Circuit rejected the rig operator’s definition of “fixed” as “permanently attached.”  Citing prior application of the fixed stairs requirement to mobile rigs, the Fifth Circuit held that OSHA’s definition of “fixed” as being “attached in some way to prevent movement” was much more reasonable.  As to the “articulated stairs” exception, the Fifth Circuit held that that exception applied only to stairs that rest on water.  Thus, the citation as to the fixed stairs was affirmed.

 

With respect to the guardrail citation, the Fifth Circuit found that the rig operator had waived its argument that attachment of the guardrail was infeasible because the rig operator had not raised that argument with the OSHRC.

 

Basic Energy Services v. Occupational Safety and Health Administration

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)

Eastern District of Louisiana Excludes Pre-Trial Surveillance for Failure to Disclose

Plaintiff filed a Jones Act claim against several defendants, including barge drilling contractor, Baywater Drilling, LLC (“Baywater”) and oil services company Frank’s International, LLC (“Frank’s”).  The matter was initially set for trial in April 2015, but was continued several times.  The final continuance, granted in August 2016, set the trial for October 31, 2016 with an order that “no further discovery shall be conducted and no motions shall be filed without leave of Court.”

 

On October 2, 2016, Baywater and Frank’s conducted targeted surveillance that revealed Plaintiff working on his truck, using a handheld jack to jack up his truck, and physically lying under his truck.  This video was produced to Plaintiff on October 19, 2016, which prompted Plaintiff to file a Motion to Exclude.  At no time was the court provided with the surveillance video prior to Plaintiff’s motion.  Further, at no time did the defendants move to amend the pretrial order to include the videographer as a witness or the video itself as an exhibit.  The court granted Plaintiff’s motion to exclude.

 

In granting Plaintiff’s motion, the court cited Chaisson v. Zapata Gulf Marine Co., 988 F.2d 513 (5th Cir. 1993), which held that surveillance evidence is considered substantive evidence that is subject to discovery and that failure to timely disclose it can lead to its exclusion.  The court held that inclusion of the surveillance footage would be highly prejudicial to Plaintiff constituting the type of surprise that Chaisson was intended to prevent.

 

Smith v. Baywater Drilling, LLC, et al